Monday, April 18, 2016

Immunity or Accountability for Saudi Arabia

Interesting and positive news broke out on the foreign policy front last week as new legislation has been proposed in the Congress. That may sound unlikely, but it's actually true. In particular, the new legislation proposes to eliminate sovereign immunity for foreign governments in cases that involve attacks that kill US civilians on US soil.

For those that may not be aware, sovereign immunity is the legal principle that makes foreign governments, and their agents, immune from prosecution when they violate local laws. These arrangements are often reciprocal in nature--for example, the US and its agents / diplomats have local immunity from Saudi Arabian law, and the Saudis are afforded the same privilege.

On its face, this idea probably sounds like a common sense way to avoid needless diplomatic incidents. That is, if a diplomat were to get prosecuted for some minor infraction, it could create a controversial incident between the parent countries of the diplomat and the prosecutors. However, it seems equally clear that such laws need very clear limits. At the very least, murder and terrorism seem like they ought to be over the line. Amazingly, they are not--or at least not overtly so.

That's what the new legislation seeks to change. The New York Times characterized the bill as follows:
The Senate bill is intended to make clear that the immunity given to foreign nations under the law should not apply in cases where nations are found culpable for terrorist attacks that kill Americans on United States soil. If the bill were to pass both houses of Congress and be signed by the president, it could clear a path for the role of the Saudi government to be examined in the Sept. 11 lawsuits.
Indeed, 9/11 is what this new legislation is all about. Family members of the victims of the 9/11 attacks, believe that influential Saudis, possibly including the Saudi government itself, may have been involved in financing the 9/11 attacks. This may sound like a conspiracy theory. Surely, the US government--which has initiated 15 years of continuous war, in Afghanistan and elsewhere, in response to those terrorist attacks--would not knowingly shield people who were actually involved from prosecution. That sounds crazy. And yet, there's actually some compelling reasons to believe this is a possibility.

For starters, 15 of 19 hijackers were Saudi citizens. This fact alone makes it at least possible that their backers might have been Saudi as well. Second, the official US investigation of the 9/11 attacks culminated in what is commonly known as the 9/11 Commission Report, which sought to identify the perpetrators and motivations behind the attacks, among other things. While most of the report followed the standard Washington script and downplayed the influence of US foreign policy in inspiring the attacks, 28 pages of this report relating specifically to Saudi involvement were made classified and remain so to this day. Only high-ranking government officials and members of Congress are allowed to read these pages, and they must do so under oddly extreme circumstances--reportedly, for instance, they are not allowed to take notes and are observed while reading the documents. So either, there's something really worth hiding in these pages, or the US Government has decided to troll would-be conspiracy theorists (and the 9/11 victims' families) in an unprecedented fashion. Personally, my money is on the former. On the plus side, there's recently been new attention placed on the issue of declassifying these 28 pages, including a 60 Minutes segment on the topic last week.

Perhaps what is even more interesting than what this bill is about, is how it's being opposed. The two groups lobbying most strongly against suspending sovereign immunity for terrorist attacks are the Obama Administration and the Saudi Government itself. We'll unpack each of these in turn.

Obama Administration Opposition
The Obama Administration opposes this legislation for two main reasons: that it would jeopardize US relations with Saudi Arabia and that it could put Americans overseas in legal risk if other countries retaliate with similar legislation that weakens sovereign immunity.

The first objection is the standard establishment foreign policy view. This holds that the alliance with Saudi Arabia is critical for stability in the region, and a valuable partner as such. However, this rationale readily breaks down upon closer scrutiny. Saudi Arabia remains one of the few actual monarchies in existence today, and it's complicit in quite a bit of instability in the region right now. At the top of that list is the ongoing catastrophic War in Yemen, which the US is supporting. Additionally, the Saudis are highly implicated in directly arming some of the hardcore jihadist elements of the rebellion in Syria. Given that both of these policies have been disastrous, it's not at all clear why the US would be harmed by dissociating itself from the Kingdom.

And for the record, oil is in no way a valid excuse for this relationship. The Saudis are a major oil producer, but that oil is sold on a global market. The US does not need an alliance to gain access to it. The Saudis can't afford not to sell the oil, and even if they could, the world's oil production is much more diverse now than it was decades ago when a Saudi embargo might have been a threat.

The other reason the Obama Administration is opposing this legislation is similarly invalid. It is of course possible that other countries will retaliate by promising to hold Americans accountable if they kill their civilians on a given country's soil. Okay, but is this really such a bad thing? If there really are Americans killing civilians on another country's soil, should we really demand that they are immune to prosecution? This is an especially good question given that countries where the US is actively engaged in supporting the government militarily (like Afghanistan) typically have separately negotiated deals that explicitly limit soldiers' liability. So given that this would be outside of the major war zones, what possible moral or legal framework could justify a demand that Americans be immune to prosecution.Call me crazy, but that seems unlikely to either give the US a positive image around the world or make us safer.

Saudi Arabia Opposition
If the Obama Administration sounds absurd, somehow the Saudi position is actually worse. Saudi Arabia has taken to threatening economic backlash. The specific threat is that the Saudi Government claims it would be forced to immediately sell off its US assets, including $750 billion in US Treasury Bonds. Their reasoning is that if legislation gets passed that allows Saudi officials to be sued for involvement in 9/11 financing, then they probably will get sued and their US assets would be frozen accordingly.

They're probably right about this. If they get sued, their assets would be frozen. But what's incredible about this, is that it's almost an admission of guilt. Apparently, the Saudis believe that an immunity clause and/or the continued classification of the 28 pages of the 9/11 Commission Report, is all that stands between them and a very expensive lawsuit or outright prosecution. If this is really true, it seems like an even better reason to allow the lawsuits to proceed.

Moreover, it's possible that a fire sale of US Bonds would have deleterious consequences on US financial stability. But it would be equally harmful for the Saudi bondholders. If they really tried to dump those assets all at once, they would likely spark a panic sell-off from other investors. This, in turn, means that many of the bonds will be sold at a fraction of their initial value. So yes, the Saudis could possibly bring some instability to the US, but only by significantly hurting their own financial position in the process.

Summing Up
On questions of foreign policy, there are some issues that seem so complicated that they offer no good solutions. This isn't one of them. If the Saudis really were involved in financing 9/11, they should be held accountable. If they weren't, then it's beneficial for the American people to know that as well. It's possible that other countries will retaliate in kind by suspending immunity for American agents on foreign soil. But if American agents are involved in murdering civilians, as the Saudis are accused, should we really demand that they be immune from prosecution? Similarly, the Saudi relationship is often seen as invaluable in conventional foreign policy circles. But if the Saudis are now attempting financial blackmail to avoid an airing of the facts, in addition to their ongoing misdeeds in the Middle East, now seems like as good of a time as any to start reconsidering.

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