JASTA Won’t Work

JASTA Won’t Work

Congress’ override this week of President Obama’s veto of JASTA (the Justice Against Sponsors of Terrorism Act) comes as no surprise—the legislation is wildly popular, even though it upends a centuries-old international legal doctrine, and despite potentially disastrous ramifications to U.S. defense and intelligence efforts.  For the sake of focus, I’ll forego political and legal criticism of JASTA itself; that criticism has been thoroughly  developed elsewhere  (for just two cogent discussions of JASTA’s international jurisprudential ramifications, see Ted Folkman’s post on Letters Blogatory, and this Bloomberg editorial.)

I’ll also forego arguments in favor of sovereign immunity in general (nutshell definition:  with very few exceptions, nation-states are not subject to suit in the courts of other nation-states).  It’s a necessary though thoroughly frustrating concept, and Congressional leaders are already expressing second thoughts over their rush to override. Even the Act’s proponents now recognize how sovereign immunity protects us.

This is a practical criticism.  Setting aside this ancient doctrine and its value to U.S. interests abroad, let’s assume that claims go forward and the Saudi government actually appears to defend.  What then?  How might 9/11 plaintiffs substantiate their allegations that Saudi Arabia funded the attacks?

Plaintiffs bear a significant burden to show that a defendant caused injury, and whatever the complaint, whatever the forum, that showing requires evidence.  To prove the Saudis funded Al Qaeda’s 9/11 operations, a plaintiff must show a judge and jury more than mere conjecture—they have to show a paper trail.  They cannot simply subpoena documents located overseas.  That paper trail will certainly not be compelled in Saudi Arabia; the Kingdom is not about to cough up voluminous documentation demanded in the course of expansive discovery.  It is not going to be compelled in Iraq or Afghanistan or Pakistan or any number of other countries in the Middle East.  The plaintiffs’ best (only?) course of action will be to follow the money.  And where does the money trail lead?  To banks.  Especially Swiss banks.

Thanks to incredibly stringent secrecy laws (releasing client information has been a criminal offense since 1934), Switzerland is the undisputed center of global banking and the place where the most crucial evidence is likely to be found.  But the nearly impermeable nature of the Swiss banking veil is the stuff of legend, and the odds of a Swiss court ordering the wholesale release of bank records is slim at best.  Swiss law allows banks to release account information in only very limited circumstances—namely, under allegations of tax evasion, money-laundering, and fraudulent activity.  The Swiss have yet to fully carve out an exception for state-sponsored terrorism claims, and even if they had such an exception, production of the evidence could only be compelled in Switzerland via a Hague Evidence Request.*

That instrument itself is delicate in nature—it must carry a surgically specific identification of the documents sought, and it must demonstrate precisely how the documents will be used at trial.  It cannot speculate, and it cannot purport to lead to other evidence (ie: no fishing).

This is where a case against the Saudis is most likely to fall apart.  American lawyers too often draft Hague Evidence Requests by simply copying subpoena language and pasting it into the Request.  Ctrl-C/Ctrl-V is not the best strategy for compelling evidence in civil law jurisdictions (like Switzerland).  Simply put, non-U.S. jurisdictions (even our fellow common law countries!) have prominent “No Fishing” signs posted at their courtroom doors.

So cui bono?  Who benefits from the statutory dismantling of sovereign immunity?  Not the victims or their families.  Not even their lawyers on contingency, who fight the good fight but lose for lack of evidence.

The winners will be the lawyers who represent the Saudis, and the members of Congress who can tell their constituents they stood up against a foreign tyrant.  Nobody else.

The victims of 9/11 will have been paid only lip service, as their families labor under a false hope:  if those who financed the attacks can’t be tried criminally, they can at least be made to pay recompense.

But the financiers have already beaten the rap.  And they’ll probably beat it again.

 

* The Swiss Anti-Money Laundering Act (AMLA) does mandate that banks report certain information to Swiss regulatory authorities, and it allows the sharing of that information with other governments.  AMLA does not, however, circumvent the normal process of evidence compulsion through the courts; Article 31, Section (b) indicates that non-Swiss requesting authorities must utilize the procedure set forth in the Hague Evidence Convention.

Image:  Daniel Patrick Moynihan Federal Courthouse, Manhattan.  Courtesy Wikimedia Commons, https://commons.wikimedia.org/wiki/File:WTM_sheila_0042.jpg

No Fishing: The reality of the Hague Evidence Convention

No Fishing: The reality of the Hague Evidence Convention

Of the three dozen or so Hague Conventions (specify which one you mean, counsel!), the United States is party to only a few.  Among the most productive and useful are the Service and Apostille Conventions.  And although it is helpful, the Hague Evidence Convention is not the great and wonderful device that American lawyers might hope for.

From a U.S. perspective, the HEC does little more than knock down a few procedural barriers—most importantly, it negates the need to convey a Letter Rogatory through diplomatic channels, which saves significant time and a $2,275 State Department handling fee.  A Hague Evidence Request is still, for all intents and purposes, a Letter Rogatory.  By no coincidence, it is officially and synonymously titled a “Letter of Request”.  It is still a communication from judge to judge, it still relies on comity alone, it must still be surgically specific in detailing the evidence sought, and it must still demonstrate precisely how the evidence will be used at trial.

In short, no fishing.

Why?  Because of Article 23, which is, for lack of a better analogy, a big, ugly middle finger directed at U.S. litigators.  It was hastily drafted on the back of a bar napkin as the Convention seemed doomed to failure.  U.S. negotiators recognized that American-style discovery (in the 1960s, a mere shell of today’s fishing industry) was poisonous to the Convention’s chances, so they conceded to the inclusion of the following:

A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.

Put more clearly:  this treaty doesn’t oblige a member country to fulfill an American discovery request if they don’t want to.*

Accordingly, requests filed pursuant to the HEC must not bear the hallmarks of a discovery demand.  Standard subpoena language—particularly the phrase “any and all”—is damaging, and potentially fatal.  Careful drafting and the involvement of foreign counsel are critical (yes, we can provide both).

 

*Although the idea rises from the difference between common and civil law procedures for compelling evidence (in civil systems, judges—not lawyers—demand the production of evidence), even other common law countries have embraced the idea.  It truly is directed at the United States, but the targeting is masked by the moniker “Common Law countries.”

 

Image courtesy of “Bidgee”, via Wikimedia Commons.  https://commons.wikimedia.org/wiki/File:No_Fishing_Allowed_(Wollundry_Lagoon).jpg

Brexit, Service of Process, and Evidence Compulsion in the United Kingdom

Brexit, Service of Process, and Evidence Compulsion in the United Kingdom

My newsfeed has been jam-packed with Brexit stories since England & Wales voted to quit the European Union (for the record, Scotland and Northern Ireland voted overwhelmingly to remain—and this will have additional effects on the state of the UK).  On the morning of the result, I gave a CLE lecture that was co-opted quite a bit by the news.  Personally, I was stunned, and my befuddlement was heightened by the many voters who offered that “I just voted Leave to shake things up… I didn’t think we’d actually do it!”

(Aside:  this is what happens when dubious soundbytes—and flat-out falsehoods—appeal to an angry and frustrated electorate.  Take heed, America… November is coming.  Additional aside: don’t be too hasty to conclude that Brexit will actually come to pass.  That is a good thing.  If it does, Scoxit is next.)

Lest we Yanks think the result creates problems only on the other side of the Atlantic… think again.  Within hours of the vote, the Pound plummeted to a three-decade low (the Euro fell also, but not precipitously), and that makes American goods and services more expensive abroad.  Logically, the US manufacturing sector will take a hit as commerce slumps with the world’s largest trading bloc.  True, it makes travel across the Atlantic highly attractive, but it stymies our already tepid economic recovery.

What of litigation, though?  How will the Brexit affect service of process in the United Kingdom?  Or on the continent, for that matter?  How will it affect the compulsion of evidence in foreign jurisdictions?

Short answer:  it won’t, except perhaps to make agent services in Europe and the UK less costly to American litigants.

The long answer really isn’t long, except to say that service of process and evidence compulsion are very country-specific issues, and those issues have little or nothing to do with the European Union.  As to procedural issues in American lawsuits, Brexit will have negligible effect.

 

(Image by Rlevente, via Wikimedia Commons.)