WorldNetDaily falsely suggested that Elena Kagan supported state sponsors of terrorism by asking the Supreme Court not to hear a case against the Saudi royal family. In fact, Kagan's actions as solicitor general are not evidence of her personal legal views, and the administrations of Presidents George H.W. Bush and George W. Bush argued that civil cases against foreign governments alleging torture or terrorism interfered with the conduct of foreign policy.
WND: Kagan "helped shield Saudi Arabia from lawsuits"
From a May 12 WorldNetDaily article by Aaron Klein:
President Obama's nominee for the Supreme Court, Elena Kagan, helped shield Saudi Arabia from lawsuits filed by families of 9/11 victims seeking to target countries and leaders who helped finance al-Qaida.
"I'm very concerned about her views on executive power and her views with respect to the separation of power," Stephen A. Cozen, the lead attorney in the case for 9/11 victims, told WND.
"I believe she must be asked questions about whether or not citizens who are attacked inside the U.S. have the right to file suits domestically against terrorism financiers," said Cozen, the founder and chairman of Cozen O'Connor, a Philadelphia-based law firm with 24 offices throughout the country.
Cozen's suit documented evidence the Saudis funneled millions of dollars to al-Qaida prior to the 9/11 attacks and that the kingdom continued to finance terrorism thereafter.
He was arguing to bring his case to the Supreme Court after it was dismissed by a lower court and an appeals circuit, which had cited the Foreign Sovereign Immunities Act of 1976 as barring lawsuits against leaders of foreign governments.
Cozen, however, documented how both the Supreme Court and U.S. government briefs allowed for such lawsuits in the past, finding the Immunities Act did not hold in similar cases.
Kagan's friend-of-the-court brief argued Cozen's case would interfere with U.S. foreign policy. She urged the Supreme Court not to hear the case.
In her brief, Kagan acknowledged inconsistencies with the lower court rulings and even conceded there were legitimate questions about whether the Immunities Act should apply in Cozen's case for the 9/11 victims.
Still, she sided with the Saudis, who had presented their case directly to Kagan that the terror victims lawsuit was harming U.S.-Saudi relations.
The Supreme Court sided with Kagan and refused to hear the case.
Courts agreed with solicitor general's position on Saudi case
Lower courts dismissed claims against Saudi royal family on the basis that federal law barred the lawsuits. In 2005, in In re Terrorist Attacks on September 11, 2001 (retrieved via Westlaw), the U.S. District Court for the Southern District of New York dismissed members of the Saudi royal family from a lawsuit by 9-11 victims on the grounds that the court did not have jurisdiction over certain defendants and that the others were immune from suit under the federal Foreign Sovereign Immunities Act. In 2005, a three-judge panel the U.S. Court of Appeals for the 2nd Circuit, in an opinion written by Chief Judge Dennis Jacobs -- an appointee of George H.W. Bush -- unanimously affirmed the decision (retrieved via Westlaw). Jacobs' majority opinion stated:
Although the FSIA did open an avenue of redress for certain individual victims of state-sponsored terrorism, it did not delegate to the victims, their counsel and the courts the responsibility of the executive branch to make America's foreign policy response to acts of terrorism committed by a foreign state, including whether federal courts may entertain a victim's claim for damages.
Bush AG Mukasey also stated that individual state officials are entitled to immunity. The 2nd Circuit held, in part, that "an individual official of a foreign state acting in his official capacity is the 'agency or instrumentality' of the state, and is thereby protected by the FSIA." As support for the holding, they noted that other appellate courts had come to the same conclusion and that "[s]everal district judges in this Circuit have reached the same conclusion," including then-Judge Michael Mukasey, who subsequently became attorney general in the George W. Bush administration.
As solicitor general's office requested, Supreme Court declined to hear the Saudi case. The May 2009 amicus curiae brief filed by the solicitor general's office -- which the Supreme Court had requested from the office -- argued that the Supreme Court should decline to hear the plaintiffs' appeal. While Kagan is listed as "counsel of record" on the brief, the names of six other attorneys appear as well. In June 2009, The Supreme Court declined to hear the appeal without explanation.
Kagan's actions as solicitor general are not evidence of her personal legal views
Legal experts say that Kagan's personal views can't be inferred from her actions as solicitor general. Pamela Harris, the head of Georgetown University's Supreme Court Institute, has said, "I don't think you can read almost anything" into the personal views of a solicitor general based on her representation of the United States. Lincoln Caplan, an expert on solicitors general, recently told The Washington Post, "It's a mistake to assume that every argument an SG makes on behalf of the government reflects her personal legal philosophy."
Kagan stated during her SG confirmation hearings that she will represent the U.S. government rather than follow her personal views. In response to written questions submitted by senators as part of the confirmation process for Kagan's nomination as solicitor general, Kagan stated: "I am fully convinced that I could represent all of these interests with vigor, even when they conflict with my own opinions."
Republican administrations have also argued against lawsuits against foreign governments for terror, torture
George W. Bush administration argued that Iraq should be immune from lawsuits. In 1990, Iraq was deemed a state sponsor of terrorism, but following the coalition invasion in 2003, Congress enacted legislation that authorized the president to waive Iraq's liability under any provision creating a cause of action against a state sponsoring terrorism. In Republic of Iraq v. Beaty, Gregory Garre, the solicitor general at the time, argued on behalf of the administration that Iraq was immune from suit against American citizens who were tortured and held hostage in Kuwait and Iraq. He argued that allowing suit against Iraq would "pose an 'unusual threat to the national security and foreign policy of the United States'." In a decision written by Justice Antonin Scalia, the Supreme Court agreed, and held that Iraq was immune from suit.
George H.W. Bush administration argued that Saudi Arabia should be immune from suit. In Saudi Arabia v. Nelson, the plaintiffs brought suit for injuries Scott Nelson suffered due to torture inflicted upon him while under arrest in Saudi Arabia. Kenneth Starr, as solicitor general, argued on behalf of the George H.W. Bush administration that the Foreign Sovereign Immunities Act did not allow jurisdiction over Nelson's suit because their actions were not "based upon" a commercial activity. He stated that (via Westlaw), "[t]he commercial activity involved here -- Saudi Arabia's recruitment of Scott Nelson to work at its overseas hospital -- does not provide a basis for the intentional injury and related spousal derivative claims that the Nelsons assert in their complaint." The Supreme Court agreed to dismiss the case.