Hoft falsely claims Kagan lied in Supreme Court brief

Hoft falsehood: Kagan lied when she asked the Supreme Court not to hear case. Quoting extensively from a post by Alec Rawls on the blog Error Theory, Gateway Pundit's Jim Hoft wrote: “Did Barack Obama's radical court pick Elena Kagan lie to the Supreme Court in last year's 9/11 case? Looks like it.” As evidence, Hoft cited Rawls' false claim that Kagan lied in a brief asking the Supreme Court not to hear the appeal in a case brought against the Kingdom of Saudi Arabia by people who were injured in the 9-11 terrorist attacks. Specifically, Hoft quoted Rawls' false claim that Kagan lied about a section of the Foreign Sovereign Immunities Act (FSIA). From Hoft's post:

Did Barack Obama's radical court pick Elena Kagan lie to the Supreme Court in last year's 9/11 case?

Looks like it. From Alec Rawls at Error Theory:

As Obama's solicitor general, Supreme Court nominee Elena Kagan urged the Court to dismiss the suit that our 9/11 families have been pressing against the Saudi government and several Saudi princes for their extensive funding of al Qaeda. The families sued under the domestic tort exception to sovereign immunity, which according to Kagan's Supreme Court brief (at p. 14):

requires not merely that the foreign state's extraterritorial conduct have some causal connection to tortious injury in the United States, but that “the tortious act or omission of that foreign state or of any official or employee” be committed within the United States. 28 U.S.C. 1605(a)(5).

[...]

Contrary to Kagan's assertion, the law only specifies that the injury has to have occurred within the United States. Not a word about the wrongful act that leads to domestic injury also having to have taken place within the United. Kagan flat lied about the clear wording of a law that goes to the very heart of our ability to use the courts to combat Islamic terrorism, and thanks to the Court's failure to review this crucial case.

[...]

It seems she also lied about precedent, claiming that the Supreme Court in Amerada Hess: “considered and rejected the argument that domestic effects of a foreign state's conduct abroad satisfy the exception.” In fact there were no “domestic effects” at issue in Amerada, where a ship had been attacked 5000 miles at sea.

Kagan's brief accurately described the law governing the case

Kagan's brief accurately described the federal law at issue. Kagan's brief in Federal Insurance Co. v. Kingdom of Saudi Arabia notes that all lawsuits filed in U.S. courts against foreign countries must be dismissed under the FSIA unless they satisfy one of the exceptions to that act. Kagan's brief argues that none of the exceptions to the FSIA, including the “domestic tort exception,” was met. In the section Hoft cited, Kagan's brief stated:

The domestic tort exception, moreover, requires not merely that the foreign state's extraterritorial conduct have some causal connection to tortious injury in the United States, but that “the tortious act or omission of that foreign state or of any official or employee” be committed within the United States. 28 U.S.C. 1605(a)(5). In Amerada Hess, the Court considered and rejected the argument that domestic effects of a foreign state's tortious conduct abroad satisfy the exception. 488 U.S. at 441. The Court noted that, in contrast to the FSIA's commercial activity exception, 28 U.S.C. 1605(a)(2), the tort exception “makes no mention of 'territory outside the United States' or of 'direct effects' in the United States.” Amerada Hess, 488 U.S. at 441.

As Kagan stated, the Supreme Court has said that domestic effects of torts committed abroad are insufficient to allow such a lawsuit to go forward. Contrary to Hoft's claim that “there were no 'domestic effects' at issue in Amerada,” the plaintiffs in Argentine Republic v. Amerada Hess Shipping Corp. did contend that the alleged tort had “domestic effects” and therefore should not be dismissed. And the Supreme Court specifically rejected that claim, as Kagan's brief said. The court stated that the fact that an alleged tort “may have had effects in the United States” was not sufficient to meet the tort exception found in 000-.html">28 U.S.C. § 1605(a)(5) (the same section of the FSIA that Kagan's brief mentioned).

From the court's majority decision in Argentine Republic v. Amerada Hess Shipping Corp.:

The result in this case is not altered by the fact that petitioner's alleged tort may have had effects in the United States. Respondents state, for example, that the Hercules was transporting oil intended for use in this country, and that the loss of the ship disrupted contractual payments due in New York. Brief for Respondents 51. Under the commercial activity exception to the FSIA, § 1605(a)(2), a foreign state may be liable for its commercial activities “outside the territory of the United States” having a “direct effect” inside the United States. But the noncommercial tort exception, § 1605(a)(5), upon which respondents rely, makes no mention of “territory outside the United States” or of “direct effects” in the United States. Congress' decision to use explicit language in § 1605(a)(2), and not to do so in § 1605(a)(5), indicates that the exception in § 1605(a)(5) covers only torts occurring within the territorial jurisdiction of the United States. Respondents do not claim that § 1605(a)(2) covers these facts.

All judges to hear the case agreed that it should be dismissed

All judges to hear the case have agreed that it should be dismissed. According to the decision by the U.S. Court of Appeals for the 2nd Circuit in Federal Insurance Co. v. Kingdom of Saudi Arabia, the trial court dismissed the claims against the foreign governments, members of the Saudi royal family, and other defendants under the FSIA. The 2nd Circuit unanimously affirmed the trial court's decision to dismiss these defendants. On June 29, the Supreme Court denied the plaintiff's request to hear the case (an action that does not necessarily signal agreement with the lower court's decision).

Kagan's brief is in accordance with briefs filed by previous solicitors general

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, filed a brief on behalf of the George W. Bush administration arguing that Iraq was immune from a suit by 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 FSIA 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.