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Comment by HillRat | Hacker News Reader

It amends the Foreign Sovereign Immunities Act to allow the bringing of suits against foreign states for terrorist-related claims where the entirety of the alleged activity did not take place on American soil. Basically, KSA had gotten some civil cases tossed based on FSIA immunity, so this is a bill to remove that bar.

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It allows victims of 911 to sue the Saudi regime.

It may also allow victims of US drone strikes, civilian casualties in Iraq etc. to sue the US government?

Nope, wrong direction; the defendant has to be a non-US sovereign, and the conduct has to cause loss of life or property to a US resident or on US soil. On the other hand, it may open the door for suits against Israel by US-resident Palestinians.

"in cases where nations are found culpable for terrorist attacks that kill Americans on United States soil"

If I read it right, the Act actually establishes a cause of action in any act of "international terrorism" in which "any national of the United States suffers injury in his or her person, property, or business." While there are at least half a dozen reasons a suit against Israel (in my hypothetical example) would fail, the Act is pretty expansive in where the acts can take place, and what kind of damage they do.

But doesn't it set a precedent?

Say an innocent Afghan family gets hit by a US drone on their own home soil. Wouldn't their family want to sue the US government?

Well, the bilateral US-Afghan security treaty would bar filing in an Afghan court; in the US realm, you would have standing problems, the Baker bar, and sovereign immunity. If I recall -- and IANAL, let alone a nat-sec attorney -- there's some Fourth Circuit precedent that could justify stripping sovereign immunity from individual officials in jus cogens violations, but I don't think anyone else takes that seriously.

The bitter truth is that there's not much you can do in those circumstances. To paraphrase the Melian Dialogues, the strong do what they will and the weak take what they're given.

If that's the case, why wouldn't the ex-post-facto clause in the constitution (Article 1 Section 9) nevertheless protect anybody this bill is meant to open to liability?

Good question! Calder v Bull held that the ex post facto prohibition does not apply in the civil context, so this can apply retroactively. But you can see why in some legal philosophy quarters Calder is controversial.

That seems totally dopey. Isn't the point of ex post facto that if you make a legally-informed decision with understood consequences, those consequences shouldn't be able to change (because you might have made a different decision)? What was the court's logic for differentiating civil and criminal contexts?

The opinion in Calder v. Bull is a little opaque, but the academic work I've read on the subject explains that the differentiation was based on the definition of the term "ex post facto law." Calder v. Bull relied on how the term was defined by William Blackstone, an influential English jurist, as well as by various state constitutions.

Civil suits are torts, where there is not much specific, just guidelines for how torts are resolved. A tort is still a tort even if no specific law makes it actionable.

By analogy, burglary is illegal, with a statute of limitations. If the statute of limitations change, you can't say "don't prosecute me, when I robbed the guy the law said I would be clear if I hid for 7 years"

That was not my understanding of statute of limitations. Suppose I committed a burglary 10 years ago, and I am out of jeopardy because the statute of limitations has kicked in. Now legislation extends the statute of limitations to 50 years. I am again at risk of indictment? Or the new statute of limitations only binds to burglaries that happen after the law extending to 50 years is enacted?

It's not like the US is a Rechtsstaat.

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