From our good friend Alec Rawls.

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).

The “tortious act or omission” is the wrongful act (the tort) that leads to the injury. Thus she is claiming that for Saudi funding of al Qaeda to be actionable, the funding itself has to have been transacted within the United States. Compare this with the actual wording of 28 U.S.C. 1605(a)(5):

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case – … (5) … in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment…”

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, the simple wording and intent of Congress—that foreign states whose actions do injury in the United States can be sued for those injuries—has now been undone, as if the law had never been passed.

“Oops!… I did it again”

Kagan proves that her lie was self conscious by also lying about the relevant Supreme Court precedent, claiming (again at p. 14):

In Amerada Hess the Court considered and rejected the argument that domestic effects of a foreign state’s conduct abroad satisfy the exception. 488 U.S. at 441.

In fact, the Court in Amerada never considered “the domestic effects of a foreign state’s conduct abroad” at all, for the simple reason that there were no domestic injuries in that case. The injuries occurred outside of U.S. territory, which is why the domestic tort exception was held not to apply. Here are the simple facts, as recounted in Justice Rehnquist’s majority opinion (joined by Brennan, White, Stevens, O’Connor, Scalia and Kennedy):

… the injury to respondents’ ship occurred on the high seas some 5,000 miles off the nearest shores of the United States. Despite these telling facts, respondents nonetheless claim that the tortious attack on the Hercules occurred “in the United States.” [At p. 440.]

The Amerada Company ship was attacked at sea. Since the tortious act and the damages from it both occurred “5,000 miles off the nearest shores,” the Court did not bother to distinguish between the wrongful act and the injuries from it. Kagan uses this to claim that the Court found Amerada’s domestic injuries to be unrecoverable, when in fact the Supremes agreed with the district court that there were no domestic injuries (p. 439-441).
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