Supreme Court should keep foreign policy decisions where they belong

On Wednesday, October 11, the Supreme Court will hear arguments in Jesner v. Arab Bank, PLC. At stake will be the president and the Congress’s control of foreign policy, unquestioned since the Founding. Few developments could be more detrimental — even catastrophic — to our national security than for the justices to change that.

{mosads}The formal question before the Court is strictly legal: May corporations be sued under the 1789 Alien Tort Statute? There is disagreement on this point of law in the federal judiciary and the larger legal community. What cannot be denied is that allowing the 6000 lawsuits (alleging that the bank held accounts for people who later appeared on anti-terror lists) against Arab Bank involved in Jesner to go ahead would undermine U.S. relations with Jordan, dangerously destabilize that ally and jeopardize the security of another key ally, Israel. The legal door opened would leave relations with every country in the world a potential hostage to U.S.-based lawsuits.

How important is Arab Bank to Jordan? In 2013, regarding a related body of cases brought under the Anti-Terrorism Act (ATA), the Jordanian government told the U.S. Supreme Court that the bank “is responsible for a large portion of Jordan’s economy, is a critical source of financial transparency and stability in the region.” It continued that, “the pension fund for most of Jordan’s labor force has an ownership stake of approximately 15 percent in Arab Bank.” And it added, “Jordan’s economic well-being is… tightly linked to Arab Bank’s well-being.”

No wonder, then, that attacks on the bank in American courts have been a serious source of tension between the two countries. In a 2014 protest to the State Department regarding the ATA cases, the Jordanian government termed the proceedings an “affront to Jordanian sovereignty.”  The lawsuits present, it added, “a real and grave threat to (Jordan’s) economic stability and prosperity….”

Aggravating the tension has been the tenuousness of claims to American jurisdiction. The Jesner plaintiffs are non-Americans injured by non-Americans in terror attacks not in America and in which, by common agreement, the bank they have sued was not involved. The only connection to the United States is that Arab Bank has long used the U.S. CHIPS system for its international money transfers. The plaintiffs say that because electrons routed from Jordan to, say, Israel or the Palestinian Territories pass through servers in New York, they can sue in American courts.  

Allowing such a lawsuit would cripple a critical financial institution and very likely with it the Jordanian economy. That is something every president and Congress from the 1950s to today would consider a massive blow to our interests in the Middle East and those of another key ally, Israel.

No country in the world resides in as problematic neighborhood as the Jewish state. With enemies to the north, northeast and south, Israeli security depends on sharing most of its eastern border with a stable and non-hostile country, Jordan. As 10 retired senior State Department officials, including myself, recently told the Supreme Court in a brief supporting the bank, the U.S.-Jordanian relationship is founded on “important common interests: fighting terrorism, achieving peace and stability in the region, promoting moderation, resolving the ongoing Israeli-Palestinian conflict, and achieving economic progress and prosperity.” Jordan, Israel and America are ongoing partners in keeping the world’s most explosive region from totally blowing up.

This partnership extends to Arab Bank. The Israeli government has long relied on the bank to handle some of its most sensitive financial dealings with the Palestinian Authority. The State Department has called it a “constructive partner” in combating terrorist financing. With neighboring Syria in civil war, our adversaries would like nothing better than a judgment against Arab Bank that helped pull Jordan into the turmoil.

The nature of litigation is to focus closely on one narrow issue. The nature of foreign policy is to balance many broad considerations of national security, international economics, political and diplomatic relations, taking into account the impact on our many allies and adversaries as well as ourselves. That is why the Founders entrusted international affairs to our political branches — the president and Congress — which are well suited to such a task, rather than to the courts, which are not.

The Founders were right. In Jesner the justices should reaffirm them. Let the Constitutionally designated foreign policymakers make foreign policy.

Thomas Pickering was U.S. ambassador to Jordan (1974-78), Israel (1985-88), the United Nations (1989-1992) and Russia (1993-96) and was Under Secretary of State for Political Affairs (1997-2000).