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Kagan lied to Supreme Court in 9/11 case, should be disbarred
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 <a href="http://www.pittsburghlive.com/x/pittsburghtrib/s_324993.html">sued</a>
under the domestic tort exception to sovereign immunity, which according to
Kagan's Supreme Court brief (at <a href="http://www.scotusblog.com/wp-content/uploads/2009/05/08-640-federal-insurance-co-usac-petition.pdf">p.
14</a>):<blockquote>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).</blockquote>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. <a href="http://codes.lp.findlaw.com/uscode/28/IV/97/1605">1605(a)(5)</a>:<blockquote>(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..."</blockquote>Contrary
to Kagan's assertion, the law only specifies that the <em>injury</em> 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.
<strong>"<a href="http://www.hollywire.com/wp-content/uploads/2009/04/britney-spears-feo-trasero.jpg">Oops</a>!...
I did it again"</strong>
Kagan proves that her lie was self conscious by also lying about the relevant
Supreme Court precedent, claiming (again at <a href="http://www.scotusblog.com/wp-content/uploads/2009/05/08-640-federal-insurance-co-usac-petition.pdf">p.
14</a>):<blockquote>In <em>Amerada Hess</em> 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.</blockquote>In fact, the Court in <em><a href="http://supreme.justia.com/us/488/428/case.html">Amerada</a></em>
never considered "the domestic effects of a foreign state's conduct abroad" <em>at
all</em>, 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):<blockquote>... 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. <a href="http://supreme.justia.com/us/488/428/case.html">440</a>.]</blockquote>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 <em>were no</em> domestic injuries (p. <a href="http://supreme.justia.com/us/488/428/case.html">439-441</a>).
Has any solicitor general ever flat lied to the Supreme Court before? Isn't any
lawyer who unambiguously lies to the Court about the simple facts of a cited
holding subject to disbarment for unethical behavior? And she did it for an
unethical purpose: to help the financiers of 9/11 escape justice. Any moral
person would either resign in the face of such a job assignment, or would limit
himself to making what honest arguments could be mustered. This moral pervert
chose to lie and ought to be busted out of the profession for it, not promoted
to the highest court in the land.
<strong>Obama favors a legal response to terror while working to pull the law's
teeth</strong>
Obama has long been a proponent of shifting from a military response to Islamic
terrorism to a civilian/criminal law response. Putting the terrorists in jail is
supposedly more effective shooting them on the battlefield. This is why Attorney
General Eric Holder decided to try Khalid Sheikh Mohammad in New York City.
There is supposedly nothing Mohammad wants less than a public platform for
crowing that America must submit or die, while credibly demanding that we must
either reveal our intelligence secrets or let him go free.
It is an insane idea, seeking to move the fight against Islamic terror to an
arena that disarms us and empowers them, but even that isn't enough for Obama.
He has to have his solicitor general lie to the Supreme Court for him in a way
that guts what laws Congress has already passed for fighting terror in the
courts. First he moves the fight to our relatively toothless courts, then he
pulls what teeth the courts have.
If Obama's gutting of the legal fight against terror is intentional it means
that he prefers America to have NO effective defense against Islamic terrorists
(perhaps because they are his <a href="http://errortheory.blogspot.com/2008/07/new-yorker-nails-maximum-likelihood.html">co-religionists</a>).
Kagan's nomination to the Supreme Court is a clear indication of this intent.
Obama is ratifying, in the strongest possible way, her gutting of the law, and
like Kagan, he also proves intent by repetition, nominating Kagan's partner in
crime, James Cole, to be his Deputy Attorney General.
<strong>Oops!... Obama does it again: DAG nominee also favors a legal response
to terror while working to pull the law's teeth </strong>
Shortly after 9/11, Cole <a href="http://www.cnsnews.com/news/article/67704">wrote</a>
that, since the targets were primarily civilian, the 9/11 attacks should not be
viewed as acts of war, but as violations of civilian law, to be combated through
our civilian court system. If Cole really wanted to make the civilian courts our
main line of defense against Islamic terrorism he would be for aggressive use of
the courts in this fight, but in practice, he comes down on the other side,
arguing as the lawyer for one of the implicated Saudi princes that the family
suit to recover damages from the 9/11 attacks is invalid.
Cole's service to the Saudis creates "<a href="http://www.911familiesforamerica.org/?p=4203">a
direct conflict of interest</a>" writes Debra Burlingame:<blockquote>In light of
this history, it is impossible to fathom how Mr. Cole can ethically carry out
his duties and responsibilities as the de facto head of the Justice Department
while U.S. troops are fighting terrorists who receive funding and support from
organizations associated with the Saudi government and their proxies. This is a
direct conflict of interest. Given Saudi NGOs’ continued involvement in
terrorist facilitation world-wide and their connection to the Saudi royal
family, this conflict of interest will cripple Mr. Cole’s ability to ethically
perform his duties as head of a department charged with investigating and
prosecuting terrorist facilitators associated with or working for the Saudi
government.</blockquote>Yes well, to Obama, that's a feature, not a bug. Like
Obama, Cole is against a military response to Islamic terror <em>and</em> he is
against a civilian court response. In sum, neither of them want the United
States to fight on any front, but want us instead to appease and submit to
Islamic terror.
Which is nothing new. Obama's entire Department of Justice is of the same
stripe:<blockquote>Attorney General Eric Holder says nine Obama appointees in
the Justice Department have represented or advocated for terrorist detainees
before joining the Justice Department. But he does not reveal any names beyond
the two officials whose work has already been publicly reported. And all the
lawyers, according to Holder, are eligible to work on general detainee matters,
even if there are specific parts of some cases they cannot be involved in.
[Byron York <a href="http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/Holder-admits-nine-Obama-Dept-of-Justice-officials-worked-for-terrorist-detainees-offers-no-details-84799487.html">February
2010</a>.]</blockquote>Which is worse, the DOJ lawyers who defended terrorists <em>pro
bono</em> on the basis of shared contempt for America, or the DAG nominee who
defends the financiers of terror for a share of their filthy lucre? "Why
decide?" says Obama: "Hire 'em all!" So long as they are defenders of al Qaeda,
its all good.
<strong>Why isn't Congress fighting back?</strong>
While Obama's terror-defending lawyers are determined to secure rights and
civilian court appearances for Islamic terrorists who should be treated as
criminal combatants under military justice, they are equally determined to
prevent our 9/11 families from getting <em>their</em> day in court, despite the
clear intent of Congress that they should. It is time for Congress to start
fighting back. The Supreme Court shamefully failed to review a blatant
subversion of congressional intent on a crucial front of the war against terror,
but Congress doesn't have to take it lying down.
How about passing a clarification to the domestic tort exception that explicitly
renounces Kagan's attempt to gut the clear intent of the law? Just use the
Senate hearings on Kagan's nomination (commencing this week) to expose her
devastating lies to the Supreme Court and to agitate for a clarification of the
law that would allow the families' suit to proceed. Kagan would be routed, and
the destruction she has wreaked on our terror war efforts would be repaired,
killing two dirty birds with one stone.
From <a href="http://errortheory.blogspot.com/2010/06/kagan-lied-to-supreme-court-in-911-case.html">Error
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Most Flight 93 blogburst posts are about our effort to stop the Park Service
from planting the world's largest mosque atop the Flight 93 crash site, but
sometimes they are on related topics. What is the relation between the crescent
mosque and the suit against Saudi funding of al Qaeda? Both are spearheaded by
Tom Burnett Senior (father of Flight 93 hero Tom Burnett Junior), who is <a href="http://www.pittsburghlive.com/x/pittsburghtrib/s_324993.html">lead
plaintiff</a> in the families' lawsuit and co-sponsor of our <a href="http://www.ipetitions.com/petition/honorflight93/">petition</a>
to stop the Flight 93 memorial. Please join us:
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