The Feehery Theory

No Sovereign Immunity for the Saudi Sovereign

Posted on April 19, 2016

On September 18th, 1965, Kathleen Byrne was walking down the road in Dublin, Ireland, when she fell down and hurt herself because of the shoddy construction job done by workers from the Irish Department of Posts and Telegraphs.

Incensed, she sued the Irish Free State for damages. The Irish government held that they were not liable by the doctrine of sovereign immunity. The Irish Supreme Court disagreed, saying that after the creation of the Irish Free State in 1922, there was no sovereign immunity in Ireland because they had no King (or Queen) who ruled over them.

You might be surprised to hear that in America, we take a different view. Indeed, yesterday Josh Earnest, the Press Secretary to President Obama, defended the doctrine of sovereign immunity as a key principle that protects the American people from needless litigation.

The reason that Earnest was delving into a seemingly arcane feature of British Common Law was simple. He was trying to explain why suing the Saudi government for its alleged involvement in the 9/11 attacks is a bad idea.

According to Wikipedia, “Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution. This principle is commonly expressed by the popular legal maxim "rex non potest peccare," meaning "the king can do no wrong."

Now, we all know that the idea that the king can do no wrong is preposterous. Indeed, Thomas Jefferson’s Declaration of Independence is a pretty stunning indictment that the King (in this case, George III) can do plenty wrong.

There is no mention of sovereign immunity in the Constitution. The 11th Amendment -- The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State – is frequently thought to be America’s sop to sovereign immunity, but in actuality it has more to do with the problems that sprung up from different lawsuits brought by the newly minted citizens of one state suing another state for damages.

Unlike the Irish Supreme Court, the American Supreme Court has found over the years that there is a doctrine of sovereign immunity that springs from the English Common law and is part of the American legal tradition.

But I think we should take a long, hard look at this doctrine, so forcefully defended by the President’s top spokesman. And we should certainly not extend such a courtesy to a place like Saudi Arabia.

Let’s not kid ourselves. The Saudi government should be liable for what they allowed to happen to American citizens on September 11th. Their complicity should not be shielded by the American government. That’s shameful.

We should also seriously rethink our relationship with this country and its leaders. For years, they have funded the Islamic fundamentalists that hate America and the West. They have fostered the terrorists that have inspired ISIS. They are the ones directly connected to terrorist attacks across the globe.

The way they treat women is abominable. The way they treat Christians is worse. They are trying to put our oil and gas producers out of business by flooding the market with cheap petrol.

They are not real friends and we shouldn’t treat them as such.

The President is going to take a trip to Saudi Arabia today, where he is likely to bow low out of respect for their King.

King Salman should be bowing to us. He should be apologizing profusely for his government’s cover-up of its role in the 9/11 attacks. And he should pay the victims and their families the money they deserve to compensate for that complicity.

Sovereign immunity might have worked well for King George III, but we should do like the Irish, and finally break from monarchy once and for all.