Did Elena Kagan Lie to the Supreme Court in Last Year's 9/11 Case?

Did Barack Obama’s radical court pick Elena Kagan lie to the Supreme Court in last year’s 9/11 case?

Looks like it. From Alec Rawls at Error Theory:

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.

It seems she also lied about precedent, claiming that the Supreme Court in Amerada Hess: “considered and rejected the argument that domestic effects of a foreign state’s conduct abroad satisfy the exception.” In fact there were no “domestic effects” at issue in Amerada, where a ship had been attacked 5000 miles at sea.

Read the whole thing.

Alec added: Lead plaintiff Tom Burnett Sr. (father of Flight 93 hero Tom Burnett Jr.), is urging senators to please question Elena Kagan about the domestic tort exception. If Kagan’s lies to the Court are exposed, it could force Congress to clarify the law that she lied about. The domestic tort exception would be restored, allowing the families’ suit against the Saudis to proceed, and sinking Kagan in the process.

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