Associate Editor, Vol. 22
President Obama recently vetoed Congress’s bill, Justice Against Sponsors of Terrorism Act (JASTA), which amends the Foreign Sovereign Immunities Act. JASTA allows United States (U.S.) citizens to sue foreign governments for compensatory damages as a result of terrorist acts against the U.S. on or after September 11, 2001. This bill essentially targets Saudi Arabia for its alleged involvement in the 9/11 attacks. Congress overrode Obama’s veto, but then quickly expressed some regret in recognition of the legal and political consequences.
JASTA supporters insisted that Saudi Arabia was behind the 9/11 attacks and pitched the bill as a “sue Saudi Arabia” bill. Senator Chuck Schumer (a JASTA supporter) maintains that the purpose of the bill was to grant 9/11 families a chance to get legal remedies from terrorist sponsors, though this ignores the fact that the families received more than $7 billion in compensation. Moreover, the U.S. government already cleared Saudi Arabia of its involvement. Senator Schumer reasons that if Saudi Arabia truly had nothing to do with the attacks, then it would be proven innocent in the process.
JASTA will result in a range of legal and political consequences. First, JASTA shifts the authority to determine whether a foreign state has sponsored terrorism away from the federal government to local courts. President Obama stated that local courts could make “consequential decisions…based upon incomplete information…[about] the culpability of individual foreign governments and their role in terrorist activities against the United States. [This is] neither an effective nor a coordinated way for us to respond to indications that a foreign government might have been behind a terrorist attack.” President Obama further noted that the U.S. government undergoes a thorough process of review before designating a foreign government as a sponsor of terrorism. It would be unwise to put this extensive process in the hands of juries, tort lawyers, and local judges.
Second, JASTA undermines an important principle of reciprocity imbedded in sovereign immunity. With JASTA on the table, it is likely that foreign governments will respond with similar treatment of U.S. companies, military personnel, and officials engaged in activities abroad.
CIA Director John Brennan stated, “The principle of sovereign immunity protects US officials every day, and is rooted in reciprocity. If we fail to uphold this standard for other countries, we place our own nation’s officials in danger. No country has more to lose from undermining that principle than the United States.”
An Iraqi lobby group, known as the “Arab Project in Iraq,” has already begun seeking compensation from the U.S. over violations following the 2003 invasion. This group urges “a full-fledged investigation over the killing of civilians [sic] targets, loss of properties and individuals who suffered torture and other mistreatment on the hand [sic] of US forces.” They maintain that the American opportunity to get individual compensation from foreign nations for terrorist attacks against them means that Iraqis deserve the same chance to get compensation. Denial of equal treatment will lead to further tension between Americans and Arabs.
The bill did not get much support from the international community. The European Union considers JASTA a breach of international law. French Parliamentarian Pierre Lellouche cautioned that this bill would “cause a legal revolution in international law with major political consequences.” Bahrain Foreign Minister Sheikh Khaled bin Ahmed tweeted, “[JASTA] is an arrow launched by the US Congress at its own country”.
So what does the JASTA really accomplish? According to the U.S. 9/11 Commission Report, there is no evidence that the Saudi government was responsible for the 9/11 attacks; this means the affected families will ultimately be disappointed by the litigation process. Tort lawyers who take on 9/11 cases will appeal to sympathetic juries and play on their prejudices against the Arab world. Both the Saudi government and the 9/11 families will spend millions in legal fees, only to end up with nothing but more tension between the U.S. and Middle East and people from Middle Eastern descent.
Then who benefits from JASTA? The politicians who supported JASTA saw the bill as an opportunity to gain more votes during election season. These politicians appealed to 9/11 families and voters who want to see the U.S. fight against what they consider a religiously extremist country (Saudi Arabia). The reality is that JASTA complicates relationships with Middle Eastern countries. According to President Obama, it has shaken Arab trust in the U.S., jeopardizing business partnerships and the U.S.’s ability to attain those countries’ cooperation on key national security issues. The Saudi government has already warned that it may sell up to $750 billion in Treasury securities and other assets before U.S. courts can freeze them if JASTA passes.
In light of these grave legal and political consequences, Congress quickly admitted the need to amend JASTA after overriding Obama’s veto. The number of cases filed before these amendments pass remains to be seen.