Justice Against the Justice Against Sponsors of Terrorism Act

This September, the House and Senate voted almost unanimously to pass the Justice Against Sponsors of Terrorism Act (JASTA) not once but twice. The two houses first rushed it through Congress and later overrode President Obama’s veto of the bill, marking the first Congressional override of an Obama veto. Although Congress gave the bill an innocuous name, JASTA does far more than simply offer the opportunity for justice to families and indirect victims of the 2001 tragedy. It has unintended consequences that are far-reaching and potentially devastating. By ignoring this nuance for political purposes, Congress endangered American interests. Unless Congress acts quickly to correct its mistake, JASTA will likely put American relationships with crucial allies at risk and make the United States vulnerable to legal action by other nations.

Congress is set to re-evaluate the bill during the upcoming lame-duck session after this November’s election. Until then, Congress and the American public should closely examine whether the bill’s benefits eclipse the damage it could wreak across the world.

What does this bill do?

In line with its name, JASTA intends to provide families with a means to seek justice against any foreign actor deemed responsible for acts of terrorism on US soil or affecting American citizens. The bill was written with the victims and relatives of 9/11 survivors in mind. Those who can prove that they were directly or indirectly victims of terror, and that a foreign state was responsible for that terror, are now able to sue that state in a United States federal court. Therefore, the bill endows federal courts with personal jurisdiction, i.e. legal authority, over a foreign country’s alleged sponsorship of terrorism.

The bill mentions neither 9/11 nor the Kingdom of Saudi Arabia, but its implications are clear. JASTA is a response to the controversy surrounding Saudi Arabia’s involvement in the attacks and purported support for al-Qaeda and Sunni extremism. While this kind of discourse has been popular since the 9/11 attacks, there is not much evidence to support it. Even before the release of the long-awaited and still tenuous “28 Pages” earlier this year, which allegedly contained evidence of Saudi financial and political support for the hijackers and related al-Qaeda parties, the connection between Saudi Arabia and 9/11 was always murky at best. As such, the bill is seen as a way to enable suits against the Kingdom to progress in court.

Given 9/11’s relevance and meaning to the American electorate, JASTA was seen as so  politically powerful that members of Congress who rejected the bill would be seen as voting against 9/11 families. Furthermore, the bill allowed congressmen to show that they could work together across party lines. The bill was reintroduced during this critical election cycle, and it is often speculated that it was passed because incumbents found an opportunity to successfully pass legislation and invoke a cause that inspires a broad coalition of Americans with feelings of patriotism, sympathy, and passion.

Risks to foreign sovereign immunity and criticisms of the bill

To understand concerns with JASTA, it is worth taking a deeper look at precisely whom an American plaintiff would be taking action against. The JASTA bill would enable plaintiffs to direct their frustration not toward terrorists, but toward foreign nations that could be proven to sponsor terror. This compromises foreign sovereign immunity—a principle that has guided American legal philosophy toward foreign nations for years, and one that is mirrored in the laws and practices of other members of the international community.

Foreign sovereign immunity dates to an 1812 Supreme Court case from the foundational Marshall Court era, Schooner Exchange v. M’Faddon, wherein the Court determined that it could not apply jurisdiction to foreign states during a suit over a Spanish schooner. Foreign sovereign immunity, Marshall noted in his opinion, was the commonly held idea that states waive jurisdiction (i.e., that they cannot sue one another) when interacting with one another. This principle is fundamental to international relations. The very definition of a “sovereign state” means that states necessarily have self-jurisdiction. Foreign sovereign immunity, therefore, says that states can and should hold their own agents accountable when they violate the law, and do not need other countries to step into their own legal infrastructure.

So, how does JASTA affect foreign sovereign immunity? By amending the Foreign Sovereign Immunities Act’s framework for legal action against other nations and giving US courts jurisdiction over states involved in terror, the bill suspends sovereign immunity for countries accused of sponsoring terror. Though it might seem like an abstract legal principle from the nineteenth century, foreign sovereign immunity remains a critical mutual understanding in international relations.

Among the more popular criticisms of the bill, and one that the White House has promoted, is that this bill could set a dangerous international precedent by eliminating foreign sovereign immunity. If nations around the world feel that there is a risk that they will be liable in a suit by a private United States citizen, then they will likely respond by enacting legislation similar to JASTA, holding the United States as a nation accountable for its often questionable actions abroad. JASTA provides the incentive to counter-sue the United States for the means by which it addressed terror, ranging from covert drone strikes to American special forces operations that can leave property ruined and civilians dead. Through this mechanism, JASTA could promote retaliation against the United States.

JASTA could also lead to a countersuit from a Saudi national against the United States alleging that the expansive US drone program in Yemen is illegal. The bill could also cause victims of American violence in Iraq, Pakistan, Afghanistan, and even older victims in countries like Vietnam, to use the passage of JASTA as an impetus for prosecuting the US for those crimes. Thus, it is easy to conclude that this would make US officials and critical strategic US operations abroad vulnerable to prosecution.

Congressmen have begun to retract their support—should they?

Congressional leaders from Senate majority leader Mitch McConnell to House speaker Paul Ryan have, after frequent and repeated pressure and censure from the White House and various academic critics, chosen to reevaluate the bill during the lame duck session after the election. Surprisingly, after only about a day of this pressure and criticism, Ryan and McConnell began to take note of the potential side effects of JASTA. Both acknowledged “legal problems overseas” and that JASTA was “worth further discussing,” which seem to indicate some kind of lukewarm regret. Their hesitation and decision to reevaluate the bill after the election, when they will care much less about the political ramifications of their actions, demonstrate that Congress did not pass the bill out of concern for victims of terror but for the political expediency of rallying around a cause like 9/11.

Further evidence that this bill is expedient comes from the man who introduced it in Congress himself. Senator John Cornyn of Texas, who was largely responsible for the bill, was nowhere near ground zero on 9/11, and neither were his constituents. 9/11 remains an emotional event for all Americans, not just those directly affected by the attacks. Invoking a sense of national pride by proposing this bill, which in no way serves his constituency, Cornyn successfully exploits this tragedy for the sake of political expediency.

While the bill was being debated, Saudi Arabia raised the possibility of liquidating its hundreds of billions of dollars worth of assets in the United States in protest. Legal scholars from the United States to Saudi Arabia have gone on the record suggesting that the rest of the Arab world could unite behind Saudi Arabia for this cause. Keeping the Saudis as allies is critical for the United States. They not only command a wealth of assets in the US, but are also an important ally in OPEC and an important arms trading partner that we could easily lose to Russia or China.

The international consequences that JASTA invites are too important to ignore. While it is good that members of Congress are beginning to understand this, the risk to our international standing far exceeds the few votes that each of them stand to gain from this display of patriotic unity. Though the concerns of families looking for recompense for 9/11 are legitimate, it is unwise to direct their attention at an entire nation. This risks international degradation of the principle of sovereign immunity and critical legal principles that keep necessary US interactions and operations protected. Finally, it is wrong of Congress to take advantage of 9/11 families’ suffering for political expediency.

When Congress reevaluates this bill in the next month or so, they should consider the international externalities created with the bill’s passage, and the litany of other ways to guarantee recompense to victims of 9/11—such as allowing suits against foreign nationals rather than countries, or providing more governmental services for first responders and families of victims—that don’t create the same externalities. Taking all of the above into account, they ought to realize that the best path will be to repeal JASTA entirely.

The image featured in this article is licensed under Creative Commons. The original image can be found here.