What is JASTA: Justice Against Sponsors of Terrorism Act
29 September 2016, Revised by Bachir El Nakib
The Senate and the House voted overwhelmingly today to override President Obama’s veto of JASTA. Senators voted 97-1 and the House voted 348-77 to override the veto. The lone “no” vote was cast by Harry Reid.
What is JASTA?
The legislation gives the families of victims of the 9/11 terrorist attacks the right to sue in the U.S. for any role that the government of Saudi Arabia may have played in the attacks. Fifteen of the 19 highjackers were Saudi nationals, and there has been much recent coverage about redacted pages from the 9/11 Commission report, which purportedly detailed the role of members of the Saudi government and its embassy in assisting the highjackers.
According to its sponsors, JASTA was passed to clarify that under the Foreign Sovereign Immunities Act (FSIA) and the Anti-terrorism Act every entity, including foreign states, must be held accountable if they are found to be sponsors of acts of terrorism on U.S. soil.
The pros and cons of JASTA are being played out in the media this week.
PRO: Give the families of the victims of 9/11 a legal remedy
In an editorial in USA Today, the bill’s sponsors, Chuck Schumer (D)and John Cornyn (R), argued that JASTA does nothing more than clarify well-established principles under FSIA, and that it simply returns the law to the way it was before a 2008 court decision extended sovereign immunity to terrorism cases in which U.S. citizens were murdered on U.S. soil. They argue that prior to 2008, there was no flood of lawsuits against U.S. interests. They further argued that the families of those killed by the 9/11 terrorist attacks deserve to seek justice against the sponsors of the terrorists in U.S. courts. Indeed, JASTA was backed by many 9/11 families who say they are seeking justice 15 years after the attacks that killed nearly 3,000 people.
CON: JASTA could endanger the U.S. military and subject U.S. citizens to lawsuits abroad
In a letter to Congress released yesterday, Defense Secretary Ash Carter said that allowing the families of victims of the 9/11 attacks to sue Saudi Arabia over its alleged support for the attackers “could be devastating to the U.S. military.” The AP reports that while Carter says he understands the intent of the bill, “he cautioned that [it] could lead to the public disclosure of American secrets and even undercut counterterrorism efforts by sowing mistrust among U.S. partners and allies.”
Several senators who voted to override the veto admitted that defects in the bill could trigger lawsuits by people in other countries seeking compensation for injuries or death caused by U.S. military actions (e.g., drone strikes). Senator Bob Corker, R-Tenn. and chairman of the Senate Foreign Relations Committee, said he voted to override “understanding that there could be in fact unintended consequences that work against our national interests.”
The president’s concern with the bill is that it would erode sovereign immunity principles that prevent foreign litigants “from second-guessing our counterterrorism operations and other actions that we take every day.” A USA Today editorial published yesterday argues that while the emotional appeal to find justice for the families of the 9/11 victims is understandable, emotion is no way to run foreign policy in a dangerous world.
The most rewarding work of my nearly 30 year legal career was when I volunteered through the American Association for Justice Trial Lawyers Care program to provide free legal services to victims’ families who needed help navigating the Victims’ Compensation Fund created by Congress in response to the attacks. Fifteen years later, I’ve learned that colleagues are representing victims’ families in litigation against Saudi Arabia. Initially, I was conflicted about whether to tell my former clients about this litigation. I was concerned about re-opening the wounds, and, frankly, I understand the arguments made by our security experts who oppose the legislation. In the end, I came down on the side of full disclosure. The arguments for and against JASA are for Congress to decide. If Congress votes to let the bill become law, then there is not reason the victims should not pursue their legal rights. These wonderful people should make their own decisions about whether to pursue this litigation. In my opinion, there is little doubt that Saudi Arabia was complicit in the attacks. The families who decide to seek justice against a culpable party deserve to be compensated.
Here's how JASTA works.
Currently, under the Foreign Sovereign Immunities Act, if there is any indication that a foreign government played a role in a terrorist attack on U.S. soil, the U.S. has the option to designate the country a state sponsor of terrorism — thus stripping it of its sovereign immunity before U.S. courts. JASTA expands that definition, allowing U.S. courts to also hold foreign governments responsible for, verbatim, "a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred."
The Obama administration has warned that the law could could create complications with the U.S.'s closest allies and could allow other countries to act reciprocally against the U.S.
But JASTA's supporters have dismissed Obama's argument as "unconvincing and unsupportable."
After the president's veto, a coalition consisting of thousands of family members of 9/11 victims and survivors said in a statement: "No matter how much the Saudi lobbying and propaganda machine may argue otherwise, JASTA is a narrowly drawn statute that restores longstanding legal principles that have enjoyed bipartisan support for decades. It will deter terrorism and hold accountable those nations that support and fund it."