Justice Against Sponsors of Terrorism Act: Good Intentions, Bad Consequences
By Presley West
Victims of the terrorist attacks of September 11, 2001, and their families have gone through an unimaginable amount of suffering over the course of the past fifteen years. Victims of the attacks have a right to seek justice and closure. The Justice Against Sponsors of Terrorism Act (JASTA), a bill that allows victims of the acts of terrorism and their families to sue government officials and the state of Saudi Arabia for their alleged ties to the attacks, strives to do just that. However, the bill also creates negative international ramifications that must be addressed. The bill was passed by Congress on September 9th, 2016, vetoed by President Obama on September 23rd, and overridden by the Senate and the House of Representatives on September 28th, officially becoming law. While it is clear and understandable that no legislator wants to oppose a bill in favor of justice for 9/11 families—for political, and perhaps even personal reasons—the passage of the bill undermines the norm of sovereign immunity. Legislators should have given more weight to the severity of the repercussions that the United States will face abroad in retaliation to the bill, and less to their own re-election campaigns.
Saudi Arabia has long been accused of sponsoring the September 11th attacks. Lengthy investigations by U.S. intelligence found no evidence to back such claims, but with 15 out of the 19 hijackers hailing from Saudi Arabia, doubts still prevail. A document released this year revealed that "while in the United States, some of the 9/11 hijackers were in contact with, and received support or assistance from, individuals who may be connected to the Saudi government.” This further contributed to support for JASTA.
If Saudi Arabia were involved, why would anyone oppose a measure that would allow affected Americans to seek justice? Opponents, including President Obama, claim that allowing foreign officials to be sued in civil lawsuits drastically weakens the norm of sovereign immunity abroad. While the United States clearly is not a state sponsor of terrorism, it very likely that American drone strikes against terrorist organizations such as ISIS could be construed as such by other nations and their citizens. If the United States allows citizens to sue Saudi officials, there is nothing stopping citizens of other countries from bringing lawsuits against U.S. officials and troops.
Similarly, it is unlikely that such lawsuits would win in court. If they did, families would not receive any damages from Saudi Arabia, but instead, only the acknowledgement that they were involved. Undermining the concept of sovereign immunity overseas is a strong price to pay for such a concession.
Saudi Arabian officials, the European Union delegation to the United States, and national security experts all strongly opposed the bill. Saudi Foreign Minister Adel bin Ahmed al-Jubeir stated that Congress “is stripping the principle of sovereign immunities which would turn the world for international law into the law of the jungle.” Perhaps most critical of the bill was President Obama. He argued against it leading up to the vote, and issued the twelfth veto of his presidency in an attempt to stop it. Obama noted that current US law allows the State Department to revoke the protections of sovereign immunity in cases of verified, state-supported acts of terrorism. Criticizing the bill, he stated, “This is taking that out of our military and our intelligence and the hands of our national-security professionals and putting it into the courts.” He continued, “And that’s a mistake.”
Perhaps most puzzling is the dramatic turn-around in support for the bill from Congress after it had already become law. The bill passed with an overwhelming majority from both parties, which is rare in today’s political climate. However, only days after the veto was overturned, Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan expressed “buyer’s remorse.” Paul Ryan indicated a desire to “fix” the bill in an effort to still protect the rights of 9/11 victims without making service members vulnerable to legal issues abroad. McConnell claimed that too many focused on the benefits, and not the consequential ramifications overseas.
The White House berated Congress for these remarks, calling their expressions of regret “deeply embarrassing.” White House Speaker Josh Earnest claimed that the suggestions by some legislators that they didn’t recognize the negative consequences of the bill were “hard to take seriously.” In return, legislators who opposed the bill criticized the White House’s lack of cooperation in trying to create a better solution.
The passage of JASTA has a far-reaching, global impact, but for the time being, lawmakers and President Obama have criticized one another instead of taking measures to amend the bill to protect the idea of sovereign immunity, and therefore, American officials and service members. JASTA has dominated headlines for weeks now, and it is likely that the bill’s consequences will continue to produce international headlines for the foreseeable future.