On Wednesday, September 28, Congress voted to override the Presidential veto on the Justice Against Sponsors of Terrorism Act—JASTA for short. It was the first Congressional override of a veto in President Obama’s term, and was accomplished with overwhelming bipartisan support. The House voted to override at a margin well above the two-thirds mark necessary: 348-77. The Senate’s final tally saw just one dissenter, Minority Leader Harry Reid (D-NV), and the total was a whopping 97-1. Then, in mere hours, the strong net of bipartisan support seemed to unravel. Senate Majority Leader Mitch McConnell and Speaker of the House Paul Ryan—the two most prominent Republicans on Capitol Hill—voiced their concerns about the current bill, and suggested they were open to amending it. And if that wasn’t confusing enough, reports have emerged that the bill itself is self-defeating and essentially without teeth. So what’s the deal?
Let’s start small. JASTA is a bill co-authored by Senators Jack Schumer (D-NY) and John Cornyn (R-TX) that was essentially crafted to allow families of the victims of the 9/11 attacks to sue Saudi Arabia for what they allege was Saudi involvement in the acts of terror on September 11. Suits of this kind against Saudi Arabia have been slammed down in court after court by judges who cite the principle of sovereign immunity. Traditionally, sovereign immunity has meant that one state cannot be taken to civil court in another state for its actions. There are, of course, exceptions to this rule—including an exception that allows states to be sued in United States civil court if they are designated state-sponsors of terrorism. However, Saudi Arabia has not been designated as a state that sponsors terrorism: an independent investigation of its involvement in the Sept. 11 attacks (15 of the 19 members of Al-Qaeda who worked on the 9/11 attacks were Saudi nationalists), found no evidence to support the claim that Saudi Arabia had directly sponsored the attacks in any way—although the question of whether specific Saudi officials participated in some way was left unanswered. The difficulty of previous litigation that JASTA seeks to overcome is the problem of forcing states to answer for harm caused to American civilians on American soil through states’ direct, but more importantly, indirect support of terrorists even if most of that support happens away from American soil. Essentially, the families of the Sept. 11 victims believe Saudi Arabia to have played a key part in the attacks by either directly supporting or indirectly allowing terrorists activity in the state, and they believe they have a right to force the Saudi government to answer those allegations. The state of current sovereign immunity law in the United States does not, however, allow them to do so. This legislation, they believe, will act as an answer to those concerns.
But the Obama administration warned prior to its official veto that the bill’s passage could seriously undermine the concept of sovereign immunity and provoke the retaliatory passage of similar bills in other nations—something it claims would seriously jeopardize the safety of American actors and officials abroad and would make many “counter-terrorist” activities unsafe and even infeasible. President Obama writes that “without immunity,” the United States and its foreign actors could be “forced to defend [themselves]” in foreign courts against accusations of violations of foreign laws regardless of whether or not said violations occurred. As a country with more international involvement than any other, President Obama worries that other nations would use JAFTA as an excuse to craft policy that would enable them to circumvent the principle of sovereign immunity in such a way as to “target U.S. policies and activities that they oppose.”
Defenders of the bill argue that it simply cements the use of exceptions that have existed in American sovereign immunity law since 1976. The counsel for the 9/11 victims and their families, Jack Quinn and Sean Carter, point to the fact that these exceptions have been used to bring nations into American courts for their participation in terrorist activities: most recently, Afghanistan in 2011. Those incidents did not seem to catalyze any kind of fundamental break with the principle of sovereign immunity, Quinn and Carter argue, so why would this bill change anything? In the view of the proponents of the bill, the bill is narrowly tailored enough to apply to a small subset of nations without undermining the whole the principle of sovereign immunity. Carter, Quinn, and the 9/11 Victims and their Families accuse the Obama administration and the other dissenters (including the European Union, retired diplomats, and the national security agencies) of blocking the passage of the bill out of deference to Saudi Arabia, whom the United States has long considered a tenuous, but important ally in the region.
The JASTA’s proponents seemed to have won out on Wednesday when Congress overwhelmingly voted to override President Obama’s veto and sign the bill into law. The Obama administration and many others argue overturning the veto was an inherently political move. This is an election year, and 9/11 is a particularly weak spot for all American politicians—to be seen as not being supportive enough of the victims and their families can have potentially calamitous political repercussions. Accusations of careless deliberation seemed to be quite accurate when, within hours of the overriding of the president’s veto, Bob Corker (R-TN), Head of the Senate Foreign Relations Committee, and 28 other bipartisan senators signed a letter raising concerns about the bill and suggesting they would be open to amendments to soften it. The letter came on the heels of a statement from Speaker Paul Ryan that the bill needed to be amended to ensure the safety of U.S. troops abroad. In a separate news conference, Majority Leader Mitch McConnell voiced similar concerns: “everyone was aware who the potential beneficiaries were, but nobody focused on the potential downsides—in terms of our international relationships.”
And, as if the motivations here weren’t confusing enough, many experts—most notably Jack Goldsmith, a professor at Harvard Law, and Stephen Vladeck, a professor at the University of Texas School of Law—have suggested that the law is in fact a toothless version of itself. They contend that right before the Senate vote in May, one of the bill’s co-sponsors, John Cornyn, slipped in an alternate version of JASTA that many claim disarms the bill entirely. The new bill doesn’t allow for prosecution of actions that led to harm on U.S. soil but mostly took place outside of the United States. It does not allow for the prosecution of actions that indirectly supported terrorism on U.S. soil. It even eliminates the provision that, in the old bill, secured the right of the plaintiffs to collect the damages they were awarded on the basis of their claims. Worst of all, it includes a new procedure by which the U.S. can hold off litigation of this sort indefinitely, provided the State Department was “engaging in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state.”
There are many confusing aspects of what has gone down here. First, why wouldn’t Congressional lawmakers examine the potential downsides of legislation they were passing, especially if they were passing it over a presidential veto? If the argument is that the bill was passed largely as a way to improve their chances of reelection, then why undermine that position so immediately by acknowledging it as a mistake? And, even if we can argue that lawmakers truly had no idea that there were legitimate questions about the precedent JASTA would set in the international community, it seems relatively unclear why they would denounce the bill they had just fought so hard to pass when the bill itself is essentially impotent—a risky political move, particularly so close to election time, for a bill that does relatively little harm. Maybe the bill undermines the principle of sovereign immunity symbolically, and perhaps lawmakers felt that its repercussions in the international political community would be so great that, regardless of the actual litigatory power of the bill, they should acknowledge it as a mistake. Another explanation is that the overriding of a veto by President Obama was significant enough to generate unanticipated media attention, and the senators had to deal with unexpected scrutiny of their actions. Either way, motivations for the entire process of the passage of JASTA have been unclear at best, and self-serving—albeit poorly self-serving—at worst.