By Kate Kearney
Well folks, hell may have officially frozen over because I agree with President Obama on something.
Should the families of 9/11 victims be able to sue Saudi Arabia for its alleged involvement in the terrorist attacks? Well, for better or for worse, they can now. Congress recently passed the Justice Against Sponsors of Terrorism Act (JASTA). President Obama actually vetoed JASTA but Congress, for the first time during his presidency, was able to override his veto effectively making JASTA law. JASTA reads in part:
“This bill amends the federal judicial code to narrow the scope of foreign sovereign immunity (i.e., a foreign state’s immunity from the jurisdiction of U.S. courts). Specifically, it authorizes federal court jurisdiction over a civil claim against a foreign state for physical injury to a person or property or death that occurs inside the United States as a result of: (1) an act of international terrorism, and (2) a tort committed anywhere by an official, agent, or employee of a foreign state acting within the scope of employment. International terrorism does not include an act of war. Federal court jurisdiction does not extend to a tort claim based on an omission or an act that is merely negligent.” Public Law No: 114-222
So in simpler terms, JASTA would allow a lawsuit against any country by any U.S. citizen who claims the country financed or otherwise aided and abetted a terrorist attack on U.S. soil. Liability would attach only if the plaintiff could show the country acted with knowledge in providing this support. So what could possibly be wrong with this new law? It got overwhelming support from both sides of the aisle, and it allows grieving families who lost loves ones on 9/11 to finally seek justice and get their day in court right? Well for starters, to add to the context, it is an election year, and frankly what official in Congress wants to be dubbed as not being sympathetic to 9/11 victims? You can just imagine the political ads now and the “optics” would not be flattering. Secondly, who doesn’t have compassion for the families of 9/11? We all probably remember where we were that day how everything changed. 9/11 was a tragic and emotional day for the whole nation and much of the world. So should we let our emotions drive policy? I say no, and JASTA provides a perfect example as to why a feel good law can lead to terrible results.
Remember that thing called foreign sovereign immunity? The doctrine of foreign sovereign immunity provides that a foreign state generally is immune from the jurisdiction of the courts of another sovereign state. The problem with JASTA is that it carves out what is likely to develop into a broad exception not just the foreign sovereign immunity of the other countries, but also for the United States. To illustrate, President Obama and other critics of JASTA are nervous that other countries could retaliate by passing even broader waivers of sovereign immunity, thus allowing lawsuits against American service members, diplomats, and government officials in their own courts. (And remember, few other countries uphold American standards of due process.)
You may be thinking, but wait, JASTA says international terrorism does not include an act of war, our military would be fine. Not necessarily. Not all military actions are part of an official war. (drone strikes, specialized missions, etc.) Further, what exactly is terrorism? There are many competing definitions of terrorism and international terrorism in both international and domestic laws. The U.S. is trying to create a generalized definition, but clearly our definitions of terrorism would not necessarily be followed by other countries. Also, think about the ramifications of the discovery process, what country is going to reveal any dirty secrets or potential involvement it had in acts of terror? Would the United States, in turn, have to reveal national security information if another country passed a similar bill to JASTA and its citizens sued the United States? Perhaps Congress will amend JASTA and make the law more narrowly tailored to protect our nation’s interests. In the meantime, it will be interesting to see how these 9/11 lawsuits play out in court and whether Saudi Arabia, or other potential defendants, will he held liable for terrorist attacks.