The congressional override of President Barack Obama’s veto of the Justice Against Terrorism Act (JASTA) could have serious implications for U.S. soldiers and diplomats serving abroad, warn critics.
Supporters of the new law directed against Saudi Arabia say it gives the families of 9/11 victims an avenue for justice by allowing them to sue the Saudi government for its alleged ties to the attacks.
The president and his national security establishment fear the law would set a dangerous precedent that could undermine reciprocal sovereign immunity, a core principle of international law.
If so, it could put diplomats and soldiers in foreign countries at serious risk, they argue.
The new law has unsettled many in national security and intelligence, including CIA Director John Brennan and Secretary of Defense Ashton Carter.
Brennan expressed his sympathy to 9/11 victims’ families in a statement, but warned that U.S. officials abroad could potentially be in danger, as the law erodes sovereign immunity.
“The principle of sovereign immunity protects U.S. officials every day, and is rooted in reciprocity. If we fail to uphold this standard for other countries, we place our own nation’s officials in danger,” he said in the statement.
“No country has more to lose from undermining that principle than the United States—and few institutions would be at greater risk than CIA.”
For Obama, the congressional vote was the first time he had had his presidential veto overturned. In a town hall style interview on CNN, he echoed concerns about what it could mean if reciprocal immunity was lost.
The president said it could threaten everyone from aid workers to soldiers who are currently protected from private lawsuits by status of forces agreements.
“Other countries agree to [the protections] but mainly because we reciprocate with them,” said Obama.
State immunity protects countries from being sued before the courts of another country. If this foundational principle of international law is lost, the results could be unexpected, according to George Andreopoulos, a political science professor at John Jay College and at the City University of New York Graduate Center.
“This can open a whole Pandora’s box in which states are suing and countersuing,” he said.
Currently, individuals are only permitted to sue foreign nations if the country in question is designated as a state sponsor of terrorism. Iran, for example, has been been sued successfully in U.S. courts, said Andreopoulos.
However, the designation process is extremely rigorous and does not include Saudi Arabia.
Jimmy Gurulè, professor of law at Notre Dame University, argues that critics of JASTA exaggerate their concerns about sovereign immunity and the potential retaliation by other countries.
The United States has not seen the problems that critics of the bill describe, according to Gurulè.
“In 2008, Congress passed legislation that provided an exemption for private parties to sue designated state sponsors of terrorism. There have been multiple cases of private parties suing Iran for charges of sponsoring terrorism.
“The point is that there have been suits ongoing for at least a decade and [yet] there has not been a flood of retaliatory litigation against the U.S.,” he said.
Gurulè also questions the legal capacity of certain conflict-ridden states, such as Yemen, Somalia, Syria, and Afghanistan, to carry out such litigation.
“These states might have a basis for suing the U.S. but lack a legal regime that authorizes private causes of action for injuries sustained from tortious conduct,” Gurulè added.
Supporters of the new law say those opposed to it are more concerned with relations with Saudi Arabia, a key security ally, than American victims of 9/11.
The U.S. and Saudi militaries have strong ties, including U.S. training of the Saudi armed forces.
Those ties could now be loosened.
In April, The New York Times reported that the Saudis had pledged to sell off $750 billion in treasury securities and other American assets to avoid having them frozen by U.S. courts if JASTA passed.
In a recent statement, the Saudi Ministry of Foreign Affairs warned that eroding sovereign immunity could hurt all nations, including the United States.
“It is our hope that wisdom will prevail and that Congress will take the necessary steps to correct this legislation in order to avoid the serious unintended consequences that may ensue,” the statement said.
Tensions between the two nations have been high of late. There remains widespread speculation of Saudi government connections to the 9/11 hijackers.
The Kingdom’s intervention in the Yemen civil war and the bombing campaign, which has killed thousands of civilians, has been another point of contention for the two longstanding allies.
Congress, normally a steadfast supporter of U.S.-Saudi relations, saw some members try to block a $1.15 billion arms sale to Saudi Arabia because of the atrocities committed in Yemen. The measure failed in the Senate.
“The fact that the bill passed is an indication of the sorry state or the deterioration of U.S.-Saudi relations and the fact that the veto was overridden compounds this problem,” said Andreopoulos.
The bill was passed on a political basis, according to Andreopoulos, and it can be explained by two factors.
“One is the tragedy of 9/11 and that is a special case. It deeply resonates with the country and the lobbying efforts by families of 9/11 victims were instrumental in ensuring its passage. The second factor relates to the deteriorating relations between the U.S. and Saudi Arabia,” he said.
Others agree on the underlying political popularity that gave momentum for the initiative.
“My sense is that members of Congress have a strong political incentive to do something and give people an outlet against Saudi Arabia,” said Daniel DiSalvo, associate professor of political science at the City College of New York.
Bipartisan Support in Congress
On Sept. 28, when Congress overrode Obama’s veto that would have snuffed out the bill, there was a rare display of bipartisan support in a political atmosphere characterized by hyperpolarization for most of Obama’s presidency.
JASTA brought both parties together in a rare unity.
Sen. Charles Schumer (D-N.Y.) and Sen. John Cornyn (R-Texas) co-sponsored the bill that received overwhelming support in both the Senate and the House.
“It’s disappointing the president chose to veto legislation unanimously passed by Congress and overwhelmingly supported by the American people,” Cornyn said in a statement following the president’s veto.
Speaking on the Senate floor in May, Schumer said the bill was dear to his heart as a New Yorker because it would give victims “some small measure of justice.”
On Sept. 28, the Senate voted 97-1 and the House voted 348-77 to override the veto. Sen. Harry Reid (D-Nev.), who is not running for reelection, was the only senator who voted against the override.
Sen. Bob Corker (R-Tenn.), voted for the bill but, speaking on the Senate floor the following day, expressed hope the law could be amended in the future.
Corker told the Senate that he and Cardin had tried to set up a meeting at the White House to find another solution to meet the law’s aim to give 9/11 victims a way to get answers and justice.
“There is a desire for that. But there’s also a desire to do so in a manner that will not possibly undermine other equities that the United States government and our people have,” Corker said.
Sen. Lindsey Graham (R-S.C.) also voted for the override but was concerned about how the bill would be interpreted.
“I’m worried, like a lot of other people are worried, that Saudi Arabia will see this as the Congress finding them guilty of being involved in 9/11,” said Graham.
Schumer dispelled those claims.
“If the Saudis were culpable, they should be held accountable. If they had nothing to do with 9/11, they have nothing to fear.”