London-After weeks in the headlines the notorious Justice Against Sponsors of Terrorism Act (JASTA) maybe nose-diving like a punctured balloon with even its makers no longer sure of its wisdom.
There are at least three big problems with JASTA.
The first is that it seeks to undermine one of the cardinal principles of international life, that of sovereign immunity, by allowing private US citizens to lodge lawsuits in US courts against foreign powers on a charge of sponsoring terrorism. Because reciprocity is also an established principle of international law, other nations could also take measures to allow lawsuits being filed against the United States on similar charges.
To address that concern, US Congressional leaders have tried to tone down their overriding of President Barack Obama’s veto on the bill.
This means that the text already approved is to be revisited.
“I would like to think there’s a way we can fix so that our service members do not have legal problems overseas while still protecting the rights of the 9/11 victims,” House Speaker Paul Ryan said.
Senate Majority leader Mitch McConnell has added: “It’s worth further discussing. It was certainly not something that was going to be fixed this week.”
Everybody was aware of who the potential beneficiaries were, but nobody really focused on the potential downsides in terms of our international relationships,” McConnell asserts.
Republican Sen. Bob Corker said the Senate Foreign Relations could take up the issue during the lame-duck session of Congress after the Nov. 8 election.
Even Senator Chuck Schumer, the Democrat who championed the bill now says he would open to revisiting the text. He is ready to “look at any proposal that would not hurt the families,” Schumer says adding a further layer of ambiguity to an already confused situation.
In other words, JASTA is both there and not there, yet.
South Carolina GOP Sen. Lindsey Graham told reporters Wednesday that there are 20 senators discussing a “fix” to address the issue of sovereign immunity.
Senate Foreign Relations Chairman Bob Corker of Tennessee said the number is higher. But both he and Graham acknowledged that reaching a final agreement to tweak the new law and pass it during the lame-duck session after the elections would be an uphill climb.
White House spokesman Josh Earnest said Congress apparently is experiencing a case of “buyers’ remorse.”
Whether the lame-duck Congress that convenes after the 8 November elections would be able to find a slot for “revising” the text remains anyone’s guess.
The second problem with the existing text is that it drives a wedge between the judiciary and the executive powers in the United States. A district court may come up with a judgment but depend on the Attorney-General and, in a broader sense, on the Secretary of State for allowing this execution.
Senate Majority leader McConnell blames President Obama for lack of consultation.
“I think it was an example of an issue we should have, on a bipartisan basis, talked about much earlier,” McConnell told a press conference last Thursday.
“I think it was just a ball dropped,” McConnell said. “I wish the president — I hate to blame everything on him and I don’t — but it would have been helpful had he, we, had a discussion about this much earlier than last week.”
Senator Corker has gone even further by implicitly accusing Obama of “intellectual laziness” and “arrogance” in thinking that he needn’t negotiate with the Congress because he could always veto a bill if it passed. Corker told Roll Call that he had tried to get the White House engaged on JASTA early enough in the process to help bridge any gaps between the president and Congress. Both Schumer and John Cornyn, the other Senate sponsor of JASTA, agreed to the meeting. The White House blew Corker off. “There was no desire whatsoever to sit down and meet,” Corker recalls.
With his veto overturned Obama is now showing an interest in negotiating a new text with the Congress, one almost certain to transform it into a largely symbolic move.
However, the blame shouldn’t be put on Obama alone. It is clear that the legislators who piloted the project were chiefly interested in scoring personal or party political points close to the forthcoming elections. Thus, they ignored the traditional grammar of legislating in Washington which starts by publishing a white paper, holding discussions with all interested parties, extensive talks with the executive branch and due diligence at committee levels.
In their scramble to pass a bill, almost any bill, before the November election, Schumer and Cornyn largely re-wrote an earlier text which, some experts believe, would have been a more effective piece of legislation.
The watered-down text persuaded Fransesca Procaccini, writing for Lawfare to suggest that the question was now whether, if the House passes the Senate bill, Obama might actually not veto it. (Obama has vetoed fewer votes than any US president since James Monroe.)
The third problem with JASTA, as it stands now, is that it may be more of a propaganda piece than an enforceable piece of legislation.
The very title of the law, again something unusual, is a piece of propaganda. It presents the legislation as “against” while justice is neutral, always approaching a case with the presumption of innocence on the part of the defendants. There is also the phrase “sponsors of terrorism” which means that any would-be defendant has already been found guilty of sponsoring terrorism. To complicate matters further there is no definition either of terrorism or of sponsoring it.
In other words, in any putative case you must first prove that the defendant is sponsoring terrorism and then try to decide whether that sponsorship did actually cause any harm to the plaintiff. A tall order.
For years, the United States has published a list of “states sponsoring international terrorism” with Cuba, Iran, Iraq, Syria, North Korea and Sudan featuring in it. But the list is no more than a politico-diplomatic document expressing the views of the State Department, not a legal text.
It is, therefore, not easy to establish that any nation, even those on the “list” are actually sponsoring terrorism before they could be sued on that charge.
But if a case is based on negligence, which would mean a tort case, then there is no need for separate legislation. But there, too, we shall face difficulties. Couldn’t the US itself be charged with negligence in allowing some members of the 9/11 death squad to train to pilot aircraft without being properly be vetted? And wasn’t the French government negligent when it allowed a listed “terrorist suspect” loose in Nice where he could drive a truck and kill 85 people, including at least two Americans?
“It’s important for us to send a message that that evil shall not prevail. Americans from all backgrounds came together in a beautiful display of patriotism and fraternity following that terrible day of September 11th, 2001,” Cornyn said in a press conference last week.
However, the principal purpose of lawmaking isn’t to send a message but to protect the rights and legitimate interests of the citizens in the broader context of national interests. Bering popular, or in more vulgar terms, sexy, doesn’t bestow on any law the dignity without which it cannot be respected.
Jack Goldsmith Harvard Law professor and former adviser to General Counsel of the Department of Defense describes JASTA as “politically cost-free for Congress to send a signal” about being serious on terrorism. However, Goldsmith believes that JASTA will burden federal courts with a task for which they are not prepared.
“The costs of the law will be borne by courts, which are an awkward place to ascertain Saudi responsibility for 9/11, and especially the president, who will have to deal with the diplomatic fallout with Saudi Arabia and other nations,” he says.
In English judicial tradition, the basis for the American one, when a piece of legislation is unenforceable or anachronistic, not to say unnecessary, or if it causes more harm than good it is described as “an ass.”
Because of the threat it poses to the principle of sovereign immunity, JASTA merits such a label. Sovereign immunity has deep roots in human history.
In the ancient world, the principle was designated as “Imperial fiat”, in the Persian Empire as “shahkert” (act of the king) and in medieval Europe as “le fait de prince” (work of the prince). In English law, the principle was highlighted with the slogan “The King Can Do No Wrong”. As modern European nation-states emerged they codified the principle in a series of documents known as the Westphalian treaties.
Sovereign immunity is a foundational legal concept in American law that predates America itself. It’s the American cousin of British “Crown Immunity,” which protects monarchs from lawsuits absent specific statutory consent. Under modern American law, there are a few exceptions to the federal government’s immunity – but they’re all designated by statute, and are always construed narrowly.
When the US applies the concept of sovereign immunity to other countries, it designates it as “foreign sovereign immunity.” In 1976, President Gerald Ford signed the Foreign Sovereign Immunities Act (FSIA) into law, although the concept of foreign sovereign immunity had been at work since the creation of the United States as an independent country.
Normally, United States federal courts are not permitted to hear any lawsuits against foreign nations; the FSIA, however, carves out a few exceptions, such as when a foreign state has waived immunity, or when a foreign state engages in a commercial activity. The FSIA has no direct bearing on the content of any lawsuit, but rather, simply articulates a few narrow instances in which lawsuits against foreign countries may proceed in federal court. That’s where JASTA comes in. It essentially amends the FSIA and Anti-Terrorism Act (ATA) to include one more kind of lawsuit – tort claims related to terrorism.
And, yet, in its latest form JASTA maintains some crucial aspects of ATA, notably the one regarding the relevance of previous judgments by US courts on related or similar cases. That is of crucial importance because US courts have already dismissed several suits against Saudi Arabia concerned with similar issues. JASTA would not overrule prior judicial decisions that rejected personal jurisdiction over some of the defendants to the 9/11 civil suits.
It also upholds provisions in ATA that prohibits claims against “a foreign state, an agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority.”
And, yet, in a glaring contradiction, JASTA does include the following language : “A national of the United States may bring a claim against a foreign state in accordance with section 2333 of that 16 title if the foreign state would not be immune under subsection (b).”
While JASTA keeps the ATA’s general bar on suits against foreign sovereigns, it gets rid of it for what might be called “JASTA claims,” i.e., “any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by … an act of international terrorism in the United States; and … 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.”
Even still, though, thanks to section 4(a) of JASTA, ATA claims against foreign sovereigns — as opposed to claims against private defendants — cannot be based upon aiding-and-abetting liability. Thus, the ATA remains available for “JASTA claims” against foreign sovereigns, but only on theories of primary liability, which have already blocked many suits brought in connection with 9/11.
Though the media have linked JASTA intimately to Saudi Arabia, its provisions could be sued against any nation. That, in turn, could persuade others to retaliate by adopting similar measures against the United States.
Nevertheless, enforcing JASTA as it stands now would require a rare degree of cooperation between the judiciary and the executive branch. Any US administration could use JASTA as means of threatening, not to say blackmailing, other nations. Bit any administration could also prevent JASTA from affecting any nation.
Under the current text, a court of the United States may stay a proceeding against a foreign state if the Secretary of State certifies that the United States is engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state, or any other parties as to whom a stay of claims is sought.
A stay under this section may be granted for not more than 180 days.
However, The Attorney General may petition the court for an extension of the stay for additional 180-day periods.
The text creates a procedure whereby the US government is allowed to intervene in cases brought under JASTA can seek to stay any case under JASTA indefinitely. Indeed, although the district court is given discretion to grant the stay in the first place, once the first stay is granted, extensions (potentially in perpetuity) are mandatory at least so long as the Secretary of State re-certifies the existence of “good faith” discussions of resolution of the claims. In other words the US government will be able to hang a judicial Sword of Damocles above the head of any nation targeted by JASTA. (Remember that Saudi Arabia is nowhere named, thus the act could potentially apply to every other nation.)
Of course, a district judge could always decline to grant a stay under section 5(c)(1), but as should be clear from my earlier post, federal judges have thus far looked for any possible way to avoid reaching the merits of these suits. It would be too much to expect a US district judge to rule out evidence provided by the Attorney general and the Secretary of State, even if only justified by the principle of raison d’etat. (Reasons of state). The temptation would always be there for the judge to blame the freezing of the procedure on the administration.
It may be too soon to speculate what will happen to JASTA when, and if, it is revisited and re-written later this year. However, right now it looks very much like a stillborn and misconceived creature.