If the latest buzz in Washington is correct, it now seems unlikely that we shall be treated to a new episode in the Justice Against Sponsors of Terrorism Act (JASTA) in the lame duck congressional session to be held after the November 8 elections. The current buzz is in contrast with reports only a week ago that in its twilight phase, the Congress will revisit the text to smooth its path to the statute book.
Now, however, it is clear that neither the Congress nor President Barack Obama, also in his lame-duck phase, are interested in developing a compromise text as hinted at by the Republican Speaker of the House of Representatives Paul Ryan.
All this may sound like good news if only because it avoids another showdown between the executive and the legislative branches of the U.S. government.
However, both supporters and opponents of JASTA would be well advised before they uncork the bubbly.
The lobbies supporting JASTA insist that the latest decision by the Congress to overturn the president’s veto of the draft bill should mean the end of the legislative process in this case.
Terry Strada, national chair of the principal pro-JASTA lobby insists that the overturning of the presidential veto is “a triumph” and that talk of the Congress re-visiting the text would be unacceptable.
“We are overwhelmingly grateful that Congress did not let us down. The victims of 9/11 have fought for 15 long years to make sure that those responsible for the senseless murder of thousands of innocent men, women and children, and injuries to thousands others, are held accountable,” says Strada.
He may have reason to be concerned.
The JASTA saga started in 2009 with the formation of a Congressional group promoting the idea of some form of legislation to “do justice” for the victims of the 9/11 tragedy and their survivors. At first, the popular idea was that the U.S. government should set up a special compensation fund to be dispensed under Congressional supervision. By 2010, however, the idea had morphed into a demand for seeking compensation from alleged foreign powers responsible for the event, with Saudi Arabia singled out for attack.
The issue came up in three successive Congressional sessions of 111, 112 and 113 as legislators debated a murky text and failed to agree on a draft, subjecting it to substantial amendments in 2014, 2015 and 2016. At each step, the text was watered down, making its eventual implementation as law more problematic.
Saudi Arabia has many enemies in the United States, both on the right and the left.
Those on the right dislike the kingdom because it is Muslim and Arab. Those on the left dislike it because it is a conservative society with good relations with the Western “Imperialist” powers.
Attempts by a handful of legislators to make it a specifically anti-Saudi law failed and the kingdom’s name was never mentioned in the latest drafts.
Thus the text passed last month is not specifically aimed at Saudi Arabia and could be used for bringing individual suits against any country that could be accused of direct or indirect involvement in acts of terror. Whether the draft concerns only acts that have taken place in the territory of the United States remains a moot point.
In any case, the latest draft is a watered-down version of the text established by the House Judiciary Committee, pointing to the possibility that any future re-drafting may lead to even more watering down of it.
However, opponents of the bill should also hesitate to rejoice in the fact that the lame-duck Congress seems to have decided not to try and finalize the text in its dying days after the 8 November elections.
There are two reasons why no rejoicing is in order.
The first is that both current presidential candidates, Hillary Clinton for Democrats and Donald Trump for the Republicans, have said they would not support Obama’s decision to veto JASTA. It is possible that they said so not to antagonize some voters. However, it is equally possible that they really meant what they said.
Moreover, there is no guarantee that the next Congress, to convene in January 2017, will be less gung-ho on JASTA than the current one.
Even worse, JASTA may simply continue somewhere in the legislative limbo casting a shadow of doubt over Saudi-U.S. relations at a time the two nations need to work together in even greater confidence than before. JASTA may not actually be tested in real life but could continue a virtual existence as a judicial version of the Sword of Damocles hanging over the head of many nations, including the United States itself.
JASTA is not the first attempt at entangling Saudi Arabia in a cobweb of judicial problems in the name of terrorism. U.S. district courts have already dismissed several suits brought against Saudi personalities, charities and institutions. At the same time the FBI and the CIA have repeatedly stated that there was no evidence of any links between the 9/11 perpetrators and Saudi Arabia as a state or Saudi officials. The same conclusion is contained in the 28-page report of the 9/11 Commission: The Saudi state had no part in the 9/11 attacks.
Nothing in U.S. law prevents any citizen or group of citizens to bring a tort suit against any government, including the U.S. federal government itself.
The problem with JASTA is that it is presented as an amendment to the law on the sovereign immunity under which nation-states could not be sued for acts conducted in the normal performance of their policies.
“It is quite possible that the legislators didn’t pay enough attention to the implications of the text,” says scholar Juan Cole, a long-time critic of Saudi Arabia but an opponent of the JASTA bill.
However, even the sponsors of the bill Senators Chares Schumer (Democrat) and John Cornyn (Republican) now admit that, in its current form, JASTA may need to be revisited.
Senator Robert Corker (Republican of Tennessee) goes ever further. “There could be unintended consequences that work against our national interest,” he says, promising to “work with others” to “overcome that.”
Other legislators have tried to shift the blame for the impasse on President Obama who is accused of not having paid enough attention and time to the issue. Among these are Congress members such as Nancy Pelosi (Democrat) and Speaker Ryan (Republican) and Senate senior like Orin Hatch, Dine Feinstein and Bob Corker.
How might the JASTA saga come to an end, if at all?
One possibility is that now that the Congress has scored a point against Obama on the eve of a hotly contested election, JASTA would be allowed to fade into the background.
It may live half a life as part of the legislative dossiers for discussion between the Congress and the White House with a view to a new compromise text that may never be achieved. There are many examples of this limbo-life in American legislative history, although none is linked to passions as this one.
The second possibility is that the White House and the Congress agree on a new compromise text that would address the crucial issue of sovereign immunity. That would not ensure Saudi Arabia or any other nation against the possibility of tort suit being lodged by individual or group plaintiffs. But it would substantially raise the threshold of admissible evidence and allow any state as a defendant to invoke the internationally recognized principles of sovereign immunity in its defense. That, in turn, would make it far more difficult for plaintiffs to secure a favorable verdict.
The third possibility is that the next president will simply revoke Obama’s veto and allow the current text to go ahead. As already noted, both Clinton and Trump have promised to do so. In that case, one would wait for the first test case to be submitted to a district court.
In such a scenario the principal actors will be the lawyers who would try to find a court that is least informed about international law and the complexities of diplomatic relations in a state where xenophobic sentiments are most easily aroused.
In such a context the stage would be set for litigation that could take years, making some lawyers rich with no guarantee that any plaintiff would end up with a healthier bank account. In any case, even under the existing text, the State Department would be able to suspend the litigation for successive periods of 180 days, indefinitely.
However, the risk will remain that others may decide to file tort suit against the United States with reference to JASTA. For example, the thousands of people who have been killed in American drone attacks in 12 countries across the globe might not be able to resist the temptation of jumping on the JASTA gravy train.
To be sure, U.S. citizens could also file tort suits against many other countries, including in Western Europe. For example, many U.S. citizens were killed in the recent terrorist attacks in France, exposing the French government to litigation on grounds of negligence. French authorities knew some of the terrorists but did nothing to stop them from proceeding with their dastardly deeds.
According to the best estimates, terrorists of all ilk enjoy shelter, or at least, temporary safe havens in more than 25 countries in South America, Asia and Africa all of whose governments could be sued in tort cases involving negligence. Venezuela has been a safe haven for the Colombian terrorist movement FARC for almost half a century. Pakistan is the operational base of at least four terrorist groups operating against India.
India repays the compliment by sheltering anti-Pakistani Baluch insurgents. Iran is a sponsor of several terrorist groups across the region, most notably the Lebanese branch of Hezbollah and the Yemeni Ansar.
At the same time Weston European countries, notably Britain, France, Belgium and Germany, admit that they are home to around 8000 Jihadists most of them linked to ISIS. If and when any of those embark on an attack anywhere in the world the victims would be able to invoke JASTA to justify filing a suit against the governments concerned.
Because JASTA seems to be retrospective, something rare in legal systems, many nations, including the U.S. itself, could be taken to court for alleged atrocities dating back decades or even centuries.
Whatever the fate of JASTA, the international community will continue to face the problem of terrorism, how to define it and how to combat it. The U.N. General Assembly has failed to agree on a definition for more than two decades because some groups that are regarded as terrorists by some members are adulated as “freedom-fighters” by others. Worse still, there is no doubt that terrorism is used by quite a few nations as part of their paraphernalia of statehood. The problem is that without a consensus on a definition it is simply fair and legally unsafe to adopt a pick-and-choose policy to satisfy domestic constituencies.
A good part of the current campaign against Saudi Arabia is ideological, with little relevance to terrorism. Senator Bob Kerrey, a Democrat and former presidential candidate, says with outright frankness that Saudi Arabia must be “punished” because it promotes its own brand of Islam. Senator Kerrey has every right to fight Saudi Arabia and the kind of Islam that it promotes in a battlefield of ideologies. However, it is bad politics and bad law to use legal instruments in what is an ideological fight.
In that sense JASTA is also a dishonest text. It is inspired by dislike of Saudi Arabia but is not courageous enough to even mention the kingdom by name. The men who drafted the text know that they would have no chance of securing a credible conviction in any properly conducted court of law in the United States. As a result the text exposes the worst aspects of the U.S. legislative process, populist demagoguery disguised as legislation.