Over the last ten days, controversies have erupted over the Obama administration’s continued classification of evidence of possible Saudi government involvement in the September 11th attacks and its opposition to legislation that would clarify that foreign governments like the Kingdom do not have immunity in cases where they aid a terrorist attack on U.S. soil.
The legislation is called the Justice Against Sponsors of Terrorism Act (JASTA), and it has 23 bipartisan sponsors in the Senate. It passed unanimously out of the Senate in 2014, without any public opposition from the White House and was approved again recently by the Senate Judiciary Committee on a 19-0 vote.
On Saturday, the New York Times revealed that senior White House officials had been calling members of Congress urging that they oppose JASTA, emphasizing in those conversations that the Saudis had threatened to sell off $750 billion in U.S. assets held by the Kingdom if the bill were enacted. An outcry ensued about our supposed ally’s threat and the administration’s prostrate response. Numerous economists ridiculed the threat as empty, explaining that the Kingdom likely could not execute such a transaction at all and that any attempt to do so would devastate Saudi Arabia’s economy.
In the face of these reactions, White House Press Secretary Josh Earnest on Monday publicly abandoned the Saudi’s economic threat as a basis for opposing JASTA, expressing confidence “that the Saudis recognize, just as much as we do, our shared interest in preserving the stability of the global financial system.” While certainly welcome, this abrupt reversal begs the question why the White House ever raised it in urgent calls to senators as a reason they should oppose the bill.
Shifting ground, Earnest instead urged that the administration’s opposition to JASTA is grounded in an “important principle of international law” and that “[t]he whole notion of sovereign immunity is at stake.” Earnest claimed JASTA’s passage could put our diplomats, service-members who are engaged in humanitarian work abroad, and taxpayers at risk of being sued in foreign courts, if they did something wrong that caused harm there.
The president argued along similar lines that his present opposition to JASTA is based in fears that “[if] we open up the possibility that individuals in the United States can routinely start suing other governments, then we are also opening up the United States to being continually sued by individuals in other countries.”
None of these concerns is the least bit valid, and all rest on troubling mischaracterizations of current law and JASTA itself. These phantom concerns have been roundly rejected by the sponsors of JASTA for very real, not imaginary, reasons.
At base, the alleged concerns raised by the White House rest on the idea that sovereign immunity is an absolute principle exempting governments from suit in foreign countries, which the U.S. would be eroding without precedent by passing JASTA. That is simply not true. In fact, governments have long been subject to suits in other countries for wrongful acts.
In the U.S., the immunity of foreign states is governed by a 1976 statute called the Foreign Sovereign Immunities Act (FSIA), which subjects foreign states to suit in U.S. courts for commercial wrongs, torts, and certain property violations that cause harm here. Thus, our laws already provide that foreign governments are “routinely” subject to suit in our courts when they cause injury here. The fact that this has been true for the last forty years has not imperiled the interests of the U.S. or its citizens abroad.
Virtually all countries that have addressed the question of foreign sovereign immunity via statute have adopted similar rules. As the International Court of Justice observed in a 2012 decision, 90 percent of the countries that had enacted foreign sovereign immunity statutes authorized suits against foreign governments for torts causing harm on their soil. Stated simply, the U.S. government already is subject to suit abroad when its conduct causes injury in a foreign country.
Mr. Earnest’s claims that JASTA would subject U.S. diplomats and taxpayers to suit are even more perplexing. The immunity of diplomats is governed by the Vienna Convention on Diplomatic Immunity, to which the U.S. and 189 other countries are signatories. JASTA does not, and could not, alter the immunity of diplomats under that Convention.
Further, principles of sovereign immunity have no bearing whatsoever on whether a private citizen of the U.S. can be sued for alleged wrongdoing in another country. And if a U.S. citizen commits a wrongful act that injures someone in another country, local law would ordinarily authorize the victim to sue that U.S. citizen.
But what is perhaps most disturbing about the arguments that have been raised by the president and his staff about JASTA’s purported dangers is that the United States affirmatively argued to the Supreme Court in 2004 that the FSIA’s existing exception to sovereign immunity for tort claims could be invoked to establish jurisdiction over a foreign government “for cases of terrorism on U.S. territory, such as the September 11 attacks.” But when the 9/11 families sued Saudi Arabia for the September 11 terror attacks, an exception to sovereign immunity for terrorist attacks on U.S. soil suddenly became a dangerous idea in the eyes of this administration.
It is dismaying that the president and his team have offered, as the basis for opposing JASTA, reasons that have no foundation in law or fact. No wonder so much of the recent reporting suggests that this is really about protecting Saudi Arabia.
JASTA merely restores how our immunity rules were interpreted for the first thirty years following the FSIA’s enactment. Throughout that time, courts consistently held that foreign states were subject to suit in the U.S. for aiding acts of terrorism, such as extrajudicial killings that occur here. No floodgate of suits against the U.S. in foreign courts occurred during this period.
A few court decisions in the context of the 9/11 disputes against Saudi Arabia retreated from these longstanding interpretations, and have resulted in the bizarre result that foreign governments are subject to suit for ordinary torts, such as a car accident that causes injury here, but not for aiding a terrorist attack on our soil.
JASTA is Congress’ response to this illogical result. It is narrowly tailored to provide that a foreign state does not enjoy immunity in our courts for aiding a terrorist organization in carrying out an attack on U.S. soil.
That is good policy. It serves as a powerful deterrent to the sponsorship of terrorism by foreign governments. (If you have any doubts about the bill’s deterrent qualities, just consider the Saudi response to JASTA’s possible enactment). If foreign countries enact reciprocal laws, it will not imperil the U.S., as we do not aid foreign terrorist organizations to attack civilian populations elsewhere.
Abraham Lincoln famously said “I am a firm believer in the people. If given the truth, they can be depended upon to meet any national crisis. The great point is to bring them the real facts.”
