The Unjustified JASTA, How Americans Ditch Their ‘Allies’

unjustified-jasta
The Justice Against Sponsors of Terrorism Act (JASTA) is now the law of the United States. After months of warnings from President Obama, legal and international affairs experts and foreign leaders, the US House of Representatives unanimously passed the bill on September 9. This act of the Congress began a game of legislative ping-pong between the President and the Congress with the former vetoing the bill and the latter overriding the presidential veto. Since this law violates the principle of immunity of sovereign states, which is a basic and established legal principle in international relations and international law, it is going to be very dangerous and very expensive for America as well as the rest of the world.

Finally, the American Congress overwhelmingly overrode President Obama’s veto of a legislation allowing relatives of the victims of the 9/11 attacks to sue Saudi Arabia, making this the first veto override of his presidency and that too four months before he leaves the White House. This means the “Justice Against Sponsors of Terrorism Act,” (JASTA), is a law now. This law means that the smallest court in America can now sue Saudi Arabia, or any other country, and call to freeze its assets. This law is something of a precedent and has never been enacted by anyone in the history of relations between countries. <div>

Why JASTA was passed?

One of the principal reasons why Congress promoted the JASTA law was the insistently-held belief among many that the 9/11 attacks were sponsored by Saudi Arabia — even though the 9/11 Commission said otherwise. With the passage of the law, the Congress wanted to make the Saudi government and citizens pay for what was al-Qaeda’s terrorism. It seems that the senators and congressmen now want to appear tough on terrorism in an election year, so they rushed the JASTA bill without careful consideration of its after-effects.

Implications

One thing is almost certain: the JASTA will have negative repercussions not only for the world but also for the United States itself. In effect, the bill eliminates sovereign immunity among Nation-States and their officials. Many countries will soon retaliate with their own versions of JASTA and force the US into their courts for sponsoring terrorism in Afghanistan, Syria, Iraq and other battlefields.

In theory, why shouldn’t an Iraqi be able to lodge a complaint against the United States in Baghdad? And by extension, would not those countries of Europe, the Middle East, and beyond to Central Asia who provided logistical and intelligence support in Washington’s war on terror also be complicit in terrorist acts? Would this also make them state-sponsors of terrorism? What would keep other Nation-States from trying to bring United States officials, soldiers and intelligence operatives into their own courts for interpretations of their version of this line of thinking? In fact, Sheikh Jamal Al-Shari, president of the Iraqi National Project, has already promised to sue the US government for terrorism in Iraq should JASTA becomes law, and is gathering “top Iraqi lawyers and judges along with numerous international legal advisors.”

Violation of sovereign immunity

As mentioned earlier, the JASTA law is in violation of the principle of sovereign immunity of which the US benefits more than any other nation because it influences and acts in more countries than anyone else. However, the passage of JASTA means that American diplomats and soldiers will be sued in Iraq and other foreign courts, crippling US’ ability to carry out foreign policies. Senators and congressmen who opened Pandora’s Box surely realize that the US has far more foreign assets than Saudi Arabia, and those public and private assets will be seized in foreign courts.

US-Saudi Relations

Limiting JASTA to Saudi Arabia would confine most of the impact of the statute to US-Saudi relations and thereby minimize collateral consequences.  Such a targeted approach would be consistent with what Congress has done in the past:  when it has enacted terrorism-related exceptions to immunity, it has targeted specific countries.  Previously, Congress has done so by abrogating immunity for “state-sponsors of terrorism,” while leaving it to the executive branch to decide which nations should receive this designation.

Saudi Arabia is not currently on the executive branch list of state-sponsors of terrorism, and no President is likely to place it on the list any time soon.  But there is nothing stopping Congress from bypassing that process and acting directly to strip Saudi Arabia of immunity.  Moreover, the Supreme Court’s recent decision in the Bank Markazi case concerning Iran confirms that such a targeted approach, even when addressed to pending litigation, presents no constitutional difficulty.

Focusing the legislation on Saudi Arabia would require Congress to overtly acknowledge the true aim of the law, which in turn would put Congress more directly on the spot for any adverse consequences in US-Saudi relations that follow.  We doubt that Congress will choose to make itself more accountable in this way, even if doing so would reduce the adverse foreign policy consequences for the United States.

What’s next?

In the case of lawsuits related to 9/11, the legislation allows US Secretary of State John Kerry to delay some of this litigation by certifying that this matter is being first taken up directly with the accused foreign government, in this case, the Saudi government. However, Kerry doesn’t have the time and the bandwidth to do this with every lawsuit, which will spring up now and in the future.

A federal district court will likely then take up a lawsuit against the Kingdom and the judge could go as far as to preliminary freeze assets of the government as the suit is heard. If a case is made, these assets could be moved outside of US jurisdiction. Saudi assets could be anything from real estate holdings of members of the Saudi government to Saudi Aramco’s assets that fall under the US’ remit. Assets could also be taken from joint partnerships between Saudi and US companies.

Depending on which appellate court hears an appeal, the challenge to the law’s constitutionality could be upheld or overturned. If the case goes to the Supreme Court, the court could potentially be split on 4-4 lines and the law remains in effect. It’s unclear how the justices will rule. In either case, if it reaches the court, this could be a multiple month protracted legal battle, as Saudi assets remain frozen.

Buyer’s Remorse?

Congress has apparently begun considering JASTA and the results it might create. Following the veto override, Mitch McConnell, a senior United States Senator, actually said that this debacle is “an example of an issue that we should have talked about much earlier,” and that it indicates the White House’s “failure to communicate early about the potential consequences of a piece of legislation was obviously very popular.”
Now, Congress is looking for some kind of legislative morning-after pill to fix the mess it created with this idiotic legislation. Paul Ryan told reporters, “There may be some work to be done to protect our service members overseas from any kind of legal ensnarements that occur, any kind of retribution.”

Conclusion

Overall, JASTA is going to ignite a firestorm of legal warfare that will directly undermine political relationships at a time when robust ties to fight terrorism is required. JASTA is the ultimate disaster and hopefully cooler heads will prevail as sovereign immunity is tossed out of the window. It will also certainly test and strain US-Saudi relations at a time when a stronger partnership is needed. The forthcoming lawsuits will further contribute to a growing percentage of the American public’s souring perception of the Kingdom, which is harmful for the long-term direction of the bilateral relationship. It will also hurt the US’ own public diplomacy efforts with the Kingdom.

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What is Sovereign Immunity?

A nation’s immunity from lawsuits in the courts of another nation is a fundamental tenet of international law. This tenet, which is based on the idea that equal sovereigns should not use their courts to sit in judgement of one another, is called “Sovereign Immunity,” or “State Immunity”. It is a principle of customary international law by virtue of which one sovereign state cannot be sued before the courts of another sovereign state without its consent. Put in another way, a sovereign state is exempt from the jurisdiction of foreign national courts. Thus, the question of immunity is at the same time a question of jurisdiction: only when the court already has jurisdiction will it become meaningful to speak of immunity or exemption from it. For this reason, sovereign immunity is also referred to as “jurisdictional immunity” or “immunity from jurisdiction.” Because different types of legal proceedings may be brought against foreign states, sometimes courts find it necessary to refer to jurisdictional immunities of states. In history, the words “ex-territoriality” and “extraterritoriality” were also used in this sense.

The current law of state immunity has developed predominantly as a result of cases decided by national courts in legal proceedings against foreign states. Doctrinal debates among the scholars are of much later occurrence and consist mainly of comments on decided cases. The fact that the law of state immunity is primarily judge-made law gives judicial decisions a prominent position among the possible sources of international law as contemplated by Article 38 (1) of the Statute of the International Court of Justice; instead of being a “subsidiary means for the determination of rules of law,” they are now a main source of legal rules. This feature of the law also shapes and determines the contours of a research guide on sovereign immunity. As far as possible, the leading cases in the field must be introduced first, so as to provide a firsthand view of the law and to place the relevant doctrinal debate in its proper context.

Purpose of JASTA

Long title: An act to deter terrorism, provide justice for victims, and for other purposes.

The purpose of this Act is to provide civil litigants with the broadest possible basis, consistent with the Constitution of the United States, to seek relief against persons, entities, and foreign countries, wherever acting and wherever they may be found, that have provided material support, directly or indirectly, to foreign organizations or persons that engage in terrorist activities against the United States.

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