The Election is Over – Time to Fix JASTA
The past year’s political season was one for the record books. Tensions were high, accusations flew, and partisan teams formed un-crossable lines as they fought for victory with every tool available. It became, at least marginally, acceptable to viciously attack the reputation, character and motivations of your opponent in order to score political points. Invective replaced argument and “fake news,” designed intentionally to discredit the opposition, became “a thing.”
In this atmosphere of rabid partisanship rose an important and difficult issue; justice for the victims of terrorism, and the related responsibilities, liabilities and rights of sovereign nations in relation to those victims and their families. The Justice Against Sponsors of Terrorism Act, S.2040 or “JASTA,” was born out of the understandable frustration of the families of victims of 9/11 to bring to account those who supported the hijackers in their heinous act, and their inability to hold liable foreign governments, specifically Saudi Arabia, who they believed were at worst involved, or at least supportive of, the attacks. It passed quickly by voice vote, was vetoed by President Obama and finally passed over that veto 97-1 in the Senate and 348-77 in the House. Bi-partisan support for this measure was overwhelming, even in the midst of a highly contentious national election.
Before we celebrate this well-meaning legislation, passed with broad support against a backdrop of severe partisanship, as an example of how legislators can work together to bring deserved justice to victims of terrorism, we should examine the measure on its merits and long-term effects. After this examination, I hope members will call immediately for its reconsideration. Yes, the President vetoed it, but no less a strong Republican than Congressman Mac Thornberry (R-TX), who serves as the Chairman of the House Armed Services Committee, strongly supported that veto, writing in a letter to his colleagues, “this bill increases the risk posed to American military and intelligence personnel, diplomats, and others serving our country around the world.”
I have nothing but contempt for terrorists and their sponsors, and feel deeply for those who have suffered at their hand. Like those who supported this legislation, I desire that they receive justice, including compensation. Unfortunately JASTA is not the way to ensure that justice, as its unintended consequences are serious, placing in jeopardy the foundational concept of sovereign immunity, a concept that protects our government employees and service members around the world.
JASTA holds that “[a] foreign state shall not be immune from the jurisdiction of the courts of the United States in 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—
(1) an act of international terrorism in the United States; and
(2) 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.”
In plain language that means that a victim of terrorism can sue a foreign nation for financial compensation for terrorism or “tortious…acts” perpetrated by employees of that government. Congress.gov (https://www.congress.gov/bill/114th-congress/senate-bill/2040) summarizes the bill this way, “[t]his bill amends the federal judicial code to narrow the scope of foreign sovereign immunity.” That should give us all pause.
As someone born and raised in New York who now lives close to the Pentagon, I know families who suffered from the unforgivable attacks of 9/11. But as a combat veteran, with two sons currently serving in the Armed Forces, I am concerned that JASTA, in its current form, will threaten both national security and Americans serving their nation, like my two sons. I agree with Chairman Thornberry that “[w]e all feel a strong sympathy for the families of 9/11 victims as well as contempt for those who commit or fuel acts of terrorism. But this bill will increase the risk to our military and other personnel around the world, and I must oppose it on their behalf.”
Sovereign immunity protects our government officials from facing trial in foreign countries for official actions. If other nations were to pass laws like JASTA, United States officials would face the prospect of being sued in foreign courts for the actions they take on our behalf. Several countries have already expressed their intent to do so. Quoting Congressman Thornberry, “[m]any of those countries do not respect the rule of law, and we cannot expect their responses to be as measured and narrow as ours. We have more at stake than anyone else – and our personnel will incur the most risk.”
Congressman Thornberry is not alone in opposing JASTA. Ambassador John Bolton, considered a potential nominee for Secretary of State in the Trump Administration, is also opposed, as is former Attorney General Michael Mukasey. Together they wrote an Op-Ed opposing the measure (http://www.wsj.com/articles/the-folly-of-fighting-terrorism-by-lawsuit-1473116091) arguing that JASTA “is far more likely to harm the United States than bring justice against any sponsor of terrorism.”
Senator Cornyn (R-TX) is a vocal supporter of JASTA, and I respect him for that. He wrote an op-ed too (http://www.wsj.com/articles/the-folly-of-fighting-terrorism-by-lawsuit-1473116091) with Senator Schumer (D-NY), supporting the veto override. In that op-ed they argued, “[c]onsistent with FSIA [Foreign Sovereign Immunities Act]…victims can sue a foreign government if one of its employees causes damage arising from drunken driving, assault or breach of contract. If U.S. victims can sue a foreign government for these reasons, they should be able to sue a foreign government that harms their loved ones by financing a terror attack on our homeland.”
That seems like a good point at first, but it glosses over a major difference between crimes such as drunk driving and “state sponsorship of terrorism.” Drunk driving is not a policy of a foreign government. Sponsoring terrorism against an adversary is, regardless of how horrendous a policy it might be. We have measures to deal with such acts of war, and we can already choose to declare a nation a state sponsor of terror. What we cannot do is allow courts around the world to decide that our military, diplomatic or intelligence actions are the equivalent of “terrorism” (in their opinion) and then allow our citizens to be “hauled into court by those who oppose U.S. policy and would use judicial proceedings to frustrate it, especially in countries where courts are puppets of the regimes,” according to Bolton and Mukasey.
Both Congressman Thornberry and Bolton-Mukasey bring up another negative aspect of JASTA not addressed by Senators Cornyn and Schumer. The weakening of sovereign immunity will also harm our intelligence efforts in the on-going war on terrorism. That effort is strengthened when nations have the ability, and the motivation, to share information, much of which is highly sensitive. Proving an official was acting in an official capacity is likely to be difficult, especially in countries where the line between official and personal conduct are blurred, such as in the Kingdom of Saudi Arabia. To prove this connection, under JASTA, related intelligence may be subject to discovery in U.S. courts, thus making other countries reluctant to share it. “[N]o sovereign nation would willingly suffer…the exposure of diplomatic and state secrets in a public proceeding in a foreign country,” warns the Bolton-Mukasey op-ed. While Senators Cornyn and Schumer argue that JASTA will make it less likely for states to sponsor terrorism because of the threat of lawsuits, given the nature of terrorists I do not see how that could be true. Terrorists do not care about being sued, and governments that support terrorism won’t pay damages should they be.
The United States is a top target for terrorists and the regimes that support them. This is a sad fact. While I feel for the victims of 9/11, and any terrorist attack, we should not also make our men and women, acting in an official capacity on our behalf, a further top target for lawsuits pursued by regimes intent on harming the reputation, standing and security of our nation.
Proponents of the legislation are right to press for penalties against sponsors of terrorism. In fact, U.S. citizens can already sue for damages from countries that have been designated sponsors of terror. JASTA removes that requirement to make it easier for victims, but we should resist that shortcut. If a state sponsors terrorism they should be designated as such, as we then have options available to us to respond, up to and including, of course, war. If the Saudi Arabian government was complicit in the attacks on 9/11 (and to be fair to them the 9/11 Commission found, according to CIA Director Brennan, “that there was no evidence to indicate” that they were) then we can, and should, take consequential, action. But, quoting Bolton-Mukasey, “to invite unelected, life-tenured judges to interfere in areas constitutionally assigned to the branches charged with making and declaring war is folly…”
There are White House meetings this week to discuss fixing JASTA. Conscientious lawmakers, working together, can surely craft a fix that prevents the erosion of sovereign immunity and protects our citizens serving abroad. Our diplomats can further work with foreign nations to negotiate financial compensation for victims should that be appropriate. If a country supports terrorism against the United States we should prove it, designate them as such, and use the many means to sanction them that are available to us. It may be easier to bypass that designation in order to enable victims to sue, but that does not make it wise.
As for reconsidering JASTA, it should not be deemed weakness or insensitivity to want a law that works. The viciousness of the last election cycle should not be extended to the new Congress, or this complex topic. Thoughtful citizens should refrain from attacking those who want JASTA to be well-constructed as coddlers of terrorists or pawns of the Saudis, and support the effort to fix it. It is a legal maxim that “hard cases make bad law.” It is time to make a good law and reconsider JASTA.