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Congress Overrides Obama's Veto to Pass Justice Against Sponsors of Terrorism Act

Published online by Cambridge University Press:  29 March 2017

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Extract

On September 28, 2016, Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA), overriding a presidential veto for the first and only time during Obama's presidency. The Act allows Americans to sue foreign states for playing a role in terrorist attacks on U.S. soil. While JASTA was written in general terms, it was drafted specifically to allow families of the victims of the 9/11 attacks to sue Saudi Arabia for its suspected role in those attacks. The Act received widespread bipartisan support despite the administration's consistent stance that the Act would harm U.S. economic, diplomatic, and national security interests.

Type
Case Report
Information
American Journal of International Law , Volume 111 , Issue 1 , January 2017 , pp. 156 - 162
Copyright
Copyright © 2017 by The American Society of International Law 

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References

1 Justice Against Sponsors of Terrorism Act, Pub. L. No. 114–222, 130 Stat. 852 (2016) (codified at 18 U.S.C.A. § 2333, 28 U.S.C.A. § 1605B, amending the Anti-Terrorism Act and the Foreign Sovereign Immunities Act, respectively), at https://www.congress.gov/114/plaws/publ222/PLAW-114publ222.pdf [hereinafter JASTA].

2 See, e.g., Steve Vladeck, The 9/11 Civil Litigation and the Justice Against Sponsors of Terrorism Act (JASTA), Just Security (Apr. 18, 2016), at https://www.justsecurity.org/30633/911-civil-litigation-justice-sponsors-terrorism-act-jasta.

3 Foreign Sovereign Immunities Act, Pub. L. No. 94–583, 90 Stat. 2891 (1977) (codified at 28 U.S.C. §§ 1130, 1332(a)(4), 1391(f), 1441(d), 1602–1611(2012)) [hereinafter FSIA].

4 Anti-Terrorism Act, 18 U.S.C. § 2333 (2012) [hereinafter ATA].

5 FSIA, supra note 3, § 1604.

6 The noncommercial tort exception provides: “A foreign state shall not be immune . . . in any case . . . in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment . . . .” Id. § 1605(a)(5). Additional exceptions include those based on waivers, commercial activities, and State Department designations of state-sponsored terrorism. See id. § 1605(a)–(d), § 1605A.

7 See, e.g., In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 109, 117 (2d. Cir. 2013).

8 Id.

9 Section 3, in pertinent part, reads: “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 of where the tortious act or acts of the foreign state occurred.” See JASTA, supra note 1, § 3(b).

10 Id. § 3(d).

11 Id. § 5(c).

12 Id. § 5(c)(2)(B)(ii).

13 ATA, supra note 4. Section 2333(a) provides: “Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains . . . .” Id.

14 See JASTA, supra note 1, § 4. JASTA does not expand the secondary-liability cause of action to foreign states. See id. § 4(d)(1) (limiting secondary liability to “persons” as defined in 1 U.S.C. § 1 (2012)).

15 Id. § 4.

16 See, e.g., Rothstein v. UBS AG, 708 F.3d 82, 98 (2d Cir. 2013); Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685 (7th Cir. 2008).

17 JASTA, supra note 1, § 7.

18 The bill, S. 2040, was cosponsored by Sens. Chuck Schumer, D-New York, and John Cornyn, R-Tex. See JASTA, supra note 1.

19 Nat'l Comm'n on Terrorist Attacks upon the U.S., The 9/11 Commission Report 171 (2004), at http://www.9-11commission.gov/report/911Report.pdf. See also FBI 9/11 Review Comm'n, The FBI: Protecting the Homeland in the 21st Century 101 (2015) (finding that “there is no new information to date that would alter the original findings of the 9/11 Commission regarding the individuals responsible for the 9/11 attacks or for supporting those responsible for the attacks”).

20 White House Press Release, Press Briefing by Press Secretary Josh Earnest (Apr. 18, 2016), at https://www.whitehouse.gov/the-press-office/2016/04/18/press-briefing-press-secretary-josh-earnest-4182016 [hereinafter Apr. 18 Press Briefing].

21 Id.

22 See White House Press Release, Veto Message from the President – S.2040 (Sept. 23, 2016), at https://www.whitehouse.gov/the-press-office/2016/09/23/veto-message-president-s2040 (“Indeed, reciprocity plays a substantial role in foreign relations, and numerous other countries already have laws that allow for the adjustment of a foreign state's immunities based on the treatment their governments receive in the courts of the other state.”) [hereinafter Obama Veto Message].

23 Letter from Barack Obama, President of the United States, to Harry Reid, Minority Leader, U.S. Senate, at https://docs.google.com/viewerng/viewer?url= http://big.assets.huffingtonpost.com/POTUSReidJASTA.pdf [hereinafter Obama Letter].

24 Id.

25 Id.

26 JASTA, supra note 1, §§ 1605A(a)(2), (h)(6). Currently, only Iran, Sudan, and Syria are designated as “state sponsors of terrorism.” U.S. Dep't of State, State Sponsors of Terrorism, at http://www.state.gov/j/ct/list/c14151.htm (last visited Oct. 30, 2016).

27 See White House Press Release, Press Briefing by Press Secretary Josh Earnest (Sept. 23, 2016), at https:// www.whitehouse.gov/the-press-office/2016/09/23/press-briefing-press-secretary-josh-earnest-9232016 [hereinafter Sept. 23 Press Briefing]; Obama Letter, supra note 23.

28 Obama Veto Message, supra note 22.

29 Id.

30 Letter from the EU Delegation to the U.S. Dep't of State (Sept. 19, 2016), at https://www.washingtonpost.com/news/powerpost/wp-content/uploads/sites/47/2016/09/EU-on-JASTA.pdf [hereinafter EU Letter].

31 See, e.g., Julie Hirschfeld Davis, Fight Between Saudis and 9/11 Families Escalates in Washington, N.Y. Times (Sept. 21, 2016), at http://www.nytimes.com/2016/09/22/us/politics/9-11-saudi-bill-veto-obama.html; White House Press Release, Press Briefing by Press Secretary Josh Earnest (Sept. 26, 2016), at https://www.whitehouse.gov/the-press-office/2016/09/26/press-briefing-press-secretary-josh-earnest-92616-0; Mark Mazzetti, Saudi Arabia Warns of Economic Fallout if Congress Passes 9/11 Bill, N.Y. Times (Apr. 15, 2016), at http://www.nytimes.com/2016/04/16/world/middleeast/saudi-arabia-warns-ofeconomic-fallout-if-congress-passes-9-11-bill.html.

32 Open Letter from William S. Cohen et al. to the President of the United States and Members of Congress, at http://www.al-monitor.com/pulse/files/live/sites/almonitor/files/documents/2016/letter_obama_congress_jasta.pdf. The letter was signed by a number of former national security officers, including William S. Cohen (former Secretary of Defense to President Clinton), Michael Mukasey (former Attorney General to President George W. Bush), and Rand Beers (former Homeland Security Adviser to President Obama). Id.

33 The Senate voted 97–1 to override, and the House voted 348–77. See JASTA, supra note 1.

34 Daniella Diaz, Exclusive: Obama Says Congress Made a “Political Vote” Overriding His Veto of Saudi Lawsuit Bill, CNN (Sept. 28, 2016), at http://www.cnn.com/2016/09/28/politics/obama-override-veto-911-bill-cnn-presidential-town-hall.

35 See Complaint, Desimone v. Kingdom of Saudi Arabia, No. 1:16-cv-01944-ABJ (D.D.C. Sept. 30, 2016).

36 Kingdom of Saudi Arabia Ministry of Foreign Affairs Press Release, Official at Ministry of Foreign Affairs: JASTA Great Concern to Community of Nations Objecting to Erosion of Principle of Sovereign Immunity (Sept. 30, 2016), at http://www.mofa.gov.sa/sites/mofaen/ServicesAndInformation/news/MinistryNews/Pages/ArticleID201693001814440.aspx.

37 Ministry of Foreign Affairs of the Russ. Fed'n Press Release, Comment by the Information and Press Department on the US Passing the Justice Against Sponsors of Terrorism Act with Extraterritorial Jurisdiction (Sept. 30, 2016), at http://www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/2479122.

38 U.A.E. Ministry of Foreign Affairs & Int'l Cooperation Press Release, UAE Voices Concerns Regarding US Congress Adoption of Justice Against Sponsors of Terrorism Act (Sept. 12, 2016), at https:// www.mofa.gov.ae/EN/MediaCenter/News/Pages/12916-UAE.aspx.

39 See, e.g., S. 2040, Justice Against Sponsors of Terrorism Act: Hearing on S. 2040 Before the Subcomm. on the Constitution & Civil Justice, 114th Cong. (July 14, 2016) (statement of Paul B. Stephan), at https://judiciary.house.gov/wp-content/uploads/2016/07/Stephan-Testimony-07142016.pdf [hereinafter JASTA Testimony]; Curtis Bradley & Jack Goldsmith, Opinion, Don't Let Americans Sue Saudi Arabia, N.Y. Times (Apr. 22, 2016), at http://www.nytimes.com/2016/04/22/opinion/dont-let-americans-sue-saudi-arabia.html (“A nation's immunity from lawsuits in the courts of another nation is a fundamental tenet of international law. This tenet is based on the idea that equal sovereigns should not use their courts to sit in judgment of one another. Many nations have tacitly agreed to limit immunity in specified contexts, such as when they engage in certain commercial activities. But apart from those exceptions (or where a binding treaty or Security Council resolution otherwise dictates), international law continues to guarantee immunity, even for alleged egregious crimes.”).

40 See William Dodge, Does JASTA Violate International Law?, Just Security (Sept. 30, 2016), at https://www.justsecurity.org/33325/jasta-violate-international-law-2 (noting that Article 12 of the UN Convention on Jurisdictional Immunities of States and Their Properties—which informs customary international law insofar as it evidences state practice and opinio juris—excludes sovereign immunity for proceedings related to death, personal injury or property damage that is, inter alia, attributable to another state and caused by an “act or omission [of that state, which] occurred in whole or in part in the territory” of the forum state (emphasis added)). But see Stewart, David P., The UN Convention on Jurisdictional Immunities of States and Their Property , 99 AJIL 194, 206 (2005)CrossRefGoogle Scholar (stating that “it would read far too much into the consensus adoption of the convention to assert that the adoption of such exceptions in the convention as adopted renders unlawful under customary international law existing statutory provisions such as those in the Foreign Sovereign Immunities Act. . . . The issues remain controversial.”).

41 See Sept. 23 Press Briefing, supra note 27.

42 Id.

43 Id.

44 See White House Press Release, Press Briefing by Press Secretary Josh Earnest (Sept. 27, 2016), at https:// www.whitehouse.gov/the-press-office/2016/09/27/press-briefing-press-secretary-josh-earnest-92716; White House Press Release, Press Briefing by Press Secretary Josh Earnest (Oct. 4, 2016), at https://www.whitehouse.gov/the-press-office/2016/10/04/press-briefing-press-secretary-josh-earnest-1042016; Apr. 18 Press Briefing, supra note 20.

45 According to media reports, Senate Majority Leader Mitch McConnell (R-Ky.) said that “[i]t appears as if there may be some unintended ramifications of [JASTA],” and Speaker Paul Ryan (R-Wis.) said “I would like to think there may be some work to be done to protect our service members overseas from any kind of legal ensnarement that [could] occur . . . while still protecting the rights of the 9/11 victims . . . .” Seung Min Kim & Burgess Everett, McConnell: Saudi 9/11 Law Could Have “Unintended Ramifications,” POLITICO (Sept. 29, 2016), at http://www.politico.com/story/2016/09/mitch-mcconnell-saudi-9-11-bill-228903.

46 Letter from Twenty-Eight Senators to John Cornyn, U.S. Senate, and Charles E. Schumer, U.S. Senate (Sept. 28, 2016), at http://www.corker.senate.gov/public/_cache/files/d8eee900-5ffc-4204-a4f1-8072c104d9c2/Bipartisan%20Senate%20JASTA%20Letter%20092816.pdf. See also Dara Lind & Dylan Matthews, 97 Senators Overrode an Obama Veto. Then 28 Sent an “Oops” Letter, Vox (Sept. 28, 2016), at http://www.vox.com/2016/9/28/13100314/vox-sentences-congress-veto-obama.

47 White House Press Release, Press Briefing by Press Secretary Josh Earnest and Secretary of Education King (Sept. 29, 2016), at https://www.whitehouse.gov/the-press-office/2016/09/29/press-briefing-press-secretary-josh-earnest-and-secretary-education-king.

48 U.S. Dep't of State, Daily Press Briefing (Oct. 21, 2016), at http://www.state.gov/r/pa/prs/dpb/2016/10/263421.htm (“Well, I think what the Secretary was referring to was that we're going to continue to speak with members of Congress about our concerns over the law. Look, you're right; it's the law of the land, and we understand that and we obey the law and we will obey this law. There's no dispute about that. But we still have concerns about it and many of our partners, some of whom are even in places like Europe, some of our closest allies, have lingering concerns about this. And so we're going to continue to engage and discuss the law and its implementation going forward with members of Congress. But other than that, I don't have any more specifics to offer.”).

49 See 162 Cong. Rec. S6611 (daily ed. Nov. 30, 2016).

50 Id. (Statements of Sens. Graham and McCain).

51 Id. (Statement of Sen. Graham).

52 U.S. Dep't of State, Daily Press Briefing (Dec. 1, 2016), at http://www.state.gov/r/pa/prs/dpb/2016/12/264717.htm; White House Press Release, Press Briefing by Press Secretary Josh Earnest (Dec. 1, 2016), at http://www.whitehouse.gov/the-press-office/2016/12/01/press-briefing-press-secretary-josh-earnest-1212016.

53 U.S. Dep't of State, Joint Press Availability with Saudi Arabian Foreign Minister Adel al-Jubeir (Dec. 18, 2016), at http://www.state.gov/secretary/remarks/2016/12/265750.htm.

54 Mark Hensch, Trump Slams Obama for ‘Shameful’ 9/11 Bill Veto, TheHill.com (Sept. 23, 2016), at http://thehill.com/blogs/ballot-box/presidential-races/297558-trump-rips-obama-for-shameful-9-11-veto.

55 See 162 Cong. Rec. S6611, supra note 49 (Statements of Sens. Graham and McCain).