President Obama has said he will veto the Justice Against Sponsors of Terrorism Act, a bill that purports to make it easier for 9/11 victims and their families to sue Saudi Arabia in US federal court for its alleged role in indirectly financing the attacks.
He would be absolutely right to do so. Reasonable people can disagree over whether giving the 9/11 victims their day in court justifies the diplomatic and foreign relations problems this law would provoke. (In fact, the two of us have disagreed on this issue in the past.) What should be clear to everyone, though, is that the bill Congress actually enacted last week provides virtually no benefits to justify its substantial costs.
JASTA was co-sponsored by Sens. Chuck Schumer, D-New York, and John Cornyn, R-Texas. It was originally designed to override a series of court rulings that had effectively slammed the door to all lawsuits by the families and estates of 9/11 victims against the Saudi government, senior Saudi officials, and several private entities — all based on those defendants’ alleged role in helping to finance al Qaeda’s operations in the run-up to 9/11.
Thus, the original version of JASTA would have amended a pair of federal laws to allow suits even (1) when most of the allegedly wrongful conduct took place overseas; (2) against those who merely aided and abetted acts of terrorism (in addition to those who were directly responsible); and (3) when the defendant was a foreign sovereign otherwise entitled to immunity.
The original version of JASTA provoked strong objections from the Obama administration and a bipartisan array of former senior government officials. Some argued the waiver of Saudi Arabia’s sovereign immunity would violate international law. Others focused on the impact the bill might have domestically if Saudi Arabia followed through on its threats to remove upward of $75 billion in assets from the United States.
And many focused on the dangerous precedent JASTA would set for other countries that might then seek to override the United States’ sovereign immunity in their own courts.
The question JASTA appeared to raise was whether those costs were outweighed by its benefits, i.e., providing 9/11 victims and their families with a day in court, and ensuring that their claims would be resolved on the merits.
But just before the Senate passed JASTA in May, one of its co-sponsors, Cornyn, slipped in a last-minute substitute version of the bill, which included a number of new, labyrinthine provisions. This is the version the Senate approved in May and the House passed Friday.
To make a long story short, the Cornyn substitute significantly altered the original draft and added obstacles to the 9/11 victims and families’ claims. Gone from the bill were provisions that would have (1) given US courts more authority to entertain claims against individual or private Saudi defendants situated overseas; (2) allowed claims against foreign sovereigns based solely on indirect support for 9/11; and (3) made it possible for plaintiffs to actually collect any damages they were awarded as a result of such claims.
The Cornyn substitute also creates a procedure by which the federal government could seek a potentially perpetual delay of claims under the bill, so long as the State Department certified it was “engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state.”
There’s more, but the upshot is that, under the Cornyn substitute, the 9/11 victims and families’ claims will never get anywhere: The government might be able to place such suits on permanent hold; even if it fails, the plaintiffs have to show Saudi Arabia was directly responsible for the 9/11 attacks to prevail; and even if they can, there’s no mechanism to compel the Saudi government to pay any damages.
The Cornyn substitute is thus the worst of all worlds — its partial stripping of sovereign immunity and its unmistakable symbolism to that effect will still likely cause many of the diplomatic and foreign relations harms described above, but its tweaks to the original bill will also almost certainly deny to the plaintiffs the very remedies JASTA was ostensibly intended to provide.
If the bill becomes law, it will spark years and years of what is sure to be inconclusive litigation over the possible Saudi role in 9/11, with no likely resolution for the attacks’ victims and their families.
It’s hard to vote against a bill that’s packaged as being for the benefit of the 9/11 victims and their families, all the more so alongside the 15th anniversary of the attacks. But the bill that Congress passed last week represents both a symbolic affront to Saudi Arabia (and other nations) and a toothless vehicle for any actual recovery against them. A veto by President Obama is therefore not a slight to the 9/11 victims and their families. Congress already slighted them when it denuded their bill and then passed it.
