When the House and Senate voted to reject President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA), it became the first successful override of a presidential veto since Obama took office and only the eighth override of a veto since 1989. JASTA effectively allows lawsuits against foreign sponsors of terrorism. Many hope Americans are now free to sue Saudi Arabia in particular. In recent days several relatives of 9/11 victims have stepped forward promising to bring suit against Saudi Arabia.
Despite strong warnings from foreign policy experts that JASTA would damage bilateral relations, Congress overwhelmingly supported the law. Most Congressmen feared having to defend a “no” vote in an election year when such a vote could be construed as supporting terrorists over American victims. However, the damaging ramifications of JASTA threaten to undermine foreign relations, core principles of international law, and American justice abroad.
A core tenet of international law, stretching back generations, is that a nation is immune from lawsuits in courts of another nation; a country should not use its own courts to litigate against other countries. Occasionally narrow exceptions arise in commercial or treaty contexts, but in virtually every instance nations grant immunity to each other in their own courts, even for relatively heinous crimes. Neutral, international bodies provide superior venues for bilateral disputes.
Selfishly, this long-standing international principle benefits the United States. Americans constantly conduct foreign activity — diplomatic, economic, and military — and JASTA would be subject the United States to dramatically more lawsuits in foreign courts than other nations. Our relatively deep pockets also make the United States a particularly attractive target.
With the passage of JASTA, other nations will feel liberated to set aside the international immunity principle and target lawsuits at America with renewed vigor. Americans and their representatives who supported JASTA may think the U.S. has nothing to fear; it sponsors no terrorism abroad so it should suffer no foreign lawsuits. But that determination will be made by nations who view things quite differently than we do.
Recently a group called the Arab Project in Iraq asked the country’s parliament to bring a lawsuit against the U.S. over the 2003 invasion. Turkey’s President Recep Tayyip Erdogan blames the U.S. for harboring the cleric he deems responsible for the country’s recent coup and he’s now given tacit support to the coup’s victims who seek U.S. compensation for their injuries. These lawsuits are already moving forward thanks to JASTA and it’s easy to imagine other retaliatory suits. Imagine, for instance, charges by Palestinian allies that the U.S. sponsors terror through its financial and military support of Israel. Or, perhaps, that the U.S. sponsors terror through its support of Syrian rebels.
Should these foreign litigants win judgments against the U.S. — based on their own foreign domestic laws as applied by their own foreign courts — they would look to assets of the U.S. held abroad to satisfy those judgments. In short, the United States has reciprocal self-interest in upholding international immunity.
Admittedly, international immunity among nations has its exceptions. Americans can bring a personal injury lawsuit against a foreign government if the wrong that caused the injury occurs in the United States and if the act does not involve sensitive policy decisions.
Moreover, in a rare break with international law, the Supreme Court recently allowed a lawsuit against Iran on the basis of state-sponsored terrorism. Yet this exception only applies when the President, taking into account important foreign policy concerns, labels the nation a state sponsor of terrorism. Notably, that does not include Saudi Arabia.
JASTA diminishes the President’s proper, critical role in foreign policy and replaces it with a patchwork of different courts reaching different conclusions about individual foreign governments and their role in terrorism. The legal process will be based on allegations by private litigants without the benefit of government intelligence and without taking into account long-term foreign policy strategic interests. These private lawsuits are a terrible forum, both here and abroad, for resolving complex foreign policy issues. International diplomacy and international organizations provide a far superior avenue to achieving worthwhile resolution.
The 9/11 attacks and other acts of terrorism since then deserve a strong and forceful American response, but it is a foolish and dangerous mistake to believe that JASTA will best address the country’s past losses or protect American interests in the future.
Joshua Claybourn is an attorney in Evansville, Indiana.