JASTA: Irresponsible And Dangerous

NEW YORK, NY - SEPTEMBER 19:  (AFP OUT) U.S. President Barack Obama holds a press conference about the recent bombings in the
NEW YORK, NY - SEPTEMBER 19: (AFP OUT) U.S. President Barack Obama holds a press conference about the recent bombings in the New York region at the Lotte New York Palace Hotel on September 19, 2016 in New York City. On the evening of September 17, 2016, a bomb placed in a dumpster exploded in lower Manhattan injuring at least 29 people. (Photo by Anthony Behar-Pool/Getty Images)

Congress' vote to override President Obama's veto of the Justice Against Sponsors of Terrorism Act was both embarrassing and irresponsible. The bill, known as JASTA, amends the Foreign Sovereign Immunities Act allowing U.S. citizens to sue foreign governments and entities for damages resulting from acts of terrorism committed on U.S. soil on or after September 11, 2001.

Clearly directed at the Government of Saudi Arabia, JASTA has caused enormous concern and not only in that country. In his veto statement, President Obama cited three reasons for his strong opposition to the bill.

In the first place, JASTA takes the authority to determine whether a state has become a sponsor of terrorism away from the federal government and places it in the hands of local courts which the President noted could make "consequential decisions... based upon incomplete information... [about] the culpability of individual foreign governments and their role in terrorist activities against the United States." This, he argued, is "neither an effective nor a coordinated way for us to respond to indications that a foreign government might have been behind a terrorist attack".  

The president went on to note that the U.S. takes its responsibility seriously and only designates a foreign government of being a state sponsor of terrorism after "national security, foreign policy, and intelligence professionals carefully review all available information." The implication of his argument is that it is dangerous to take this serious process out of the hands of the professionals and turn it over to tort lawyers, juries, and local judges.

The president's second concern was that in passing this bill, Congress upends the long standing principle of foreign sovereign immunity. This, he warned, would open the door for other governments to pass similar legislation that would "allow their domestic courts" to hold the U.S. liable for actions committed by U.S. personnel or "members of an armed group that received U.S. assistance...or abuses committed by police units that received U.S. training." This would put the assets of the United States and the foreign holdings of American businesses at risk.
Finally, the president noted that JASTA would "create complications in our relationships with even our closest partners" endangering our nation's ability to seek "their cooperation on key national security issues."

In overriding the strong case the president made in issuing his veto, Congress acted in a manner that was irresponsible, dangerous and damaging to the national interests of the United States. Most disturbing was the fact that, on the day of the vote, 28 Senators released a letter in which they acknowledged that the bill was flawed, pledging to "fix" it in the next term. They understood that they were wrong and still voted to override the veto.

The problem is that damage has been done that no "fix" will cure. Not unlike the Dubai Ports controversy of a decade ago, JASTA has shaken Arab trust in the United States putting at risk business partnerships and national security relationships. I have already heard from Arab businessmen who are saying that they are reconsidering investments in and partnerships with American businesses. This happened after Dubai Ports and it will happen once again in the aftermath of JASTA.

While Members of Congress will argue that they passed JASTA out of concern for the families of the victims of the 9/11 terror attacks, their motives were simply not that pure. More to the point, I suspect that they were motivated by crass opportunism: exploitation of the continued pain of the families of 9/11 victims, the pervasiveness of anti-Arab sentiment (with Saudi Arabia being an especially soft target), and electoral considerations.

In voting to override Obama's veto, Congress ignored the fact that there is no evidence that the government of Saudi Arabia was responsible for the 9/11 terrorist attacks. As the White House spokesperson made clear after the vote, the U.S. 9/11 Commission Report "concluded that they were not able to find any evidence that the Saudi government as an institution or that any senior Saudi government official were knowingly supportive of the 9/11 plotters."   

That being the case and that being known by Members of Congress, one might reasonably ask why they wouldn't have been honest with the families of the victims -- and their lawyers who were pressing them to act -- and warn them of the dangers and the ultimate disappointment of moving down this path? Was it because they lacked political courage or was it because in an election year they took the more expedient path of passing JASTA?  

Here's what might happen now. The tort lawyers who "represent" the families will try to shop around for a friendly jurisdiction in which to file their case. They will hope to make their case before a sympathetic jury, playing on their sympathies, their fears, and their prejudices. Any decision will be appealed and at some level will be overturned. Along the way, both the Saudi government and the families will pay millions in legal fees; more damage will be done to the U.S.-Arab relationship; and, in the end, no one will benefit except the lawyers, themselves. The problem is that the Members of Congress who created this heartbreaking mess for the families, the United States, and the U.S.-Arab relationship will most likely not be held accountable or feel responsible for what they have done.    

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