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. (1) 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. (2) 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.
JASTA amends two statutes--the Foreign Sovereign Immunities Act (FSIA) (3) and the Anti-Terrorism Act (ATA) (4)--to effectively overrule judicial constructions of those statutes that had foreclosed lawsuits against Saudi Arabia for its alleged support of the 9/11 attacks.
The FSIA establishes that "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States." (5) It also carves out a number of exceptions to such sovereign immunity, including an exception for noncommercial torts. (6) This exception allows an American to sue a foreign state for damages if he or she is injured in the United States as the result of the tortious conduct of a foreign government, its officials, or its employees. In litigation against Saudi Arabia related to the 9/11 attacks, U.S. courts had interpreted this exception narrowly to apply only to tortious conduct occurring entirely within the United States. (7) Under this interpretation, a foreign state that commits a tortious act resulting in injury or damage in the United States remains immune so long as part of the tortious conduct occurred outside the United States. (8)
JASTA expands what is known as the "terrorism exception" to the FSIA to implicitly overrule this judicial construction when it comes to acts of terrorism. Section 3 of the Act creates a cause of action for civil claims against foreign states (and their officials, employees, and agents) for committing torts anywhere in the world that contribute to a terrorist attack carried out on U.S. soil. (9) JASTA thus removes the geographic limitation on tort liability established by the courts, and allows Americans to sue foreign states for tortious conduct occurring abroad that causes injury or damage in the United States as the result of international terrorism. JASTA does not, however, authorize lawsuits against foreign states for acts of war or for torts based on omissions or negligence. (10)
Section 5 of JASTA establishes a mechanism by which the U.S. government can seek a stay of proceedings brought against a foreign state under Section 3, referenced above. "[I]f the Secretary of State certifies that the United States is engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state," the court may stay proceedings against that defendant for up to 180 days. (11) Once a stay is granted, the attorney general may request 180-day extensions, which the court must grant if the secretary of state recertifies the United States' engagement in such "good faith discussions." (12) JASTA does not limit the number of such extensions.
The other statute amended by JASTA--the ATA--establishes a cause of action for U.S. nationals to obtain treble damages from those responsible for injuries arising out of an act of international terrorism. (13) Section 4 of JASTA adds a new provision to the ATA that explicitly allows ATA suits against individuals and entities under theories of secondary liability. (14) Specifically, it recognizes liability for aiding and abetting, or conspiring to commit, an act of international terrorism that is planned, authorized, or executed by a designated foreign terrorist organization. (15) This provision in effect overrules previous judicial decisions holding that the ATA does not encompass secondary liability. (16) JASTA applies retroactively to actions involving injuries dating back to September 11, 2001. (17)
Both Democratic and Republican lawmakers sponsored JASTA. (18) The legislation reflects bipartisan sympathy for the families of 9/11 victims who want to try Saudi Arabia in U.S. courts--and who are unsatisfied by the conclusion of the 9/11 Commission, which found "no evidence that the Saudi government as an institution or senior Saudi officials individually funded [Al Qaeda]." (19)
Despite widespread sympathy for the 9/11 victims and their families, the Obama administration opposed the measure, expressing concern about the possibility of unintended consequences.
Prior to the passage of the bill, the White House consistently objected to JASTA due to its dilution of foreign sovereign immunity and its global implications for U.S. economic, diplomatic, and national security interests. "The whole notion of sovereign immunity is at stake," said White House Press Secretary Josh Earnest. (20) "[S]overeign immunity is something that protects the ability of the United States to work closely with countries all around the world. And walking back that principle would put the United States, our taxpayers and our service members and diplomats at risk." (21)
One of the administration's main concerns was that other countries would enact reciprocal measures and open their courts to similar claims against the United States and U.S. officials. (22) As noted by President Obama in a letter to Senate Minority Leader Harry Reid, such lawsuits could have far-reaching repercussions: they could implicate Americans based on mere accusations of conduct violating foreign laws; they could lead to time-consuming discovery demands for sensitive intelligence information; and they could result in the attachment of U.S. government assets...