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A memorial to the September 11th terrorist attacks

On September 11, 2001, Stephanie DeSimone’s life changed forever. A joyful expectant mother, DeSimone became a pregnant widow when her Navy commander husband was killed in the horrific terror attacks that ravaged the United States. Now, she is among a group of U.S. citizens filing lawsuits against the Kingdom of Saudi Arabia for its alleged role in the 9/11 terror attacks. Lawsuits brought by private citizens against foreign nations allegedly sponsoring terrorism, while difficult to execute, harder still to successfully settle, and potentially harmful to U.S. interests, are now permissible under the newly enacted Justice Against Sponsors of Terrorism Act.

This contentious piece of legislation was sponsored by Senator John Cornyn (R-Tex.), in order to “use every tool available to stop the financing of terrorism.” Cornyn argues that “victims and families who have lost loved ones in terror attacks deserve the opportunity to seek justice … we are one step closer to empowering victims with the ability to hold those who helped perpetrate these horrific acts responsible.” The bill passed both the House and Senate, enjoying rare bipartisan support, but was promptly vetoed by President Obama, who expressed concerns that allowing citizens to sue foreign countries could compromise foreign policy, and that “enacting JASTA into law … would neither protect Americans from terrorist attacks nor improve the effectiveness of our response to such attacks.”

Incredibly, Congress overrode the veto—a first during Obama’s tenure—with a landslide vote of 97-1 in the Senate, and 348-77 in the House, and the bill passed into law. Almost immediately, leaders from both parties who voted the measure into law expressed reservations about the potential consequences of altering the doctrine of sovereign immunity, a move that could open the United States to lawsuits from foreign citizens. But despite the concerns, JASTA is now the law of the land.

Interpreting Foreign Sovereignty and Immunity

Though JASTA is new legislation, the notion of citizens suing foreign states is not without precedent. This legal field is governed by the Foreign Sovereign Immunities Act of 1976, which standardizes international law and determines whether a suit is permissible. Countries generally enjoy immunity from lawsuits brought by U.S. citizens; that said, there are several exceptions, most notably for suits concerning “commercial activity,” and for incidences of personal injury or death caused by torture, extrajudicial killing, or other extreme acts.

JASTA is simply an extension of FSIA that provides “persons and entities injured as a result of terrorist attacks committed within the United States with full access to the court system in order to pursue civil claims against persons, entities, or countries that have knowingly or recklessly provided material support or resources, directly or indirectly, to the persons or organizations responsible for their injuries.” JASTA does not decide any lawsuits or award damages, but merely codifies the sponsoring of terrorism as an exception to sovereign immunity. Attorney Jim Kreindler, who has been working in this area and filed similar suits since the 9/11 terrorist attacks, told the HPR that the passage of JASTA represents “a milestone and a turning point in the case … JASTA confirms what we’ve been saying for many years—that Saudi Arabia, or any country that sponsors a terror attack in the United States, is sueable in the United States”.

An Uphill Battle 

Under FSIA, citizens have brought numerous suits against all manner of foreign officials and governments. Decisions on whether to hear these lawsuits are generally complex, mired in technicality, and plagued by numerous appeals. Even when the cases are heard, it is uncertain whether the foreign nation will acknowledge the U.S. court’s jurisdiction. In Republic of Argentina v. NML Capital, a group of venture capitalists sued Argentina when the nation defaulted on its debts in 2001. After a cycle of numerous appeals, the Supreme Court of the United States ruled that NML Capital could indeed sue, because this case concerned “commercial activity.”

Following the ruling, a U.S. court injunction blocked other transactions with Argentina, pending its resolution of the debt issue: subpoenas for discovery of assets were served, and numerous other hedge funds brought similar suits. Eventually, the Argentine government sought recourse at The Hague, claiming that its financial infrastructure was being destroyed. The United Nations decided in favor of Argentina, and after 15 years of litigation, the Argentine government finally reached a deal with the funds to make the appropriate payments and end injunctions on Argentine transactions in February 2016. This complex legal dealing, lasting well over a decade, is representative of the challenges that private citizens face in suing foreign nations.

It is entirely likely that suits against Saudi Arabia will face similar technical and procedural obstacles, despite the passage of JASTA. Dustin Tingley, a professor of government at Harvard, told the HPR that it is important to recognize that “you can have Congress pass a law,” but then “there’s the actual enforcement of it. It will be very interesting to see the extent to which [JASTA] is actually enforced in practice, rather than in principle.” In DeSimone’s case, this distinction may make all the difference.

Potential Damages

Despite the uphill battle a plaintiff would face in suing Saudi Arabia, many are still concerned by the doors JASTA opens. For Tingley, it is important to think “not just with respect to the particular case at hand, but to the types of precedents this could set for other cases,” such as potentially allowing other countries to sue the United States. The White House acknowledges this same concern, and President Obama noted in his veto that “the United States has a larger international presence, by far, than any other country, and sovereign immunity principles protect our Nation and its Armed Forces, officials, and assistance professionals, from foreign court proceedings.”

There are also significant concerns that current U.S.-Saudi anti-terrorism cooperation, already precarious, could be harmed by JASTA’s passing. Notably, during the debate over the law, Saudi Arabia threatened to retaliate by selling off its $750 billion in U.S. assets should the measure pass. While so far, anti-terrorism coordination between the two nations has not been undermined and Saudi Arabia has refrained from dumping its U.S. assets, JASTA passed less than two months ago—only time will tell if these concerns will escalate into concrete problems.

Supporters of JASTA believe that these apprehensions about U.S.-Saudi relations are overblown. In an email correspondence with the HPR, the Office of Senator John Cornyn wrote that “this legislation is very narrowly tailored to minimize the impact on foreign states.” Kreindler agreed, stating that the opposition to JASTA is founded on lies, put forth by Saudi Arabia and President Obama to avoid acknowledging that the United States has, thus far, given Saudi Arabia “a free pass for murdering 3000 people.”

It is important to note that JASTA includes one final hedge against negative consequences. The executive department can halt a lawsuit by certifying to the courts that they are in good-faith negotiations with the defendant to address the concern. This executive ability is actually more powerful than under FSIA, and makes it likely that any truly catastrophic foreign policy disasters can be averted.

An Uncertain Future

Foreign policy consequences aside, it is an open question whether allowing these suits is productive, constructive, or wise. Stephanie DeSimone’s case alleges that “absent the support provided by the Kingdom, al Qaeda would not have possessed the capacity to conceive, plan, and execute the September 11th attacks.” Given that the United States’ own 9/11 Commission has denied Saudi involvement in the 9/11 attacks, it appears unlikely at first glance that court proceedings would change this finding. That said, DeSimone’s case presents new evidence relevant to the case, including affidavits from U.S. military and government officials.

Now that DeSimone has brought suit, her case will join others working their way through the U.S. court system. In the event that the plaintiffs win their suit, there are several scenarios that could play out. Saudi Arabia might agree to pay damages, but they could also challenge the decision within the U.S. court system itself by mounting an appeal or fighting the legitimacy of the suit and claiming immunity. Clearly, the outcome of DeSimone’s suit is difficult to predict, not clearly enshrined in legal precedent, and hard to evaluate without all the facts. That said, regardless of the truth in DeSimone’s claim, she has surmounted the first hurdle by winning the right to bring suit against Saudi Arabia—a right that JASTA has granted, for better or worse.

Image Source: Flickr/Anthony Quintano

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