The Justice Against Sponsors of Terrorism Act (JASTA), which became law in September 2016, is a popular bipartisan bill that purports to hold those responsible for the 9/11 terror attacks accountable. But bipartisan support for a bill during an election year can create populist legislation without regard for its efficacy or consequences. JASTA is a case in point: a hasty reaction to real concerns that will do more harm than good. Not only does JASTA provide an inadequate solution to those who file claims under it, but it also perturbs one of the fundamentals of international law, risking legal retaliation against the United States. The 115th Congress should revisit it.
Congress introduced JASTA in September 2015 to provide relief for families of the victims of the 9/11 terror attacks. Then-President Barack Obama chose to veto the bill after it was passed in late 2016, warning that JASTA “would be detrimental to US national interests.” A few days later, Congress voted to override the veto and JASTA became law.
Among other provisions, JASTA amends the Foreign Sovereign Immunities Act (FSIA), creating a new exception under which foreign sovereigns can be brought to US courts to answer claims arising from an act of international terrorism in the United States, and a tortuous act on the part of the foreign state or its officials that may have occurred anywhere.
Before JASTA, the sovereign immunity of foreign states in terrorism-related cases could only be revoked if the foreign state was designated a “state sponsor of terrorism” (a list which now includes only Iran, Sudan, and Syria) or under the “non-commercial tort” exception of the FSIA. Courts have interpreted the “non-commercial tort” exception to require that the entire tort or omission take place in the United States. So families of 9/11 victims were unable to bring Saudi entities or officials into US courts under the pre-existing exceptions, and JASTA provides a loophole allowing individuals to sue potentially liable entities in the United States.
A precursor to JASTA was first introduced in October 2009, and it is no coincidence that, just like JASTA, the bill ultimately passed during a presidential election. And that it passed a deeply divided Senate by a vote of 97–1 is telling: there is simply no upside—for either party—to oppose a bill that claims to provide recourse for the families of 9/11 victims. But although popular and well-intended, JASTA has serious problems.
First, even if families of 9/11 victims were able to obtain a judgment against a foreign state or official under JASTA, it is unclear how they would actually recover damages. The exceptions to immunity are different than the exceptions to attachment of a foreign state’s assets in the United States. In other words, even if a court did find a foreign entity liable, how is that court supposed to make them pay? The law leaves that question unanswered.
Second, by expanding exceptions to sovereign immunity, JASTA weakens a core principle of international law—and makes it look like the United States ignores the legal guidelines it often helps create whenever it suits its purpose. In fact, the European Union’s delegation to the United States already expressed concerns about the law’s effect on sovereign immunity. Although there is now no threat of reciprocity from the European Union, the delegation warned of repercussions from other countries. Given that the United States has a history of controversial dealings with such countries as Afghanistan and Pakistan, foreign litigation against US entities following measures similar to JASTA is a real concern. In fact, such claims are already on the rise and likely to increase further.
Third, JASTA might deter investment from foreign states. Even though the exceptions to attachment of assets are different than those for immunity meaning that even if the foreign state can be sued in a US court, the plaintiffs still have to overcome additional hurdles to actually get any compensation from the defendant—foreign states may wish to avoid the trouble altogether. When considering investments within US jurisdiction, the threat of potentially decades-long legal battles is hardly an incentive.
A populist political boondoggle, JASTA is more trouble than it’s worth. Without the pressure of an election, the new Congress should revisit this bill, fix it, and find new ways to hold those responsible for the 9/11 terror attacks accountable without damaging the principle of sovereign immunity.
Merve Demirel earned her JD from American University in 2012. She has a background in foreign policy and international law. Merve is the International Law & Governance Fellow at Young Professionals in Foreign Policy (YPFP).