Consortium Against Terrorist Finance Apr. 27, 2017, 1:19pm

The Justice Against Sponsors of Terrorism Act (JASTA) became law on September 28, 2016 after years of efforts to persuade Congress to enact the bill and a bitter power struggle between Congress and the White House. The law, which was vetoed by the Obama administration before ultimately being enacted when the veto was overridden by the Senate five days later, has allowed countless individuals and victims of terrorist attacks to sue a foreign state for its support of terrorism even if the State Department does not consider the country to be a state sponsor of terrorism. With the arrival of a new U.S. administration keen on fulfilling its campaign promises, the enormously controversial law has entered into a new era of uncertainty characterized by its international implications and by continued lobbying efforts to modify the law.

Although Saudi Arabia is never mentioned in the text of the law, discussions on JASTA have focused almost entirely on the Kingdom. Most notably, the law paves the way for families of 9/11 victims to sue the government of Saudi Arabia, whose citizens accounted for 15 of the 19 hijackers, by stipulating that its text applies to any civil action “arising out of an injury to a person, property, or business on or after September 11, 2001.” The potential implications of the act on U.S.-Saudi relations were not lost on former President Barack Obama or the government of Saudi Arabia, both of which opposed the notion (including a high-profile anti-JASTA lobbying effort led by the Saudis) as an unwarranted trigger of tensions between the two states.

Yet, the significance of JASTA extends far beyond U.S.-Saudi relations. Since U.S. citizens were only previously permitted to sue a State Department-designated sponsor of terrorism, JASTA widens federal courts’ jurisdiction to apply to any foreign state’s support for terrorism against a U.S. citizen, property, or business. But above all, it is the law’s impact on sovereign immunity that has reverberated most around the globe. JASTA effectively cancels out the sovereign immunity that states have enjoyed in U.S. courts from lawsuits by American citizens, and in doing so it alters the application of sovereign immunity altogether.

Unsurprisingly, any adjustment to the accepted norms of sovereign immunity, especially those that allow U.S. citizens to sue allied states, will grab the attention of foreign governments. Israel, America’s closest ally in the Middle East, as well as charities tied to President Trump’s senior advisor Jared Kushner and U.S. ambassador to Israel David Friedman have all been targeted under the JASTA law for alleged financial support for settlements in the West Bank, a clear unintended consequence of the law’s passing. There has also been concern that the passing of JASTA will encourage foreign states to respond and “to chip away at sovereign immunity,” as the State Department’s former legal adviser John Bellinger III put it. A deterioration of international sovereign immunity would, of course, also have consequences for the United States.

While on the campaign trail, President Donald Trump made his opposition to Obama’s veto clear, calling it “shameful”, “one of the low points of his presidency”, and endorsing a Rudy Giuliani statement in which he refers to the veto as “an insult to the families of those we lost on 9/11.” Trump’s own Attorney General, Jeff Sessions, “played a key role” in helping the legislation pass as a Senator.  The 9/11 Families and Survivors United for Justice Against Terrorism group commended President Trump and Secretary of State Rex Tillerson, who also spoke in favor of the act, for their “unwavering support” for JASTA. Some believed Trump’s hard stance on JASTA would prevent an amendment to narrow its scope, a change that seemed likely after garnering bipartisan support in Congress from House Speaker Paul Ryan, Senate majority leader Mitch McConnell, Senate minority leader and JASTA-champion Chuck Schumer, among others.

Today, the future of JASTA remains unclear as President Trump jostles with different challenges in the Oval Office than he did on the campaign trail. Although leaders in Riyadh have offered early praise for President Trump’s role in repairing U.S.-Saudi bilateral relations, the Kingdom has made it clear that it views JASTA as a strategically important issue and may be prepared to challenge Trump over its continued existence. Beyond accusations of connections between the Saudi government and the 9/11 attackers, Saudi Arabia also faces billions of dollars of U.S. lawsuits against the government, Saudi banks, companies affiliated with the bin Laden family, and charities. At one point last year, the Saudi government had hired as many as 14 lobby firms in its fight to revise the act.

As it stands, President Trump is being pressured over JASTA’s future from multiple sides. While Saudi officials have said they expect Trump to repeal the law, 9/11 families have warned the President not to give up his campaign promises for support. Although the President has yet to take a clear position on JASTA’s future, reports of growing opposition among U.S. allies to its continuation, including even Saudi-Israeli cooperation, may constitute a serious challenge to Trump’s support for the law. 

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