JASTA provides no basis for a claim against individual foreign officials, who retain immunity from suit under common law doctrines.
JASTA’s immunity provision concerns only the immunity of foreign states under the Foreign Sovereign Immunities Act (FSIA), and has nothing to do with the immunity of individual foreign officials or employees. As the Supreme Court unanimously held in Yousef v. Samantar, the FSIA has no bearing whatsoever on the immunity of individual foreign officials and employees from suit in U.S. courts, which is instead governed by common law immunity doctrines. Those common law doctrines provide expansive immunity to individual foreign officials and employees, with the State Department typically having complete control over such immunity determinations. JASTA does nothing whatsoever to disturb the expansive immunities foreign officials and employees enjoy from suit in U.S. courts under this common law framework.
In addition to the fact that they enjoy immunity under common law doctrines, JASTA’s substantive cause of action is not available in a suit against an individual employee or official of a foreign government for acts undertaken in the scope of their office or employment.
JASTA’s substantive cause of action arises under the Anti-Terrorism Act (ATA). A civil action under the ATA may not be maintained against “an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority.” 18 U.S.C. § 2337(2).
JASTA does not apply to military activities of a foreign state.
JASTA is expressly unavailable in relation to any “act of war” as defined under existing law. This limitation, coupled with JASTA’s requirement that the claim arise from an act of international terrorism on U.S. soil, as also defined under existing law, precludes JASTA’s invocation in relation to any military activities of a foreign sovereign.
The enactment of reciprocal legislation poses no risk to our military personnel.
Given the limitations described above, the enactment by a foreign government of legislation mirroring JASTA would present no risk of lawsuits against U.S. military personnel. To the extent the issue is instead the potential that a foreign government might enact different laws that allow claims against U.S. personnel, it would not be reciprocating but rather engaging in a transparent and unjustifiable act of aggression, and the U.S. would be expected to respond by making clear the economic, diplomatic, social and military consequences of such aggression, as it would in any other case. Virtually all nations would have far more to lose than to gain by doing so, and the fact of the matter is that any rogue states inclined to maliciously target U.S. interests can do so already.
The United States has a program in place to compensate foreign citizens who suffer injuries as a result of noncombat activities of our military personnel abroad.
The Foreign Claims Act, 10 U.S.C. § 2734, broadly authorizes foreign citizens injured as a result of the United States’ non-combat military activities abroad to present claims against the United States for compensation for their injuries. The statute was enacted in 1956, and established a claims commission framework for presentation and payment of claims for such injuries. The Act expressly authorizes payments for meritorious claims for damage arising from U.S. non-combat military operations to real property, personal property, or “personal injury to, or death of, any inhabitant of a foreign country.” Thus, the United States already has a mechanism in place to address injuries resulting from the activities of our military personnel abroad. Given that we already pay compensation for these claims voluntarily, there would be little to gain by authorizing suits against U.S. personnel.
The United States Already is Subject to Claims Abroad for Civilian Casualties of Drone Strikes and Pays Compensation to Unintended Casualties of Those Strikes.
The United States already responds to claims in foreign jurisdictions for civilian casualties of drone strikes in Afghanistan, Pakistan, and Yemen, and has a program in place to pay compensation to the families of unintended casualties of those strikes. Within the last few days, reports confirmed that the United States had agreed to pay in excess of $1 million to an Italian aid worker who was inadvertently killed, along with an American citizen, in a drone strike in Pakistan. This most recent payment is in keeping with a program that has been in place for a number of years under which the United States compensates unintended victims of drone strikes on a voluntary basis. The funding for these so-called solatia payments is authorized by Congress, via the NDAA. In July, the President issued an Executive Order which was designed to systematize and improve the compensation program, titled “United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force.” Among other things, the EO requires relevant agencies “to acknowledge U.S. Government responsibility for civilian casualties and offer condolences, including ex gratia payments, to civilians who are injured or to the families of civilians who are killed.”
In the unlikely event some rogue state might authorize suits against U.S. personnel abroad, the United States is well equipped to defend them in any such action.
There is an entire division of the DOJ known as the Office of Foreign Litigation, whose function is to protect U.S. interests in litigation pending in foreign courts. According to the office’s website, the cases against the United States vary from employment disputes brought by foreign nationals working in U.S. embassies, consulates, and military bases abroad to litigation arising from U.S. agency or military activities in foreign countries.” Further, “[a]t any given time, foreign lawyers under OFL’s direct supervision represent the United States in approximately 1,000 lawsuits pending in the courts of over 100 countries.” As these facts reflect, the United States already faces legal action in foreign courts, and has resources in place to manage such claims.