The letter issued this evening by certain opponents of the Justice Against Sponsors of Terrorism Act (JASTA) raises the same alarmist and inaccurate arguments that many of the same people have raised previously, and that Senators and Representatives carefully considered and rejected in passing JASTA unanimously earlier this year. Those arguments were unanimously rejected because they deeply and demonstrably mischaracterize existing law and JASTA’s scope and effect, and are entirely subjective (as the authors themselves concede).
We remain dismayed that the Obama Administration, the Kingdom of Saudi Arabia and its protectors have spent much of this year trying to deceive Congress and the public into believing that JASTA works dramatic changes to the law, when in fact it is narrowly tailored and largely restores the law that has existed for decades. Nor was Congress persuaded by the purported threats to the U.S.-Saudi relationship, because Congress understood that any relationship requires accountability and honesty, which is all JASTA requires. Just as Congress dismissed the Administration’s fearmongering in passing JASTA the first time, we are confident that it will do so again if it becomes necessary to override an Obama veto.
The letter’s authors’ claim that JASTA would “completely undercut sovereign immunity protections upon which the United States and all sovereign nations have relied for centuries” plainly misrepresents the current state of U.S. law and international norms concerning sovereign immunity protections. In fact, for nearly 70 years, the United States has adhered to the restrictive theory of sovereign immunity, under which foreign states are regularly subject to the jurisdiction of another country’s courts for harm they cause in that country. This restrictive theory of immunity is the norm in international practice.
Congress codified this approach in 1976 through the enactment of the Foreign Sovereign Immunities Act (FSIA), which sets forth a range of exceptions to sovereign immunity under which foreign states are subject to suit in the United States. This includes an exception to immunity for tort claims involving injuries occurring in the United States. For nearly four decades following the FSIA’s enactment, that exception was understood to apply to claims that a foreign state provided support from abroad for a terrorist attack on U.S. soil, as reflected by the decisions allowing claims against Chile to proceed for its role in facilitating from abroad the assassination Orlando Letelier in Washington, D.C., and against China for abetting from overseas the murder of dissident Henry Liu in California.
In fact, in 2004 the Departments of Justice and State of the Bush Administration, in which several of the letters’ authors served, filed a formal amicus brief in the federal appeals court in the District of Columbia asserting that this existing immunity exception for tort claims would apply “in cases of terrorism on U.S. territory, such as the September 11th attacks.” JASTA merely restores that precise interpretation of our immunity statute.
As recently as 2011, the federal appeals court in New York reaffirmed that view, ruling that claims of a 9/11 victim against Afghanistan – a country that has never been designated as a State Sponsor of Terrorism – could proceed. In other words, claims are proceeding under current law, and have been for four years, against an ally of the United States for the events of 9/11.
No floodgate of retaliatory litigation against the United States followed from these longstanding rulings, and if the risk were at all real, the Bush Administration most obviously would not have advocated in 2004 that foreign governments do not enjoy sovereign immunity under existing law for terrorist attacks on U.S. soil, citing 9/11 specifically.
The letter’s authors do not even attempt to grapple with these points.
Their claim that JASTA’s passage would potentially subject our troops, diplomats and government personnel to suits in foreign courts also rests on demonstrably untrue characterizations of JASTA’s scope and effect. In reality, JASTA has absolutely nothing to do with the immunities and protections that individual diplomats and government officials and employees enjoy from suit. Instead, as the Supreme Court unanimously confirmed in Youseff v. Samantar, the immunities available to individual foreign officials flow from the common law, and JASTA does nothing to disturb those protections at all. It concerns only the immunities of foreign governments.
The authors’ claim about potential suits against diplomats is utterly unsupportable. As the authors surely know, or should, the immunities of diplomats and consular officials are governed by the Vienna Convention on Diplomatic Immunity, a treaty to which 190 nations are signatories and obligated to comply. A foreign government could not authorize a suit against a U.S. diplomat in retaliation to JASTA without violating its treaty obligations to nearly 200 other nations. It simply can’t happen.
The authors also are wrong when they claim that JASTA would encourage the trial bar “to extract settlements from foreign nations based on the possible disclosure of otherwise secret diplomatic and national security communications. This is simply not true. As the Supreme Court affirmed recently in a unanimous decision, “settled doctrines of privilege” and principles of international comity protect foreign states from inappropriate incursions into their governmental documents in U.S. litigation proceedings. Consistent with those protections and the legislative history of the FSIA itself, the courts have long recognized that “sensitive governmental documents of a foreign state” are protected from disclosure by governmental privilege rules. EM Ltd. v. Republic of Argentina, 695 F.3d 201, 210 (2d Cir. 2012) (quoting H.R. Rep. No. 94-1487, at 23) (“The [FSIA] does not attempt to deal with questions of discovery. Existing law appears to be adequate in this area. . . . [If] a private plaintiff sought the production of sensitive governmental documents of a foreign state, concepts of governmental privilege would apply.”). JASTA does not change these firmly established rules, and thus could not expose foreign governments to potential exposure of state secrets. There is nothing to this argument.
The fearmongering based on the claim that JASTA will lead to suits against the United State abroad also ignores the fact that the U.S. is routinely subject to suit in foreign courts already. In fact, there is an entire division within the Department of Justice known as the Office of Foreign Litigation that is dedicated solely to representing the interests of the United States in lawsuits 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 is subject to suits in foreign jurisdictions for our activities abroad, as a result of the wide range of the United States government’s international activities and broad acceptance of the restrictive theory of sovereign immunity in international practice. JASTA itself is entirely consistent with the restrictive theory, as it provides an immunity exception for a specific type of tort, which is limited to physical injury in the U.S. and expressly excludes claims arising from any military activities.
Finally, the opponents’ letter fails to acknowledge JASTA’s incredibly narrow scope. It applies only to acts of terrorism occurring on U.S. soil and causing physical harm here, cannot be invoked as to a foreign government’s military activities, and does not apply to any claims of alleged negligence. Given these limitations, replication of JASTA by other states will not imperil U.S. interests, as we do not knowingly aid and abet designated terrorist organizations.
These limitations also confirm the utter irresponsibility of the authors’ claim that JASTA would potentially “expose European states, for the first time, to treble-damage terrorism class-action lawsuits in U.S. courts.” Although the authors make no attempt to explain what the basis for such claims might be, the fact of the matter is that our European partners and allies could not possibly be subject to a suit under JASTA. It requires the knowing aiding and abetting of a designated foreign terrorist organization, something our European allies do not do. (JASTA also does not authorize treble damage lawsuits against foreign states under any circumstances, a fact that further underscores the authors’ lack of care and candor in presenting their arguments).
It is increasingly apparent that these false “reciprocity” arguments reflect nothing more than a desire to protect the Saudis from having to answer the legitimate claims of the 9/11 families whose loved ones were murdered on September 11, 2001.
Counsel for the 9/11 Families and Victims