Response to the Message of the President Accompanying His Veto of the Justice Against Sponsors of Terrorism Act

Share
Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Share on RedditShare on TumblrEmail this to someone

Late in the day on Friday, September 23rd, President Obama vetoed the Justice Against Sponsors of Terrorism Act (JASTA), a bill that was passed unanimously by the Senate and by the House of Representatives without a single objection. Given the measure’s unanimous passage by both the Senate and House, and following nearly seven years of careful deliberation and refinement and multiple hearings in both chambers, the President needed to make a particularly compelling showing to justify vetoing the bill. He did not make any such showing.

Instead, the White House offered the same insubstantial “reciprocity” arguments it had raised earlier this year, citing only generalized and subjective concerns about the scope of America’s presence in the world and imagined threats that simply do not stand up to scrutiny and certainly do not justify the President’s decision to continue a policy of ignoring the interests of American victims of terrorism and their families.

JASTA, as Passed Unanimously, Already Addressed the Administration’s Legitimate Concerns Through Careful, Responsive Amendments

The veto message did not acknowledge the refinements undertaken by the Congress to address the reciprocity concerns mentioned, which were negotiated at length with principals in both chambers and lawyers for the Department of State. Both the Senate and House unanimously concluded that those careful revisions had addressed any legitimate concerns and that JASTA was good policy.

Nor did the White House in its veto message venture to offer a single new rationale that would warrant reconsideration of those thoughtful judgments or even attempt to address any of the arguments members of the Senate and House have offered as to why the White House’s stated concerns are invalid, a conspicuous omission given the care Congress invested in addressing the Administration’s concerns and in perfecting JASTA to meet those concerns.

JASTA is a Narrow Measure That Applies Only to Acts of Terrorism on U.S. Soil

JASTA is a narrow measure, carefully tailored to address the unique threat presented by the sponsorship of terrorist acts on U.S. soil by state actors and to ensure accountability for such terrorist conduct. JASTA’s exception to foreign sovereign immunity applies only to acts of international terrorism occurring in the United States, and only to physical injuries on U.S. soil that are “caused by” the terrorist tort of a foreign state. It is expressly inapplicable to any military activities of a foreign government, and specifically excludes claims of mere “negligence” as well. The bill’s substantive cause of action applies only where a foreign government knowingly provides substantial assistance to a designated foreign terrorist organization in relation to an attack in the United States.

All of the Administration’s stated objections and statements to the Congress and the media obscure these limitations and have generated reactions not to JASTA but to an imaginary bill that Congress has not presented to the President.

JASTA Provides Absolutely No Basis for Lawsuits Against Foreign Government Officials or Employees

As a prominent example, contrary to the White House’s repeated efforts to suggest otherwise, JASTA provides no basis for a suit against a foreign government official or employee in U.S. courts.

JASTA concerns only the immunity of foreign governments under the Foreign Sovereign Immunities Act (FSIA). As the Supreme Court unanimously held in Yousef v. Samantar, the FSIA has no bearing whatsoever on whether individual officials or employees of a foreign government may be sued in U.S. courts, an issue that is instead governed by the common law. Under the common law, foreign government officials and employees enjoy expansive immunity from the jurisdiction of U.S courts, and the State Department has virtually unchecked authority to grant such immunity in any case. JASTA does not disturb this framework under which individual officials and employees of foreign governments enjoy virtually absolute immunity from suit in our courts.

In addition, JASTA’s substantive cause of action arises under the Anti-Terrorism Act (ATA), and 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).

Enactment of Reciprocal Laws Would Present No Risk to U.S. Interests Whatsoever

In passing JASTA unanimously, Congress correctly concluded that this portfolio of carefully crafted limitations eliminated any legitimate “reciprocity” risks. This was apparent because a reciprocal statute could not authorize claims against the United States for our military activities, as JASTA expressly excludes them. A reciprocal statute could not permit claims against individual U.S. officials, employees or military personnel, as JASTA prohibits such actions. A reciprocal statute could not allow claims against the United States for negligence, as JASTA excludes such theories. A reciprocal statute could not enable a claim against the United States for activities unrelated to terrorism, as JASTA is expressly limited to terror sponsorship activities.

For these reasons, the inescapable conclusion is that the President’s rationale for opposing JASTA has nothing to do with JASTA itself. (Indeed, his veto message does not contain a single reference to JASTA’s text.) Stated simply, if other states enact laws mirroring JASTA, it will not impact U.S. interests at all, as we do not knowingly aid designated terrorist organizations in carrying out terrorist attacks.

The President’s Veto Message Essentially Concedes that Reciprocity is Not a Concern

By claiming that his opposition to JASTA is grounded in the notion of reciprocity, the President rather remarkably denudes the very principle he purports to be defending. Under international law, the concept of “reciprocity” contemplates that “favours, benefits, or penalties that are granted by one state to the citizens or legal entities of another, should be returned in kind.” But the concerns the President expresses about JASTA have absolutely nothing to do with other states responding “in kind.”

Quite to the contrary, the speculative suits against U.S. interests that the President identifies in his veto message are all of a nature expressly prohibited by JASTA. The President’s objection is thus necessarily grounded in the notion that foreign states will not honor the principle of reciprocity in response to JASTA, but rather that one or more might instead engage in transparent acts of provocation and aggression that maliciously target the U.S. government’s legitimate activities abroad, and that cannot possibly be justified based on the text or scope of JASTA itself. If the President is correct in stating that “reciprocity plays a substantial role in international relations,” his arguments against JASTA are profoundly illogical.

Our Nation Has Nothing to Fear from Hypothetical, Hostile Lawsuits

The veto message also curiously fails to acknowledge the consequences that any foreign nation would face in so obviously violating principles of reciprocity in response to JASTA. Again, the theoretical concerns the veto message presents all envision possible retaliatory actions rather than reciprocal risks, of which there are none. As such, one would expect that the United States would convey to any governments inclined towards such acts of aggression the full range of diplomatic, economic, social, and military consequences that would follow from any such unprincipled targeting of American interests. To be sure, virtually all foreign governments would have far more to lose that to gain by maliciously targeting the United States without justification. Ours is a powerful and strong nation, and that matters a great deal in assessing the speculative risks of foreign hostility.

The “Risks’ the Administration Identifies Have Nothing to do With JASTA

Few nations will contemplate vindictive or retaliatory legislation due to the United States’s standing in the world and for other reasons, and if they were to take such a wrongheaded course, it would have nothing to do with JASTA in any case.

To the extent a foreign government is inclined to enact different laws that are designed to target the United States for our legitimate activities abroad, it can already do so, and could far more credibly justify such action based on exceptions to foreign sovereign immunity that that have existed under U.S. law for decades.

For instance, since the enactment of the FSIA in 1976, the United States has recognized a broad range of exceptions to foreign sovereign immunity, including an exception to immunity for tort claims arising from injuries occurring in the United States. If a foreign government were inclined to authorize suit against the United States for our activities causing injury in its territory, it could simply characterize our conduct as tortious and authorize claims by reference to our own tort exception.

Similarly, since 1996, the United States has also recognized an exception to immunity for acts of terrorism carried out by designated State Sponsors of Terrorism. That immunity exception is far more exotic than JASTA, insofar as it extends to injuries that occur entirely outside the United States, and treats a handful of foreign states differently from every other government in the world. To the extent the President’s objection contemplates that a foreign government might label our legitimate activities abroad as “terrorism,” such an interpretation could already be linked to our existing State Sponsor of Terrorism exception. And in any case, it would be more than perverse to decline to defend our legitimate interests in resisting state-sponsored terrorism based on fears that our adversaries might mislabel our appropriate self-defense activities as
“terrorism.”

JASTA Merely Restores Longstanding Interpretations of the FSIA’s Tort Exception and in No Way Interferes With Executive Authority

The President also is mistaken in suggesting that JASTA interferes in any respect with the role of the Executive Branch in designating foreign governments as State Sponsors of Terrorism, or that the judicial inquiry JASTA contemplates is novel or unprecedented in any respect.

Designation

First, it is well-known that the executive’s determination of which nations are on the “state sponsor” list is an intensely political one. The judicial inquiry JASTA contemplates is entirely distinct from the political judgment as to whether a foreign government should be designated as a State Sponsor of Terrorism. That political decision carries a range of economic, commerce and other sanctions that go far beyond a foreign state’s amenability to suit in our courts or liability for harm caused to our citizens. U.S. nationals and corporations are forbidden from conducting virtually any transactions with such states or their citizens, and the imposition of the designation effectively relegates a designated country to pariah status. For that and other reasons, the State Department has declined to impose the designation on states that cooperate with us in some respects, even where officials and agencies of those states engage in terrorism.

As a result, only Sudan, Syria, and Iran are presently designated as State Sponsors of Terrorism, and current policy calls into question whether even those designations will persist. Indeed, the White House just this week authorized U.S. companies to sell commercial aircraft to Iran, even though Iran has supported aviation-based terrorist attacks and despite the fact that terrorism judgments issued by U.S. courts against Iran in the billions remain unsatisfied. Meanwhile, nations like North Korea, which this month claimed to have successfully tested a nuclear warhead that can be mounted to a ballistic missile and days ago told the UN it is preparing for nuclear war with the United States, have been removed from the State Sponsor list altogether. And finally, Congress is well aware of the political decision making that has animated Cuba’s historical inclusion, and recent removal, from the State Sponsor list.

To the extent it ever reflected a meaningful process for identifying terror states, the State Sponsor program (and the immunity exception tied to it), has become increasingly irrelevant at the same time as the threat of foreign terrorism is growing.

Longstanding Precedent Under Current Law

Second, U.S. courts have on many occasions heard claims arising from terrorist acts of foreign governments under the tort exception. Indeed, for over thirty years following its enactment in 1976, the tort exception was consistently 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 extrajudicial killing of dissident Henry Liu in California.

Consistent with these interpretations, the Departments of Justice and State filed an amicus brief in the federal appeals court in the District of Columbia in 2004, asserting that the existing immunity exception for tort claims would apply “in cases of terrorism on U.S. territory, such as the September 11th attacks.” JASTA is most properly understood as merely restoring that precise interpretation of our immunity statute.

As these facts confirm, our laws have long recognized that the courts have a proper and important role in adjudicating claims of foreign government involvement in terrorist attacks that cause harm on U.S. soil.

The Veto Message Ignores Longstanding Executive and Legislative Agreement on the Value of the Judicial Branch in Terrorism Cases

The limited judicial inquiry JASTA allows in relation to acts of terrorism on U.S. soil that kill and injure American citizens is entirely distinct and unrelated from the State Sponsor process. The courts focus on whether, for purposes of legal liability and accountability, an agent of a foreign state has engaged in a terrorist tort that enabled a specific act of terrorism in the United States and caused a particular injury.

Taking the case of September 11, the United States has never designated Saudi Arabia as a State Sponsor of Terrorism, but several 9/11 Commission members have said that there is credible evidence that agents of the Kingdom supported the 9/11 hijackers, and that there was a likelihood that “charities” funded and supervised by the Saudi government were deeply involved in financing and supporting al Qaeda before 9/11. From these facts, the difference between the focused judicial inquiry JASTA authorizes in regards to a specific injury and the political process that animates State Sponsor designations is most evident.

The Veto Message Completely Ignores the Paramount Role of the “Stay Provision” Included in JASTA That Will Protect Diplomatic Interests

The President’s objection on this point also ignores the absolutely essential role JASTA preserves for the Executive in disputes falling within its scope. Under JASTA’s Executive stay provision, at Section 5, litigation would proceed only where the Executive declines to engage in diplomacy to address the dispute, or where diplomatic engagements are resisted by the foreign state. In circumstances where the United States declines to pursue redress for terrorism victims injured on U.S. soil via diplomatic channels, or a foreign state refuses to engage diplomatically, providing a judicial path for accountability is necessary and appropriate.

The Veto Message Ignores that JASTA is Firmly Rooted in International Norms and U.S. Practice

JASTA’s narrow exception to foreign sovereign immunity is, moreover, firmly rooted in international norms and our nation’s longstanding approach to foreign sovereign immunity. The United States, like most other nations, long ago abandoned the outdated and unjust notions of absolute immunity predicated on the idea that “the King can do no wrong,” instead embracing the notion that states should be accountable for harm they cause in another jurisdiction in many circumstances. Under this “restrictive” approach to foreign sovereign immunity, nations throughout the world have recognized an exception to foreign sovereign immunity for tort claims involving injuries occurring in their countries, in one form or another.

JASTA itself is nothing more than a very specialized tort exception, applicable in very narrow circumstances to a particularly heinous subset of tortious conduct involving the knowing sponsorship of terrorism. Consistent with international practice, JASTA requires a very direct nexus between the terrorist tort of a foreign state and the resulting injury within the United States. It requires not only that the claims be based on an act of international terrorism occurring in the United States and involving a physical injury in the United States, but also expressly requiring that that physical injury be “caused by” the terrorist tort of the foreign state itself.

Nor, as the White House has periodically intimated, is sovereign immunity an inviolable principle. As the Supreme Court has observed since the Founding era, in the circumstances where we grant foreign states immunity from the jurisdiction of our courts, we do so only as a “matter of grace and comity.” Foreign states have “no ‘right’ to such immunity.” For obvious reasons, it is more than odd to suggest that we should afford immunity to foreign states for their involvement in aiding a terrorist attack on our soil as a matter of grace and comity, yet that is what the President’s veto message necessarily urges our Nation to do.

JASTA Continues the Longstanding Executive-Legislative Agreement that Terrorism Litigation Serves As an Important Counterterrorism Tool

The President’s veto message also suggests a sudden and unexplained lack of support in this instance for policies the United States has long endorsed as critical to our efforts to prevent the financing and sponsorship of terrorism. In particular, the President’s veto message states that enacting JASTA will not “protect Americans from terrorist attacks.”

This statement is stunning. Less than a year ago, the President’s own Deputy Secretary of State Tony Blinken attested in an affidavit that “imposing civil liability on those who commit or sponsor acts of terrorism is an important means of deterring and defeating terrorist activities,” and thus serves our Nation’s “compelling interest in combatting and deterring terrorism at every level.” Deputy Secretary Blinken’s testimony on this point is in keeping with empirical findings and declarations of prior Administrations and Congress for the last quarter century, which confirm that JASTA will promote our national security by deterring state sponsorship of terrorism.

Terrorism Victims’ Compelling Interests in Securing Accountability Far Outweigh the Speculative Concerns Raised by the Administration

Finally, and importantly, the President’s veto message conspicuously fails to acknowledge the compelling interest of the 9/11 families and victims in having meaningful access to their own courts to pursue accountability for the murder of their loved ones and injuries. This interest in accountability and truth is given no credit by President Obama. The Executive Branch’s resistance to releasing the notorious “28 Pages,” which meaningfully validate the factual predicate of the 9/11 families’ litigation, coupled with repeated refusals by the White House to engage in direct meetings with the families, leaves the families with no other recourse but to pursue truth and accountability through the court system, precisely as Congress contemplated when it passed the FSIA in 1976. That interest far outweighs any of the subjective concerns the President offers in his veto message for opposing JASTA.

For these and other reasons, the Senate and House should override the President’s veto with the same unanimous support they offered in passing it.