Statement from the National Chair for 9/11 Families & Survivors United for Justice Against Terrorism THIS IS STILL AMERICA

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Last time I checked, we still have a President, democracy and pledge allegiance to the United States of America. And, no, we don’t live in Saudi Arabia.

As odd as this may sound, it seems that our politicians and now many fortune 500 companies may have forgotten these basic principles and are being lobbied heavily by the Saudi Arabian government through an aggressive multi-million dollar public relations and public affairs campaign.

What’s behind the Saudi lobbying that would persuade any American to defend their side instead of family members, survivors of the 9/11 attacks and the American people, you might ask? Money. Plain and simple.

A recent Politico article quoted a Washington insider as saying, “It’s Washington at its finest” when describing the back and forth intense lobbying and conversations that are being had. The article lists General Electric, Dow Chemical, Boeing and Chevron as corporations who are, purportedly, quietly responding to the Saudi lobbying efforts against the veto override for the Justice Against Sponsors of Terrorism Act – “JASTA”.  They have been asked to do the Saudis’ “dirty work” and allow them to escape culpability for their purported role in the worst terrorist attack against our nation.

Just one glance at the Saudi’s USA Embassy Twitter account and you can see the Saudi’s putting out message after message of why JASTA shouldn’t be enacted. But they are not Americans, they should not get to decide how America’s justice system will work and by what laws we abide . . . because this is still America. And, in true Saudi fashion, they are NOT truthful in their disparaging comments about JASTA. Shouldn’t it raise great concern or at the very least an eyebrow or two that the country being asked to account for its wrongdoing is so vehemently opposing that requirement?

Tomorrow is a test for the Senate and our democracy.  After already unanimously passing JASTA, will they allow the Saudis to dictate how they vote on the override, or will they pass this test in flying colors – red, white and blue?

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

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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.

JASTA POSES NO RISK OF SUITS AGAINST OUR MILITARY PERSONNEL

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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.

Statement regarding President Obama’s veto of the anti-terrorism bill JASTA

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Washington, D.C., Sept. 23, 2016 – We are outraged and dismayed at the President’s veto of JASTA and the unconvincing and unsupportable reasons that he offers as explanation. No matter how much the Saudi lobbying and propaganda machine may argue otherwise, JASTA is a narrowly drawn statute that restores longstanding legal principles that have enjoyed bipartisan support for decades. It will deter terrorism and hold accountable those nations that support and fund it.

We are deeply grateful for the unanimous bipartisan support that JASTA has in Congress, and we look forward to the Senate and House fulfilling their commitments by quickly overriding this veto.

We will offer further details on the many flaws in the President’s rationale in further statements to follow.

9/11 Families & Survivors United for Justice Against Terrorism consists of thousands of family members and survivors, seeking the truth, accountability and justice against all perpetrators of the September 11, 2001 terrorist attacks against our nation. PassJASTA.org

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Response on Behalf of 9/11 Families and Victims to the European Union’s Letter of Concern Regarding JASTA

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Yesterday afternoon, reports surfaced that the European Union presented a letter to the State Department expressing concerns about the Justice Against Sponsors of Terrorism Act (JASTA), a measure unanimously passed by both chambers of Congress earlier this year after nearly seven years of careful deliberation and refinement. The letter, which was somehow obtained and distributed to the media by public relations agents working for the Saudi government, expresses the European Union’s understanding that JASTA “would be in conflict with fundamental principles of international law and in particular the principle of State sovereign immunity.”

The letter provides no explanation of the basis for this claim, which is plainly mistaken. The absence of any rationale based on the text or scope of JASTA indicates that our European friends are responding to the alarmist and inaccurate portrayals of JASTA that have been loudly promoted by its opponents, rather than to the bill itself, which is deeply rooted in international legal norms that are actually embraced by virtually all European Union member States themselves.

For many decades, the overwhelming majority of European Union member States have embraced the “restrictive theory” of sovereign immunity, under which States are subject to suit in the courts of another country in a variety of circumstances when they cause harm there. Under the restrictive theory, the world 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 view that states should be accountable for harm they cause in another jurisdiction in many circumstances.

The nations of Europe in fact took the lead in moving the world towards the restrictive theory, and it has long been the international norm. See Tex. Trading & Milling Corp. v. Fed. Republic of Nigeria, 647 F.2d 300, 310 (2d Cir. 1981) (“At this point, there can be little doubt that international law follows the restrictive theory of sovereign immunity (citing UK and European practice in particular); Doe v. Fed. Democratic Republic of Eth., 2016 U.S. Dist. LEXIS 67909, *44 (D.D.C. May 24, 2016) (“As explained during the hearings on the [Foreign Sovereign Immunities Act in 1976], ‘almost all countries in Western Europe [had come to] follow[] the restrictive theory of sovereign immunity”).

Consistent with this restrictive theory of foreign sovereign immunity, almost all European nations recognize an exception to foreign sovereign immunity for tort claims involving injuries occurring in their countries, in one form or another. For example, the 1976 European Convention on State Immunity includes such a tort exception, and the state parties to that Convention include Austria, Belgium, Luxembourg, Switzerland, Germany, the Netherlands and the United Kingdom. The United Kingdom has separately enacted its own statutory immunity law, which also includes a broad tort exception to foreign sovereign immunity. Further, the United Nations Convention on Jurisdictional Immunities of States and Their Property of 2004 also includes a tort exception to foreign sovereign immunity that embraces a broad formulation of doctrines of attribution, and nations within and outside Europe are signatories to that document. (Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Italy, Latvia, Portugal, Romania, Slovakia, Spain, Sweden, and the UK/Ireland). Several European states that do not have their own statutes and are not parties to any international convention on the issue embrace the restrictive theory as a matter of civil or common law.

When the United States codified the restrictive theory of foreign sovereign immunity in 1976 through the passage of the Foreign Sovereign Immunities Act (FSIA), it too embraced an exception for tort claims arising from “personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of [a] foreign state.” 28 U.S.C. 1605(a)(5).

For many decades following its enactment, this provision was consistently understood to withdraw foreign sovereign immunity in cases in which a foreign state aided from abroad a terrorist act on U.S. soil. Indeed, as recently as 2004, the U.S. Justice and State Departments jointly argued to a federal appeals court that this existing tort exception would apply to tort claims “in cases of terrorism on U.S. territory, such as the September 11th attacks.” No European nation suffered harm or any adverse impact on its interests from these longstanding interpretations of the U.S. tort exception, which prevailed for over 30 years.

JASTA itself is nothing more than a very specialized tort exception, applicable in very narrow circumstances to a particularly heinous subset of tortious conduct – namely, the knowing sponsorship of terrorism. It is a modest measure restoring the longstanding interpretations of the tort exception for terrorist attacks on U.S. soil, deeply rooted in the restrictive theory of sovereign immunity embraced by virtually all European Union member States.

Consistent with international practice, JASTA requires a very direct nexus between the terrorist tort of a foreign state and the resulting harm 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 requires that that physical injury be “caused by” the terrorist tort of the foreign state itself.

JASTA’s immunity exception is, moreover, expressly unavailable for any claim of negligence, and its substantive cause of action applies only to the knowing provision of substantial assistance to a designated Foreign Terrorist Organization. That list includes only the most notorious terrorist organizations, and our European allies do not knowingly aid them for any reason.

Additional limitations in JASTA further demonstrate Congress’ painstaking efforts to embed key international norms into the bill and to eliminate any unintended consequences.

For instance, JASTA is expressly inapplicable to any “act of war” as already defined under U.S. law, a limitation that precludes JASTA’s invocation in regards to military activities of a foreign state. This express limitation directly incorporates the traditional international norm under which military activities of foreign sovereigns are excluded from the tort exception to sovereign immunity. Members of the European Union have actually challenged this exclusion in the past, urging that it should not apply to jus cogens violations, but the U.S. Congress has expressly declined to do so in JASTA, thus reaffirming as a matter of U.S. statutory law an important international norm that has been called into question by legal claims advanced by European Union member States.

The European Union member States should also take comfort in the fact that JASTA retains the expansive immunity individual foreign officials and diplomats enjoy from being sued in the United States. Under U.S. law, the immunity of individual foreign officials is governed by common law principles (not the FSIA), which provide foreign officials near absolute immunity from suit in U.S. courts unless the State Department – which has the final say – rules otherwise. JASTA does not disturb these expansive immunities at all. Foreign diplomats and consular officials, meanwhile, enjoy all of the additional immunities afforded them under the Vienna
Convention on Diplomatic Relations, to which the United States and 189 other nations are signatories.

Finally, JASTA is consistent in all respects with the principles and values set forth in the European Union’s Charter, which affirms the right to life, liberty and security, that those who are wronged are entitled to “an effective remedy before a tribunal,” and that “[e]veryone is equal before the law.”

For these and many other reasons, our European Union allies have no reason whatsoever to be apprehensive about JASTA. Quite to the contrary, they should be encouraged that its enactment will help make Europe safer from the terrible terrorist threats that have so tragically materialized in London, Madrid, Paris, Brussels, Berlin and so many other cities in Europe.

Indeed, as U.S. Deputy Secretary of State Tony Blinken attested in a recent affidavit filed in a U.S. court, “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 shared “compelling interest in combatting and deterring terrorism at every level.”

JASTA advances those global security interests, through a narrowly tailored immunity exception that aligns with international norms and practice.

9/11 FAMILIES AND SURVIVORS THANK SENATORS BLUMENTHAL AND MCCONNELL FOLLOWING PROTEST

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McConnell pledges Senate will stay in session to block anticipated Presidential veto of JASTA

Washington, D.C., Sept. 21, 2016 – Dozens of 9/11 family members and survivors protested outside the White House yesterday, calling for President Obama to sign the Justice Against Sponsors of Terrorism Act (JASTA), a bill that he has threatened to veto. Following the protest, the 9/11 Families & Survivors United for Justice Against Terrorism held a press conference on the Senate lawn, with Senator Richard Blumenthal (D-CT).

At the press conference Terry Strada, National Chair of the 9/11 Families & Survivors United for Justice Against Terrorism outlined the reasons why the White House’s arguments against JASTA are misplaced. Her husband Tom Strada was in the World Trade Center and died in the attacks. Terry’s daughter, Kaitlyn Strada also spoke on behalf of the 9/11 Children for Justice. On behalf of all of the protesters and the entire 9/11 community, they urged Congress to stay in session to override a veto.

Immediately following the press conference, Senate Majority Leader Mitch McConnell (R-Ky.) said that the Senate will override JASTA before recessing for the upcoming elections.

“The 9/11 Families and Survivors extend our deepest thanks to Senators Blumenthal, McConnell and the several others who have been steadfast supporters of JASTA, standing behind us every step of the way and fighting for what’s right and just for all victims of terrorism,” said Terry Strada. “They refuse to be persuaded by Saudi lobbyists unlike some of their fellow colleagues. While we anticipate the President to veto JASTA by Friday, I am confident the majority of Congress will stand with Americans and will not let us down. Fifteen years has passed without answers or accountability for the most horrific attack on America—we are angry, frustrated and tired. As my late husband and daughter say, it is time to do the right thing.”

JASTA unanimously passed both the Senate (May 17, 2016) and House (Sept. 9, 2016), but is threatened by a potential veto by President Obama. The legislation would allow victims of terror attacks on U.S. soil to seek accountability against foreign states in U.S. courts, essentially the same way they could if the foreign state had caused injury in a car wreck.

The President has the bill for consideration and has until Friday, Sept. 23 to sign or veto the legislation. The 9/11 Families and Survivors urge Congress to stay in session to prevent a pocket veto, and call on their support to override the anticipated veto.

Watch the JASTA Press Conference

9/11 Families & Survivors United for Justice Against Terrorism consists of thousands of family members and survivors, seeking the truth, accountability and justice against all perpetrators of the September 11, 2001 terrorist attacks against our nation. PassJASTA.org.

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Response on Behalf of 9/11 Families and Victims to Letter in Opposition to JASTA by Certain Former Officials

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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.

Sincerely,
Jack Quinn
Sean Carter
Counsel for the 9/11 Families and Victims

9/11 FAMILIES & SURVIVORS PROTEST OUTSIDE WHITE HOUSE AND HOLD PRESS CONFERENCE OUTSIDE SENATE DENOUNCING ANTICIPATED VETO

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FOR IMMEDIATE RELEASE
CONTACT: Terry Strada: (973) 945-7420

Will implore President Obama to sign anti-terror sponsorship bill,
Justice Against Sponsors of Terrorism Act, S.2040

Washington, D.C., Sept. 19, 2016  – In response to signals from the White House that President Obama plans to veto the Justice Against Sponsors of Terrorism Act (JASTA), 9/11 families and survivors will protest outside the White House and move to outside the Senate for a press conference tomorrow, once again voicing their support of this legislation that would allow them to seek accountability in U.S. Courts for the 9/11 attacks, as well as allow other victims of terror attacks in the U.S. to also seek accountability.

JASTA unanimously passed both the Senate (May 17, 2016) and House (Sept. 9, 2016), but is threatened by a potential veto by President Obama. Fifteen years is already far too long to be asked to wait for accountability for the deaths and injuries suffered in the 9/11 attacks. Where Congress spoke so resoundingly in favor of JASTA, neither the President nor an army of Saudi lobbyists should prevent it.

 WHEN: Tuesday, Sept. 20 at 12:30 p.m.
 WHERE: Lafayette Park in front of the White House

The group will move to the “Senate Swamp,” located on the grass across the drive from the east Senate steps for a press conference with Senator Blumenthal, other members of Congress, along with 9/11 family members and survivors.

 WHO: 9/11 Families & Survivors United for Justice Against Terrorism consists of thousands of family members and survivors, seeking the truth, accountability and justice against all perpetrators of the September 11, 2001 terrorist attacks against our nation

Rally speakers include:           

  • Terry Strada, National Chair of the 9/11 Families & Survivors United for Justice Against Terrorism and widow of Tom Strada, killed at the World Trade Center
  • Kaitlyn Strada, Daughter of Tom Strada, who will speak on behalf of the 9/11 Children for Justice
  • Other 9/11 Family Members & Survivors

9/11 Families Outraged at Report that Two Republican Senators will seek Delay of Veto Override of Anti-Terror Sponsorship Bill

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FOR IMMEDIATE RELEASE
CONTACT: Terry Strada: (973) 945-7420; David White: (202) 607-0766

9/11 Families and Survivors irate at effort to delay enactment of Justice Against Sponsors of Terrorism Act, S.2040

Washington, D.C., Sept. 16, 2016  – Reports by Bloomberg and the New York Times that two leading Republican voices on national security – U.S. Senators Bob Corker (TN) and Lindsey Graham (SC) – are trying to delay a vote to override the president’s anticipated veto of the Justice Against Sponsors of Terrorism Act (JASTA) have 9/11 families and survivors outraged.

JASTA would allow victims of terror attacks on U.S. soil to seek accountability against foreign states in U.S. courts, essentially the same way they could if the foreign state had caused injury in a car wreck.  After more than six years of consideration in Congress, and several holds on the bill earlier this year – in part to address inquiries to the ultimate satisfaction of Senators Corker and Graham – the Senate passed the bill unanimously in May and the House did so unanimously last week on Sept. 9, 2016.  But the president has vowed to veto the bill, premised publicly on two unfounded rationales.  The Democratic White House’s rationales, presumably along with reported heavy pressure from high-priced Saudi lobbyist, seem to have given the two Republican senators unnecessary pause.

The White House has said JASTA would cause U.S. diplomats and citizens to be at risk from reciprocal legislation or lawsuits overseas.  But JASTA does not – and cannot – have anything to do with suing diplomats.  That issue is controlled by a 55-year-old treaty – the Vienna Convention on Diplomatic Relations – to which the U.S. and 190 other nations are signatories, including nearly every U.N. member state.  And JASTA has nothing to do with whether a private citizen can be sued for alleged wrongdoing; it deals with immunity of foreign states.  With or without JASTA, if a U.S. citizen causes wrongful injury in another country, local law can authorize suit against that U.S. citizen.

In statements from Senator Corker and Senator Graham, they have expressed similarly misplaced concerns that reciprocal legislation may put the U.S. at risk, for example, due to drone strikes against terrorist and other enemy targets.  But the narrow text of JASTA, like our legal history, specifically distinguishes between acts of war and acts of terrorism. Moreover, JASTA requires that the terrorist attack at issue to have been done by a terror organization formally designated under U.S. law.  Because the U.S. does not outsource our drone strikes to designated terrorist organizations, reciprocal legislation would not threaten us.  By equating what we do to protect ourselves from terrorism with what others do in support of terrorism, the senators misread the narrow text of JASTA and disparage U.S. policy.

The White House’s second rationale for opposing JASTA is because, it says, JASTA allows judges to designate foreign states as terror sponsors outside of the formal U.S. process for imposing U.S. sanctions.  But JASTA has nothing to do with designating nations as terror sponsors or imposing sanctions.  Like in any car wreck case where a foreign state bears responsibility, JASTA allows victims of terror attacks on U.S. soil to seek accountability in a U.S. court.  For forty years, U.S. sovereign immunity laws have allowed suits against sovereigns for death or injury, not just for car wrecks but also for terrorist attacks.  That is why, as recently as 2004, in a brief to the Supreme Court, the U.S. government expressed the view that U.S. sovereign immunity law authorizes suits in terrorism cases like 9/11.  Neither the preexisting law nor the government’s earlier position ever caused a flood of retaliatory legislation or litigation.

Because no rationale for vetoing JASTA withstands scrutiny, the bill should be enacted without any delay – including the delays suggested by Senators Corker and Graham.  The horrific events of the 9/11 attacks took place over fifteen years ago.  JASTA has been under Congressional scrutiny for nearly half of that time (it was first introduced in 2009 – with Senator Graham as a co-sponsor at each introduction). Both Senators Corker and Graham studied the bill earlier this year – delaying its Senate passage – and made changes to the bill’s text for many of the same concerns they are now raising.  If they had lingering concerns at that time, they never voiced them when the Senate unanimously passed the bill.  Not until the Saudi lobbyists came knocking.  But after years of consideration and careful scrutiny (including by both of these senators), both chambers of Congress fully vetted and unanimously agreed that JASTA is good policy.  Where Congress spoke so resoundingly in favor of JASTA, neither one president, two senators, nor an army of Saudi lobbyists should prevent it.

Fifteen years is already far too long to be asked to wait for accountability for the deaths and injuries suffered in the 9/11 attacks.  The delays attributed to Senators Corker and Graham, trying to push off consideration of a veto override for several months until after their election campaigns, asks far more than the families and survivors should ever be asked to accept.  The pledge of the Democratic president to veto JASTA was already more than enough insult.  But two Republican senators’ eleventh hour suggestion to delay a vote to ultimately enact JASTA is simply outrageous.

9/11 Families & Survivors United for Justice Against Terrorism consists of thousands of family members and survivors, seeking the truth, accountability and justice against all perpetrators of the September 11, 2001 terrorist attack against our nation. PassJASTA.org

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Blumenthal, DeLauro, 9/11 Families Call on President to Sign Justice for Victims of Terrorism Act

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Congress Approved Blumenthal-Backed Justice Against Sponsors of Terrorism Act, But President Obama May Veto

Bill Would Allow Victims of Terrorism and Their Families to Seek Justice Against Foreign Actors Who Enable Violent Extremism

(Hartford, CT) – At 9 a.m. on Monday, September 12 on the steps of the U.S. District Court in New Haven, U.S. Senator Richard Blumenthal (D-Conn.) and Congresswoman Rosa DeLauro (CT-3) will join families of 9/11 victims in calling on President Obama to sign the Justice Against Sponsors of Terrorism Act.

The House of Representatives today voted to approve the Justice Against Sponsors of Terrorism Act to allow victims of terrorism and their families to sue foreign actors that sponsor or support violent extremism. Blumenthal helped to lead the measure in the Senate, which passed the measure unanimously in May. President Obama has now indicated he may veto the measure. Blumenthal sent a letter today to the President urging him to sign the bill without delay.

“This bill closes a loophole that denies a fair day in court to American victims of some of the most heinous terrorist attacks in our history. I urge you to sign this bill without delay,” Blumenthal states in his letter.