JASTA was enacted into law on September 28, 2016. JASTA ensures that those who aid and abet terrorist attacks on U.S. soil must appear in U.S. courts and answer to the evidence, even if they are foreign sovereigns. Before JASTA, foreign states and their instrumentalities or “charities” were dodging accountability by manipulating U.S. sovereign immunity law. JASTA closed that loophole.
JASTA makes modest amendments to the Foreign Sovereign Immunities Act (FSIA) and the Anti-Terrorism Act (ATA) that have become necessary due to lower federal courts’ misreading of those statutes. Those judicial errors occurred in the context of ongoing civil litigation responding to the terrorist attacks of September 11, 2001.
JASTA provides that foreign states and their instrumentalities that support terrorist attacks on U.S. soil cannot hide behind “sovereign immunity” and avoid accountability in U.S. courts. This is not a novel idea. The existing “tort exception” to foreign sovereign immunity has long been understood to provide for jurisdiction where foreign states aid and abet unlawful killings and terrorism on American soil, but lower courts in September 11-related litigation have created additional, non-textual requirements that have enabled foreign states to dodge accountability. For example, the lower courts have created a requirement that all aspects of a tort must occur on U.S. soil, which is not supported by the plain words of the statute and is completely illogical when dealing with international terrorism. JASTA ensures that the FSIA operates as Congress intended, creating a clear exception to sovereign immunity in cases relating to terrorism on U.S. soil.
Congress passed the Anti-terrorism Act to give Americans a federal, civil cause of action in terrorism cases. Federal courts have disagreed about how that law addresses claims for “aiding and abetting” or “conspiracy” relating to terrorist attacks. JASTA addresses those disputes by confirming the availability of those causes of action under that law, but it is very narrowly crafted to focus on international terrorism. Specifically, this aiding and abetting (or conspiracy) liability cause of action would be available only when the act of international terrorism was committed, planned, or authorized by a foreign terrorist organization designated by the State Department as such prior to the terrorist act.
Both Congress and the Executive have repeatedly affirmed that civil litigation against terror sponsors, including foreign states, can serve an important deterrent effect. The risk of civil liability forces foreign states to maintain control of their employees and instrumentalities and to police their conduct. JASTA’s reaffirmation and strengthening of this longstanding principle will provide an additional tool in the fight against international terrorism.
JASTA is very narrowly drawn to avoid unintended consequences or retaliation abroad. Nothing in JASTA applies to U.S. activities abroad, nor would U.S. activities be implicated if other nations pass similar laws. For example, current U.S. law already rejects any equivalence between terrorism and our legitimate military acts abroad, and that existing law is reaffirmed in JASTA. Congress has made earlier efforts to expand civil liability for international terrorism support (for example, through the tort exception that has applied to killings on U.S. soil, and through 28 U.S.C. sec. 1605A), but those changes have not caused retaliation by our allies or international partners. The fact is that most civilized nations with sovereign immunity statutes already permit suits for tortious conduct on their soil, and most developing nations lack Western-style legal systems that empower citizens. Those latter states rely heavily on U.S. foreign aid as well. The United States will be stronger – and its citizens empowered – after JASTA passes.
Updated through August 2016
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