A controversial new federal statute—the Justice Against Sponsors of Terrorism Act (JASTA) –creates another exception to foreign state (sovereign) immunity in U.S. courts for certain claims regarding terrorism. Understanding this new exception first requires a look at the current law on such immunity and exceptions before we look at the new exception. This new exception, adopted by Congress’ overriding a presidential veto, has been described in the press as focused on 9/11 claims against Saudi Arabia, but it is not so limited. It also has generated a lot of controversy both before and after the congressional override, which will be examined in subsequent posts.
U.S. Law on Foreign State (Sovereign) Immunity
The underlying purpose of the U.S. statutes regarding immunity of foreign states in U.S. courts is put forth in 28 U.S.C. § 1602, which states:
- “The Congress finds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.”
The basic rule of immunity is simply stated in 28 U.S.C. § 1604: “Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.” (Emphasis added.)
Preexisting General Exceptions to Foreign State (Sovereign) Immunity
The preexisting six general exceptions of such immunity are found in 28 U.S.C. § 1605 (a): (1) waiver of immunity; (2) certain cases relating to commercial activity; (3) certain cases relating to property in the U.S.; (4) certain cases for damage claims for torts committed in the U.S.; (5) certain cases relating to arbitration; and (6) certain admiralty cases.
Preexisting Terrorism Exception to Foreign State (Sovereign) Immunity
The preexisting statutes in 28 U.S.C. § 1605A contained an exception to foreign state immunity for certain acts of terrorism. It provides there is no immunity for a foreign state designated by the U.S. as a “state sponsor of terrorism”[1] for claims for “money damages [by a U.S. national or a member of the U.S. armed forces or an employee or contractor of the U.S. government] . . . for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.”
New Terrorism Exception for Foreign State (Sovereign) Immunity
The Justice Against Sponsors of Terrorism Act (JASTA) (S.2040) (114th Cong., 2nd Sess.), which was passed by Congress on September 28 over a presidential veto, added a new terrorism exception to foreign state immunity in the U.S. Code’s Chapter on Foreign State Immunity: That new exception states as follows:
“§ 1605B. Responsibility of foreign states for international terrorism against the United States”
“(a) Definition.—In this section, the term ‘international terrorism’— “(1) has the meaning given the term in section 2331 of title 18, United States Code;[2] and “(2) does not include any act of war (as defined in that section).”[3]
“(b) Responsibility Of Foreign States.—A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by—“(1) an act of international terrorism in the United States; and (2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred.”
“(c) Claims By Nationals Of The United States.—Notwithstanding section 2337(2) of title 18, [4] a national of the United States may bring a claim against a foreign state in accordance with section 2333 of that title if the foreign state would not be immune under subsection (b).
“(d) Rule Of Construction.—A foreign state shall not be subject to the jurisdiction of the courts of the United States under subsection (b) on the basis of an omission or a tortious act or acts that constitute mere negligence.”
JASTA also provides in its section 5 a remedy for the U.S. Attorney General to seek a stay (postponement) of any case allowed under this new exception to foreign state immunity. It states as follows:
“SEC. 5. STAY OF ACTIONS PENDING STATE NEGOTIATIONS.”
“(a) Exclusive Jurisdiction.—The courts of the United States shall have exclusive jurisdiction in any action in which a foreign state is subject to the jurisdiction of a court of the United States under section 1605B of title 28, United States Code. . . .”
“(b) Intervention.—The Attorney General may intervene in any action in which a foreign state is subject to the jurisdiction of a court of the United States under section 1605B of title 28, United States Code, . . . for the purpose of seeking a stay of the civil action, in whole or in part.
“(c) Stay.—
“(1) IN GENERAL.—A court of the United States may stay a proceeding against a foreign state if the Secretary of State certifies that the United States is engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state, or any other parties as to whom a stay of claims is sought.
(2) DURATION.—
(A) IN GENERAL.—A stay under this section may be granted for not more than 180 days.
(B) EXTENSION.—
(i) IN GENERAL.—The Attorney General may petition the court for an extension of the stay for additional 180-day periods.
(ii) RECERTIFICATION.—A court shall grant an extension under clause (i) if the Secretary of State recertifies that the United States remains engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state, or any other parties as to whom a stay of claims is sought.”
Creation of New Cause of Action
In addition to the above provisions regarding a new exception to foreign state immunity, JASTA in section 2 has a lengthy statement of congressional findings and statement of its purpose and in section 4 creates the following new cause of action:
“SEC. 4. AIDING AND ABETTING LIABILITY FOR CIVIL ACTIONS REGARDING TERRORIST ACTS.
(a) In General.—Section 2333 of title 18, United States Code, [5] is amended by adding at the end the following:
(d) Liability.—
(1) DEFINITION.—In this subsection, the term ‘person’ has the meaning given the term in section 1 of title 1. [6]
(2) LIABILITY.—In an action under subsection (a) for an injury arising from an act of international terrorism committed, planned, or authorized by an organization that had been designated as a foreign terrorist organization under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189), [7] as of the date on which such act of international terrorism was committed, planned, or authorized, liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”
Conclusion
As just shown, the subject of foreign state (sovereign) immunity is a complicated and interrelated area of U.S. statutory law even without attempting to examine the case law interpreting these statutes. The new statute with the new terrorism exception to such immunity has no specific mention of Saudi Arabia or of 9/11 claims. The controversy over this statute, before and after the congressional override of the presidential veto, will be examined in subsequent posts.
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[1] This blog frequently has commented on the U.S. law regarding “state sponsor of terrorism” as it applies to Cuba. See “Cuba: State Sponsor of Terrorism?” section in List of Posts to dwkcommentaries—Topical: Cuba.
[2] “International terrorism” is defined in 18 U.S.C. § 2331(1) as “activities that—(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;(B) appear to be intended—(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.”
[3] “Act of war” is defined in 18 U.S.C. § 2331 (4) as “any act occurring in the course of—(A) declared war; (B) armed conflict, whether or not war has been declared, between two or more nations; or (C) armed conflict between military forces of any origin.”
[4] 18 U.S.C. § 2337(2) provides, “No action shall be maintained under section 2333 of this title against . . . (2) a foreign state, an agency of a foreign state, or 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.”
[5] 18 U.S.C. § 2333 –Civil Remedies [for international terrorism] provides in subsection (a): “Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.”
[6] 1 U.S.C. § 1 defines “person” as including “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
[7] 8 U.S.C. § 1189 “Designation of foreign terrorist organization” grants the Secretary of State the authority to “designate an organization as a foreign terrorist organization . . . if the Secretary finds that—(A) the organization is a foreign organization; (B) the organization engages in terrorist activity (as defined in section 1182(a)(3)(B) of this title or terrorism (as defined in section 2656f(d)(2) of title 22), or retains the capability and intent to engage in terrorist activity or terrorism); and (C) the terrorist activity or terrorism of the organization threatens the security of [U.S.] nationals or the national security of the [U.S.].” https://www.law.cornell.edu/uscode/text/8/1189#fn002037
Suggestion that JASTA Is Unconstitutional # 894A—12/1/16
Suggestion that JASTA Is Unconstitutional
Attorneys and frequent commentators, David B. Rivkin and Lee A. Casey, have opined that the just-adopted (over presidential veto) Justice Against Sponsors of Terrorism Act (JASTA) is unconstitutional.
JASTA would have federal courts determine whether a particular foreign state is a sponsor of terrorism. But, say the authors, “The judiciary doesn’t have access to the sort of information that would enable it to determine the motives of a foreign state. And even if it did, deciding whether to classify a country as a sponsor of terrorism is a task inherently ill-suited for judicial discernment. Recognizing and acting upon such information lies at the very core of the president’s foreign-affairs powers.”
Indeed, they say, “the Constitution reserves such determinations to . . . the president, who is principally responsible for the formulation and implementation of American foreign policy. . . . [The Congress] cannot, however, force a president to make such a determination [about sponsorship of terrorism]. Nor can Congress vest such decision-making authority in the courts.”
The authors cite as instructive the Supreme Court’s ruling last year in Zivotofsky v. Kerry where it struck down Congress’s effort to require the executive branch to recognize Jerusalem as part of Israel by permitting American citizens born there to have their passports indicate “Israel” as their birthplace. The Court said, “these matters are committed to the Legislature and the Executive, not the Judiciary.” (More precisely, this blogger says, the Court in this case held a federal statute unconstitutional because it improperly interfered with the president’s exclusive constitutional power over recognition of foreign governments.)
Rivkin & Casey, Hold On Jasta Minute!, W.S.J. (Nov. 30, 2016) http://www.wsj.com/articles/hold-on-jasta-minute-1480551317
This blog also has published the following other posts about JASTA: (1) Pre-Veto Controversies Regarding the Justice Against Sponsors of Terrorism Act (JASTA) (Oct. 11, 2016), https://dwkcommentaries.com/2016/10/11/pre-veto-controversies-regarding-the-justice-against-sponsors-of-terrorism-act-jasta; (2) Enactment of the Justice Against Sponsors of Terrorism Act (JASTA) Over Presidential Veto (Oct. 26, 2016), https://dwkcommentaries.com/2016/10/26/enactment-of-the-justice-against-sponsors-of-terrorism-act-jasta-over-the-presidential-veto/; and (3) Possible Amendments to the Justice Against Sponsors of Terrorism Act (JASTA) (Oct. 30, 2016), https://dwkcommentaries.com/2016/10/30/possible-amendments-to-the-new-justice-against-sponsors-of-terrorism-act-jasta.
In addition, this blog published a post about the Zivotofsky case’s discussion of two facets of U.S.-Cuba history: U.S. Supreme Court Comments on U.S.-Cuba History (Aug. 12, 2015), https://dwkcommentaries.com/2015/08/12/u-s-supreme-court-comments-on-u-s-cuba-history/.