Human Rights Commentaries by Mary Ann Glendon, Chair of the Commission on Unalienable Rights

A prior post reviewed the limited public record (to date) of the first meeting on October 23 of the Commission on Unalienable Rights.

To gain a better understanding of what to expect from the Commission, this blog will examine two recent commentaries on human rights by, and an interview of, the Commission’s Chair, Mary Ann Glendon, the Learned Hand Professor of Law at the Harvard Law School, the author of a major book about the development of the Universal Declaration of Human Rights (UDHR) [1] and a prominent Roman Catholic who was U.S. Ambassador to the Vatican in the George W. Bush Administration. The Conclusion will evaluate her comments and those made by others at the first meeting.

Reclaim Human Rights (August 2016) [2]

Glendon began this article by acknowledging that she had been a participant in the Ramsey Colloquium’s 1998 affirmation of the UDHR as “the most available discourse for cross-cultural deliberation about the dignity of the human person” and as making “possible a truly universal dialogue about our common human future.” [3] She also affirmed she was “a longtime supporter of the cautious use of rights language, and a frequent critic of its misuses.”

Nevertheless, Glendon said that a 2016 criticism of human rights by R.R. Reno, the editor of First Things, [4] caused her to “ponder whether the noble post-World War II universal human rights idea has finally been so manipulated and politicized as to justify its abandonment by men and women of good will.”

According to Glendon, by “1998, governments and human-rights organizations alike were ignoring the fact that the UDHR was constructed as an integrated document whose core fundamental rights were meant to be ‘interdependent and indivisible.’ [However, by 1998, the] sense of the interdependence among rights and the connections between rights and responsibilities was fading.” Moreover, “a host of special-interest groups [were inspired] to capture the moral force and prestige of the human-rights project for their own purposes. . . .[The] core of basic human rights that might be said to be universal was being undermined by ‘multiplying the number of interests, goods, and desires that are elevated to the status of rights.”

As a result, by 2016, she argues, “the post-World War II dream of universal human rights risks dissolving into scattered rights of personal autonomy.”

Reno’s criticism of human rights, Glendon continues, emphasizes “the way that human rights as an ideology detracts from the difficult and demanding work of politics.” This is especially true in the U.S., she says, as “judicially-created rights have displaced political judgements that could and should have been left to the ordinary processes of bargaining, education, persuasion, and voting.” This has damaged “the American democratic experiment” by making it more difficult to correct an unwise judicial decision, intensifying “the politicization of the judicial selection process,” depriving “the country of the benefits of experimentation with different solutions to difficult problems” and accelerating “the flight from politics.”

Glendon concludes by urging “church leaders and people of good will to make every effort to connect the human-rights project to an affirmation of the essential interplay between individual rights and democratic values. We should insist on the connection between rights and responsibilities. And we should foster an appreciation of the ultimate dependence of rights upon the creation of rights-respecting cultures.”

 “Renewing Human Rights” (February 2019) [5]

“When Eleanor Roosevelt and a small group of people gathered at the behest of the U.N. in early 1947 to draft the world’s first ‘international bill of rights’” (the subsequent UDHR), the “idea that some rights could be universal—applicable across all the world’s different societies—was controversial.”

“Yet in the decades that followed, the UDHR . . . successfully challenged the view that sovereignty provided an iron shield behind which states could mistreat their people without outside scrutiny.”

“But now . . . the international human rights idea is in crisis, losing support both at home and abroad. Good intentions, honest mistakes, power politics, and plain old opportunism have all played a role in a growing skepticism, and even a backlash.”

As Glendon sees it, “there were three stages” to this change: [1] a pick-and-choose attitude toward rights initiated by the two superpowers in the Cold War era [U.S. and U.S.S.R.]; [2] an over-extension of the concept once the human rights idea showed its moral force; and [3] a forgetfulness of the hard-won wisdom of the men and women who had lived through two world wars.”

“The end of the Cold War increased the influence of human rights. American predominance, Western ideological ascendancy, a series of atrocities and conflicts, and a growing role for the United Nations and other international actors spurred the rapid growth of human rights activism in the 1990s. By the 2000s, there were many human rights organizations, including specialists, activists, agencies for monitoring and enforcement, and academic journals.”

These changes brought about “an interventionist approach, backed by Western—especially American—power. . . .  The establishment of state-like institutions such as the International Criminal Court (which the United States ultimately did not endorse), and doctrines such as the ‘Responsibility to Protect,’ reflected this shift. They increased the human rights field’s ability to frame the international agenda and set global standards. . . .  This encouraged an expansion in the number of basic rights.”

“Given that individual rights were gaining ascendancy, the role of social institutions and non-­individualistic values were deemphasized. A one-size-fits-all approach triumphed over the idea of a common standard that could be brought to life in a variety of legitimate ways. The indivisibility and inter­dependence of fundamental rights were ­forgotten.”

Some states now object to “uniform methods of interpreting and implementing” human rights treaties and to “supra­national institutions. They are remote from the people whose lives they affect. They lack public scrutiny and accountability, are susceptible to lobbying and political influence, and have no internal checks and balances.”

According to Glendon, the following “four major principles that the UDHR’s framers followed [in 1947-48] can reinvigorate the human rights idea in our own time:”

  • Modesty concerning universality. “The framers wisely confined themselves to a small set of principles so basic that no country or group would openly reject them. This was essential not only in order to gain broad political support within the U.N., but also to ensure that the Declaration would have deep and long-lasting support across vastly different cultures, belief systems, and political ideologies.”
  • Flexible universalism.” The UDHR framers “understood that there would always be different ways of applying human rights to different social and political contexts, and that each country’s circumstances would affect how it would fulfill its requirements.” For example, . . . [UDHR’s] Article 22 provides: ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’ (Emphasis added.) Another example is Article 14, which states, ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution,’ but is silent on how that right should be protected.
  • Interdependence of basic rights.” The UDHR makes it clear “that everyone’s rights depend on respect for the rights of others, on the rule of law, and on a healthy civil society. . . . The framers of the [UDHR] did not expect uniform management of tensions or conflicts between rights. . . . [and instead] assumed that communities must balance the weight of claims of one right versus another before determining the best course of action.” Only a few rights do not allow such variation: “protections for freedom of religion and conscience” as well as “prohibitions of torture, enslavement, degrading punishment, . . .retroactive penal measures, and other grave violations of human dignity.”
  • “Subsidiarity.” Emphasis on “the primacy of the lowest level of implementation that can do the job, reserving national or international actors for situations where smaller entitles are incapable.” This principle, as stated in the UDHR’s Proclamation, also calls on “every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms.”

Glendon concludes by arguing for a new human rights goal: “the systematic elimination of a narrow set of evils for which a broad consensus exists across all societies. This would at least include “protections against genocide; slavery; torture; cruel, inhuman, or degrading treatment or punishment; retroactive penal measures; deportation or forcible transfer of population; discrimination based on race, color, sex, language, religion, nationality, or social origin; and protection for freedom of conscience and religion.”

Glendon Interview [6]

On August 3, 2019, Glendon was interviewed by Jack Goldsmith, another Harvard Law School professor of international law. Here are her comments that were not already expressed in the above articles.

She said there was confusion and crisis in human rights with roughly half of the world’s population without any rights and exasperated by disappointing performance of international human rights institutions.

Socrates said that definition of terms was the beginning of wisdom, and this is especially important since human rights are now important parts of U.S. foreign policy.

The concept of “unalienable rights,” which the printer of the original Declaration of Independence substituted for Thomas Jefferson’s draft’s use of “inalienable,” has evolved with the U.S. Bill of Rights (the first ten amendments to the Constitution) and the words of Abraham Lincoln and Martin Luther King, Jr.

While the U.S. Declaration of Independence talked about “laws of nature” or pre-political rights, the UDHR is grounded in the world’s religious and philosophical traditions.

Glendon emphasized the civil and political rights in the UDHR were interdependent with economic and social rights and pointed to the New Deal and the preambles of many U.S. statutes on economic and social issues as expressing this interdependence. This also is stated in Article 22 of the UDHR: ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’” (Emphasis added.) This provision rejected the Soviet Union’s position that the state was solely responsible for such rights with Eleanor Roosevelt saying during the deliberations over the UDHR that no one had figured out how to do that without loss of freedom.

Another emphasis of Glendon was on the UDHR Proclamation’s words: ‘every individual and every organ of society, Keeping the [UDHR] constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of [U.N.] Member States themselves and among the peoples of territories under their jurisdiction.” Or as Judge Learned Hand said, ‘The spirit of liberty will die if not in the hearts of the people.’

Reactions

 Glendon’s primary focus in these two articles and interview is the UDHR, which is mentioned as one of two  guiding authorities for the Commission on Unalienable Rights, but Glendon has less to say about the U.S. Declaration of Independence, which is the other guiding authority for this Commission.

We all should seek to follow her emphasizing the UDHR’s interdependency of civil and political rights with economic and social rights and the importance of every individual and every organ of society striving by teaching and education to promote respect for human rights and freedoms.

The UDHR indeed is an important international human rights instrument. But it is a declaration adopted by the U.N. General Assembly in 1948. It does not by itself establish legal obligations on any nation state or other person.

In any event, Glendon says nothing about another provision of the UDHR’s Proclamation: “every individual and every organ of society , keeping this Declaration constantly in mind, shall strive . . . by progressive measures, national and international, to secure [these rights and freedoms] universal and effective recognition and observance.” (Emphasis added.) In other words, the UDHR itself contemplated that there should be additional measures, including national legislation and international treaties, to secure the rights and freedoms articulated in the UDHR and, by implication, that these other measures will include “rights” language. Moreover, under the principle of “flexible universalism,” a developed and wealthy country like the U.S. could well find ways to secure the rights mentioned in the UDHR that are more complex than those in other countries.

A similar principle for the Commission exists in the U.S. Declaration of Independence.  It says, as the Commission emphasizes, “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness.” But the very next sentence of the U.S. Declaration says, but the Glendon and the Commission ignore, “That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” (Emphasis added.) In other words, the U.S. Declaration contemplates that the not yet established U.S. government subsequently will enact statutes that protect the unalienable rights, only three of which are specifically mentioned in the Declaration.[7] These are not “ad hoc” rights as Secretary Pompeo likes to say.

As a result, after the 1948 adoption of the UDHR, various U.N. organizations have drafted and adopted many international human rights treaties,[8] and the U.S. federal and state governments have adopted many human rights statutes and regulations.

This obvious point is surprisingly overlooked by Glendon when she lauds UDHR’s Article 14 on the right to asylum as an example of flexible universalism because it does not say how that right should be protected. But the 1951 Convention Relating to the Status of Refugees that entered into force on April 22, 1954, defines”refugee” and specifies many conditions for that protection while limiting reservations under Article 42. Presumably she is not arguing that this treaty was a mistake.

Indeed, we should all celebrate, not complain as Secretary Pompeo likes to do, that there has been such proliferation or in Glendon’s words, “too much contemporary emphasis on ‘rights’ language. These arguments by Pompeo and Glendon can be seen as underhanded ways to cut back or eliminate rights that they do not like, which I assume would include abortion and LGBQ rights. Such rights constantly are criticized by her church (Roman Catholic) and by the Commission’s creator, Secretary of State Michael Pompeo, and others in the State Department.[9]

Criticism of Glendon’s apparent adherence to traditional Roman Catholic teachings on some of these issues comes from her successor as U.S. Ambassador to the Vatican in the Obama Administration, Miguel Diaz, along with 128 Catholic activists and leaders, in a letter opposing the Commission. [10] They said, “Our faith and our commitment to the principles of democracy require us to view every person on earth as a full human being. We staunchly support the fundamental human rights of all people and proudly carry on the long tradition in our country of advocating for expanding human rights around the world. Our concern is that this Commission will undermine these goals by promoting a vision of humanity that is conditional, limiting, and based on a very narrow religious perspective that is inconsistent with the beliefs and practices of billions in this country and around the world. Our faith and our commitment to the principles of democracy require us to view every person on earth as a full human being. We staunchly support the fundamental human rights of all people and proudly carry on the long tradition in our country of advocating for expanding human rights around the world,” they write. “Our concern is that this Commission will undermine these goals by promoting a vision of humanity that is conditional, limiting, and based on a very narrow religious perspective that is inconsistent with the beliefs and practices of billions in this country and around the world. Of most urgent concern is that the composition of the Commission indicates that it will lead our State Department to adopt policies that will harm people who are already vulnerable, especially poor women, children, LGBTI people, immigrants, refugees, and those in need of reproductive health services. This is being done “in the name of a very partial version of Christianity that is being promoted by the current Administration.” “All human beings,” however, “have been created in God’s image and all have been endowed by their Creator with the fundamental right to Life, Liberty, and the pursuit of Happiness. No person speaking in the name of government or in the name of God can do so to undermine or to deny this right.”

Nor does Glendon discuss how to resolve conflicts among rights. For example, the U.S. Declaration’s mention of “life” as one of the “unalienable rights” is taken by some, and probably Glendon, as a basis for arguing there should be no right to an abortion. But an abortion may be necessary to protect an expectant woman’s right to “life” or her “pursuit of happiness.”  How are those conflicts resolved? That is why we have federal and state and international courts and agencies to resolve these conflicts or disputes.

The previously cited “four major principles” of the UDHR are worthy of remembering and guiding future human rights, internationally and domestically.

Glendon, however, fails to acknowledge the continued use of the “flexible universalism” principle in human rights treaties that allow for their ratification by nation states with reservations for at least some of the treaty’s provisions. And, of course, a state may chose not to ratify a treaty and thereby not be bound by any of its provisions. [11] Moreover, there are mechanisms for other states and international agencies to address these reservations and non-ratifications. For example, in the U.H. Human Rights Council’s Universal Periodic Review process, the Council and other states may, and do, make recommendations for states to withdraw reservations or ratify certain treaties. The same was done by the Council’s predecessor, the U.N. Human Rights Committee.[12]

The words of Professor Michael McConnell from the Commission’s first meeting should also be remembered in this evaluation of its ongoing work. He warned that the term “‘unalienable rights,’ which comes to us from our country’s protestant reform traditions, has never had a common or precise definition. The phrase identifies a philosophical concept, rather than a concrete set of rights.  And while the concept often prioritizes freedom of religion, McConnell cautioned that our founders were ultimately more concerned with freedom of conscience, which includes but is not limited to a narrow understanding of religious freedom.”

“McConnell also recognized the implicit failures of this philosophical approach.  While the term ‘unalienable rights’ makes for inspirational prose, the philosophical concept behind it embraced our country’s original sin of slavery and denied women full standing in society. Concepts of equal protection could not, and did not, exist at this time, under this philosophical tradition.”

Andrea Schmitt of the Center for American Progress who attended  the Commission’s first meeting also had words of wisdom for the Commission. She said, “It is simply wrong-headed and ultimately self-defeating to create an artificial human rights hierarchy — one that strips away the universality of human rights and puts a limited number of political and religious rights above all others.  Indeed, this enterprise stands to harm religious freedom itself, as it gives philosophical justification to theocratic governments and religious majority populations who are, by far, the leading persecutors of religious minorities around the world.”

We all should thank Professor Glendon for her expertise and willingness to serve as Chair of the Commission. Those of us interested in international human rights need to carefully follow the Commission’s deliberations and eventual reports and express our agreements and disagreements with respect and reasoned arguments.

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[1] Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2001); The Importance of the Universal Declaration of Human Rights, dwkcommentaries.com (July 11, 2019).

[2] Glendon, Reclaim Human Rights, First Things (Aug. 2016).

[3] The Ramsey Colloquium apparently published reflections about early Christianity’s treatment of homosexuality. (Graeser, The Ramsey Colloquium and Other First Things Resources, Mars Hill Audio (June 29, 2001).

[4] Reno, Against Human Rights, First Things (May 2016). Reno is a former professor of theology and ethics at Creighton University, a Jesuit institution until 2010 when he became the editor of First Things. In 2004 at age 45 he left the Episcopal Church to join the Roman Catholic Church and  describes himself as a theological and political conservative. First Things, which describes itself as“America’s most influential journal of religion and public life,” is published by the Institute on Religion and Public Life, an interreligious, nonpartisan research and educational 501(c)(3) organization. The Institute was founded in 1989 by Richard John Neuhaus and his colleagues to confront the ideology of secularism, which insists that the public square must be ‘naked,’ and that faith has no place in shaping the public conversation or in shaping public policy.” The Institute’s mission is to articulate a governing consensus that supports: a religiously pluralistic society that defends human dignity from conception to natural death; a democratic, constitutionally ordered form of government supported by a religiously and morally serious culture; a vision of freedom that encourages a culture of personal and communal responsibility; and loyalty to the Western tradition that provides a basis for responsible global citizenship.”

[5]  Glendon & Kaplan, Renewing Human Rights, First Things (Feb. 2019) The co-author, Seth D. Kaplan, is a professorial lecturer at the Paul H. Nitze School of Advanced International Studies at John Hopkins University. He is a consultant to organizations such as the World Bank, USAID, State Department, United Nations and African Development Bank.

[6] Howell, The Lawfare Podcast: Mary Ann Glendon on Unalienable Rights, Lawfare (Aug. 3, 2019).

[7] See The U.S. Declaration of Independence’s Relationship to the U.S. Constitution and Statutes, dwkcommentaries.com (July 5, 2019).

[8] As of 2009, there were at least the following significant multilateral human rights treaties: (1) U.N. Charter; (2) International Covenant on Economic, Social and Cultural Rights; (3) First Optional Covenant to the International Covenant on Civil and Political Rights; (4) Covenant on the Prevention and Punishment of the Crime of Genocide; (5) Convention Relating to the Status of Refugees; (6) Protocol Relating to the Status of Refugees; (7) International Convention on the Elimination of All Forms of Racial Discrimination; (8) Convention on the Elimination of All Forms of Discrimination against Women; (9) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (10) Convention on the Rights of the Child; (11) Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the elimination of the death penalty; (12) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; (13) Statute of the International Court; and (14) International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. (Weissbrodt, Ni Aoláin, Fitzpatrick & Newman, International Human Rights: Law, Policy, and Process at 33-35 (Lexis/Nexis 4th edition 2009).)

[9] See, e.g.,  U.S. Opposition to “Abortion” and “Sexual and Reproductive Health and Rights” at U.N. High-Level Meeting, dwkcommentaries.com (Sept. 25, 2019).

[10] White, Former U.S. envoy to Vatican opposes new commission headed by predecessor, Crux (Jul. 23, 2019).

[11] Under international law, “A State may, when signing, ratifying, accepting, approving, or acceding to a treaty, formulate a reservation unless (a) the reservation is prohibited by a treaty; (b) the treaty provides that only specified reservations, which do not include the reservation  in question, may be made; or (c) in cases not falling under sub-paragraphs (a) or (b), the reservation is incompatible with the object and purpose of the treaty.” (Vienna Convention on the Law of Treaties, arts. 19 (1980); id. Arts. 2(1) (d),20, 21, 22 )  See also,e.g., these posts to dwkcommentaries.com: Multilateral Treaties Signed, But Not Ratified, by the U.S., dwkcommentaries.com (Feb. 12, 2013); Multilateral Human Rights Treaties That Have Not Been Signed and Ratified by the U.S., dwkcommentaries.com (Feb. 16, 2013).

[12] See, e.g., these posts to dwkcommentaries.com: U.H. Human Rights Committee’s Review of U.S. Human Rights (April 19, 2014); U.N. Human Rights Committee’s Hearings About U.S. Human Rights (April 21, 2014); U.N. Human Rights Committee‘s Concluding Observations on U.S. Human Rights (April 24, 2014); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: Background (June 12, 2018); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: The Pre-Hearing Papers (June 12, 2018); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: The UPR Hearing (June 16, 2018); U.N. Human Rights Council’s Final Consideration of Cameroon’s Universal Periodic Review (Sept. 20, 2018).

 

 

 

Enactment of the Justice Against Sponsors of Terrorism Act (JASTA) Over the Presidential Veto

As a previous post reported, from September 16, 2015, through September 9, 2016, the current Session of Congress considered and overwhelmingly adopted the Justice Against Terrorism Act (JASTA). Although neither chamber of Congress held hearings on JASTA this Session and voiced little opposition to the bill, objections to the bill were raised outside Congress, and on September 23, 2016, President Obama vetoed the bill, as was mentioned in a prior post. Thereafter Congress overrode the veto and JASTA became law, whose details were discussed in another previous post.

Now we will retreat in time and examine the president’s veto message and the congressional overriding of the veto. Another post will look at subsequent efforts to amend JASTA.

President Obama’s Veto Message

 On September 23, President Obama vetoed JASTA and returned the bill to Congress with a message stating the following reasons for the veto:[1]

  • “Enacting JASTA into law . . . would neither protect Americans from terrorist attacks nor improve the effectiveness of our response to such attacks. As drafted, JASTA would allow private litigation against foreign governments in U.S. courts based on allegations that such foreign governments’ actions abroad made them responsible for terrorism-related injuries on U.S. soil. This legislation would permit litigation against countries that have neither been designated by the executive branch as state sponsors of terrorism nor taken direct actions in the United States to carry out an attack here. The JASTA would be detrimental to U.S. national interests more broadly, which is why I am returning it without my approval.”
  • “First, JASTA threatens to reduce the effectiveness of our response to indications that a foreign government has taken steps outside our borders to provide support for terrorism, by taking such matters out of the hands of national security and foreign policy professionals and placing them in the hands of private litigants and courts.”
  • “Any indication that a foreign government played a role in a terrorist attack on U.S. soil is a matter of deep concern and merits a forceful, unified Federal Government response that considers the wide range of important and effective tools available. One of these tools is designating the foreign government in question as a state sponsor of terrorism, which carries with it a litany of repercussions, including the foreign government being stripped of its sovereign immunity before U.S. courts in certain terrorism-related cases and subjected to a range of sanctions. Given these serious consequences, state sponsor of terrorism designations are made only after national security, foreign policy, and intelligence professionals carefully review all available information to determine whether a country meets the criteria that the Congress established.”
  • “In contrast, JASTA departs from longstanding standards and practice under our Foreign Sovereign Immunities Act and threatens to strip all foreign governments of immunity from judicial process in the United States based solely upon allegations by private litigants that a foreign government’s overseas conduct had some role or connection to a group or person that carried out a terrorist attack inside the United States. This would invite consequential decisions to be made based upon incomplete information and risk having different courts reaching different conclusions about the culpability of individual foreign governments and their role in terrorist activities directed against the United States — which is neither an effective nor a coordinated way for us to respond to indications that a foreign government might have been behind a terrorist attack.”
  • “Second, JASTA would upset longstanding international principles regarding sovereign immunity, putting in place rules that, if applied globally, could have serious implications for U.S. national interests. The United States has a larger international presence, by far, than any other country, and sovereign immunity principles protect our Nation and its Armed Forces, officials, and assistance professionals, from foreign court proceedings. These principles also protect U.S. Government assets from attempted seizure by private litigants abroad. Removing sovereign immunity in U.S. courts from foreign governments that are not designated as state sponsors of terrorism, based solely on allegations that such foreign governments’ actions abroad had a connection to terrorism-related injuries on U.S. soil, threatens to undermine these longstanding principles that protect the United States, our forces, and our personnel.”
  • “Indeed, reciprocity plays a substantial role in foreign relations, and numerous other countries already have laws that allow for the adjustment of a foreign state’s immunities based on the treatment their governments receive in the courts of the other state. Enactment of JASTA could encourage foreign governments to act reciprocally and allow their domestic courts to exercise jurisdiction over the United States or U.S. officials — including our men and women in uniform — for allegedly causing injuries overseas via U.S. support to third parties. This could lead to suits against the United States or U.S. officials for actions taken by members of an armed group that received U.S. assistance, misuse of U.S. military equipment by foreign forces, or abuses committed by police units that received U.S. training, even if the allegations at issue ultimately would be without merit. And if any of these litigants were to win judgments — based on foreign domestic laws as applied by foreign courts — they would begin to look to the assets of the U.S. Government held abroad to satisfy those judgments, with potentially serious financial consequences for the United States.”
  • “Third, JASTA threatens to create complications in our relationships with even our closest partners. If JASTA were enacted, courts could potentially consider even minimal allegations accusing U.S. allies or partners of complicity in a particular terrorist attack in the United States to be sufficient to open the door to litigation and wide-ranging discovery against a foreign country — for example, the country where an individual who later committed a terrorist act traveled from or became radicalized. A number of our allies and partners have already contacted us with serious concerns about the bill. By exposing these allies and partners to this sort of litigation in U.S. courts, JASTA threatens to limit their cooperation on key national security issues, including counterterrorism initiatives, at a crucial time when we are trying to build coalitions, not create divisions.”
  • “The 9/11 attacks were the worst act of terrorism on U.S. soil, and they were met with an unprecedented U.S. Government response. The United States has taken robust and wide-ranging actions to provide justice for the victims of the 9/11 attacks and keep Americans safe, from providing financial compensation for victims and their families to conducting worldwide counterterrorism programs to bringing criminal charges against culpable individuals. I have continued and expanded upon these efforts, both to help victims of terrorism gain justice for the loss and suffering of their loved ones and to protect the United States from future attacks. The JASTA, however, does not contribute to these goals, does not enhance the safety of Americans from terrorist attacks, and undermines core U.S. interests.”

Reactions to the Veto

Immediately after President Obama’s veto of JASTA, both Republicans and Democrats in Congress vowed to override the veto under Article I, Section 7 of the U.S. Constitution requiring a vote of at least two-thirds of each chamber of the Congress to do so. On the sidelines both major presidential candidates (Donald Trump and Hillary Clinton) said that they would have signed the bill if they were president.

These vows were made despite the prior day’s testimony before a Senate committee by Secretary of Defense Ash Carter opposing the bill on the ground that it could be a problem for the U.S. if another country was “to behave reciprocally towards the U.S.” And the Republican Chair of the House Armed Services Committee, Representative Mac Thornberry of Texas, amplified the military’s concerns and urged Republicans to study the bill’s consequences while announcing his intent to opposes the override.[2]

Not surprisingly immediately after this veto, Senator John Cornyn stated, “It’s disappointing the President chose to veto legislation unanimously passed by Congress and overwhelmingly supported by the American people. Even more disappointing is the President’s refusal to listen to the families of the victims taken from us on September 11th, who should have the chance to hold those behind the deadliest terrorist attack in American history accountable. I look forward to the opportunity for Congress to override the President’s veto, provide these families with the chance to seek the justice they deserve, and send a clear message that we will not tolerate those who finance terrorism in the United States.”[3]

On September 27 President Obama sent a letter to Senators Mitch McConnell (Rep., TN), the Majority Leader, and Harry Reid (Dem. NV), Minority Leader. The President said he was “fully committed to assisting the families of the victims of terrorist attacks of Sept. 11,″ but that the consequences of an override could be “devastating” by putting military and other U.S. officials overseas at risk. The bill’s enactment, he warned, “would neither protect Americans from terrorist attacks nor improve the effectiveness of our response to such attacks.[4]

On September 28 Senators Cornyn and Shumer jointly wrote an op-ed article in USA Today urging Congress to override the veto because JASTA “would provide a legal avenue for the families of the victims of the 9/11 attacks to seek justice in a court of law for the terrorist attacks that took the lives of their loved ones. And it would deter foreign entities from sponsoring terrorism in the future.” The article also rejected as untrue the argument by JASTA’s opponents “that the bill will subject U.S. diplomats and other government officials to a raft of potential lawsuits in foreign courts.”[5]

On the morning of September 28, the New York Times published an editorial opposing the threatened congressional override of the veto because “the bill complicates the United States’ relationship with Saudi Arabia and could expose the American government, citizens and corporations to lawsuits abroad. Moreover, legal experts like Stephen Vladeck of the University of Texas School of Law and Jack Goldsmith of Harvard Law School doubt that the legislation would actually achieve its goal.”[6]

Moreover, the Times editorial asserted that the “European Union has warned that if the bill becomes law, other countries could adopt similar legislation defining their own exemptions to sovereign immunity. Because no country is more engaged in the world than the United States — with military bases, drone operations, intelligence missions and training programs — the Obama administration fears that Americans could be subject to legal actions abroad.”

Nevertheless, later that same day (September 28) Congress overwhelmingly voted to override the presidential veto. The only vote against the override in the Senate was by the Senate Minority Leader, Senator Harry Reid (Dem., NV). The vote in the House was 348 to override with only 59 opposed.[7] We will now look at the debate in both chambers.

U.S. Senate’s Overriding the Veto

In the Senate debate, Senators Richard Blumenthal (Dem., CT), John Cornyn (Rep., TX), Chuck Grassley (Rep., IA) and Chuck Schumer (Dem. NY) spoke in favor of overriding the veto and passing JASTA while Senators Bob Corker (Rep., TN), the Chair of the Senate Foreign Relations Committee, Benjamin Cardin (Dem., DE), the Committee’s Ranking Member, and Diane Feinstein (Dem., CA) offered qualified endorsements of an override. [8]

Generally these Senators argued that U.S. victims of state-sponsored acts of terrorism needed the opportunity to assert their damage claims in U.S. courts against such sponsors and that JASTA would deter such sponsored terrorism. Senator Cornyn added that this “legislation has been pending since 2009, and we have worked through a number of Members’ concerns . . . in order to modify the legislation and build the consensus we now have achieved. . . . That means [JASTA] has been negotiated and hammered out over a long period of time.”[9]

Cornyn then offered this argument for rejection of the presidential veto message:

  • JASTA would not “create complications” with some of our close partners. It “only targets foreign governments that sponsor terrorist attacks on American soil. . . . The financing of terrorism in the [U.S.] is not behavior we should tolerate from any nation, allies included.”
  • Possible foreign laws like JASTA “applied reciprocally will open no . . . floodgates” of lawsuits against the U.S. or military members by foreign governments in foreign courts.
  • “JASTA is not a sweeping legislative overhaul that dramatically alters international law. It is an extension of law that has been on the [U.S.] books since 1976. . . . [For] 40 years our law has been replete with immunity exceptions that apply to conduct committed abroad. This bill just adds another exception.”

Senator Grassley, the Chair of the Senate Judiciary Committee, noted that this Committee unanimously supported overriding the veto of JASTA. He also said it was “highly unlikely” that passage of the bill would result in “the Saudis . . .pulling their money out of U.S. securities. . . . But even if they did, there would be plenty of buyers for those securities. But more importantly, . . . [such an argument would send the message;] if you want to influence U.S. legislation, make sure to buy up U.S. debt, and then threaten to sell that debt any time the U.S. Congress does something you don’t like. We absolutely cannot be intimidated or bend to that type of threat.”

Senator Corker commented that he had “tremendous concerns about the sovereign immunity procedures that could be set in place by other countries as a result of this vote” and that it could have adverse consequences for the U.S. “standing in the world.” He was troubled by “the concerns [of] . . . the head of our Joint Chiefs” and of the President. He also thought it would be better “to establish some type of tribunal, where experts could come in and really identify what actually happened on discretionary decisions that took place within the country of Saudi Arabia” with respect to the pending 9/11 claims.

As a result, Senator Corker prepared a bipartisan letter to the Senate sponsors of JASTA (Senators Cornyn and Schumer).[10] It expressed concern about “potential unintended consequences that may result from . . . [JASTA] for the national security and foreign policy of the United States. If other nations respond to this bill by weakening U.S. sovereign immunity protections, then the [U.S.] could face private lawsuits in foreign courts as a result of important military or intelligence activities. We would hope to work with you in a constructive manner to appropriately mitigate those unintended consequences.”

One of the signers of this letter and the Ranking Member of the Senate Foreign Relations Committee, Senator Benjamin Cardin (Dem., DE), recognized “that there are risk factors in terms of how other countries may respond to the enactment of JASTA. [11] As a nation with hundreds of thousands of troops that serve abroad, not to mention multiple foreign bases and facilities, the United States of America is a country that benefits from sovereign immunity principles that protect our country and our country’s interests, its Armed Forces, government officials, and litigation in foreign courts. Therefore, there is a concern of unintended consequences, including irresponsible applications to U.S. international activities by other countries. While I have faith and confidence in the American legal system, the same faith does not necessarily extend to the fairness of legal systems of other countries that may claim they are taking similar actions against America when they are not. So [as the Ranking Member of the Foreign Relations Committee, I will] follow closely how other countries respond and try to mitigate the risks of the [U.S.] abroad” and will “explore with my colleagues the possibility of whether we need or will need additional legislative action.”

Another signer of the letter, Senator Feinstein, expressed her “key concern relates to the exception to the immunity of foreign governments.”[12] “Proponents of this bill argue that the exception is narrow, that it applies only if a foreign nation, with ill intent, takes unlawful actions that cause an act of terrorism on our soil. But other nations that are strongly opposed to American actions abroad could respond by using the bill as an excuse to adopt laws that target our own government’s actions. A September 15 Washington Post editorial said it well: ‘It is not a far-fetched concern, given this country’s global use of intelligence agents, Special Operations forces and drones, all of which could be construed as state-sponsored `terrorism’ when convenient.’ Those of us on the Senate Intelligence Committee know that, if other countries respond to JASTA in this manner, it could jeopardize our government’s actions abroad. If that happens, it is likely that our government would be forced to defend against private lawsuits, which could pose a threat to our national security.” Therefore, she was interested in limiting JASTA to “the September 11 attacks” and to “those directly impacted by an attack–including individuals, their estates and property damage, rather than companies with only tangential connections.”

U.S. House of Representatives’ Overriding the Veto 

On the afternoon of September 28 the House voted to override the veto of JASTA by a vote of 348 (225 Republicans and 123 Democrats) to 77 (18 Republicans and 59 Democrats).[13]

The supporters of override were led by Representative Robert Goodlatte (Rep., VA), the Chair of the House Judiciary Committee, who asserted, “The changes JASTA makes to existing law are not dramatic, nor are they sweeping.. . .The President’s objections . . . have no basis under U.S. or international law.. . . Consistent with customary international law, JASTA, for terrorism cases, removes the current requirement that the entire tort occur within the United States and replaces it with a rule that only the physical injury or death must occur on U.S. soil.” Later in the debate he claimed (erroneously as explained in n.14) that his argument was supported by “Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Properties [which] would apply the territorial tort exception if the act or omission occurred in whole or in part in the territory of the state exercising jurisdiction.”[14]

Others who supported the override and who spoke during the debate were Representatives Peter King (Rep., NY), Sheila Jackson Lee (Dem., TX), Leonard Lance (Rep., NJ), David Donovan (Rep., NY), Carolyn Maloney (Dem., NY) and Jerrold Nadler (Dem. FL).

Leading the opposition to the override were Representative M. “Mac” Thornberry (Rep., TX), the Chair of the House Armed Services Committee, and Representative John Conyers (Dem., MI). Other opponents of override who spoke during the debate were Representatives Eddie Bernice Johnson (Dem., TX), David Jolly (Rep., FL), Betty McCollum (Dem., MN), Robert Scott (Dem., VA) and Earl Blumenauer (Dem., NY).

Thornberry expressed concern for the possible erosion of sovereign immunity, which is “one of the key protections that the military, diplomats, and intelligence community of the [U.S.] has around the world. Once that doctrine gets eroded, then there is less protection, and . . . the [U.S.], has more at stake in having our people protected than any other country because we have more people around the world than anyone else.” Thornberry also quoted from a letter to him from Joseph F. Dunford, Jr., General, U.S. Marine Corps. and Chairman of the Joint Chiefs of Staff: `Any legislation that risks reciprocal treatment by foreign governments would increase the vulnerability of U.S. Service members to foreign legal action while acting in an official capacity.” This letter and a letter urging defeat of the override from Secretary of Defense Ash Carter were inserted into the House record.

Conyers supported the President’s reasons for his veto. “First, the President stated that [the bill] could undermine the effectiveness of our Nation’s national security and counterterrorism efforts. For instance, other nations may become more reluctant to share sensitive intelligence in light of the greater risk that such information may be revealed in litigation.   Moreover, the President raised the concern that this legislation would effectively allow non-expert private litigants and courts, rather than national security and foreign policy experts, to determine key foreign and national security policy questions like which states are sponsors of terrorism.   Second, the President’s assertion that enactment of[the bill]may lead to retaliation by other countries against the [U.S.] given the breadth of our interests and the expansive reach of our global activities.   So while it seems likely at this juncture that [the bill] will be enacted over the President’s veto, I remain hopeful that we can continue to work toward the enactment of subsequent legislation to address the President’s concerns.”

Conyers also cited others who called for sustaining the President’s veto: Michael Mukasey, the former Attorney General under George W. Bush; Stephen Hadley, the former National Security Adviser for that President; Richard Clarke, the former White House counterterrorism adviser for Presidents Bill Clinton and George W. Bush; and Thomas Pickering, the former [U.S.] Ambassador to the United Nations.

Representative Scott said, “JASTA abrogates a core principle in international law–foreign sovereign immunity. There are already several exceptions to this immunity recognized by our Nation and others, but JASTA goes much further than any present exception or recognized practice of any national law…. One fundamental indication of fairness of legislation is not how it would work to our benefit, but what we would think if it were used against us. If the [U.S.] decides to allow our citizens to haul foreign nations into American courts, what would we think of other nations enacting legislation allowing their citizens to do the same thing to us? Obviously, we would not want to put our diplomats, military, and private companies at that risk.”

Scott also pointed out that “JASTA does not make clear how the evidence would be gathered to help build a credible case against a foreign nation. Would the plaintiffs be able to subpoena foreign officials? Or would the U.S. Department of State officials have to testify? Would . . . [the U.S.] be required to expose sensitive materials in order to help American citizens prove their case? Again, how would we feel about foreign judges and juries deciding whether or not the [U.S.] sponsored terrorism? There are also questions about how the judgment under JASTA would be enforced. The legislation does not address how a court would enforce the judgment. Could foreign assets be attached? How would this process work if other countries enacted similar legislation? Would U.S. assets all over the world be subject to attachment to satisfy the foreign jury verdicts?”

Jolly emphasized that “the President, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the CIA Director, and the Chairman of the House Armed Services Committee [Representative Thornberry] have all issued statements against this legislation.”

White House Reaction to the Overriding of the Veto

On the same day as this Senate vote and before the House voted on the same bill later that day, White House Press Secretary, Josh Earnest, said, “I would venture to say that this is the single-most embarrassing thing that the United States Senate has done possibly since 1983. You had at least one prominent Republican senator quoted today saying that . . . the members of the Senate Judiciary Committee were not quite sure what the bill actually did.  And to have members of the United States Senate only recently informed of the negative impact of this bill on our service members and our diplomats is, in itself, embarrassing.  For those senators then to move forward in overriding the President’s veto that would prevent those negative consequences is an abdication of their basic responsibilities as elected representatives of the American people.”[15]

Furthermore, said the Press Secretary, “these senators are going to have to answer their own conscience and their constituents as they account for their actions today.  You’ve got to give some credit to Harry Reid.  He showed some courage.  The same can’t be said for the other 96 members of the Senate who voted today.”

The same day President Obama on CNN said that a few lawmakers who backed the bill weren’t aware of its potential impact and that he wished Congress “had done what’s hard.” CIA Director John Brennan said he was concerned about how Saudi Arabia, a key U.S. ally in the Middle East, would interpret the bill. He said the Saudis provide significant amounts of information to the U.S. to help foil extremist plots. “It would be an absolute shame if this legislation, in any way, influenced the Saudi willingness to continue to be among our best counterterrorism partners,” Brennan said.[16]

On September 29, after the House had voted and JASTA became law, Press Secretary Earnest added, “I think what we’ve seen in the United States Congress is a pretty classic case of rapid-onset buyer’s remorse.  Within minutes of casting their vote to put that bill into law, you had members of the United States Senate — some 28 of them — write a letter expressing deep concern about the potential impact of the bill they just passed.  The suggestion on the part of some members of the Senate was that they didn’t know what they were voting for, that they didn’t understand the negative consequences of the bill. That’s a hard suggestion to take seriously when you had letters from President Bush’s attorney general and national security advisor warning about the consequences of the bill.  You had attorneys from our closest allies in Europe expressing their concerns about the impact of the bill.  You had a letter from some of America’s business leaders, including Chief Executive of GE, Jeffrey Immelt, warning about the potential economic consequences of the bill.  You had letters from the Director of the CIA, the Chairman of the Joint Chiefs of Staff, the Secretary of Defense and the Commander-in-Chief all warning about the potential impact of the bill.”[17]

Conclusion

As indicated above, certain Senators indicated their intent to pursue amendments to JASTA to remedy what they see as problems with the statute. This will be the subject of future posts.

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[1] White House, Veto Message from the President—S.2040 (Sept. 23, 2016) Afterwards Josh Earnest, the White House Press Secretary, discussed whether there was congressional opposition to overriding the veto and criticism of the bill from Saudi Arabia and “a lot of other countries, including the European Union. White House, Press Briefing by Press Secretary Josh Earnest, 9/26/16; White House, Press Briefing by Press Secretary Josh Earnest, 9/27/16.

[2] Assoc. Press, Lawmakers Vow to Override Obama’s Veto of Sept. 11 bill, N.Y. Times (Sept. 24, 2016).

[3] Cornyn, Cornyn Statement on President’s Veto of JASTA (Sept. 23, 2016).

[4] Demirjian & Ellperin, Congress overrides Obama’s veto of 9/11 bill, Wash, Post (Sept, 28, 2016).

[5] Cornyn, Cornyn Op-Ed: give 9/11 Families a Legal Avenue (Sept. 28, 2016).

[6] Editorial, The Risks of Sueing the Saudis for 9/11, N.Y. Times (Sept. 28, 2016)

[7] Steinhauer, Mazzetti & Davis, Congress Votes to Override Obama Veto on 9/11 Victims Bill, N.Y. Times (Sept. 28, 2016); Eilpirin & Demirjian, Congress thwarts Obama on bill allowing 9/11 lawsuits against Saudi Arabia, Wash. Post (Sept. 28, 2016).

[8] Cong. Rec. S6166-73 (Sept. 28, 2016).

[9] The prior post about the initial passage of JASTA started with the 2015 introduction of the bill and did not attempt to cover earlier versions of the bill or the process referenced by Senator Cornyn. Comments about this earlier process would be much appreciated.

[10] This bipartisan letter was signed by 15 Democrat Senators (Bennet, Cardin, Carper, Coons, Feinstein, Heitkamp, Hirono, McCaskill, Merkley, Nelson, Reed, Schatz, Shaheen, Udall and Warner), 12 Republican Senators (Alexander, Coats, Corker, Cotton, Flake, Graham, McCain, Risch, Roberts, Rounds, Sullivan and Thune) and Independent Senator King.

[11] Cardin, Cardin Statement on JASTA Veto Vote (Sept. 28, 2016).

[12] Feinstein, Feinstein Statement on Justice Against Sponsors of Terrorism Act (Sept. 28, 2016).

[13] Cong. Record H6023-32 (Sept. 28, 2016).

[14] The United Nations Convention on Jurisdictional Immunities of States and Property is certainly relevant to the issue of international law on the subject. Representative Thornberry, however, failed to quote the entirety of Article 12 of this treaty and thereby reached an erroneous conclusion that it supports JASTA. That Article states, “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.” The portion in bold was not quoted by Thornberry.  Moreover, this treaty is not yet in force because its Article 30 requires 30 states to become parties thereto, and to date only 21 states have done so, and the U.S. has neither signed nor ratified this treaty.

[15] White House, Press Gaggle by Press Secretary Josh Earnest en route Fort Lee, Virginia 9/28/16.

[16] Assoc. Press, Congress Rebukes Obama, Overrides Veto of 9/11 Legislation, N.Y. Times (Sept. 28, 2016); Reuters, Congress Rejects Obama Veto, Saudi Sept. 11 Bill Becomes Law, N.Y. Times (Sept, 28, 2016).

[17] White House, Press Briefing by Press Secretary Josh Earnest and Secretary of Education King (Sept. 29, 2016).

 

Pre-Veto Controversies Regarding the Justice Against Sponsors of Terrorism Act (JASTA)         

A prior post reviewed the Justice Against Sponsors of Terrorism Act (JASTA) (S.2040) that was passed by Congress on September 28, 2016, with sufficient votes to override President Obama’s veto of the bill. Now we look at the pre-veto legislative history of JASTA and controversies over the bill.

Legislative History

S.2040 was introduced in the U.S. Senate on September 16, 2015, by Senator John Cornyn (Rep., TX) with 12 Republican and 12 Democrat cosponsors. Without any hearings on the bill, the Senate Judiciary Committee on January 28, 2016, passed an amendment as a substitute for the original bill, and on February 3, 2016, the Committee Chair, Senator Charles Grassley (Rep., IA), reported the bill to the Senate without a written report.[1]

On May 17, 2016, the Senate unanimously passed the JASTA bill with limited debate.[2] On the Senate floor Senator Cornyn offered a substitute amendment and stated that the U.S. Code already had an exception to sovereign immunity for certain acts of terrorism [28 U.S.C. § 1605A], but “it does not extend to terrorist attacks on our homeland by countries and organizations that have not already been designated as state sponsors of terrorism. This [bill] makes some small changes in that legislation that first passed in 1976 to expand the scope of that [provision] to allow the families of the 9/11 tragedy to seek justice in our courts of law.” The bill has been limited to “injury in the United States.” The bill requires injuries caused by “acts of terrorism,” and excludes “acts of war.” Cornyn also discussed the secondary liability provision of the bill.[3]

Immediately following Cornyn that day, Senator Chuck Schumer (Dem., NY), a cosponsor of the bill, emphasized the bill’s provision allowing the Department of Justice to seek a stay of any lawsuit under this exception. Following the Senate’s passage of the bill, Senator Schumer issued a statement praising this action as correcting erroneous court decisions granting immunity to “foreign actors who finance and enable terrorism on a massive scale” and allowing “terrorism victims, like victims of the September 11th attacks [and of any other acts of terrorism on U.S. soil after 9/11] the opportunity to pursue [financial damage claims against] foreign states who sponsor terrorism in federal court.”[4]

On October 23, 2015, an identical companion bill (H.R.3815) was introduced in the U.S. House of Representatives by Representative Peter King (Rep., NY) with 31 Republican and 30 Democrat cosponsors. It was referred to the House Judiciary Committee, which did not hold any hearings on the bill. On September 9, 2016, the Senate companion bill (S.2040) was agreed to and passed by a voice vote in the House.[5]

 Pre-Veto Controversies Over JASTA

The Senate passage of JASTA, on May 17, 2016, was despite lobbying against the bill by Administration officials and warnings by the Saudi government that if the legislation passed, that country might begin selling off up to $750 billion in U.S. Treasury securities and other assets in the U.S. before they faced the danger of being frozen by American courts.[6]

In the midst of this congressional consideration of JASTA, on July 15, 2016, the Senate/House Select Intelligence Committee published the previously classified 28 pages regarding possible connections between Saudi Arabia and 9/11 from the Committee’s “Report on Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001.”

A journalist said that these 28 pages set forth “a wide-ranging catalog of meetings and suspicious coincidences. It details contacts between Saudi officials and some of the Sept. 11 hijackers, checks from Saudi royals to operatives in contact with the hijackers and the discovery of a telephone number in a Qaeda militant’s phone book that was traced to a corporation managing an Aspen, Colo., home of Prince Bandar bin Sultan, then the Saudi ambassador to Washington.” The 28-pages also said, ”It was not the task of this Joint Inquiry to conduct the kind of extensive investigation that would be required to determine the true significance of any such alleged connections to the Saudi Government. . . [But the Committee found no evidence that the] “Saudi government as an institution, or senior Saudi officials individually funded” Al Qaeda.[7]

Some former September 11 Commission staff members, however, pointed out that the wording in the group’s final report did not rule out the possibility that lower ranking Saudi officials had assisted the hijackers.

On the same day (July 15, 2016) of the release of the 28-pages of the Senate report, White House Press Secretary Josh Earnest said, “This information, even as it’s now publicly available, does not change the assessment of the U.S. government [as stated in these 28 pages] that there’s no evidence that the Saudi government as an institution, or senior Saudi officials individually funded al Qaeda. . . . And the 9/11 Commission was able to draw on the information that’s been declassified today as they wrote their report.  They were able to do follow-up interviews and to further investigate those leads.  Those leads didn’t really turn up anything as it relates to specific evidence about the Saudi government as an institution or senior Saudi officials individually funding al Qaeda.”[8]

Press Secretary Earnest also stated, “based on the analysis that’s been conducted by our lawyers here in the U.S. government, the way that this [proposed] law [JASTA] is written could open up U.S. companies and even potentially U.S. personnel to vulnerabilities when they’re engaged in actions or doing business or conducting official government work overseas. There is an important principle related to sovereign immunity.  And when you’re the most powerful country in the world, you’re invested in the idea of sovereign immunity, given how deeply the United States is involved in so many other countries.”

On September 9 (the same date as the House passage of JASTA) the New York Times reported that the Obama Administration had been lobbying against the bill for months and that according to Jack Goldsmith, a professor of law at Harvard and a former official in the Department of Justice under President George W. Bush, “Congress itself could have investigated lingering questions about 9/11, but instead is delegating those tasks to the unelected judiciary. The costs of the law will be borne by courts, which are an awkward place to ascertain Saudi responsibility for 9/11, and especially the president, who will have to deal with the diplomatic fallout with Saudi Arabia and other nations.”

The Times also quoted Pierre Lellouche, a member of the French Parliament, who said he would pursue legislation that would permit French citizens to sue the United States with cause. “I have sympathy with the notion of hitting those countries which actively support terrorism.” But the American bill “will cause a legal revolution in international law with major political consequences.” Even the Republican Chair of the Senate Foreign Relations Committee, Senator Bob Corker of Tennessee expressed some hesitancy over the bill. He said, “We were able to get some changes to make it less damaging to potential dangers over time. We as a nation have got more to lose on sovereignty issues than any other nation in the world. If the White House actually vetoes this, I think there will be whole levels of discussion.”[9]

Senator John Cornyn, the author of the bill, however, started a barrage of comments urging President Obama to sign the bill by saying on September 9, “the families of those lost in attacks like that on September 11th should have every means at their disposal to seek justice. . . . I hope the President will sign it into law.”  On the Senate floor on September 12 Cornyn said: “It’s important for us to send a message that that evil shall not prevail. . . . [The] victims [of 9/11] and their families still don’t have the ability to get justice from the people, including the governments, who helped fund those terrorist attacks. And that’s where the bill . . . [JASTA] comes into play because if this legislation is signed by the President, it will become the law of the land . . . to make sure that these families who are still grieving and still don’t have closure will be able to seek justice in a court of law against the people who killed their loved one on September 11th.” Cornyn on September 13 threatened an override of a presidential veto of the bill.[10]

President Obama, however, did not sign the bill into law. Instead, On September 23, he vetoed the bill as will be discussed in a subsequent post.

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[1] Library of Congress, THOMAS: S.2040 Justice Against Sponsors of Terrorism Act . Going back to 2009, earlier versions of this law were introduced, but I have not examined the history of those versions. If a reader of this post has done so, please elaborate in a comment to this post.

[2] Cong. Record S2845-48 (May 17, 2016); Mazzetti, Senate Passes Bill Exposing Saudi Arabia to 9/11 Legal Claims, N.Y. Times (May 17, 2016).

[3] U.S. Cong. Rec. S2845-2848 (May 17, 2016).

[4] Schumer, Schumer Announces Passage of Justice Against Sponsors of Terrorism Bill—Urges House to Quickly Pass Legislation Allowing American Families To Seek Justice After 9/11 Attacks (May 17, 2016); Schumer, Schumer Urges House To Swiftly Pass JASTA Bill; Law Would Allow Victims To Seek Justice for Terrorist Acts on U.S. Soil, Senator Says American Families Deserve Their Day in Court (Sept. 7, 2016).

[5] Cong. Record H5239-44 (Sept. 9, 2016); Library of Congress, THOMAS: H.R.3815 Justice Against Sponsors of Terrorism Act.

[6] See n.2 supra.

[7] Mazzetti, In 9/11 Document, View of a Saudi Effort to Thwart U.S. Action on Al Queda, N.Y. Times (July 15, 2016);    House/Senate Select Comm., 28 Pages of the 2002 Congressional Inquiry into the Sept. 2011 Attacks, N.Y. Times (July 15, 2016).

[8] White House, Press Briefing by Press Secretary Josh Earnest (July 15, 2016).

[9] Steinhauer, House Passes Bill Allowing 9/11 Lawsuits Against Saudi Arabia; White House Hints at Veto, N.Y. Times (Sept. 9, 2016).

[10] Cornyn, Cornyn Calls on President to sign 9/11 Victims Bill (Sept. 9, 2016);Cornyn, Cornyn: American People Support 9/11 Victims Bill (Sept. 12, 2016); Cornyn, Cornyn to White House: Don’t Keep 9/11 Families Waiting (Sept. 13, 2016); Cornyn, Cornyn Presses White House to Act on 9/11 Victims Bill (Sept. 19, 2016); Cornyn, Cornyn to White House: Stop Stalling on 9/11 Bill (Sept. 20, 2016).