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).