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).

 

 

The Third Day of Pope Francis’ Mission to the American People

September 24 marked the third day of Pope Francis’ mission to the American people. The highlight was his morning appearance before the U.S. Congress, which was much anticipated by all members of Congress, 31% of whom are Roman Catholic along with Vice President Joseph R. Biden Jr., who serves as president of the Senate. Immediately afterwards the Pope greeted the American people from the west front of the U.S. Capitol followed by a visit to St. Patrick’s Catholic Church in D.C. and Catholic Charities of the Archdiocese of Washington before his flight to New York City. There he participated in an evening prayer service at St. Patrick’s Cathedral.

Speech to the U.S. Congress[1]

 

Pope Francis @ U.S. Congress
Pope Francis @ U.S. Congress

With the Chamber of the U.S. House of Representatives packed with Senators and Representatives and with invited guests in its Gallery, Pope Francis made the following lengthy remarks.

“I am most grateful for your invitation to address this Joint Session of Congress in ‘the land of the free and the home of the brave.’ I would like to think that the reason for this is that I too am a son of this great continent, from which we have all received so much and toward which we share a common responsibility.

“Each son or daughter of a given country has a mission, a personal and social responsibility. Your own responsibility as members of Congress is to enable this country, by your legislative activity, to grow as a nation. You are the face of its people, their representatives. You are called to defend and preserve the dignity of your fellow citizens in the tireless and demanding pursuit of the common good, for this is the chief aim of all politics. A political society endures when it seeks, as a vocation, to satisfy common needs by stimulating the growth of all its members, especially those in situations of greater vulnerability or risk. Legislative activity is always based on care for the people. To this you have been invited, called and convened by those who elected you.”

“Yours is a work which makes me reflect in two ways on the figure of Moses. On the one hand, as the patriarch and lawgiver of the people of Israel he symbolizes the need of peoples to keep alive their sense of unity by means of just legislation. On the other, the figure of Moses leads us directly to God and thus to the transcendent dignity of the human being. Moses provides us with a good synthesis of your work: you are asked to protect, by means of the law, the image and likeness fashioned by God on every human face.”

“Today I would like not only to address you, but through you the entire people of the United States. Here, together with their representatives, I would like to take this opportunity to dialogue with the many thousands of men and women who strive each day to do an honest day’s work, to bring home their daily bread, to save money and – one step at a time – to build a better life for their families. These are men and women who are not concerned simply with paying their taxes, but in their own quiet way sustain the life of society. They generate solidarity by their actions, and they create organizations that offer a helping hand to those most in need.”

“I would also like to enter into dialogue with the many elderly persons who are a storehouse of wisdom forged by experience and who seek in many ways, especially through volunteer work, to share their stories and their insights. I know that many of them are retired, but still active; they keep working to build up this land. I also want to dialogue with all those young people who are working to realize their great and noble aspirations, who are not led astray by facile proposals and who face difficult situations, often as a result of immaturity on the part of many adults. I wish to dialogue with all of you, and I would like to do so through the historical memory of your people.”

“My visit takes place at a time when men and women of good will are marking the anniversaries of several great Americans. The complexities of history and the reality of human weakness notwithstanding, these men and women, for all their many differences and limitations, were able by hard work and self- sacrifice – some at the cost of their lives – to build a better future. They shaped fundamental values which will endure forever in the spirit of the American people. A people with this spirit can live through many crises, tensions and conflicts, while always finding the resources to move forward, and to do so with dignity. These men and women offer us a way of seeing and interpreting reality. In honoring their memory, we are inspired, even amid conflicts, and in the here and now of each day, to draw upon our deepest cultural reserves.”

I would like to mention four of these Americans: Abraham Lincoln, Martin Luther King, Dorothy Day and Thomas Merton.

“This year marks the one hundred and fiftieth anniversary of the assassination of President Abraham Lincoln, the guardian of liberty, who labored tirelessly that ‘this nation, under God, [might] have a new birth of freedom.’ Building a future of freedom requires love of the common good and cooperation in a spirit of subsidiarity and solidarity.”

“All of us are quite aware of, and deeply worried by, the disturbing social and political situation of the world today. Our world is increasingly a place of violent conflict, hatred and brutal atrocities, committed even in the name of God and of religion. We know that no religion is immune from forms of individual delusion or ideological extremism. This means that we must be especially attentive to every type of fundamentalism, whether religious or of any other kind. A delicate balance is required to combat violence perpetrated in the name of a religion, an ideology or an economic system, while also safeguarding religious freedom, intellectual freedom and individual freedoms. But there is another temptation which we must especially guard against: the simplistic reductionism which sees only good or evil; or, if you will, the righteous and sinners. The contemporary world, with its open wounds which affect so many of our brothers and sisters, demands that we confront every form of polarization which would divide it into these two camps. We know that in the attempt to be freed of the enemy without, we can be tempted to feed the enemy within. To imitate the hatred and violence of tyrants and murderers is the best way to take their place. That is something which you, as a people, reject.”

“Our response must instead be one of hope and healing, of peace and justice. We are asked to summon the courage and the intelligence to resolve today’s many geopolitical and economic crises. Even in the developed world, the effects of unjust structures and actions are all too apparent. Our efforts must aim at restoring hope, righting wrongs, maintaining commitments, and thus promoting the well-being of individuals and of peoples. We must move forward together, as one, in a renewed spirit of fraternity and solidarity, cooperating generously for the common good.”

“The challenges facing us today call for a renewal of that spirit of cooperation, which has accomplished so much good throughout the history of the United States. The complexity, the gravity and the urgency of these challenges demand that we pool our resources and talents, and resolve to support one another, with respect for our differences and our convictions of conscience.”

“In this land, the various religious denominations have greatly contributed to building and strengthening society. It is important that today, as in the past, the voice of faith continue to be heard, for it is a voice of fraternity and love, which tries to bring out the best in each person and in each society. Such cooperation is a powerful resource in the battle to eliminate new global forms of slavery, born of grave injustices which can be overcome only through new policies and new forms of social consensus.

[Editor’s Note: The following section, which was in the prepared remarks, was not included in the speech.] [“Politics is, instead, an expression of our compelling need to live as one, in order to build as one the greatest common good: that of a community which sacrifices particular interests in order to share, in justice and peace, its goods, its interests, its social life. I do not underestimate the difficulty that this involves, but I encourage you in this effort.]

“Here too I think of the march which Martin Luther King led from Selma to Montgomery fifty years ago as part of the campaign to fulfill his ‘dream’ of full civil and political rights for African Americans. That dream continues to inspire us all. I am happy that America continues to be, for many, a land of ‘dreams.’ Dreams which lead to action, to participation, to commitment. Dreams which awaken what is deepest and truest in the life of a people.”

“In recent centuries, millions of people came to this land to pursue their dream of building a future in freedom. We, the people of this continent, are not fearful of foreigners, because most of us were once foreigners. I say this to you as the son of immigrants, knowing that so many of you are also descended from immigrants. Tragically, the rights of those who were here long before us were not always respected. For those peoples and their nations, from the heart of American democracy, I wish to reaffirm my highest esteem and appreciation. Those first contacts were often turbulent and violent, but it is difficult to judge the past by the criteria of the present.”

“Nonetheless, when the stranger in our midst appeals to us, we must not repeat the sins and the errors of the past. We must resolve now to live as nobly and as justly as possible, as we educate new generations not to turn their back on our ‘neighbors’ and everything around us. Building a nation calls us to recognize that we must constantly relate to others, rejecting a mindset of hostility in order to adopt one of reciprocal subsidiarity, in a constant effort to do our best. I am confident that we can do this.”

“Our world is facing a refugee crisis of a magnitude not seen since the Second World War. This presents us with great challenges and many hard decisions. On this continent, too, thousands of persons are led to travel north in search of a better life for themselves and for their loved ones, in search of greater opportunities. Is this not what we want for our own children? We must not be taken aback by their numbers, but rather view them as persons, seeing their faces and listening to their stories, trying to respond as best we can to their situation. To respond in a way which is always humane, just and fraternal. We need to avoid a common temptation nowadays: to discard whatever proves troublesome. Let us remember the Golden Rule: ‘Do unto others as you would have them do unto you’ (Mt 7:12).”

“This Rule points us in a clear direction. Let us treat others with the same passion and compassion with which we want to be treated. Let us seek for others the same possibilities which we seek for ourselves. Let us help others to grow, as we would like to be helped ourselves. In a word, if we want security, let us give security; if we want life, let us give life; if we want opportunities, let us provide opportunities. The yardstick we use for others will be the yardstick which time will use for us. The Golden Rule also reminds us of our responsibility to protect and defend human life at every stage of its development.”

“This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty. I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty. Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.”

“In these times when social concerns are so important, I cannot fail to mention the Servant of God Dorothy Day, who founded the Catholic Worker Movement. Her social activism, her passion for justice and for the cause of the oppressed were inspired by the Gospel, her faith, and the example of the saints.”

“How much progress has been made in this area in so many parts of the world! How much has been done in these first years of the third millennium to raise people out of extreme poverty! I know that you share my conviction that much more still needs to be done, and that in times of crisis and economic hardship a spirit of global solidarity must not be lost. At the same time I would encourage you to keep in mind all those people around us who are trapped in a cycle of poverty. They too need to be given hope. The fight against poverty and hunger must be fought constantly and on many fronts, especially in its causes. I know that many Americans today, as in the past, are working to deal with this problem.”

“It goes without saying that part of this great effort is the creation and distribution of wealth. The right use of natural resources, the proper application of technology and the harnessing of the spirit of enterprise are essential elements of an economy which seeks to be modern, inclusive and sustainable. ‘Business is a noble vocation, directed to producing wealth and improving the world. It can be a fruitful source of prosperity for the area in which it operates, especially if it sees the creation of jobs as an essential part of its service to the common good’ (Laudato Si’, 129). This common good also includes the earth, a central theme of the encyclical which I recently wrote in order to ‘enter into dialogue with all people about our common home’ (ibid., 3). ‘We need a conversation which includes everyone, since the environmental challenge we are undergoing, and its human roots, concern and affect us all’ (ibid., 14).”

“In Laudato Si’, I call for a courageous and responsible effort to ‘redirect our steps’ (ibid., 61), and to avert the most serious effects of the environmental deterioration caused by human activity. I am convinced that we can make a difference and I have no doubt that the United States – and this Congress – have an important role to play. Now is the time for courageous actions and strategies, aimed at implementing a ‘culture of care’ (ibid., 231) and ‘an integrated approach to combating poverty, restoring dignity to the excluded, and at the same time protecting nature’ (ibid., 139). ‘We have the freedom needed to limit and direct technology’ (ibid., 112); ‘to devise intelligent ways of… developing and limiting our power’ (ibid., 78); and to put technology ‘at the service of another type of progress, one which is healthier, more human, more social, more integral’ (ibid., 112). In this regard, I am confident that America’s outstanding academic and research institutions can make a vital contribution in the years ahead.”

“A century ago, at the beginning of the Great War, which Pope Benedict XV termed a ‘pointless slaughter,’ another notable American was born: the Cistercian monk Thomas Merton. He remains a source of spiritual inspiration and a guide for many people. In his autobiography he wrote: ‘I came into the world. Free by nature, in the image of God, I was nevertheless the prisoner of my own violence and my own selfishness, in the image of the world into which I was born. That world was the picture of Hell, full of men like myself, loving God, and yet hating him; born to love him, living instead in fear of hopeless self-contradictory hungers.’ Merton was above all a man of prayer, a thinker who challenged the certitudes of his time and opened new horizons for souls and for the Church. He was also a man of dialogue, a promoter of peace between peoples and religions.”

“From this perspective of dialogue, I would like to recognize the efforts made in recent months to help overcome historic differences linked to painful episodes of the past. It is my duty to build bridges and to help all men and women, in any way possible, to do the same. When countries that have been at odds resume the path of dialogue – a dialogue which may have been interrupted for the most legitimate of reasons – new opportunities open up for all. This has required, and requires, courage and daring, which is not the same as irresponsibility. A good political leader is one who, with the interests of all in mind, seizes the moment in a spirit of openness and pragmatism. A good political leader always opts to initiate processes rather than possessing spaces (cf. Evangelii Gaudium, 222-223).”

“Being at the service of dialogue and peace also means being truly determined to minimize and, in the long term, to end the many armed conflicts throughout our world. Here we have to ask ourselves: Why are deadly weapons being sold to those who plan to inflict untold suffering on individuals and society? Sadly, the answer, as we all know, is simply for money: money that is drenched in blood, often innocent blood. In the face of this shameful and culpable silence, it is our duty to confront the problem and to stop the arms trade.”

“Three sons and a daughter of this land, four individuals and four dreams: Lincoln, liberty; Martin Luther King, liberty in plurality and non-exclusion; Dorothy Day, social justice and the rights of persons; and Thomas Merton, the capacity for dialogue and openness to God.

“I will end my visit to your country in Philadelphia, where I will take part in the World Meeting of Families. It is my wish that throughout my visit the family should be a recurrent theme. How essential the family has been to the building of this country! And how worthy it remains of our support and encouragement! Yet I cannot hide my concern for the family, which is threatened, perhaps as never before, from within and without. Fundamental relationships are being called into question, as is the very basis of marriage and the family. I can only reiterate the importance and, above all, the richness and the beauty of family life.”

“In particular, I would like to call attention to those family members who are the most vulnerable, the young. For many of them, a future filled with countless possibilities beckons, yet so many others seem disoriented and aimless, trapped in a hopeless maze of violence, abuse and despair. Their problems are our problems. We cannot avoid them. We need to face them together, to talk about them and to seek effective solutions rather than getting bogged down in discussions. At the risk of oversimplifying, we might say that we live in a culture which pressures young people not to start a family, because they lack possibilities for the future. Yet this same culture presents others with so many options that they too are dissuaded from starting a family.”

“A nation can be considered great when it defends liberty as Lincoln did, when it fosters a culture which enables people to ‘dream’ of full rights for all their brothers and sisters, as Martin Luther King sought to do; when it strives for justice and the cause of the oppressed, as Dorothy Day did by her tireless work, the fruit of a faith which becomes dialogue and sows peace in the contemplative style of Thomas Merton.”

“In these remarks I have sought to present some of the richness of your cultural heritage, of the spirit of the American people. It is my desire that this spirit continue to develop and grow, so that as many young people as possible can inherit and dwell in a land which has inspired so many people to dream.”

“God bless America!”

Greeting to the American People[2]

Pope @ U.S. Capitol
Pope @ U.S. Capitol

Immediately after the speech to the Congress, Pope Francis was escorted to the West Front of the Capitol, where he could see the thousands of people who wanted at least a glimpse of the Pope. “Buenos días,” he said. “I am so grateful for your presence here, most importantly the children. I have asked God to bless them. Father of all, bless each of them, bless the families. I ask you all, please, to pray for me. And if there are any who do not believe or who cannot pray, I ask you to send good wishes my way.”

St. Patrick’s Catholic Church in D.C.[3]

Pope @ St. Patrick's Church
Pope @ St. Patrick’s Church

Pope & bishops 9.27

 

 

 

 

 

At the church, the Pope first sent greetings to his Muslim brothers and sisters as they celebrate the feast of sacrifice and a prayer of closeness as they faced the tragedy of suffering at Mecca. He then delivered the following homily.

“Here I think of a person whom I love, someone who is, and has been, very important throughout my life. He has been a support and an inspiration. He is the one I go to whenever I am ‘in a fix.’ You make me think of Saint Joseph. Your faces remind me of his.”

“Joseph had to face some difficult situations in his life. One of them was the time when Mary was about to give birth, to have Jesus. The Bible tells us that, ‘while they were [in Bethlehem], the time came for her to deliver her child. And she gave birth to her firstborn son and wrapped him in bands of cloth, and laid him in a manger, because there was no place for them in the inn’ (Lk 2:6-7).”

“The Bible is very clear about this: there was no room for them. I can imagine Joseph, with his wife about to have a child, with no shelter, no home, no place to stay. The Son of God came into this world as a homeless person. The Son of God knew what it was to start life without a roof over his head. We can imagine what Joseph must have been thinking. How is it that the Son of God has no home? Why are we homeless, why don’t we have housing? These are questions which many of you may ask daily. Like Saint Joseph, you may ask: Why are we homeless, without a place to live? These are questions which all of us might well ask. Why do these, our brothers and sisters, have no place to live? Why are these brothers and sisters of ours homeless?”

“Joseph’s questions are timely even today; they accompany all those who throughout history have been, and are, homeless.”

“Joseph was someone who asked questions. But first and foremost, he was a man of faith. Faith gave Joseph the power to find light just at the moment when everything seemed dark. Faith sustained him amid the troubles of life. Thanks to faith, Joseph was able to press forward when everything seemed to be holding him back.”

“In the face of unjust and painful situations, faith brings us the light which scatters the darkness. As it did for Joseph, faith makes us open to the quiet presence of God at every moment of our lives, in every person and in every situation. God is present in every one of you, in each one of us.”

“We can find no social or moral justification, no justification whatsoever, for lack of housing. There are many unjust situations, but we know that God is suffering with us, experiencing them at our side. He does not abandon us.”

“We know that Jesus wanted to show solidarity with every person. He wanted everyone to experience his companionship, his help, his love. He identified with all those who suffer, who weep, who suffer any kind of injustice. He tells us this clearly: ‘I was hungry and you gave me food, I was thirsty and you gave me something to drink; I was a stranger and you welcomed me’ (Mt 25:35).”

“Faith makes us know that God is at our side, that God is in our midst and his presence spurs us to charity. Charity is born of the call of a God who continues to knock on our door, the door of all people, to invite us to love, to compassion, to service of one another.”

“Jesus keeps knocking on our doors, the doors of our lives. He doesn’t do this by magic, with special effects, with flashing lights and fireworks. Jesus keeps knocking on our door in the faces of our brothers and sisters, in the faces of our neighbors, in the faces of those at our side.”

“Dear friends, one of the most effective ways we have to help is that of prayer. Prayer unites us; it makes us brothers and sisters. It opens our hearts and reminds us of a beautiful truth which we sometimes forget. In prayer, we all learn to say ‘Father.’ ‘Dad.’ We learn to see one another as brothers and sisters. In prayer, there are no rich and poor people, there are sons and daughters, sisters and brothers. In prayer, there is no first or second class, there is brotherhood.”

“It is in prayer that our hearts find the strength not to be cold and insensitive in the face of injustice. In prayer, God keeps calling us, opening our hearts to charity.”

“How good it is for us to pray together. How good it is to encounter one another in this place where we see one another as brothers and sisters, where we realize that we need one another. Today I want to be one with you. I need your support, your closeness. I would like to invite you to pray together, for one another, with one another. That way we can keep helping one another to experience the joy of knowing that Jesus is in our midst. Are you ready?”

“’Our Father in heaven, hallowed be your name. Your kingdom come. Your will be done, on earth as it is in heaven. Give us this day and our daily bread. And forgive us our debts, as we also have forgiven our debtors. An do not bring us to the time of trial, but rescue us from the evil one. Amen.’” (NRSV)

“Before leaving you, I would like to give you God’s blessing: ‘The Lord bless you and keep you; the Lord make his face to shine upon you and be gracious to you; the Lord lift up his countenance upon you, and give you peace’ (Num 6:24-26). And, please, don’t forget to pray for me.”

Pope & people

Immediately afterwards the Pope went to a luncheon for the homeless outside the church, blessed the meal and greeted the people, as shown in photograph to the right.. This luncheon was sponsored by Catholic Charities of the Archdiocese of Washington.

Vespers Service at St. Patrick’s Cathedral[4]

The Pope arrived around 5:00 p.m. (EST) at New York City’s John F. Kennedy International Airport and then traveled by helicopter to lower Manhattan. The popemobile then took him by waving crowds on Fifth Avenue to 50th and 51st Street’s St. Patrick’s Cathedral.   There he was greeted by New York Governor Andrew M. Cuomo, New York City Mayor Bill de Blasio and New York’s U.S. Senator Chuck Schumer.

Pope @ St. Patrick's Cathedral
Pope @ St. Patrick’s Cathedral

At the Cathedral the Pope participated in a vespers prayer service for nearly 2,500 worshipers, including clergy members, brothers and nuns, and delivered the following homily.

“’There is a cause for rejoicing here”, although ‘you may for a time have to suffer the distress of many trials’ (1 Pet 1:6). These words of the Apostle remind us of something essential. Our vocation is to be lived in joy.”

“This beautiful Cathedral of Saint Patrick, built up over many years through the sacrifices of many men and women, can serve as a symbol of the work of generations of American priests and religious, and lay faithful who helped build up the Church in the United States. In the field of education alone, how many priests and religious in this country played a central role, assisting parents in handing on to their children the food that nourishes them for life! Many did so at the cost of extraordinary sacrifice and with heroic charity. I think for example of Saint Elizabeth Ann Seton, who founded the first free Catholic school for girls in America, or Saint John Neumann, the founder of the first system of Catholic education in the United States.”

“This evening, my brothers and sisters, I have come to join you in prayer that our vocations will continue to build up the great edifice of God’s Kingdom in this country. I know that, as a presbyterate in the midst of God’s people, you suffered greatly in the not distant past by having to bear the shame of some of your brothers who harmed and scandalized the Church in the most vulnerable of her members… In the words of the Book of Revelation, I know well that you ‘have come forth from the great tribulation’ (Rev 7:14). I accompany you at this time of pain and difficulty, and I thank God for your faithful service to his people. In the hope of helping you to persevere on the path of fidelity to Jesus Christ, I would like to offer two brief reflections.”

“The first concerns the spirit of gratitude. The joy of men and women who love God attracts others to them; priests and religious are called to find and radiate lasting satisfaction in their vocation. Joy springs from a grateful heart. Truly, we have received much, so many graces, so many blessings, and we rejoice in this. It will do us good to think back on our lives with the grace of remembrance. Remembrance of when we were first called, remembrance of the road travelled, remembrance of graces received… and, above all, remembrance of our encounter with Jesus Christ so often along the way. Remembrance of the amazement which our encounter with Jesus Christ awakens in our hearts. To seek the grace of remembrance so as to grow in the spirit of gratitude. Perhaps we need to ask ourselves: are we good at counting our blessings?”

“A second area is the spirit of hard work. A grateful heart is spontaneously impelled to serve the Lord and to find expression in a life of commitment to our work. Once we come to realize how much God has given us, a life of self-sacrifice, of working for him and for others, becomes a privileged way of responding to his great love.”

“Yet, if we are honest, we know how easily this spirit of generous self-sacrifice can be dampened. There are a couple of ways that this can happen; both are examples of that ‘spiritual worldliness’ which weakens our commitment to serve and diminishes the wonder of our first encounter with Christ.”

“We can get caught up measuring the value of our apostolic works by the standards of efficiency, good management and outward success which govern the business world. Not that these things are unimportant! We have been entrusted with a great responsibility, and God’s people rightly expect accountability from us. But the true worth of our apostolate is measured by the value it has in God’s eyes. To see and evaluate things from God’s perspective calls for constant conversion in the first days and years of our vocation and, need I say, great humility. The cross shows us a different way of measuring success. Ours is to plant the seeds: God sees to the fruits of our labors. And if at times our efforts and works seem to fail and produce no fruit, we need to remember that we are followers of Jesus… and his life, humanly speaking, ended in failure, the failure of the cross.”

“Another danger comes when we become jealous of our free time, when we think that surrounding ourselves with worldly comforts will help us serve better. The problem with this reasoning is that it can blunt the power of God’s daily call to conversion, to encounter with him. Slowly but surely, it diminishes our spirit of sacrifice, renunciation and hard work. It also alienates people who suffer material poverty and are forced to make greater sacrifices than ourselves. Rest is needed, as are moments of leisure and self-enrichment, but we need to learn how to rest in a way that deepens our desire to serve with generosity. Closeness to the poor, the refugee, the immigrant, the sick, the exploited, the elderly living alone, prisoners and all God’s other poor, will teach us a different way of resting, one which is more Christian and generous.”

“Gratitude and hard work: these are two pillars of the spiritual life which I have wanted to share with you this evening. I thank you for prayers and work, and the daily sacrifices you make in the various areas of your apostolate. Many of these are known only to God, but they bear rich fruit for the life of the Church. In a special way I would like to express my esteem and gratitude to the religious women of the United States. What would the Church be without you? Women of strength, fighters, with that spirit of courage which puts you in the front lines in the proclamation of the Gospel. To you, religious women, sisters and mothers of this people, I wish to say “thank you”, a big thank you… and to tell you that I love you very much.” (Emphasis added to these words that drew applause from the people in the pews.)

“I know that many of you are in the front lines in meeting the challenges of adapting to an evolving pastoral landscape. Whatever difficulties and trials you face, I ask you, like Saint Peter, to be at peace and to respond to them as Christ did: he thanked the Father, took up his cross and looked forward!”

“Dear brothers and sisters, in a few moments we will sing the Magnificat. Let us commend to Our Lady the work we have been entrusted to do; let us join her in thanking God for the great things he has done, and for the great things he will continue to do in us and in those whom we have the privilege to serve.”

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[1] Beckwith, Transcript: Read the Speech Pope Francis Gave to Congress, Time (Sept. 24, 2015); Assoc. Press, Pope’s Full Speech to Congress, N.Y. Times (Sept. 24, 2015) (video); Hulse, Herszenhorn & Steinhauer, Across Political Divide, Finding Much to Cheer in Pope’s Speech, N.Y. Times (Sept. 24, 2015); Baker, Pope Francis’ Speech to Congress Comes at Time of Political Division, N.Y. Times (Sept. 2015); Goodstein, Yardley, Cave & Davenport, Inside Pope Francis’ Address to Congress, N.Y. Times (Sept. 24, 2015).

[2] Reuters, Pope greets well-wishers from Capitol balcony, N.Y. Times (Sept. 24, 2015) (video).

[3] Pope Francis’ Remarks at St. Patrick’s church in Washington, N.Y. Times (Sept. 24, 2015); Assoc. Press, Pope Francis at St. Patrick’s Church, N.Y. Times (Sept. 24, 2015)(video); Reuters, ‘No Justification Whatsoever’ for Homelessness, Pope Says in Washington, N.Y. Times (Sept. 24, 2015); Pope blesses meal at Catholic charity event, N.Y. Times (Sept. 24, 2015) (video).

[4] Agence France-Presse, Pope Francis Arrives in New York, N.Y. Times (Sept. 24, 2015) (video of airport arrival); Agence France-Presse, Pope Visits St. Patrick’s Cathedral (Sept. 25, 2015) (video of parade to the Cathedral and part of the service); Reuters, Pope expresses closeness to world’s Muslims after haj stampede, N.Y. Times (Sept. 24, 2015)(video); Santora & Otterman, Arriving in Manhattan, Pope Tells Clergy to Serve Humbly, N.Y. Times (Sept. 24, 2015); Pope Francis’ Homily at St. Patrick’s Cathedral, N.Y. Times (Sept. 24, 2015).