When Congress reaches near unanimous agreement in an election year, there’s a high probability of a political motivation. Such is the case with the overwhelming override last week of President Barack Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA).
The Senate voted 97 to 1 and the House voted 348 to 77 to kill the president’s veto.
The vote likely plays well on the campaign trail, but it is very bad policy and Congress should get to work as soon as the election is over on a redo.
JASTA is an affront to the ancient legal concept of sovereign immunity, a tradition that dates to the 16th century. It protects a government and its officials, including diplomatic and military, from being sued by a foreign national.
The law Obama vetoed and Congress restored with an override carves out exceptions to allow Americans to sue other countries on charges of sponsoring or financing acts of terror that harm citizens of the United States.
It grew out of the belief that Saudi Arabia was instrumental in backing the terrorists who struck the U.S. on 9/11. The 9/11 commission cleared the Saudis of direct involvement, but suspicions linger that the kingdom’s money backed the attack.
It’s easy to see the political appeal of the legislation. But its potential damage is even clearer.
For one thing, the law does not limit litigation to the families of 9/11 victims, but extends the sovereign immunity carve-out to every country. That will inevitably invite copy cat measures, as has already been threatened by France and Denmark. The U.S. is in danger of losing its own international immunity.
That would leave it open to lawsuits from victims in places like Iraq and Syria, where U.S. bombs have accidentally killed civilians. Depending how each country reinterprets sovereign immunity, liability could extend to individual soldiers and pilots.
In addition, the Saudis, who deny any involvement in the 9/11 attacks, will not stand idly by while lawsuits are filed attempting to paint them as sponsors of terrorism. The kingdom is threatening to liquidate hundreds of billions of dollars of U.S. assets should the lawsuits proceed. That could throw the American economy into turmoil.
JASTA also ties the hands of the American president in dealing with foreign nations — never a good idea.
Congress was pandering to voters uneasy about terrorism, but with JASTA it is also handing a gift to the plaintiffs’ bar, which is anxious to get into the Saudis’ deep pockets.
Hastily breaking down 500 years of legal tradition to enact politically motivated legislation is never smart. Some in Congress who voted to override are now having second thoughts, and have sent an apology letter of sorts to the president.
That’s a good starting point for revisiting JASTA in the lame-duck session, and either repealing it or greatly restricting its reach to cover just the families of 9/11 victims.