Washington’s Missing China Strategy
To Counter Beijing, the Biden Administration Needs to Decide What It Wants
In an exceedingly rare show of bipartisanship, on September 28, Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA). This act is popularly referred to as the 9/11 victims bill because it allows families of the victims of the September 11, 2001, attacks to sue Saudi Arabia in U.S. district court to recover monetary damages. In practice, however, JASTA is not limited to victims of 9/11. Nor is it limited to any specific foreign state. It allows any U.S. citizen to sue a foreign state for damage caused by an act of international terrorism in the United States.
Congress passed JASTA over vigorous protest from the White House, foreign governments, business leaders, and the U.S. national security establishment. President Barack Obama warned that JASTA would expose U.S. military and intelligence personnel to lawsuits in foreign courts; weaken relationships with key allies; and reduce the effectiveness of U.S. government responses to terrorism. Calling it the “single most embarrassing thing Congress has done in decades,” Obama quickly vetoed the bill. However, for the first time in his administration, Congress overrode a veto, by 97–1 in the Senate and 348–77 in the House of Representatives.
Some members of Congress have already expressed early-onset remorse over JASTA, particularly after the override of Obama’s veto elicited a great degree of analysis over the bill’s potential to damage national security. Immediately following the override, 28 senators published a bipartisan letter to the bill’s sponsors stating a desire to “mitigate unintended consequences” for national security and foreign policy of the United States. The two top Republicans in Congress, Senate Majority Leader Mitch McConnell and Speaker of the House Paul Ryan, separately said they were open to altering the legislation. Ryan has said that he would like to “protect our service members overseas” from any possible retaliation. McConnell said lawmakers were “very focused” on the needs of the 9/11 families and “didn’t take the time to think through . . . the potential downside in terms of our international relationships.” Frustratingly, both Congress and the White House seem more eager to blame each other for failing to keep the bill from being passed than figuring out what to do about it. With Congress now out of session, the most that it has offered is the hope that JASTA can be modified in the lame-duck session after the November election.
Of course, the decision was not a simple a cost-benefit analysis. There were political factors at play. In addition to sharing the utmost sympathy for the families of victims, it would be politically awkward in the extreme to be seen as voting against 9/11 victims’ families, which is why Obama, who does not face reelection, could veto the bill. During a campaign, such a vote might be skewed as shielding, or even sympathizing with, terrorism. And there is symbolic importance to JASTA as well: Congress wants to give victims’ families “their day in court,” a popular trope in U.S. culture that resounds with deeply held values of fairness and justice. That’s why the bill will likely persist, even as Congress seeks to amend it.
However, before any modification takes place, Congress and the American public need to acknowledge the serious issues within JASTA in its current form. For one, realistically, the bill offers depressingly little chance of reaching enforceable verdicts for the families of victims. Further, Congress must also understand the sweepingly broad negative consequences for U.S. foreign policy given the United States’ role as a global leader—particularly in the fight against terrorism. Ironically, a law meant to provide justice for the victims of terrorism could seriously undermine and threaten U.S. counterterrorism efforts abroad because it opens the door for citizens of other nations to target American personnel on similar charges in foreign courts.
As Obama and other foreign policy experts have noted, JASTA undermines the legal doctrine of sovereign state immunity, a principle of customary international law. Sovereign immunity deems nation-states as equals, which means they cannot be subject to lawsuits in foreign countries. This form of mutual respect permits the existence of an orderly and peaceful international system. The United States itself has recognized sovereign immunity since 1812, when the venerable Chief Justice John Marshall invoked it in The Schooner Exchange v. McFaddon. In 1809, the French seized a vessel belonging to two Americans, John McFaddon and William Greetham, and recommissioned it as a war vessel. Later, when the French Navy docked that ship in Philadelphia, the two Americans tried to reclaim the boat by suing the French in U.S. court. Ultimately, the Supreme Court found that the U.S. courts had no jurisdiction. In Marshall’s opinion, state immunity was necessary for international relations.
Until the twentieth century, sovereign immunity was considered nearly absolute. However, as governments and state enterprises grew more intertwined through commercial activities, private entities complained that complete sovereign immunity gave state-owned enterprises an unfair advantage. Gradually, the United States adopted a “restrictive” approach: foreign states remained immune from lawsuits relating to “public” acts, but not from those pertaining to private commercial activity. In 1976, the United States became the first nation to codify foreign sovereign immunity by statute rather than by custom. The European Convention on Sovereign Immunity and the UN Convention on Jurisdictional Immunities of States also recognize limits on sovereign immunity, although the latter has languished without ratification since 2004.
However, over the past few decades, a deceptively simple idea has gained traction in Congress: victims of terrorism should be able to obtain civil damages in U.S. courts for harm caused by responsible foreign states. In other words, foreign states that deliberately sponsor international terrorism against U.S. citizens should not enjoy the protection of sovereign immunity in the United States. In 1996, responding to pleas by family members of the victims of the 1983 Beirut Marine barracks bombing, Congress amended the Foreign Sovereign Immunities Act to create a “state-sponsored terrorism exception” to state immunity. The amendment passed with broad bipartisan support even over the protests of the executive branch. Crucially, the 1996 exception applies only to countries on the State Department’s State Sponsors of Terrorism list. This means that the White House still determines the content of that list—today it includes Iran, Sudan, and Syria—and it gives the United States some diplomatic leverage over those countries.
The terrorism exception to sovereign immunity is controversial. Currently, only the United States and Canada make use of it, and it has created tensions with the nations in question. Iran and the United States are currently in dispute over this very issue at the International Court of Justice. Iran initiated the proceedings, alleging, in part, that the United States violated the international law of sovereign immunity when the U.S. Supreme Court deemed, in the recent case Bank Markazi v. Peterson, that assets of Iranian state–owned entities held within U.S. banks could be seized to pay for civil damages. In defense, the United States will most likely advance the terrorism exception.
But JASTA is both different and worse. On the domestic front, JASTA is problematic because it removes the executive privilege to determine which states are subject to the exception. Under the Foreign Sovereign Immunities Act, courts relied on the State Department’s State Sponsors of Terrorism list. Under JASTA, a plaintiff may advance a claim against a country—in this case Saudi Arabia—that has never been on the list and historically has been a close U.S. ally. Granted, plaintiffs have a very high burden of proof: they must show that the foreign state that they are suing is directly responsible for an act of terrorism on U.S. soil, which is extremely difficult and essentially requires the help of U.S. intelligence. But this gives plaintiffs the ability to label any country a terrorist sponsor and, potentially, could allow them to engage in intrusive discovery, such as obtaining court orders to compel foreign governments to hand over internal documents. Because JASTA expands the concept of “terrorism sponsor” to potentially any foreign country associated with an act of terrorism on U.S. soil, it effectively delegates to the district courts the responsibility of selecting which foreign nations fall under the terrorism exception. Allowing private parties to drag foreign states into court seriously undermines the legitimacy of a terrorism exception under the international protection of sovereign immunity.
It also puts the U.S. courts in the delicate position of determining a foreign state’s responsibility for an act of international terrorism. On matters of foreign policy, courts historically have deferred to the executive and legislative branches because, constitutionally, the latter are tasked with creating and managing foreign policy and have been given broad latitude to do so. JASTA does permit courts to stay a proceeding if the U.S. attorney general determines that the State Department is making a good-faith effort to work through issues with the foreign nation in question. This gives the executive branch ample opportunity to postpone litigation indefinitely, but it raises the possibility of a power struggle between the distinct branches of government. On top of this, JASTA does nothing to resolve the main problem endemic to terrorism restitution cases: the seizure of sovereign assets held within the United States. Even if a plaintiff prevails, there is no provision in JASTA that enables a federal court to force a foreign sovereign to turn over assets. The only guarantee for a victim who pursues such recourse is a lengthy legal battle. In reality, there is little chance for a successful resolution or payout.
Less obvious, but more dangerous, are the international implications of JASTA for the United States. Despite the fact that a number of 9/11 terrorists were Saudi citizens, JASTA does not name Saudi Arabia directly. Instead, it removes sovereign immunity for a foreign state alleged to have perpetrated an act of international terrorism in the United States. Because sovereign immunity protection relies on reciprocity, JASTA means that other countries might revoke U.S. sovereign immunity.
The Saudis had already protested vigorously against JASTA and had threatened to sell off $750 billion in U.S. Treasury securities if the bill passed. Although they have not yet acted on this threat, the Saudis could do a great number of other things to complicate or weaken U.S. foreign policy. For instance, they could refuse flyover permissions for U.S. aircraft traveling from Europe and Asia to the Qatari air base, which is used for orchestrating operations in Afghanistan, Iraq, and Syria. They could reduce cooperation against terrorist activities throughout the Middle East. And they could reduce protections for Americans working in the kingdom itself.
Perhaps of more concern, however, is the fact that many of the United States’ closest allies have also denounced the law. The Delegation of the European Union to the United States noted that “any derogation from the principle of sovereign immunity” could embolden other states to act similarly and impose a burden “on the international order as a whole.” Meanwhile, a member of the French Parliament has already promised to enact legislation permitting French citizens to sue the United States. Additionally, over the long term, certain countries might limit their investments in the United States to reduce the risk of having their assets subject to legal seizure by the U.S. courts. This could hurt the United States’ power to impose economic sanctions, which depend on the U.S. dollar’s position as a preferred global reserve currency. International banks must currently comply with U.S. sanctions in order to access the global financial system. U.S. counterterrorism efforts also require cooperation from allies, from access to foreign bases to consensus on imposing economic sanctions on outlaw states. Anything that makes it more difficult to get nations to cooperate undermines a major tool in U.S. foreign policy.
History has revealed that threats to revoke sovereign immunity are not empty. Iran and Cuba, both designated state sponsors of terrorism and subject to the terrorism exception under the Foreign Sovereign Immunities Act, permit their citizens to sue the United States for human rights violations and interference in internal affairs. The courts in both countries have reportedly handed down judgments demanding billions of dollars from the United States. Because Washington engages in controversial counterterrorism measures in a number of foreign jurisdictions, JASTA could thus leave the United States and U.S. officials uniquely vulnerable to litigation in unfriendly foreign courts. Indeed, after the JASTA veto override, Twitter hashtags appeared with photos of naked Iraqi prisoners at Abu Ghraib prison and captions noting that “Iraq and Afghanistan can’t wait for JASTA to be implemented so they can, in turn, prosecute the U.S.”
In sum, Congress has enacted a remarkably shortsighted law with profound international consequences. The next task—to mitigate JASTA’s risk to U.S. foreign policy—will be unpopular. Congress might decide to limit the waiver of sovereign immunity specifically to Saudi Arabia. But Congress should remember how badly a previous attempt to legislate specifically on a Gulf state ended. In 2006, Dubai Ports World, a state-owned company of the United Arab Emirates, tried to purchase the port management business of six major U.S. seaports. The sale sparked an uproar in Congress among both Republicans and Democrats, who passed a bill to delay the sale. Eventually, Dubai Ports World backed out and transferred the ports to a U.S. entity. But congressional action had deeply offended Dubai officials and reinforced the sense that there was a growing anti-Arab and anti-Muslim sentiment within the United States.
Alternatively, Congress could give the president authority to waive the new JASTA exception for specific countries in cases of national security. Although this modification would effectively prevent plaintiffs from bringing lawsuits under JASTA, it would not prevent other countries from enacting reciprocal legislation without a similar safeguard.
Only one obvious solution remains: repeal the law. Congress could own up to the mistake of JASTA and repeal it quietly in the lame-duck period so that it will not continue to harm U.S. interests abroad for years to come.