Interviewee: Stephen I. Vladeck, Professor of Law, University of Texas School of Law
Interviewer: Zachary Laub, Online Writer/Editor
September 28, 2016
Congress entered into law a bill that will allow the families of victims of the September 11, 2001, attacks to sue Saudi Arabia in the first veto override that President Barack Obama has faced. The bill drew large bipartisan majorities in both the House and Senate, but many lawyers and national security professionals have criticized it. The bill, known as the Justice Against Sponsors of Terrorism Act, or JASTA, could set a precedent for a panoply of lawsuits unrelated to 9/11 against foreign countries in U.S. courts and against the United States in foreign courts, said legal scholar Stephen I. Vladeck in an interview conducted after the president’s veto. Moreover, he said the latest version of the bill would not fulfill its intended purpose: even if the 9/11 plaintiffs see their day in court, they will likely never be able to collect on a judgment in their favor, and all the while the law will be an irritant in already strained U.S.-Saudi relations.
The impetus for Congress to pass JASTA is to allow a lawsuit by the families of the victims of the 9/11 attacks to move forward. Would this law have broader legal implications?
There are questions about how broadly it would sweep. The bill is not written specifically about Saudi Arabia or the 9/11 attacks. As it is currently drafted, it could be invoked to allow suits against states for international terrorism that causes harm to U.S. plaintiffs, even when the U.S. government does not consider that state to be a sponsor of terrorism. For example, could Palestinian-Americans try to use JASTA to sue Israel in the United States? Language in the bill could cut both ways. A ton of problems could prevent those suits from going anywhere, but the plaintiffs could try.
Critics, including President Obama, in his veto message, have argued that if other countries follow the precedent of JASTA, it could expose the United States to liability in foreign courts.
“The executive branch is in a better position than relative to private plaintiffs and district judges to assess the foreign policy consequences of these kinds of lawsuits.”
JASTA is about situations in which a state is responsible for violent acts that happen on other states’ soil. If Syrian rebels armed by the United States go on to commit what are, at least from the perspective of the Syrian government, acts of terrorism, could the Syrian government say, we think the U.S. should be liable in Syrian courts for their role in sponsoring and funding the Syrian rebels? We wouldn’t care that much if it were Syria, because we don’t have many assets that Syrian courts could [seize], but we would have concerns if instead it were countries like Egypt or Saudi Arabia—partners where U.S. assets could be subject to attachment by [local] courts.
The president’s veto message highlighted potential threats to U.S. military personnel stationed overseas. What sort of suits does he have in mind there?
The issue is not individual liability, but sovereign liability. The question, if JASTA enters into force, is: would other countries follow suit such that individual U.S. government actors acting overseas could subject the U.S. government to potentially billions of dollars of damages liability?
The exception to foreign sovereign immunity that JASTA carves out is for international acts of terrorism committed on U.S. soil. Is there consensus definition of what constitutes such an act?
There are many competing definitions of terrorism and international terrorism in both international and domestic laws. The U.S. is trying to create a generalized definition, but that would not necessarily be followed by other countries. There’s the old quip that one man’s terrorism is another man’s freedom fighter. However useless that is as a policy matter, we will see different definitions of terrorism be invoked by different countries that seek to build on the JASTA example.
The United States already carves out an exception to foreign sovereign immunity for designated state sponsors of terrorism. (Iran, for example, has been sued successfully in New York.) Could JASTA actually level the legal playing field in terms of penalizing countries in terrorism cases?
“The bill Congress passed is not nearly as radical as what had been proposed.”
The state sponsor of terrorism exception is controversial itself. The upside of this exception is that it’s narrow and depends on specific factual findings by the executive branch. The question is, who do we want to decide which kinds of terrorist activity should get around foreign sovereign immunity? Reasonable folks can disagree on the answer, but I don’t think it can be debated that the executive branch is in a better position than private plaintiffs and district judges to assess the foreign policy consequences of these kinds of lawsuits.
The amended version of the bill that passed in Congress gives the secretary of state the right to indefinitely postpone these judgments, which seems on its face to be a concession to the White House. You and Jack Goldsmith, a legal advisor in the George W. Bush administration, though, called it “the worst of all worlds.” Why?
The bill Congress passed is not nearly as radical as what had been proposed. By giving the executive branch the power to effectively put these cases on indefinite hold, the bill allows the executive branch to exercise some degree of control over which claims go forward. But even if the president chooses not to exercise that authority, the bill still makes it hard [for plaintiffs]. They have to show that the defendant was directly responsible for the act of terrorism on U.S. soil, which, in the context of Saudi Arabia and 9/11, is a heavy lift. And even if plaintiffs prevail on the merits, the bill makes it impossible for them to collect any damages, because no provision in JASTA allows a federal court to compel a foreign sovereign to turn over assets to satisfy the judgement. The original version of JASTA did; the revised version does not.
Saudi Arabia threatened to pull $750 billion in Treasury securities and other U.S.-based assets if the law passes. Is that an empty threat?
The question is whether Saudi Arabia would still be skittish enough about the prospect of having its assets seized, or if they’d be peeved enough about the symbolic statement JASTA makes, that they would withdraw their assets. That’s hard to predict. It’s not likely that those assets could ever be used to satisfy a judgement under JASTA, but that doesn’t mean Saudi Arabia won’t act anyway.
Twenty-eight classified pages of the congressional inquiry on 9/11 fueled speculation that there was some cover-up of Saudi complicity. Saudi Arabia has lobbied for those pages to be released, believing that would put the allegations to bed. What threshold of official complicity would need to be proven to hold Saudi Arabia liable?
“The bill makes it impossible for the plaintiff to collect any damages.”
JASTA is not clear on the matter. Courts already rejected theories of secondary liability, like aiding and abetting, under the FSIA and Antiterrorism Act. My working assumption is that JASTA, because it does not expressly authorize secondary liability, preserves the status quo, and so still requires plaintiffs to show that the defendant is directly responsible for the act of international terrorism on U.S. soil.
So this would preclude liability from, say, allegations that a Saudi prince’s donations to a charity made their way to al-Qaeda, as the plaintiffs have alleged?
That’s one of the reasons why the 9/11 plaintiffs have had such difficulty hauling Saudi Arabia into court. It’s not at all clear that [the amended version of] JASTA solves that problem; the original bill would have.
Are there precedents for how Congress, the president, and the courts should balance concerns about U.S. foreign relations with more abstract questions of justice in matters like these?
The whole field of foreign sovereign immunity is a quest to strike the balance between sensitivity to diplomatic relations and the provision of legal remedies to right legal wrongs. Inherent in any conversation about foreign sovereign immunity is a debate about how we’re striking that balance.
“A bill that was designed to do something controversial but meaningful is instead just going to do something controversial and toothless.”
If the bill unquestionably opened the door for the 9/11 families to recover damages from Saudi Arabia, as its supporters say it does, it would spark a national conversation about what’s more important: our relations with Saudi Arabia or a day in court for the 9/11 families. The problem is that’s not what JASTA does. Because Congress watered the bill down right before passing it, they changed the conversation to whether it’s really worth passing what is going to be at best a symbolic bill, given the foreign policy and diplomatic consequences.
There seems to be a disconnect between what Congress thinks it’s doing and what the bill actually does. It leads me to wonder if all of the members who are threatening to override the president’s veto and issuing sweeping public statements about the bill actually read it. A bill that was designed to do something controversial but meaningful is instead just going to do something controversial and toothless.
This interview has been edited and condensed.
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