Editorial: No on the Justice Against Sponsors of Terrorism Act

The proposed Justice Against Sponsors of Terrorism Act, S. 2040, has been in the news recently. The Saudi government has made economic threats to try to deter Congress from passing the bill. The bill was introduced in the Senate in September 2015 and was reported by the Committee on the Judiciary, in an amended form, in February 2016. There was some discussion of the bill, though not really substantive, during the Judiciary Committee hearing.

The provision of the bill that is of interest to me is Section 3, which would amend 28 U.S.C. § 1605(a)(5), the so-called noncommercial torts exception to the general rule of immunity under the Foreign Sovereign Immunities Act. Here is what the amendment looks like:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case— …

not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal arising out of physical injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his the office or employment of the official or employee (regardless of where the underlying tortious act or omission occurs), including any statutory or common law tort claim arising out of an act of extrajudicial killing, aircraft sabotage, hostage taking, terrorism, or the provision of material support or resources for such an act, or any claim for contribution or indemnity relating to a claim arising out of such an act; except this paragraph shall not apply to—

  1. any claim based upon the exercise or performance of, or the failure to exercise or perform, a discretionary function regardless of whether the discretion be abused,; or
  2. any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights, or any claim or emotional distress or derivative injury suffered as a result of an event or injury to another person that occurs outside of the United States;

What could be wrong with this bill? you ask. Under In re Terrorist Attacks on September 11, 2001, 538 F.3d 71, 89 (2d Cir. 2008), the rule was that the noncommercial torts exception, which as the court noted was intended “to eliminate a foreign state’s immunity for traffic accidents and other torts committed in the United States, for which liability is imposed under domestic tort law,” did not apply to claims that a foreign government sponsored terrorism: such claims could be brought, if at all, only under the state-sponsored terrorism exception, 28 U.S.C. § 1605A. The court gave some legislative history to explain its view:

Congress enacted the first iteration of the Terrorism Exception in 1996 in order to “give American citizens an important economic and financial weapon against … outlaw states” that sponsor terrorism by providing “safe havens, funding, training, supplying weaponry, medical assistance, false travel documentation, and the like.” H.R.Rep. No. 104–383, at 62 (1995). An FSIA exception for terrorist acts “had long been sought by victims’ groups,” but it “had been consistently resisted by the executive branch,” which feared that such an amendment to the FSIA “might cause other nations to respond in kind, thus potentially subjecting the American government to suits in foreign countries for actions taken in the United States.” Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 89 (D.C.Cir.2002). The resulting provision, 28 U.S.C. § 1605(a)(7) (repealed 2008) bore “notable features which reveal the delicate legislative compromise out of which it was born,” the primary one being that it applied only to designated state sponsors of terrorism. Id. When Congress amended the Terrorism Exception in 2008, that limitation was preserved. 28 U.S.C. § 1605A(a)(2)(A)(i)(I) (“requiring that the foreign state have been “designated as a state sponsor of terrorism” by the State Department”).

In Doe v. Bin Laden, 663 F.3d 64 (2d Cir. 2011), the court reversed itself, holding that the state-sponsored terrorism exception did not occupy the field, and that plaintiffs could bring a terrorism claim against a foreign state under the noncommercial tort exception if the provisions of that portion of the statute were met. A victory for plaintiffs—except that in the 9/11 case, the district court later held that the state defendant in that case, Saudi Arabia, was immune from liability because the tort it is accused of committing did not take place within the United States. It is the Saudi threat to sell off US assets if the bill is enacted that brought the bill to my attention.

Here is my view. As things currently stand, the courts are open to claims of state-sponsored terrorism, but only if the foreign state committed a tort in the United States or if the foreign state is designated by the executive as a state sponsor of terrorism. This status quo takes foreign policy and comity considerations into account. It keeps the power to throw a monkey wrench into our foreign relations out of the hands of the plaintiffs’ bar, except in cases where a foreign state commits a tort in the United States and could hardly complain about being haled into court. And the status quo bears in mind the maxim that what’s sauce for the goose is sauce for the gander.

In an interesting way, the bill reprises the concerns that prompted enactment of the FSIA in the first place. Back then, Congress was worried that the executive, which under the practice at the time could conclusively assert immunity on behalf of a foreign state, was granting immunity for diplomatic or political rather than legal reasons. Congress took some power from the executive and gave it to the judiciary, with the effect of reducing the cases in which immunity would bar a claim. This new bill does the same thing, in effect, by depriving the executive of the ability to conclusively afford immunity in state-sponsored terrorism claims by refusing to designate a state as a state sponsor of terrorism.

To my mind, the comity and reciprocity concerns are overwhelmingly important in this context. It’s not in the United States’s interest, I think, to make itself amenable to the jurisdiction of foreign courts on account of actions US officials taken in the United States. And I think the delicacy of our relations with countries like Saudi Arabia requires, that the executive, not plaintiffs themselves, have control over whether the foreign states can be haled into court on account of their officials’ acts and omissions taken abroad.

In short, I will encourage my senators (and if it gets that far, my representative) to vote against the bill. American readers, make your concerns heard on this.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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