President Obama Vetoes JASTA

The World Trade Center on 9/11
Credit: Robert on Flikr

Since we are talking about the other branches of government getting involved in foreign sovereign immunity, here is a report on the proposed Justice Against Sponsors of Terrorism Act, S. 2040. The purpose of the bill is “to provide civil litigants with the broadest possible basis, consistent with the Constitution of the United States, to seek relief against persons, entities, and foreign countries, wherever acting and wherever they may be found, that have provided material support, directly or indirectly, to foreign organizations or persons that engage in terrorist activities against the United States.” Its immediate impetus was the plight of the 9/11 survivors, who found that they could not bring a claim against Saudi Arabia on account of that country’s foreign sovereign immunity, taken together with the fact that the United States has not opened the doors to a suit by designating Saudi Arabia as a state sponsor of terrorism.

A few days ago the President vetoed the bill. For non-American readers: when a bill passes both houses of Congress, it goes to the President for his approval. If he approves it, it becomes a law, and if not, then he returns it to Congress, which has to reconsider the bill in light of the President’s objections. If each house of Congress again passes the bill by a two-thirds majority, then it becomes a law notwithstanding the President’s disapproval. The President can also “pocket veto” a bill that reaches his desk within ten days of Congress’s adjournment by neither signing it nor returning it to Congress. Since Congress was scheduled to adjourn, it may be that the administration’s plan was to pocket veto the bill, allowing Democrats to take a politically safe vote for the bill but still allowing for an effective veto. But Congress had to remain in session to pass a continuing resolution to fund the government, and the bill was brought up in the House of Representatives on a motion to suspend the rules for the purpose of allowing the bill to be passed sooner than it otherwise could be passed. I’m not totally sure of all of the machinations, but at the end of the day, the timing for a pocket veto didn’t work out. So Congress will have the opportunity to vote on the bill again, and it may hand President Obama the first veto override of his administration.

The language of the bill has changed as it worked its way through the Congress. Here are the versions, for comparison. Note that the bill as introduced would have amended 28 U.S.C. § 1605(a)(5), whereas the bill as passed would add a new section, 28 U.S.C. § 1605B, and thus the third version given below does not parallel the other two.

Current law Bill as introduced Bill as passed
… not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal 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 office or employment; except this paragraph shall not apply to—

  1. any claim based upon the exercise or performance 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
… not otherwise encompassed in paragraph (2), in which money damages are sought against a foreign state 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 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 is abused; or
  2. any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, interference with contract rights, or any claim for emotional distress or derivative injury suffered as a result of an event or injury to another person that occurs outside of the United States; or
A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by—

  1. an act of international terrorism in the United States; and
  2. a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred.

The main problem with the bill, in my view, is this: under current law, for torts committed outside the United States, the executive branch acts as a gatekeeper over what terrorism-related claims against foreign sovereigns can and cannot be brought, because the executive controls the designation of state sponsors of terrorism and thus controls the applicability of 28 U.S.C. § 1605A. JASTA takes this power out of the hands of the government, which may be useful for sympathetic plaintiffs, but which—aside from its questionable legality under international law—makes it difficult for the government to implement a coherent foreign policy. The amendment to the bill, which limits its scope to acts of terrorism in the United States, does nothing to solve the problem. What’s more, JASTA puts the United States at increased risk abroad. What’s sauce for the goose is sauce for the gander.

We can compensate 9/11 victims in other ways, such as via the September 11 Victim Compensation Fund. Indeed, we’ve already done so, and if some have not been fully compensated for their loss, we can do more. It’s far better to take that approach than to undermine the system of sorvereign immunity to reach a desired result in a particular case. Congress should reconsider and should uphold the President’s veto.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), 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 and 2014 - 2016.

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