In a new post at Lawfare, John Bellinger notes that Congress is considering various proposals to “fix JASTA,” and he makes a pitch for his preferred proposal: an amendment giving the President the power to waive the new FSIA exception on a country-by-country basis, perhaps conditioning the power on the President’s periodic certification that the country in question remains a US ally and that it is taking action to fight terrorism and extremism. As Bellinger points out, as long as Congress is explicit about it, it could make this new waiver procedure retroactive, thus allowing the President to bar the actions against Saudi Arabia that have already been brought under the new statute.

Bellinger points out that a similar procedure has been used before, e.g., the grant of authority to waiver the provisions of the Helms-Burton Act, which allows suits against Cuba for trafficking in expropriated property, and the National Defense Authorization Act of 2008, which allowed suits against Iraq for state-sponsored terrorism during the Hussein era notwithstanding the removal of Iraq from the list of state sponsors of terrorism. So there are good grounds for his proposal. But I think these kinds of waiver provisions, while maybe the best that can be done as a practical matter, are not the optimal solution. They don’t provide the greatest protection for the US abroad; they make the law kludgy in order to allow Congress to pass the buck. Maybe the best outcome, if the Saudis would agree, would be an independent claims tribunal. Barring that, I think Congress could simply arrange a mechanism for the United States itself to compensate the 9/11 victims for whatever portions of their losses have not yet been compensated and call it a day.