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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.
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Merrick Garland on International Issues

Merrick Garland
Mazal tov, Judge Garland! Credit: The White House
Today the President nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to be a Justice of the Supreme Court. Tom Goldstein previously reviewed some of Judge Garland’s decisions, but his post dates from 2010, and anyway, it doesn’t focus on Letters Blogatory’s issues. So here is a brief overview of decisions that may give some insight into Judge Garland’s views on matters of importance to us. I’ve looked only at decisions that Judge Garland wrote and that would have been within the Letters Blogatory scope of coverage had they been written after the blog’s inception in 2011, not cases where he was on the panel but didn’t write the decision.
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Case to Watch: Schermerhorn v. Israel

President Obama
The state of our Union is strong. Credit: CNN

At Opinio Juris, Julian Ku wrote about an interesting new action filed in Washington, Schermerhorn v. State of Israel (D.D.C.). The case arises out of the 2010 Gaza flotilla, in which several ships carrying self-described activists sought to challenge the Israeli (and Egyptian) blockade of Gaza. It turns out one of the ships, the Challenger I, was a US-flagged vessel. Gotcha! Well, maybe, as we’ll see. The nationality of the Challenger I is the jurisdictional hook several of the amateur blockade runners are seeking to use to sue Israel in the US courts for torture, other war crimes, arbitrary arrest, false imprisonment, assault and battery, intentional infliction of emotional distress, and conversion.
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