Congress’s vote to override president Barack Obama’s veto of the Justice Against Sponsors of Terrorism Act (Jasta) was both embarrassing and irresponsible. The bill amends the Foreign Sovereign Immunities Act to allow United States citizens to sue foreign governments and entities for damages resulting from acts of terrorism committed on American soil on or after September 11, 2001.
Clearly directed at the government of Saudi Arabia, Jasta has caused enormous concern and not only in that country. In his veto statement, Mr Obama cited three reasons for his strong opposition to the it.
In the first place, it takes the authority to determine whether a state has become a sponsor of terrorism away from the federal government and places it in the hands of local courts which the president noted could make “consequential decisions ... based upon incomplete information ... [about] the culpability of individual foreign governments and their role in terrorist activities against the United States”. This, he argued, is “neither an effective nor a coordinated way for us to respond to indications that a foreign government might have been behind a terrorist attack”.
Mr Obama went on to note that the US takes its responsibility seriously and only designates a foreign government as a state sponsor of terrorism after national security, foreign policy and intelligence professionals carefully review all the available information. The implication of his argument is that it is dangerous to take this serious process out of the hands of the professionals and turn it over to tort lawyers, juries and local judges.
The president’s second concern was that in passing this bill, Congress has upended the long-standing principle of foreign sovereign immunity. This, he warned, would open the door for other governments to pass similar legislation that would allow their domestic courts to hold the US liable for actions committed by US personnel or “members of an armed group that received US assistance ... or abuses committed by police units that received US training”. This would put the assets of the US and the foreign holdings of American businesses at risk.
Finally, Mr Obama noted that Jasta would create complications in America’s relationships with even its closest partners, endangering its ability to seek their cooperation on key national security issues.
In overriding the strong case the president made in issuing his veto, Congress acted in a manner that was irresponsible, dangerous and damaging to the national interests of the United States. Most disturbing was the fact that, on the day of the vote, 28 senators released a letter in which they acknowledged that the bill was flawed, pledging to “fix” it in the next term. They understood that they were wrong and still voted to override the veto.
The problem is that damage has been done that no “fix” will cure. Jasta has shaken Arab trust in the United States, putting at risk business partnerships and national security relationships.
I have already heard from Arab businessmen who are saying that they are reconsidering investments in and partnerships with American businesses.
While members of Congress will argue that they passed Jasta out of concern for the families of the victims of the September 11 terror attacks, their motives were simply not that pure. More to the point, I suspect that they were motivated by crass opportunism: exploitation of the continued pain of the families of September 11 victims, the pervasiveness of anti-Arab sentiment – with Saudi Arabia being an especially soft target – and electoral considerations.
In voting to override Mr Obama’s veto, members of Congress ignored the fact that there is no evidence that the government of Saudi Arabia was responsible for the terrorist attacks. As the White House spokesperson made clear after the vote, the US September 11 Commission Report “concluded that they were not able to find any evidence that the Saudi government as an institution or that any senior Saudi government official were knowingly supportive of the September 11 plotters”.
That being the case and that being known by members of Congress, one might reasonably ask why they wouldn't have been honest with the families of the victims – and their lawyers who were pressing them to act – and warned them of the dangers and the ultimate disappointment of moving down this path? Was it because they lacked political courage or was it because in an election year they took the more expedient path of passing Jasta?
Here’s what might happen now. The tort lawyers who represent the families will try to shop around for a friendly jurisdiction in which to file. They will hope to make their case before a sympathetic jury, playing on their fears and prejudices. Any decision that is made will be appealed and, at some level, will be overturned. Along the way, both the Saudi government and the families will pay millions in legal fees; more damage will be done to US-Arab relationships; and, in the end, no one will benefit except the lawyers.
The problem is that the members of Congress who created this heartbreaking mess for the families, the United States and the US-Arab relationship will most probably not be held accountable or feel responsible for what they have done.
Dr James Zogby is president of the Arab American Institute
On Twitter: @aaiusa
