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Print Vol. 103, Issue 5

Note

“Mob-Legislating”: JASTA’s Addition to the Terrorism Exception to Foreign Sovereign Immunity

Rachael E. Hancock

15 Jul 2018

On September 28, 2016, a politically divided United States Senate overrode President Barack Obama’s veto for the first and only time in a particularly decisive vote: 97–1.1Mohammed Cherkaoui, The U.S. JASTA: An Asset or a Liability for America Abroad?, AL JAZEERA (Dec. 28, 2016, 13:38 Mecca), http://studies.aljazeera.net/en/reports/2016/12/jasta-asset-liability-america-161228101858709.html [http://perma.cc/SX65-R3J9]. Senate Minority Whip Harry Reid was the sole dissenter, while Senator Bernie Sanders and Senator Tim Kaine missed the vote to campaign with Hillary Clinton. Id. The House vote to override President Obama’s veto was almost as decisive: 348–77. Juliet Eilperin & Karoun Demir- jian, Congress Thwarts Obama on Bill Allowing 9/11 Lawsuits Against Saudi Arabia, WASH. POST (Sept. 28, 2016), https://www.washingtonpost.com/politics/ congress-thwarts-obama-on-bill-allowing-911-lawsuits-against-saudi-arabia/ 2016/09/28/a93e31ba-859b-11e6-ac72-a29979381495_story.html?utm_term= .aeb669500efe [http://perma.cc/5NAD-X7BB].  The joint effort was the culmination of a ten-year effort to pass the Jus- tice Against Sponsors of Terrorism Act (JASTA).4Cherkaoui, supra note 1.  JASTA created a new terrorism exception to the Foreign Sovereign Immunities Act by allowing United States citizens to bring suit against foreign states that have aided and abetted acts of terrorism.3Ingrid Wuerth, Justice Against Sponsors of Terrorism Act: Initial Analysis, LAWFARE: FOREIGN SOVEREIGN IMMUNITIES ACT (Sept. 29, 2016, 2:19 PM), https:// www.lawfareblog.com/justice-against-sponsors-terrorism-act-initial-analysis [http://perma.cc/6NWD-QA6F] (suggesting that JASTA may simply codify a power courts had sometimes previously exercised under federal common law). Despite President Obama’s strong condemnation of the legislation in his veto address,2Presidential Message to the Senate Returning Without Approval the Justice Against Sponsors of Terrorism Act, 2016 DAILY COMP. PRES. DOC. 628 (Sept. 23, 2016). President Obama’s spokesperson Josh Earnest further criticized the bill by calling it “the single most embarrassing thing that the United States Senate has done, possibly, since 1983.” Jordan Fabian, White House Lashes out at ‘Embarrassing’ Senate Veto Override, HILL (Sept. 28, 2016, 1:45 PM), http://the hill.com/homenews/administration/298290-white-house-lashes-out-at-embarrassing-senate-veto [https://perma.cc/VPB5-3NJP]. Republican Senator John Cornyn praised JASTA as a “strong bill with a narrow focus” that fixed a loophole in the United States’ approach to foreign sovereign immunity.5Cherkaoui, supra note 1. From across the aisle, Democratic Senator Chuck Schumer also expressed his optimism about the bill by emphasizing that the Legislature’s focus in passing JASTA was families and justice rather than diplomatic considerations.6Id.

Reactions across the globe were neither as positive nor as hopeful. The Dutch Parliament condemned the new legislation as a “‘gross unwarranted breach of Dutch sovereignty,’ which could result in ‘astronomical damages.’”7Id. (quoting Elura Nanos, Bill Allowing Terror Victims to Sue Saudi Arabia Creates Serious Potentional Problems, LAW & CRIME (Sep. 21, 2016, 10:59 AM), https://lawandcrime.com/important/bill-allowing-terror-victims-to-sue-saudiarabia-creates-serious-potential-problems/ [https://perma.cc/DRY4-A6VV]). French Member of Parliament Pierre Lellouche cautioned that JASTA would “cause a legal revolution in international law with major political consequences.”8Id. (quoting Nanos, supra note 7). Unsurprisingly, the Saudi Arabian government, which was the main target of the updated legislation, also responded negatively. The Saudi Arabian government threatened to sell all of their holdings in U.S. government as- sets, which was estimated at the time to be $750 billion.9Mark Mazzetti, Saudi Arabia Warns of Economic Fallout if Congress Passes 9/11 Bill, N.Y. TIMES (Apr. 15, 2016), https://www.nytimes.com/2016/04/16/ world/middleeast/saudi-arabia-warns-ofeconomic-fallout-if-congress-passes-911-bill.html [http://perma.cc/7H6P-6E6W]. Some estimates of Saudi assets range as low as $117 billion. Daniel Pipes, Cruel Hoax: The Justice Against Sponsors of Terrorism Act, NAT’L REV. (June 2, 2016, 6:33 PM), http://www.national review.com/corner/436003/justice-against-sponsors-terrorism-act-cruel-hoax [http://perma.cc/7NYD-GAA8].

This Note explores the issues with the Foreign Sovereign Immunities Act that JASTA attempts to address, the likelihood of JASTA’s success, and whether or not JASTA is a desirable solution. Though the relatively recent nature of this addition renders the long-term impact difficult to assess, an examina- tion of foreign sovereign immunity doctrine’s origins, evolution, and purpose provides sufficient information to make predic- tions about potential problems with JASTA. Part I briefly tracks the history of foreign sovereign immunity in the United States and the transition from an absolutist approach to a restricted approach. Part I also discusses the codification of the restricted approach to foreign sovereign immunity and its potential shortcomings. Part II discusses the original terrorism exception to the Foreign Sovereign Immunities Act of 1976, its origins, early uses, shortcomings, and amendments. Then, Part III explores the political background that gave rise to JASTA and raises concerns about the implications of such sweeping legislation.

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References   [ + ]

1. Mohammed Cherkaoui, The U.S. JASTA: An Asset or a Liability for America Abroad?, AL JAZEERA (Dec. 28, 2016, 13:38 Mecca), http://studies.aljazeera.net/en/reports/2016/12/jasta-asset-liability-america-161228101858709.html [http://perma.cc/SX65-R3J9]. Senate Minority Whip Harry Reid was the sole dissenter, while Senator Bernie Sanders and Senator Tim Kaine missed the vote to campaign with Hillary Clinton. Id. The House vote to override President Obama’s veto was almost as decisive: 348–77. Juliet Eilperin & Karoun Demir- jian, Congress Thwarts Obama on Bill Allowing 9/11 Lawsuits Against Saudi Arabia, WASH. POST (Sept. 28, 2016), https://www.washingtonpost.com/politics/ congress-thwarts-obama-on-bill-allowing-911-lawsuits-against-saudi-arabia/ 2016/09/28/a93e31ba-859b-11e6-ac72-a29979381495_story.html?utm_term= .aeb669500efe [http://perma.cc/5NAD-X7BB].
2. Presidential Message to the Senate Returning Without Approval the Justice Against Sponsors of Terrorism Act, 2016 DAILY COMP. PRES. DOC. 628 (Sept. 23, 2016). President Obama’s spokesperson Josh Earnest further criticized the bill by calling it “the single most embarrassing thing that the United States Senate has done, possibly, since 1983.” Jordan Fabian, White House Lashes out at ‘Embarrassing’ Senate Veto Override, HILL (Sept. 28, 2016, 1:45 PM), http://the hill.com/homenews/administration/298290-white-house-lashes-out-at-embarrassing-senate-veto [https://perma.cc/VPB5-3NJP].
3. Ingrid Wuerth, Justice Against Sponsors of Terrorism Act: Initial Analysis, LAWFARE: FOREIGN SOVEREIGN IMMUNITIES ACT (Sept. 29, 2016, 2:19 PM), https:// www.lawfareblog.com/justice-against-sponsors-terrorism-act-initial-analysis [http://perma.cc/6NWD-QA6F] (suggesting that JASTA may simply codify a power courts had sometimes previously exercised under federal common law).
4. Cherkaoui, supra note 1.
5. Cherkaoui, supra note 1.
6. Id.
7. Id. (quoting Elura Nanos, Bill Allowing Terror Victims to Sue Saudi Arabia Creates Serious Potentional Problems, LAW & CRIME (Sep. 21, 2016, 10:59 AM), https://lawandcrime.com/important/bill-allowing-terror-victims-to-sue-saudiarabia-creates-serious-potential-problems/ [https://perma.cc/DRY4-A6VV]).
8. Id. (quoting Nanos, supra note 7).
9. Mark Mazzetti, Saudi Arabia Warns of Economic Fallout if Congress Passes 9/11 Bill, N.Y. TIMES (Apr. 15, 2016), https://www.nytimes.com/2016/04/16/ world/middleeast/saudi-arabia-warns-ofeconomic-fallout-if-congress-passes-911-bill.html [http://perma.cc/7H6P-6E6W]. Some estimates of Saudi assets range as low as $117 billion. Daniel Pipes, Cruel Hoax: The Justice Against Sponsors of Terrorism Act, NAT’L REV. (June 2, 2016, 6:33 PM), http://www.national review.com/corner/436003/justice-against-sponsors-terrorism-act-cruel-hoax [http://perma.cc/7NYD-GAA8].

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