By Robb Davies
Following the enactment of the Justice Against Sponsors of Terrorism Act (JASTA) in September 2016, U.S. law permits litigants to sue foreign states tied to acts of terrorism committed in the United States. Its passage amended the Foreign Sovereign Immunities Act (FSIA), which previously restricted such litigation to claims against foreign states recognized by the U.S. Department of State (DoS) as state sponsors of terrorism (SST)—JASTA ended the requirement for that distinction. It also eliminated the “entire tort” standard, which previously reserved U.S. jurisdiction to tortious conduct performed within the United States. U.S. policymakers and the international community are still weighing JASTA’s effect on international commitments to foreign sovereign immunity.
Under FSIA, the U.S. government grants broad restrictions on U.S. jurisdiction over non-U.S. entities, which has been reciprocated by many countries around the world. In 1996, Congress expanded that jurisdiction to cover acts of terrorism committed in the United States by agents of an SST-designated country. That act made possible several successful lawsuits against Iran and Cuba. In one such case in 1997, surviving relatives of U.S. victims of a military attack on civilian aircraft sued the Cuban air force and government, which at that time was a designated SST. The attack occurred in international airspace while the victims were flying search and rescue missions for Cuban migrants. The U.S. District Court for the Southern District of Florida held that the then-recently implemented terrorism exception in FSIA extended the court’s jurisdiction over the defendants. The plaintiffs were awarded $50 million in compensatory damages and $138 million in punitive damages recovered from frozen Cuban assets.
The JASTA’s road to enactment concluded after the 114th Congress summoned a rare bipartisan (and nearly unanimous) coalition to override the Obama Administration’s staunch opposition to the bill. President Obama’s veto was the only successfully overridden veto of the twelve throughout his presidency. The Administration resisted the bill in deference to the traditional doctrine of foreign sovereign immunity. It was concerned that foreign governments exposed to litigation permitted by JASTA would respond in kind and peel away legal immunities enjoyed by U.S. persons and agencies in foreign states. It had cause for concern: both Iran and Cuba made reciprocal changes after the terrorism exception was first implemented, though no additional country has yet taken retaliatory steps in the wake of JASTA. The Obama Administration insisted that international grievances are exclusively the purview of the executive rather than the judicial branch. While seeming to erode some of the autonomy traditionally reserved for U.S. administrations in executing foreign policy, the new law does provide them a powerful mechanism to inhibit litigation they fear harms bilateral relations: indefinitely renewable 180-day stays, awarded by courts on condition that DoS demonstrates is addressing the litigants’ grievances through diplomacy.
The Kingdom of Saudi Arabia exhausted great effort in lobbying against JASTA’s passage and is currently embroiled in litigation with victims of the September 11, 2001, terrorist attacks. Following the attacks, parties sued several Saudi entities, including Saudi government officials, for allegedly providing material support to al Qaeda’s financial backers. As Saudi Arabia was not (nor is) designated an SST, the U.S. Court of Appeals for the Second Circuit (Second Circuit) in 2008 dismissed the claims and recognized the defendants’ pre-JASTA sovereign immunity for non-SSTs. In a 2013 case in which the Second Circuit applied the “entire tort” rule, the Saudi defendants avoided liability because their alleged participation in the conspiracy occurred outside the United States. But in March 2017, galvanized by JASTA’s waiver of “entire tort” and the SST-designation requirement, victims of the attacks filed a new class-action lawsuit against Saudi Arabia and related entities. Now on stronger statutory grounds, Ashton v. Kingdom of Saudi Arabia is before the U.S. District Court for the Southern District of New York and the plaintiffs have a conceivable path to success.
Though conceived in response to a suicide attack born by jihadists, JASTA may also become a practical tool in today’s era of espionage characterized by assassinations of political dissidents exiled in Western countries, notably those attributed to Russia. In FSIA, “extrajudicial killing” constitutes a tort for which bereaved families of victims could sue the governments responsible. One mysterious case in the United States aroused suspicion in 2015 when Mikhail Lesin, once a powerful Russian media figure, was found dead in his Washington, D.C. hotel room from blunt force cranial trauma. The District of Columbia U.S. Attorney’s Office later ruled the death accidental. In a confirmed domestic case of political assassination, Russia or any foreign state could be held liable under JASTA, even if its agents ordered the killing from the safety of its own territory.
It is unknown how Saudi Arabia would react (or whether it would comply) should a U.S. court assign it even partial responsibility for the 2001 terrorist attacks. Another unsettled question is to what degree Congress will maintain JASTA in its current form after it acknowledged, almost immediately following passage, its potential hazard to U.S. sovereign immunity. As for the Trump Administration, President Trump seems eager to strengthen relations with Saudi Arabia, particularly its new leaders King Salman and Crown Prince Mohammed bin Salman. However, then-candidate Trump said in late September 2016, “President Obama’s veto of [JASTA] is shameful and will go down as one of the low points of his presidency”—a statement the Saudi leadership undoubtedly views unfavorably. Saudi Arabia today is reportedly lobbying the Trump Administration to urge Congress to overturn JASTA entirely. If the 115th Congress’s legislative performance to date is any indicator, lawmakers are unlikely to address Saudi concerns anytime soon.