U.S. Supreme Court
Congress Should Repeal and Replace JASTA
This term, the Supreme Court is set to opine on the Justice Against Sponsors of Terrorism Act (JASTA) for the first time since Congress passed the statute in 2016. In Taamneh v. Twitter—a companion case to Gonzalez v. Google—petitioners ask the Court to consider the scope of JASTA’s aiding and abetting liability, an issue that lower courts have struggled with for years. Gonzales and Taamneh, set for oral argument on February 21 and 22, respectively, both concern courts’ atextually broad interpretations of immunity under Section 230 of the Communications Decency Act and will bring renewed attention to JASTA both within the national security milieu and among potential litigants. If the Supreme Court upholds the breadth of Section 230, then it may not need to reach any JASTA issues. If it narrows the provision, however, it will likely need to address the 2016 statute as well.
As I argue in an upcoming piece in the Virginia Journal of International Law, JASTA has revealed itself to be a rather troubled statute. In addition to serving as a tort mechanism under which injured parties may recover, JASTA’s purpose is to serve the public interest in deterring support for terrorist organizations. As such, the statute should capture objectionable conduct but exclude conduct that society finds on-net beneficial. I argue that JASTA provides poor delineation between these two categories. While the statute reaches bad actors, such as state sponsors of terrorism, banks that funnel money to terrorist organizations, and tech companies that let those organizations use their platforms, JASTA’s current construction can also include humanitarian organizations providing emergency assistance in conflict zones, development outfits working to rebuild, and private companies that enter recovering markets.
In addition, JASTA’s framework has vexed trial and appellate courts for years with contradictory guidance and various pitfalls, leaving potential defendants in the dark about how to conform their activity to the law. It has shifted attention away from the terrorist organizations that commit violent acts and toward corporations that operate in unstable regions. Based on my review of ATA filings, the rate of Anti-Terrorism Act (ATA) cases against U.S. corporations increased sixfold in the years following JASTA’s passage. It provides no scheme for the executive branch to grant licenses, leaving vetted U.S. government partners out in the cold when they stumble into liability. And it does all this despite the fact that nearly one-third of the Senate disavowed the legislation the day after Congress passed it. It is time for the legislature to take a mulligan, learn from the past six years, and repeal and replace JASTA.
A JASTA Refresher
For the uninitiated, Congress passed JASTA in 2016 to augment the ATA, a statute that provides a cause of action to U.S. nationals injured by an act of international terrorism. The ATA initially targeted terrorist organizations themselves, responding to the 1985 murder of an American passenger aboard the Achille Lauro near Egypt at the hands of the Palestine Liberation Organization. The ATA saw no action from 1990 until 2000, after which litigants filed about six lawsuits per year despite limited chances for recovery against foreign non-state actors. In July 2016, the Obama administration declassified a 28-page report on Saudi Arabia’s involvement in the 9/11 attacks. The report, along with judicial opinions holding that the Foreign Sovereign Immunities Act precluded ATA suits against foreign states and that the ATA did not provide for aiding and abetting liability, prompted Congress to enact JASTA about two months later.
JASTA allowed for ATA lawsuits against foreign states and introduced aiding and abetting liability for acts of terrorism. Congress focused almost entirely on liability for Saudi Arabia and similar states, devoting little attention to ramifications for non-state entities (although many anticipated that JASTA would reach recalcitrant banks, as well). At the time, the debate centered on the risks involved in abrogating foreign states’ sovereign immunity, given that those countries may see fit to retaliate in kind. President Obama vetoed the legislation over this issue alone. But JASTA passed both houses of the legislature quickly, without debate, and with sufficient force to override the veto. It became clear in the aftermath that few legislators had actually read the bill, and White House Press Secretary Josh Earnest called Congress’s response “a pretty classic case of rapid-onset buyer’s remorse.” While much thought went into sovereign immunity, there is thin evidence that members of Congress, the White House, or business lobbyists considered how the statute might treat nongovernmental organizations (NGOs) and American corporations engaging in arm’s-length transactions abroad.
A wave of litigation followed, with 20-30 ATA cases filed annually in most of the next five years, peaking at 100 complaints in 2018. This provided ample opportunity for courts to diverge as they worked through exactly what JASTA meant.
We now turn to the substance of JASTA’s legal problems, particularly as courts have tried to implement its guidance. For direct liability, the Anti-Terrorism Act provides:
Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.
For secondary liability, JASTA added:
In an action under subsection (a) for an injury arising from an act of international terrorism committed, planned, or authorized by an organization that had been designated as a foreign terrorist organization ... liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.
Quizzically, and in an example of poor legislative practice, Congress added that aiding and abetting liability in terrorism cases should be guided by Halberstam v. Welch, a D.C. Circuit case about a woman who helped her boyfriend commit burglaries. The Halberstam elements include “(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation.” Another six sub-factors govern the final “substantial assistance” element: (i) the nature of the act encouraged, (ii) the amount and nature of assistance given, (iii) the defendant’s absence or presence at the time of the tort, (iv) the defendant’s relation to the tortious actor, (v) the defendant’s state of mind, and (vi) duration of the assistance provided. Even the D.C. Circuit understood Halberstam to be “only a beginning probe into tort theories,” and the federal judicial opinions discussing the case in depth are overwhelmingly those brought recently under JASTA, meaning that courts are essentially out on their own when working to apply it.
Halberstam and the ATA do not mix well, particularly when it comes to how each treats the defendant’s mental state when providing the assistance. The defendant’s mental state is more important than JASTA’s drafters realized, given that the statute is now being used to target organizations—including for-profit companies—that provide goods and services to the public at large. These corporations may know that there are bad actors participating in the marketplace who will use the support to go on to commit acts of terrorism; yet the corporation cannot discern exactly which participants present that risk. JASTA liability that does not consider the intent of a corporation, NGO, or other organization operating in high-risk areas can push business and development out of countries recovering from conflict, where the international community needs them most, impeding the economic recovery that supports stability.
To be sure, Halberstam directs a court to determine whether the alleged tortfeasor was “generally aware” of its role, as well as its “state of mind” in evaluating substantial assistance. Within these guidelines, a court could find liable those parties that act with intent, those that are generally ambivalent to the assistance, and those who actively work to avoid that assistance. In Halberstam itself, the court determined that the woman’s knowledge of her boyfriend’s burglaries over time produced intent to assist him, rather than general awareness, further muddying the waters.
JASTA’s underdetermined guidance has led courts to diverge in practice. Critically, as the Taamneh petition for certiorari addresses, courts have differed on whether the aider and abettor must have knowledge that it is assisting a terrorist organization, knowledge that it is assisting a specific act of terrorism, or only knowledge that it is providing services to some third parties that include terrorists. The statute requires an act of international terrorism to have taken place, but courts disagreed about whether that included financial support for terrorism generally or only the injurious violent acts themselves. They reached different conclusions on the required level of foreign terrorist organization (FTO) involvement—must the FTO be a key player in the attack, or is it sufficient that an FTO is involved in some remote capacity? In addition, whereas Halberstam requires the aider and abettor to directly assist the principal, JASTA’s findings and purpose allow for indirect support, revealing a direct contradiction within the statute. And whereas the substantial assistance in Halberstam constituted years of supporting outright criminal activity, JASTA’s text hints at no such limitations.
Taamneh and Gonzalez exemplify the blurriness of the line dividing liability from nonliabilty under JASTA. In Taamneh, relatives of Nawras Alassaf sued Twitter, Facebook, and Google following his death in the 2017 terrorist attack at Istanbul’s Reina nightclub. The plaintiffs alleged that the social media companies “knowingly and recklessly provided the terrorist group ISIS with accounts to use its social networks as a tool for spreading extremist propaganda, raising funds, and attracting new recruits.” According to the Taamneh plaintiffs, the companies enabled “the explosive growth of ISIS” by allowing the organization to use their websites “with little or no interference.” The district court found the allegations insufficient, and it did not reach the question of immunity under Section 230. The U.S. Court of Appeals for the Ninth Circuit reversed, determining the complaint sufficient because it alleged “that defendants provided services that were central to ISIS’s growth and expansion, and that this assistance was provided over many years.” The social media companies now ask the Supreme Court to clarify whether its provision of “widely available services,” accompanied by efforts “to detect and prevent terrorists from using those services,” constitutes knowing provision of substantial assistance under JASTA.
The Gonzalez plaintiffs sued Google following the November 2015 ISIS terrorist attacks in Paris, raising similar claims to the Taamneh complaint: namely, that “Google’s YouTube media platform and services provide tremendous utility and value to ISIS as a tool to connect its members and the facilitate the terrorist group’s ability to communicate, recruit members, plan and carry out attacks, and strike fear in its enemies.” The trial court and the Ninth Circuit determined that Section 230 barred most of the claims, although the statute did not provide immunity for allegations that Google, through its advertising revenue-sharing mechanisms with content providers, “agreed to share with ISIS and ISIS-affiliated users a percentage of revenues generated by these ads.” Three of the six Halberstam substantial assistance factors weighed toward liability, but because the Gonzalez plaintiffs’ complaint did not say exactly how much money ISIS received from Google, and the plaintiffs did not allege intent to fund ISIS, the Ninth Circuit concluded that the assistance was insubstantial. The Gonzalez plaintiffs now ask the Supreme Court to clarify whether lower courts correctly read Section 230 to provide social media companies with broad immunity.
The Ninth Circuit’s opinion in these consolidated cases shows how scattershot courts’ approaches to JASTA can be. And this lack of clarity makes it difficult for other (potentially more sympathetic) companies to gauge their exposure to liability in an increasingly interconnected world. The court found ad-sharing transactions where Google allegedly provided financial support to ISIS insufficient—although the amount of money changing hands is nearly impossible to discern without discovery. Yet it determined that hosting ISIS Twitter accounts amounted to substantial assistance, and it provided no guidance to discern between the two situations, meaning that the sufficiency of the allegations against an organization really just comes down to the court’s own intuition about the fact pattern.
This obscurity presents its own policy concerns, shifting incentives for entities operating in and around conflict zones and potentially frustrating the United States’ own interests. Few disagree that those who assist terrorists deserve liability—criminal or civil. And the threat of severe civil judgments to compensate those harmed by horrible acts of violence can serve to change bad behavior. But JASTA provides insufficient guidance to target that liability, and it puts humanitarian and development organizations at risk, given that FTOs operate in dozens of countries where the U.S. government spends billions of dollars annually on foreign assistance. Private actors have increasingly targeted these organizations in recent years, and vague standards for JASTA liability can push these organizations to curtail operations in areas with critical needs to ensure that litigation does not drain their assets. Amendments in the 2018 Anti-Terrorism Clarification Act had a similar effect.
JASTA also lacks any way for the executive branch to grant licenses, placing it out of step with U.S. sanctions regimes and criminal law, as well as reducing private actors’ ability to deliver emergency assistance to the areas that need it most. In one glaring example, the Treasury Department issued a general license in September 2021 to facilitate emergency humanitarian assistance in Afghanistan after the U.S. withdrawal. While the license relieved humanitarian organizations from the executive branch’s sanctions regimes, it could not provide these entities with safe harbor from ATA claims.
With this background, a scenario exemplifying the statute’s overbreadth is easy enough to construct. Consider a hypothetical aid organization operating in and around southern Somalia, providing emergency assistance to avoid famine in the region. The U.S. government provides a license for sanctions liability, but it cannot do so for ATA liability. Despite the organization’s best efforts, al-Shabaab steals and diverts assistance to support its activities over the course of several months. The NGO takes steps to minimize diversion, but because it targets the general public, it cannot completely eliminate diversion without leaving its beneficiaries to starve to death. The terrorist organization then commits an attack in Nairobi, killing a U.S. national. A litigant may well be able to show that the NGO was “generally aware” of its role in al-Shabaab’s activities and that the diverted assistance was “substantial” under the statute. As a policy matter, we probably find the risk the organization undertook to be reasonable given the critical nature of its work, and similar fact patterns can be created for private companies, as well.
Some tweaks would allow JASTA to better differentiate bad conduct from neutral or beneficial conduct. Greater specificity aligns more closely with U.S. foreign policy needs and provides guidance to companies and NGOs conducting activities in unstable regions.
First, Congress should ditch Halberstam and define factors specific to acts of terrorism to guide courts, companies, and NGOs, to include:
(a) the defendant directly or indirectly assists a person who commits an act of international terrorism committed, planned, or authorized by an organization designated as a foreign terrorist organization at the time of the act;
(b) the defendant knows that he is providing assistance to a person who may be or become involved in acts of international terrorism; and
(c) the assistance is “substantial,” considering:
(1) Whether and to what extent the defendant attempts to avoid the assistance
(2) The nexus between the defendant’s actions and the act of international terrorism, including whether the assistance is direct or indirect
(3) Whether the assistance results from deliberate activity or an arm’s-length transaction directed at the general population
(4) The amount and duration of the assistance, including the amount of financial assistance, materials, or services
This set of factors addresses several mens rea concerns, including the type of knowledge the statute requires. Similarly to the second Halberstam element, the proposed test requires that the defendant be aware of the risk in its activity, but it defines that knowledge more specifically. Because we want organizations, such as NGOs and for-profit companies, to continue engaging with the general public, the revised substantial assistance factors instruct a court to consider the strength of their mitigation mechanisms, as well as whether arm’s-length transactions occurred. Under this framework, state sponsors of terrorism and those alerted to specific bad actors will still be liable. And in Taamneh and Gonzalez, the court may have placed more emphasis on the defendants’ efforts to avoid the assistance rather than drawing a line between ad revenue and hosting accounts. In addition, the first element clarifies that assistance may be indirect, which Halberstam does not allow for. The statute also gets rid of extraneous baggage such as “the nature of the act encouraged”—which under the ATA will always be an act of terrorism—and the “the defendant’s absence or presence at the time of the tort”—which is irrelevant in these cases.
Second, JASTA must provide a framework for the treasury secretary to grant licenses exempting entities from JASTA liability in certain contexts where U.S. foreign policy goals require reduced risk of liability.
Third, Congress should provide different damages multipliers for entities that are directly liable, such as terrorist organizations, in comparison with entities that are secondarily liable, such as corporations. JASTA’s current framework incentivizes parties to seek the defendant with the largest bank account rather than the defendant that causes the most harm, and this private attorneys general model does not necessarily operate in the public interest. With more precise targeting, treble damages may still be appropriate for aiding and abetting liability, meaning that awards for direct liability should be increased.
Fourth, Congress should consider adding a provision for cases where a defendant acts purposefully or intentionally to further an act of terrorism, in which case liability may exist for any assistance, no matter how small. The International Criminal Court and the Special Tribunal for Lebanon use this configuration for criminal aiding and abetting liability. Rather than picking between this standard or JASTA’s knowledge-substantiality standard, Congress might see value in deploying both.
The Supreme Court’s upcoming review of Section 230 and JASTA may provide some guidance to entities at risk for JASTA litigation, although the statute’s underlying structure will remain. If the Court decides that Section 230 should continue to provide broad liability to social media companies, it may skip the JASTA questions in Taamneh in their entirety. But if the Court dramatically narrows Section 230, then it will likely confront JASTA’s reach head-on.