Foreign Sovereign Immunities Act

How to Limit JASTA's Adverse Impact

By Curtis Bradley, Jack Goldsmith
Friday, June 3, 2016, 10:00 AM

We have previously written about why we think JASTA—the bill approved by the Senate last month that would strip foreign sovereign immunity for certain terrorism-related torts inside the United States—is a bad idea.  We argued that the law would be widely perceived around the world as a violation of international law and that it would undermine the U.S. ability to claim immunity in other nations' courts, and that these costs to the nation would likely outweigh any benefits to the potential plaintiffs.

The bill is currently being considered by the House.  We continue to think that, even with some important limitations placed in the bill by the Senate, it will be harmful to U.S. interests.  But if Congress feels compelled to enact legislation on this subject, we propose a simple fix that will reduce the bill's foreign relations costs:  limit its abrogation of immunity to Saudi Arabia alone.

Everyone understands that JASTA is a response to allegations, currently the subject of litigation, that Saudi Arabia (or some of its officials or instrumentalities) is connected to the 9/11 attacks.  Yet rather than target Saudi Arabia specifically in JASTA, the bill that passed the Senate creates a broad general exception to immunity, potentially applicable to any nation, which private plaintiffs could exploit without any intermediate executive branch filter.  (The provision in the current Senate bill that would allow the executive branch to request a stay of litigation under certain circumstances is not such a filter, since it is both limited in applicability and discretionary with the court in the first instance.)

Such an open-ended statute will almost certainly (as such statutes tend to do) invite unexpected litigation against unanticipated defendants.  It also will create a broad precedent that can be used against the United States and its allies as an excuse for “reciprocal” or “analogous” reductions in immunity even if no suit is brought against those countries in the United States.  At the same time, making the statute generally applicable does nothing to reduce friction with Saudi Arabia.

Limiting JASTA to Saudi Arabia would confine most of the impact of the statute to U.S.-Saudi relations and thereby minimize collateral consequences.  Such a targeted approach would be consistent with what Congress has done in the past:  when it has enacted terrorism-related exceptions to immunity, it has targeted specific countries.  Previously, Congress has done so by abrogating immunity for “state sponsors of terrorism,” while leaving it to the executive branch to decide which nations should receive this designation.

Saudi Arabia is not currently on the executive branch list of state sponsors of terrorism, and no President is likely to place it on the list any time soon.  But there is nothing stopping Congress from bypassing that process and acting directly to strip Saudi Arabia of immunity.  Moreover, the Supreme Court’s recent decision in the Bank Markazi case concerning Iran confirms that such a targeted approach, even when addressed to pending litigation, presents no constitutional difficulty.

Focusing the legislation on Saudi Arabia would require Congress to overtly acknowledge the true aim of the law, which in turn would put Congress more directly on the spot for any adverse consequences in U.S.-Saudi relations that follow.  We doubt that Congress will choose to make itself more accountable in this way, even if doing so would reduce the adverse foreign policy consequences for the United States.