Foreign Sovereign Immunities Act

Justice Against Sponsors of Terrorism Act: Initial Analysis

By Ingrid Wuerth
Thursday, September 29, 2016, 2:19 PM

Congress has overridden President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA). JASTA has been rightly criticized by other commentators (for example here and here); my purpose here is to analyze several of its important features and to raise some questions about how they will be interpreted.

JASTA creates a cause of action against foreign states for injury occurring in the United States caused by an act of international terrorism in the United States and by a “tortious act or acts of the foreign state,” regardless of where the tortious act by the foreign state occurred. It creates the cause of action by first providing that a foreign state has no immunity from such claims and then by providing that a national of the United States may bring a claim against a foreign state in accordance with 18 U.S.C. § 2333 if that state is not immune under JASTA, notwithstanding 18 U.S.C. § 2337(2). This cause of action is created through an amendment to the Foreign Sovereign Immunities Act (the new 28 U.S.C. § 1605B).

JASTA also creates a cause against persons by amending 18 U.S.C. § 2333 to include a claim for aiding and abetting an act of international terrorism committed, planned, or organized by an organization designated as a foreign terrorist organization under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).

Section 2, the provision directed at foreign states, is relatively narrow, at least as compared to earlier versions of the legislation, but it is applicable beyond the 9/11 terrorist attacks and the potential responsibility of Saudi Arabia. Victims of terrorist attacks in the United States now have a financial incentive to try to link any such attack to the reckless or intentional actions of a foreign state, even when those actions occur in other countries.

Collecting on any JASTA judgment may be difficult, however. The immunity of foreign states from the execution of judgments is protected by different sections of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1609-1611, which are not amended by JASTA. The FSIA does provide some specific methods of enforcing judgments against state sponsors of terrorism (governed by FSIA 1605A), such as § 1610(a)(7) and (b)(2), but these measures will not be available under the new JASTA section, FSIA § 1605B. There are other possible ways to execute against assets of foreign states (including their agencies and instrumentalities) under FSIA, but they are framed narrowly and are likely inapplicable. Congress might well act to provide new enforcement measures should victims prevail against Saudi Arabia under JASTA, but that means that Congress gets a second look at potential foreign relations harm before any such judgment is enforced.

Of course, the Obama administration asserts that significant foreign relations harms may result even aside from any efforts at enforcement (the veto message is here)—by, for example, exposing the U.S. government and U.S. officials to suits in other countries or by allowing for discovery against foreign states. The Supreme Court upheld broad discovery under the FSIA in a post-judgment execution action against Argentina in 2014, over the objection of the U.S. government.

Section 5 of JASTA also includes what appears to be an unprecedented “Stay of Actions Pending State Negotiations.” Section 5 provides that courts may grant a 180-day stay if the Secretary of State certifies that the U.S. is engaged in good faith discussions to resolve the claims against the foreign state and if DOJ chooses to intervene and to submit the certification to the court. The court must grant 180-day extension(s) upon re-certification by the State Department (again on petition of the DOJ), which leaves open the possibility of very long-term stays (the italics are mine). The statute apparently leaves to the courts’ discretion whether to grant a stay at all, but no discretion as to granting an extension. The statute provides no guidance as to what factors a court should consider in whether or not to grant an initial stay.

Courts have sometimes used the political question and international comity doctrines to achieve somewhat similar results in holocaust-related cases, which the Clinton administration ultimately resolved through executive agreements with Germany and other countries. See, for example, the Ungaro-Benages case, 379 F.3d 1227 (11th Cir. 2004). International comity has also been used to somewhat similar effect in other factual contexts. For example, see the Pravin Bank Associates case, 109 F.3d 850 (2nd Cir. 1997), in which the district initially granted a stay but refused to extend it because an extension would have been inconsistent with U.S. policy. Seen from this perspective, the statute codifies a power similar to one that courts have exercised at times in the past, which is arguably salutary because the judicial power to stay the litigation will be statutorily conferred rather than a matter of federal common law. The statute also requires a formal process for making the U.S. government’s position known to the courts, thereby providing some internal executive branch checks on the State Department’s ability to influence the litigation through a stay. It is unclear whether the Section 5 language divests the courts of the power to apply international comity and other common law doctrines if the Section 5 requirements are not met.

The Stay of Action language in Section 5 is also arguably an implicit endorsement of the President’s claim settlement power. What if the “discussions” referred to in Section 5 lead to a sole executive agreement and that agreement calls for the termination of the litigation? Section 5 says nothing about this possibility. The Supreme Court has upheld executive claim settlement agreements in several cases, including Dames & Moore and Garamendi; the agreements in those cases were not implemented through legislation. One might argue that by failing to state explicitly that a claim settlement agreement would be binding on the courts, Congress did not intend to authorize such power implicitly. A similar argument about the International Emergency Economic Powers Act failed to carry the day in Dames & Moore.

Two concluding observations. First, the aiding and abetting language in the statute could generate litigation against individual foreign government officials acting outside their official capacity. Cases against individuals do not come within the Foreign Sovereign Immunities Act, and there are significant constitutional questions about whether the U.S. government has the power to make immunity determinations binding on the courts, which I have addressed in other writing. The scope of foreign official immunity is an unsettled issue in international law as well.

Second, Section 2 of JASTA includes a finding that appears to go to personal jurisdiction. It finds that “persons, entities, or countries” that contribute material support to acts of terrorism against U.S. nationals “should reasonably anticipate being brought to court in the United States to answer for such activities.” An earlier version of JASTA included substantive language about personal jurisdiction, so maybe this finding originally related to that earlier language. The language applies well beyond the new causes of action created by JASTA as actually adopted, but perhaps it is designed to shape what can be “reasonably anticipated” as a matter of due process in terrorism cases beyond JASTA. It is not clear what effect, if any, congressional findings such as this should have on courts’ analysis of due process. The language also applies to “countries,” although lower courts have held that foreign states have no due process rights, so that there is no constitutional bar to exercising jurisdiction over them.

JASTA will generate significant litigation. That litigation, and the statue itself, has put aspects of U.S. foreign policy under the overlapping control of Congress, courts, executive the branch, and private litigants.

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Update: A reader notes that JASTA Sec. 3(c) makes 18 U.S.C. § 2337(2) inapplicable to JASTA suits against foreign states. JASTA Sec. 4 by contrast includes no comparable language, so that 2337(2) would bar JASTA aiding and abetting suits against “an agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority.” Aiding and abetting suits are thus permissible only against officials acting outside their official capacity; such suits are less likely to generate immunity issues than those against officials acting within their official capacity.