Jack has highlighted his and Curt Bradley's excellent op-ed in the New York Times this morning explaining the negative consequences to amending the Foreign Sovereign Immunities Act to allow Saudi Arabia and other countries to be sued for acts of international terrorism.
When the Justice Against Sponsors of Terrorism Act (JASTA) was introduced six years ago, I expressed similar concerns in testimony before the Senate Judiciary Committee in 2010. (Oddly, the Obama Administration did not provide a witness to discuss the bill. The full hearing transcript is here.) Among other concerns, I said:
“…a decision to derogate further from the customary international law of sovereign immunity would weaken substantially our arguments against other governments taking analogous action against the United States.”
“…although the provision expanding the tort exception to include certain terrorist acts outside the United States was drafted with specific countries in mind, it could potentially be used to bring suits against other nations, including even close U.S. allies like Israel, if their actions outside the U.S. result in personal injury or loss of property in the U.S. For instance, it is conceivable that this bill could remove Afghanistan’s immunity from suit for a military action in Afghanistan, or Israel’s immunity from suit for a security action in Gaza, that results in personal injury or loss of property by an Afghan or Palestinian family member in the U.S.”
“…Congress should be particularly cautious at this time when considering amendments to the Foreign Sovereign Immunities Act. The U.S. is engaged internationally in two wars and countless efforts to protect our country from terrorist attacks. U.S. agencies are engaged in necessary acts of lethal force in distant parts of the world. Congress should carefully consider the risk that removing the protections foreign governments enjoy in our courts could invite lawsuits in other countries against the U.S. or its officials for alleged extrajudicial killings or acts of terrorism if the U.S. is seen as departing from the sovereign immunity principles recognized in customary international law.”
“Iran and Cuba have already passed legislation removing U.S. sovereign immunity in their courts in response to U.S. legislation that allowed large judgments against them in U.S. courts. The U.S. has been sued in both countries and faces billions of dollars in default judgments as a result.”
“And over the last decade, numerous legal actions have been brought against U.S. officials in Europe arising out of official actions they have taken to fight terrorism.”
“Moreover, the ability of the United States to enter into multilateral agreements that would enshrine the very principles of international law that we ourselves have championed for years will be even more limited if Congress carves out new exceptions to the FSIA.”
“Broadening the exceptions to the FSIA would open the door to unprecedented civil lawsuits against countries with which our leaders are conducting sensitive diplomatic business. I would note, in this regard, that President Bush was forced to veto the National Defense Authorization Act for FY08 after Congress included an amendment to the FSIA that allowed Iraq to be sued for terrorists acts under the Saddam Hussein regime, which complicated the political and financial reconstruction of Iraq.”
The sponsors of JASTA have modified the bill to address some of the concerns I raised in 2010 and are reportedly considering further revisions. But, as Jack and Curt argue in their op-ed, the legislation is likely to have unintended consequences and make it harder for the U.S. to protest infringements on U.S. sovereign immunity by other countries.