Foreign Sovereign Immunities Act

A Response to Jack’s Critique of JASTA

By Richard Klingler
Friday, May 27, 2016, 5:38 PM

I’d like to add a counterpoint to Jack’s recent assessment that Congress, by passing JASTA, would be shirking its duty by not more directly resolving the claims that the victims of the 9/11 attacks press against the Kingdom of Saudi Arabia. My views are no doubt shaped by my participation in the litigation on behalf of certain victims of the attacks, principally in various appellate proceedings. That acknowledged, I believe Congress is using a traditional mechanism which appropriately balances the implicated interests and advances legitimate sovereign interests. That mechanism is preferable to the suggested alternative of having Congress directly resolve the merits of the dispute and provide for compensation from any Saudi assets remaining in the United States.

Adjusting the scope of the FSIA immunity exceptions is a fairly traditional exercise of Congress’s foreign affairs powers—especially, as here, when limited to the counter-terrorism context and addressing harm arising on U.S. territory. The FSIA’s “state terrorism” exceptions to immunity (Section 1605A and its predecessor) have for two decades provided for a much broader scope of litigation against sovereigns than JASTA provides, extending to acts of terrorism inflicting damage abroad. JASTA’s stay mechanism may coordinate with Executive Branch powers somewhat differently, but JASTA intrudes much less on foreign sovereignty and any related international law concerns. The FSIA’s non-commercial tort exception, Section 1605(a)(5), has been used for even longer as the basis for imposing liability on foreign sovereigns that facilitate attacks in the United States, and JASTA is probably best understood as simply removing certain nontextual limitations on Section 1605(a)(5) that certain circuits have adopted. Civil litigation compensates victims and marginally deters further facilitation of attacks, and lifting immunity provides only that generally applicable law and associated defenses will apply. Redressing harm arising in the United States is a basic expression of our sovereignty, and as the Supreme Court recently emphasized in Bank Markazi, even targeted legislative interventions in terrorism-related litigation, through adjustments to sovereign immunity, are appropriate components of Congress’s foreign policy powers.

Nor would it be preferable or usual for Congress to directly resolve the merits of the allegations through hearings and then attempt to provide redress to victims of the 9/11 attacks from Kingdom assets in the United States. Congress has already conducted extensive hearings on the issue, and the co-chair of that effort, former Sen. Bob Graham, is one of the most vocal advocates of pursuing claims against the Kingdom. Presumably, those hearings and related reports informed the Senate’s unanimous support for JASTA. A Congressional determination on the merits, and especially related seizure or disposition of Saudi assets, would be viewed abroad as more inflammatory and political than would requiring a sovereign to defend itself before independent judges against the application of general laws. And as a practical matter, extensive cooperation of the Executive Branch would be required, even as this Administration’s indifference and outright opposition to the claims arising from the attack have prompted Congress to consider JASTA and repudiate the Administration’s approach. The congressional resolution would not even avoid the delay and friction associated with litigation, which would almost certainly follow any efforts to dispose of Kingdom assets.

If an alternative to judicial proceedings is needed, a state-to-state settlement provides a better and more traditional alternative for compensating victims and vindicating our sovereign interests. In this respect, the Executive Branch retains the ability to resolve the underlying dispute and avoid harms to national interests that may arise from domestic litigation—as Congress through JASTA’s stay provision has recognized and sought to encourage.