October 4, 2016 | The Huffington Post
Americans Can Sue Saudi Arabia Now. So What?
Congress overrode President Obama’s veto on Wednesday for only the first time during his eight years in office. The bill, the Justice Against Sponsors of Terrorism Act (JASTA), allows victims of terrorism or their families to sue foreign governments they blame for acts of terrorism in America starting with the 9/11 attacks, even if those defendants are not designated by the U.S. as State Sponsors of Terrorism.
The way the vote transpired is surprising in five main ways:
1. Opponents Put Up Meek Resistance:
Both the White House and Congressional leaders could have worked harder to fight the bill’s passage in its current form. In April, White House Press Secretary Josh Earnest came out swinging, warning, “the whole notion of sovereign immunity is at stake” – meaning governments’ traditional freedom from prosecution abroad.
Obama vetoed the bill last month, and waited as long as possible to do so in the hope that Congress would then be on recess (it was not). But the White House’s ground game fighting the bill was unusually lackluster.
Senator John Cornyn (R-TX), a JASTA supporter, suggested that the administration was “missing in action” during the legislative process. Senator Richard Blumenthal (D-CT), agreed that the White House was “late to this game.”
Senate Foreign Relations Committee Chairman Bob Corker (R-TN) sought to narrow the bill, but said there was “zero involvement from the White House.” Heclaims to have made repeated requests for a bipartisan meeting with White House officials to coordinate opposition but never got a response.
Senate Majority Leader Mitch McConnell (R-KY) accused the administration of not acting soon enough to explain the bill’s potential harm to members of Congress. In response, Earnest fired back that “ignorance is not an excuse” when national security is at stake and cited several letters to Congress from cabinet officials, business leaders, and foreign governments listing their concerns.
Twenty-eight senators signed a letter urging JASTA to be scaled back, but only released it after the bill had passed. This led a Politico reporter to wryly observe: “if you’re a member of Congress and you’re just now releasing your JASTA statement… you’re doing it wrong.”
2. The Saudi Lobby Got Clobbered:
Saudi Arabia was already spending $9.4 million on U.S. lobbying and public relations as of 2015, but this past month it signed additional contracts with fivemore U.S. firms as foreign agents, bringing its estimated monthly bill to about $1.3 million. Corporations invested in the kingdom – including Dow Chemical, Chevron, and General Electric – also lobbied against the bill, likely with Saudi encouragement.
Yet Wednesday’s overwhelming vote tallies reflected poorly on Saudi Arabia’s cast of supporters. The vote to override Obama’s veto passed by 348 to 77 in the House and an even more lopsided 97 to 1 in the Senate.
3. It’s Not Over:
Much of the debate before Wednesday focused on whether JASTA would or should be adopted, but now that the bill is law, the struggle it engendered persists.
Congress may pass additional legislation after November to narrow JASTA’s scope, a move which over a quarter of senators have already apparently endorsed. JASTA’s main backers in the Senate have said they are willing to revisit the law, butrejected suggestions to narrow its scope to exclude all past or future terrorist attacks other than 9/11. Senator Chuck Schumer (D-NY) insisted that doing so would tell terror sponsors, “go ahead and do it again, and we won’t punish you.”
There are other ways to keep JASTA intact while narrowing its side effects. One would be to limit its scope only to attacks by al-Qaeda or the Islamic State. This could for example constrain Turkey from accusing Washington of violating JASTA’s principles if it fails to extradite Fethullah Gülen, a Turkish preacher living in Pennsylvania whom Ankara labels a terrorist.
Another idea could be to soften JASTA’s impact on the safety of U.S. diplomats and servicemembers overseas by clarifying that revising the immunity of states has no impact on America’s strict views as to the necessity of respecting the personal immunity of military or diplomatic officials acting in an official capacity. Congress could also task the administration with crafting a strategy to deter or punish foreign states that might overstep such bounds at the expense of U.S. citizens.
The executive branch will also likely take its own actions in response to the law’s passage. The U.S. attorney general is allowed to ask a judge to stay legal proceedings under JASTA, but only after the secretary of state certifies “good faith discussions” with the foreign government accused of supporting terror. This provision will probably be tested soon, as the first JASTA case was filed Friday against Saudi Arabia by a woman whose husband was killed at the Pentagon on 9/11.
4. Where’s the Gulf Reaction?
The dispute over JASTA went public this spring when the New York Times reportedthe Saudi foreign minister telling members of Congress that Riyadh would withdraw up to $750 billion in assets from U.S. markets for fear they could be frozen in court. Now that JASTA has passed, experts have warned that Saudi Arabia and its Gulf neighbors could also penalize America by withholding crucial support from current efforts against terrorism.
Yet so far no tangible reaction from the Gulf has materialized. Riyadh’s official reaction to the override was a tame statement urging Congress to “correct” JASTA to avoid “serious unintended consequences.” On the contrary, just days after the bill first passed the House last month, the kingdom moved ahead with bidding on a $1.5 billion oil refinery in Texas.
5. What about American Foreign Policy?
The big remaining question is how the battle over Saudi Arabia’s sovereign immunity could affect American foreign policy.
It could make Washington more inclined to grant the Arab Gulf monarchies major concessions to shore up alliance ties. For instance, the White House approved the sale of advanced fighter jets to the Gulf nations of Qatar, Kuwait, and Bahrain that had been stalled for years, within just hours of the Congressional override.
In addition, the Huffington Post‘s Akbar Shahid Ahmed reports that JASTA’s passage could shortchange “fact-based conversations” about Riyadh’s dismal record on human rights, religious incitement, and combating terror finance by instead spending U.S. cachet on the near–unwinnable case that Saudi Arabia directly caused the 9/11 attacks.
While 9/11 victims and their families may finally have their day in court, their government’s priorities seem set to shift in the opposite direction: downplaying key U.S. differences with Riyadh and trying to build up the immunity of sovereign states and home and abroad.
NB: The words “$1.3 billion” were corrected to “$1.3 million” on 10/4/16 shortly after 2 pm. Silly typos are silly.
David Andrew Weinberg is a Senior Fellow with the Center on Sanctions and Illicit Finance at the Foundation for Defense of Democracies. He previously served as a Democratic Professional Staff Member at the House Committee on Foreign Affairs. Follow him on Twitter @DavidAWeinberg.