It isn't often that a president willingly wades into what will likely be a major showdown with Congress, but that's exactly what President Barack Obama did in vetoing controversial legislation enabling 9/11 victims to sue Saudi Arabia. Obama's veto of the Justice Against Sponsors of Terrorism Act (JASTA) on Friday came as no surprise. The president had been dropping hints he planned to veto the popular (but still highly controversial) bill long before JASTA came up for a vote in the Senate. Although the bill appears to have widespread bipartisan support, it's proven to be highly controversial, particularly considering international laws, and it has divided top members of the Democratic Party.
Under the Foreign Sovereign Immunities Act (FSIA), U.S. citizens are only generally not allowed to sue the governments of other countries. There are two exceptions to this law, however. The first being lawsuits against countries the State Department has already designated as sponsors of terrorism (these include Iran, Syria, and Sudan), and the second being "noncommercial tort" lawsuits against other countries where the entire wrongful act occurred on U.S. soil.
JASTA broadens this second exception to the FSIA to include actions that occurred outside of the United States, but resulted in harm, injury, or death in the United States. This is what enables 9/11 victims and their families to sue the Suadi Arabian government in a U.S. court under the theory the country may have aided 9/11 attackers.
It should be noted that because 28 pages of the 9/11 congressional report remain classified to this day, claims that Saudi Arabia abetted the terrorist group behind the 9/11 attacks have not been substantiated.
Although controversial, JASTA appeared to have widespread bipartisan support in Congress, passing the Senate via a unanimous vote in May before moving easily through the House two days before the 15th anniversary of the attacks. At first glance, the bill appears an easy way to give 9/11 victims' families an avenue to pursue justice they've waited more than a decade to obtain. But things get murky when you look at JASTA through the lens of international law.
Supporters of JASTA have argued it would end 9/11 victims' families long wait for justice, while proponents of the law — which include President Obama, Defense Secretary Ash Carter, and the State Department — argued the bill would jeopardize the safety of U.S. service members, diplomats, and government officials overseas. To put it simply, JASTA could spur lawsuits in foreign countries — including those that don't uphold the same due process of law observed in the United States — against U.S. citizens and officials.
"I have deep sympathy for the families of the victims of the terrorist attacks of September 11, 2001 (9/11), who have suffered grievously," Obama said in a three-page veto message to Congress. "Enacting JASTA into law, however, would neither protect Americans from terrorist attacks nor improve the effectiveness of our response to such attacks. JASTA would be detrimental to U.S. national interests."
The president argued that in shifting power to private litigants and courts, JASTA would reduce the government's ability to respond effectively to evidence a foreign power was supporting terrorism. He also noted the danger in dismantling what he called "longstanding international principles regarding sovereign immunity" as the bill could open the door to foreign powers instigating lawsuits overseas against U.S. government personnel and service members.
Although a Republican-sponsored bill, JASTA has found some opponents within the GOP. Both Sen. Bob Corker and Sen. Lindsey Graham have continually expressed concerns over what kind of precedent JASTA would set, according to CNN:
I have tremendous empathy for the victims. At the same time, I have concerns about the precedent this bill will set and what it may mean to American servicemen and women and others. Let's face it: our alleged drone attacks have killed civilians in Pakistan. Our alleged drone attacks have killed civilians in Afghanistan. And I think once you start opening the door for these types of activities, it can be very problematic.
Across the aisle, JASTA has proven just as divisive with many members of the Democratic Party, including House Minority Leader Nancy Pelosi and New York Sen. Chuck Schumer, who called Obama's veto "a disappointing decision that will be swiftly and soundly overturned in Congress." (To override the president's veto, Congress needs a two-thirds majority in both the House and the Senate.) While Schumer and Pelosi appear committed to overriding Obama's veto, Politico reported both Sen. Dianne Feinstein and House Minority Whip Steny Hoyer of Maryland have expressed a willingness to rethink their vote in light of the president's argument for vetoing the legislation. "This is not a bill without complex ramifications," Hoyer said. "I think it would be incorrect for any member to think this is a very simple issue, that it may not have ramifications for the United States in other venues around the world."
Perhaps even more interesting, JASTA is one of the few things Democratic nominee Hillary Clinton and Republican nominee Donald Trump appear to agree on. Both presidential candidates have said they would sign the bill if it crossed their desk, but it remains a controversial one among many.