- The Washington Times - Tuesday, December 27, 2016

The November election result was painful, but President Obama’s worst moment of the year may have come weeks earlier when Congress voted to override his veto of a bill opening the courtroom doors to victims of the Sept. 11 terrorist attacks who wanted to prove that the government of Saudi Arabia was implicated.

Senators voted 97-1 to override Mr. Obama’s veto, and the House held a similarly lopsided vote. That sparked an over-the-top reaction from the White House, which called it the “single most embarrassing thing” Congress had done in 30 years.

That feverish reaction spawned a rethink by some members of Congress, who said they may have acted too hastily and suggested it may be worth revisiting the law to make sure it didn’t come back to bite American troops, who might face legal exposure of their own. Among these lawmakers were Senate Majority Leader Mitch McConnell, Kentucky Republican, who said there may be unintended consequences, and House Speaker Paul D. Ryan, Wisconsin Republican, who said a fix might be in order.

Three months later, those second thoughts have dissipated, Mr. Obama’s worries have been shunted aside and the Justice Against Sponsors of Terrorism Act looks like it’s here to stay.

The law’s enactment marked a defeat for Mr. Obama, who for the first time in his two terms in the White House failed to prevail on a veto. Congress sustained his previous 11 vetoes, many of them without coming up for a full vote even when Republicans controlled both chambers on Capitol Hill.

The president, who fought hard to preserve his perfect record, blasted members of Congress, including Democrats, for what he said was a misunderstanding about the impact of the bill. He said he understood the bill better than they did and that he feared plaintiffs in courts would gain too much say in foreign policy by muddying what it meant to be a state sponsor of terrorism.

If the rest of the world followed the U.S. lead, he said, people in other countries could win cases and seize American assets based on tenuous connections. Lawsuits could arise, for example, if the U.S. armed or trained foreign police or troops who went on to conduct atrocities, Mr. Obama said.

His pleas were ineffective, and Congress overrode his veto in late September.

The clash opens a window on the modern presidency and one of the central powers of the chief executive in the American system of government: the right to block legislation approved by Congress. Mr. Obama ranks in the middle of the pack of recent presidents when it comes to success with vetoes. He used that power a dozen times, and Congress overrode just one of his vetoes.

His predecessor, George W. Bush, issued 12 vetoes, four of which were overridden. His 33 percent failure rate was the worst since the administration of Andrew Johnson in the 1860s. Presidents Kennedy and Lyndon B. Johnson combined for 51 vetoes, and not a single one was overridden.

After the override of the terrorism justice veto, White House press secretary Josh Earnest called it “the single most embarrassing thing” Congress had done in years. He cited in part the potential repercussions against U.S. military personnel posted abroad.

Second thoughts

In the immediate aftermath, some members of Congress said they were having second thoughts.

“I would like to think there’s a way we can fix [the law] so that our service members do not have legal problems overseas while still protecting the rights of the 9/11 victims,” Mr. Ryan said.

Sen. John McCain, Arizona Republican, and Sen. Lindsey Graham, South Carolina Republican, led the effort to force a reconsideration — though both of them voted for the bill and for the override.

In November, they proposed a revision that they said was needed to protect American troops.

“Here is the problem: Every time a drone is launched, every time Americans go in harm’s way, every time a diplomatic engages in activity abroad, we are subjecting them and our nation to lawsuits, potential imprisonment,” Mr. Graham said. “We need to fix this because if we don’t fix this, it will come back to haunt us.”

One Senate aide said the lawmakers tried without success to attach their revision to the must-pass year-end spending bill.

“There was an effort by McCain, Graham and the Saudi lobbyists to weaken the law as a part of the [bill], which failed,” the Republican aide said. “Given his vocal support for the law, I can’t imagine President Trump would sign anything that weakens it once he takes office. And I’d note that so far the parade of horribles predicted have not come true.”

Neither Mr. McCain’s nor Mr. Graham’s offices responded to requests for comment on the prospects for action, but Jack Quinn, a lawyer who is representing more than 2,000 family members, said they are misrepresenting the real issues at stake.

“Sens. McCain and Graham have indicated that they intend to address concerns, but if you read the record discussion, quite frankly, they’re proceeding on the basis of a complete misunderstanding, a lack of knowledge about the bill,” Mr. Quinn said.

“The concerns being expressed, and the proposed fixes, are the concerns that were expressed and the fixes that have been authored by the kingdom of Saudi Arabia. This is demonstrable. They are using the language that the Saudi foreign agents and lobbyists and PR firms are using. They are simply parroting their line,” he said.

The issue still appears to be touchy for the Saudi government: “The embassy has nothing on JASTA to say,” said a man who answered Riyadh’s embassy in Washington last week.

Mr. Ryan’s office said there was no update, and Mr. McConnell’s staff referred questions to the Senate Foreign Relations Committee, which didn’t provide an update.

With the law on the books, the legal case is beginning to shift. Mr. Quinn said the families have filed a request with the appeals court, to which the Saudi government has agreed, asking that the case be remanded to the lower district court for proceedings consistent with the law.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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