- - Tuesday, October 11, 2016

ANALYSIS/OPINION:

On Sept. 28, the Senate and House of Representatives overwhelmingly voted to override President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA), upholding the right of families of the victims of the Sept. 11 attacks to have their day in court.

For the first time since 2003, when the families first filed their action in federal court seeking to prove that Saudi Arabia financially enabled — whether wittingly or by turning a blind eye — our nation’s most horrific terrorist assault, there is hope that justice will be served.

But that hope is already at risk of being undermined. A multimillion-dollar, Saudi-backed campaign is under way, employing Washington’s top lobbyists in an effort to gut the bill of any meaning. Some members of Congress are expressing “buyer’s remorse, echoing President Obama’s claim that the override is a mistake of historic proportions. In balancing the interests of American victims of terrorism seeking their day in court against the potential risk of embarrassment to the Saudis, he chose to champion the latter.

Neither Hillary Clinton nor Donald Trump has been asked for their views, but the question may well come up in the next presidential debate. And it should. At stake is the future of the rule of law as opposed to unlimited “sovereign immunity” from charges of complicity in terrorism.

That is a stretch. In fact, the act is a measured step to correct the shortcomings of an earlier piece of legislation, the Antiterrorism and Effective Death Penalty Act. That act, passed in 1996 in an effort to hold Libya accountable for what was then the worst terrorist outrage against American citizens — the bombing of Pan Am Flight 103 over Lockerbie, Scotland, in 1988 — provided for accountability of nations behind the attack only if the State Department had the final word on who was a “state sponsor of terrorism.”

Not surprisingly, given its economic and political ties with the United States, Saudi Arabia never made it on that list, even after Sept. 11. Yet over the years the evidence against the Saudis mounted, as the families pleaded for their opportunity to make their case. When denied that right by the government and the courts — just as the courts denied the families of Pan Am Flight 103 their right to their day in court — Congress stepped in. To redress the balance, it honored the families’ opportunity to prove their case while also preserving the U.S. government’s interest in asking the courts for postponement of such proceedings.

The legislation Congress approved over the president’s veto is simple, straightforward and limited in its application. And it is moral: It provides that a foreign state is not immune from accountability in U.S. courts on allegations that it aided a designated terrorist organization to commit a terrorist attack on U.S. soil. Now, should such an act occur on U.S. soil, it is the courts, not the State Department, that will decide whether a foreign state accused of participation or sponsorship can be sued.

The arguments that the new law will lead to an avalanche of foreign laws that would put the U.S. government and American officials in jeopardy are identical to those put forward in 1996 when the law targeting Libya was enacted. That never happened, because the United States does not sponsor terrorism — the deliberate targeting of civilians. And even if such foreign laws came about, they would not hurt us as long as we as a nation continue to uphold the principle that we abhor terrorism and never, as a matter of policy, engage in it.

The new law is reasonable in granting exceptions for actions that are “mere negligence.” Mistakes can be made, but the law addresses intentional activity only. Nor does JASTA disempower the State Department from its designation of state sponsors of terrorism under the ‘96 act. Such states, designated as such by the Department of State, will continue to be subject to a strict economic sanctions regime, as well as suits against them by victims’ families in U.S. courts. The law merely accords additional jurisdiction to the courts for terrorist acts that occurred in the United States, whether or not the states involved were designated.

Finally, there is an important safeguard against the unwarranted interference with the conduct of U.S. foreign relations. The U.S. attorney general is empowered to seek a stay of litigation by families of victims in suits where the “Secretary of State certifies that the United States is engaged in good faith discussions with the foreign state concerning the resolution of the claims against the foreign state.” While this stay is limited to 180 days, it can be extended following a recertification by the secretary.

Why then, the strained and at times hysterical opposition to the law? Saudi Arabia wields exceptional influence in Washington. If the kingdom can expend millions of lobbying dollars to neutralize a duly enacted U.S. law, then there is something inherently wrong in the balance of our relations. After all, it is the families that will still have to carry the burden of proof in a civil trial for damages.

Let’s not let antiquated notions of absolute foreign sovereign immunity, a relic of another era, prevent American citizens from exercising their precious right to their day in court, to prove that a foreign state, whichever it may be, has enabled death and destruction to be brought to our shores.

Allan Gerson is a former professor of international law at George Mason University, senior counsel to two U.S. ambassadors to the United Nations, and deputy assistant attorney general for legal counsel. He represented the families of Pan Am Flight 103 in their lawsuit against Libya and is now part of the team representing the families of the Sept. 11 victims.


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