JASTA has passed and there are many questions as to the law. Below are responses to common questions on the law:
*What is JASTA? JASTA is a federal statute that was passed by Congress this year. It is an acronym for Justice against Sponsors of Terrorism Act. It allows the families of victims of terror attacks on US soil to sue sponsors of the terrorist acts. The language of the law does not mention the Kingdom of Saudi Arabia by name but it is known that the families of the victims of the 9/11 attacks lobbied for this law and that those who introduced the law in Congress introduced it to allow these families to sue Saudi Arabia for its alleged role in the 9/11 attacks. It is important to note that the US government has asserted time and time again that Saudi Arabia had no involvement in the attacks. In fact, al Qaeda is a terrorist organization that had declared war on Saudi Arabia for its alliance with the US.
*Was JASTA a big bill like the PATRIOT Act? Is it possible that not all members of Congress actually read it? JASTA is only 4 pages long. It is an amendment of a previous law that has been amended more than one time over the years. The law it amended is the Foreign Sovereign Immunities Act (FSIA) of 1976.
*Why was this law passed now? Three reasons: Lobbying by the families of the victims of the 9/11 attacks, a sympathetic Congress during an election year and the fact that Saudi Arabia is a country that has been demonized in the media and by, among others, pro- Iran and pro- Israel groups in the US. Lawyers say the question is more important than the answer. The issue was framed as are you with Saudi Arabia or with the victims of the 9/11 attacks. It is an election year and no one wanted to take the side of Saudi Arabia.
*How did it pass despite the President’s veto? President Obama vetoed the bill. However, the Congress had enough votes to easily override that veto. That was the only veto override in the 8 years of Obama’s presidency.
*Was Kentucky’s Mitch McConnell correct in blaming Obama for the passage of the law? Yes. Definitely, President Obama bears much of the blame. Compare the efforts of the Obama administration on the Iran deal with how little effort was expended on countering JASTA. In 2015, Senator McConnell said that Obama has caused “a genuine meltdown of American foreign policy across the board.” Obama’s failure on an issue of such magnitude is inexcusable. I see it as Obama passively settling scores with Saudi Arabia and the Republicans.
*Why did President Obama not do enough to stop JASTA from becoming law?
Two reasons. First, he does not care for Saudi Arabia. His advisers on the Middle East, if they have sympathies, they are for Israel and Iran. Saudi Arabia is not popular with him or with his inner circle that includes many Iranian Americans and Israel supporters. His Atlantic interview reveals that he is more antagonistic to Arab Gulf countries than he says in public statements. Second, he wanted the Republicans in Congress to look stupid and he succeeded at that. One can fairly say Obama abdicated his duties on that issue.
*American citizens have sued Iran many times over the years and won major judgements, how is the case of Saudi Arabia different? The Foreign Sovereign Immunities Act (FSIA) of 1976 allows Americans to sue a country only when the US government, the executive branch, has labelled that country as a state sponsor of terrorism. Iran is a senior ranking member of a handful of countries that the executive branch has classified as terrorism sponsors, with ample hard evidence to support that labelling. Saudi Arabia has never been on the list and it is extremely unlikely to be added to that list because it does not target Americans. In fact, for decades the US has been the guarantor of Saudi Arabia’s security. Therefore, the only way that Saudi Arabia could be sued is with congressional intervention.
*Has JASTA been used to sue Saudi Arabia? Yes. A case was filed by Stephanie Ross Desimone on September 30 of this year in the DC district court. The evidence is circumstantial and flimsy. It is based on who knew who and who called who. Basically, guilt by association. They are reaching. Compare that case to the cases filed by the victims of Iranian supported terror attacks. In the Iran cases the evidence is ironclad of Iranian culpability. Even the recent case filed by Iranian American Washington Post reporter Jason Rezaian against Iran and its Revolutionary Guards under the FSIA lays allegations that clearly and unequivocally show the responsibility of the Iranian government for “unlawful acts of terrorism, torture, hostage taking and other torts.” If you read the case filed by Rezaian against Iran and the case filed by Desimone against Saudi Arabia together, it becomes crystal clear how frivolous the case against Saudi Arabia is.
*What are the challenges Saudi Arabia faces with the law? The law is a gold mine for the tort bar. Saudi Arabia is facing the possibility of numerous lawsuits. Lawsuits open the door for intrusive discovery- requesting documents, deposing people, etc. No country in the world would accept that. When Iran was sued, the plaintiffs won default judgments because Iran refused to participate in the process. I expect that Saudi Arabia is going to refuse to participate in the proceedings.
*If the plaintiffs won the lawsuits by default would they be able to seize the Saudi embassy, its bank accounts, etc.? No. In civil lawsuits generally there is an issue with collection. You can win the biggest award in the world but if the defendant is collection proof, it is a pyrrhic victory. Assets of diplomatic missions are immune from attachment and execution. The plaintiffs however would be able to reach property that is used for commercial purposes in the US. And Saudi Arabia has major investments in the US that would qualify as such.
*Do you see these assets seized to satisfy future judgments against the US? Unlikely. I expect the president, most likely the next president and the congress to get together to clean this mess. There are foreign policy consequences to ceding American foreign policy to the tort bar. No responsible government would do that. The case of Iran is useful on the collection issue. Even though millions of dollars of judgments were entered against Iran over the years, the plaintiffs were not able to collect a dime from the Iranian assets in the US. Iranian assets were frozen by the executive branch. Only after the Iran deal the plaintiffs were able to collect. And not from the frozen assets.