The Obama administration has cited the risk of jeopardizing sovereign immunity, a legal principle that shields foreign nations from legal action, as the central reason to not support the bill.
ALBUQUERQE, New Mexico – The U.S. Senate is poised to override President Barack Obama’s veto of a bill Wednesday that would remove sovereign immunity in U.S. courts from foreign governments that are not designated state sponsors of terrorism, potentialy marking the first veto override in Obama’s presidency.
Within the scope of the bill, it allows families of the victims of 9/11 to sue Saudi Arabia for its alleged ties to the terrorists who carried out the attacks. It is for this reason that supporters have championed it.
The bill passed through both chambers without opposition, and major players from both parties have said they will vote to override the president’s action, including Senate Armed Services Chairman John McCain (R-Ariz.) and House Minority Leader Nancy Pelosi (D-Calif.). It’s also received backing from both Democratic presidential nominee Hillary Clinton and Republican nominee Donald Trump.
The administration has undertaken a lobbying effort to push against the bill. Defense Secretary Ash Carter continued the campaign Tuesday, urging House Armed Services Chairman Mac Thornberry (R-Texas), who has said he will vote to uphold the veto, in a letter to encourage his colleagues to not support the override.
“Adoption of [the Justice Against Sponsors of Terrorism Act] might result in reciprocal treatment of the United States and other countries could create exceptions to immunity that do not directly mirror those created by JASTA,” Carter wrote, including that its consequences could be “devastating.” He warned these cases could be costly and jeopardize U.S. intelligence as litigants seek information to build their cases.
Sovereign immunity shields foreign nations from legal action. It means that no state can force another state to appear in its courts. It is the risk of jeopardizing this principle as the international norm that the Obama administration has cited as the central reason to veto the bill.
“The real concern is that the U.S. adopts an exception, encouraging other states to adopt an exception, and who knows who will be the defendant state in foreign courts,” said Paul Stephan, professor of international law at the University of Virginia.
“The U.S is more vulnerable than almost any other sovereign because we have more property spread around the world, therefore something that can be used to satisfy foreign judgements.”
Stephan said that under the bill, “as long as you provided support, you’re liable for any bad thing that happens.” This includes U.S. support for Syrian rebels or U.S. contractors that provide equipment used in the occupied territories.
Exceptions exist to sovereign immunity, such as when a nation consents to be sued in another nation’s courts as a stipulation of loan contracts or when a nation operates a state owned business, Stephan said.
Under U.S. law enacted in 1996, citizens can sue designated state sponsors of terrorism, such as Iran. However, Stephan said, those sued can just choose to not show up in court and lawsuits using the authority have yielded little success.
He said all suits against Iraq were dropped following the 2003 invasion, any money collected from Cuba and Iran came from assets held in the U.S. and Libya settled not becuase of lawsuits against it, but because at the time it looked to move towards the of lifting international sanctions.
The Obama administration has also said the bill would undermine the process in place that that allows U.S. citizens to sue nations designated as state sponsors of terror, taking control “out of the hands of national security and foreign policy professionals and placing them in the hands of private litigants and courts.”
Stephen Vladeck, professor of national security law at the University of Texas, said that the bill won’t even give 9/11 victims the ability to successfully sue Saudi Arabia.
“Congress has actually added a whole bunch of very sneaky obstacles to those suits and then it passed the bill,” Vladeck said, narrowing the scope of claims that can be brought against sovereign nations and adding language that makes it easier for U.S. courts to stay suits indefinitely.
“Reasonable people can disagree about whether giving the 9/11 families their day in court justifies overriding Saudi Arabia’s sovereign immunity. The problem is, the bill in its current form doesn’t even do that,” he said.
Foreign unions, including the European Union and Gulf Cooperation Council, have voiced their opposition to the legislation and the precedent it might set.
Saudi Arabia has said that the bill would force it to sell up to $750 billion in U.S. assets before they could be in danger of being frozen by U.S. courts.
The Obama administration has not cited this potential liquidation as a reason to veto the bill, but Ghiyath Nakshbendi, professor of international business at American University, said that the bill could jeopardize foreign investments in the U.S.
“The question is not liquidation, the question is what is going to happen afterwards … If investors, especially from the Gulf Cooperation Council, felt that this course of action was very harmful they would be a little bit more concerned to invest in our country,” Nakshbendi said.
“What is important for investors is to feel comfortable, to feel secure, to feel that investments is going to be rewarding and that investment is going to be there for the long run.”