Don’t expect a quick legislative “fix” to a new law allowing families of the victims of the Sept. 11 terrorist attacks to sue the Saudi Arabian government.
Congress last week overrode a presidential veto of the Justice Against Sponsors of Terrorism Act, which is now law. Immediately after the vote, however, lawmakers admitted they are worried the bill could lead other countries to sue the U.S., endangering overseas members of the military, undermining U.S. sovereign immunity and hurting relations with the Saudis, who are critical allies in the Middle East.
But altering the law would require new legislation, which will take time and cooperation, both of which are lacking this year.
One top congressional aide familiar with the effort to alter the law said it is more likely now that Congress will pause to determine the effects of the law, before working to change it.
“The main option right now seems to be … we monitor developments in other countries and if they appear to be taking steps to allow lawsuits that could harm American personnel like troops or diplomats, we respond in some way,” the aide said. “I don’t see a path right now where we revisit the actual JASTA legislation, unless its scope gets narrowed.”
Neither House Speaker Paul Ryan, R-Wis., nor Senate Majority Leader Mitch McConnell, R-Ky., would promise consideration of new legislation narrowing the scope of the bill in the lame-duck session scheduled to begin the week of Nov. 14. And the powerful chief sponsors of the legislation have signaled they don’t like the proposed fix.
The JASTA legislation was written by Senate Majority Whip John Cornyn, the number-two Senate Republican, and Charles Schumer, the number-three Democrat who is slated to become Democratic leader in January.
Schumer last week criticized a measure in the works by Sen. Bob Corker, R-Tenn., to limit the reach of the bill so that lawsuits against foreign countries are allowed only in the case of the Sept. 11, 2001 terrorist attacks.
The law as written is broad, and is aimed as a deterrent as well as an avenue for terrorism victims to seek justice, say its proponents.
“Do you know what that does?” Schumer, of New York, said last week, when asked about Corker’s plan to narrow the law to 9/11. “That tells the Saudis go ahead and do it again and we won’t punish you.”
Recently declassified documents show at least an indirect link between the Sept. 11 attacks and Saudi officials, who were found to have made payments to terrorists linked to the attack and to have obstructed U.S. terrorism probes.
The Saudis have denied any connection to the attacks. They condemned the passage of JASTA last week and warned it could hurt the United States.
“It is our hope that wisdom will prevail and that Congress will take the necessary steps to correct this legislation in order to avoid the serious unintended consequences that may ensue,” the Ministry of Foreign Affairs of the Kingdom of Saudi Arabia said in a statement.
The bill became law despite strong bipartisan objections, not only from the White House, but national security officials who served both parties. House Armed Services Committee Chairman Mac Thornberry, R-Texas, warned fellow GOP lawmakers to uphold Obama’s veto.
CIA Director John O. Brennan warned the bill could undercut U.S. sovereignty abroad and “place our own nation’s officials in danger.” And former U.N. Ambassador John Bolton, no friend of the Obama administration, also called for lawmakers to uphold the president’s veto.
Both McConnell and Ryan said they are concerned about the impact of the new law.
“I’d like to think that there’s a way we could fix so that our service members do not have legal problems overseas, while still protecting the rights of the 9/11 victims, which is what JASTA did do,” Ryan said.
When a reporter asked if Ryan would take up legislation when Congress returns in November, given the concerns, Ryan responded, “I don’t know.”
Other than narrowing the scope of the bill to the Sept. 11 attack, few other options exist to change JASTA. However, lawmakers earlier this year carved out a way for the federal government to temporarily block the new law.
Andrew Bowen, Global Fellow in the Middle East Program at the Woodrow Wilson International Center for Scholars, said lawmakers included a provision in the bill that will allow the Secretary of State to impose a 180-day waiting period, that can be repeatedly renewed, to stave off a lawsuit against the Saudis.
“The secretary of state could be given the authority to repeatedly extend indefinitely the 180 period without the need for federal court review in the name of national security considerations,” Bowen told the Washington Examiner. “However, this keeps sovereign immunity in play. It really comes down to how much the lame duck session wants to address the flood gate they have opened.”
