On September 28, the U.S. Congress overwhelmingly voted to override President Barack Obama’s veto of the Justice Against Sponsors of Terrorism Act, more commonly known as JASTA, which could subject foreign governments to American jurisdiction for certain acts of terrorism. This was the first time Obama had had a veto overridden and marked only the 110th such occurrence in the 228-year history of Congress.
Since the September 11, 2001 attacks, there have been a series of civil claims from families of victims seeking financial compensation. Given the inability to collect compensation from Al-Qaeda, the plaintiffs have sought instead to recover damages from Saudi Arabia—including four princes who were members of the kingdom’s since-disbanded Supreme Council of Islamic Affairs—on the grounds that official charitable funding was funneled to Al-Qaeda and used to carry out the attacks. However, American courts have consistently dismissed these cases on the basis of the Foreign Sovereign Immunities Act of 1976 (FSIA), which codified longstanding diplomatic practice that foreign states, with a few narrow exceptions, are immune from U.S. jurisdiction. As a direct legislative response to these dismissals, JASTA—which makes no reference either to Saudi Arabia or the 9/11 attacks—modifies FSIA to create a new exception for cases of international terrorism carried out on American soil.
Clearly, JASTA, for which the families of the victims of 9/11 (a potent political constituency in an election year) lobbied heavily, is a deeply misguided and dangerous piece of legislation. It threatens principles of reciprocal sovereign immunity, which is fundamental to the conduct of foreign relations, and potentially dilutes executive authority with regard to foreign policy.
CIA director John Brennan issued a rare public statement warning of “grave implications for the national security of the United States,” while Defense Secretary Ashton Carter wrote to Congress that JASTA “could be devastating to the Department and its Service members and could undermine our important counterterrorism efforts abroad.” Arab commentators have questioned whether JASTA’s legal logic could be applied to the United States, given the devastating wars in Iraq and Afghanistan.
The sovereign immunity issues require careful legal analysis well beyond the scope of this article, though it should be pointed out that Congress has already signaled a sensitivity to these concerns. A bipartisan group of 28 Senators, all JASTA supporters, issued a public letter even before the veto override was finalized highlighting the need to resolve “those unintended consequences.” Both the speaker of the House of Representatives and the Senate majority leader have followed suit in the days since.
The more immediate question may be whether Congress has precipitated a fundamental rupture in the U.S.-Saudi partnership, which has served as an anchor for the Middle East regional order since the end of World War II.
Saudi officials have warned American lawmakers that they could sell up to $750 billion in financial holdings in the United States, including roughly $100 billion in U.S. Treasury bonds, which could precipitate an economic crisis. There has been some speculation that the kingdom could downgrade or cease counterterrorism cooperation. And what about those four princes named in the 9/11 lawsuits? One of the them is Prince Salman bin Abdulaziz, who has since become king, so the crisis is not just diplomatic but also personal.
U.S.-Saudi relations have already been through an extended rocky patch, with significant policy disagreements over everything from Egypt to Iran and much in between. Nonetheless, I suspect that JASTA will be seen, ultimately, as a diplomatic headache rather than a diplomatic catastrophe.
First and foremost, no evidence has yet emerged, or is likely to emerge, that Saudi Arabia had any role, direct or indirect, in the 9/11 attacks. The famous 28 pages—the redacted portion of the 2002 Congressional inquiry into the 9/11 attacks, containing raw intelligence on Saudi Arabia’s connections to Al-Qaeda—were declassified last July. These documents make disturbingly clear that Saudi officials had deeper contacts with the earliest incarnations of Al-Qaeda than they cared to admit and didn’t begin to take the Osama bin Laden threat seriously until at least 2003. But these intelligence reports contain absolutely no evidence that Saudi Arabia had either any foreknowledge of or involvement in the September 2001 attacks.
Further, given the glacial pace of the U.S. judicial system, it would likely be several years before the cases work their way through the courts, creating time for Congress to further limit JASTA’s scope, particularly if there are indications that American personnel might be at risk of facing reciprocal action abroad. The legislation creates a process whereby the administration can seek a 180-day stay of the civil action to seek a diplomatic resolution with the defendant state, though it is far from clear that Saudi Arabia would be willing to participate in such a process. Lastly, JASTA contains no mechanism for executing a court judgment, so even if the litigants obtained a ruling against Saudi Arabia in the American court system, the process of collecting on that judgment is likely to be legally complex and time-consuming.
To this point, the reaction from Riyadh been relatively restrained. Although the Saudi Foreign Ministry released a press release that blasted the veto override and “the dangers that JASTA represents,” it also expressed 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.”
Gulf sovereign wealth fund managers will certainly think long and hard about the stability of their U.S.-based portfolios, though unloading hundreds of billions of dollar-denominated assets is easier said than done. A fire sale would certainly have a bigger negative impact on the Saudi economy than on the American one, given the size disparities between the two.
As for security relations, while there might be some short-term symbolic gesture from Riyadh to reconsider intelligence sharing, counterterrorism cooperation, or weapons purchases, the fact remains that Saudi Arabia finds such collaboration as beneficial as does the United States. These aspects of the relationship tend to be largely compartmentalized anyway, so a sharp structural shift away from the longstanding security partnership is unlikely.
There’s no getting around the fact that JASTA is a deeply ill-advised piece of legislation that could potentially do serious damage to U.S. foreign interests over time. But fears (or expectations) of a U.S.-Saudi rupture show a misunderstanding of the nature of the partnership. The Middle East advisors to the incoming president will certainly include JASTA on their long list of regional challenges. Their task of restoring trust with Saudi Arabia has just grown more difficult. But if I were looking to make a wager, I’d bet that Saudi Arabia won’t pay a dime as a result of JASTA.