September 30, 2016
On September 28, 2016, the U.S. Congress voted to approve the Justice Against Sponsors of Terrorism Act ("JASTA"). President Obama had vetoed JASTA on September 23, 2016 but both the U.S. Senate and the U.S. House of Representatives overwhelmingly voted to override the veto – the first such override in the Obama presidency.
Understanding the significance of JASTA requires some context. As a general matter, countries and their officials cannot be sued in the courts of another country as a result of acts taken in their sovereign capacity. This concept is known as "sovereign immunity" and it is a core doctrine of international law. Although exceptions to sovereign immunity have long existed in the United States and in other countries, and although JASTA is less extreme than some of its detractors have claimed, the law further erodes sovereign immunity in the U.S. in certain situations that are linked to acts of international terrorism in the United States.
JASTA was drafted specifically with reference to the events of September 11, 2001, and attempts to sue the Saudi Arabian government. While the law was animated by sympathies for 9/11 victims and families, JASTA is not limited to potential legal action against Saudi Arabia – it allows potential actions in U.S. courts against any other countries that may qualify.
Importantly, JASTA does not create liability for citizens of foreign countries for the actions of their states. Rather, JASTA only speaks to suits brought by U.S. nationals against allegedly culpable foreign states.
Background and Purpose
The stated purpose of JASTA is to "provide civil litigants with the broadest possible basis . . . to seek relief against foreign countries . . . that have provided material support, directly or indirectly, to foreign organizations or persons that engage in terrorist activities against the United States."
Fifteen of the nineteen 9/11 hijackers were citizens of Saudi Arabia. Supporters of JASTA argue that this is not a coincidence and that the Government of Saudi Arabia should be held accountable for the terrorism perpetrated on that day. The Government of Saudi Arabia, a long-standing U.S. ally, has denied involvement. The White House resisted the legislation on both diplomatic grounds, due to sensitivities of close allies, and international legal grounds, arguing that JASTA is too broadly drafted and could expose U.S. companies, troops and officials to lawsuits if other countries pass reciprocal legislation limiting the United States’ own sovereign immunity in those other countries.
In order to allow victims to bring actions against foreign countries, JASTA makes amendments to the United States Code creating further exceptions to the doctrine of sovereign immunity.
Exceptions to Sovereign Immunity
A number of exceptions to sovereign immunity already exist in the United States. For example, a foreign state can be sued for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.[1] JASTA takes this exception significantly further – though arguably not as far as some fear.
How Far Does the New Exception to Sovereign Immunity Go?
Under federal law[2], any U.S. national "injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees." This type of suit is referred to in this Client Alert as an "International Terrorism Suit."
Before JASTA became law, a U.S. national could not bring an International Terrorism Suit against "a foreign state, an agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority."[3]
Through JASTA, the U.S. Congress has enacted the following changes:
It should be noted that a foreign state does not lose its sovereign immunity as a result of JASTA "on the basis of an omission or a tortious act or acts that constitute mere negligence."[6] In other words, the law requires that there must be an act by the foreign state (or its official, employee, or agent while acting within the scope of his or her office, employment, or agency) and such act needs to be more than mere negligence.
Effective Date
The amendments made by JASTA apply to any civil action:
Observations
Given the strong reservations expressed by Saudi Arabia, the White House and others and the potential foreign relations impact of suits that may be brought against Saudi Arabia and other countries by victims of terrorism, it remains to be seen how utilized, let alone how effective, JASTA will be.
JASTA includes several brakes that allow the White House and the wider Executive Branch to slow down courts’ consideration of such suits. The law permits the U.S. Attorney General to intervene in any action being taken against a foreign state "for the purpose of seeking a stay of the civil action, in whole or in part." The U.S. Court "may stay a proceeding against a foreign state if the Secretary of State certifies that the United States is engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state, or any other parties as to whom a stay of claims is sought." The stay may be sought for up to 180 days and may be extended by additional 180 day periods.[7]
With several 9/11-related suits likely to be filed in the near term, it will be interesting to see how often, and in what circumstances, an intervention is made – and what the diplomatic, legal, and judicial reaction from other states will be.
Before recessing to campaign for the November elections, Congress signaled that it may revisit – and narrow – JASTA when it returns to Washington for a lame duck session in November. Specifically, Senate Majority Leader Mitch McConnell and Speaker of the House Paul Ryan indicated that Congress may seek to narrow the bill to avoid unintended consequences, including responsive or retaliatory actions by other countries that could have negative impacts on U.S. service members overseas. We think that some narrowing of the bill is likely, either later this year or in the new Congress that convenes in January.
[4] Justice Against Sponsors of Terrorism Act, sec. 3 (2016) (to be codified at 28 U.S.C. § 1605B(c)).
[5] Id. (to be codified at 28 U.S.C. § 1605B(b)).
[6] Id. (to be codified at 28 U.S.C. § 1605B(d)).
[7] Justice Against Sponsors of Terrorism Act, sec. 5 (2016).
Gibson Dunn, with more than 1,200 lawyers in 19 offices in major cities throughout the United States, Europe, the Middle East, Asia and South America, is committed to providing the highest quality legal services to its clients. Gibson Dunn has been advising leading Middle Eastern institutions, companies, financial sponsors, sovereign wealth funds and merchant families on their global and regional transactions and disputes for more than 35 years.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding the above developments. Please contact the Gibson Dunn lawyer with whom you usually work, the author of this alert, Hardeep Plahe, or any of the following:
Hardeep Plahe – Dubai (+971 (0)4 318 4611, [email protected])
Paul Harter – Dubai/London (+971 (0)4 318 4621/+44 (0)20 7071 4212, [email protected])
Mitri J. Najjar – London/Dubai (+44 (0)20 7071 4262/+971 (0)4 318 4612, [email protected])
Chézard F. Ameer – Dubai (+971 (0)4 318 4614, [email protected])
Richard Ernest – Dubai (+971 (0)4 318 4639, [email protected])
Graham Lovett – Dubai (+971 (0)4 318 4620, [email protected])
Jeffrey M. Trinklein - London/New York (+44 (0)20 7071 4224 /+1 212-351-2344), [email protected])
Michael D. Bopp – Washington, D.C. (+1 202-955-8256, [email protected])
Adam M. Smith – Washington, D.C. (+1 202-887-3547, [email protected])
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