JASTA is now in play

In a rather rare show of Congressional unity in a rancorous partisan atmosphere in the final weeks of the 2016 presidential elections, Congress over-rode the president’s veto of JASTA.
Defying Obama’s warnings about the impact of the bill both on the US’s global position and its relations with the Kingdom of Saudi Arabia, illogic defeated logic. With Donald Trump closing in on Hillary Clinton in the polls, sense and sensibility have generally been lost this fall.
As recently seen by the mythmaking around the “28 pages,” the cheap and spurious narrative peddled by former Sen. Bob Graham and others that the government of Saudi Arabia had a hand in the 9/11 attacks added further momentum to this bill’s survival. Some of that momentum was slowed when the Senate last week nixed a resolution to block the present US arms sale to the Kingdom.
However, 9/11 victims’ families have lobbied hard for this legislation with the hope that it would help hold accountable those who perpetrated these horrible attacks. Despite numerous US investigations, no evidence has ever been found linking the Saudi government to 9/11. The road to 9/11 went not through Riyadh, but Kabul and ultimately, New York City where Al-Qaeda, not the government of Saudi Arabia, attacked the US homeland. Numerous Saudi families have lost loved ones due to this group and Crown Prince Mohammed bin Naif survived an assassination attempt.
With many members of Congress up for re-election, a vote to preserve Obama’s veto would have been too politically risky. A last-minute push by Obama to prevent the bill from going into law has failed. Arguments about the bill’s broader ramifications for the US, notably in lifting sovereign immunity, couldn’t cut through the mythmaking hype surrounding the bill. A moment for Congressional leadership, like so many others, failed.

What’s next?
With JASTA going into effect, there are a few steps left to stop in its tracks once it goes into law. In the case of lawsuits related to 9/11, the legislation allows US Secretary of State John Kerry to delay some of this litigation by certifying that this matter is being first taken up directly with the accused foreign government, in this case the Saudi government. However, Kerry doesn’t have the time and the bandwidth to do this with every lawsuit, which will spring up now and in the future.
A federal district court will likely then take up a lawsuit against the Kingdom and the judge could go as far as to preliminary freeze assets of the government as the suit is heard. If a case is made these assets could be moved outside of US jurisdiction. Saudi assets could be anything from real estate holdings of members of the Saudi government to Saudi Aramco’s assets that fall under the US’ remit. Assets could also be taken from joint partnerships between Saudi and US companies.
Depending on which appellate court hears an appeal, the challenge to the law’s constitutionality could be upheld or overturned. If the case goes to the Supreme Court, the court could potentially be split on 4-4 lines and the law remains in effect. It’s unclear how the justices will rule. In either case, if it reaches the court, this could be a multiple month protracted legal battle, as Saudi assets remain frozen.

A dangerous precedent
JASTA will certainly test and strain US-Saudi relations at a time when a stronger partnership is needed. The forthcoming lawsuits will further contribute to a growing percentage of the American public’s souring perception of the Kingdom, which is harmful for the long-term direction of the bilateral relationship. It will also hurt the US’ own public diplomacy efforts with the Kingdom.
At a time when Vision 2030 marks an opportunity for deeper economic investment and cooperation between the US and Saudi, JASTA will make the US a more risky environment to invest in.
Russia, China, the UK, and the European Union may become the main beneficiaries of JASTA.
More broadly, the US’ repudiation of sovereign immunity strips away a fundamental global legal norm that has been a key component of the US’ global position.
By allowing American citizens to sue foreign governments in US federal courts for the actions of their citizens, this opens the US up globally for other governments to adopt similar legislation. Within a year, Washington could see a proliferation of lawsuits in courts around the world. This will not only impact the US government but also American businesses operating globally.
At a time when populism is rife and stifling globalization, Congress’ repudiation of sovereign immunity as a global norm is a further blow to globalization and global economic norms of cooperation.

— Andrew J. Bowen, Ph.D. is a global fellow at the Woodrow Wilson International Center for Scholars in Washington, DC.