A Fatal First for the Obama Presidency

by Lucy Dicks-Mireaux*

In the first veto override of the Obama administration, Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA), a law that will allow September 11 victims and their families to sue Saudi Arabia’s government for allegedly backing the attacks on the United States. Fifteen of the nineteen men who carried out the 2001 attacks were Saudi Arabian nationals, but Saudi Arabia has consistently denied any involvement and the 9/11 Commission found no evidence of Saudi government involvement. President Obama had vetoed the bill because he had worried that allowing U.S. courts to waive foreign sovereign immunity would lead other foreign governments to do the same, exposing U.S. officials to lawsuits for overseas actions. The Senate and House responded on Wednesday by voting 97 to 1 and 348 to 77, respectively, to override Obama for the first time during his presidency. Obama has referred to Congress’s action as a “political vote” that sets a “dangerous precedent.”

Supporters of JASTA have worthy intentions in seeking to provide September 11 victims and their families with their day in court, but lawmakers are failing to see the big picture. JASTA could have serious ramifications for the U.S. economy, national security, and international relations. Saudi Arabia is a critical ally for the United States. The two countries have been working together to stabilize the Middle East in recent years and have maintained an important trade relationship for decades, connected by their common interest in oil. Some analysts assert that the Saudi government will understand the legislation as a political maneuver during election season and foresee the unlikely success of future lawsuits. The country could, however, respond through diplomatic or commercial channels. According to foreign policy experts, the country maintains the option(s) to withdraw billions of dollars from the U.S. economy, reduce official contacts, and persuade its allies in the six-member Gulf Cooperation Council that it leads to decrease investments, counterterrorism cooperation, and U.S. access to critical regional air bases. By complicating diplomatic relations and undermining counterterrorism efforts, JASTA undermines the President’s power to initiate and implement foreign policy.

Moreover, this legislation threatens the core international principle of sovereign immunity. Although very limited exceptions have existed, sovereign immunity has protected sovereigns and states from civil suit and criminal prosecution in foreign courts up until now. Critics of this principle believe public officials should be held accountable for their conduct. However, one of the primary reasons for foreign sovereign immunity is comity: the United States will not pass judgment on other countries’ internal decisions and vice versa. JASTA undermines this notion by creating a potentially broad exception and opening the door to lawsuits against U.S. state officials or members of the military. As a country whose military is actively engaged throughout the world, the United States could be exposing itself to significant liability and retaliation by other countries for passing this law.

While Saudi Arabia has yet to offer its official reaction, it is unlikely that the United States will be able to gauge the full ramifications of JASTA until the next president has been sworn into office. When weighing the presidential candidates, citizens should remember JASTA and the importance of foreign policy for the next four or possibly eight years. The last debate focused on the issues of ISIS, NATO, and U.S. nuclear policy, but voters need to consider international relations on a larger scale and ask themselves who would most successfully navigate through this increasingly complex landscape.

* Lucy is a 2L at Harvard Law School and an Online Editor for HLPR.

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