JASTA: a poison pill for President Trump
25 Jan 2017|

Image courtesy of Pixabay user WikiImages.

In its dying moments the 114th Congress passed a bill, the Justice Against Sponsors of Terrorism Act, and then, for the only time in Barack Obama’s presidency, overrode his veto. The legislation negates the international legal principle of ‘sovereign immunity’ for governments, permitting parties injured by terrorist acts in the United States to sue foreign governments where complicity in an act of terrorism is proven.

That possibility already exists for states officially designated as sponsors of terrorism. Saudi Arabia isn’t one of these. However, the legislation has Riyadh right in the frame for the 9,000 victims (killed and injured), and their families, of the 9/11 attacks. The bill was passed on the 15th anniversary of that atrocity. 9/11 families’ and survivors’ organisations campaigned for JASTA for a long time, conscious of the US$2.7 billion compensation settlement in the case brought against Libya’s Gaddafi government for the Lockerbie bombing, which averaged $10 million for each affected family.

JASTA is a disaster. It has massive ramifications for Saudi–American relations, including bilateral collaboration in the struggle against fundamentalist terror. There’s also the clear prospect of copycat legislation in other countries aimed at American assets. As the EU delegation in the United States argued in September 2016:

‘State immunity is a central pillar of the international legal order. Any derogation from that principle of immunity bears the inherent danger of causing reciprocal action by other states and on erosion as such. The latter would put a burden on bilateral relations between states as well as the international order as a whole.’

They know whereof they speak. In Belgium in 1999 a new law gave its courts’ jurisdiction for crimes against humanity anywhere in the world. Bush administration officials then had complaints filed against them prompting a threat from Washington to remove the NATO headquarters from Brussels. The Belgian law was repealed in 2003.

JASTA was strongly supported by now Democrat Senate minority leader, Chuck Schumer of New York. But the real driving force was the Republicans in the House and Senate, who were out to embarrass Obama, extracting advantage in the lead-up to November’s elections. Candidate Trump enthusiastically attacked Obama for his subsequently-overridden veto. Republican senators even attacked Obama for not doing enough to stop them!

Now the problem is in Trump’s lap.

No evidence of official Saudi collusion in the 9/11 attacks has emerged in the years since including in the recently published secret parts of the comprehensive official report on the investigation of the attack. However, pursuit of that claim, and any others yet to be made, could place before the courts comprehensive details of American intelligence collections, putting at risk critical collaboration with American partners in the Middle East and elsewhere. Saudi investment in the United States is around US$800 billion. They’ve threatened to sell up—not an easy task. However, they could determine to no longer peg the riyal to the U.S. dollar which they have done to their cost. As a group of former defence and intelligence leaders wrote to President Obama and Congress: ‘[The Saudis] have been willing to pay a steep price in the form of declining dollar reserves for the sake of their alliance with the United States.’ If they were to conclude that the peg served no strategic purpose and removed it, ‘such a development would, of course, directly undermine the dollar in global currency markets.’

More to the point, copycat legislation in other countries would adversely affect the United States which has more assets spread across the globe. US officials conducting global counterterrorism operations including drone, air and special forces actions would be vulnerable once sovereign immunity removed.

It isn’t easy to see Congress reversing itself. Likewise, it’s not easy to see President Trump, with his well-known proclivity to “double down” on positions he has taken, do otherwise on this. There’s no real deal here to be had. Whatever one’s thoughts on the Saudi Kingdom, the balance of advantage in the relationship lies heavily with the US. The Saudis have been a strong supporter in the struggle with terror and they’re also a big defence customer of the US. Under Obama, around $50 billion worth of defence equipment was acquired by the Saudis—three times than under his predecessor.

The Republicans in Congress, having perceived problems with the legislation, undertook to examine the issue in the new Congress. The JASTA legislation leaves in place a capacity to delay court actions. The Administration can intervene to assert that it is trying to resolve the issues involved in litigation, with the relevant government. The stay in proceedings lasts six months and is renewable. That will pit the aggrieved party effectively against their own government. It’ll be a major impediment to building community trust in government endeavours if government’s effectively arguing against its citizens.

Congress have kicked a massive ‘own goal’ in an arena where American leadership is crucial. We have personnel in the field in this struggle and we need to raise it with the new Administration, and with Congress, at the earliest opportunity.