The Kingdom of Saudi Arabia, a country that is used to getting its way on Capitol Hill, has instead taken a beating over the past two weeks from lawmakers on both sides of the aisle.
An attempt last week by Sens. Rand Paul, Christopher Murphy, Al Franken, and Mike Lee to block a $1.15 billion tank sale to Riyadh’s military was defeated by an overwhelming margin, but the fact that the vote was even taken—and that 27 senators supported blocking the transaction—was a warning sign to Saudi officials that Congress is increasingly disturbed by its behavior in the region.
Saudi Arabia is once again under the microscope this week, as the House and Senate prepare to override President Barack Obama’s veto of JASTA: the Justice Against Sponsors of Terrorism Act. The bill, sponsored by Democratic Sen. Charles Schumer and Republican Sen. John Cornyn, seeks to amend the Foreign Sovereign Immunities Act to make it easier for American victims of terrorist attacks to sue a foreign government for providing material support to the attackers. In short, these countries would face a hearing in front of a judge over the charges, rather than getting the case thrown out on the basis of sovereign immunity. The families of 9/11 victims would finally have the opportunity to seek monetary damages over what they argue was Saudi complicity in the worst act of terrorism on American soil in history.
As with any bill, there are limitations. U.S. citizens will be able to sue a foreign government only if the attack occurred on American soil, which means that terrorist strikes against overseas military and diplomatic facilities would presumably be off-limits. Even so, President Obama strongly believes that JASTA would severely complicate America’s business overseas, potentially jeopardizing sovereign immunity for our own diplomats and service members. President Obama made that argument perfectly clear in his veto message to Congress: “Removing sovereign immunity in U.S. courts from foreign governments that are not designated as state sponsors of terrorism, based solely on allegations that such foreign governments’ actions abroad had a connection to terrorism-related injuries on U.S. soil, threatens to undermine these longstanding principles that protect the United States, our forces, and our personnel.”
The 9/11 families strongly believe this is a legalistic way of saying that America places its diplomatic relationship with Saudi Arabia above justice for American citizens. The European Union has backed up the Obama administration in its decision, as have an array of top national-security officials from Republican and Democratic administrations. There is a lot of lobbying on Capitol Hill as we speak, and the decision of whether to override Obama’s veto will be determined in part by whether the politics of supporting the 9/11 families outweighs any negative impacts that JASTA may have for the U.S.-Saudi relationship in the future.
In the end, however, all of the lobbying from the 9/11 families, and the millions of dollars spent by the Saudis in return, obscure an important fact about JASTA: the legislation is far more symbolic than anything else. Any teeth the bill had were taken out when senators amended the legislation to make it more palatable to the Obama administration.
In one of the biggest loopholes in the bill, the attorney general would possess the power to ask a judge to pause any judicial proceeding against a foreign state for 180 days if he or she certified that Washington was engaged in “good faith discussions with the foreign state defendant” on the charges. The government, in effect, could ask the judge to stop the proceedings in order to arrive at some kind of settlement. And if the judge granted the attorney general’s initial request—something that Steve Vladeck, a professor of law at the University of Texas, argues is very likely given past precedent—the U.S. government could receive additional 180-day extensions as long as the discussions continued. In other words, the 9/11 families’ case could be delayed over the long-term based on the pretext that Washington and Riyadh are talking about an alternative (that the families are highly unlikely to want).
In sum, whether or not Congress overrides Obama’s veto of JASTA as expected, the Obama administration has already won the battle. If JASTA isn’t passed, the White House won’t have to worry about any lawsuits directed at its Saudi allies at all; if it is, the loopholes are wide enough to make it irrelevant.
Daniel R. DePetris is a fellow at Defense Priorities.