Not just Saudi Arabia, JASTA may haunt Pakistan too

JASTA fails to take into account the long standing principle of foreign sovereign immunity

On September 9, 2016, United States (US) Congress passed an amendment in the Foreign Sovereign Immunities Act 1976 to allow its nationals to sue foreign governments and entities. Citizens can file for litigation over losses resulting from terrorism carried in the US; from September 11, 2001 attack to the ones after. The Senate had cleared the bill in May, which then reached the Oval Office on the 15th anniversary of 9/11. Barack Obama vetoed to trash the legislation named Justice Against Sponsors of Terrorism Act (JASTA). But in their bid to humiliate the White House, the Senate chose to override the veto.



Obama’s objections to the legislation were sound, though largely ignored by media and single-tracked congressmen and senators. However, 28 senators promised to fix its shortcomings in the next term. The act is awfully flawed, legally and procedurally, and the amendments made by the act apply to any civil action filed after its enactment and the victims of 9/11.

JASTA’s shortfalls and problems

In Obama’s view, JASTA violates the executive’s authority to determine if a state has sponsored terrorism by handing the power to local courts that are least equipped to make such determination. He noted the judges may take “consequential decisions... based upon incomplete information... (about) the culpability of individual foreign governments and their role in terrorist activities against the United States.” The executive, on the other hand, has a multi-agency support providing her an all-round view based on a broad spectrum of information and analysis. JASTA simply disregards the meticulous process evolved over decades of exercise in securing US national interest.

It also fails to take into account the long standing principle of foreign sovereign immunity. Vetoing the law, Obama warned other governments can pass similar legislations, allowing their domestic courts to hold the US liable for actions committed by personnel or members of its sponsored armed. He also pointed out the law would complicate US relations with its allies and partners. Saudi Arabia’s reaction to JASTA was categorical: “Weakening this sovereign immunity will affect all countries, including the United States.”

So far, US intelligence has not been able to conclude Saudi Arabia was responsible for the 9/11 terrorist attack. Controversy arose when Bush administration sealed a 28-page section of the Joint Congressional Inquiry Report on the 9/11 attacks. From the perspective of skeptic readers, the report, which is now available to the public, mentions King Fahad and Tamiyah mosques in Los Angeles nearly a dozen times. The connection of funding mosques and prayer leaders seeking acceptance of harsher, puritan view of Islam is seen to have manipulated 9/11 plotters in the US. But for many, including US President himself, the conclusions are more of a stretch. Commission inquiry itself failed to find any evidence of Saudi government’s role in the attack, either as an institution or its senior officials being supportive of the 9/11 plotters.



Had there been convincing evidence and urgency, it wouldn’t have taken the Congress 15 years to act. The amendment raised more concerns due to its failure at the domestic political terrain than for principled reasons. However, the legislation will largely appease the Trump camp as both democratic leaders, Bernie Sandars and Hillary Clinton, had backed the bill.

Beneficiaries of JASTA

Before dwelling into policy implications, it’s important to list the controversial laws’ real benefactors. Interestingly, the best beneficiaries of the law aren’t relatives of or the victims of 9/11 but an entirely different community: the lawyers, who will earn with both hands. They’ll ‘represent’ the families, playing up sympathy and prejudice to the jury. One of the parties will challenge the judgment and bring more business to the legal fraternity. The bigger share will come from the foreign country defending its case such as Saudi Arabia or Pakistan. If the final decision favours the complainant, the foreign nation on the receiving end will also have to cover the legal cost besides paying damages.

Self-preserving members of the Congress and the Senate are the other prime beneficiaries who vetoed the President, weeks before the tightly contested presidential election. The trend of populist politics in America has pretty much buried the voice of sanity. In fact, to satisfy their vested interests, US lawyers and lawmakers alike have played to the ignorance of an American citizen who sees the world through a narrow keyhole. To a common man there, the jargons used in the 9/11 reports are mere spin in favour of a ‘terrorist state’ and media houses such as Fox News have been deliberately feeding into this bigotry.

Moreover, JASTA negates the notion of judiciary’s separation of power and encroaches on the executive authority. The power then lies with the judge to refer the matter to the executive. Although the act permits the Secretary of State to grant 180 day stay in the face of such litigation, there is no limit to the number of days the executive can stay or the court may grant. While it prolongs, cooling off diplomatic tensions temporarily, the lawyers will continue to make big money without doing much.

Holding US accountable

With dissolution of the principle of sovereign immunity, American personnel across the globe will be exposed to boundless litigation. But will US allies, such as EU, Israel and Australia, endorse dumping the convention of sovereign immunity? The chances are pretty dim due to domestic political controversies it will cause thereof.



On the other hand, why won’t a Vietnamese moved to America in the 70s want to sue her and win millions in damages? Almost 3,500 Vietnamese orphans were shipped to the US back then. Other Middle Eastern and African countries can also pursue an identical path by enacting similar laws and try a US national in domestic courts. Iraq’s case, in itself can make US administration vulnerable owing to the countless violations that had occurred.

Some conservatives have also mentioned Pakistan in the vein as Saudi Arabia. They believe Islamabad can be charged of backing terrorism under JASTA because Osama bin Laden was found living in the country. Pakistan may be least prepared for such fallout as Islamabad neither admitted hosting Osama nor launched any aggressive action against US troops conducting the operation to eliminate the world’s most wanted man. However, it may be best to hire a team of defense attorneys.

The spokesman of Pakistan's Foreign Ministry says, "We have noted with concern the overturning of the US Presidential veto on JASTA, a law passed by US Congress aimed at targeting sovereign states." He further added many countries across Europe and in the Middle East have also expressed similar concerns. "Pakistan had earlier also expressed anguish over the adoption of a domestic legislation with extra-territorial application," he added.

US realises Saudi Arabia will sell off its US assets worth $750 billion in Treasury securities and some members of royal family may also divest their properties and businesses worth billions if JASTA challenges its sovereignty. However, Saudi Arabia, UAE, Kuwait, Bahrain and Qatar will still buy fighter jets and other military hardware worth billions of dollars from America, while housing her bases. Saudi Arabia, alone has bought US military hardware worth $95 billion.

The humiliation of being tagged as an international sponsor of terrorism will be irreparable for Saudi Arabia, UAE or Pakistan. Every country has limited capacity to return the favour to US. There’s negligible likelihood countries threatened by JASTA will form a unified front or counter strategy, as Saudis are still too optimistic of their investment in US lobbyists, though they have failed them repeatedly.

Besides leaving its own personnel and proxies vulnerable to equally adverse legislation, JASTA will significantly isolate the US in the Middle East. Its ability to gather information and intelligence will be checked by vulnerable states fearing suspicion of JASTA being used against them. Probably, the rashness of US personnel or its backed proxies may also lessen out of fear of being tried on a foreign land under JASTA-style law.

Naveed Ahmad is a Pakistani investigative journalist and academic with extensive reporting experience in the Middle East and North Africa. He is based in Doha and Istanbul. He tweets @naveed360