A JASTA fix
Senators John McCain and Lindsey Graham proposed Wednesday to amend the Justice Against Sponsors of Terrorism Act (JASTA) to apply to cases where foreign governments are liable if it is proven “they knowingly engage with a terrorist organization directly or indirectly, including financing.”
This is a sensible fix to a poorly thought-out piece of legislation in the wake of the release of the much-hyped but vapid “missing 28 pages” of the 9/11 report.
While JASTA received overwhelming bipartisan support in spite of President Obama’s veto, there is deep concern across the aisle on the consequences of this bill, which gutted the widely respected norm of “sovereign immunity” and opened the gates for a number of potential lawsuits against US citizens and its interests abroad. In theory, a US citizen or company could in the future be held liable in Pakistan for drone strikes.
The bill also further strained already frigid US-Saudi relations with tense exchanges between Washington and Riyadh. President Obama was accused of not doing enough to stop the bill’s passage; while there was some finger-pointing over what the Kingdom could have done to avoid JASTA in the first place. Riyadh quickly dispatched its seasoned Foreign Minister Adel Al-Jubeir to Washington to patch up relations.
Lobbying firms went into hyper-drive to try to sell to an apathetic and disillusioned American public that JASTA should be repealed. But their messaging never aligned well with the basic sentiments of the American public, which understandably supported justice for the 9/11 families over the strategic vagaries of the US’ bilateral relationship with Saudi Arabia, a state that is often seen as sharing few common values.
While McCain and Graham’s proposed amendment received a negative response to some representing the 9/11 families, this amendment puts JASTA in a better and more sensible framework. After countless investigations by the US government, there has been no credible evidence to directly link the government of Saudi Arabia to Al-Qaeda’s attacks on 9/11.
If a country is found to be a knowing direct or indirect participant in a terrorist attack, JASTA 2.0 would provide a road forward for justice for the victims of these attacks. With the significance and the centrality of the US role in the global financial system, this provides a road to accountability over terrorist attacks globally, where nation-states who sponsor terrorism often act beyond the reach of the law and the reach of force.
Instead of gutting “sovereign immunity,” this bill could strengthen the US efforts to go after states that are too lax on terrorism financing. While the UAE and Saudi Arabia have taken robust steps to address terrorism financing, states such as Kuwait are still only in the beginning of setting up robust mechanisms. Other states that too often let their public spaces become a safe space for the cultivation and financing of ideas that drive this cycle of violence, can now face greater scrutiny and accountability.
This new version of JASTA is an opportunity for the US and Saudi Arabia to move beyond these past few months of tension and focus on the common strategic challenges confronting both states.
The US and the Kingdom have a long road ahead though to build a better and more realistic partnership. After eight years of Obama, President-elect Donald Trump has the opportunity to put the relationship on stronger footing. Riyadh though will inevitably have to accept a partnership with Washington that is not the same as it once was. Equally, the Kingdom will have to be a more effective partner to have a more enduring relationship.
• Andrew J. Bowen, Ph.D. is a visiting scholar at the American Enterprise Institute.