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How Could JASTA Change U.S. Foreign Policy?

The Senate approved a bill this week that would allow families of the victims of the 9/11 attacks to sue the Saudi Arabian government for its alleged involvement. How could this impact the U.S.-Saudi relationship, and broader U.S. foreign policy?

By Cameron Hood


President Barack Obama looks on as King Salman bin Abd alAziz of Saudi Arabia speaks during a bilateral meeting in the Oval Office on September 4, 2015. (Photo: Olivier Douliery-Pool/Getty Images)

The already convoluted American-Saudi relationship just became even more complicated.

On Tuesday, the Senate voted unanimously to pass S.2040—also known as the Justice Against Sponsors of Terrorism Act—which would provide the victims of terrorist attacks in the United States with the broadest legal basis to sue foreign governments for any possible part they may have played in such attacks. JASTA notably lessens the degree to which foreign governments are immune to lawsuits in U.S. courts under a 1976 law, allowing them to be held liable if they are found culpable — either “knowingly or recklessly” — in terrorist attacks occurring on U.S. soil. The bill passed on to the House’s Judiciary Committee, although the White House has already threatened to veto it, despite its bipartisan support.

Though the text of the bill does not mention Saudi Arabia directly, JASTA is part of a broader Congressional effort to allow 9/11 victims’ families to specifically sue the Saudi Arabian government for its alleged complicity in the tragedies that transpired ��� a controversy that stems from Congress’ 2002 investigation into the attacks, which remain classified (though the Obama administration is considering releasing them in the coming weeks). Many members of Congress from both the Democratic and Republican parties, as well as victims’ families and activists, believe that these pages will provide hard evidence of the Saudi government’s connection to the attacks.

In an interview this week, former senator Bob Graham (D-Florida) emphasized that the pages contain “linkages [that] are so multiple and strong and reinforcing that it’s hard to come away from reading all this material and not feel there was a support network, and that support network came from Saudi Arabia.” Labeling the recently approved bill “a very big victory,” Graham also noted that, given the classified knowledge that both the U.S. and Saudi governments have on Riyadh’s connection to the attacks, Saudi Arabia has “interpreted this … as being impunity [sic] and have continued to fund terrorist organizations and to train the next generations of recruits in their mosques and madrassas.” Graham is alluding here to Saudi Arabia’s long-documented support of extremism.

Notably, the 9/11 Commission’s 2004 report found “no evidence that the Saudi government as an institution or senior Saudi officials individually funded” al-Qaeda, the terrorist organization that carried out the attacks. Yet the report did note that its “conclusion does not exclude the likelihood that charities with significant Saudi government sponsorship diverted funds to al-Qaeda.” Even the White House has not denied that al-Qaeda received funding from the country, or that the Saudi government may have been negligent in its surveillance.

The bill underscores how U.S.-Saudi relations have changed, and how that evolving relationship presents Washington with a real political liability.

Unsurprisingly, the Saudi government’s initial reaction to the bill has been overwhelmingly negative. More striking is the extent of the Saudi government’s reaction. During his trip to Washington last month, Saudi Foreign Minister Adel al-Jubeir effectively issued an economic threat to U.S. officials, warning that his government would consider putting $750 billion of American assets, including Treasury securities, on the market if the bill was passed. Economists have expressed skepticism at the likelihood of Saudi Arabia acting on this threat; the country has its own economic troubles and such a move would harm the Saudi economy more than it would the U.S.’s. (In addition, on Saturday, Moody’s lowered Saudi Arabia’s long-term issuer rating to A1 from Aa3 due to potential “material deterioration” in its credit profile linked to depressed crude oil prices.)

Jubeir repeated his warning in early May after meeting with Secretary of State John Kerry. “We [Riyadh] say a law like this would cause an erosion of investor confidence,” he commented, insinuating that talk of Saudi Arabia threatening the U.S. over the issue was unfounded. “We don’t use monetary policy,” he continued, “and we don’t use energy policy and we don’t use economic policy for political purposes.” Jubeir did, however, say that JASTA “is stripping the principle of sovereign immunities, which would turn the world for international law into the law of the jungle.”

American lawmakers and JASTA supporters have already emphasized that the scope of the bill is very narrow, and applies only to attacks committed on U.S. soil that harm U.S. nationals — which makes the Saudi government’s vociferous response that much more striking. Why would Riyadh act so strongly if it didn’t have information to conceal?

Much of the concern on the part of the White House and the Saudi government centers on the bill’s re-definition of sovereign immunity under federal law. The bill changes how individuals or groups of citizens interact with governments, and, by extension, how foreign policy is conducted. Foreign policy has traditionally been viewed as a state-on-state enterprise, involving official bodies, channels, and their representatives. If the bill is written into law, a foreign government could theoretically be held accountable by private American citizens under U.S. jurisdiction, while also blending the traditional separation of powers in U.S. foreign policy decision-making — which also enraged the White House in March, when GOP senators jumped into diplomacy by sending an open letter to the Iranian government.

Legal experts have expressed their unease at how the bill undermines existing norms of international law. Professors Curtis Bradley of Duke Law School and Jack Goldsmith of Harvard Law School penned an op-ed in the New York Times last monthelaborating on this principle:

A nation’s immunity from lawsuits in the courts of another nation is a fundamental tenet of international law. This tenet is based on the idea that equal sovereigns should not use their courts to sit in judgment of one another. Many nations have tacitly agreed to limit immunity in specified contexts, such as when they engage in certain commercial activities. But apart from those exceptions (or where a binding treaty or Security Council resolution otherwise dictates), international law continues to guarantee immunity, even for alleged egregious crimes.

Bradley and Goldsmith emphasize that the U.S. benefits most from this understanding of sovereign immunity — and, accordingly, bears the most risk in altering this legal framework — under the idea of “reciprocal self-interest.” Should the U.S. decide to revise its laws to permit suits against other governments, those foreign nations are incentivized do so in return, but under their own jurisdictions, and potentially using vastly different legal standards. Furthermore, as Bradley and Goldsmith detail, U.S. foreign policy includes programs and agreements that are highly contentious, and even in legal gray areas both domestically and internationally. Actions that the U.S. perceives to be in its own interests will inevitably contradict other countries, and may leave the U.S. vulnerable to targeted, politicized lawsuits in response.

Yet beyond these broader legal implications, the more pressing reality is that the U.S. needs Saudi Arabia as a partner in resolving the Syria conflict, where negotiations are still dragging on, in combating the Islamic State of Iraq and Syria, and in bringing a “cold peace” to the region in its nemesis Iran. As much as the U.S.’s partnership with Saudi Arabia is both frustrating and troubling, particularly because of President Barack Obama’s self-described “complicated” relationship with the country, without Saudi support the U.S. would face far greater challenges in dealing with Turkey and Russia — whose interests in Syria in particular, even if expressed otherwise, differ from Washington’s. JASTA could be a particularly heavy blow to the longstanding U.S.-Saudi alliance, since there is the actual risk of economic retaliation and repercussions for both sides beyond exchanging diplomatic barbs or terse statements.

Just by being approved by the Senate, the bill underscores how U.S.-Saudi relations have changed, and how that evolving relationship presents Washington with a real political liability. Even if the bill dies and is revived again at a later date, the Saudi government will still view it as an unnecessary risk and a point of contention in its relationship with the U.S. moving forward.

Furthermore, the White House’s opposition to the bill is complicated by the divide between the administration and the American public over foreign policy. A Pew Research poll on America’s role in the world from earlier this month reported that 41 percent of respondents believe the Obama administration “takes into account the interests of other nations too much,” with 53 percent disapproving of Obama’s handling of foreign policy, and 51 percent disapproving of his approach to the terrorism threat.

The contents of the classified pages, once released, are also important for the future tone of the U.S.-Saudi relationship. If they do not yield the “smoking gun” — and are simply “raw, unvetted material,” as two members of the 9/11 Commission have openly argued — the episode risks only further driving a wedge between Washington and Riyadh and causing a worse headache for the White House. But if they do indeed offer a more credible link between Saudi officials or organizations and the 9/11 attacks, or if the American public and media treats them as such, Washington will be placed in an even more awkward position with Riyadh. With both Democratic presidential candidates Hillary Clinton and Bernie Sanders supporting the bill, and considering presumptive Republican nominee Donald Trump’s earlier comments that “without the cloak of American protection, I don’t think [Saudi Arabia] would be around,” the U.S.-Saudi partnership could easily grow more uncomfortable.