About a month ago, I wrote a long primer on JASTA (the Justice Against Sponsors of Terrorism Act), a bill that is designed to make it far easier for 9/11 victims and their families to hold the government of Saudi Arabia liable if, as they alleged, various members of the royal family indeed helped to finance the attacks. As I noted at the time, the bill included a series of amendments to the Foreign Sovereign Immunities Act (FSIA) and the Anti-Terrorism Act (ATA) designed to overrule judicial constructions of those statutes that had foreclosed such liability. And although the bill was written in general terms, it was quite clearly directed at Saudi Arabia (although the ATA amendments could also expose more private parties, like banks, to aiding-and-abetting liability, as well). Yesterday, the Senate passed JASTA, or, at least, something called JASTA. It turns out that, contra some early analyses, the bill that actually passed was an amendment in the form of a substitute offered by one of JASTA’s co-sponsors (Senator Cornyn), a substitute that, to put it mildly, would denude JASTA of most of its force. 

I.  The “Original” JASTA

I won’t rehash all of my April post here. At its core, the heart of the bill voted out of the Senate Judiciary Committee included four material changes to existing law:

  1. It would have amended the non-commercial tort exception to the FSIA to abrogate sovereign immunity in tort suits “in which money damages are sought against a foreign state arising out of physical injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of the office or employment of the official or employee (regardless of where the underlying tortious act or omission occurs), including any statutory or common law tort claim arising out of an act of extrajudicial killing, aircraft sabotage, hostage taking, terrorism, or the provision of material support or resources for such an act, or any claim for contribution or indemnity relating to a claim arising out of such an act.”
  2. It would have amended the ATA to expressly allow aiding-and-abetting liability not in all cases, but in cases arising out of an act of international terrorism “committed, planned, or authorized” by a designated Foreign Terrorist Organization (FTO): “[L]iability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”
  3. It would have amended the ATA to allow personal jurisdiction against such entities to the constitutional limit “for acts of international terrorism in which any national of the United States suffers injury in his or her person, property, or business by reason of such an act in violation of section 2333.”
  4. It would also have amended the ATA to repeal the prohibition on suits against “a foreign state, an agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority.”

In other words, had that version of JASTA become law, there would have been no foreign sovereign immunity obstacle to a federal court reaching the merits of claims against the Saudi government under state tort law and the ATA for its alleged role in financing some aspects of the 9/11 attacks.

II.  The “New” JASTA

Contrast that bill with the one that the Senate passed yesterday. As I see it, there are at least three major changes — each of which make JASTA much, much weaker.

First, the personal jurisdiction provision (#3, above) is gone. Thus, the new JASTA would not overrule prior judicial decisions that rejected personal jurisdiction over some of the defendants to the 9/11 civil suits.

Second, the amendment to the ATA that would have allowed ATA claims against foreign sovereigns (#4, above) has been dramatically narrowed. Thus, the new JASTA would not disturb 18 U.S.C. § 2337(2), which prohibits ATA claims against “a foreign state, an agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority.” Indeed, not only does the new bill omit the provision from the earlier bill that would have deleted § 2337(2), but section 4(a) of new JASTA makes this omission all-but explicit, defining who can be liable under an aiding-and-abetting theory in a manner that should necessarily exclude foreign sovereigns. That said, the new JASTA does include the following language in what would be the new 18 U.S.C. § 1605B(c): “Notwithstanding section 2337(2) of title 18, a national of the United States may bring a claim against a foreign state in accordance with section 2333 of that 16 title if the foreign state would not be immune under subsection (b).”

In other words, the new JASTA keeps the ATA’s general bar on suits against foreign sovereigns, but gets rid of it for what might be called “JASTA claims,” i.e., “any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by … an act of international terrorism in the United States; and … a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred.” Even still, though, thanks to section 4(a) of JASTA, ATA claims against foreign sovereigns — as opposed to claims against private defendants — cannot be based upon aiding-and-abetting liability. Thus, the ATA remains available for “JASTA claims” against foreign sovereigns, but only on theories of primary liability (which has already been a major roadblock in the 9/11 litigation).

By far, though, the most significant difference between the two bills is the third distinction, which comes from new section 5 of the Senate-passed bill, the heart of which is section 5(c):

(1) IN GENERAL.—A court of the United States may stay a proceeding against a foreign state if the Secretary of State certifies that the United States is engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state, or any other parties as to whom a stay of claims is sought.
(A) IN GENERAL.—A stay under this section may be granted for not more than 180 days.
(i) IN GENERAL.—The Attorney General may petition the court for an extension of the stay for additional 180-day periods.
(ii) RECERTIFICATION.—A court shall grant an extension under clause (i) if the Secretary of State recertifies that the United States remains engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state, or any other parties as to whom a stay of claims is sought.

I think this provision speaks for itself. But just to be clear, it creates a procedure whereby the US government (which section 5(b) allows to intervene in cases brought under JASTA) can seek to stay any case under JASTA indefinitely. Indeed, although the district court is given discretion under section 5(c)(1) to grant the stay in the first place, once the first stay is granted, extensions (potentially in perpetuity) are mandatory under section 5(c)(2)(B)(ii), at least so long as the Secretary of State re-certifies the existence of “good faith” discussions of resolution of the claims. (See the emphasized language, above.)

Of course, a district judge could always decline to grant a stay under section 5(c)(1), but as should be clear from my earlier post, federal judges have thus far looked for any possible way to avoid reaching the merits of these suits. And so the Cornyn substitute version of JASTA conveniently arms a judge who would rather not wade into a dispute with such thorny and fraught foreign policy implications with an easy way to put that dispute on hold indefinitely. (One also wonders if a district judge’s failure to do so in the face of compelling arguments from the Executive Branch might be deemed an abuse of discretion by appellate judges similarly apprehensive about allowing these suits to reach the merits.)

In other words, the new JASTA largely denudes the original bill, both by eliminating the provision that would have opened the door to aiding-and-abetting ATA claims against foreign sovereigns (and not just state-law tort claims), and by adding the stay provision that could well lead to these cases being placed in indefinite limbo. In her summary of the bill over at Lawfare, Francesca Procaccini suggested that the question is now whether, if the House passes the Senate bill, the President (who has rejected fewer bills than any two-term President since James Monroe) might whip out the veto pen (or is it a stamp?). If the Senate had passed the version of JASTA that cleared the Judiciary Committee, I’d agree. But in light of the Cornyn substitute, I think the better question is whether, in light of these substantial dilutions of the original bill, the version of JASTA that passed the Senate yesterday might now be one the President is willing to sign.

As was true in my initial post, I remain agnostic about the merits of the earlier version of JASTA — and whether, all things being equal, Congress ought to override the myriad judicial rulings that have thus far prevented the 9/11 victims and their families from attempting to hold the Saudi government liable for its alleged role in financing the attacks. But what cannot be gainsaid is that the version of the bill that passed the Senate yesterday is much, much weaker — for better or for worse.

Update: A (brilliantly careful) reader highlights a fourth denuding feature of the Cornyn substitute as compared to the bill that passed the Senate Judiciary Committee: The original bill only modified an existing exception to the FSIA, but the Cornyn substitute creates a new exception to immunity under the FSIA. This matters because the FSIA deals separately with a foreign state’s immunity from suit and its immunity from having its property in the United States attached in order to satisfy a judgment under the FSIA (versus its immunity from being sued in the first place). Under the original bill, a suit under JASTA would almost certainly have fallen within the exception to attachment immunity provided by 28 U.S.C. § 1610(b)(3), since the original bill simply modified the existing substantive immunity waivers codified in §§ 1605(a)(7) and 1605A. But the new bill creates a new exception (proposed 28 U.S.C. § 1605B), which does not have a corresponding waiver of attachment immunity. In (almost) English, then, even if a plaintiff could obtain a judgment against a foreign sovereign like Saudi Arabia under the Senate-passed version of JASTA (that is, if they somehow avoid a perpetual stay), they would still have a devil of a time executing that judgment (and would have to base such execution on a different waiver of attachment immunity). Whether intentional or not, that’s a pretty significant (new) hurdle…

Update II: I’ve also clarified the relationship between the Senate-passed bill and 28 U.S.C. § 2337(2), and the significance of what would be new 28 U.S.C. § 1605B(c) for ATA-based claims against foreign sovereigns.