On Monday, September 12, 2016, White House press secretary Josh Earnest said that despite bipartisan support, President Obama is likely to veto legislation approved by Congress, which would allow the families and victims of the September 11, 2011 attacks to sue the government of Saudi Arabia for any role it might have had in the attacks. The name of this bill is the Justice Against Sponsors of Terrorism Act (JASTA).
While the highly emotional motivation behind this piece of legislation is completely understandable: Protecting the United States and the concept of sovereign immunity, which protects U.S. diplomats, U.S. service members and U.S. companies from the possibility of being hailed into courts around the world.
In a rare showing of bipartisanship, Congress has placed President Obama in a perilous position. By passing this legislation, many initial observers view President Obama’s veto as preventing families and victims of the 9/11 attacks from seeking justice. However, the eyes of patrons championing this view are clouded by emotion and the atrocity of the 9/11 attacks. President Obama correctly understands that there are ways for families and victims of the 9/11 attacks to seek justice without alienating a long-time ally in Saudi Arabia, and without leaving United States citizens and entities vulnerable to legal action brought by foreign nations. Furthermore, the purpose of JASTA was all-but eviscerated by the subtle changes the Senate made to the bill just before passing it. The net effect of these changes make it all-but impossible for the 9/11 victims and their families to actually recover damages, even if they can prove Saudi Arabia’s involvement.
In a world already stretched thin from numerous international conflicts, the international legal implications of a world without sovereign immunity, as we know it, are unfathomable. Additionally, if JASTA were to pass, it would likely provoke Saudi Arabia, and potentially other countries, to remove billions of dollars of assets from U.S. soil. From a purely strategic point of view, at a time when the United States is tightly locked in a proxy war in Syria and Iraq against ISIS, this is simply not the time to lose any friends in the Middle East.
Even if President Obama does veto this piece of legislation, it’s possible Congress might have enough votes to override his veto. If this were to occur, it would be first veto-override of President Obama’s presidency.
Joseph Apisdorf is currently a second-year law student at University of Denver Sturm College of Law and managing editor of the Denver Journal of International Law and Policy.