Veto Override of S. 2040, Justice Against Sponsors of Terrorism Act

S. 2040

Veto Override of S. 2040, Justice Against Sponsors of Terrorism Act

Sponsor
Sen. John Cornyn

Committee
Judiciary

Date
September 28, 2016 (114th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

On Wednesday, September 28, 2016, the House will consider overriding the presidential veto of S. 2040, the Justice Against Sponsors of Terrorism Act, under suspension of the rules. S. 2040 was introduced on September 16, 2015, by Sen. John Cornyn (R-TX) and was referred to the Senate Committee on the Judiciary, which ordered the bill reported, with an amendment in the nature of a substitute, on February 3, 2016. The Senate agreed to S. 2040, with an amendment, on May 17, 2016, by voice vote. The House then passed the bill by voice vote on September 9, 2016. President Obama vetoed the bill September 23, 2016. The Senate voted to override the veto on September 28, 2016 by a vote of 97 to 1.

Bill Summary

S. 2040 would allow the victims and families of victims of terror attacks to sue foreign states that aid and abet acts of terror that occur on U.S. soil. Specifically, the legislation amends the Foreign Sovereign Immunities Act to narrow the immunity granted to foreign states and their employees or agents from lawsuits by victims of terrorist acts on U.S. soil. The Department of Justice may seek a stay of any litigation if the Secretary of State certifies that the U.S. government is involved in good-faith discussions to resolve the matter. The legislation applies to any civil action pending on, or commenced on or after the date of enactment, as well as any civil action that arises out of an injury to a person, property, or business on or after September 11, 2001. In addition, JASTA amends the Anti-Terrorism Act to make clear that if someone knowingly aids and abets a foreign terrorist organization, a U.S. person who is injured as a result may bring a civil suit to recover damages.

Background

Foreign sovereign immunity is a legal principle that shields foreign governments from lawsuits in courts of another country. In the United States, the Foreign Sovereign Immunities Act (FSIA) governs when a foreign sovereign can be sued in U.S. courts.  Under the FSIA, there are currently nine exceptions to foreign sovereign immunity.  One such exception is the “tort exception,” which has been understood to provide for jurisdiction in cases in which foreign states aid and abet unlawful killings and terrorism on American soil. However, recent court decisions have limited application of the tort exception to cases in which all elements of the tort occurred in the United States.  This limitation creates a loophole that can allow a foreign government to escape liability for aiding and abetting a terrorist attack on U.S. soil.

This loophole has proved to be a legal barrier to a lawsuit brought by the family members of victims of the September 11th terrorist attacks against the Kingdom of Saudi Arabia for its alleged involvement in the attacks. There is still disagreement over the alleged involvement of the Kingdom of Saudi Arabia in the 9/11 attacks; however, without enactment of JASTA, this disagreement over Saudi Arabia’s involvement will be thrown out of court, denying the victims the opportunity to make their case.

With regard to Saudi Arabia’s culpability in the attacks, the 9/11 Commission issued a report and found no evidence that the Saudi government or senior Saudi officials funded al-Qaeda. In 2002, the Joint Congressional Inquiry into Intelligence Community Activities Before and After the Terrorists Attacks of September 11, 2001 issued its own findings, but 28 pages were classified and not released. On July 15, 2016, the House Permanent Select Committee on Intelligence approved the publication of the declassified section.

With the release of the declassified 28 pages, the Chairman and Ranking Member of the House Intelligence Committee stated that these pages did “not put forward vetted conclusions, but rather unverified leads,” and they would “diminish speculation that they contain proof of official Saudi Government or senior Saudi official involvement.”[1] However, Senator Bob Graham, a co-chair of the 9/11 Commission said in a statement that the information in the pages “suggests a strong linkage between those terrorists and the Kingdom of Saudi Arabia, Saudi charities, and other Saudi stakeholders.”[2]

According to the bill sponsor, “The United States needs to use every tool available to stop the financing of terrorism. Victims and families who have lost loved ones in terror attacks deserve the opportunity to seek justice.”[3]

[1] See House Permanent Select Committee on Intelligence’s press release, “Intel Committee publishes declassified ’28 pages’” July 15, 2016.
[2] See https://www.washingtonpost.com/world/national-security/congress-releases-long-classified-28-pages-on-alleged-saudi-ties-to-911/2016/07/15/e8671fde-4ab1-11e6-bdb9-701687974517_story.html
[3] See. Sen. Cornyn’s press release, “Senate Passed Cornyn Bill to Help Victims of Terror Attacks Seek Justice” May 17, 2016.

Cost

The Congressional Budget Office (CBO) estimates that enacting S. 2040 would have no significant effect on the federal budget. Further, CBO estimates enacting S. 2040 could increase revenues, so pay-as-you-go procedures apply. Net direct spending or on-budget deficits would not increase in any of the four consecutive 10-year periods beginning in 2027.

Additional Information

For questions or further information please contact Jake Vreeburg with the House Republican Policy Committee by email or at 5-0190.