"Now that Congress has overridden President Obama’s veto of JASTA, many members of Congress seem to be experiencing buyer’s remorse as they contemplate the possible implications for the United States, including its own sovereign immunity and its relationship with Saudi Arabia." source
It is easy to understand that the United States Congress would want to stand behind the families of the people who lost their lives in the terrorist attacks of September 11, 2001. But the Congress chose the wrong vehicle when it passed, over President Obama’s veto, the Justice Against Sponsors of Terrorism Act (JASTA). In fact, JASTA could undermine our ability to defend our interests anywhere in the world. In their quest for justice against terrorism, the congress may be making the United States more vulnerable to it.
According to the Council on Foreign Relations;
Majority Leader McConnell said last week: “nobody really focused on the potential downsides in terms of our international relationships.” This is somewhat surprising, given the warnings by the White House, Congressional witnesses (including me), and many national security experts. In any case, a group of Senators are now reportedly considering possible “fixes” to JASTA that could be made in a lame duck session. Several of the fixes I have heard about, such as the creation of a special claims tribunal, strike me as much too complicated. A cleaner approach, in my view, would be for Congress to amend JASTA to give the President authority to waive the new international terrorism exception to the FSIA with respect to certain countries.
If a U.S. Service member were tried in a foreign court, it would be up to that court to decide whether classified or sensitive U.S. Government information would be required as part of the litigation process. This could force the United States to make a decision either to disclose classified or sensitive information or subject a U.S. Service member to an adverse foreign court ruling, including prison.
The true intent of many members of Congress may be to give the families the means to extract a financial settlement out of court, which is so often the case in civil litigation. But civil litigation is a poor substitute, especially if it handcuffs and threatens our military, diplomatic and intelligence personnel overseas and makes it more difficult for us to defend the nation.