While by no means limited to the 9/11 attacks, this legislation would directly bear on lawsuits brought against the Kingdom of Saudi Arabia by the families of the almost 3,000 innocent civilians killed in three separate locations on September 11, 2001.
Having worked as counsel to thousands of 9/11 family members and victims for many years, we were surprised and disappointed that CNN posted an opinion piece by legal analyst Danny Cevallos, entitled "Suing Saudi Arabia Over 9/11?
" And more than a few of the families we represent are rightly distressed at Cevallos's suggestion that the legislation they have worked for so long to see enacted to deter terrorist aggression against the United States should be unconstitutional.
Our collective dismay is not grounded in the fact that Cevallos's opinion opposes JASTA. Rather, we simply find it hard to believe that a piece addressing such a matter of genuine national importance would be so deeply uninformed about, and facially devoid of analysis of, the actual legal issues involved.
Cevallos's suggestion that JASTA is unconstitutional centers on his misguided belief that the provision that would allow 9/11 families' and victims' long-pending claims against Saudi Arabia to proceed is a retroactive law, and that the Constitution should be interpreted as broadly prohibiting laws with retroactive application.
In fact, however, the provision of JASTA that would allow the 9/11 claims against Saudi Arabia to proceed doesn't create new law and apply it retroactively. It merely clarifies the circumstances under which existing law can be the basis for actions in federal court.
But even if this were a retroactive law in the sense Cevallos incorrectly assumes, he all but acknowledges the flaw in his thinking when he notes that "for well over a century, the Supreme Court has held that the ex post facto prohibitions only restrict criminal laws, not civil laws." JASTA concerns civil law, not criminal law, so his argument collapses on itself by his own acknowledgment.
Cevallos's opinion thus hinges on his view that centuries of Supreme Court jurisprudence on this issue are wrong, in support of which he cites the minority views of academics who have opined that the ex post facto clause should apply to at least certain types of civil laws. But Cevallos's unexamined assumption that even these minority viewpoints would apply to JASTA is misplaced for several reasons, none of which he ever attempts to address.
For one thing, the provision of JASTA that is the subject of Cevallos's article concerns subject matter jurisdiction, not any substantive law of liability. The Supreme Court has long recognized that statutes that merely confer jurisdiction take away no substantive rights, and can be applied in cases arising before their enactment "without raising concerns about retroactivity."
Beyond even that, the conduct alleged in the 9/11-related cases was already prohibited by both U.S. and international law when it occurred. How Cevallos could purport to offer a legal opinion on JASTA's constitutionality (much less wrongly declare it "invalid on its face") without addressing these basic facts, all of which are evident in the publicly available text of JASTA and the public statements of the sponsors in the congressional record, is more than puzzling.
As if all this were not enough, the jurisdictional provision of JASTA concerns rules governing foreign sovereign immunity. As the Supreme Court has repeatedly made clear
since 1812, "foreign sovereign immunity is a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution."
For this and other reasons, the court has repeatedly recognized that Congress has especially broad discretion in defining and recalibrating the immunities of foreign states in our courts. As it happens, this authority derives from the Constitution, the very document Cevallos claims his opinions would serve to protect.
Most simply, the Constitution does not restrain the United States from imposing consequences on foreign governments for sponsoring acts of terrorism against our citizens.
For all of these reasons, it is not surprising that Cevallos's personal opinions are in conflict with the judgments of every member of the Senate Judiciary Committee (which has been carefully considering JASTA since 2009 and has now passed the bill three times without dissent) and the Senate as a whole (which has unanimously passed it twice). What's more, the opinions he proffers are squarely rejected by countless Supreme Court decisions, and have never even been suggested by the legal scholars who have commented on JASTA.
Cevallos is of course free to disagree with over a century of Supreme Court jurisprudence about so-called retroactive laws. But his attempt to superimpose his personal theories about such laws in this separate and unique context is more than a bridge too far.
Greater caution and more diligent analysis should precede the offering of a legal opinion that is so squarely at odds with applicable law, constitutional history and the judgments of our elected representatives -- especially when the matter at hand concerns the 15-year-long quest for justice and accountability by the family members of the thousands of innocent people who were slaughtered or injured on 9/11.