The lawsuit filed by the families was made possible by the passage of the Justice Against Sponsors of Terrorism Act, or JASTA, and while JASTA's initial target is Saudi Arabia, the inevitable victim will be the United States itself, because JASTA will prove devastating for US-Saudi relations, US ties with the Arab world, and overall US foreign policy.
The act became law last year when Congress overrode
a veto by then-President Barack Obama for the first and only time. It authorizes US courts to hear cases against foreign nations accused of aiding terrorist acts, even if those nations have not been designated as state sponsors of terrorism. Before JASTA, nations that had been so designated could be tried in US courts, but suits involving other nations would have been dismissed as violating the sovereign immunity to which nations are entitled under international law.
There are numerous reasons why JASTA should be overturned. First, as constitutional lawyers David Rivkin and Lee Casey have explained
in the Wall Street Journal, JASTA intrudes on the President's exclusive foreign affairs powers and assigns to the judiciary matters unsuitable for its discernment, thereby violating the constitutional separation of powers. As the Constitution wisely crafted and as several centuries have proven, only the executive branch can make informed, timely decisions concerning America's military, intelligence and diplomatic interests.
Second, JASTA will be awful for US national security. US counterterrorism efforts will be crippled when its most important allies are dragged into court and threatened with billions of dollars in liability. Discovery efforts will leave defendants with only two choices: 1) reveal sensitive intelligence information to defend themselves against charges of collusion with terrorists and thereby jeopardize current counterterrorism activities or 2) protect their intelligence assets and potentially pay billions. In either case, counterterrorism operations will be undermined and lives will be put at risk.
Third, once the floodgates of litigation are opened, additional cases will emerge
against other nations. This would be tremendously negative for the United States as it seeks to expand strong alliances in the global war against terrorism. There would also be a backlash of countersuits by other nations and investments would be pulled out of the United States to avoid financial seizures. In short, we would witness the breakdown of the fragile international security structure built up since 9/11 among American allied nations to combat the terrorist organizations and the countries that support them.
While JASTA will have a wide range of devastating consequences in the long run, it will create immediate damage by unjustly alienating one of America's most consequential allies: Saudi Arabia. The Arab world is encountering an almost unprecedented number of challenges
: the rise of terrorist groups such as ISIS and al Qaeda, civil war in Syria, Iraq and Libya, governmental chaos in Lebanon and Palestine, war in Yemen, regional diplomatic crises with Qatar, and a nuclear Iran intent on spreading sectarian terror through Shia militias. Even a single judgment in a JASTA lawsuit would effectively end all prospects of American diplomatic, military and intelligence cooperation with Saudi Arabia for years to come.
Although the 2002 Congressional Joint Inquiry -- cited in the lawsuit -- said that some of the 9/11 hijackers were in contact with, and received support from individuals who may be connected to the Saudi government, the author of the inquiry also acknowledged that the findings remained
"speculative and yet to be independently verified."
But the FBI 9/11 Review Commission did clear the kingdom of such allegations and the director of national intelligence's review reiterated
the findings of the 9/11 Commission shortly after. Indeed, as far as Saudi Arabia and 9/11, there is no definitive evidence whatsoever that the Saudi government provided support to the terrorists. In other words, JASTA will not only be catastrophic for US foreign policy, but it is based on utterly misleading and false information.
The Saudis did not initially handle the case against JASTA well. Rather than prepare a legal challenge to the JASTA vote on constitutional grounds, the Saudi government hired lobbyists
to try to sway members of Congress. Contrary to what the Saudi government believed after the bill was passed, Congress will never negate JASTA because no member wants to be perceived as openly supporting the kingdom and preventing the 9/11 victims from finding supposed justice.
In adopting the wrong policy, the Saudis failed to initially garner the support of the incoming Trump administration after forfeiting an opportunity to obtain a veto letter from the Obama administration that would have emphasized why JASTA was not only bad diplomatic policy, but also unconstitutional. Such a letter could have most likely swayed enough votes to sustain the veto and been valuable in any future legal challenge.
The law will only be overturned in the courts, and the Saudis should have long been preparing for the battle. Now they must adopt a coherent policy, move swiftly in the courts, and win. Congress should support such an effort as it will protect
America's interests while also saving the legislative body from the political problems inherent in attempting to negate JASTA. Finally, the Trump administration must do what it can to help the Saudis, because JASTA is a serious threat to the bedrock of diplomatic relations that preserve peace among sovereign nations.