The U.S. Congress overturned a veto by President Obama allowing families of the victims of September 11 to sue Saudi Arabia in U.S. courts. While the U.S. domestic politics will be debated elsewhere (like everything else this election season), we want to focus on the terms of the legislation and the legal cases underpinning from the perspective of our experience in immunity cases.

Sovereign immunity is not a trivial issue to the United States. The conduct of foreign affairs is generally the responsibility of the President, but immunity claims have been assigned in certain circumstances to the courts.  The immunity rules are generally designed to recognize the foreign policy implications and to ensure that our country and officials  are not hailed into courts worldwide for a myriad of actions.  In recognition of these risks, the Executive Branch routinely supports claims of sovereign and other immunities raised by foreign states (and their officers and employees) in U.S. courts, even those made by unfriendly countries like Venezuela. Saudi Arabia already threatened to withdraw its assets from the United States, and a rash of lawsuits worldwide from Saudis and others testing the legality of the Guantanamo Bay prison under international law is not the best way to conduct foreign policy.  But that seems to be where we are going.    

This new legislation upsets that balance. The legislation, formally known as the Justice Against Sponsors of Terrorism Act, amends the Foreign Sovereign Immunities Act (FSIA) by enacting 28 U.S.C. § 1605B. That section makes foreign states subject to U.S. court jurisdiction for money damages for international terrorism acts within the United States “caused by” tortious acts of a foreign state (including its officials, employees or agents) regardless of where those tortious acts occurred. However, the tortious acts in question cannot be “omissions” or “mere negligence.”

The legislation is undoubtedly targeted toward September 11 claims, as it applies to both cases pending or commencing after the legislation is enacted or “arising out of an injury to a person, property, or business on or after September 11, 2001.”

There is one saving grace: Under the legislation, the Attorney General can intervene in the lawsuit to seek a stay. That stay is designed to allow the Secretary of State to engage in negotiations with foreign states or other parties to resolve the claims; the maximum stay is 180 days, but additional 180-day stays may be granted.

So how did we get here? Multiple federal courts, most recently one in the Southern District of New York, have dismissed cases against Saudi Arabia for the September 11 attacks. The SDNY court found that, under FSIA’s noncommercial tort exception (28 U.S.C. § 1605(a)(5)): (1) the entire tort must occur in the United States; and (2) the tort cannot be based upon a “discretionary function.” None of the allegations in the New York suit involve a tortious act within the United States. And those allegations, focusing on Saudi Arabia’s alleged support for Islamic charities, were discretionary exercises of social, economic and public policy. So no FSIA exception was applicable and the case was dismissed.

Absent any remedy to these litigants, Congress decided to wade into the issue and ensure that litigants have a forum to sue Saudi Arabia – fundamentally altering our relationship with a friendly Middle Eastern country. Leaving domestic and geopolitics aside, the United States now has to worry about whether other countries will amend their foreign sovereign immunity acts to permit cases to be brought against certain acts committed by the United States. A foreign country could be upset by U.S. military actions or some other U.S. government operation, and deem that “terrorism” to mollify an angry public.

Looking at the text of the legislation, we can also see a variety of interpretation issues. What does “caused by” mean: Does it mean a foreign agent actually committed an act of terrorism? If not, how will a court know when the action in question is too attenuated to cause the terrorism? What constitutes an “omission” or, even more problematic, “mere negligence?” In the FSIA statutory scheme, which is designed to give bright(ish) lines to ensure foreign sovereigns can avoid litigation by filing a motion to dismiss before intensive fact discovery, these phrases seem a little too unwieldy. And what happens if the Secretary of State reaches a settlement that the litigants do not accept? The text is absolutely silent.

This is not the first time in recent history that Congress has amended the FSIA or enacted other legislation to facilitate private litigation against foreign governments accused of sponsoring terrorism. As discussed in our prior client alert, in 2012 Congress enacted (and President Obama signed) the Iran Threat Reduction and Syria Human Rights Act, 22 U.S.C. § 8772(b), which specifically authorized a major civil action against Iran’s central bank to enforce a terrorism-related judgment against the Iranian government. Iran challenged the legislation as unconstitutional, eventually lost in the U.S. Supreme Court, and then filed a claim in the International Court of Justice in The Hague, accusing the United States of violating a decades-old U.S.-Iran treaty.

Hopefully, U.S. domestic terrorism acts will not arise too regularly, so we will have little occasion to resolve these interpretation issues. While we can hold out the same hope for actions brought against the United States overseas, we are not optimistic.

Update (September 30, 2016):  That was fast.  Congress is already backtracking from this legislation, with leaders in both the House and the Senate suggesting revisions could be made to prevent U.S. exposure to foreign lawsuits.