President Obama has threatened to veto a bill pending in the U.S. Congress that would allow private plaintiffs to sue foreign sovereigns for committing (or abetting) terrorist attacks inside the territory of the United States. The Justice Against Sponsors of Terrorism Act has broad bipartisan support in Congress and from all of the presidential candidates (including Hillary Clinton). It would add an exception to the general rule of immunity for foreign sovereigns in U.S. courts in cases
in which money damages are sought against a foreign state arising out of physical injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of the office or employment of the official or employee (regardless of where the underlying tortious act or omission occurs), including any statutory or common law tort claim arising out of an act of extrajudicial killing, aircraft sabotage, hostage taking, terrorism, or the provision of material support or resources for such an act, or any claim for contribution or indemnity relating to a claim arising out of such an act...
The bill drew more attention this week when the NY Times reported that Saudi Arabia is threatening to dump $750 billion in U.S. assets in retaliation for allowing the bill to become law. Lawsuits from September 11 victims against the Saudi government would benefit tremendously from this law.
Anything with this much bipartisan support must be wrong in some important way. I suppose one reason to be skeptical is that it would mix delicate political and diplomatic relations into judicial proceedings where private lawyers can demand discovery into a foreign government’s internal deliberations and activities.
Another reason is that there seems little basis in international law for creating an exception to sovereign immunity for terrorist attacks, or supporting terrorist attacks. The traditional view of sovereign immunity is that it is absolute, and that remedies against a sovereign must be sought in diplomatic or international fora. Allowing a domestic judicial proceeding to judge the actions of a foreign sovereign would seem to undermine this basic idea.
But there are exceptions to sovereign immunity, such as for commercial activities, that much of the world accepts. It is just not clear whether a new exception can and should be created here. I am doubtful, but I am willing to be convinced.