Congress didn’t go far enough in overriding Barack Obama’s veto of JASTA

Note, September 30, 2016: This post has been updated in line.

On learning that Congress had overridden Barack Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA), a law limiting sovereign immunity for Saudi Arabia against lawsuits in connection with the 9/11 attacks,[1] I wondered how one defends sovereign immunity.[2]

It turns out that the Wall Street Journal had already attempted an answer.[3] Unfortunately, the editorial does more to inform us about its authors than it does to defend sovereign immunity.

It’s probably a moot question as to just how sovereign immunity became enshrined in international law (Update, September 30, 2016: apparently, the U.S. extended immunity to foreign sovereigns in 1976,[4] which would seem to suggest this is a recent rather than a longstanding mistake), protecting foreign sovereigns from domestic torts, in the first place. Cornell University’s Legal Information Institute defines the term strictly in terms of the U.S. Constitution, dealing with domestic sovereigns:

Generally, the idea that the sovereign or government is immune from lawsuits or other legal actions except when it consents to them. Historically, this was an absolute doctrinal position that held Federal, state, and local governments immune from tort liability arising from the activities of government. These days, the application of sovereign immunity is much less clear-cut, as different governments have waived liability in differing degrees under differing circumstances.

Sovereign immunity is treated in two places in the US Constitution. Article III, Section 2 is applicable to questions involving the immunity of Federal officials from lawsuits, suits against the Federal government by a state and vice versa, and suits against the Federal government generally. The division of power between various possible sovereigns — the state and Federal governments — is dealt with by the Eleventh Amendment, which discusses suits between states, between states and the Federal government, and so-called diversity cases between citizens in different states. The issues are complex, and the line of Supreme Court decisions in this area is confusing and contradictory.

The Federal Tort Claims Act is the principal means by which the Federal government has waived its own liability from sovereign immunity.[5]

But, according to the Wall Street Journal, “the Dutch parliament said it considers Jasta a ‘gross and unwarranted breach of Dutch sovereignty,’ so don’t be surprised if other countries retaliate.”[6] This seems to be the crux of the argument against JASTA generally:

The bipartisan vote on the Hill was a rebuke of the President who had argued the Justice for State Sponsors of Terrorism Act (JASTA) — which for the first time would allow suits in American courts against state sponsors of terrorist attacks inside the US — could open the US government to lawsuits for the actions of military service members and diplomats.[7]

That’s not much of a defense. Basically, it amounts to an argument that we should grant the Saudi government immunity so they—and the rest of the world—will grant us immunity. And, according to the Wall Street Journal, “The U.S. has far more assets overseas to seize, and foreign courts offer far less legal protection against frivolous lawsuits than American courts do.”[8] In other words, we want to protect our empire. And it’s hard to imagine just what U.S. government assets foreign claimants might seize so the Journal’s argument would seem to include even corporate assets as part of that empire to be protected. (Update, September 30, 2016: Apparently, “the White House argued it could have negative repercussions on U.S. citizens and companies who could be subject to suits over U.S. government actions” and Speaker of the House Paul Ryan said he “would like to think that there may be some work to be done to protect our service members overseas from any kind of legal ensnarements that occur, any kind of retribution.”[9])

Those of us who think the empire is a problem, especially those of us who think the empire is a big part of the problem of the U.S. in the world, will not be impressed. But more fundamentally, whether foreign or domestic, the principle of sovereign immunity means a national government cannot be held to account for its actions. This is a concept that needs to be tossed out entirely.

  1. [1]Ted Barrett, “Congress overrides Obama’s veto of 9/11 bill,” CNN, September 28, 2016,
  2. [2]David Benfell, “‘Sovereign immunity’ threatened as 9/11 victims may now sue Saudi Arabia,” (Almost) Daily Bullshit, September 28, 2016,
  3. [3]Wall Street Journal, “An Obama Veto Worth Backing,” September 20, 2016,
  4. [4]Jordan Fabian and Katie Bo Williams, “How the White House got rolled on the Saudi-9/11 bill,” Hill, September 30, 2016,
  5. [5]Legal Information Institute, “Sovereign immunity,” n.d.,
  6. [6]Wall Street Journal, “An Obama Veto Worth Backing,” September 20, 2016,
  7. [7]Ted Barrett, “Congress overrides Obama’s veto of 9/11 bill,” CNN, September 28, 2016,
  8. [8]Wall Street Journal, “An Obama Veto Worth Backing,” September 20, 2016,
  9. [9]Jordain Carney, “GOP leaders express reservations a day after 9/11 veto override,” Hill, September 29, 2016,

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