by Karoun Demirgian | Washington Post | October 14, 2016
The Obama administration last month warned Congress there could be serious national security consequences for overriding the president’s veto to enact a law giving families of 9/11 victims a chance to sue Saudi Arabia for allegedly supporting the terrorists who carried out the attacks.
The law allows courts to waive claims to foreign sovereign immunity in situations involving acts of terrorism on U.S. soil — a change the president, along with senior defense and intelligence officials, said undermines the long-time practice of exempting foreign governments from lawsuits. As a result, they argued, other nations may change their laws, exposing American officials and members of the military to legal threats abroad over U.S. diplomatic and military decisions.
Despite the warnings, Congress overwhelmingly voted to override Obama’s veto last month, although congressional leaders have since expressed uneasiness with the law and may try to amend it during the post-election “lame duck” session.
“They voted for a bill that they knew had negative consequences for America’s national security,” White House spokesman Josh Earnest said last month, accusing Congress of “buyer’s remorse.”
What follows is a breakdown of the biggest concerns and issues that will weigh on lawmakers’ minds as they consider whether to change the law in the weeks following the election.
Will U.S. officials and members of the military really be sued abroad?
The administration’s main argument against the bill as it moved through Congress was that it could cause other countries to enact similar laws.
The administration’s concerns were echoed by foreign officials, including from France, Turkey and China, who warned that countries putting domestic concerns over established international principles like sovereign immunity puts the world on a dangerous course.
So far, no foreign official has publicly threatened to change its country’s laws or file a retaliatory lawsuit.
“International law is created by state practice,” said John B. Bellinger, the State Department’s legal adviser during the Bush adminsitration, noting that no matter how narrow the 9/11 law is, it encourages a “gradual chipping away” of international norms that contributes “to state practice about the erosion of sovereign immunity.”
The U.S. engages in controversial, deadly operations all over the world, through drone strikes, combat operations and providing tactical support to allies that could be fodder for legal actions. If, for example, a Saudi national were killed in an American drone strike in Yemen, Bellinger said, bringing a tit-for-tat lawsuit against the United States would be relatively straightforward.
Lawmakers are particularly concerned members of the military could be targeted in foreign courts — a major reason why the House Armed Services Committee’s chairman and ranking member warned the law would “increase the risk to our military and other personnel around the world.”
But the potential consequences could go beyond threats to American government officials and spread to U.S. corporations, according to Bellinger.
“If this ripple effect continues… then we may begin to see other countries lifting not just the defense of sovereign immunity for governments, but defenses that companies have,” Bellinger said, noting, as an example, how Ecuador changed its environmental laws in 1999, enabling a lawsuit over pollution charges to be brought against Chevron.
“Right now, we’re talking about sovereign immunity,” Bellinger said. “But we’re contributing to the opening up of courts around the world.”
How could this impact U.S.-Saudi relations?
Officials have also warned the law could compromise the military’s mission in critical foreign campaigns, such as in Syria, where Saudi Arabia is a key player in the U.S.-led coalition against the Islamic State. Though the two countries have disagreed about whether the Kingdom is providing enough support to the effort, American officials don’t want to give Saudi Arabia an incentive to reduce its role.
The law “puts a big cloud over U.S.-Saudi relations on the eve of the new president coming into office,” said Bruce Riedel, an expert on Saudi relations at the Brookings Institution. “Certainly you may find them to be less cooperative on things like Syria.”
Syria isn’t the only concern. U.S. officials worry the 9/11 bill could harm intelligence sharing with Saudi Arabia that is critical to counter-terrorism planning. And in war-torn Yemen, where human rights groups have charged Saudi Arabia’s bombing of civilians constitute war crimes, Riedel said the 9/11 bill “has made using American leverage harder at this critical juncture.”
Some experts also said they worry tensions over the new law could cause the Saudi monarchy to be less sympathetic to U.S. entreaties to improve human rights in the country, where dissidents and activists are routinely jailed and women can’t legally drive.
Whether and how Saudi Arabia will challenge the United States to express its anger over the law is unclear. Riedel said the Saudis have been too “humiliated” by Congress’ vote not to retaliate in someway, but they are likely to “more look for diplomatic theater than anything else.”
Will Saudi Arabia really liquidate its U.S. assets?
Saudi officials warned earlier this year that if Congress passed the bill into law, the Kingdom would pull assets from the United States. But experts say Riyadh may not make good on its $750 billion dollar threat.
“I don’t think they’re going to withdraw hundreds of billions of dollars from the U.S. Treasury,” Riedel said. “They’re having severe economic problems of their own; they’re not in any position to do something like that.”
The Treasury Department unveiled information for the first time this year showing how much U.S. debt Saudi Arabia holds. As of July, the Kingdom held $96.5 billion in Treasury securities, down from a peak of $123.6 billion in January. Saudi Arabia has other U.S.-based assets as well, including buildings, farmland and a stake in an oil refinery.
The law didn’t change property protections in the Foreign Sovereign Immunities Act, which means courts cannot freeze Saudi Arabia’s U.S.-based assets unless a judgement is rendered against the Kingdom, Bellinger said.
Why is the defense industry worried?
Saudi Arabia is currently the top buyer of U.S. military equipment, spending hundreds of billions critical to keeping the U.S. defense industry afloat. “Our military doesn’t buy enough to keep many of our production lines open anymore,” said Michael Herson, a prominent defense lobbyist.
Recently, members of Congress have raised objections to U.S.’s military sales to Saudi Arabia over concerns they help fuel attacks against civilians in Yemen’s brutal war. But economic and geostrategic concerns keep the vast majority of members from supporting proposals to block arms sales.
If Saudi Arabia stops making mega-purchases of U.S. military products in response to this law, it jeopardizes American jobs — while likely strengthening U.S. rivals, Herson argued.
“The problem is that if they don’t buy from us… they’ll turn and buy Chinese and Russian equipment,” Herson said. “It’s a concern not only as a threat to our industrial base, but from a foreign policy standpoint, we start to push them into their orbit and out of our orbit.”
What countries other than Saudi Arabia might get sued in U.S. courts?
The intent of the law is to aid 9/11 victims’ families who have now taken advantage of the legal changes and filed lawsuits against Saudi Arabia in federal courts in Washington, D.C. and New York. Their claims likely rest on proving what a congressional inquiry couldn’t: that alleged links between Saudi officials and the 9/11 terrorists mean the Saudi government bears some responsibility for the attacks.
But could other countries find themselves sued under this law? Not likely, experts say.
U.S. courts can already waive sovereign immunity claims when the accused government is designated a state sponsor of terror. And while other countries might worry they could be sued in situations where officials were privy to information about a terrorist attack even if they had no role in the event, the relatively low number of terror attacks on U.S. soil means there simply aren’t a lot of accusations to make.
“It would be exceedingly rare that some other country could be alleged to be responsible for some other act of terrorism in the United States,” Bellinger said.
What will Congress do?
Since it first emerged in 2009, the 9/11 bill went through several changes to pare back its scope. If Congress decides to try to amend the law further, it will have limited options.
Champions of the law already dismissed proposals to limit it to only the Sept. 11 attacks, arguing that would give “every country, including Saudi Arabia, a green light to [support terrorist attacks in the U.S.] in the future,” as Sen. Charles E. Schumer (D-N.Y.) said. There is also a proposal to set up a special legal tribunal to handle claims, but that involves procedural and financial considerations Congress might find hard to tackle in a jam-packed lame duck session.
The simplest approach may be to expand the administration’s waiver power under the law, which is now limited to circumstances where the administration is engaging in “good faith” negotiations with the accused country to settle claims.
For the law to be changed in the coming weeks, sentiments in Congress will have to shift. Schumer and other supporters are reluctant to make changes and, so far, only about 28 senators have called for revisiting the issue before the end of the year.