Congress, the president and the fight over expanding the rights of terror victims
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Congress's dramatic vote to override President Obama’s veto of the “Justice Against Sponsors of Terrorism Act” (JASTA) paved the way for victims of terrorism to sue countries that are not listed by the President as “state sponsors of terror.”

As someone who has been representing terror victims around the world for over 20 years against countries such as Iran, Libya and Sudan, I am concerned that the new law raises a host of new legal, constitutional and procedural issues which must be overcome if these suffering families have any hope of achieving justice and closure.

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In 1996, Congress passed the “terrorism exception” to the Foreign Sovereign Immunities Act, allowing victims and their families to go to federal court to seek damages against a notorious gallery of rogue terrorist states – such as Iran, Libya, Syria, Iraq, Yemen, North Korea and Cuba – for blowing up embassies, downing commercial aircraft, taking hostages, attacking peace-keeping forces, and assassinating public figures. 

During that time, the hundreds of cases and billions of dollars of federal court judgments that have been awarded against these states reflect a bipartisan compromise between Congress and President Bill ClintonWilliam (Bill) Jefferson ClintonBipartisan infrastructure win shows Democrats must continue working across the aisle Overnight Health Care: CDC details Massachusetts outbreak that sparked mask update | White House says national vaccine mandate 'not under consideration at this time' Biden rolls dice by getting more aggressive on vaccines MORE: Congress opened the courthouse door for terror victims by lifting the foreign country’s sovereign immunity but the President decided which countries could be sued by putting them on his “state sponsor of terrorism list.”   JASTA takes the President largely out of the picture.

The intended beneficiaries of this new law are the families who suffered unimaginable loss and grief on Sept. 11, 2001.  And their principal target will be Saudi Arabia, the oil rich American ally that has never been on the President’s “terrorism list” despite the fact that many of the 9/11 Al Qaeda terrorists came from the Desert Kingdom.  Earlier efforts to haul the Saudis into court for supporting the 9/11 attackers were rejected by the courts on a variety of legal and factual grounds – especially the Kingdom’s assertion of sovereign immunity.  This new law offers the 9/11 families hope that they can re-commence those efforts.

But their new found hope should be tempered with caution.  The fact that Congress took away the President’s authority to act as the courthouse “gate-keeper” for these cases may allow the Saudis – or even the Administration of the new President – to argue that the law violates the fundamental principle of “separation of powers” between the political branches of our government.

More importantly, the new law requires victims to meet a higher standard to prevail in a case against Saudi Arabia.  Instead of requiring victims to prove only that the foreign state provided “material support” to a terrorist organization (which is the existing standard) the new law imposes liability on a foreign state only if the victims can show that the foreign state actually “conspired” with the terrorists, or “aided or abetted” their conduct.  This may be difficult. The Report of the 9/11 Commission itself did not reveal evidence satisfying such standards. 

Finally, the diplomatic and political winds can quickly change. Several Senators and Congressman already have expressed some reservations about the consequences of the new law, despite voting to override the President’s veto. The always unpredictable situation in the Middle East can take many turns, and the next President may have different ideas about our relations with Saudi Arabia, as well as the best way of ensuring that 9/11 victims receive proper compensation for their losses.  

It is unclear if the President or Congress possesses the greater wisdom, as it remains to be seen whether or not the new law will serve as a useful tool to achieve justice.  I certainly hope so for the sake of the 9/11 families.  But only time, and the courts, will tell.

Stuart H. Newberger is a partner with the law firm Crowell & Moring LLP, and has represented hundreds of victims of terrorism over the past 20 years. His book about Libyan terrorism, “The Forgotten Flight: International Terror, Diplomacy and the Pursuit of Justice” will be published in early 2017 by Oneworld Publications.


The views expressed by authors are their own and not the views of The Hill.