Trump’s election may have killed prospects for amending JASTA

Sunday 27/11/2016
Senator John Cornyn (R-TX) and Senator Chuck Schumer (D-NY) exiting news conference concerning JASTA

WASHINGTON - Donald Trump’s election as US president may have ended any chance that the Justice Against Sponsors of Terrorism Act (JASTA) will be amended in the foreseeable future. JASTA allows individual US citizens to sue Saudi Arabia or any other state for damag­es resulting from a terrorist attack. Although the bill does not mention Saudi Arabia by name, it is widely known that JASTA was supported by families who lost loved ones in the 9-11 terrorist attacks and intend to sue the kingdom. Fourteen of the 19 9/11 attackers were Saudis.

The bill passed both houses of Congress with ease despite opposi­tion from President Barack Obama’s administration, which warned of the possible dire consequences of essentially negating the concept of sovereign immunity. Obama vetoed JASTA but his veto was quickly over­ridden by Congress on September 28th.

But less than 24 hours later, 28 US senators — all of whom had voted to override Obama’s veto — wrote a let­ter to JASTA’s two Senate sponsors, Democrat Charles Schumer of New York and Republican John Cornyn of Texas, that essentially said: “Oops! We didn’t mean to do that.” The let­ter expressed concern that the bill may have “unintended consequenc­es” (unintended perhaps, but by no means unforeseen — the Obama administration had publicly warned against JASTA for months).

This letter, combined with a slew of anti-JASTA opinion pieces and analyses by think-tank scholars, led many to believe that after the US elections Obama and congressional leaders would figure out a way to amend JASTA to remove its “unin­tended consequences”. The most likely amendment: An executive branch waiver that would allow the president to shield from JASTA any country deemed to be cooperating with the United States in the war against terrorism.

The expectation at the time was that Democratic candidate Hillary Clinton would win the presidential election and as soon as the politi­cally volatile campaign season was over would signal her support for an amendment, allowing her to enter office in January without having to worry about the complications of JASTA.

But plans sometimes go awry: The surprise election of Trump has effectively killed prospects that JASTA will be amended any time soon.

Trump is an ardent supporter of the legislation. During the heated presidential campaign, Trump called Obama’s veto of JASTA “shameful” and “one of the low points of his presidency”. Terry Strada, a spokeswoman for the US families who sought to sue the Saudi government, praised Trump as “a vocal champion” who “would not tolerate [Saudi] attempts to use their oil money to… weaken JASTA”.

Strada was referring to the pow­erhouse lobbying firms the Saudi government had hired during the run-up to the congressional vote to try to stop or modify the legislation. The lobbying campaign was led by former Senate majority leader Trent Lott, a Republican. Prior to the election, he and other anti-JASTA forces, including several major US corporations, held discussions with the Obama administration about how best to amend the legislation.

Trump already has changed his position — sometimes by 180 de­grees — on a range of issues. But JASTA is unlikely to be one of them. For one, Trump is a New Yorker and lived through the horror of 9/11. He is much less concerned about dip­lomatic norms and probably has no substantive grasp of the internation­al legal issue of sovereign immunity.

And significantly, he has criticised the Saudis for not compensating the United States sufficiently for US de­fence of the kingdom and has sug­gested that oil purchases from Saudi Arabia be banned. The goal of pre­serving a strong US-Saudi relation­ship does not seem to be high on his agenda.

Schumer has repeatedly pledged that he would not countenance any changes to JASTA, even during the lame-duck session of Congress while Obama remains president. As the newly chosen Democratic lead­er in the Senate, Schumer is even less likely to cooperate with Trump on watering down JASTA.

As Trump’s administration comes into place, it is possible that some of his appointees will take a more neg­ative view towards JASTA. During congressional consideration of the bill, many former Republican poli­cymakers and former military offi­cials expressed strong opposition to it, and some of these people could end up in Trump’s government. But it is uncertain how strongly they will make their case or how seri­ously they will be taken.

It is far more likely that the next act in the JASTA drama will take place in a US courtroom.