On Wednesday, Congress overwhelmingly nullified President Obama’s veto of legislation that enables 9/11 victims and their families to sue the government of Saudi Arabia. Each chamber easily cleared the two-thirds’ supermajority requirement for override: The vote was 97–1 in the Senate and 348–77 in the House.
In what perhaps is a sign of lame-duck times, it marked the first veto override of Obama’s presidency. To repeat the rueful observation I made two weeks ago, it’s a shame that when the Republican-controlled Congress finally roused itself to oppose the president in a decisive showdown, lawmakers chose an issue on which the president was right.
There, I went through the multiple reasons why the legislation — the Justice Against Sponsors of Terrorism Act (JASTA) — portends major problems: It foolishly delegates the delicate political duty of conducting foreign relations to the courts; it undermines the important concept of sovereign immunity; and it encourages reciprocal foreign-government action against U.S. political officials and military personnel.
On that last blunder, JASTA proponents tirelessly insist the bill is narrowly tailored to the allegedly unique circumstances of Saudi complicity in the 9/11 attacks. Of course, the scale of the attacks aside, there is nothing unique about rogue regimes providing material support to terrorism. But even if there were something to the “narrowly tailored / unique circumstances” claim, JASTA proponents miss the point. Foreign governments that decide to retaliate against the United States over this law will not deem themselves limited to action commensurate with our legislation. Once the principle of sovereign immunity is breached, all bets are off. The Saudis — to say nothing of our enemies in Tehran and our hostile rivals in Moscow and Beijing, all of whom exploit any excuse to make trouble for us — will not be constrained by Congress’s narrow tailoring.
Obviously, the bipartisan legislation is popular: We would all like to see the 9/11 families made as whole as possible (though their losses can never really be fully compensated). And we’d like to see the Saudis get their well-deserved comeuppance as a leading sponsor of jihadist terror.
In this clumsy effort to express sympathy, I was unintentionally misleading, and I am sorry for it. In the main, the 9/11 families are not looking to be “made whole” in the financial sense. It may appear that way at first blush. After all, JASTA is about civil lawsuits, which are principally brought in pursuit of financial compensation for loss. Plus, many lawmakers who support JASTA frame it in terms of the lavish financial support some Saudi officials and institutions have provided for jihadists — the suggestion being that it is only right to make the Saudis pay the victims like they have paid the terrorists.
But that is not what JASTA is about.
The bill is a bad idea. It is impossible, however, to fault its proponents.
The families want accountability. They know better than we can ever know that no financial settlement could ever compensate them for the devastation they have suffered. What they want here are answers. This is why the president, for all the White House’s railing against JASTA and today’s veto, is largely to blame for what JASTA supporters see as the necessity for this legislation — as is the Bush administration.
It is also why the lawmakers patting themselves on the back today should be hanging their heads in shame.
The families pushed for the enactment of JASTA because their government has failed them. For 15 years, they have demanded an accounting of Saudi complicity in the al-Qaeda network and the suicide-hijacking attacks directly carried out by 19 jihadists, 15 of whom were nationals of Saudi Arabia — whose fundamentalist interpretation of Islam (Wahhabism) is a catalyst of sharia supremacism and violent jihad. Rather than side with the people whom they are elected to represent, the political branches worked to protect the Saudis and Islam.
There have been honorable exceptions in Congress, but they have been too few and far between. Lawmakers could have been holding constant, aggressive hearings to pressure the Bush and Obama administrations to reveal what the intelligence community and law enforcement had uncovered about Saudi culpability. To the contrary, Congress has been content to tolerate White House stonewalling.
So the families’ patience is exhausted. They want to be able to sue the Saudi government not because they expect a pay day but because the federal law of civil litigation will empower them to conduct searching discovery. They will be able to compel the production of documents, compel potential witnesses to answer interrogatories, and confront witnesses in depositions. The Saudis are apt to be uncooperative, but the court may be able to pressure them into compliance with a range of remedies and sanctions.
In a nutshell, the 9/11 families want the ability to seek in the courts the accountability that Congress has been too lax to demand, and that successive administrations have blocked, choosing to play defense lawyer for a purported “ally” rather than champion the citizens they are elected to serve.
JASTA is a bad idea. It is impossible, however, to fault proponents who, after 15 frustrating years, don’t see any alternative.
— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.