Time running out for US to change law allowing 9/11 families to sue Saudi Arabia

Abu Dhabi // With just days remaining in its final session, it now appears unlikely that the US congress will find a fix to a law that allows families of 9/11 victims to sue Saudi Arabia.

The Justice Against Sponsors of Terrorism Act was passed into law in September despite a presidential veto and concerns that it will have enduring ramifications for US national security. Even many of those who voted for it have deep reservations about the law.

The current session of congress could continue until December 9, but a number of factors – many to do with the incoming Trump administration – have pushed the issue off the priority list of key members of the senate. The senate would have to lead the way on finding a fix amenable to both sides of the issue.

“Officials continue to work very diligently with congress to change the most damaging aspects of Jasta, however, the lame duck session of congress ends in a few days, and the chances are narrowing that changes will be made to the legislation in this session of congress,” said Danny Sebright, the president of the US-UAE Business Council.

He added that senior leaders that he met on the sidelines of the Formula One race in Abu Dhabi on Sunday “personally expressed great concern over the impact that Jasta will have – if it goes forward in its current form – on countries in the region and the relationship with the United States”.

The business council sent a letter supported by major US companies including GE, Exxon Mobile and PepsiCo to 35 senators urging them to find a way to change the law so that the principle of sovereign immunity is not eroded.

The law could “destabilise” the global economy, the author of the letter, GE vice chairman John Rice, wrote. “Left unchanged, Jasta would likely expose US military and intelligence personnel to lawsuits in foreign courts and significantly weaken relationships with key allies.”

Since congress overrode Barack Obama’s veto of the bill in September, at least one case against Riyadh has been brought in a US court by the family of a 9/11 attack victim. US government investigations have found no direct link between the 9/11 plot and the Saudi government as an institution.

Even senior members of congress who felt compelled to vote for the override warned that it would open a pandora’s box of retaliatory prosecutions in foreign courts against US diplomats, military service members, intelligence personnel and others overseas for US actions such as drone strikes.

Already, cases have been filed in Turkey, Iraq and Pakistan, and even allies such as France who opposed the legislation are reportedly drafting reciprocal laws now that sovereign immunity has been undermined.

Saudi Arabia has hired a slew of top lobbying firms in Washington over the past six weeks to convince senior senators to make changing the law a priority. Riyadh is hoping for the inclusion of a discretionary function that would allow the US president to block lawsuits brought under Jasta for national security reasons.

The two current vehicles to “fix” Jasta are the only major pieces of legislation expected to be passed in the lame duck session of congress – the continuing resolution (CR) to keep the US government funded, and the National Defense Authorization Act (NDAA), which sets the fiscal year 2017 military budget.

But Republican senators in particular want to only pass a place holder CR that only extends funding for just enough time so that the incoming president, Donald Trump, can weigh in once in office and work with the Republican-controlled congress on a longer-term bill, according to a source in Washington familiar with the negotiations on Capitol Hill over Jasta.

That leaves the NDAA. The armed services committee, which has a lead role in the legislation, is chaired by John McCain, who supports an amendment. The potential national security issues and concerns of fallout for military members are also arguments that are likely to be persuasive there.

But despite the powerful senators who have publicly supported changing Jasta during this session, none have been willing to take a lead on the issue.

Partly, their reticence is due to the fact that the White House and others have not provided a strategy for persuading senator Charles Schumer, the powerful Democrat who co-sponsored the bill and has been set against amending it, to compromise on the issue. And so far there has been no tangible fallout for US national security interests that would provide congress with the incentive to make an amendment.

Now, faced with the prospect of not getting a change to Jasta through in the lame duck session, supporters of an amendment are beginning to reckon with the prospect of going back to the drawing board, and looking at how to refocus their strategy on the next administration and congress.

But significant challenges likely lay ahead of them. Not only did Mr Trump denounce Mr Obama’s veto of Jasta during the election campaign but senator Jeff Sessions, who was responsible for removing a waiver provision from the original bill, has been nominated for attorney general. This waiver provision was along the lines of the change now being sought by Riyadh.

In addition “I don’t think anyone has a clue how the Trump administration would execute a presidential waiver” even if one were added, the source in Washington said.

tkhan@thenational.ae