For the first time, the United States Congress overrode a veto by U.S. President Barack Obama on Sept. 28 to pass the Justice Against Sponsors of Terror Act (JASTA). The Senate voted 97 to 1 for the act and the House of Representatives similarly voted overwhelmingly in favor at 348 to 76. The support for the bill — which would allow victims of terrorist attacks to sue the foreign governments accused of sponsoring them — is unsurprising in an election year, given that the bill was written specifically for the families of 9/11 victims. However, its implications stretch far beyond 9/11 victims and the Saudi government they wish to sue. Currently, any state not on the U.S. Sponsors of Terror list is immune to private lawsuit, and only Syria, Sudan and Iran are on that list. The bill would increase the number of governments and individuals that could be tried in U.S. Federal Courts, and that, opponents of the bill allege, is a dangerous prospect.
Prominent critics of the bill, aside from Obama, include Joint Chiefs of Staff Chairman Gen. Joseph Dunford and Defense Secretary Ashton Carter, both of whom urged Congress to vote against the bill. CIA director John Brennan said that the law will have "grave implications" for national security, and corporate leaders with business in Saudi Arabia also lobbied Congress to vote against the bill. The criticisms have been acknowledged by some of the bill's proponents. The head of the Senate Foreign Relations Committee, Bob Corker, who voted for the measure, acknowledged that America's national interests could be damaged by the act. The same day that lawmakers passed the bill into law, a group of them penned a letter outlining their concerns about the unintended consequences of the act and how they planned to mitigate them. Considering the economic, security and legal ramifications of the law is important, as is considering Saudi Arabia's reaction to the vote: Many of the ways it could retaliate would also hurt it. The U.S.-Saudi relationship has already been tense as Riyadh has had to adjust to the development of a working relationship between the United States and Iran. Saudi Arabia cannot retaliate too much lest it damage its already-strained relationship with the United States and its own economy.
When JASTA took shape earlier in 2016 after years in the making, Saudi Arabia threatened to pull its investments in the United States, estimated to be worth more than $750 billion. The threat proved hollow: Saudi Arabia would need another suitable investment option in which to allocate its funds, but there is still no safer standard than U.S. treasuries. Pulling out of U.S. treasuries would amount to an act of mutual economic destruction and is highly unlikely. That is not to say that Saudi Arabia will sit idly by while JASTA is enforced, and it could react against the legislation in the corporate realm.
Saudi Arabia has in the last weeks and months lobbied Congress through major American companies with operations in the kingdom to consider the retaliation Riyadh could visit on the companies. The Saudi government could choose to rescind preferential treatment to U.S. businesses in the kingdom, or to deny new business licenses to U.S. companies. But this would also harm Saudi Arabia, especially as it works to court foreign investment to achieve its broader ambitions for the region.
Critics of JASTA say the bill sets a precedent by which other countries could create similar legal frameworks to sue U.S. individuals and entities. Considering how active the United States is militarily, diplomatically and financially in nearly every corner of the globe, the consequences of this could be staggering. Foreign sovereign immunity is a foundation of international law, but JASTA adds an exception that could prompt other countries to add similar exceptions. But nothing was stopping countries from introducing such measures against the United States before. In fact, Iran and Cuba have previously taken legal action against the United States, demanding billions of dollars that Washington will not pay.
American military leaders are afraid that JASTA will erode the trust between the U.S. military and foreign militaries in the Middle East. Counterterrorism and intelligence cooperation with regional allies is critical for U.S. national security. They are also worried that U.S. military and security personnel engaged in counterterrorism efforts could be exposed to lawsuits. Of course, because Saudi Arabia and other Gulf Cooperation Council countries rely on joint counterterrorism efforts, curtailing them would be detrimental and thus is unlikely.
It is always possible that the U.S. Congress could pass another piece of legislation to limit the scope of the first. However, it is more likely that the vote will lead to a spate of bilateral diplomatic conversations behind closed doors, seeking to minimize the fallout and narrow the scope of who and what the legislation targets. It would seem that Saudi Arabia will be a willing participant in such talks. But it is less clear whether other regional powers will be equally as open.