Last week, Congress voted to override a presidential veto for the first time in President Obama’s tenure. The bill in question—officially known as the Justice Against Sponsors of Terrorism Act but more commonly referred to as the 9/11 Bill—allows victims of terrorism to sue foreign states, or their representatives or employees, in Federal Court in the United States.
This was only the eighth veto override in the past 26 years, and it went through with extraordinary bipartisanship. The House overrode the veto by a margin of 348-77; the Senate vote was nearly unanimous with Harry Reid (D-NV) as the only Senator to vote against the veto override (Sens. Tim Kaine and Bernie Sanders were not present for the vote).
However, many members of congress have already expressed regret over their votes and concern over the potential implications of the bill now that it has passed. The day after the vote passed, Senate Majority Leader Mitch McConnell stated at a press conference, “It appears as if there may be some unintended ramifications.” Within two days of the vote, a group of 28 Senators had sent a letter to the bill’s Senate sponsors expressing a desire to “appropriately mitigate those unintended consequences.”
One of the “unintended” results of this bill is degradation of sovereign immunity: many fear other countries will enact similar policies, putting the United States government and its citizens at risk of prosecution in foreign courts. The White House articulated this concern, among others, in the days leading into the veto override, but congressional leaders still seemed to think President Obama and his supporters did not do enough to make their concerns clear in advance of the vote. McConnell suggested there was a “ball dropped” by the White House and wished discussions of the potential consequences had started “much earlier.”
However, the White House has been relatively unsympathetic to these complaints. White House Press Secretary Josh Earnest told reporters that “ignorance is not an excuse, particularly when it comes to our national security and the safety and security of our diplomats and our servicemembers.” He also called the override “the single most embarrassing thing the United States has done possibly since 1983” (when Congress voted in favor of an Oregon land transfer bill, overriding President Reagan’s veto) and President Obama called it a “mistake.”
These recent statements from the White House were by no means the first indications of the potential problems that could arise from the 9/11 Bill. Harvard law professor Jack Goldsmith and Duke law professor Curtis Bradley wrote a New York Times op-ed last April outlining their concerns with the bill while it was still in drafting stages, warning that the bill would “violate a core principle of international law, and it would jeopardize the effectiveness of American foreign aid and the legitimacy of the United States’ actions in the war on terror.”
Also in April, the Saudi government stated its intention to pull assets out of the United States should the bill pass in order to prevent these assets from being frozen by American courts. This highlighted another of the major concerns of the 9/11 Bill’s opponents: the strain it could put on the relationship between the United States and Saudi Arabia, a key ally in the Middle East.
The Central Intelligence Agency also weighed in on the bill, expressing concerns that foreign states would use the precedent set by this bill to gain access to classified information through the judicial process. CIA Director John Brennan warned Congress of the “grave implications” of the bill, stating, “No country has more to lose from undermining that principle [of sovereign immunity] than the United States.” Defense Secretary Ash Carter echoed this concern in a letter sent to Congress prior to the vote.
“We didn’t pay much attention to this. And boy is that ever a lesson learned.”
Although many of its supporters may be experiencing “buyer’s remorse,” support of the 9/11 Bill is not without merit. Members of 9/11 Families and Survivors United for Justice Against Terrorism, the group that pushed the bill, claim the language was carefully negotiated with State Department lawyers to close what they viewed as a loophole in existing laws. These families believe the bill will allow them to discover the truth about the attacks that killed their loved ones, and they also believe it can help victims of future attacks—either by serving as a deterrent to foreign states or by providing a “blueprint” for future victims in search of answers and justice.
Despite his staunch opposition to the bill, President Obama has sympathized with its intentions. He acknowledged the “scars and trauma” Americans still carry from 9/11, and he recognized the difficulty many members of Congress may have if they were “perceived as voting against 9/11 families right before an election.”
There is potential to mitigate the dangers of the 9/11 Bill through revision or amendment before it takes effect. The Saudi government has expressed hope that Congress will “correct this legislation” during its lame duck session at the end of the year, and House speaker Paul Ryan told reporters he would “like to think that there’s a way we can fix [the bill] so that our service members do not have legal problems overseas while still protecting the rights of the 9/11 victims.” However, it is unclear what steps could be taken to successfully balance these competing interests.
The 9/11 bill has inspired mixed feelings, even from those who supported it and ensured its passage. While there are strong concerns over possible international consequences, they are, for the time being, just that: possible. The actual ramifications of the 9/11 Bill will likely not be known until someone acts upon them.