In a Senate floor speech today, Senators John McCain and Lindsey Graham announced that they are offering an amendment to strip a key element of the recently passed Justice Against Sponsors of Terror Act (JASTA) that clarifies U.S. law for civil claims against foreign governments for funding terrorism.
JASTA was passed in the Senate in May with no objections, and passed the House of Representatives unanimously in September. President Obama promptly vetoed the bill. The Senate and House successfully voted to override the veto and the bill became law.
McCain and Graham specifically said they want to strip the “discretionary state function” provision from JASTA that creates liability for foreign governments funding terrorist groups.
According to Hill sources familiar with the McCain/Graham amendment, their intention is to immunize countries like Saudi Arabia and Qatar that have funded Sunni terrorist groups in Syria — the Syrian “rebel” effort that both McCain and Graham have publicly supported since 2011.
The McCain/Graham amendment was slammed by 9/11 family groups that fought for JASTA.
The 9/11 Families and Survivors United for Justice Against Terrorism put out the following press release this afternoon:
In a speech on the Senate floor this afternoon Senator Graham pitched this new language as a simple “caveat” but in reality he is proposing to amend JASTA to add a specific jurisdictional defense Saudi Arabia has been relying on for the last 13 years to avoid having to face the 9/11 families’ evidence on the merits.
Moreover, Senator Graham and Senator McCain mischaracterized JASTA in several material respects during their speeches today. For example, Senator Graham argued that JASTA is deficient because it does not require that a foreign state have “knowingly” supported terrorism in order for liability to attach, but in fact JASTA’s liability provision expressly requires that the foreign state have “knowingly provided substantial assistance” to a designated terrorist organization in order for liability to arise. Senator Graham also suggested that adding a discretionary function provision to JASTA would protect the US from claims for drone strikes in Pakistan, which is simply incorrect given that Pakistan has made clear its view that domestic and international law prohibit those strikes.
Notably, Graham’s and McCain’s efforts come in the wake of a massive lobbying campaign by the Kingdom of Saudi Arabia which is now employing roughly a dozen Washington lobbying firms at a cost of more than $1.3 million per month.
“In April of this year, Senator Graham met with 9/11 family members from the September 11 Advocates Group and told them that he supported our cause 100%,” said Terry Strada, National Chair for the 9/11 Families and Survivors United for Justice Against Terrorism.
“Senator Graham is now stabbing the 9/11 families in the back. He and Senator McCain are seeking to torpedo JASTA by imposing changes demanded by Saudi Arabia’s lobbyists. We have reviewed the language, and it is an absolute betrayal.”
“The 9/11 Families are fortunate to have Senators John Cornyn and Chuck Schumer to block this action in the Senate, and we take comfort that President-elect Donald Trump strongly supports our cause. The President-elect has made his support for JASTA crystal-clear, and there is zero risk that he will support this kind of backroom backstabbing of the 9/11 families,” Strada concluded.
In their statements today, Senator Graham said with respect to their intentions:
We’re trying to work with Senator Schumer and Senator Cornyn, who deserve a lot of credit for trying to help the 9/11 families. Here’s what we’re asking. We’re asking that we put a caveat to the law we just passed saying that you can bring a lawsuit, but if you’re suing based on a discretionary function of a government to form an alliance with somebody or to make a military decision or a political decision, the only time that government is liable is if they knowingly engage with a terrorist organization directly or indirectly, including financing. I am okay with that because our country is not going to fall in league with terrorists and finance them to hurt other people. If we don’t make this change, here’s what I fear: That other countries will pass laws like this, and they will say that the United States is liable for engaging in drone attacks or other activity in the war on terror and haul us into court as a nation and haul the people that we give the responsibility to defend the nation into foreign courts.
The changes that Senator Graham and I are proposing, I think, are modest. And I think that logically, that you should not pursue or prosecute a government that did not knowingly — the word isn’t abetted or orchestrated, but knowingly — knowingly stand by and assist a terrorist group that they shouldn’t be dragged into our courts. If we don’t fix it, our ability to defend ourselves would be undermined. And I just want to emphasize one more point that the senator from South Carolina made. We have had drone strikes in many places in the world, in many countries in the world. Pakistan is another example. And all of us have supported the efforts, and many of them successful, in destroying those leaders who were responsible for the deaths of American servicemen and women. And it is a weapon in the war against terror. But sometimes, as in war, mistakes are made and innocent civilians were killed along with those terrorists. Does that mean that the United States of America, the government, is now liable? I’m afraid that some in the tort profession would view this as an opening to bring suits against the United States of America.
It appears their intention is to pass the amendments to JASTA during the lame-duck session before they lose key allies, such as Senator Kelly Ayotte, who lost her reelection bid in New Hampshire.