Is terrorism justice legislation backed by 9/11 families dangerous to military?
By DIANNA CAHN | STARS AND STRIPES | September 23, 2016
WASHINGTON — Legislation that would allow families of 9/11 victims to sue Saudi Arabia in American courts was headed for a showdown Friday as President Barack Obama prepared to veto the bill and the families pressed for its full passage.
Caught in the middle: The question of whether the Justice Against Sponsors of Terrorism Act, or JASTA, would imperil American diplomats and military servicemembers abroad.
The bill sailed unopposed through both houses of Congress after intense pressure from the families to pass the law on their behalf. If passed, it would remove sovereign immunity from foreign government officials, allowing U.S. citizens to sue them in U.S. courts for alleged acts of terrorism.
Saudi Arabia has threatened to sell off its U.S. assets should the bill become law and close allies France and Holland have warned they will pass reciprocal laws. Obama promised to veto the bill by Friday’s deadline, warning it could open the door to lawsuits against U.S. personnel in other countries.
The families say concerns of global repercussions are alarmist, but in recent days, a group of senior national security, defense and diplomatic officials and a separate group of former military generals, admirals and colonels wrote letters to legislators urging against the law’s passage.
Even as some lawmakers acknowledge newfound concerns, pressure to support the 9/11 families loomed large and Congress appeared primed to override the veto.
Sen. Lindsey Graham, R-S.C., a co-sponsor of the bill, upset families when he voiced concerns. He told Stars and Stripes Thursday by email that he was disappointed that the choice had come down to supporting Saudi Arabia or supporting the families, when such serious considerations fell in the middle.
“ ‘Either or’ politics is not where I want to go, but it may wind up that if nobody’s trying to accommodate this problem, we’re just going to vote,” he said. “And if I have to vote, I’m going to vote to override the veto.”
Families of those killed and hurt in the Sept. 11, 2001, attacks have argued that the law is narrow and limited to acts of terrorism, not acts of war. Objectors warned that while U.S. law might differentiate between the two, it would not prevent less limited laws from being enacted in other countries. The White House also argued the classification of terrorism should remain an executive authority, not become a question for the courts.
“The safety and security of our diplomats, intelligence officers, military and other senior officials of the U.S. government and their ability to perform their duties without foreign influence or intervention would be seriously imperiled,” according to an open letter written this week by former Defense Secretary William Cohen, former acting CIA director Michael Morell and seven other former national security, intelligence and judicial leaders including advisers to Obama and President George W. Bush.
“The perpetrators of terrorism should and will continue to be pursued through our vast military, law enforcement and intelligence capabilities,” it said. But dismantling sovereign immunity “will put our government officials and military personnel at extreme risk and impede the ability of the community of nations to work together at a time when global cooperation in the war on terrorism is essential.”
On Tuesday, 9/11 families protested in front of the White House, calling on Obama to pass the act and making clear they saw his promise to veto as a direct affront.
“I am frustrated, angry and tired of the mistruths being carelessly spewed about this legislation,” Terry Strada, the chair of the 9/11 families and survivors group, said in a news conference near the Capitol after Tuesday’s protest.
Strada said JASTA was “carefully, narrowly crafted” over years by top lawmakers, and concerns about reciprocal laws were flawed. Diplomats are protected by the Vienna Conventions, she said, while the military is protected by wording in the legislation excluding acts of war.
“To equate what we do to protect ourselves from terrorism with what others do in support of terrorism completely misreads the bill,” Strada said. “Denying us justice is un-American.”
Lt. Col. Pat Testerman, a retired Air Force commander, said he strongly supported justice for the 9/11 families yet worries that the law would allow other countries to define things differently.
He could imagine a scenario in which a young Air Force lieutenant makes an error in an act of war – say, an erroneous target of a drone attack that kills civilians – and is tried in a foreign court for an act of terror, he said.
“What we define as acts of terrorism or acts of war is up to interpretation,” Testerman said. “And we open ourselves up to significant danger with this.”
White House Press Secretary Josh Earnest told reporters Sept. 12 that the law could “have an impact on our relationship with every country around the world in a way that has negative consequences for the United States, for our national security and for our men and women in uniform.”
Recent reports suggest some lawmakers might be wavering in their support for overriding the veto. Sen. Dianne Feinstein, D-Calif., said this week that she was having second thoughts about the bill “because I think it launches a number of unforeseen happenings.”
On Friday, a group of retired military leaders signed a letter being passed around on Capitol Hill urging lawmakers to reconsider an override.
“Congress must take great care to ensure that soldiers must be able to do their jobs without threat of foreign influence or repercussion,” it said. “We must do all we can to protect them from possible legal action in faraway lands.”
Earnest said the president would continue to lobby lawmakers to let his veto stand. But he recognized that despite warnings about possible consequences, the 9/11 families held strong sway.
“There’s no denying the political potency of this issue,” he said. “But the president believes that it’s important to look out for our country and to look out for our servicemembers.”