Senators Blame Obama For Not Helping Them Understand Their Own Bill

Last Friday, President Barack Obama vetoed a bill called the Justice Against Sponsors of Terrorism Act, better known as JASTA. The bill, which enjoyed broad bipartisan support in both houses of Congress, would, among other things, have allowed plaintiffs to sue countries known to have sponsored terrorist acts for compensatory damages. Many of the bill’s supporters had pitched JASTA as a “sue Saudi Arabia” bill, based on their insistent belief that Saudi Arabia was behind the Sept. 11 attacks. The bill’s supporters in Congress frequently cited the 9/11 attacks as their motivation for passing the bill in the first place.

Obama vetoed JASTA, but the story didn’t end there. Earlier this week, Congress handed Obama the first veto override of his presidential tenure. JASTA was law, baby! All that’s left is the high-fiving!

But there always has to be a morning after. And many members of Congress, after they’d come down a bit from their veto override high, evidently started to wonder about what they’d done, exactly. That’s when they found that the bill they supported through a veto override maaaaaybe needed a tweak or two. Per Jordain Carney at The Hill:

A day after the House and Senate overwhelmingly voted to override President Obama’s veto, GOP leaders are expressing reservations about legislation that would allow lawsuits related to 9/11 to go forward against Saudi Arabia.

Senate Majority Leader Mitch McConnell (R-Ky.) and House Speaker Paul Ryan (R-Wis.) both said they were open to discussions about changing the bill, which Congress approved unanimously.

Oh, my stars and garters, what needed to be changed to make these sudden “reservations” go away?

“We want to make sure the 9/11 victims and their families have their day in court,” Ryan told reporters. “At the same time, I would like to think that there may be some work to be done to protect our service members overseas from any kind of legal ensnarements that occur, any kind of retribution.”

Huh, well, that’s interesting. Congress wrote a bill that would allow sovereign immunity protections to be waived so that people could sue other nations for sponsoring terrorist acts, and it turns out that when you do that, it causes these other consequences ― like establishing the legal precedent through which the United States may be similarly sued. Someone should have really seen this coming. Perhaps the authors of the bill will step up and take responsibility?

Ha, ha: no. As Carney went on to report last night, it’s very clear who the bad guy is in all of this.

Though the Senate voted on Wednesday to overwhelmingly nix the president’s veto in a 97-1 vote, some lawmakers said they had misgivings about the bill. They stressed, however, that any push to find an alternative was largely ignored by the Obama administration. 

McConnell echoed that sentiment Thursday, calling the legislation “an example of an issue that we should have talked about much earlier.” 

“You know, that was a good example of — it seems to be a failure to communicate early about the potential consequences of a piece of legislation was obviously very popular,” he said.

So let me get this straight. Congress wrote the Justice Against Sponsors of Terrorism Act. It was super popular with members of Congress. But the president insisted he’d veto the bill. Congress was like, “Bring it on, mofeaux!” They overrode the veto without a second thought. Then suddenly they started having those second thoughts, and now it is somehow the White House’s fault for not fully communicating the unintended consequences of the bill and the impact they might have.

It’s a pretty insane response from McConnell (and it’s just as nuts that his claim was reported uncritically). It would be pretty inconvenient if, say, White House press secretary Josh Earnest had at some point communicated this specific concern with the JASTA bill, wouldn’t it?

White House press briefing, July 15, 2016:

Q    You’ve also said on a previous occasion that the White House was against JASTA. And I’m just wondering why there would seem to be this disconnect between the White House’s view of JASTA when there are so many in the United States Senate, overwhelmingly so, who feel like this may be a very good idea?
 
MR. EARNEST: Well, Kevin, this just goes back to a long-held principle here about the risk that this legislation would pose to ―
 
Q    It’s pretty narrow, wouldn’t you agree? At least the way it’s currently ―
 
MR. EARNEST: Again, based on the analysis that’s been conducted by our lawyers here in the U.S. government, the way that this law is written could open up U.S. companies and even potentially U.S. personnel to vulnerabilities when they’re engaged in actions or doing business or conducting official government work overseas.
 
There is an important principle related to sovereign immunity. And when you’re the most powerful country in the world, you’re invested in the idea of sovereign immunity, given how deeply the United States is involved in so many other countries.  
 
So we believe that’s a principle worth protecting. And that is the concern that we have with this legislation, at least the way that the most recent draft was put forward. Doesn’t have to do with any specific country, but rather has to do with our concern about a specific principle that benefits the United States and private U.S. interests in countries all around the globe.

It would also be awkward if it turned out the White House actually had been attempting to work with Congress to address these concerns.

White House press briefing, Sept. 23, 2016:

Q    This 9/11 lawsuit bill seems to be framed as an up or down proposition.  Is that accurate, or is there room for compromise?

MR. EARNEST: Well, we certainly would welcome congressional action that would address the concerns that we’ve raised. So I guess that’s the reason that we’re having conversations, is to try to find an approach that would satisfy the concerns and the desire of some members of Congress to want to address the request of the 9/11 families. And we’re hopeful that they can find a way to do that that doesn’t carve out the kinds of exceptions that put our diplomats and servicemembers at risk around the world.

Q    But your answer to Olivier before sort of suggested that there are two moving parts here. There is the sovereign immunity stripping provisions of JASTA, but also the response from other nations, which may or may not be reciprocal to that. So is there any ― am I characterizing your position correctly? If that’s true, is there anything that you can do to reduce the immunity protection without triggering some sort of international law ―

MR. EARNEST: I guess what I would say ― the best way I can answer your question, Gregory, is to say that, yes, potentially there is a way to address the significant concerns that we’ve raised about the risk facing U.S. servicemembers and U.S. diplomats while also addressing the requests of the 9/11 families. That’s the ―

Q    Are you prepared to say (inaudible)? 

MR. EARNEST: No, but I think that’s the nature of the conversations that we’re having with members of Congress on Capitol Hill. I don’t know if something like that exists, but we’re certainly in conversations to find out if it does.  

Huh, well, that’s interesting. But surely it was incumbent on the president himself to personally communicate his specific misgivings about the bill ― maybe in, say, a letter to the Senate written on the occasion of his veto. Wonder if he did that?

Veto Message from the President ― S.2040:

TO THE SENATE OF THE UNITED STATES:

I am returning herewith without my approval S. 2040, the “Justice Against Sponsors of Terrorism Act” (JASTA), which would, among other things, remove sovereign immunity in U.S. courts from foreign governments that are not designated state sponsors of terrorism.

I have deep sympathy for the families of the victims of the terrorist attacks of September 11, 2001 (9/11), who have suffered grievously. I also have a deep appreciation of these families’ desire to pursue justice and am strongly committed to assisting them in their efforts.

[…]

…JASTA would upset longstanding international principles regarding sovereign immunity, putting in place rules that, if applied globally, could have serious implications for U.S. national interests. The United States has a larger international presence, by far, than any other country, and sovereign immunity principles protect our Nation and its Armed Forces, officials, and assistance professionals, from foreign court proceedings. These principles also protect U.S. Government assets from attempted seizure by private litigants abroad. Removing sovereign immunity in U.S. courts from foreign governments that are not designated as state sponsors of terrorism, based solely on allegations that such foreign governments’ actions abroad had a connection to terrorism-related injuries on U.S. soil, threatens to undermine these longstanding principles that protect the United States, our forces, and our personnel.

Indeed, reciprocity plays a substantial role in foreign relations, and numerous other countries already have laws that allow for the adjustment of a foreign state’s immunities based on the treatment their governments receive in the courts of the other state. Enactment of JASTA could encourage foreign governments to act reciprocally and allow their domestic courts to exercise jurisdiction over the United States or U.S. officials ― including our men and women in uniform ― for allegedly causing injuries overseas via U.S. support to third parties. This could lead to suits against the United States or U.S. officials for actions taken by members of an armed group that received U.S. assistance, misuse of U.S. military equipment by foreign forces, or abuses committed by police units that received U.S. training, even if the allegations at issue ultimately would be without merit. And if any of these litigants were to win judgments ― based on foreign domestic laws as applied by foreign courts ― they would begin to look to the assets of the U.S. Government held abroad to satisfy those judgments, with potentially serious financial consequences for the United States.

I trust you get my point. (Emphasis mine in all of the above selections, by the way.) McConnell’s claim ― that the fiasco in which Congress is now entangled is somehow a result of the White House’s “failure to communicate” ― is entirely without merit. The White House communicated its concerns clearly, early and often. How clearly did they communicate them? Clearly enough that we were able to talk about them on the “So That Happened” podcast that was published on Sept. 16.

In short, we have a Congress that desperately needs to take some sort of “Remedial Congressing” class at the Learning Annex, or something.

And once they’re ready for some advanced studies, I would urge them to reflect on this: When there’s a bill that would allow these sorts of lawsuits, and the president of the United States greets that bill by saying “Hey guys, you know, probably no nation on Earth depends on the principle of sovereign immunity more than we do,” that’s your cue to maybe consider the possibility that the United States is knee damn deep in some very dirty water. 

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Senators Blame Obama For Not Helping Them Understand Their Own Bill