For almost eight years, I've waited for Congress to stand up to President Obama, to demonstrate that the legislative branch is still -- as the Founders envisioned -- coequal to the executive branch, that senators and representatives are more than a commentariat, a Greek chorus appearing on the cable TV stage.
I'd particularly hoped Congress would take a strong stand against Mr. Obama's deal with Iran. The most consequential nuclear arms agreement of this century, it should have been framed as a treaty requiring congressional advice and consent. Instead, it was presented as a non-binding executive agreement. A Democratic filibuster prevented Congress even from registering its disapproval.
So imagine my surprise when, last week, a solid bipartisan congressional majority overturned an Obama veto for the first time. More difficult to imagine: my chagrin because, in this case, the veto was justified.
Let me say clearly that I believe the Justice Against Sponsors of Terrorism Act (JASTA) is well-intentioned. The families of the victims of the 9/11/01 attacks want mass murderers and their backers held to account. They want a safer America. Elected officials want to show the families respect and support. And there's no denying that Saudi Arabia has spent billions of dollars spreading ideas that have justified and driven terrorism.
On a personal note: Sept. 11 changed my life. Two friends were among those murdered. Soon after, I founded a policy institute dedicated to understanding the threat facing America and the West and identifying policies that can best defend free nations.
But JASTA is flawed in ways that are not immediately apparent and may even be counterintuitive. It entails "substantial costs" and "provides virtually no benefits," in the words of Jack Goldsmith, a Harvard law professor and former U.S. assistant attorney general under President George W. Bush. It "will create a broad precedent that can be used against the United States and its allies." Can JASTA be fixed? Perhaps: I'll get to that in a moment. First let's examine what's wrong with this legislation.
In a demarche to Washington, the European Union calls JASTA a "derogation" from the principle of sovereign immunity -- one likely to prompt "reciprocal action by other states and an erosion of the principle as such. The latter would put a burden on bilateral relations between states as well as on the international order as a whole."
The United States has long had an exception to sovereign immunity for state sponsors of terrorism. It has served us well. But that exception is limited to countries which the U.S. executive branch has placed on its list of state sponsors of terrorism. Currently listed: Iran, Sudan, and Syria.
JASTA's exception to sovereign immunity is far more open-ended. That creates a precedent that can be used against the United States and its allies.
Sovereign immunity is what "shelters" American diplomats, military personnel and intelligence operatives so they can do their jobs, as former Attorney General Michael Mukasey and former Ambassador John Bolton have pointed out. It "protects them against being hauled into court by those who oppose U.S. policy and would use judicial proceedings to frustrate it, especially in countries where courts are puppets of the regimes."
As for such American allies as Israel, they will be even more at risk because JASTA provides "potential plaintiffs a useful argument to justify suing Israeli government personnel in a foreign court. Such potential plaintiffs are numerous."
JASTA proponents contend that the legislation is "narrowly tailored." But as Andrew C. McCarthy, a former federal terrorism prosecutor and contributing editor of National Review has emphasized, even if that were so, "Foreign governments that decide to retaliate against the United States over this law will not deem themselves limited to action commensurate with our legislation."
Another problem: Lawsuits involve discovery -- pre-trial demands for documents and interrogations of officials that will lead to the disclosure of "sensitive information and subject Americans to legal jeopardy of various kinds," according to Mac Thornberry (R-TX) who chairs the House Armed Services Committee and opposed the veto override.
There's a cruel irony in the timing of this legislation: The Obama administration has been providing billions of dollars to Iran, officially designated as the world's leading state sponsor of terrorism, a regime responsible for killing Americans over many decades in Lebanon, Iraq, Afghanistan and even Saudi Arabia.
One more issue to consider: Under JASTA, Prof. Goldsmith predicts, "the 9/11 victims and families' claims will never get anywhere" because in order to prevail, the plaintiffs would need to show that Saudi Arabia was "directly responsible for the 9/11 attacks." But three separate and serious investigations found no evidence of any direct Saudi role.
Why haven't members of Congress addressed these problems? Some are – belatedly. Last Friday, 28 senators wrote a letter to JASTA's lead sponsors arguing for revision of the law. Upon reflection, they are concerned about "unintended consequences," about Americans facing "private lawsuits in foreign courts as a result of important military or intelligence activities."
JASTA could be amended. One option suggested by Prof. Goldsmith would be to "limit its abrogation of immunity to Saudi Arabia alone" which would "confine most of the impact of the statute to U.S.-Saudi relations and thereby minimize collateral consequences." (Whether that's a good idea is a separate discussion.)
If members of Congress are to fix what's broken, they'll need to get started ASAP. Realistically, that means right after the elections during their lame-duck session.
We anti-terrorists – the 9/11 families most emphatically included -- should not be fighting among ourselves. We should be fighting the terrorists and the anti-anti-terrorists. But we also should understand that success requires careful strategic thinking – not least on the legislative battlefield.