I’m JASTA Bill, Yes I’m Only A Bill
By Laura Bassett
On September 16, 2015, Sen. John Cornyn (R-TX) introduced the Justice Against Sponsors of Terrorism (JASTA) Bill, narrowing the scope of the immunity from jurisdiction sovereign nations previously enjoyed in U.S. courts.[1] One year later, Congress successfully overrode President Obama’s veto of the bill for the first time in Obama’s Presidency.[2] In the time since the override, some senators have expressed remorse and concern about the potential for actions against the U.S. stemming from JASTA.[3] Specifically, the threat of suits stemming from the U.S. invasions of Vietnam[4] and Iraq[5] have been talked about, with varying levels of merit.
Iraq & Vietnam
The “Arab Project in Iraq” is the group that is trying to advance legislation allowing for a suit against the U.S. for the invasion of Iraq.[6] The portion of JASTA that would rule out a lawsuit, should Iraq adopt the exact language, would be Section 3, where JASTA states that “[i]nternational terrorism does not include an act of war.”[7] According to the U.S. Constitution, Congress has the power to declare war.[8] The last formal declaration of war made by the United States was against R[o]mania, Bulgaria, and Hungary in early June 1942.[9] However, since then, Congress has authorized force 11 more times.[10] The most recent authorization of force was passed by Congress on October 16, 2002, authorizing the use of military force against Iraq.[11]
Congress passed a resolution authorizing the use of military force against Iraq on October 16, 2002,[12] and then-President George W. Bush declared a beginning to the conflict in Iraq on March 20, 2003.[13] The Americans and their allies toppled Saddam Hussein’s government officially on April 9, 2003, and arrested Hussein on December 13, 2003.[14]However, despite the removal of the Iraqi dictator, power was not transferred by the Americans to the Iraqis for 15 months, during which time, some American soldiers were photographed abusing prisoners of war at Abu Ghraib prison.[15] This scandal even colored the resignation of the U.S. Secretary of Defense, Donald Rumsfeld, which was tendered to the President on November 8, 2006.[16] Further controversies to color the conflict in Iraq include the use of civilian security services, such as Blackwater, who were granted immunity from Iraq’s laws in 2003.[17] The conflict was officially ended on December 15, 2011, with a formal declaration.[18]
The United States also entered into the Vietnam War by way of an authorization of force.[19]The Gulf of Tonkin Resolution was approved by Congress 5 days after an attack on the USS Maddox in international waters off the coast of North Vietnam.[20] This resolution authorized President Johnson to "take all necessary measures to repel any armed attack against forces of the United States and to prevent further aggression."[21] With the Gulf of Tonkin Resolution, Congress approved a “war” that lasted from its declaration in 1964 until the last troops left Vietnam and a cease-fire was signed in 1973.[22]
Analysis
If a foreign nation was wanting to use JASTA against the U.S., it would probably have to be under Section 4. Section 4 amends 18 U.S.C. §2331, under which “international terrorism” is defined as“involv[ing] violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State”.[23] JASTA’s amendments add to that section by extending liability to “any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”[24] However, that would require the United States government to be classified as a “designated terrorist organization.”[25] Section 4(d)(2) of JASTA dictates that the definition for a “designated terrorist organization” requires that “(A) the organization is a foreign organization; (B) the organization engages in terrorist activity (as defined in section 1182(a)(3)(B) of this title or terrorism (as defined in section 2656f(d)(2) of title 22), or retains the capability and intent to engage in terrorist activity or terrorism) 1; and (C) the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States.”(emphasis added)[26] Therefore, unless another definition is justified, Congress has all but ensured that the United States Government can never be considered a “designated terrorist organization” because it is not a foreign organization and therefore does not meet the first of the three factors as codified in 8 U.S.C. §1189.
Even if we assume that a claim could survive that first test, there are still ways that Congress appears to have ensured exemption from foreign claims through JASTA and other acts in the U.S. Code. As neither of these conflicts was a formal declaration of war, it is unclear whether JASTA’s Section 3 exempts the actions as those taken in a time of war. However, it would not be unheard of to suggest that as there has not been a formal declaration of war since 1942, these Congressional agreements authorizing the use of force would count as the modern declarations of war, done less formally. Furthermore, in the section of the U.S. Code that JASTA amends, an act of war is defined as “(A) declared war; (B) armed conflict, whether or not war has been declared, between two or more nations; or (C) armed conflict between military forces of any origin”.[27] The conflicts in both Iraq and Vietnam could be argued as fitting under subsections (B) & (C). Specifically, Vietnam would easily fit under (B) due to its pitting the U.S. against North Vietnam. Similarly, for the times when the U.S. military was fighting to take down the Hussein Regime, the U.S. was essentially fighting Iraq. Should either of those arguments fail, however, Subsection (C) provides a catch-all that would destroy any potential claim’s viability.
For these reasons, neither the U.S. government nor the veterans of those (or other) wars have reason to worry about being prosecuted under JASTA. While JASTA may not have been a good diplomatic move, it does not appear to be the catastrophic loophole that some have claimed.
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[1] Justice Against Sponsors of Terrorism, S.2040, 114th Cong. (2015).
[2] Scott Horsley & Ailsa Chang, Congress Votes To Override Obama’s Veto on Sept. 11 Lawsuit Bill, NPR (Sep. 28, 2016 4:58 AM), http://www.npr.org/2016/09/28/495709481/sept-11-lawsuits-vote-today-could-be-first-reversal-of-an-obama-veto.
[3] Fmr. Sen. Larry Pressler (R-SD), Could Saudi override lead to Vietnam vets being sued?, The Hill (Sep. 29, 2016 5:11 PM), http://thehill.com/blogs/pundits-blog/defense/298597-could-saudi-override-lead-to-vietnam-vets-being-sued.
[4] Id.
[5] Iraqis Use 9/11 Bill to Demand Compensation from US for 2003 Invasion, Sputnik News (Oct. 2, 2016 1:47 PM), http://sptnkne.ws/ctp5.
[6] Id.
[7] JASTA, supra note 1.
[8] U.S. Const. Art. I, §8, cl.
[9] Garance Franke-Ruta, All the Previous Declarations of War, Atlantic (Aug. 31, 2013), https://www.theatlantic.com/politics/archive/2013/08/all-the-previous-declarations-of-war/279246/.
[10] Id.
[11] Id.
[12] Id.
[13] Kyle Crichton, Gina Lamb, and Rogene Fisher Jacquette, Timeline of Major Event in the Iraq War, N.Y. Times, http://www.nytimes.com/interactive/2010/08/31/world/middleeast/20100831-Iraq-Timeline.html?_r=0#/#time111_3295.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at September 16, 2007.
[18] Id. at December 15, 2011.
[19] Id.
[20] A Vietnam War Timeline, University of Illinois at Urbana-Champaign Department of English, http://www.english.illinois.edu/maps/vietnam/timeline.htm.
[21] Id. at 1964.
[22] Id. at 1964, 1973.
[23] 18 U.S. Code § 2331(4).
[24] Justice Against Sponsors of Terrorism, S.2040, 114th Cong. (2015).
[25] Justice Against Sponsors of Terrorism, S.2040, 114th Cong. (2015).
[26] Immigration and Nationality Act, 8 U.S.C. §1189 (2016).
[27] 18 U.S. Code § 2331(4).