Justice Against Sponsors of Terrorism Act: An Assault on State Immunity

On 28 September 2016 both houses of Congress overrode a presidential veto to pass the Justice Against Sponsors of Terrorism Act. Md Rizwanul Islam and I wrote this to argue that the United States had just damaged a doctrine it relies on more than most.

JASTA opens federal courts to civil claims against foreign states for deaths, injuries or property damage in the United States arising from international terrorism, and for torts committed anywhere by a foreign state’s officials acting within their employment.

State immunity is not a technicality. It rests on sovereign equality, and it works practically by keeping one state’s governmental acts out of another’s courts, which is what prevents litigation becoming an instrument of foreign policy. American immunity law was already thin before JASTA; in terrorism matters the Act renders it close to non-existent.

The reciprocity point is the one that has aged: legislatures elsewhere can copy this, and United States personnel would then face exactly what JASTA creates.