Only time will tell how nations react on terror suit law

Now that Congress has voted to override President Obama's veto of legislation making it easier for U.S. citizens to sue foreign governments for terrorist acts, an avalanche of retaliatory litigation against American interests is only a matter of time.

At least that is the dire scenario outlined by Obama and legions of former national security and State Department officials and academics who lined up against the bill.

But the truth is that no one knows what the reaction overseas will be. It might take months and perhaps years for nations with objections to the new U.S. law to amend their own sovereign immunity laws, if any choose to retaliate. While plenty of foreign policy experts and lawyers predict a rash of lawsuits against the United States, there are others who think it unlikely.

The Justice Against Sponsors of Terrorism Act (JASTA) is intended to aid the legal claims of thousands of victims and survivors of the Sept. 11, 2001, attacks, as well as dozens of insurers that lost billions at ground zero. The Center City law firm of Cozen O'Connor has taken the lead in that litigation, and was instrumental in pushing for the law on Capitol Hill. If the matter is ever tried to verdict - a very big if - the Saudi exposure could be north of $100 billion.

But what about the potential that other nations will weaken their immunity laws in response to Congress' expanding the basis on which U.S. citizens can haul them into court?

"It's hard to say; we are not talking about a lot of countries" inclined to retaliate, said Stephen Vladeck, a law professor at the University of Texas who has written about the 9/11 litigation. "I don't think anyone is worried about the Germans."

Stephen Burbank, a law professor at the University of Pennsylvania and an expert on international litigation who also serves as a consultant to plaintiffs suing Saudi Arabia, said it is unlikely that a foreign government would risk other economic, military, and diplomatic relationships with the U.S. by retaliating on the terrorism issue.

"I find it implausible; I think it [the threat of retaliation] is a scare tactic," Burbank said. "We have plenty of means available to dissuade a foreign state from doing that."

Professor William Dodge, an expert on international law at the University of California, Davis, said there is nothing in international law establishing state immunity from legal claims for acts of terrorism. Both the U.S. and Canada already permitted terrorism suits to go forward, albeit under limited circumstances.

"A terrorism exception has been part of U.S. law since 1996 and part of Canadian law since 2012, and neither exception, to my knowledge, has provoked the sort of widespread protests from other nations that one might expect in the case of a clear violation of customary international law," Dodge recently wrote.

One undisputed point raised by the president in his veto message is that the U.S. has by far a much larger international presence than any other country - in other words, it's a big fat target for any rogue state with a flexible concept of international law and justice.

The U.S. also is a supplier of money and weapons to governments in conflict regions, like Israel and Saudi Arabia. In a climate of eroding sovereign immunity, critics, such as law professors Jack Goldsmith of Harvard and Curtis Bradley of Duke, said JASTA makes it more likely that the U.S. could be sued for the military strikes against civilians by its own allies. They outlined those concerns in a recent op-ed in the New York Times.

Such military strikes typically have been deemed not actionable under international law, Dodge says. Whether they might become the basis of lawsuits in foreign courts, now that the U.S. has changed its own immunity law, is anybody's guess. Now that JASTA is on the books, we'll find out soon enough.

cmondics@phillynews.com

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