The Senate voted Wednesday to give families of 9/11 victims the right to sue the Saudi Arabian government, overriding President Obama's veto for the first time.
The vote was lopsided, with 97 Senators voting in favor of the override, well above the two-thirds majority needed to overcome the president's objection. Senate Democratic Leader Harry Reid cast the lone "no" vote. Senators Tim Kaine, D-Va. and Bernie Sanders, D-Vt. did not vote.
The Justice Against Sponsors of Terrorism Act (JASTA) would, among other things, give families of Sept. 11 victims the right to sue Saudi Arabia for aiding or financing the terrorism attacks. The House is likely to take up the same vote by the end of this week.
The House is likely to consider its own veto override by the end of this week. The House initially passed the measure on a voice vote earlier this month, two days before the 15th anniversary of the deadly terrorist attacks.
The Saudi government denies any role in those attacks, and the 9/11 Commission found no evidence that the Saudi government as an institution or senior Saudi officials were involved. Fifteen of the 19 hijackers were from Saudi Arabia, though. And there have long been suspicions that some of the hijackers received support during their time in the U.S. from individuals with possible connections to the Saudi Kingdom.
Supporters of the veto override say those suspicions should be explored in a U.S. court of law.
The Obama administration says it's sympathetic to victims' families, but concerned that allowing such lawsuits would open the door to legal challenges against American officials in other countries.
"The president understands the passion that's on both sides of this issue," White House spokesman Josh Earnest said Tuesday. "It's the president's responsibility to consider the broader impact that this bill, as it's currently written, would have on our national security, and our standing around the world, and on our diplomats and our servicemembers who represent the United States around the world."
Those concerns were underscored by CIA Director John Brennan shortly before the Senate vote.
"The principle of sovereign immunity protects U.S. officials every day, and is rooted in reciprocity," Brennan said in a statement. "If we fail to uphold this standard for other countries, we place our own nation's officials in danger. No country has more to lose from undermining that principle than the United States—and few institutions would be at greater risk than CIA."
Under the principle of "sovereign immunity," a country should remain immune from lawsuits in the courts of another country. Although there are some very limited exceptions to that principle already, critics complain the measure allowing lawsuits against the Saudi government creates a dangerously wide exception.
Families of Sept. 11 victims have demanded a right to seek monetary compensation from Saudi Arabia since the attacks, and versions of this bill have been floating around the Capitol as far back as 2009 — but the legislation never reached the floor until this year.
It sailed through both chambers without any opposition, but did so without a formal tally of votes. Passage of JASTA was done by so-called "unanimous consent" in the Senate, and by voice vote in the House.
What does this bill do?
JASTA would allow a lawsuit against any country by any U.S. citizen who claims the country financed or otherwise aided and abetted a terrorist attack on U.S. soil. Liability would attach only if the plaintiff could show the country acted with knowledge in providing this support.
Congress already has allowed Americans to sue countries that have been designated as "state sponsors of terrorism," but currently, that list includes only three countries — Iran, Syria and Sudan. The White House says that designation is assigned only after very careful review by national security, intelligence and foreign policy officials, and that such designations should not be left to private litigants and judges.
The concerns voiced by the White House, some lawmakers
There's been talk about the principle of "sovereign immunity" and how this bill might erode that principle.
Under the principle of "sovereign immunity," a country should remain immune from lawsuits in the courts of another country. It's a long-held principle of international law. And although there are some very limited exceptions to that principle, some lawmakers and the White House believe JASTA creates a dangerously wide exception.
The fear is that other countries might reciprocate and enact laws that would drag U.S. government officials or members of our military into lawsuits in foreign courts under the theory that those people aided and abetted some injury abroad.
And to Republican Sen. Bob Corker of Tennessee, that would expose the U.S. to tremendous liability.
"Let's face it. We're the greatest nation on earth. We have more involvements around the world than any country," said Corker. "We've got assets deployed all around the world more than any country. So if sovereign immunity recedes, we're the nation that is most exposed."
In his veto message, President Obama said there could be lawsuits against the United States 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." However without merit these claims may be, the White House argues, they would still suck up resources and increase the country's legal exposure.
Allowing Sept. 11 families a day in court
Supporters of the bill say it's a little alarmist to think this bill is going to corrode the principle of sovereign immunity and invite a flood of retaliatory litigation against the U.S. They point out sovereign immunity is not absolute — there are already, after all, exceptions to it.
And most importantly, they argue, all JASTA ultimately does is give Sept. 11 victims a chance to be heard in court.
"The issue is fundamentally about, is whether someone would have the opportunity to raise their concerns in the judicial system. It's not a judgment about how a case would come out," said Sen. Ron Wyden, D-Ore., a senior member of the Intelligence Committee. "It seems to me that it is appropriate — particularly in light of the families — that they should have a chance to raise their concerns in court. "