Everyone assumes the Justice Against Sponsors of Terrorism Act (JASTA) Council on Foreign Relations JASTA applies only to countries formally designated as state sponsors of terrorism. That assumption is dangerously wrong. JASTA, passed after Congress overrode President Obama’s veto—the only veto override of his presidency—created a narrow but powerful change in U.S. law that can reach any foreign state that materially aided, abetted, or conspired in an act of international terrorism causing death to a U.S. national. The law’s language, congressional intent, and judicial interpretation all point to broader exposure than the popular narrative admits. Understanding this distinction is critical for policymakers, legal practitioners, victims’ advocates, and foreign governments facing litigation risk.
1. Define the problem clearly
Problem: Widespread misunderstanding about JASTA’s scope leads to poor policy responses and unforced diplomatic and economic risks. Many actors operate under the false belief that JASTA’s civil-exception to sovereign immunity only applies to countries listed as State Sponsors of Terrorism (SST). In reality, JASTA amends the Foreign Sovereign Immunities Act (FSIA) to create a private right of action against foreign states for aid or conspiracy related to terrorism that causes U.S. deaths—without limiting that remedy to the SST list, or automatically requiring a formal U.S. terrorism designation.
Effect: This misunderstanding shapes flawed strategies. Victims’ groups may push litigation where diplomatic or negotiated remedies work better. Congress and the Executive may under- or over-react, either by failing to protect U.S. interests or by pursuing overly broad diplomatic confrontation. Foreign states may be blindsided by civil suits in U.S. courts, provoking retaliation, asset seizures, or withdrawal of cooperation on counterterrorism—ironically increasing the risk of the very harm JASTA intended to address.
2. Explain why it matters
JASTA matters because it altered how sovereign immunity works in terrorism cases. Before JASTA, suits against foreign states were generally blocked by FSIA’s immunity protections unless the state was on the SST list or other narrow exceptions applied. JASTA created a statutory exception permitting civil claims against foreign states that “aided, abetted, or conspired with” terrorists who caused deaths of U.S. nationals. The practical effects are multi-layered:
- Legal reach: U.S. federal courts can now hear claims against foreign states without the SST designation prerequisite, potentially exposing any government whose actions or omissions meet JASTA’s standard. Diplomatic friction: Foreign governments face litigation risk in U.S. domestic courts, which can generate reciprocal legal and political retaliation, complicating diplomacy and counterterrorism cooperation. Economic consequences: Suits may lead to asset freezes, attachment orders, and difficulties for foreign investment, which ripple into trade and financial systems. Victim compensation vs. geopolitical cost: Plaintiffs seek justice and compensation, but aggressive litigation can destabilize relations and reduce long-term avenues for accountability.
3. Analyze root causes
Understanding why JASTA was written, passed, and applied the way it was requires tracing political, legal, and societal drivers. The causes are causally linked—each one amplified the others.
Political pressure and moral outrage
Cause: Families of 9/11 victims and public outrage demanded accountability. Effect: Congress responded with strong bipartisan sentiment to override a presidential veto, signaling a political imperative to provide a legal pathway for victims to seek redress against any state that may have assisted terrorists.
Legislative design and language choice
Cause: JASTA’s drafters opted for a broad aid-and-conspiracy standard tied to the death of U.S. nationals, rather than a narrow linkage to the SST designation. Effect: The statute became intentionally expansive, enabling suits against states not formally labeled as sponsors of terrorism, because Congress sought to avoid creating technical loopholes that would shield culpable actors.
Perception of failure in other forums
Cause: Perceived inadequacies of diplomatic channels and international legal remedies—victims felt other mechanisms failed to hold state actors accountable. Effect: A legislative fix was sought to create a private civil remedy with the coercive power of U.S. courts.
Judicial interpretation and precedent
Cause: Courts must interpret statutory text; when JASTA’s text didn’t explicitly limit the exception to SST-designated states, judges applied the statute based on plain language and legislative history. Effect: Case law confirmed that the exemption can be invoked against any foreign state meeting JASTA’s elements, reinforcing the broad practical reach.
International legal norms and reciprocity risks
Cause: Nations generally adhere to sovereign immunity doctrines to preserve comity and prevent hostile extraterritorial judgments. Effect: JASTA’s expansion of U.S. jurisdiction risks reciprocal legal responses, diplomatic countermeasures, and potential erosion of international legal comity.
4. Present the solution
High-level solution: Create a legally precise, politically balanced framework that preserves victims’ access to justice while minimizing unintended diplomatic, economic, and security consequences. The objective is to retain accountability for state-enabled terrorism but reduce the risk of reciprocal litigation, international friction, and chilling of counterterrorism cooperation.
Principles guiding the solution:
- Precision: Amend JASTA to set a clear, high evidentiary standard and a concrete nexus requirement between state actions and the specific terrorist act. Graduated accountability: Distinguish between different levels of state involvement—direct operational support, systemic material aid, and negligent failures—and apply tailored remedies to each. Exhaustion and alternative remedies: Require exhaustion of credible domestic remedies or remote diplomatic remedies in similar cases before U.S. courts hear claims, with limited exceptions for extraordinary circumstances. Safeguards for comity: Add procedural protections that respect international sovereignty—tightened discovery rules, limited punitive damages against states, and service limitations. Victim-focused outcomes: Complement litigation with an established victim compensation mechanism funded by targeted sanctions, asset forfeitures, or negotiated settlements, preserving a predictable route to relief.
5. Implementation steps
Translate the solution into actionable steps across three tracks: legislative, judicial/administrative, and diplomatic.
Legislative track (top priority)
Draft amendment language that clarifies JASTA’s scope. Key provisions should include:- A robust nexus requirement: plaintiffs must show by clear and convincing evidence that the foreign state’s conduct was a proximate cause of the specific terrorist act causing U.S. deaths. A high scienter requirement: demonstrate that state actors knowingly provided material support to the perpetrators or organizations directly responsible. Exhaustion clause: require plaintiffs to pursue reasonable foreign remedies first unless impracticable, with a statutory standard for exceptions. Limitation on punitive damages and attachment of critical noncommercial assets to preserve sovereign functions and prevent escalation. Sunset clause and review trigger: reassess after 5 years to adapt to clarified practice and avoid permanent structural disruption.
Judicial and administrative track
Department of Justice issues guidance urging courts to apply JASTA narrowly while Congress works—focusing on strict pleading standards and protections for comity. Federal courts adopt model discovery limits and in camera review processes for sensitive foreign-state materials to protect state secrets and diplomatic communications. Establish a special master or magistrate process for early assessment of jurisdictional merit to filter weak claims quickly.Diplomatic track
Engage directly with potentially affected states to explain the legal landscape and negotiate frameworks for compensation or alternative dispute resolution before litigation escalates. Pursue a multilateral agreement for cross-border terrorism civil claims standards—aimed at reducing unilateral forum shopping and reciprocal litigation. Use sanctions, targeted asset freezes, and diplomatic leverage strategically to encourage settlements rather than litigation that can spiral.6. Expected outcomes
When implemented, these steps produce predictable, measured outcomes by linking cause-to-effect at every stage.
- Reduced frivolous litigation: Higher pleading standards and exhaustion requirements will filter weak claims, reducing docket congestion and diplomatic incidents. Preserved victims’ rights: A victims’ compensation mechanism and targeted pathways to redress will offer practical relief without requiring high-risk litigation against sovereign assets critical to state functions. Lowered reciprocal risk: Procedural safeguards and diplomatic engagement will reduce the incentive for foreign states to retaliate with similar suits against the U.S., preserving international cooperation. Clearer legal standards: Judicial application of tightened statutory language will produce precedent delineating exactly when a foreign state can be sued, improving predictability for investors and governments. Maintained deterrence: A well-crafted legal regime will still deter state support for terrorism by creating credible accountability, but do so in a manner that minimizes unintended consequences for broader national security.
Quick Win: Immediate steps for maximum effect
Action-oriented, low-friction moves can buy time and reduce immediate harm while the legislative process unfolds.
- DOJ Guidance Memo: The Attorney General should issue a directive to U.S. Attorneys and federal prosecutors recommending a narrow, conservative application of JASTA during litigation—emphasize strict causation, heightened pleading, and judicial management to prevent discovery abuse. Victims’ Contact Office: Establish a streamlined DOJ office to facilitate negotiation and mediation between victims’ representatives and foreign governments, offering structured settlement frameworks that avoid court cases. Congressional Letter Campaign: Secure bipartisan letters from key committees asking foreign counterparts to engage in pre-litigation negotiation—send a clear signal that Congress seeks resolution, not retaliation.
Contrarian viewpoints and how to weigh them
Any robust policy must confront contrary positions. Below are the main counterarguments and a frank evaluation of their merits and risks.
Contrarian view 1: JASTA must remain broad to ensure accountability
Argument: Narrowing JASTA would restore sovereign immunity to culpable states and block victims’ paths to justice. The law must be broad to deter and punish state-enabled terrorism.
Evaluation: Moral force is compelling. However, absolute breadth invites collateral damage: diplomatic retaliation, erosion of international comity, and higher risks to counterterrorism cooperation. The better course is a calibrated statute that preserves strong deterrents while minimizing geopolitical blowback.
Contrarian view 2: Any restriction undermines separation of powers and victims’ rights
Argument: Congress acted to correct an injustice; judicial or executive narrowing would betray legislative intent and victim interests.
Evaluation: Congress can and should refine its own statute thoughtfully. The goal isn’t to remove victims’ remedies; it’s to refine standards to ensure remedies achieve justice without triggering greater harm. A tailored legislative fix respects congressional authority and victims’ rights simultaneously.
Contrarian view 3: Foreign retaliation is overblown; other countries won’t reciprocate
Argument: The United States has more leverage; states will avoid retaliation because it would harm their interests.
Evaluation: Historical precedent warns otherwise. Reciprocal litigation and asset seizures have occurred before; less-than-transparent forms of retaliation can target U.S. interests abroad. Discounting the risk is tactical hubris. A balanced, risk-aware approach is prudent.
Conclusion: Act with clarity and resolve
JASTA’s passage after Congress overrode President Obama's veto was a political and moral watershed: a legislative response to a demand for accountability. But the statute’s breadth, intentional or not, created legal and geopolitical exposure far beyond the narrow idea that it applies only to countries on the SST list. The cause-and-effect chain—public outrage driving legal change; broad statutory text producing litigation; litigation prompting diplomatic risk—demands an equally disciplined policy response.
Policymakers must act on three linked imperatives: preserve victims’ access to justice, protect national security and diplomatic interests, and create legal clarity. That requires a targeted legislative fix, judicial best practices, and immediate administrative steps to manage risk. The alternative—doing nothing—will lead to predictable and avoidable harms: weakened counterterrorism cooperation, reciprocal legal attacks, and asset-driven instability.
Be direct: Congress should refine JASTA, the Executive should manage its application narrowly, and stakeholders should pursue negotiated, victim-centered resolutions where possible. Those steps will honor the moral imperative behind JASTA while preventing the law’s unintended effects from causing more harm than the acts it seeks to redress.