Bills
| 3.23.22

Should U.S. Victims of Terror Attacks be Able to Sue Responsible Foreign Governments? (S. 2040)

Do you support or oppose this bill?

What is S. 2040?

(Updated January 5, 2021)

This bill was enacted on September 28, 2016

This bill would make it easier for terrorist attack survivors and their family members to sue foreign governments and officials (that sponsor or otherwise supported the attackers) in federal court. 

Under current law, the Foreign Service Immunities Act (FSIA) gives foreign governments “sovereign immunity” from lawsuits filed in the U.S. under most circumstances — but this bill would change that law to exempt terrorist attacks carried out on U.S. soil thus allowing lawsuits to proceed.

Foreign governments and employees acting in an official capacity for them would no longer be able to use “sovereign immunity” as a defense against lawsuits seeking damages for acts of terrorism they helped facilitate. The new exceptions to the FSIA would include providing material or financial support to the attackers, or knowingly aiding and abetting them.

District courts would have jurisdiction over lawsuits filed against foreign governments in cases covered by this legislation after its enactment.

This legislation would retroactively apply to attacks that injured a person, property, or business on or after the attacks of September 11, 2001 and would be effective immediately upon enactment. It wouldn’t apply to U.S. government officials, and includes a severability clause that allows the remainder of this bill to remain intact if a portion of it is found to be invalid.

Argument in favor

Foreign governments and their officials that sponsor or otherwise aid and abet terrorist attacks on U.S. soil shouldn’t have immunity from lawsuits filed by the victims of the attack or their survivors. This bill changes existing law to allow such suits to proceed.

Argument opposed

Just as the federal government is protected from lawsuits overseas, the U.S. needs to protect foreign governments from lawsuits in America’s courts — even if the foreign government or its officials helped to facilitate an act of terrorism.

Impact

Victims of terror attacks carried out on U.S. soil and their families; foreign governments and their officials that support a terror attack being carried out; and federal courts.

Cost of S. 2040

The CBO estimates that enacting this bill wouldn’t have a significant effect on the federal budget.

Additional Info

Of Note: There has been a considerable amount of debate surrounding the immunity afforded foreign governments and their employees acting in an official capacity in the years since the 9/11 attacks. A lawsuit brought against a Saudi charity, four princes, and a banker because of the support they allegedly provided the al Qaeda hijackers was dismissed on the grounds that they are immune from prosecution. Of the 19 al Qaeda hijackers, 15 were from Saudi Arabia.

The alleged Saudi involvement in assisting the hijackers is said to be detailed in 28 unreleased pages of a 2002 congressional inquiry into the attacks. Some also believe the narrow wording of this finding by the 9/11 Commission Report leaves open the possibility that less senior officials or parts of the government helped facilitate the attacks:

“no evidence that the Saudi government as an institution or senior Saudi officials individually funded the organization”

In response to this legislation’s potential passage, the Saudi government denied playing any role in the 9/11 attacks. It also warned that it would look to sell $750 billion of U.S. treasury notes and other assets to prevent them from being frozen if the classified 28 pages of Congress’ inquiry are released.

According to a former Senator who worked on the congressional inquiry, the White House is informing those that compiled the report that President Obama will make a decision regarding the status of the 28 pages within 60 days.


In-Depth: This bill was introduced with bipartisan support by Sen. John Cornyn (R-TX) and Sen. Chuck Schumer (D-NY) to give the families of Americans killed in the September 11, 2001 attacks the chance to seek justice through the court system. Schumer summed up the rationale for the legislation saying:

“For countries to be able to aid the evil of terrorism and walk away scot-free while families suffer silently everyday with the loss of loved ones is wrong, unfair and painful, and this legislation undoes that injustice.”

This legislation was passed by the Senate Judiciary Committee, and has the bipartisan support of 22 Senate cosponsors — including 12 Republicans and 10 Democrats.


Media:

Summary by Eric Revell
(Photo Credit: Screenshot composite from Flickr user Marion Doss)