The ATA Amendment and Congressional Earmarks for Plaintiffs' Lawyers

When President Obama signed the NDAA of 2014 yesterday, the Act did not include the amendment to the Anti-Terrorism Act, about which I posted earlier this month that would have allowed suits by non-US nationals against persons for “aiding and abetting” acts of terrorism.   The amendment had been pushed by plaintiffs’ lawyers seeking to reverse decisions by several appellate courts.  Many companies had objected that expansion of the ATA would have turned the law into a mini-Alien Tort Statute, permitting foreign nationals to sue U.S. and foreign companies in U.S. courts for their activities in other countries. This effort to amend the ATA is part of a growing practice by plaintiffs’ lawyers to turn to Congress to pass special legislation to help them when they have lost in the courts.   Some of this special legislation has been in the form of freestanding bills, but more often plaintiffs’ lawyers and their lobbyists have attempted -- as they did with the amendment to the ATA -- to add amendments at conference to must-pass legislation, such as the NDAA.   For example, six years ago, plaintiffs' lawyers persuaded House and Senate conferees to amend the NDAA of 2008 to include an extensive revision of the Foreign Sovereign Immunities Act (FSIA) specifically tailored to reverse court losses they had suffered (including one decision specifically identified in the NDAA by Civil Action number!).  President Bush ultimately vetoed the NDAA because of the risk that it would expose the then-fledgling Iraqi republic to massive lawsuits (I was involved in having to explain to the President why it was necessary to veto his own defense authorization bill during a time of armed conflict). These earmarks for lawyers raise democratic concerns, have unintended consequences, and make it hard for the Executive branch and Congress to object when other countries pass similar “special” laws designed to remove the immunity or limit the defenses of the U.S. Government or U.S. companies.  For example, another bill which Congress has been considering for several years -- the Justice Against Sponsors of Terrorism Act (JASTA) -- would amend the FSIA to make it easier for plaintiffs to sue countries, such as Saudi Arabia, that are alleged to have supported acts of terrorism or violence but that have not been officially designated by the Executive branch as state sponsors of terrorism.   I expressed concerns about this legislation several years ago in testimony before the Senate Judiciary Committee, noting that the legislation could unintentionally result in lawsuits against Israel (for security actions in Gaza) and encourage reciprocal legislation directed against the United States in other countries. Both the ATA amendment and the JASTA are likely to be considered again by Congress next year.  Members of Congress and their staffs should ensure that these bills and others urged by plaintiffs’ lawyers to reverse their losses in federal courts are subject to very rigorous review.