Lisa Ann Johnson
86 Geo. Wash. L. Rev. 231
Congress passed the Justice Against Sponsors of Terrorism Act (“JASTA”) to create a new jurisdictional exception to foreign sovereign immunity where a plaintiff is able to prove that a foreign sovereign sponsored terrorism. Unfortunately for potential plaintiffs, this framework has both constitutional and practical flaws that make it nearly impossible to ever collect on a successful judgment. JASTA failed to create a parallel attachment exception, which practically prevents plaintiffs from collecting. Further, the new immunity exception allows courts, rather than the Executive, to determine whether the United States views the foreign sovereign as a sponsor of terrorism.
This Note argues that JASTA violates the Executive’s recognition power by designating the judiciary as the arbiter of whether the United States views another nation as a sponsor of terrorism. Further, aside from the separation of powers problem, the legislation is unworkable in practice: in its current state, the Act provides no feasible way for an injured plaintiff to collect on a valid judgment. To cure these deficiencies, this Note proposes that Congress repeal JASTA and replace it with a formal procedure that allows potential plaintiffs to petition the U.S. Department of State to designate a foreign power as a State Sponsor of Terrorism for the event in question. This alleviates the separation of powers issue, and a potential plaintiff that successfully petitions the executive branch would be able to bring her suit under the pre-JASTA terrorism exception, § 1605A. If a plaintiff succeeds on a § 1605A action, she would be able to attach nearly any property, other than an embassy, that the country owns in the United States in order to fulfill a judgment.
