Proposed Legislation to Amend the Foreign Sovereign Immunities Act

Representatives Adam Schiff, Betty McCollum, and Gerry Connolly have introduced the  Jamal Khashoggi Protection of Activists and Press Freedom Act of 2023.  The purpose of the legislation is to protect free speech advocates and journalists. The press release announcing the draft legislation notes the murder five years ago of journalist Jamal Khashoggi “at the hands of Saudi intelligence officers, acting on explicit orders of the Saudi Government.” Saudi officials who were allegedly responsible have not been held accountable.  If enacted, the bill would:

protect activists and journalists by codifying the Khashoggi Ban, a visa restriction policy announced by Secretary Blinken in February 2021, which bans from travel to the United States individuals acting for a foreign government who are found to have engaged in serious, extraterritorial, counter-dissident activities. The act also introduces the Khashoggi Amendment to the Foreign Sovereign Immunity Act, which allows for lawsuits seeking damages against a foreign state in the case of the personal injury or death of a U.S. person resulting from an act of transnational repression.

The congressional findings emphasize the significance of free speech globally and include references to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.  The findings also note that attacks on journalists have increased around the world; they refer specifically to events in Turkey as well as those in Saudi Arabia.

Of particular interest for transnational litigation, the bill would amend the Foreign Sovereign Immunities Act to allow suits against a foreign state for the injury or death of a “United States person” (as defined in 50 U.S.C. 1708(d)(10)) – which includes U.S. individuals and entities, as well as persons “located in the United States.” These are significant limitations on the scope of the bill.  In addition, the conduct that gives rise to the claim must occur outside the foreign state that is being sued and the harm must be based on the person’s role as a journalist, activist, or “other perceived dissidence.” It is worth recalling that a suit against Crown Prince Mohammed bin Salman was dismissed last year on grounds of head-of-state immunity after he was appointed Prime Minister of Saudi Arabia.

Many bills are introduced that go nowhere, of course.  On the other hand, amendments to the Foreign Sovereign Immunities Act are not uncommon.  Whether or not this bill should or will become law, it is a good opportunity to reflect on the horrible murder of journalist Jamal Khashoggi.