Should the 9/11 Lawsuits Proceed?
Surviving 9/11 victims, as well as the families and loved ones of those who died that day, say they have reams of evidence linking the Kingdom of Saudi Arabia to the al-Qaeda hijackers—and they want their day in court, which may result in billions of dollars in damages.
In addition, proponents say such a lawsuit would finally force accountability on the kingdom, which despite being a longtime ally of the U.S. had a role in the birth of Wahhabism, the extremist cornerstone of faith that inspired al-Qaeda in the first place. Funding for the spread of that strain of Islam across the Middle East and elsewhere has been traced to members of the House of Saud for decades. So has financing for terrorism.
Up until September, the Foreign Sovereign Immunity Act (FSIA) appeared to preclude civil action in U.S. courts against a foreign government for acts of international terrorism unless strict requirements were met—the toughest being that the government in question had to be on the U.S. list of state sponsors of terrorism, which Saudi Arabia is not. There were also hurdles to pass under the Anti-Terrorism Act.
Nonetheless, some 9,000 civil lawsuits were filed on behalf of 9/11 victims. Those lawsuits have been locked in a back-and-forth battle between the victims and the Saudi defendants over whether the U.S. has jurisdiction, bouncing from the U.S. District Court of New York to the Second Circuit District of Appeals for over a decade. Sometimes the 9/11 victims have had the headwinds, other times the defendants, but there seemed to be no final word on whether these cases could go forward.
Until now. The Justice Against Terrorism Act (JASTA) passed with overwhelming bipartisan majorities in the House and Senate, and it became law in September when Congress overrode the president’s veto. It gives the plaintiffs their strongest tool yet to see these cases through to a long-awaited conclusion.
But is passing a law that chisels away the last vestiges of foreign-state immunity the best way to handle the grievances of the 9/11 loved ones? Will it spur reciprocal legislation by foreign governments, which may now feel emboldened to bring Washington to court for perceived crimes, like funding militia groups or rebels that have committed violent acts, a.k.a. “terrorism,” against their people?
Skepticism for the bill seems to come from all directions—particularly among the legal establishment, former diplomats, and administration officials. Even foreign leaders have weighed in, with French parliamentarian Pierre Lellouche saying JASTA“will cause a legal revolution in international law with major political consequences.”
President Barack Obama, whose administration lobbied Congress hard against JASTA, warned in his September veto message against taking the role of fighting international terrorism out of the hands of national-security officials and putting it into the judiciary’s lap. Specifically:
Removing sovereign immunity in U.S. courts from foreign governments that are not designated as state sponsors of terrorism, based solely on allegations that such foreign governments’ actions abroad had a connection to terrorism-related injuries on U.S. soil, threatens to undermine these longstanding principles that protect the United States, our forces, and our personnel.
Other critics, including a former U.S. ambassador to Saudi Arabia, Chas Freeman, have ridiculed JASTA as an empty political effort to placate the 9/11 victims and assuage anti-Saudi sentiment, noting that the final bill was massaged to put more restraints on damages and allow the State Department to put a “stay” on cases indefinitely if it can certify it is in “good faith discussions” with the defendant toward a resolution.
“I think it was a cheap, political shot,” Freeman told TAC, calling the Saudi lawsuits “a witch hunt.” “This is utterly irresponsible, and it brings great discredit to the United States and does nothing to help the people it is supposed to benefit, so what’s so good about it?”
Even so, he said, the new law brings the U.S. closer to the embrace of creeping international law. “There has been a trend toward breaking down sovereign immunity on human-rights issues and subjecting states to international court’s jurisdiction, and JASTA walks right into that,” Freeman claims.
In fact, in November, the chief prosecutor of the International Criminal Court, to which the U.S. is not a party, raised the possibility that members of the U.S. armed forces and the CIA could be indicted in that tribunal based on reports of detainee torture in Afghanistan and in secret overseas prisons.
In addition to creating “an open season for lawyers to go after foreign governments for compensation for actions they might or might not have been able to control,” says former CIA foreign-service officer and TAC contributor Phil Giraldi, JASTA “raises the specter of of the U.S. again being shown to hold double standards for itself and others as the federal government has consistently blocked any recourse to our courts for people we have tortured or renditions by citing state secrets privilege.” Therefore JASTA might further encourage targeted countries to “take reciprocal action against U.S. officers and government employees.”
But for the 9/11 loved ones and their lawyers supporting the bill, these are familiar arguments that just don’t ring true.
The Case for JASTA
Terry Strada’s kids were 7, 4, and 4 days old when her husband Thomas, a senior corporate bond trader at Cantor Fitzgerald, perished in the collapse of the World Trade Center towers on 9/11. She filed suit against the Saudi Royal Kingdom in 2002. Since 2009 she has worked on behalf of Pass JASTA, which represents thousands of 9/11 loved ones, with a core group of 25 who’ve traveled repeatedly to Washington to lobby Congress. It was not impulsive, she insists: the bill was rigorously deliberated over the course of seven years. It was crafted by members of Congress and their staffs, aired and vetted in at least three congressional hearings, and amended before passage.
“It’s a good bill that deserved to be passed,” she told TAC in an interview. “Families deserve justice, and we deserve the opportunity to hold the bankrollers accountable, and to stem the flow of money to terrorists in the future,” she added. She hopes JASTA will serve as a deterrent to terror financing, rather than a floodgate of litigation like the naysayers contend.
She said the 9/11 cases against Saudi Arabia were launched not only because 15 out of the 19 hijackers were Saudi, but because enough evidence has been uncovered to link the Royal Family to the hijackers and their supporters in al-Qaeda. She said the infamous 28 pages publicly released this summer are “only the tip of the iceberg.”
“Someday, if the lawsuits progress, we can get this all out in a courtroom,” she said. “That’s why the Saudis are fighting this so hard.”
“This law now requires the [Saudi] Kingdom to come in and defend itself against the civil allegations in the case after years of getting away with not doing so,” says attorney Robert Haefele, whose firm Motley Rice LLC represents at least 6,000 of the 9/11-related suits.
He disputes the notion that JASTA torpedoes the longstanding doctrine of sovereign immunity, pointing to exceptions to FSIA that already allow suits against foreign states, including some alleging state-sponsored terror, to proceed. JASTA would be one more exception—and an important one, signaling that the U.S. will not stand for covert funding of terrorist groups that cause injury and death on American soil.
“The claims that JASTA represents some kind of drastic departure from long-standing or sacrosanct notions of sovereignty rely largely on fear mongering and distorting the history of the principle,” challenged Haefele.
Writing for The National Interest, former Defense Department consultant Oleg Svet says JASTA “chips a small chunk away” from sovereign immunity, but he suggests the fear of retaliatory measures by other countries is “overblown”: “JASTA provides a legal pathway for potential American victims of terrorism, and, as importantly, sends a strong message to foreign governments considering whether or not to support anti-American militant groups in the future.”
Was the Final Bill Watered Down?
Indeed, the Saudi government is already working fast and furiously to upend the new law. According to reports, the kingdom has employed no fewer than 14 Washington firms—including the Clinton-linked Podesta Group—to keep the heat on Congress to tinker with it. But some suggest JASTA has already been watered down to the point it poses no threat.
In an article entitled “The Senate Killed JASTA, Then Passed It,” University of Texas law professor Steven Vladeck argued that in order to placate the bill’s critics, sponsor Sen. John Cornyn made it “much, much weaker.” Congress raised the bar for plaintiffs to prove a foreign state’s complicity in a terror attack, he notes. More significantly, as a result of deliberations with the State Department (which was very much against JASTA from the start), lawmakers included a “stay” amendment, allowing 180-day holds on cases with limitless extensions.
“The Cornyn substitute version of JASTA conveniently arms a judge who would rather not wade into a dispute with such thorny and fraught foreign-policy implications with an easy way to put that dispute on hold indefinitely,” Vladeck writes.
A spokeswoman for Cornyn’s office acknowledged to TAC that both Sens. Lindsey Graham (R-S.C.) and Bob Corker (R-Tenn.) held up the legislation until changes were made. “This legislation has been pending really since 2009, and we’ve worked through it
with a number of members,” the spokesperson said, addressing “concerns that they have expressed along the way in order to modify the legislation and build the consensus that we now have achieved.”
Graham told reporters he was satisfied JASTA would help the victims pursue the justice they were seeking without making allies like Saudi Arabia more vulnerable. That May vote was unanimous, and the Senate voted 97-1 in September to override Obama’s veto. (The House voted 378-77 to override the veto.)
“As far as I’m concerned, the stay provision does not weaken the bill,” said Strada (of Pass JASTA), adding that the State Department had the ability to stay proceedings all along. “Here, we say it has to be done in good faith” and “in the light of day.”
She said the plaintiffs and the lawyers are happy with the final version and do not see the changes as an evisceration of its original intent. Similarly, Haefele acknowledges the bill was tightened to allay fears, but says it still gives victims the tools they need to bring their cases to court.
“If you had a stay and it could be indefinite, why would the president risk his one and only veto to override it?” Strada questioned. “There is something there.”
Are U.S. Military Forces Abroad Vulnerable Now?
Once the administration and the bill’s detractors exhausted all means to defeat the bill outright and it became law, a new narrative almost immediately emerged suggesting that members had sticker shock.
When pressed after the veto by reporters about whether JASTA would open doors to retaliatory measures against U.S. troops overseas, Senate Majority Leader Mitch McConnell suggested “it’s worth further discussion,” according to the The Hill, which also quoted House Speaker Paul Ryan as saying, “I would like to think there would be work done” to ensure troop protection.
This had been spurred by a letter to Cornyn from none other than Graham and Corker, who said they wanted to make changes during the lame-duck session in December. There were grumblings that the bill had never been debated on the House and Senate floors.
McConnell further expressed that “it seems to be a failure to communicate early about the potential consequences of a piece of legislation [that] was obviously very popular.”
This seems on its face to be disingenuous, considering that he and his Doubting Thomases in the Senate voted for the bill in May after the question about the vulnerability of the troops had been discussed and addressed.
Cornyn’s office makes that clear. In fact, the senator told reporters at the time that the way JASTA was written protects individuals and should not inspire reciprocal legislation overseas. “I do believe that there’s going to be some saber rattling, some threats, but I think that they are hollow,” Mr. Cornyn told the New York Times.
“In most cases when you read all these articles making these broad claims, nobody is sourcing where it is coming from. That is because they can’t. When you look at the language of the bill, it addresses the immunity of a foreign state, not the immunity of any individual,” said Haefele, because diplomats, consulate offices, and troops are protected under myriad international laws and treaties, including status-of-forces agreements and the Vienna Convention on Diplomatic Relations. “There is no risk.”
The critics “are wrong,” Strada said, “and it hurts to hear them says things like that. Congress would never vote 97 to 1 for anything that would put our troops at risk.”
Who Gets the Last Word?
Right now, the 9/11 families do, unless the senators make good on their threats to reopen the debate before the close of this Congress. (The chances of that appear slimmer by the day.) Meanwhile, Haefele and his team are shepherding some 6,000 of the cases forward together on a consolidated docket and an amended case is now headed back to the U.S. District Court.
At the same time, the U.S. State Department is allegedly working with Saudi officials to help “fix” the law. The Saudis threatened to release billions in U.S. assets in the event the law passed, and it is not clear whether they will follow through. We do know they could face billions of dollars in damages if the 9/11 plaintiffs ever win in court.
“We’re not even at the discovery stage yet. There is a substantial amount of evidence out there, a huge amount of evidence connecting the Kingdom to the 9/11 attacks,” said Haefele. “If not, why is the Kingdom so upset about this bill?”
Kelley Beaucar Vlahos is a Washington, DC-based freelance reporter.