The Sept. 11 Lawsuit Bill Is Weaker Than It Appears

Congress is considering further weakening its law allowing suits against the Saudi government, but some say it’s useless as it stands.

Senate Majority Whip John Cornyn.

Tom Williams/CQ Roll Call via Getty Images

For 14 years families of Sept. 11 victims have tried unsuccessfully to use the courts to pin responsibility for the terrorist attacks on Saudi Arabia. Legal obstacles have blocked those efforts, but on Sept. 28, Congress passed legislation—overriding a veto by President Obama—advertised as clearing the families’ path. “We rejoice in this triumph and look forward to our day in court,” declared Terry Strada, whose husband, Tom, died at the World Trade Center and who heads 9/11 Families & Survivors United for Justice Against Terrorism.

A close inspection of the statute, however, reveals that last-minute changes diluted the law’s effectiveness. As a result, “it’s unlikely the 9/11 victims and families’ claims will get anywhere,” says Stephen Vladeck, a law professor at the University of Texas at Austin specializing in national security.

Survivors of the terrorist attacks and families of victims began suing the Saudi kingdom and various Saudi government-supported charities in 2002, arguing that the defendants bore at least partial responsibility for al-Qaeda’s assault; 15 of the 19 hijackers were Saudi. Riyadh has denied any hand in the attacks. The suits, which were consolidated in federal court in New York, ran up against a defense based on the concept of sovereign immunity, which in most circumstances protects foreign governments from private legal action in U.S. courts.

Plaintiffs in the Sept. 11 case allege, among other things, that Saudi officials in the U.S. assisted two of the hijackers in Southern California. The plaintiffs also claim that a Saudi religious official spent the night before the attacks in the same Virginia hotel as three hijackers. The Saudi government has argued that the plaintiffs lack sufficient evidence to prove any of these allegations. Lawyers representing the kingdom did not respond to a request for comment.

Seven years ago, the families and survivors—numbering about 9,000 individuals—began lobbying for legislation that would, in effect, instruct the courts that they were misinterpreting sovereign immunity law and to let the Sept. 11 litigation finally proceed to the substantive question of Saudi liability. Earlier versions of the legislation would indeed have accomplished that goal by allowing suits even when the defendant was a foreign country and most of the alleged wrongful conduct took place overseas.

The bill, known as the Justice Against Sponsors of Terrorism Act (Jasta), drew opposition from the Obama administration—and eventually the president’s veto—because of the likelihood that it would provoke the ire of Saudi Arabia, a key U.S. ally in the Middle East, and the possibility it would influence other countries to pass similar laws encouraging lawsuits against American soldiers, diplomats, and civilians. And within a day of the veto override, congressional leaders appeared to be backtracking from the statute—for the very reasons Obama cited. “I would like to think there’s a way we can fix so that our service members do not have legal problems overseas while still protecting the rights of the 9/11 victims,” House Speaker Paul Ryan told reporters.

The version of the law he pushed through Congress, over the opposition of an army of lobbyists for the Saudi government, included a series of compromises added by Republican Senator John Cornyn of Texas, a leading sponsor in the Senate. Seeking to achieve unanimous support from lawmakers, Cornyn made changes to accommodate concerns expressed by Republican senators such as Lindsey Graham of South Carolina and Bob Corker of Tennessee, who worried that the original version of the bill would provoke a backlash against the U.S., according to a Cornyn aide. Representatives of the Sept. 11 families and their lawyers approved the Senate changes, says one of the plaintiffs’ attorneys, Jerry Goldman: “All the law does is clarify existing U.S. law, nothing more, and that will help us.”

Vladeck, along with Harvard Law School professor Jack Goldsmith, says that’s not necessarily so. They point out that the amended version of Jasta includes a procedure—not found in the original—that allows the executive branch to seek to delay indefinitely any suit against a foreign country. This delay turns on the U.S. Department of State certifying that it’s negotiating a resolution of the claims against the foreign nation.

Other changes include the removal of a provision that would have made it easier for federal courts to hear claims against private Saudi defendants located overseas. Another excised part of the law would have allowed claims against foreign governments based exclusively on indirect support for Sept. 11. The substitute version of the legislation “is much, much weaker—for better or worse,” Vladeck wrote on a blog called Just Security.

The Sept. 11 plaintiffs face other hurdles. Lawyers for the Saudi defendants say they’re prepared to counter claims of complicity in terrorism, says Eric Lewis, an attorney for two charities targeted in the case, the Muslim World League and the International Islamic Relief Organization. “The notion that the Saudi regime would support al-Qaeda and Osama bin Laden is just crazy,” he adds.

The case will likely end up back in front of U.S. District Judge George Daniels, who dismissed it in September 2015 on foreign sovereign immunity grounds. Although he hasn’t addressed the merits of the claims against the Saudis, Daniels hinted strongly in his dismissal ruling that he wasn’t impressed by what he’d seen of the plaintiffs’ evidence so far.

The bottom line: Congress is considering further weakening its law allowing suits against the Saudi government, but some say it’s useless as it stands.

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