Suing the Saudis Would Make the U.S. a Legal Target

Never forget.

Photographer: Kena Betancur/AFP/Getty Images

It's not easy to defend an obscure legal doctrine against claims for justice from the victims of the worst terrorist attack ever to take place on U.S. soil. But doing so has become a necessity, since Congress has decided to rewrite U.S. law on sovereign immunity.

Last week the Senate unanimously passed the Justice Against Sponsors of Terrorism Act, which authorizes U.S. courts to hear civil claims for monetary damages against a foreign state accused of direct involvement in a terrorist act harming an American citizen in the U.S. Under current law, almost all foreign nations are immune from lawsuits in U.S. courts.

While the bill doesn't name any particular country, it would enable the 9/11 families to sue Saudi Arabia. Fifteen of the 19 hijackers were Saudi citizens, and some officials and members of the royal family have long been accused of involvement in the plot. Despite its wide support, President Barack Obama has promised to veto the bill.

A veto would be well deserved, and before members of Congress try to override it, they might want to consider the value of sovereign immunity -- and the nation that benefits from it the most. (Hint: They represent it.)

If other nations follow the Senate's lead, no country would be a bigger, better, richer target for lawsuits than the U.S. In Cuba and Iran, in fact, courts have already issued billions of dollars in judgments against Washington. Changing U.S. law might give them and other nations so inclined a chance to actually collect on such rulings.

This potential legal liability would hang over the U.S. fight against global terrorism, and leave the government liable for actions by U.S. troops in Afghanistan, Iraq, Syria and elsewhere. U.S. aid to Israel, for example, could leave it open to suits from Palestinians injured by Israeli troops. The entirety of U.S. foreign policy could be put on trial under the guise of seeking monetary justice.

Acknowledging the importance of sovereign immunity does not require overlooking the Saudis' role in the rise of Muslim extremism: They have spent decades and billions of dollars exporting their extremist Wahhabi version of Islam. Many Saudi charities and individuals have directly supported violent groups such as al-Qaeda.

But the response to this activity properly resides in the realm of diplomacy and trade policy, not in court. It is a slow, uneven process, but change is possible -- and there are signs that the Saudi ruling family realizes this.

No one can deny the right of the 9/11 families to truth and justice. They have already received billions from the victim compensation fund established by Congress, and two separate government investigations spent years producing the 9/11 Commission report.

A more productive exercise of congressional authority would focus on that report -- specifically, the so-called "28 pages" from the initial 9/11 investigation that remain under seal. Many of the victims' families, as well as other Americans, want to know what is in those pages.

Some lawmakers who have seen them say there is nothing damaging to national security in them and they should be released. Others, including members of the 9/11 Commission staff, say they are filled with hearsay implicating prominent Saudi citizens.

A compromise is not hard to envision: Release the pages, along with an explanation from the commission as to why the allegations don't hold up. Such an agreement would also serve the cause of truth and justice -- without jeopardizing America's moral and legal standing in the rest of the world.

To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at davidshipley@bloomberg.net.