The prospect of 9/11 victims suing Saudi Arabia in U.S. federal court moved closer to reality last month when the Senate unanimously approved S.B. 2040, a bill allowing individuals to sue state sponsors of terrorism. However, the logistics of terrorism-related litigation remain shrouded in mystery, said Karen Greenberg, director of Fordham Law’s Center on National Security and author of the recently published book Rogue Justice: The Making of the Security State.
The Justice Against Sponsors of Terrorism Act (JASTA) would carve out an exception to a 1976 law immunizing foreign governments from lawsuits in American courts, thus making it possible for 9/11 survivors and victims’ families to sue Saudi Arabia, birthplace to 15 of the 19 hijackers whose attacks on the World Trade Center and Pentagon killed almost 3,000 Americans.
The 9/11 Commission Report, released in 2003, makes clear that high-ranking members of the Saudi family were not involved in state-sponsored terrorism, said former U.S. counterterrorism czar Richard Clarke during a Center on National Security conference at the Law School on April 26. JASTA supporters suggest the report’s 28 redacted pages might provide proof Saudi officials and other Saudis living in America sponsored the hijackers prior to 9/11. Clarke predicted the report’s secret portion would be released publicly sometime in June.
One lens through which to view JASTA, Greenberg explained, is as a “compensatory measure” in light of America’s failure to hold criminal trials for alleged 9/11 mastermind Khalid Sheikh Mohammed and four other alleged co-conspirators currently held at Guantanamo Bay.
“We never tried them,” Greenberg said. “We’re never going to try them it seems—at least not in the military commissions system where they now face charges. The system simply does not work.”
There are “tremendous psychological repercussions for not trying those defendants,” Greenberg said, noting that, if criminal trials were designed to help victims heal, the United States failed in not bringing the alleged terrorists before American criminal juries. Proposed civil suits could perhaps begin to fill that massive hole.
The House of Representatives must still vote on the bill, after the House Judiciary Committee holds a hearing to discuss it at a date to be determined. President Obama has promised to veto the bill, if the House approves it. The bill’s critics say its removal of sovereign immunity could destabilize the Middle East and open up Americans to potential liability for overseas actions.
According to Greenberg, the bill leaves numerous questions unanswered: who will sue whom, what amount will they sue for, what is the evidentiary basis for the suit, and how would plaintiffs collect their money if they win their suits, among other issues. Additionally, the Saudi royal family has threatened to sell $750 billion in American securities and other assets in response to the bill passing.
Talk of civil suits has raised questions about the relationship between the United States and Saudi Arabia, one that Greenberg noted has historically been “pretty strong.”
“That relationship is up for debate in Washington right now,” she said.
Presumptive Democratic presidential nominee Hillary Clinton has voiced support for the 9/11 bill, as have senators Bernie Sanders and Ted Cruz. New York Democrat Chuck Schumer and Texas Republican John Cornyn co-sponsored the bipartisan bill.
“It’s hard not to support something the victims want,” Greenberg said.
There is some recent precedent for individuals suing for terrorism-related damages, though it does not involve individuals from one nation-state suing the government of another nation-state.
Greenberg pointed to a $1 billion settlement between Arab Bank and 300 Americans for the bank’s sponsorship of Hamas in two dozen terrorist attacks on Israelis in the early 2000s. That civil trial occurred at the Federal District Court in Brooklyn.
