The families of Sept. 11 victims won a major victory last week when Congress enacted a law allowing them to sue Saudi Arabia — but their battle is far from won.
The fight now moves to a courtroom in lower Manhattan, where for 14 years lawyers have been grappling with a sprawling, consolidated lawsuit that covers the overwhelming majority of 9/11 victims.
Now, thanks to a change to the Foreign Sovereign Immunities Act (FSIA) that allows victims to sue governments for planning done outside of the United States, lawyers for the victims can push to have the kingdom restored as a defendant.
But even though lawyers from both sides expect the original case against the kingdom to be re-litigated under the new law, onlookers say the plaintiffs will face an uphill climb in convincing Judge George B. Daniels that Saudi Arabia was complicit in the Sept. 11 strikes.
“Based on what I know, I don’t think they’re going to be able to do it. I don’t see any way they can,” said former Attorney General Michael Mukasey, who opposed the passage of the lawsuit bill in Congress.
“It’s still their burden to prove their allegations, which right now is based on a lot of innuendo and leaps of logic,” said Waleed Nassar, a partner at Lewis Baach, which represents two of the Saudi charities named in the case.
The victims’ case is built on two theories about alleged Saudi involvement in the 9/11 attacks, both of which Riyadh denies.
The Kingdom’s Ministry of Islamic Affairs is at the center of both theories.
Under one argument, Saudi government employees affiliated with the Ministry aided the hijackers, 15 of whom were Saudi.
Under the second theory, Saudi charities operating under the supervision of the ministry provided financial and ideological support to Al Qaeda in the decade leading up to the attacks, giving Osama Bin Laden the resources he needed to develop the global strike capabilities employed on Sept. 11.
Saudi Arabia says that the implicated charities are private organizations, but according to Waleed, they do receive some funding from the government.
For many, the evidence is simply too tenuous.
“They would have to show the charities funded 9/11,” Mukasey says, which would likely be impossible given that the attack was carried out at a cost of under $500,000.
“That is a pittance. Osama Bin Laden could have taken that out of petty cash,” he says. “It’s not simply that, oh, ‘you funded a religious philosophy that then generated — that then generated — that then generated. That’s too long a chain of causation.”
Opponents of the change to the immunity law have characterized the suspicions around Saudi Arabia’s role in the attacks as a conspiracy theory.
The 9/11 Commission’s book-length report found “no evidence that the Saudi government as an institution or senior Saudi officials individually funded” Al Qaeda.
But Sean Carter, one of the lead attorneys for the victims, says the Commission report — and specifically the “most carefully-worded sentence ever written” — has been “grossly misunderstood.”
“In writing it that way, they left clearly open the possibility that they had found evidence that elements of the Saudi government and individuals who were not senior Saudi officials had provided support to Al Qaeda,” Carter told The Hill.
Before Congress passed the Justice Against Sponsors of Terrorism Act (JASTA) last month, the victims’ families had tried to convince a court that two low-level Saudi officials in California had knowingly assisted in the terrorist plot.
Fahad al-Thumairy and Omar al-Bayoumi both had at least superficial contact with two of the hijackers in the months leading up to the attack, but both denied any knowledge of the plot.
The court ruled that whatever happened, there wasn’t enough evidence to prove that either man was acting within the scope of his employment of the Saudi government.
The role of both men will likely come under more scrutiny in the months ahead.
The case could also open up the Saudi government to the discovery process, including depositions of Saudi officials — something Nassar says he doesn’t anticipate the kingdom will be able to avoid.
According to Carter, the victims’ lawyers will seek information related to “the true character of the relationship of the Ministry of Islamic Affairs to these charities” and more information about Bayomi, whom they believe to be Saudi agent.
Saudi officials have responded angrily to the adoption of JASTA, arguing that it undermines important principles of sovereign immunity and will “negatively affect all countries, including the United States of America.”
They also have reportedly threatened to sell off hundreds of billions of dollars in American assets in order to protect them from being frozen by court rulings.
If Daniels does award damages to the victims, Mukasey notes, “It’s a scenario that I see the Saudis resisting by moving their assets out.”
But any resolution to the case is likely a long ways off.
“The first cased filed in late 2002 and we’re still in discovery,” Nassar said. “The notion that there would be an actionable judgment against Saudi Arabia that the plaintiffs’ can act upon strikes me as several years away from being the reality on the ground.”
In fact, he says, since JASTA has cleared the way for Riyadh to be restored to the case, things are likely to move even more slowly.
“If Saudi gets added back into this case, you can just see that the pace of this is going to slow down even more because you’re going to have a sovereign trying to get up to speed in terms of document production and discovery,” he says.
Carter says he also expects a judgment to be “years away.”
And despite dire warnings from opponents of the bill, lawyers on both sides of the suit say JASTA is unlikely to spur bonanza of new lawsuits.
While enterprising lawyers might file some suits, they will likely be consolidated under the same multidistrict litigation in the Southern District of New York.