Administrator’s Note: The answer is yes.
The law now says they can, but the debate rages on.
By Kelley Beaucar Vlahos
December 14, 2016
The American Conservative
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.