Seems like every recent 9/11 anniversary (the 15th is coming up this weekend) has provided us the chance to talk about a civil justice topic in the news. Last year’s post (and others before that) focused on Congress' failure to act on the James Zadroga 9/11 Health and Compensation Act - a bill to fund health care for sick and dying 9/11 workers. Fortunately, that bill finally passed!
This year, it’s the Saudi’s.
You may recall that in order to generate public support for the Iraq war, the Bush administration falsely and repeatedly linked 9/11 to Iraq. But it was the Saudi's all along. As Newsweek put it last year, "Since the early days after the Sept. 11 attacks, when news emerged that most of the airline hijackers came from Saudi Arabia, dark allegations have lingered about official Saudi ties to the terrorists. …"
Now we know as a result of, “newly declassified information from a 2002 congressional report on the 9/11 attacks, dubbed the '28 pages,'” that there was indeed “an indirect link previously hidden from the American public between the alleged al Qaeda operative and a company associated with a key member of the Saudi royal family, former Saudi Ambassador to the United States Prince Bandar bin Sultan.” Bandar was close to all U.S. Presidents going back to Reagan, but as CNN notes,
The key Saudi royal figure was known to have the closest relationship with George H. W. Bush, because of Iraq's invasion of Kuwait in the 1990 Gulf War. Saudi Arabia viewed the Iraqi aggression as a threat and supported the subsequent US military action.
"Bandar was in the Bush White House I would say every other day and in some periods every day. It was a very, very close relationship," said [former CIA analyst Bruce] Riedel. "And I think the President and Bandar genuinely liked each other."
This week, the U.S. House is expected to vote “on a bill that would allow 9/11 victims' families to sue Saudi Arabia in U.S. court,” which, if it actually passes, will be met with a likely veto. Writes ABC:
In July, the intelligence community released the classified 28 pages of Congress' first investigation in the Sept. 11 attacks. The information in the pages lays out a number of circumstances that suggest it's possible two of the 9/11 hijackers living in California had been receiving operational support from individuals loyal to Saudi Arabia in the months leading up to the attacks.
On the other hand, lawsuits in U.S. courts challenging terrorist activities aren’t so easy to bring, no matter what Congress does. Last week, writes Noah Feldman at Bloomberg, "In a significant setback for anti-terrorism litigation in the U.S., an appeals court on Wednesday reversed a $655.5 million verdict against the Palestine Liberation Organization and the Palestinian Authority." That suit was brought under the federal Anti-Terrorism Act, which says victims of “international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States." But,
The 2nd Circuit threw out the verdict, holding that the U.S. courts don’t have general jurisdiction over the PA and PLO under the Supreme Court’s precedent governing foreign defendants. The key test, which the justices laid out in a 2014 decision called Daimler AG v. Bauman, is whether a foreign defendant’s contacts with the U.S. “are so constant and pervasive as to render [it] essentially at home” in the U.S. forum where the lawsuit is brought.…
In essence, then, the 2nd Circuit was striking down the heart of the federal law as unconstitutional. Some unusual international terrorist acts might still fall under the specific jurisdiction of U.S. courts, for example if they were planned or partly carried out in the U.S. But those situations will be few and far between, and would have been subject to suit in U.S. courts even without the Anti-Terrorism Act.
The result shows a powerful tension between Congress’s desire to make international terrorism into a subject for U.S. courts and the Supreme Court’s strong tendency in recent years to restrict the reach of U.S. laws and courts over foreign entities. And because the court’s holding was constitutional, there’s nothing Congress can do about it.
We’ll see if Congress agrees.