By Andrew Harris and Bob Van Voris
Families of Sept. 11 victims can now seek damages from Saudi Arabia after years of pressure on Congress, yet collecting anything may prove to be an impossible task.
By overriding President Barack Obama’s veto of a bill clearing the way for lawsuits against the Saudi government in connection with the 2001 attacks, lawmakers this week potentially put the key U.S. ally on the hook for tens of billions of dollars in liability.
But collecting a judgment against a foreign government is extraordinarily hard, according to David Strachman, a plaintiffs’ lawyer who has been trying to recoup more than $71 million in damages he won in a 2001 lawsuit against Iran for bankrolling those who carried out a 1997 triple-suicide bombing in Jerusalem.
“It’s very difficult against foreign sovereigns,” he said. Accumulating evidence proving another country provided material support is “tremendously difficult,” he said. Even with U.S. law permitting such suits, they’re tried before a judge, not a jury, leaving less room for popular sentiment.
The four-page measure carves out a new exception to sovereign immunity — the legal doctrine that protects foreign governments from lawsuits — if a plaintiff claims to have suffered injury in the U.S. from terrorism. It could breathe new life into thousands of claims filed by victims’ families against the Saudi government that had been in legal limbo.
A sovereign immunity law on the books since 1976 already contained an exception for terrorist attacks backed by countries on the State Department’s list of state sponsors of terrorism — such as Iran. The measure enacted this week alters the 1976 law to allow lawsuits against countries such as Saudi Arabia that aren’t designated state sponsors of terrorism if they’re found to have played any role in attacks that kill Americans on U.S. soil.
Fifteen of the 19 hijackers who perpetrated the 2001 attacks were Saudi citizens. The U.S. commission that investigated the 2001 attacks said in its 2004 report that it “found no evidence that the Saudi government as an institution or senior officials within the Saudi government funded al-Qaida.”
But long-classified portions of a congressional inquiry into the attacks that were released in July found that the hijackers may have had assistance from Saudis linked to their government. The kingdom has denied culpability and said in a statement Thursday that it hoped to work with lawmakers to revise the law.
“It is our hope that wisdom will prevail and that Congress will take the necessary steps to correct this legislation in order to avoid the serious unintended consequences that may ensue,” the Saudi foreign ministry said.
Opponents of the measure, including Obama, argued that opening the Saudis to liability could prompt that nation and others to take similar steps against the U.S. by targeting American troops with lawsuits. A lawyer and an international law professor say the bill may not provide the compensation or closure those victims’ families are seeking.
“I am concerned that this will do very little for the victims,” said Paul Stephan, an international law professor at the University of Virginia in Charlottesville. Testifying before a congressional panel on July 14, he opposed the measure, explaining, “were it adopted as law, would likely harm the U.S. by increasing its exposure to litigation abroad.”
He said then, and reiterated in an interview this week, that nations sued as sponsors of terrorism typically object to the suits as a violation of international law and refuse to participate. Victims’ families win judgments by default, but find it all but impossible to collect on them.
“In a few cases, the U.S. has disbursed funds to help satisfy those judgments, but then the money comes from the U.S. taxpayer,” Stephan said in an e-mail. “I don’t have any reason to believe that a suit against the Saudis will follow a different path.”
Families of Sept. 11 victims first sued Saudi Arabia in 2002. The federal court in Manhattan dismissed most of the claims in 2005 based on the law limiting suits against sovereign nations. The federal appeals court in New York reinstated claims against Saudi Arabia in 2013, then sent the case back to the lower court — which dismissed them again two years later.
The case is now back before the appeals court, which is considering whether the nation can be sued by families of the almost 3,000 killed in the attacks, hundreds of people who were injured and businesses that claim billions of dollars in property damage and business losses.
The new law clears the way for claimants to ask the appeals court to send the case back to the trial court, said Jim Kreindler, a top plaintiffs’ lawyer in the Sept. 11 litigation. “The potential liability is an enormous number,” he said.
Judgments against Saudi Arabia could total $27 billion or far more, based on claims awarded in lawsuits against Iran and other defendants in connection with the Sept. 11 attacks.
U.S. District Judge George B. Daniels in New York, who’s presiding over those cases, has determined that victim’s estates are due $2 million each for pain and suffering, plus 3.44 times that amount in punitive damages for a total of $8.88 million per person. Add to that the victims’ lost income, claims of family members, property damage and business interruption claims and the potential liability spirals into tens of billions of dollars.
Beating the kingdom in court will require information that may be difficult to obtain from the U.S. and Saudi governments, said Naomi Roht-Arriaza, a professor at the University of California’s Hastings College of Law in San Francisco.
“They have to be able to prove their case with evidence that the administration doesn’t object to on the grounds of national security,” she said by phone. “That could be a problem. They also so have to prove affirmative acts on the part of people in the Saudi government acting in their official capacity, not rogue officials, not people acting in their spare time.”
Thomas Corcoran Jr., a lawyer who represented Iran in the 1997 Jerusalem bombing case, questioned whether Saudi Arabia would even cooperate.
“Do you really think you can ask Saudi Arabia if they know what all their high-ranking people were doing during this time period and produce all documents relevant to that,” translate those papers to English from Arabic, and then take officials’ sworn statements? Corcoran asked.
“If I was Saudi Arabia,” he said, “I might think this was a bit extraordinary.”
Roht-Arriaza disputed the notion the measure would open the door to similar claims against the U.S., explaining that international law still largely protects nations from lawsuits. The law also contains a provision enabling the attorney general to seek a 180-day stay of any suit, renewable indefinitely, to allow for a U.S.-negotiated settlement, she said.
“It’s not clear to me that this is going to single-handedly bring down the edifice of sovereign immunity,” she said. “The administration has to work with worst-case scenarios, so they put forward what seemed to them to be a worst case scenario.”
Corcoran, however, called the legislation an act of hubris, warning it could lead to U.S. exposure for errant drone or artillery strikes.
“I can see why Congress did it. They’re dealing with the average guy,” he said. “But I have fears we might regret it.”