John R. Houk - Editor
Here are a series of posts I discovered after cross posting
the New York Sun’s essay - Obama v. 9/11 Families (of which I included a short relevant intro)
- at three of my active blogs.
JRH 4/20/16
**********************
The 9/11 Civil Litigation and the Justice Against
Sponsors of Terrorism Act (JASTA)
April 18, 2016 at
8:02 AM
For lots of readers, I suspect Saturday’s front-page New York
Times story by Mark Mazzetti was their first exposure
to the ongoing efforts by 9/11 victims and their families to sue the government
of Saudi Arabia and other entities in U.S. courts over their alleged
role in providing financial support for the September 11 attacks. Indeed,
allegations of Saudi involvement are also back in the public eye in
connection with the possible declassification of 28 pages of the 9/11
Commission’s Final Report that supposedly deal with the role and responsibility
of various senior Saudi officials.
In a nutshell, (1) the 9/11 plaintiffs’ claims–that the
Saudi government and a wide range of other entities, including banks, provided
material support to the perpetrators of the 9/11 attacks–have gone
nowhere, thanks to a series of shifting (but now largely stabilized) court
rulings concerning the Foreign Sovereign Immunities Act (FSIA)
and the Anti-Terrorism Act (ATA);
(2) Congress is now considering legislation–the Justice Against Sponsors of Terrorism Act (JASTA)–that
would in effect overrule each of those holdings; and (3) the Obama
administration is, as Mark’s story explains, aggressively lobbying against that
legislation, out of fears over the potential diplomatic and economic
consequences of U.S. court judgments against the Saudi government that could
run into the billions of dollars, and concerns over reciprocity from
foreign countries.
In this post, I aim to provide a more detailed
explanation of the legal background against which JASTA is being considered–so
folks can better understand exactly what courts have held to date, and why
JASTA could be a big deal, albeit in a very narrow class of cases.
I. The FSIA and the Terrorist
Attacks Litigation
The shifting litigation sands vis-a-vis Saudi
Arabia date back to a pair of 2005 district court rulings (In re
Terrorist Attacks I and II), which threw out claims
against the Saudi government and other state-run entities on the basis of
the FSIA’s “discretionary function” exception. That exception preserves the
sovereign immunity of foreign states even over non-commercial torts
(for which the FSIA otherwise allows suits) if the tort resulted from
discretionary conduct on the part of a foreign sovereign (e.g., whether
to provide financial support to particular entities with links to terrorist
organizations).
On appeal, the Second Circuit affirmed in In re Terrorist Attacks III,
albeit on different grounds: The Court of Appeals there held that a
different FSIA provision, waiving the sovereign immunity of “state
sponsors of terrorism,” was the exclusive means for seeking to
hold a foreign sovereign liable for its involvement in acts of terrorism, and
so the fact that the State Department had not designated Saudi
Arabia a “state sponsor of terrorism” precluded liability under any of the
FSIA’s other exceptions (including the non-commercial tort
exception) for terrorism-related claims. The court also held that it lacked
personal jurisdiction over many of the other defendants (a holding that the
Second Circuit would expand upon in its April 2013 decision in Terrorist Attacks IV).
The plaintiffs in Terrorist Attacks III sought
certiorari, at which point the Supreme Court called for the views of the
Solicitor General. In its “CVSG” brief, the U.S.
government recommended that the Court deny certiorari–albeit on an alternative
ground from that relied upon by the Second Circuit: In then-Solicitor General
Elena Kagan’s view, the FSIA could theoretically allow a
foreign sovereign to be held liable for terrorism-related non-commercial torts
even if it was not a state sponsor of terrorism, but only
if, as the Supreme Court had already interpreted the non-commercial tort
exception in Amerada Hess, the
“entire tort” took place within the territorial United States (as opposed to
the injury arising from the tort).
As the government argued, even taking the plaintiffs’
allegations as true, a material amount of the allegedly tortious conduct
(including the alleged help in financing the 9/11 attacks) took place
overseas. Thus, the government offered a far narrower (and less vulnerable)
ground on which to defend the Second Circuit’s ruling–which may have had a lot
to do with the Supreme Court’s subsequent denial of certiorari, which
appeared to conclude (at least at the time) the Terrorist
Attacks litigation.
Things would indeed have ended there, except that, in 2011,
the Second Circuit overruled its holding in In re Terrorist
Attacks III, concluding in a different case (Doe v. Bin Laden)
that the exceptions to the FSIA for non-commercial torts and state
sponsors of terrorism were wholly unrelated–and therefore provided independent
grounds on which to hold foreign sovereigns liable in U.S. courts. In other
words, under Doe, a foreign sovereign that is not a
“state sponsor of terrorism” can still be held liable for
terrorism-related conduct under the FSIA, so long as one of the other
exceptions–including the non-commercial tort exception–applies.
The Doe ruling led the Terrorist
Attacks plaintiffs to file a Rule 60(b) motion for relief from the
judgment in their earlier case, which provoked its own round of litigation,
culminating in the Second Circuit’s December 2013 ruling that
the plaintiffs were entitled to relief from the earlier
judgment, which sent the case back to the district court for (re-)litigation of
the original merits. Finally, last September, the district court nevertheless granted Saudi Arabia’s renewed motion to
dismiss based upon the FSIA–because, as the
U.S. government had argued in its 2009 CVSG brief in Terrorist
Attacks III, the “entire tort” did not take place within
the territorial United States, and so the non-commercial tort exception
did not abrogate Saudi Arabia’s sovereign immunity. That ruling itself is
now being appealed to the Second Circuit–so the underlying litigation remains
very much ongoing…
II. The Anti-Terrorism Act and
Aiding-and-Abetting Liability
Although the effort to hold the Saudi Arabian
government liable notwithstanding the FSIA has received most of the headlines,
there have also been concerted efforts by the 9/11 families to hold
private individuals and entities liable under the Anti-Terrorism Act–which
creates civil remedies for U.S. nationals to obtain triple damages against
those responsible for injuries arising out of “an act of international terrorism,”
but, notoriously, does not specify the parties against which such
liability may be pursued, or the theories upon which such liability may be
predicated.
As relevant here, the biggest open question is whether
the ATA allows theories of “secondary liability,” i.e., whether
claims may be maintained against entities that were
not directly responsible for the underlying act of international
terrorism, but that somehow supported it (including by aiding and abetting
the perpetrators). Both the Second and Seventh Circuits (the
latter sitting en banc) have expressly held that the ATA does not allow claims
based upon common law understandings of secondary (or accessory) liability,
although the Seventh Circuit in Boim III nevertheless adopted
an expansive theory of primary liability–what Judge Posner called “primary
liability . . . [with] the character of secondary liability.” As he explained,
“In addition to providing material support after the effective date of section
2339A, a donor to terrorism, to be liable under section 2333, must have known that
the money would be used in preparation for or in carrying out the killing or
attempted killing of, conspiring to kill, or inflicting bodily injury on, an
American citizen abroad.” Indeed, the Seventh Circuit explained, such
not-quite-secondary liability requires proof of intentional misconduct–a high
(and potentially insurmountable) hurdle to holding banks, governments, and
other entities liable on a theory that they did nothing more than provide
material support to the perpetrators of the underlying acts.
And the Second Circuit subsequently held that the
ATA also requires proximate causation, i.e., that the tortfeasor’s
contribution be a “substantial factor in the sequence of responsible causation
and whose injury was reasonably foreseeable or anticipated as a natural
consequence.”
I don’t mean to get lost in the doctrinal weeds (which are,
as should be clear, quite densely packed). The larger point is that these
circuit-level decisions, together with the nature of the 9/11 attacks
themselves, have made it difficult to use the ATA to impose any civil
liability against those indirectly responsible for September 11.
III. JASTA
Understanding this litigation background should help to put
into perspective exactly what JASTA does. The bill passed the Senate but died
in the House in the 113th Congress, and has, to date, only gotten out of the
Senate Judiciary Committee in the 114th Congress. As relevant here, JASTA would
work four material changes to existing law:
1) It
would amend the non-commercial tort exception to the FSIA to
abrogate sovereign immunity in tort suits “in which money damages are
sought against a foreign state arising out of physical injury or
death, or damage to or loss of property, occurring in the United
States and caused by the tortious act or omission of that foreign state or of
any official or employee of that foreign state while acting within
the scope of the office or employment of the official or employee (regardless
of where the underlying tortious act or omission occurs),
including any statutory or common law tort claim arising out of an act
of extrajudicial killing, aircraft sabotage, hostage
taking, terrorism, or the provision of material support or resources for
such an act, or any claim for contribution or indemnity relating to a
claim arising out of such an act.”
2) It
would amend the ATA to expressly allow aiding-and-abetting liability not in
all cases, but in cases arising out of an act of international terrorism
“committed, planned, or authorized” by a designated Foreign Terrorist
Organization (FTO): “[L]iability may be asserted as to any person who aids
and abets, by knowingly providing substantial assistance, or who
conspires with the person who committed such an act of international terrorism.”
3) It
would amend the ATA to allow personal jurisdiction against such entities to the
constitutional limit “for acts of international terrorism in which any
national of the United States suffers injury in his or her person,
property, or business by reason of such an act in violation of
section 2333.”
4) It
would also amend the ATA to repeal the prohibition on suits against “a foreign state, an
agency of a foreign state, or an officer or employee of a foreign state or an
agency thereof acting within his or her official capacity or under color of
legal authority.”
JASTA’s amendments to the FSIA and ATA would apply to any
civil action “pending on, or commenced on or after, the date of enactment
of this Act; and . . . arising out of an injury to a person, property, or
business on or after September 11, 2001.” In other words, the new
law would apply to some pending cases–all those in which
the underlying injury took place on or after September 11. Claims arising
before September 11 would, presumably, not be covered.
IV. Taking Stock
It is certainly Congress’s prerogative to expand the scope
of statutory liability that it created in the first place. And it’s hard to
argue that amending the Anti-Terrorism Act to allow aiding-and-abetting
liability (and more expansive personal jurisdiction) against private entities
raises foreign relations and diplomatic questions nearly as grave or fraught as
those provoked by the FSIA amendment.
The much more sensitive part of JASTA is the FSIA
amendment and the last ATA amendment–which could be especially
powerful for tort claims against foreign sovereigns that (1) are not designated
as state sponsors of terrorism; but (2) could nevertheless be held liable in
tort for “extrajudicial killing, aircraft sabotage, hostage
taking, terrorism, or the provision of material support or resources for”
an act of international terrorism within the United States, even where
much of the underlying tort occurred overseas. At least at the moment,
that basically appears to be at most a class of one–to wit, Saudi Arabia, at
least if the allegations in the pending lawsuits are true.
Although it’s easy to be sympathetic to the plaintiffs in
the Terrorist Attacks litigation, as Mark explained in
his Times article,
Obama administration officials
counter that weakening the sovereign immunity provisions would put the American
government, along with its citizens and corporations, in legal risk abroad
because other nations might retaliate with their own legislation. Secretary of
State John Kerry told a Senate panel in February that the bill, in its current
form, would “expose the United States of America to lawsuits and take away our
sovereign immunity and create a terrible precedent.”
Those reciprocity considerations, combined with the concerns
about the United States’ diplomatic relations with Saudi Arabia and the
potential economic consequences if, as a result of the bill, Saudi Arabia
seeks to withdraw as many of its financial resources from U.S. territory as
possible, are what potentially makes JASTA such a fraught proposition.
I don’t have a strong position on whether Congress
should enact JASTA’s FSIA amendment or the last amendment to the ATA,
largely because I’m not in a good position accurately to balance
the ramifications of enacting JASTA against the
unquestioned entitlement of the 9/11 victims and their families to appropriate
legal relief, or to assess whether, if the FSIA and last ATA amendment were
excised, JASTA’s amendments to the rest of the ATA would still go a
sufficiently long way toward providing the 9/11 victims and their families with
meaningful judicial redress. Moreover, I suspect reasonable minds
will disagree about which of these compelling but competing considerations
should receive greater weight. My hope, though, is that this post will at least
help to illuminate what the legal obstacles to relief for the 9/11 families
have been to date, what JASTA would do to eliminate them, and why,
per Mark’s story in Saturday’s Times, it has proven so
controversial.
Update (4/18/2016, 6:14 p.m. EDT): This
post has been revised to clarify the effect of JASTA’s fourth provision–which
would not create a new exception to liability for the U.S.
government and its officers, but would rather excise the existing
bar on liability for foreign states and their officers. Thanks to a careful
reader for prompting this important clarification!
Steve Vladeck is co-editor-in-chief of Just Security. Steve is a professor of law at
American University Washington College of Law. Follow him on Twitter (@steve_vladeck).
+++
Saudis Warn US of
Economic Retaliation Over 9/11 Bill
A bi-partisan bill has been proposed in Congress that would allow
victims of terrorist attacks to sue foreign governments that are responsible.
April 19, 2016
Saudi Arabia has threatened economic
retaliation if the U.S. passes pending legislation that would
allow victims of terrorist attacks to sue foreign governments that are
responsible.
The bipartisan bill, co-sponsored by Sen. Chuck Schumer,
D-New York, and Sen. John Cornyn, R-Texas, would permit victims of 9/11 to sue
the Saudis and other financial partners of terrorism. The Obama administration
is vigorously trying to block the bill.
Saudi Arabia warned it will sell off hundreds of billions of
dollars of American assets if the bill is passed. Delivering the message
personally in Washington, Saudi Foreign Minister Adel al-Jubeir told Congress
Saudi Arabia would sell $750 billion in treasury securities and other assets
before they would be in jeopardy of being frozen by American courts.
Saudi Arabia denied involvement in the 9/11 attacks, however,
the official U.S. government report on the attack contains 28 censored pages on
the topic of “foreign support for the September 11
hijackers.” Investigators say these pages confirm the Saudi’s role in the
2001 attacks that claimed the lives of close to 3,000 people and injured more
than 6,000.
For years, the Saudis have asked for the release of the
censored pages, but the Bush administration said disclosure would damage the
U.S.’ ability to gather intelligence on terrorists. The Obama administration
also refused to release the redacted pages.
Fifteen of the 19 hijackers were from Saudi Arabia. Other evidence of Saudi
involvement in the terrorist attacks includes information
leaked from the censored pages including the documentation of a series of phone
calls between one of the hijackers’ Saudi handlers in San Diego and the Saudi
Embassy, and the transfer of $130,000 from then-Saudi Ambassador Prince
Bandar’s family checking account to one of the hijacker’s handlers in San
Diego.
Zacarias Moussaoui, the so-called “20th hijacker,”
who was sent to prison for his role in the attacks said members of the Saudi
royal family donated funds to
al-Qaeda. He also said he personally met a Saudi diplomat in
Washington to plot the assassination of the U.S. president using a surface-to
air missile. The two discussed bombing the U.S. Embassy in London as well.
"The Saudis have known what they did in 9/11, and they
knew that we knew what they did, at least at the highest levels of the U.S.
government," said former Sen. Bob
Graham, co-chair of the 9/11 congressional inquiry commission.
Families tried in the past to sue the Saudi government, but
the cases were rejected due to a 1976 law granting foreign nations immunity
from lawsuits in the American judicial system.
"I think part of the concern is that somehow this is a
thumb in the eye to Saudi Arabia, a valuable ally," said Senate-sponsor
Cornyn. "It's not open-ended and it's not targeted at Saudi
Arabia."
Cornyn also dismissed the threats from Saudi Arabia.
"It's seems overly defensive to me and I doubt they can do it," he
said. "I don't think we should let foreign countries dictate the domestic
policy of the United States."
Other analysts say it is unlikely the Saudis will follow
through on their threats.
All of the presidential candidates support the bill, expect
John Kasich, who has not commented on it to date.
+++
IPT's Hoekstra:
Public Deserves to See Full 2002 Congressional 9/11 Report
Relevant Radio 'The Drew Mariani Show'
April 19, 2016
April 19, 2016
[Blog Editor: To listen to the audio, you can either go
to the IPT post or go to this podcast link: http://relevantradio.streamguys.us/DM%20Archive/DM20160418c.mp3]
[Start transcript]
Drew Mariani:
Hey, when the planes slammed into the World Trade Center and the Pentagon back
on 9/11, remember that, Osama bin Laden was revealed as the mastermind behind
it. We knew at the time that there was an obvious Middle Eastern terrorism
link. What we didn't know was what countries were involved and to what extent.
We went into Afghanistan, well, because you know that's where bin Laden was
holed up and why we sent troops into Afghanistan, and you know we didn't know
about the rest. The most disturbing was that we didn't know that Saudi Arabia,
where bin Laden was born and raised, could have played a role in this. You know
Congress investigated the events surrounding 9/11; they came up with a 400-page
report, and that was released to the public. And I should say most of it was
released to the public. I think they held back about 28 pages and they're still
labeled as classified. But what's contained on those pages is really fodder for
a lot of conversation right now. It's suspected to contain information on Saudi
Arabia's role on that fateful day. Right now Saudi Arabia has told the Obama
administration and members of Congress that it's going to sell off
hundreds-of-billions of dollars' worth of American assets, it will be a huge
asset dump held by their kingdom, if Congress passes a bill that would allow
the Saudi government basically to be held responsible in American courts for
any role in September 11th in 2001, when those attacks took
place. The Obama administration has lobbied Congress to block the bill,
according to some officials. But the Saudi threats have been of course the
subject now of intense discussion in recent weeks between both lawmakers and
officials from the State Department and the Pentagon. And a number of officials
have warned basically senators of diplomatic and economic fallout from you know
any sort of legislation. So what's going to happen? And what is the truth
behind all this? Joining me right now is Pete Hoekstra. He's the Shillman
Senior Fellow with the Investigative Project on Terrorism, the former Chairman
of the U.S. House Intelligence Committee, and former member of the House
Committee on Education and the Workforce. And Peter, thank you for your time.
It's good to have you back. I know you just came out with a book, I want to
plug that for you too. It's called 'Architects of Disaster: The Destruction of
Libya. It came out about four months ago, folks, you may want to check that
out. And you can learn more about him at investigativeproject.org. This is a
big story. How do you know how do we know Saudi Arabia is involved and you know
what do you think's going to happen ultimately with you know Congress and
possible legislation?
Pete Hoekstra:
Well a couple of things, number one – I've been advocating for the last period
of time that these 28 pages be made public, that if there need to be some
redactions to protect sources, those redactions be made, but overall that the
public 13 years after this report was completed, now almost 15 years after
9/11, you know they, the public deserves to see all of this information. And so
it should move forward. In regards to the legislation that Senator Cruz is
pushing, I'm not quite sure about a couple of things. I'm you know I'm not sure
why we need to just highlight Saudi Arabia. Any country –
Mariani:
Right.
Hoekstra: –
that is identified with terrorism should be able to be held accountable; I'm
thinking of Iran, should be able to be held accountable. So just singling out
Saudi, I'm not sure that that is appropriate. There's a number of countries
that may in one form or another be somewhat supporters of terrorism against
U.S. property, U.S. goods or U.S. persons. So let's make sure that they can be
held accountable. I think that the action that Saudi Arabia is talking about,
and they're not talking about disinvesting in the United States to punish the
United States, the explanation that they're giving is – we've got to disinvest
in the United States because if we actually become liable and the courts find
for some defendants that we are liable and you know hold us accountable or hold
a judgment against us for X-hundreds-of-millions or a billion dollars, at that
point in time the U.S. courts may come and seize U.S. assets that we own. And
so what we want to do is to protect ourselves. We're going to disinvest in the
United States so that a U.S. court can't freeze any of our assets. Oh, I think
their economy and our economy and their, the assets they hold in the United
States are so significant that they could never actually pull that off, pull it
off successfully. If they did they've have to do it at a fire sale.
Mariani:
Yeah.
Hoekstra: And
they wouldn't want to do that.
Mariani:
Yeah, I read earlier today that they would be forced to sell about 750-billion
dollars in Treasury securities and other assets. Again, I want to go back to
you know what would happen if this did take place. Let's take a worst-case
scenario, say this is pushed and it goes through, what happens if the
information is exposed and we find out Saudi Arabia had a, had something to do
with 9/11?
Hoekstra:
Well you know I've had access to those 28 pages. I think that this will, it
will raise more questions than what it will answer. OK? I don't think that
someone will read through there and they will find, or again, who knows – some
people may read it and they will see a smoking gun, others will read it and
they will see something different, but I think what it, you know my belief is
that what it will show is that you know this is not classified or a secret or
whatever, you know. The Saudis have for years been funding radical jihadism in
the form of funding radical mosques, believers in Wahhabism,
where much of this hatred and doctrine of jihadism comes from, and they've been
funding these mosques around the world. And so you know many of us have called
for them to stop the funding of these kinds of mosques for an extended period
of time.
Mariani: And
let me just ask you, because you've had access to those 28 pages, are there
other nations in addition to Saudi Arabia? It's kind of the sense that I'm
getting from you, it's not just Saudi Arabia, there may be other nations
involved?
Hoekstra: No,
I don't think if you go through there that you would see a litany of a number
of different countries; I'm just saying from my experience with terrorism –
Mariani:
Right.
Hoekstra: –
is that you know there are a number of countries that are involved in terrorism
and, or you know certain state governments, you know everything from the
Palestinian Authority –
Mariani:
Right.
Hoekstra: –
to Iran, and these types of things, that you know any type of legislation like
what Senator Cruz is proposing –
Mariani:
Right.
Hoekstra: –
shouldn't be limited to just Saudi. That's two very different issues.
Mariani: And
your mindset right now is that they should be released, the American public has
a right to know.
Hoekstra:
Yeah. And we ought to just make sure that, you know it's been 13 years since
I've seen them, that if there is any sensitive information in there regarding
sources or individuals that may have been the source of some of these
information, make sure you redact that information. But other than that, let
the information become public. It's been a long time.
Mariani:
Yeah, great. Before I let you go, because I only have a minute or two left –
Hoekstra:
Sure.
Mariani: –
you just came out with a book too, 'Architects of Disaster: The Destruction of
Libya.' I have not gotten the book or read it, but I would love to maybe have
you back to talk about it. Fill me in, what was your book about?
Hoekstra:
It's about what happened in Libya. We had a tremendous success story in Libya.
[Muammar] Gaddafi after years of being on the outside, you know supporting
terrorism against the United States and the West, culminating really with the
take-down of Pan Am 103. In 2004, he gave up his nuclear weapons program, he
gave, he paid reparations to the victims of his terrorist attacks, and he
became a partner in fighting radical jihadism with the United States, a
bipartisan success of a consistent policy for 20 years and finally Gaddafi
changed sides.
Mariani: Wow.
Hoekstra: In
2011, Secretary of State Clinton and President Obama decided that Obama needed,
or excuse me, that Gaddafi needed to go, they partnered with radical jihadists,
and they were successful in getting rid of Gaddafi. And what we now have is you
know for the last four years we've had a failed state. It's now part of the caliphate.
It's exporting ideology, it's exporting fighters, and it's exporting weapons to
Africa, to the Middle East and to Europe. It's been a disaster. It's, you know
and for eight years there it was a rock of stability and certainty in northern
Africa. And now it is the disaster of Libya, the destruction of Libya.
Mariani:
Yeah, the book is called 'Architects of Disaster: The Destruction of Libya.'
It's available at all major bookstores. And Pete, I want to thank you for your
time. Thank you for your service to the country and for the insight you're able
to offer. I always enjoy your, our conversations.
Hoekstra:
Hey, thanks for the invite.
Mariani:
Thank you.
Hoekstra: I
enjoyed being with you.
Mariani:
Check him out too, the website is investigateproject.org [sic],
investigativeproject.org, great site to check out.
[End transcript]
_____________
The 9/11 Civil Litigation and the Justice Against
Sponsors of Terrorism Act (JASTA)
_____________
Saudis Warn US of Economic Retaliation Over
9/11 Bill
_______________
IPT's Hoekstra: Public Deserves to See Full
2002 Congressional 9/11 Report
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