Since 2005, the families of the victims of the September 11, 2001, terrorist attacks have been suing the Kingdom of Saudi Arabia, four Saudi princes, a charity known as the Saudi High Commission for Relief to Bosnia and Herzegovina, and a Saudi banker.
The four princes – Salman, Sultan, Naif and Turki al-Faisal bin Abdulaziz al-Saud – all hold government office.
Litigation to bring to justice and obtain compensation from Saudis who were involved in financing the 9/11 attacks or al-Qaida which developed those attacks has a complex history.
Referred to as the “In re Terrorist Attacks” cases (there are four groups of cases), they have hit wall after wall of US laws dating back to 1976, in particular the Foreign Sovereign Immunities Act, blocking lawsuits against sovereign nations or agents and instrumentalities of those nations.
Until now the US courts have maintained a hands-off policy vis-a-vis foreign states, with the exception of countries including Iran, Syria and Sudan that are on America’s terrorism watch-list.
The premise is that US courts are not equipped to deal with the multifaceted aspects of foreign affairs, and have little power to enforce their decisions on foreign nations in any event.
The US president, the State Department and possibly Congress are far better equipped for that, it is reasoned.
Also, there has been a fear of backlash. While the US may pride itself on the fairness of its judiciary, other nations may not have independent courts; if they allowed domestic lawsuits against the US in their countries, it is questionable whether America would get a fair shake.
All of this could damage vital US foreign policy interests. In short, it just did not seem to be worth suing the Saudis on behalf of the 9/11 victims.
However, American-Saudi relations have become more nuanced in recent years. Thanks to the US-Saudi fighting over the Iran nuclear deal, problems with Saudi Arabia’s involvement in the civil war in Yemen, and disagreements over the Syrian civil war, a rare bipartisan consensus has emerged in Congress that Riyadh has abused US aide, arms sales and support, as well as spit on US human rights values, for too long.
Furthermore, after unearthing its own vast energy resources in recent years, the US is less dependent on Saudi oil now than it has been in decades.
These factors have reignited support for the until now limping lawsuits against Saudi Arabia. Supporters hope to pass a law waiving sovereign immunity for states and their citizens connected to acts of terrorism that occurred on US soil. The 9/11 attacks would fit into this exception and suddenly all of the stuck cases against Saudi Arabia, one of which is currently on appeal in the US Federal Second Circuit Appeals Court, could move forward.
The bill sailed through the Senate Judiciary Committee with unanimous support and has support from legislators who are normally on opposite sides of issues, such as Texas Republican Sens. John Cornyn and Ted Cruz, and Democratic Sens. Chuck Schumer (New York) and Al Franken (Minnesota).
The bill has a chance of passing both houses of Congress.
But from there it could be stopped by President Barack Obama’s promised veto. The question is why Obama would likely veto such a bill.
Would Congress then use its veto override to force the measure into law? Or would Congress be content to have passed a popular bill while blaming Obama for its demise? The two questions are connected.
Sometimes Congress passes a bill, for example to recognize Jerusalem as Israel’s capital or to print “Jerusalem, Israel” on the passports of Americans born there, knowing it can bask in domestic popular opinion and ignore the foreign policy fallout because the president will veto the legislation.
In that scenario, Congress uses the president to absorb the foreign policy risks and has no intention of overriding a presidential veto or trying to pass a constitutional amendment.
Rather, it is looking to make a statement and counting on the president to stop the law from going into effect. Using its override powers would suddenly foist on it dealing with precisely those foreign policy consequences it wants to ignore.
If this bill never goes into effect despite bipartisan support, it will be for those reasons.
But what are the foreign policy consequences that Obama, and in their heart-of-hearts, many US congressmen, may be worried about? The New York Times reported last week that Saudi Arabia’s Foreign Minister Adel al-Jubeir threatened last month to sell off around $750 billion in US assets to protect Riyadh from what it views as unfair lawsuits that could come out of this bill and endanger its assets.
There is a hot debate among economists as to whether Saudi Arabia has the logistical capacity to follow through on the threat, which would be a massive undertaking, and whether it could economically survive carrying out the threat since it could cripple the kingdom’s economy. This is especially a risk for the Saudis since their currency, the riyal, is pegged to the dollar.
The Obama administration, in threatening a veto, also returns to one of the foundations of the Foreign Sovereign Immunities Act, arguing that the proposed legislation would put Americans and US assets at legal risk overseas.
Some legal scholars say the bill contravenes international law. They argue that no nation benefits more from sovereign immunity than the US, since it conducts far more diplomatic, economic and military activities overseas than any other country.
Others question whether those making these arguments are just accepting as custom what was always a morally indefensible status quo that had no real legal standing instead of taking a braver stance and focusing on the overriding international law principle of justice. These supporters of the bill also argue that it has been crafted narrowly enough to focus on Saudi Arabia for any 9/11 connections, and will not spook other countries if those other countries are not sued.
Apart from the fact that 9/11 terrorists were from Saudi Arabia, as was Osama bin Laden himself, were the Saudis involved in 9/11 at any governmental level? Saudi officials have rejected that allegation.
Similarly the 9/11 Commission found “no evidence that the Saudi government as an institution or senior Saudi officials individually funded the organization.”
But that is not the end of the story.
Analyzed carefully, the commission’s wording leaves open the possibility that certain less senior Saudi officials or parts of its government may have been involved with the 9/11 plot or plotters.
Answering that question and determining the success of the bill may hinge on lifting the gag order suppressing 28 pages of the 9/11 report that discuss Saudi connections to 9/11.
Till then, the question of Saudi Arabia’s involvement in 9/11 will remain in the arena of speculation and conspiracy theories.