Law360, Washington (November 17, 2016, 5:24 PM EST) — Despite speculation that a recent bill opening up Saudi Arabia to liability for alleged complicity in the 9/11 attacks may lead to a flood of lawsuits, only a few have been filed so far, and attorneys say plaintiffs will likely face an uphill battle to prove their claims.
The passage of the Justice Against Sponsors of Terrorism Act, or JASTA, and subsequent Sept. 28 override of a presidential veto by Congress opened up the potential for monetary damages against any nation over allegations of supporting international terror attacks within the U.S.
Before the passage of the bill, only countries specifically designated by the U.S. Department of State as state sponsors of terrorism — currently Iran, Sudan and Syria — could be sued under similar circumstances, with most such claims blocked by foreign sovereign immunity.
Although not limited to suits against Saudi Arabia, the Middle Eastern nation was clearly the main target of the legislation, with previous claims against it over alleged complicity in the 9/11 attacks having been dismissed from long-running multidistrict litigation in September 2015 when a judge ruled a claimed exemption to the Foreign Sovereign Immunities Act did not apply, a decision currently on appeal.
Victims of the attacks and their families allege that the Saudi Arabian government and senior Saudi officials had provided support to the 9/11 attackers — 15 of whom, out of 19 in total, were Saudi nationals — and lawmakers claimed that those victims should get a chance to try to prove their claims, which the Saudi government has long denied.
“If the Saudis did nothing wrong, they should not fear this legislation,” Sen. Chuck Schumer, D-N.Y., one of the many bipartisan supporters of JASTA, said in a September statement. “If they were culpable in 9/11, they should be held accountable. The families of the victims of 9/11 deserve their day in court, and justice for those families shouldn’t be thrown overboard because of diplomatic concerns.”
Despite months of lead-up to JASTA’s passage giving potential plaintiffs time to put together potential lawsuits in anticipation, however, only three lawsuits have been filed so far, with the first of those suits filed on Sept. 30 in Washington, D.C., federal court by plaintiff Stephanie Ross DeSimone, whose husband, Navy Cmdr. Patrick Dunn, was killed in the 9/11 attacks.
DeSimone alleges that individuals connected to the Saudi government helped some of 9/11 attackers enter the U.S. and assimilate into local communities, and that Saudis helped to finance and arm al-Qaida and other “Islamic terrorist organizations and associated separatist movements.”
A subsequent complaint making similar claims was filed in New York federal court on Oct. 17 by Virginia DeCola Bowrosen, the widow of World Trade Center worker Paul DeCola, alongside several injured victims from the attacks, while Antoinette McCarthy and Jennifer Castelano, the daughters of Emeric J. Harvey, the owner of a trading company housed in the former WTC, also filed suit in New York on Nov. 15.
Despite initial alarm from Saudi officials over the passage of JASTA, however, those plaintiffs will have a tough battle ahead. They’re required under the statute to show that the Saudi government or specific officials aided and abetted, knowingly provided “substantial assistance,” or conspired with the attackers, a tough standard to meet, attorneys and other commentators have claimed.
For instance, a chapter from the 9/11 Commission’s report on claims related to Saudi Arabia, originally classified for national security reasons and made public in July, is unlikely to be the smoking gun for the plaintiffs that some had expected prior to its public release.
There had long been speculation that the classified chapter contained evidence of Saudi complicity in the attacks, and the chapter does cite documents stating that some 9/11 attackers “were in contact with, and received support or assistance from, individuals who may be connected to the Saudi government,” as well as information that certain Saudi government officials in the U.S. “may have other ties to al-Qaida and other terrorist groups.
But the chair and vice chair of the commission, former Gov. Tom Kean and former Rep. Lee Hamilton, have been quick to play down the significance of the chapter.
It was based “almost entirely on raw, unvetted material that had come to the FBI” to be used to pursue possible leads, and Kean and Hamilton reiterated that although the overall findings of the commission include several criticisms of Saudi Arabia, the commission’s report also shows “no evidence that the Saudi government as an institution or senior Saudi officials individually funded” al-Qaida.
Another stumbling block is that JASTA gives the government a chance to intervene in any case and seek a stay if it certifies it is “engaged in good-faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state,” which could lead to issues underlying those cases effectively being resolved outside of court.
And those initial three suits could well be the last suits filed under JASTA, with the window for similar suits potentially set to be closed, or at least made much narrower, after senior lawmakers acknowledged some potential “unintended ramifications” following their override of the presidential veto.
Despite repeated warnings from President Barack Obama and other administration officials that the bill could lead to retaliatory foreign laws being enacted and lawsuits being filed against U.S. officials and military members, and that it would threaten both diplomatic norms and U.S. relationships with allies, lawmakers passed the bill anyway.
But several senior lawmakers somewhat incongruously claimed soon after the veto override that they hadn’t been appropriately warned about the potential consequences of the bill, and could revisit it in the post-election lame-duck session.
“I’d like to think that there’s a way we could fix [the bill] so that our service members do not have legal problems overseas, while still protecting the rights of the 9/11 victims, which is what JASTA did do,” House Speaker Paul Ryan, R-Wis., said at a Sept. 30 press briefing.
The Saudi Ministry of Foreign Affairs had said in a statement after the override that “the erosion of sovereign immunity will have a negative impact on all nations, including the United States.” It also threatened to sell potentially hundreds of billions of dollars in U.S.-based assets that could be used to fulfill any judgment against it.
It is uncertain whether lawmakers will push forward with tweaks to JASTA following the election of Donald Trump as the next president. Trump had called Obama’s initial veto of the bill “shameful” in a Sept. 23 statement, saying it would “go down as one of the low points of his presidency,” but does not appear to have weighed in publicly after lawmakers suggested that the bill could be tweaked.
Even after Trump’s election, however, Saudi concerns seem to have eased somewhat. In a Nov. 15 press conference to discuss the annual results of the Saudi Arabian Monetary Agency, its central bank, the bank’s Governor Ahmed Al-Kholifey said that SAMA was not worried about the effects of JASTA.
“The kingdom’s investments in the U.S. enjoy sovereign immunity and there is no call for concern,” he said, according to several reports from local English-language media.
Not wanting to leave the issue to chance, however, the Saudi government has recently tapped a bevy of law firms with prominent lobbying arms to help continue to make its case to repeal the law, or at least reshape it, including Brownstein Hyatt Farber Schreck LLP, Squire Patton Boggs LLP, King & Spalding LLP and DLA Piper, according to congressional lobbying registration forms.
A representative from the Saudi Embassy to the U.S. did not respond to a request for comment.
The cases are McCarthy et al. v. The Kingdom of Saudi Arabia, case number 1:16-cv-08884, and Bowrosen et al. v. The Kingdom of Saudi Arabia, case number 1:16-cv-08070, in the U.S. District Court for the Southern District of New York; and DeSimone v. Kingdom of Saudi Arabia, case number 1:16-cv-01944, in the U.S. District Court for the District of Columbia.
–Additional reporting by Michael Macagnone. Editing by Rebecca Flanagan and Mark Lebetkin.