WASHINGTON, September 25, 2016 — Unless a law is passed by Congress as an exception to an existing law, victims and families of 9/11 victims are not going to be able to sue Saudi Arabia in U.S. courts for its yet-to-be-proven role in the attacks. Even if the law passes, the years-awaited lawsuits still may not go anywhere.
The history behind United States citizens suing foreign governments is complicated.
A very basic tenet of international law is that foreign countries, or their officials, cannot be sued in another country’s courts because the acts or misdeeds of those countries are better dealt with through state-to-state negotiations rather than in front of judges or juries in the “victim” country.
Thus, in 1976, the United States passed a law giving almost complete immunity to foreign governments in the Foreign Sovereign Immunities Act (FISA). The law contained three notable exceptions allowing suits against foreign governments. The first involved claims that have to do with commercial activity. The other two allowed tort claims, such as those involving an automobile accident that occurs in the U.S. and those alleging the foreign government took private property in violation of international law.
In response to acts of terrorism occurring in the 1980s and 1990s, “state sponsored terrorism” exception was passed in 1996. In 2008 procedural and other problems with the law were addressed resulting in an expanded exception law. Cases have been filed against Iran, Cuba, Libya, Iraq, North Korea, Sudan and Syria. To sue a foreign country under this exception, the country to be sued must be on the list of countries that the U.S. has already designated as sponsors of terrorism. Further, Plaintiffs must show that the harm caused was the result of criminal behavior or some other action outside of the normal government operations.
One suit that garnered significant international attention over the years was one that was filed on behalf of the late Orlando Letelier. On September 21, 1976, a Chilean state-sponsored bombing attack on Letelier’s moving car in the District of Columbia resulted in the death of this former Allende-appointed Chilean Ambassador to the U.S. as well as an American co-worker, Ronni Moffitt.
In 2008, despite the Chilean government’s objection based on FISA, Judge Greene, a Washington, D.C. U.S. District Judge, indicated that the plain language of the law says that foreign states are not entitled to immunity from money damages for death or injury caused by negligent or wrongful acts of those states.
Also in 2008, the 9/11 families’ suit against Saudi Arabia was quashed because of FISA, and Saudi Arabia was not a “terrorist” country. Saudi Arabian officials have long been suspected of supporting the hijackers who carried out the attacks on the World Trade Center and the Pentagon — charges they deny.
Congress recently passed legislation seeking to allow this lawsuit. The legislation, entitled the Justice Against Sponsors of Terrorism Act (JASTA), would allow 9/11 victims to have their day in court. However, onFriday, September 23, 2016, President Obama vetoed JASTA. According to CNN, “Republican and Democratic leaders in Congress say they’ll override Obama’s veto next week.” If that override is successful, the lawsuit by the 9/11 victims will be allowed to proceed.
While it seems an easy matter to conclude that the 9/11 victims should be able to sue to see if evidence connects Saudi Arabia to the bombings and to try to collect if and when that may occur, the push-back by President Obama and others on JASTA is not entirely misplaced. Obama has repeatedly said that passing this law would provide precedent for other countries to allow civil suits against the U.S. in their courts. Further, there are claims that passage of the law would jeopardize national security abroad.
Former U.S. Attorney General Michael Mukasey holds to the administration’s views. As he stated on Fox News, governments “as diverse as Belgium, Spain, Afghanistan have tried to bring lawsuits against us and against our diplomatic and military people based on sovereign acts that the United States took…” He also noted that the U.S. has “the most at risk” in terms of other countries using JASTA “as the excuse to undercut sovereign immunity and go after not only us that is as a government but our diplomats, our military people, and our intelligence gatherers.”
Nancy Pelosi (D-Calif.), House Minority Leader, however, supports the bill. “I’ve worked with these families for a very long time,” she said, “and I think they should have their day in court.”
Legislated narrow exceptions to FISA do sometimes occur.
For example, Congress allowed a suit against Libya, which was behind the Dec. 21, 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland. That attack killed 270 people.
A federal court in New York threw out the suit, citing FISA when the first lawsuit was filed. The families then lobbied Congress and won passage of the exception, citing aircraft sabotage and other criminal acts. With that exception then in place, the families filed suit again and won. Libya negotiated a settlement of $2.7 billion.
The 9/11 suit may never go anywhere, even if JASTA passes by override. Legal and political analysts suggest that there is a method by which the administration can quash the lawsuit. If the State Department files a certification to a court that “good faith negotiations” with Saudi Arabia are being conducted and are ongoing, the lawsuit would be “frozen” for 180 days. As long as the State Department continues to provide the certifications, the lawsuit would remain dead in its tracks.
This, then, begs the question: What is the point of the JASTA legislation?
The point is that the process needs to be followed. Whether the 9/11 families get their day in court or not, the laws leading up to that determination need to be seen through. What may happen is not yet a certainty. What affect the passage of the law may have is similarly not certain. The Administration’s concerns seem valid enough on its face. Yet the rights of the families involved are compelling.
This citizen hopes the families get their shot. Rebuke or other speculative actions by other nations or their officials, or even by radicalized supporters will always remain a concern. Realistically, what these nations or their citizens do or do not do is not something we can predict now, nor can we fail to act because of fear.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business consulting firm. His new book “Step By Step, Achieve Small Business Success” is available at www.thebusinessanswer.com.