In an action filed on August 15, 2002 in U.S. District Court in Washington, DC, a coalition of plaintiffs' attorneys have sought on behalf of the 9/11 victims to hold various Saudi government officials, charities, banks and business leaders liable for allegedly aiding the terrorists financially and otherwise. Notwithstanding the many serious gaps and flaws in the charges, the action has caused considerable consternation in the Kingdom, and threatens to undermine a key relationship at a time when the goodwill and support of our regional allies are crucially required.

While Americans are accustomed to seeking legal remedies for such personal tragedies, the 9/11 attacks raise the kind of defining political issues that can only be adequately addressed and resolved by the political branches of government. The U.S. administration is legally entitled to seek dismissal on this basis, and should do so before the train moves any farther from the station.

Introduction

To the extent that its 9/11 attacks were designed to drive a wedge between the U.S. and Saudi Arabia and shake the Saudi regime, Al-Qaeda succeeded beyond it wildest dreams. Assailed at home for perceived over reliance on the United States, the Saudi regime is also being blamed abroad for having spawned and nourished 15 of the 19 hijackers. An establishment ill-prepared by temperament or experience for Beltway-style controversy finds itself under siege not only by Western journalists and politicians, but also by the American plaintiffs' bar, in the form of a civil lawsuit filed by 17 law firms from seven states in U.S. District Court in Washington, DC, demanding $116 trillion in damages on behalf of over 3,000 9/11 victims and their families.

While no one, least of all the Saudi government, questions the need to understand and address terrorism, opinions vary widely on ways to assess blame and impose sanctions. President Bush has defined his antiterrorism targets broadly, including all those who support Al-Qaeda financially. This said, it is far from clear that mass tort litigation will serve America's national interests, or whether the administration should seek dismissal of the action based on the political issues raised.

The terrorist threat has shattered many paradigms without always generating new consensus, as controversies over liability for 9/11 illustrate. Unlike the Clinton Administration's response to the 1993 World Trade Center attack, Al-Qaeda's terrorism has been treated in national security rather than in criminal terms. The "war on terrorism" has infringed in various ways on economic and political freedoms, adding (unlike in 1991) forcible regime change as an option against "rogue states." The scope and limits of the new doctrine of preemptive self-defense have been only vaguely defined.

To those already offended by perceived U.S. jurisdictional overreach, runaway juries and inflated awards for dubious injuries, the idea of entrusting such delicate foreign policy issues to a U.S. judge and jury is worrisome at best. Confronted with the heart-rending tragedies of 9/11, and being called to visit justice against the terrorists' deep-pocketed compatriots and co-religionists, could an American judge and jury be trusted to resist pressures to apply "frontier justice" on the model of vigilantes determined to exact revenge at any price? The manner in which Ambassador Bandar's wife Princess Haifa has been tried and sentenced by the media and in Congress for inadvertently and indirectly aiding two of the hijackers can only inflame such fears. By Islamic standards American justice is unreasonably permissive both in its principles of causation, and in its measure of damages. Under shari'a Islamic legal principles, one is responsible only for one's own direct actions, and hence "not to blame for the misdeeds of one's neighbor"; anything beyond direct, provable damages may only be attributed to God's inscrutable providence. The maximum liability for wrongful death in Saudi Arabia is approximately $32,000.

The action could also trigger adverse notice both in Congress and under the USA Patriot Act, which in Title III requires the U.S. Secretary of the Treasury to investigate and consider sanctions against countries and institutions suspected of abetting terrorists.

The public relations and liability nightmare that confronts the Saudi establishment, including the prospect of discovery and OJ Simpson-style courtroom grandstanding, must have Osama Bin Laden either laughing from his cave, or gloating from his grave.

Precedents

The tradition of holding international aggressors and their enablers accountable is time-honored, from the destruction of Troy to avenge a royal abduction, through reparations against Germany and Austria under the Treaty of Versailles, through the Nuremberg trials, through the United Nations-administered reparations to the victims of the 1990-1991 Iraqi occupation of Kuwait, to prosecution of Serbian war leaders before the International Criminal Court for violations against civilians under the Geneva Conventions.

Unlike the 9/11 lawsuit, each of these examples of international reparations involved sovereign states as plaintiffs, acting under international law or treaty.

Closer precedents for the 9/11 lawsuit can be found in recent civil actions against Swiss and German financiers and industrialists alleged to have aided and abetted Nazi World War II genocide. If German and Swiss private interests can thus be held accountable in the United States, why not those who have similarly aided and abetted terrorists?

Such remedies, however, are little understood or appreciated in the Middle East (or for that matter anywhere outside the U.S.), where mass tort litigation, remote causation and consequential and punitive damages find little local counterpart, and less sympathy. To the extent that the recent German/Swiss model is applied, the Saudi defendants are right to be concerned.

Political Question

The Saudi government has reportedly asked the U.S. administration to intervene, as it would be entitled to do based on its primary constitutional authority over foreign policy issues, and as it did in July, 2002, when it sought dismissal of a claim against Exxon Mobil for alleged atrocities by Indonesian troops, citing "a potentially serious adverse impact on significant relations related directly to the ongoing struggle against terrorism."

Like the Saudi regime, the U.S. administration finds itself on the horns of a dilemma. Despite the damage that this lawsuit could wreak diplomatically, Washington officialdom is loath to risk criticism for in any way thwarting the 9/11 victims in their quest for justice and in their commitment to hold the terrorists and their supporters, broadly defined, fully accountable. Justice and Treasury are moreover reportedly interested in learning what new facts may emerge. Two questions follow. Can an American judge or jury fairly understand and apply the political issues arising from such a delicate foreign relationship as has developed over the years between Saudi Arabia and the United States? Secondly, could the consequences from such an action risk harming America's relationship with the Saudi regime, or even destabilize it?

In this context, the prospect of this very high profile multi-trillion dollar claim against some of the staunchest pillars of the Saudi establishment, including Defense Minister Prince Sultan, Riyadh Governor Prince Salman, former Director of Saudi Intelligence and current Ambassador to the United Kingdom Prince Turki Al-Faisal, and leading local banks such as Al-Rajhi and Saudi American Bank, hovers ominously over the Kingdom, inhibiting economic activity and bilateral investment, and threatening to undermine one of America's oldest and most durable bilateral relationships in the region.

What Did They Know, and When Did They Know It?

The 9/11 lawsuit was conceived by Ronald L. Motley, a Charleston, South Carolina plaintiffs' attorney who made his reputation and his fortune prosecuting asbestos and tobacco claims. Motley has recruited 18 law firms and 25 lawyers and paralegals to the cause, and committed a $10 million war chest. He claims support from his friend and former plaintiff's lawyer (and recently announced presidential candidate) Senator John Edwards of North Carolina, a member of the Senate Intelligence Committee, which is investigating the 9/11 attacks. Given the Republicans' narrow margin in the Senate, the Administration would need to think twice before crossing such a key player.

The list of defendants has already expanded, and could continue to do so. In its current form, the complaint accuses 189 defendants, including six Saudi royals, ten Islamic charities, eleven banks, various global businesses (including those owned by Usama Bin Laden's relatives in Saudi Arabia) and the Republic of Sudan. It relies on the "tradition of a civilized nation to allow redress for wrongs through an appeal to the rule of law and justice," and invokes "the rule of law to hold those who promoted, financed, sponsored, or otherwise materially supported the acts of barbarism and terror inflicted on September 11, 2001 accountable for their deeds."

A summary follows of some of the more significant allegations set forth in the complaint.

The complaint seeks to reach beyond those whose violent acts directly cause injury, to a much wider range of indirect actors; "the only way to imperil the flow of money and discourage the financing of terrorist acts is to impose liability on those who knowingly and intentionally supply the funds to the persons who commit the violent acts." The deaths and injuries were caused by the acts of Al-Qaeda and its "co-conspirators and sponsors," and by defendants' sponsorship of these "reasonably foreseeable acts."

Al-Qaeda has allegedly and most crucially relied on "individuals and charities in Saudi Arabia" for its funds, as "Saudi officials have turned a 'blind eye'. Royal denials notwithstanding, Saudi money has for years been funneled to encourage radical anti-Americanism as well as to fund the Al-Qaeda terrorists. Saudi Arabian money has financed international terrorism while its citizens have promoted and executed it."

The complaint targets not only the terrorists themselves, but as alleged accomplices the Republic of Sudan, for having harbored Usama Bin Laden in the early 1990s; various charities, for having funded the terrorists; various banks, for having financed projects undertaken by terrorists, and for transferring Al-Qaeda funds; and various Saudi government officials and businessmen, for having promoted the charity defendants' causes, both out of conviction and a misplaced sense of self-preservation.

In addition to the 9/11 attacks, Al-Qaeda is blamed for the October 3-4, 1993 attacks in Somalia, in which 18 American servicemen were killed; the 1993 World Trade Center attack; the 1995 Bojinka Project, whereby twelve American airliners were to be hijacked and flown into prominent American landmarks; the June, 1996 Khobar Towers bombing, in which 19 American servicemen were killed; the 1998 attacks on the U.S. embassies in Kenya and Tanzania; the October, 2000 attack on the USS Cole in Yemen; and attacks against U.S. interests in Indonesia, Malaysia, Philippines, Singapore, Thailand, Taiwan, Vietnam and Cambodia.

Sudan has been designated by the State Department since 1993 as sponsoring terrorism; under amendments to the Foreign Sovereigns Immunities Act, Sudan (unlike Saudi Arabia, not named as a defendant) has thereby forfeited its sovereign immunity. It is accused of having harbored Usama Bin Laden's businesses and terrorist training camps, and of having experimented with biological warfare through 1996, when it allowed him to relocate to Afghanistan.

Usama Bin Laden is said to have invested $50 million in Al-Shamal Islamic Bank in Sudan, in addition to investments in shipping, trading, agriculture, construction and gum arabic. Based on his Sudanese commercial empire, Al-Qaeda became "a multinational corporation complete with a finance committee, investments and well-organized, concealed accounts and operations worldwide."

Saudi American Bank and the Bin Laden family businesses are included as defendants based on having financed projects in Sudan during the period of Usama Bin Laden's stay, including Port Sudan Airport and the Khartoum/Port Sudan Tahaddi Road. However, no convincing link has yet been established between these normal civil construction projects and banking activities and Al-Qaeda's terrorism.

While the Bin Laden family claims to have disowned its infamous relative, the complaint contests the sincerity of these claims, and accuses the family of "extensive financing and material support" allegedly provided for Usama's Sudanese and Afghan infrastructure projects.

Comment: As with Saudi American Bank, this may represent more of a fishing expedition than a tenable basis for liability. The Bin Laden family may, however, for public relations if not legal reasons have no choice but to join issue and prove a negative, namely that it does not support terrorism, like the man asked to explain when he stopped beating his wife.

Some of the claims against the banks are thin. As an example, they charge their having promoted Islam through "the Islamic principle of Zakat", suggesting implausibly that support for any aspect of Islam implies complicity with Al-Qaeda. Some of the banks are also charged with having cleared Al-Qaeda transfers, which they could neither have foreseen nor controlled. Is it irrelevant that U.S. banks do exactly the same?

The charities are portrayed as largely Saudi-funded, and as having preyed on Saudi generosity to fund terrorists. Al-Qaeda is said to have itself grown from one of many charities usurped by Islamic fundamentalists "as a means to raise funds and travel the world easily and efficiently."

Al-Haramain Islamic Foundation's branches in Bosnia and Somalia, allegedly run from the charity's Saudi headquarters, have been designated as terrorist entities, and their assets frozen.

Founded in the 1980's by an alleged Bin Laden associate, Adil Abdulgalil Batterjee, Benevolence International Foundation is said to operate in various Muslim countries (as well as in Illinois), and to have supported various terrorists financially and otherwise until its assets were blocked by the Office of Foreign Assets Control (OFAC).

International Islamic Relief Organization (IIRO) is said to have "materially supported terror around the globe"; participated in "the 1993 World Trade Center bombing, the plot to destroy the Lincoln Tunnel and the Brooklyn Bridge, the plot to assassinate President William Jefferson Clinton and Pope John Paul II, the plot to blow up twelve American airplanes simultaneously, and the 1998 Embassy bombings in East Africa;" and to have provided $60 million to the Taleban.

IIRO's alleged parent organization, the Muslim World League, founded in Saudi Arabia in 1962, is said to be "funded, supported, and financed by persons or entities in Saudi Arabia," and to maintain "numerous connections with Al-Qaeda operatives."

Named after Suleiman Abdulaziz Al-Rajhi, SAAR Foundation allegedly uses its revenues (reported for 1998 at $1.7 billion) to support terrorism. Its Herndon, Virginia offices were raided on March 20 and 21, 2002 by joint antiterrorism task force Operation Green Quest, for "potential money laundering and tax evasion activities" and ties to Al-Qaeda.

Rabita Trust, created in 1988 by the Pakistani government and the Muslim World League to assist in the repatriation of displaced Bihari Pakistani refugees from Bangladesh and blacklisted by OFAC, is alleged to be an Al-Qaeda front closely related to the Muslim World League and IIRO.

Yassin Al-Qadi has been blacklisted by OFAC for supporting Al-Qaeda through Muwafaq Foundation, on whose board Khalid Bin Mahfouz and his son Abdulrahman also allegedly serve, and through which millions of dollars are said to have been transferred to Al-Qaeda. Al-Qadi is said to serve along with Bin Laden relatives as a Director of Nevada-based Global Diamond Resources, which manages three mines in South Africa which produce diamonds, on which Al-Qaeda is said to rely to launder funds.

Most controversially of all, six Saudi royals are included as defendants: Defense Minister Prince Sultan bin Abdulaziz; former Intelligence Chief and current Ambassador to Great Britain Prince Turki Al-Faisal, along with his brothers Mohammed and Abdullah; Interior Minister Prince Naif bin Abdulaziz; and Riyadh Governor Prince Salman bin Abdulaziz.

Somewhat implausibly, given the heavy reliance by the Saudi Ministry of Defense and Aviation on U.S. equipment and support, Prince Sultan is charged with having taken "radical stands against western countries since the Gulf War" and with sponsoring charities that funded Al-Qaeda, including IIRO, Muslim World League, World Assembly of Muslim Youth and Al-Haramain. In April 2001 he is said to have donated $40 million to "the families of the martyred" in the Palestinian Intifada. As Chairman of the Supreme Council of Islamic Affairs since 1994, Prince Sultan "could not have ignored the destination of the charity funding [or] the implication of several of those entities in financing the Al-Qaeda terrorist organization," including at least $6 million since 1994 to IIRO, Al-Haramain, Muslim World League, and the World Assembly of Muslim Youth.

As Chairman of the Saudi Committee for Support of the Intifada Al-Quds, Prince Naif is charged with having transferred large sums to the families of Hamas terrorists, and for supporting homicide bombers.

Prince Salman is charged with "a history of funding Islamic extremism," and of "aiding and abetting and material sponsorship of international terrorism, including Al-Qaeda and Usama Bin Laden."

Comment: Since any acts which may have contributed in any way to the 9/11 attack were no doubt performed in their official capacities, the Saudi royal defendants should be able to avoid liability based on sovereign immunity and the Act of State doctrine. They will at the same time be tempted to correct the many apparent misrepresentations of their true actions and intent, whether by joining issue or through public relations.

Protection Money?

Perhaps the most provocative allegation involves alleged protection money paid by the Saudi royal family to Al-Qaeda, to buy peace at home. Specifically, Prince Turki, currently Ambassador to the United Kingdom and until August, 2001 Chief of Saudi Intelligence, is said to have "struck a deal" in July, 1998 with the Taleban and senior Al-Qaeda representatives in Kandahar, Afghanistan whereby Al-Qaeda would refrain from making trouble for the Saudi regime within the Kingdom, in exchange for the Kingdom allowing a free hand in Afghanistan and supporting the Taleban regime financially.

Comment: Any such deal, if true, must however have involved the Saudi government in its sovereign capacity, and thereby escape the jurisdiction of any U.S. domestic court.

Inciting Anti-Western Sentiment

The Saudi system is characterized as one in which "clerics rail against non-Muslims, the schools teach hatred, and the Ministry of Islamic Affairs publishes books describing Judaism and Christianity as deviant," and the culture condemned as one "which promotes hatred, religious intolerance and violence" as "the prime enabler of Al-Qaeda and the growth of international terrorism."

Salaah Al-Budair is quoted as having preached in the Mosques of Makkah and Medina in August, 2001 against "a civilization that races towards creating all means of trouble, disturbance, and destruction," and as praising the homicide bombings in Palestine as reviving "the magnitude and virtues of martyrdom in the heart of the Muslim nation," being "exactly what we need at this time"; and as encouraging Saudis to "set an example in supporting this and donating generously in its cause from all different sections of the community." Among Saudis are those said to "believe they have the right to kill anyone who disagrees with their version of Islam."

It will be difficult to establish causal links among the Saudi defendants, these clerics and the acts of terrorism, particularly to the extent that the Saudi regime has distanced itself from the message of such preachers and sought to restrain their excesses. Since plaintiffs may be barred from maintaining any claim against the Saudi government or its senior officials, these charges may have been included more to prejudice the judge and jury than for any real relationship to the issues of the claim. Consistent with their avowed policy of toleration, they can go far to defuse the negative impact of such allegations by demonstrating success in identifying and restraining those who seek to incite such religious hatred.

Saudi Response

Assuming that Al-Qaeda's primary objective is to overthrow the Saudi regime, by pursuing Saudi government leaders for Al-Qaeda's attacks plaintiffs' counsel may in these instances arguably be blaming some who deserve to be treated as co-victims of Al-Qaeda, rather than treated as co-conspirators of their sworn enemies, the 9/11 terrorists.

While no defendants have yet joined issue, Saudis have no doubt been stung by this apparent ingratitude for their cooperation in the anti-terrorism cause. When President Bush noted to Foreign Minister Saud Al-Faisal that "Usama Bin Laden hates you more than he hates me," Prince Saud confirmed his Kingdom's solidarity with America's cause ("It's an honor to be hated by someone like him."), and suggested that Al-Qaeda's choice of Saudi hijackers was specifically designed to create a schism in the Saudi-U.S. relationship. He also promised to avoid doing "anything to damage the U.S. economy."

Numerous U.S. administration officials have repeatedly expressed appreciation for the nature and extent of Saudi cooperation against terrorism. The Kingdom cooperated with the United States in arresting Bin Laden associate Wael Julaidan, director of Rabita Trust, and in closing Al-Haramain's Somali and Bosnian branches, which were found to have been misused by terrorists (unbeknownst to its Saudi parent organization). It has supported and implemented the various United Nations Security Council Resolutions against terrorism, and frozen funds of the Taleban regime and various individuals and entities designated by the UN as supporting terrorism.

In May, 2002 the Kingdom tightened its 1995 anti-money laundering regulations applicable to financial institutions, and has issued new regulations for the non-financial sector. It has participated in the G-7 Financial Action Task Force (FATF), implemented FATF's anti-money laundering recommendations and scheduled a FATF Mutual Evaluation for April, 2003.

New audit requirements have been imposed on charities, which now require Ministry of Foreign Affairs approval for any offshore donations.

The Kingdom has questioned over 2,000 individuals, and frozen over $5 million in assets of three suspected Al-Qaeda supporters. At least three Al-Qaeda cells have been broken up and key Al-Qaeda operatives arrested, including 1998 embassy bombing mastermind Adbulrahim Al-Nashiri. A seven-man terrorist cell planning operations in the Kingdom, including a failed missile attack against the U.S. military at Prince Sultan Airbase, was identified and arrested after the leader had been extradited from Sudan. The Kingdom succeeded in negotiating the extradition of 16 suspected Al-Qaeda members from Iran. It has asked Interpol to arrest 750 people, including 214 Saudis.

While it is possible that the 9/11 lawsuit fortified the Saudis in their determination to cooperate closely with the U.S. in its war on terrorism, most of these actions pre-dated the filing of the lawsuit, and seem to have been both genuine in spirit, and effective in their results.   [For more see Perspectives below.] 

U.S. Procedure

The Saudi defendants will no doubt find themselves challenged to the limit, and in many cases for the first time, by American-style discovery, which among systems of jurisprudence is unique in the world and particularly threatening from the Saudi perspective.

American litigation assumes a high degree of transparency: each litigant must "stand naked" before judge and jury, and often before the public as well. Defendants may be required to produce not only materials and information which are directly related to the issues, but also those which can reasonably be expected to lead to material facts. Anyone who doubts the powers of a U.S. court to compel cooperation by reluctant parties and witnesses need only reflect on President Clinton, who for all his presidential powers was compelled to answer all manner of arguably non-material questions about his personal life. Unless the administration seeks dismissal, the defendants will be tested perhaps as never before to marshal all relevant documents, facts and witnesses.

Plaintiffs' counsel will no doubt focus among other issues on identifying the charities which the defendants have supported, the causes supported by these charities, the defendants' ethical and legal compliance guidelines relative to money laundering and terrorism, and all relationships direct and indirect with alleged terrorism sponsors. They will be asked what they knew about Al-Qaeda and its actions, and about the charities, and when they knew it. The press will no doubt find a feeding frenzy in each new revelation, and the defendants and the court will be challenged to the extreme in containing discovery within reasonable bounds.

Things to Come

Worst of all for the overall U.S. interest, we may face a defining moment in our relationship with our Saudi friends, and, failing effective intervention by the administration, the prospect of a rupture of major proportions in our relationship with the Saudi government, if not the entire Arab and Islamic world, particularly given the deepening well of opposition to U.S. policies throughout their region and beyond.

All things considered, there are better ways to resolve such claims than through the courts; this is precisely the kind of political question that is best left to the political branches. Our elected officials will be sufficiently challenged on their own by these uniquely sensitive issues not to tempt fate by allowing this case to proceed.

Pending a decision on whether to intervene formally, the administration should coordinate closely with its Saudi friends regarding likely fallout, both on the Saudi government and on popular perceptions of the United States in Saudi Arabia and elsewhere among other Arab countries, the Middle East, and the Islamic World. All defendants should be encouraged to contest the allegations forcefully, as part of a carefully coordinated campaign to correct the record on the complaint's many errors of fact and interpretation. Negotiations should also be considered with plaintiffs' counsel regarding alternative non-judicial approaches to assessing and imposing liability for the 9/11 attacks, based on what has been done in other similar situations.

Impulse revenge will do little to promote peace or justice in the region, requiring effective and convincing clarification of the record, most particularly regarding those pro-American Saudis who have been unfairly joined as defendants. The defendants' hopes for controlling the damage derive from the same circumstances that prompted Usama Bin Laden to strike, namely, the strong foundation of friendship, common interest and cooperation between our nations, that over 60 years have repeatedly produced a mutuality of benefits and continuous contributions to regional and global well being.