Executive Summary

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.

Terrorism as Mass Tort: Responsibility for 9/11 
By Christopher H. Johnson

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