The relatives of 9/11 victims filed a $1 trillion lawsuit in mid-August 2002 against the Saudis. That's because the Kingdom of Saudi Arabia bears a heavy responsibility for what happened on September 11. It funded the terrorists and gave them their ideology.
But should the victims and families of the victims of 9/11 have the right to sue Saudi entities? Doesn't this intrude into the realm of diplomacy -- which is better left to statesmen who see the value of not impairing the U.S.-Saudi strategic relationship? Or will this lawsuit not only help bring a modicum of justice to the families of 9/11 victims, but also institute a strong blow against terrorism itself?
To discuss these and other issues connected to the lawsuit against the Saudis, Frontpage Symposium has invited Allan Gerson, the co-lead counsel for the lawsuit itself, an international law expert and author of the just-published Price of Terror; Daniel Pipes, Director of the Middle East Forum, author of the new book Militant Islam Reaches America, and the individual who created the idea of suing the Saudis for 9/11 in his two op-eds for the New York Post: Sue the Saudis and Make the Saudis Pay for Terror; Hank Holzer, a constitutional and appellate lawyer who is Professor Emeritus at Brooklyn Law School and the co-author most recently of Aid and Comfort: Jane Fonda in North Vietnam; and Husain Haqqani, a syndicated columnist for The Indian Express and The Nation, a former advisor to Pakistani prime ministers and a visiting scholar at the Carnegie Endowment for International Peace.
Question #1: Gentlemen, in terms of this lawsuit, what is it exactly that the Saudis did wrong?
Gerson: Individual Saudi interests and organizations are alleged to have contributed money to entities that they knew or should have known were engaged, at least partially, in terrorist activities.
Holzer: "What the Saudis did wrong" is going to depend on whether the allegations of the complaint are substantiated by the facts ascertained in discovery — if the case gets that far.
Pipes: The ideology of Osama bin Laden, Al-Qaeda and the Taliban derived mainly from the Wahhabi ideology that rules in Saudi Arabia. The Kingdom of Saudi Arabia permitted the recruitment of some 25,000 young Saudis to wage jihad, fully aware of the danger they posed to the United States. And, of course, 15 of the 19 suicide hijackers hailed from Saudi Arabia.
The Saudi royal family and perhaps also the government (the two are difficult to keep apart) donated large sums of money for years to bin Laden, Al-Qaeda and the Taliban, and perhaps arms as well.
Post-September 2001, the kingdom is not forthcoming about cracking down on the flow of funds to jihad groups. It has not co-operated sincerely with the U.S. investigation, preferring, as one former American official complains, to "dribble out a morsel of insignificant information one day at a time."
Incriminating documents, such as a hard drive seized by U.S. troops in Sarajevo from a computer at the office of the Saudi High Commission for Relief of Bosnia and Herzegovina, directly link the regime to terror. An operative was arrested carrying documents that proved Saudi funding of the Hamas terrorist group to enable it to produce a short-range missile called the "Qassam."
U.S. intelligence sources have concluded that Saudi princes are spending millions of dollars to help large numbers of Al-Qaeda and Taliban members escape the American dragnet. One source told Middle East Newsline that "the money flow to Al-Qaeda continues from members of the royal family."
Haqqani: If evidence can be produced that Saudi individuals and organizations knowingly contributed money to terrorist activities, there would be sufficient grounds to sue those individuals and organizations. But to say that such complicity of individuals is a wrong committed by Saudi Arabia as a nation or even a government would be stretching the argument.
I share some (only some) of Daniel Pipes' criticism of official Saudi ideology. But his argument that 'Saudi Wahabi ideology gave birth to terrorism' begs the question, "Why has the U.S. supported and protected the Saudi Royal family for so long?" After all, the Wahhabi ideology has been Saudi Arabia's raison d'etre since the Kingdom's foundation and the U.S. did not seem to have any problem with it for seventy years. Such reasoning would pave the way for suing the U.S. government for backing Saudi Arabia as well as the anti-Soviet Afghan resistance that provided Al-Qaeda members their original training. Such issues belong in the realm of diplomacy and political accountability, though the lawsuit might help the public learn more about the origins and funding of terrorism in the Islamic world.
Pipes: Mr. Haqqani is right to critisize the US government for its ignoring the viciousness of Wahhabi ideology through the decades and its short-sighted support for the absolute rule of the Al Saud. The time has come for a thorough-going reassessment of US-Saudi relations and a shake-up of our way of doing business there (on which, see my forthcoming article in the Winter 2002/03 issue of The National Interest).
Holzer: Mr. Haqqani asks the question: "Why has the U.S. supported and protected the Saudi Royal family for so long?" This isn't very complicated: because our government was led by pragmatists. Mr. Haqqani then implies that because the U.S. has supported Saudi Arabia for seventy years, that perhaps the U.S. should be sued. My response: Reductio ad absurdum.
Haqqani: If Mr. Holzer cares to reflect on my response, I have avoided comment on purely legal aspects of the case and made only political observations. I did not say the U.S. should be sued but only that it could be.
Question #2: Is it the Saudi regime that is at fault here, or just some rotten eggs?
Gerson: It is up to the Saudis to help us decide this question.
Holzer: The answer to this question is going to depend on what discovery turns up. Though, I doubt that "material support" for terrorist operations can emanate from a place like Saudi Arabia without at least some government connivance or assistance.
Pipes: As I suggested earlier, the regime itself is complicit. Mr. Holzer is correct: a near-totalitarian regime rules in Saudi Arabia and the notion that so critical an activity could take place against or even without government sanction is completely implausible.
Haqqani: The U.S. government says that it is only some rotten eggs. If, however, it is discovered that the regime is complicit then more than the Saudi regime will have to be held accountable. So far, none of the evidence in the public realm points towards the regime's culpability though references to intelligence to that effect have been around for some time. The regime can be accused of a cover-up by not allowing its citizens to be interrogated by U.S. officials. But successive U.S. administrations will also have to explain why they did not pursue the matter with the Saudi authorities effectively. In the end, there may be greater embarrassment in store for the U.S. than for Saudi Arabia.
Holzer: Mr. Haqqani comments that, "So far, none of the evidence in the public realm points towards the regime's culpability though references to intelligence to that effect have been around for some time." Let's get one little thing straight: "evidence in the public realm" is worthless. What counts is discovery in an American court: interrogatories, production of documents, requests to admit, depositions etc.
If the evidence is there, the American litigation process will expose it. More likely, the Saudi defendant(s) will default, like the Cuban government did, and "defend" by stonewalling collection of the judgement, which will be aided and abetted by the Department of State.
Mr. Haqqani says that "successive U.S. administrations will also have to explain why they did not pursue the matter with the Saudi authorities effectively." No, actually they won't. They are not being sued. Mr. Haqqani states that, "In the end, there may be greater embarrassment in store for the U.S. than for Saudi Arabia." All I can say to this piece of wisdom is that it is no surprise this individual writes for The Nation.
Pipes: Evidence in the public realm is not worthless and does clearly point to the Saudi regime's culpability. For examples, note my Bosnian and Hamas examples that I cited in my answer to question #1.
Holzer: Just a second, let me explain: I understood Mr. Haqqani to mean that evidence in the public realm was somehow relevant to the legal proceedings. In that specific context, it is not. I agree with Dr. Pipes, however, that in the realm of public opinion, it is extremely important.
Haqqani: By saying that the State Department will aid and abet the stonewalling, is Mr. Holzer not conceding the diplomatic and political dimension of this case? I also want the facts to be ascertained openly and justice to be done. It's just that I'm not sure that would be possible, given the political circumstances.
Question #3: We have to break this down into specific compartments. Yes, the Saudis funded the people who perpetrated 9/11. But is making financial contributions a crime in and of itself? Isn't there a significant difference between moral and legal responsibility?
Gerson: Court rulings have made clear that there is a basis for civil liability, although there may also be a case for criminal culpability. Lawyers don't claim to be authorities on moral responsibility, but I have seen no reason to draw a distinction in this case.
Holzer: Is making financial contributions a crime? It sure is, under United States law — it's called conspiracy and/or aiding and abetting. And yes, of course there is a significant difference between moral and legal responsibility, but here you're talking about a lawsuit, not morality.
Gerson: Mr. Holzer is correct. See Boim (7th cir. 2002) case, but lesser standard - constructive knowledge - for civil liability. Yes, of course.
Pipes: Last I checked, funding a criminal enterprise is in itself a crime.
Haqqani: It is clearly a crime to fund terrorism but some of the defendants might argue that they were not aware that their funds were being diverted towards criminal purposes. No one wrote a check to Al-Qaeda. The contributions by most Saudi individuals were to ostensibly charitable and religious organizations.
Pipes: Sorry Mr. Haqqani, Islamic charitable organizations have for years been engaged in supporting terrorism; it boggles the imagination to think that donors had no idea to what end their funds were being used.
Holzer: Mr. Haqqani states that "the contributions by most Saudi individuals were to ostensibly charitable and religious organizations." Please. In any case, this is a question of fact for a jury to decide. But the cowardly Saudis won't let the case get to a jury.
Haqqani: 'Cowardly' is a subjective term and Mr. Holzer's sentiment notwithstanding, there are many instances of sovereign states refusing to allow a foreign jury to judge them. And in terms of Mr. Pipes' point about donors and Islamic charitable organizations, none of the charities concerned advertised themselves as fund-raisers for terrorism. Donors all over the world sometimes contribute to organizations on the basis of their advertised function, without knowing about covert agendas.
Pipes: If this is a routine matter that happens "all over the world," I'd like Mr. Haqqani to offer three examples of such occurrences outside the scope of militant Islam - that is, of donors contributing to alleged charities which are in fact funding terrorism.
Haqqani: The IRA and Sri Lanka's LTTE used human rights and relief organizations as fronts for fund-raising for years. Mr Pipes may not want to remember but there is terrorism in the world unrelated to militant Islam. In any case, my point was more general and not related to funding of terrorism only. Donors do not always know if the charity they are contributing to has a hidden agenda. While there may be donors who intentionally channelled funds for terrorism, there are others who probably donated funds for the stated purposes of the organizations.
Pipes: Mr. Haqqani inadvertently has confirmed my point. Of course, the IRA and LTTE used benign-sounding institutions to raise money for terrorists - but everyone involved knew that fact, from the Irish in Boston to the Tamils in Toronto. Which only supports my point that donors to Islamic charities also know whom they are supporting.
Question #4: Doesn't it interfere with our nation's diplomacy when ordinary people make lawsuits against other nations, especially against our allies (or supposed "allies")? Shouldn't diplomacy be left to diplomats?
Gerson: There is no interference with diplomacy insofar as that entails geo-strategic considerations. The right to compensation from those who financed terrorism, however, is inscribed in the law and that must be accommodated recognizing that discovery in a lawsuit of this nature inherently adds rather than detracts from US national security.
Holzer: (A) Congress and the President already made that policy decision when they passed the legislation under which, I believe, this lawsuit is brought. (B) Yes diplomacy should be left to the diplomats, but this lawsuit is not "diplomacy," it's litigation.
Pipes: That's certainly how the State Department sees it — nothing gives them more heartburn than citizens initiating lawsuits against foreign governments, which they dismiss as interference in the high art of diplomacy. Unfortunately for it, the Foreign Sovereign Immunities Act of 1976 permits Americans to bring lawsuits against any foreign state "in cases involving personal injury and death as a result of the tortious conduct of a foreign state occurring in the United States," notes the international legal expert Leonard Garment. In all, this is a good thing; citizens should be able to press legitimate grievances rather than be shunted aside for some theoretical state interest.
Holzer: Dr. Pipes is correct. The Foreign Sovereign Immunities Act of 1976 is much more than simply another statute creating a cause of action and allowing suit to be brought pursuant to it. The statute is a recognition by the United States government that the rights of Americans (and others lawfully in the United States) trump archaic claims of sovereign immunity rooted in the quaint notion that "the king can do no wrong." The statute was a long time in coming, and it also trumps the many (but not all) whores in the State Department who, while sleeping with other countries, have traditionally put their self-elevated mission of diplomacy far ahead of the rights of individual Americans. (See the many cases of Americans languishing in foreign jails, with hardly any help from our embassies and consulates, just for example.)
Haqqani: The right of individuals to seek redress from courts of law cannot be taken away for any reason including the fear of impairing diplomacy. But in lawsuits with political implications, there is always the prospect of setting precedents that tie the hands U.S. diplomats in future. U.S. foreign policy is not always perfect and those involved in its conduct do not always follow the laws of all sovereign states. Decisions in lawsuits here will influence the course of lawsuits in other parts of the world against the United States and its citizens.
Question #5: Does the lawsuit against the Saudis stand a chance at any success?
Gerson: Of course. A good chance.
Pipes: The winding down of the Pan Am 103 case against Libya shows just how successful such litigation can be. A Scottish appeals court in March upheld the conviction of a Libyan intelligence agent for the 1988 bombing which killed 270.
Holzer: It's good that settlement negotiations are occurring with the Libyans, and we can all hope that a settlement acceptable to the survivors of Pan Am 103 will be reached because if one cannot, the problem will be, as it is in all these cases, how to collect. Especially with the State Department resisting the successful plaintiffs' collection efforts, and it has in other cases.
One last thought. FSIA cases should be brought every time an opportunity presents itself, not only because justice demands that torturers and others understand that the long arm of the United States legal system can reach them, but also because bringing these cases is a powerful statement that Americans have rights and that wrongdoers will be punished. The Scottish verdict closes thirteen years of litigation and permits families of the victims finally to press civil claims against Libya's government, with full U.S. government endorsement: "The president expects Libya to fulfil [its] obligations," says the White House spokesman. "The court has spoken. It's time for Libya to act." Negotiations are indeed underway in Paris, with the families demanding more than $10 billion (or about $40 million per death).
Haqqani: This is a question for lawyers more than for political scientists or area specialists. The difference between the Pan Am 103 case and the present lawsuit is that the U.S. government considered Libya a rogue state and supported the claim of its citizens against Libya. Saudi Arabia remains a key U.S. ally and so far there is no indication that there is a change in U.S. government attitude towards the Kingdom.
Final Question: Well gentlemen, our time is up. Let's just wrap up with a general question: what do you think are the two or three most significant aspects about this lawsuit and what do you think they symbolize? And how about a prediction about the lawsuit?
Holzer: I would say that one of the most significant aspects about this lawsuit is that the Foreign Sovereign Immunities Act exists, and that at least theoretically foreigners who harm Americans can be held accountable for their actions. The Act's existence and these two things about it symbolize the importance this country places on individual rights and accountability — and that no one should be able to injure Americans and get away with it. In terms of a prediction, if you look at my earlier comments about default, it becomes pretty obvious what I think will happen.
Pipes: The prospect of suing the Saudis offers a way for victims' families to take a major step toward penalizing and defunding terrorism - at a time when their government is too timid to do so.
A prediction? Well, the political establishments in both Saudi Arabia and the United States will work mightily to prevent this case from succeeding. They will probably prevail, but not without exposing the shoddiness of their enterprise.
Gerson: The suit symbolizes the ascent of humanitarian law articulated at Nuremberg in a criminal context in The Bankers Case and brought to bear in current exigencies through the rise of a new jurisprudence which makes clear that terrorism can start with an act so banal as the click of a computer mouse for effecting a transaction.
If the person making that transaction has reason to know that injury or death may result, the smallness of the contribution is no excuse; nor is the fact of no actual knowledge of the specific terrorist act.
If we are to deal with terrorism effectively a new ethic (or maybe a return to an old ethic) of personal responsibility must take root. It will be the obligation of the courts to chart these waters, but I am confident that the path embarked by Congress and the courts to ever increasing accountability will continue.
Haqqani: The American public is justifiably enraged by the events of September 11 and seeks to hold accountable all those responsible for this tragedy. But terrorism is an elusive enemy, which frustrates the desire for immediate retribution and accountability. This lawsuit is an effort to seek 'justice' through the U.S. judicial system for a matter that needs to be handled through the political and diplomatic process. Those who feel that the Saudis are complicit in terrorism need to persuade the U.S. government of their view and secure the changes in U.S. foreign policy that would make pursuing individual claims easier. Irrespective of the outcome of this litigation, the fact remains that Saudi Arabia for all its faults simply cannot be equated with Iraq under Saddam Hussein or Afghanistan under the Taliban.
Pipes: Persuading the U.S. government to take steps against the kingdom sounds pretty hopeless to me, given the cozy culture of corruption that prevails in the top circles (for more on this, see my testimony to the House Committee on Government Reform at http://www.danielpipes.org/article/420/).
Holzer: Mr. Haqqani, you talk about how America's "elusive enemy" frustrates "immediate retribution and accountability." Don't worry, we'll take as long as it takes. And in stating that this matter "needs to be handled through the political and diplomatic process," you propose nothing less than appeasement of those who shed innocent blood on 9/11.
It is interesting that, with everything that we already know, you refer to those who "feel" that the Saudis are complicit in terrorism. Sorry, but if this lawsuit is allowed to bring the evidence out into the open, this whole case will have nothing to do with "feeling," but with proof.
Your statement about the plaintiffs needing to "persuade" the U.S. government of their cause is nothing but double talk. The bottom line is that the plaintiffs here in civil litigation don't have to convince the government of anything, only a jury; individuals don't have to convince the government of anything. I find especially intriguing your sentence: "Irrespective of the outcome of this litigation, the fact remains that Saudi Arabia for all its "faults". . . ." Sponsoring terrorism is not a "fault," it is a crime.
Face it, Mr. Haqqani: your stance represents the attitude of an apologist and an appeaser. Stay tuned to what the freest nation in the world does to the terrorists — including your friends, the Saudis.
Haqqani: Mr Holzer has obviously never read anything written by me otherwise he would not have called me an appeaser or an apologist. U.S. Presidents from FDR to George W. Bush have been closer friends of the Saudis than a critic like me can ever be.
The role of several U.S. allies, including Saudi Arabia, in contributing to extremism and terrorism merits attention and investigation of the U.S. government. U.S. policy towards authoritarian regimes in the Arab world needs to change. But this requires a political change in U.S. policy.
In my opinion that is unlikely to be promoted by litigation, that's all. Anti-Saudi enthusiasts must also take into consideration the fact that Osama bin Laden's call for war against the U.S. is also aimed at the House of Saud. Demands for reform in Saudi Arabia are reasonable and I have joined in making those demands. But casting the Saudis in the same mold as Al-Qaeda, which hates them, is simply wrong policy.
Interlocutor: Mr. Haqqani. . .sorry, I can’t restrain myself here.
That U.S. leaders shrewdly allied America with Saudi Arabia during the Cold War against the Soviet regime, which was one of the most evil, ruthless and genocidal regimes in world history, and which posed a nightmarish threat to freedom-loving people everywhere, does not discredit U.S. policy. Nor does it exonerate you personally from your curious desire to excuse the Saudis from their obvious and shameful connection to 9/11.
On the one hand, you apologize for the Saudis; on the other, you openly admit that, along with "several U.S. allies," Saudi Arabia contributed to extremism and terrorism. But instead of concluding that the Saudis should be punished, you call for the investigation of the U.S. government.
In other words, in your illogical view of justice, if the Saudis funded and supported terrorism, they should be forgiven because, well, they were just funding and supporting terrorism. At the same time, the Americans should be punished for supporting the Saudis -- who you maintain are innocent. . .
It appears that anti-Americanism can become so pathological that it can completely rob an otherwise wise man from all of his critical faculties.
Mr. Haqqani, you say that "U.S. policy towards authoritarian regimes in the Arab world needs to change." Since you are supposedly an expert on these matters, surely you understand that this "change" will, in the circumstances of this time, spawn a situation where Islamo-fascists, who have received their ideology, power and funding from the Saudis, would come to power in either a violent revolution or in a "one democratic election for the first and last time" scenario.
But perhaps this scenario suits your own private vision of political utopia: a world increasing dominated by dangerous and totalitarian enemies of the United States.
You complain that a "political change in U.S. policy" is "unlikely to be promoted by litigation, that's all." Sorry, but your anti-Americanism has unfortunately blinded you from the entire point of the lawsuit that we are discussing in this Symposium. I hope this isn’t news to you, but the lawsuit against the Saudis is not about the families of 9/11 victims trying to change U.S. foreign policy; it is about their effort to punish those who provided the means, motive, opportunity, and blessing to the fanatics who killed their loved ones on 9/11.
Mr. Haqqani, you finish by saying that "casting the Saudis in the same mold as Al-Qaeda, which hates them, is simply wrong policy." I have reread this sentence about twenty times and I get more confused each time I read it. I fail to understand how it could be "wrong" to associate terrorists to those who have given them their ideology, arms, and money. You say Al-Qaeda hates the Saudis. Well, I guess sometimes fanatics and terrorists hate themselves. You do know, I hope, that the Saudis have supervised and funded the recruitment of thousands of their own holy warriors to wage jihad against the United States. And I think that if you use your imagination, the fraction 15/19 might mean something to you.
Al-Qaeda "hates" the Saudis? Right. Adolph Hitler might also have hated the devil, but it doesn’t mean that he didn’t come from hell, nor that he didn’t do the devil’s work.
And that, when all is said and done, is what we were talking about in this Symposium: the lawsuit against those who are responsible for 9/11. In other words, the lawsuit against the Saudis. . .
In any case, I think we have to have another round on this. And I appreciate you joining us Mr. Haqqani and I hope you return. Thank you also Mr. Gerson, Mr. Pipes and Mr. Holzer. It was a pleasure. We’ll see you all again soon on Frontpage Symposium.