Analysis: Legal manuevering around Saudis in 9/11 case

http://newsandinsight.thomsonreuters..._in_9/11_case/

3/8/2012

NEW YORK, March 8 (Reuters) - Fresh questions about the possible involvement of the Saudi government in the Sept. 11, 2001 attacks might make waves in Washington, but it's unlikely they will be considered by a judge on the case for years -- if they are heard at all.

In two affidavits filed late last month, former Democratic U.S. Senators Bob Graham of Florida and Bob Kerrey of Nebraska said that serious questions remained about Saudi Arabian involvement in the attacks.

But the oil-rich kingdom is no longer a defendant in lawsuits, consolidated in U.S. District Court in Manhattan, which are seeking to obtain damages from foreign governments and entities accused of backing the attacks.

Last week, The 9/11 Families United to Bankrupt Terrorism, a group that says it represents over 6,600 family members of those killed, cheered the senators' letters and called on the court to launch an investigation into the question of Saudi involvement.

Saudi Arabia was dismissed as a defendant in 2005 by the judge then overseeing the case, citing lack of jurisdiction under the Foreign Sovereign Immunities Act (FSIA) of 1976.

Under the act, foreign states and their offshoots are presumed to be immune for U.S. law except under certain exceptions, such as terrorism. In the Sept. 11 cases, however, the judge found the plaintiffs had not shown that the Saudi defendants' supposed actions had lost them their immunity.

Experts said the immunity question -- a legal one -- would first have to be addressed by U.S. District Judge George Daniels, who is overseeing the case, before he considers whether or not the Saudis were involved.

"The exception to the Foreign Sovereign Immunities Act that the plaintiffs are seeking to invoke is not related really to the merits of the case," said Ingrid Wuerth, a law professor at Vanderbilt University. "Although the affidavits help them prove the merits of the case, the immunity question is a preliminary one. I don't see it as doing much to change the legal analyses."

Out of the over 200 entities and governments originally sued by the plaintiffs - mostly the families of victims of the attacks -- about 100 are still listed as defendants, and active litigation is ongoing with less than 10, a lawyer involved in the case said.

The most recent activity by the plaintiffs was spurred by a decision in November by the 2nd U.S. Circuit Court of Appeals. In that ruling, the court allowed a lawsuit seeking damages from Afghanistan over its alleged support of the Taliban and al Qaeda to proceed.

Based on that opinion, lawyers for the Sept. 11 victims asked Judge Daniels to reinstate claims against the Saudi government and the Saudi High Commission for Relief of Bosnia & Herzegovina, a charity, arguing they should be brought back into the case under the appeals court take on the FSIA.

Lawyers for the Saudi government responded by saying that the plaintiffs could not legally reopen the case, and that the kingdom had been exonerated of any involvement in the attacks.

On Feb. 24, the plaintiffs responded by submitting the affidavits.

Those allegations, however incendiary, will not be taken up by the judge anytime soon, as the formal legal questions have still not been resolved, plaintiffs lawyer Robert Haefele conceded.

"For the moment, the issue before the court is not about what the Kingdom of Saudi Arabia or the High Commission did; it is about whether or not the Foreign Sovereign Immunity Act applies to grant them immunity," Haefele said.

In fact, the affidavits may have been a pre-emptive strike by plaintiffs attorneys in order to pressure the Saudi government to pay a settlement.

"Between the legal argument of getting the Kingdom back into the case as a defendant, along with the senators affidavits and the facts of the Saudi involvement, I believe at some point the Kingdom is going to take the position that it is willing to contribute money to end the 9/11 litigation," plaintiffs attorney James Kreindler said.

The consolidated case is In Re: Terrorist Attacks on September 11, 2001, U.S. District Court, Southern District of New York, no. 1:03-md-01570.