For lots of readers, I suspect Saturday’s front-page New York Times story by Mark Mazzetti was their first exposure to the ongoing efforts by 9/11 victims and their families to sue the government of Saudi Arabia and other entities in U.S. courts over their alleged role in providing financial support for the September 11 attacks. Indeed, allegations of Saudi involvement are also back in the public eye in connection with the possible declassification of 28 pages of the 9/11 Commission’s Final Report that supposedly deal with the role and responsibility of various senior Saudi officials.
In a nutshell, (1) the 9/11 plaintiffs’ claims–that the Saudi government and a wide range of other entities, including banks, provided material support to the perpetrators of the 9/11 attacks–have gone nowhere, thanks to a series of shifting (but now largely stabilized) court rulings concerning the Foreign Sovereign Immunities Act (FSIA) and the Anti-Terrorism Act (ATA); (2) Congress is now considering legislation–the Justice Against Sponsors of Terrorism Act (JASTA)–that would in effect overrule each of those holdings; and (3) the Obama administration is, as Mark’s story explains, aggressively lobbying against that legislation, out of fears over the potential diplomatic and economic consequences of U.S. court judgments against the Saudi government that could run into the billions of dollars, and concerns over reciprocity from foreign countries.
In this post, I aim to provide a more detailed explanation of the legal background against which JASTA is being considered–so folks can better understand exactly what courts have held to date, and why JASTA could be a big deal, albeit in a very narrow class of cases.
I. The FSIA and the Terrorist Attacks Litigation
The shifting litigation sands vis-a-vis Saudi Arabia date back to a pair of 2005 district court rulings (In re Terrorist Attacks I and II), which threw out claims against the Saudi government and other state-run entities on the basis of the FSIA’s “discretionary function” exception. That exception preserves the sovereign immunity of foreign states even over non-commercial torts (for which the FSIA otherwise allows suits) if the tort resulted from discretionary conduct on the part of a foreign sovereign (e.g., whether to provide financial support to particular entities with links to terrorist organizations).
On appeal, the Second Circuit affirmed in In re Terrorist Attacks III, albeit on different grounds: The Court of Appeals there held that a different FSIA provision, waiving the sovereign immunity of “state sponsors of terrorism,” was the exclusive means for seeking to hold a foreign sovereign liable for its involvement in acts of terrorism, and so the fact that the State Department had not designated Saudi Arabia a “state sponsor of terrorism” precluded liability under any of the FSIA’s other exceptions (including the non-commercial tort exception) for terrorism-related claims. The court also held that it lacked personal jurisdiction over many of the other defendants (a holding that the Second Circuit would expand upon in its April 2013 decision in Terrorist Attacks IV).
The plaintiffs in Terrorist Attacks III sought certiorari, at which point the Supreme Court called for the views of the Solicitor General. In its “CVSG” brief, the U.S. government recommended that the Court deny certiorari–albeit on an alternative ground from that relied upon by the Second Circuit: In then-Solicitor General Elena Kagan’s view, the FSIA could theoretically allow a foreign sovereign to be held liable for terrorism-related non-commercial torts even if it was not a state sponsor of terrorism, but only if, as the Supreme Court had already interpreted the non-commercial tort exception in Amerada Hess, the “entire tort” took place within the territorial United States (as opposed to the injury arising from the tort).
As the government argued, even taking the plaintiffs’ allegations as true, a material amount of the allegedly tortious conduct (including the alleged help in financing the 9/11 attacks) took place overseas. Thus, the government offered a far narrower (and less vulnerable) ground on which to defend the Second Circuit’s ruling–which may have had a lot to do with the Supreme Court’s subsequent denial of certiorari, which appeared to conclude (at least at the time) the Terrorist Attacks litigation.
Things would indeed have ended there, except that, in 2011, the Second Circuit overruled its holding in In re Terrorist Attacks III, concluding in a different case (Doe v. Bin Laden) that the exceptions to the FSIA for non-commercial torts and state sponsors of terrorism were wholly unrelated–and therefore provided independent grounds on which to hold foreign sovereigns liable in U.S. courts. In other words, under Doe, a foreign sovereign that is not a “state sponsor of terrorism” can still be held liable for terrorism-related conduct under the FSIA, so long as one of the other exceptions–including the non-commercial tort exception–applies.
The Doe ruling led the Terrorist Attacks plaintiffs to file a Rule 60(b) motion for relief from the judgment in their earlier case, which provoked its own round of litigation, culminating in the Second Circuit’s December 2013 ruling that the plaintiffs were entitled to relief from the earlier judgment, which sent the case back to the district court for (re-)litigation of the original merits. Finally, last September, the district court nevertheless granted Saudi Arabia’s renewed motion to dismiss based upon the FSIA–because, as the U.S. government had argued in its 2009 CVSG brief in Terrorist Attacks III, the “entire tort” did not take place within the territorial United States, and so the non-commercial tort exception did not abrogate Saudi Arabia’s sovereign immunity. That ruling itself is now being appealed to the Second Circuit–so the underlying litigation remains very much ongoing…
II. The Anti-Terrorism Act and Aiding-and-Abetting Liability
Although the effort to hold the Saudi Arabian government liable notwithstanding the FSIA has received most of the headlines, there have also been concerted efforts by the 9/11 families to hold private individuals and entities liable under the Anti-Terrorism Act–which creates civil remedies for U.S. nationals to obtain triple damages against those responsible for injuries arising out of “an act of international terrorism,” but, notoriously, does not specify the parties against which such liability may be pursued, or the theories upon which such liability may be predicated.
As relevant here, the biggest open question is whether the ATA allows theories of “secondary liability,” i.e., whether claims may be maintained against entities that were not directly responsible for the underlying act of international terrorism, but that somehow supported it (including by aiding and abetting the perpetrators). Both the Second and Seventh Circuits (the latter sitting en banc) have expressly held that the ATA does not allow claims based upon common law understandings of secondary (or accessory) liability, although the Seventh Circuit in Boim III nevertheless adopted an expansive theory of primary liability–what Judge Posner called “primary liability . . . [with] the character of secondary liability.” As he explained, “In addition to providing material support after the effective date of section 2339A, a donor to terrorism, to be liable under section 2333, must have known that the money would be used in preparation for or in carrying out the killing or attempted killing of, conspiring to kill, or inflicting bodily injury on, an American citizen abroad.” Indeed, the Seventh Circuit explained, such not-quite-secondary liability requires proof of intentional misconduct–a high (and potentially insurmountable) hurdle to holding banks, governments, and other entities liable on a theory that they did nothing more than provide material support to the perpetrators of the underlying acts.
And the Second Circuit subsequently held that the ATA also requires proximate causation, i.e., that the tortfeasor’s contribution be a “substantial factor in the sequence of responsible causation and whose injury was reasonably foreseeable or anticipated as a natural consequence.”
I don’t mean to get lost in the doctrinal weeds (which are, as should be clear, quite densely packed). The larger point is that these circuit-level decisions, together with the nature of the 9/11 attacks themselves, have made it difficult to use the ATA to impose any civil liability against those indirectly responsible for September 11.
Understanding this litigation background should help to put into perspective exactly what JASTA does. The bill passed the Senate but died in the House in the 113th Congress, and has, to date, only gotten out of the Senate Judiciary Committee in the 114th Congress. As relevant here, JASTA would work four material changes to existing law:
- It would amend the non-commercial tort exception to the FSIA to abrogate sovereign immunity in tort suits “in which money damages are sought against a foreign state arising out of physical injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of the office or employment of the official or employee (regardless of where the underlying tortious act or omission occurs), including any statutory or common law tort claim arising out of an act of extrajudicial killing, aircraft sabotage, hostage taking, terrorism, or the provision of material support or resources for such an act, or any claim for contribution or indemnity relating to a claim arising out of such an act.”
- It would amend the ATA to expressly allow aiding-and-abetting liability not in all cases, but in cases arising out of an act of international terrorism “committed, planned, or authorized” by a designated Foreign Terrorist Organization (FTO): “[L]iability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”
- It would amend the ATA to allow personal jurisdiction against such entities to the constitutional limit “for acts of international terrorism in which any national of the United States suffers injury in his or her person, property, or business by reason of such an act in violation of section 2333.”
- It would also amend the ATA to repeal the prohibition on suits against “a foreign state, an agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority.”
JASTA’s amendments to the FSIA and ATA would apply to any civil action “pending on, or commenced on or after, the date of enactment of this Act; and . . . arising out of an injury to a person, property, or business on or after September 11, 2001.” In other words, the new law would apply to some pending cases–all those in which the underlying injury took place on or after September 11. Claims arising before September 11 would, presumably, not be covered.
IV. Taking Stock
It is certainly Congress’s prerogative to expand the scope of statutory liability that it created in the first place. And it’s hard to argue that amending the Anti-Terrorism Act to allow aiding-and-abetting liability (and more expansive personal jurisdiction) against private entities raises foreign relations and diplomatic questions nearly as grave or fraught as those provoked by the FSIA amendment.
The much more sensitive part of JASTA is the FSIA amendment and the last ATA amendment–which could be especially powerful for tort claims against foreign sovereigns that (1) are not designated as state sponsors of terrorism; but (2) could nevertheless be held liable in tort for “extrajudicial killing, aircraft sabotage, hostage taking, terrorism, or the provision of material support or resources for” an act of international terrorism within the United States, even where much of the underlying tort occurred overseas. At least at the moment, that basically appears to be at most a class of one–to wit, Saudi Arabia, at least if the allegations in the pending lawsuits are true.
Although it’s easy to be sympathetic to the plaintiffs in the Terrorist Attacks litigation, as Mark explained in his Times article,
Obama administration officials counter that weakening the sovereign immunity provisions would put the American government, along with its citizens and corporations, in legal risk abroad because other nations might retaliate with their own legislation. Secretary of State John Kerry told a Senate panel in February that the bill, in its current form, would “expose the United States of America to lawsuits and take away our sovereign immunity and create a terrible precedent.”
Those reciprocity considerations, combined with the concerns about the United States’ diplomatic relations with Saudi Arabia and the potential economic consequences if, as a result of the bill, Saudi Arabia seeks to withdraw as many of its financial resources from U.S. territory as possible, are what potentially makes JASTA such a fraught proposition.
I don’t have a strong position on whether Congress should enact JASTA’s FSIA amendment or the last amendment to the ATA, largely because I’m not in a good position accurately to balance the ramifications of enacting JASTA against the unquestioned entitlement of the 9/11 victims and their families to appropriate legal relief, or to assess whether, if the FSIA and last ATA amendment were excised, JASTA’s amendments to the rest of the ATA would still go a sufficiently long way toward providing the 9/11 victims and their families with meaningful judicial redress. Moreover, I suspect reasonable minds will disagree about which of these compelling but competing considerations should receive greater weight. My hope, though, is that this post will at least help to illuminate what the legal obstacles to relief for the 9/11 families have been to date, what JASTA would do to eliminate them, and why, per Mark’s story in Saturday’s Times, it has proven so controversial.
Update (4/18/2016, 6:14 p.m. EDT): This post has been revised to clarify the effect of JASTA’s fourth provision–which would not create a new exception to liability for the U.S. government and its officers, but would rather excise the existing bar on liability for foreign states and their officers. Thanks to a careful reader for prompting this important clarification!