In a stinging rebuke to the Obama administration, lawyers representing victims of the 9/11 attacks charge that the government sought to "appease" Saudi Arabia by urging the Supreme Court not to hear arguments that the kingdom could be sued for its alleged role in funding the attackers.
"The government provides this court with no legal or policy basis to follow its apparent effort to appease a sometimes ally," the plaintiffs said in a brief filed with the Supreme Court late last night.
"Its brief devotes not even a single sentence to the harm suffered by the 9/11 victims, the public interest in permitting the victims their day in court, Congress' intent . . . or the consequences of closing courthouse doors to future victims of terrorist attacks in the United States."
The arguments, contained in a brief filed by the Center City law firm of Cozen O'Connor and other lawyers representing victims, employed unusually scathing and at times emotional language, suggesting at one point that the government's brief was timed to coincide with President Obama's visit to Saudi Arabia last week.
A spokeswoman for U.S. Solictor General Elena Kagan said the May 29 filing of the government's brief had been determined by the schedule of the Supreme Court, which is expected to decide whether to hear the case by the end of the month. The solicitor general represents the executive branch in matters before the Supreme Court, and it was Kagan's brief that urged the court not to hear the case.
"The timing of the brief had nothing to do with anybody's travel plans," said Justice Department spokeswoman Beverley Lumpkin.
Dozens of insurers and thousands of individual victims charge in lawsuits combined in federal district court in Manhattan that Saudi Arabia bears responsibility for the 9/11 attacks because it funded and controlled Islamic charities that in turn bankrolled al-Qaeda. U.S. government officials say the Saudis were warned repeatedly in the late 1990s that the charities were suspected of funding terror, but the Saudis failed to react.
Yet, lawsuits against foreign governments typically are long shots because U.S. law substantially restricts circumstances under which they can be sued. In passing the laws, Congress feared that such litigation might interfere with U.S. foreign policy, while also exposing U.S. government officials to lawsuits in foreign courts.
Federal District Court Judge Richard Conway Casey dismissed the Saudi government and members of the Saudi royal family as defendants in 2005, citing the Foreign Sovereign Immunities Act. His decisions were upheld by the U.S. Court of Appeals for the Second Circuit last summer, and that decision is now on appeal to the Supreme Court, which has yet to decide whether to hear the case.
Plaintiffs' lawyers argue that lower-court opinions on key aspects of immunity law are in conflict and that the Supreme Court must step in to resolve the issues.
Notably, they say that the U.S. Court of Appeals for the Ninth Circuit found the government of Taiwan to be subject to the jurisdiction of U.S. courts after the assassination of a Taiwanese journalist at the direction of a senior Taiwanese intelligence official. That opinion conflicts with Second Circuit ruling last year that Saudi Arabia cannot be sued, they say.
The brief also accuses the government of asserting immunity under legal standards that it failed to articulate in open court.
"The government seeks the benefit of the immunity conclusion without assuming the burdens of proceedings or defending its analysis," the plaintiffs' brief said. "The government would be far less cavalier in its immunity assessment if forced to explain in open court why uncertain immunity principles require dismissal of claims regarding the worst terrorism attack committed on American soil."