Sept. 11, 2001, the twin towers of the World Trade Center burn behind the Empire State Building in New York.
Sept. 11, 2001, the twin towers of the World Trade Center burn behind the Empire State Building in New York. (Marty Lederhandler/AP Photo)

Efforts to pare back the Justice Against Sponsors of Terrorism Act this term fell short late Friday, despite a gusher of Saudi cash to lobbyists.

JASTA was passed by Congress on Sept. 28 over a presidential veto. Its main effect was to clear the way for the revival of In re Terrorist Attacks on Sept. 11, 2001, the monumental anti-terrorism case brought against Saudi Arabia and its charities by 9/11 families and insurers for allegedly supporting the al-Qaida hijackers. In re 9/11 has been dismissed with respect to Saudi Arabia pending appeal in the New York federal courts.

Sens. Lindsey Graham and John McCain proposed an amendment on Nov. 30 that would confine liability under JASTA to states that “knowingly” engage with a terrorist organization. Presented as merely a way to protect the U.S. government from boomerang litigation, the Graham-McCain amendment was decried by 9/11 families as a dagger to their case.

JASTA’s critics had hoped to cram their amendment into the lame-duck appropriations bill. But shortly before midnight Friday, the Senate passed a continuing resolution that manages to keep the government’s lights on without amending JASTA. The House passed a similar continuing resolution Dec. 8 (H.R. 2028). Even as Congress loudly averted a government shutdown, it quietly left JASTA untouched.

To be sure, McCain and Graham may try to amend JASTA in the next Congress. But in all likelihood, they have already missed their last best chance. Any amendment next term must pass through the Judiciary Committee, says 9/11 plaintiffs’ counsel Sean Carter of Cozen O’Connor. In that setting, he expresses confidence that senators with intimate knowledge of the act, such as co-sponsors Charles Schumer and John Cornyn, will safeguard its integrity.

In the long lead-up to last week’s votes, Saudi Arabia spent heavily on lobbyists to stop or roll back JASTA, and to counter a vigorous lobbying campaign conducted by the 9/11 families personally. The New York Times reported in September that the kingdom had spent over $5 million on public affairs the prior year. According to The Hill, its rate of spending then rose to $1.3 million a month.

The American Lawyer’s review of Foreign Agent Registration Act statements for the six months ending Aug. 31 shows that Saudi Arabia paid $500,000 to DLA Piper, and nearly $2 million to Hogan Lovells. The kingdom has employed lobbyists at a dozen other firms, including King & Spalding, Brownstein Hyatt Farber Schreck, and Squire Patton Boggs.

The activity logs reveal hundreds of contacts by Saudi lobbyists with senior politicians and staffers on Capitol Hill. Hogan Lovells met on the Saudis’ behalf with Graham in February and with McCain in March. In July, Qorvis MSL Group arranged a meeting for Saudi officials with Graham, and another with McCain. Through August, Hogan Lovells reached out to Graham or his chief of staff at least seven times.

Hogan Lovells, DLA Piper, Qorvis MSL Group and the Saudi embassy did not respond to The American Lawyer’s requests for comment.

For our earlier coverage of JASTA and the 9/11 litigation, please click here.

Contact Michael D. Goldhaber at mgoldhaber@alm.com.