A federal judge has thrown out claims by family members of victims of the Sept. 11, 2001 attacks seeking to hold Saudi Arabia liable for assisting the hijackers.
Southern District Judge George Daniels said he lacked jurisdiction over Saudi Arabia and the Saudi High Commission for Relief of Bosnia & Herzegovina (SHC) under the Foreign Sovereign Immunities Act.
The reason, Daniels said, was a lack of plausible allegations connecting Saudi Arabia and the hijackers, out of whom 15 of 19 were Saudi citizens. The judge said there was insufficient evidence showing that the torts alleged in the complaint to be committed by Saudi Arabia and the SHC were committed in the United States.
The plaintiffs in In Re Terrorist Attacks on September 11, 2001, 03-MDL-1570, had also alleged that the development of al Qaida into a terrorist organization was funded and supported by Saudi government “da’awa organizations” called “charities” by the Saudis.
Faced with a high bar for subject matter jurisdiction set by the Foreign Sovereign Immunities Act, 28 U.S.C. §1602, the families claimed the defendants were nevertheless deprived of immunity by the act’s noncommercial tort exception.
For the exception to apply, the “entire tort” must be committed inside the United States and the tortious act or omission cannot be a “discretionary function” of the government being sued—a judgment or choice that is grounded in social, economic and political policy.
Daniels noted that the complaint alleged four Saudi “agents” assisted the hijackers, including one Saudi intelligence official, Omar al-Bayoumi, who purportedly helped hijackers Khalid al-Mihdhar and Nawaf al-Hazmi, but the judge called those allegations “conclusory.”
Similarly, the allegations about the “da’awa” organizations, which included the Muslim World League, the Saudi Red Crescent Society and the International Islamic Relief Organization, failed “to sufficiently show that Saudi Arabia controlled the day-to-day operations of these charities” and thus “fail to implicate Saudi Arabia under an alter-ego theory.”
The plaintiffs, Daniels said, “have not alleged a tortious act or omission by Saudi Arabia or SHC, or of any official or employee of Saudi Arabia or the SHC while acting within the scope of his office or employment, that was committed in the United States.”
Daniels said the complaint and the averment of facts “turn in large part on speculative opinions,” including the opinion of 9/11 Commission member and former secretary of the Navy John Lehman, who affirmed “I believe Nawaf al-Hazmi and Khalid al-Mihdhar knew who to go to for support, and that their initial encounter with Omar al-Bayoumi immediately following al-Bayoumi’s meeting” with an official from the Saudi Consulate’s Ministry of Islamic Affairs “was not at all coincidental.”
The plaintiffs cited the statements of two former U.S. senators, including Robert Graham of Florida, who was in the minority on the commission and said, “I am convinced that there was a direct line between at least some of the terrorists who carried out the September 11th attacks and the government of Saudi Arabia.”
They also cited statements of the would-be “20th hijacker,” Zacarias Moussaoui, who is serving life in prison after pleading guilty to the conspiracy in 2005. Moussaoui claimed a Saudi prince supported the plot.
Daniels, however, said these statements “do not give this court a legal basis to strip the defendants of the immunity to which they are presumptively entitled.”
The plaintiffs had asked Daniels to allow them extensive “jurisdictional discovery” they said would reveal facts sufficient to show the torts were committed in the United States, including still-classified information from the 9/11 Commission. But Daniels said their “allegations do not give rise to a genuine issue of jurisdictional fact.”
Sean Carter, a Cozen O’Connor partner and one of the lawyers representing the plaintiffs, said they plan to appeal. Carter lamented that evidence critical to his clients’ claims remains classified by the U.S. government.
“It’s unfortunate how much of a hand the U.S. government has had in the inability of the families to secure access to the courts to pursue these claims,” Carter said. “And it’s not just the classified information—the government has filed amicus briefs in support of the Saudi positions.”
Michael Kellogg of Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington D.C., one of the attorneys who represented the defendants, declined to comment on the decision.