Originally published at The Litigation Daily by Michael D. Goldhabe on 10/15/14
An earlier version of this story stated that 28 pages of the 9/11 Commission Report are classified. In fact, the 28 pages were redacted from the report by the congressional joint inquiry into 9/11 intelligence. The story has been so revised.
“I loooove to pick on the Saudis,” the South Carolina trial lawyer Ronald Motley said in a 2004 New York Times magazine cover story, “A Nation Unto Himself.”
The U.S. executive and judiciary are less eager to tweak the House of Saud. But Motley’s trillion-dollar 2002 claim against the Kingdom, captioned In re Terrorist Attacks on September 11, 2001, has experienced a slow-motion revival that culminated last month in the quiet filing of a devastating new complaint. The Sept. 15 amended complaint, filed by the late Motley’s more sober co-counsel at Cozen O’Connor, only seeks some $200 billion for Saudia Arabia’s alleged role in backing the 9/11 terrorists. The lively, 156-page narrative reads as a prequel to the 9/11 Commission Report, and as a much-needed corrective.
Exactly a week later, a jury in the world’s first terror funding trial found Jordan’s Arab Bank liable for funneling money from a Saudi state charity to Hamas during the Palestinian intifada. “The core issue in 9/11 and Arab Bank is the same,” says Motley Rice’s Jodi Flowers, who acts for the plaintiffs in both cases. “As one of the Arab Bank jurors put it: ‘The money and the financing is the oxygen for the terrorists.'”
But while the Arab Bank trial dealt with the flow of $100 million to one corner of world jihad, the 9/11 complaint assails the whole network of Saudi institutions that have spent billions to spread a radical form of Islam, and allegedly supported the 9/11 hijackers. Somewhere in mass tort heaven (or if you prefer, toxic tort hell), Ron Motley will be gratified to learn that the time to pick on the Saudis has arrived.
King Abdullah looked safe in 2008, when the U.S. Court of Appeals for the Second Circuit dismissed most of the state defendants from the 9/11 litigation. It reasoned that terror suits against states can only be brought under the terror exception to sovereign immunity. And Saudi Arabia can’t be sued on that ground because it’s not designated as a state sponsor of terror.
Fiddlesticks, said Paul Orfanedes of the Washington, D.C.-based nonprofit Judicial Watch. In a tendril of the litigation called Doe v. Bin Laden, directed mainly at Afghanistan, Judicial Watch argued that the Second Circuit’s ruling rested on an idiotic interpretation of the Federal Sovereign Immunities Act. In 2011, a different panel of the Second Circuit agreed. The new panel reasoned that the terror grounds for suing states was meant only to supplement the tort exception to sovereign immunity. So states that were not designated as terror sponsors could still be sued for torts. The new panel circulated its opinion to the rest of the Second Circuit, effectively overruling the 2008 opinion in a procedure quaintly known as a “mini-en banc.”
This Russian doll of a ruling is hard to even put in a lucid sentence. For “overruling the rejection of an exception to immunity” is nothing less than a quadruple negative. But Cozen O’Connor’s Steven Cozen understood that if Saudi was not, not, not, not liable, then it just might be liable. Smelling an opportunity, Cozen asked U.S. District Judge George Daniels to reopen the case against the Kingdom and one of its charities, the Saudi High Commission for Relief of Bosnia & Herzegovina. The trial judge declined, but in December 2013, Carter Philips of Sidley Austin persuaded the Second Circuit to reverse, and so revive the Saudi case. (For those counting at home, we’re now up to a sextuple-negative, which is rarely sighted even in law.)
This June 30, the U.S. Supreme Court let the ruling stand, and Ron Motley’s ghost began to stir.
The 9/11 Commission Report starts with the biography of Osama Bin Laden. The new complaint, whose filing was anticipated by Lawrence Wright, and nimbly noted by Chris Mondics and Daniel Fisher, goes back to 1744. That was the year the founder of the House of Saud forged a long-term alliance with a purist Muslim cleric named al Wahhab, who believed in eradicating deviant beliefs by force. Internal challenges to the House of Saud’s legitimacy in 1979, and again in 1991-93, led the princes to cede greater money and power to the Wahhabi clerisy (the Ulema). The Ulema have allegedly supported worldwide jihad, beginning in Afghanistan and running via the Balkans to Lower Manhattan, through Saudi state charities and the “Islamic Affairs Departments” of Saudi embassies. Their alleged love for terrorists has come in the form of both money and, for at least two hijackers, logistical support.
Wasting no time, the Kingdom’s lead lawyer, Michael Kellogg of Kellogg, Huber, Hansen, Todd, Evans & Figel, filed a new motion to dismiss on Sept. 15, the same day as the complaint it would hope to defeat. A foreign state may be sued only if its “entire tort” was committed on U.S. soil, Kellogg argues, and the allegations of Saudi support for 9/11 on U.S. soil are too thin.
The allegations against Saudi Arabia in the original 2003 complaint were necessarily thin because the pertinent 28 pages of the report by Congress’ joint inquiry into intelligence surrounding 9/11 have been controversially classified, inspiring the movement 28pages.org. Expressly putting aside the question of state-sponsored charities, the 9/11 Commission report itself “found no evidence that the Saudi government as an institution or senior Saudi officials individually funded the organization.”
When Cozen moved to reopen the case, 9/11 Commission member Bob Kerrey swore that “it is fundamentally inaccurate and misleading for the Kingdom … to suggest that the 9/11 Commission’s investigation exonerated them.” According to “The Uncensored History of the 9/11 Investigation,” staff members “felt strongly that they had demonstrated a close Saudi connection to the two hijackers,” but the report pulled up short out of political expediency. These voices have now found a forum.
The 2003 complaint alleged that a Saudi intelligence agent named Omar al Bayoumi, who spent a lot of money on Islamist causes while holding a no-show job with a company owned by a major al-Qaida funder at the insistence of the Saudi government, met with an Islamic Affairs officer at the Saudi consulate in Los Angles on the day two of the hijackers arrived in America. Bayoumi then greeted the hijackers at the airport, got them settled in a San Diego apartment, and later funneled money to them that originated with the wife of the Saudi ambassador.
The Kingdom called these pleadings inadequate on Bayoumi’s status as an agent, his knowledge of the bombing plot and his place in the causal chain. What the Kingdom perhaps failed to anticipate is that, with the benefit of time, the plaintiffs were able to flesh out the secret Saudi connection with 23 fairly damning pages of their own, on pp. 37-60 of the new complaint. Here are their new allegations:
In 1998, the FBI investigated Bayoumi after his apartment manager noticed that Bayoumi had received a suspicious package from the Middle East that broke open and showed wires protruding. The FBI closed the investigation, but not before allegedly concluding that Bayoumi was a Saudi agent. A chorus of local informants concurred.
Just before the hijackers’ arrival, Bayoumi roomed with a senior Saudi Islamist cleric accused of diverting Saudi charity funds to al-Qaida’s 1998 U.S. embassy bombings. Bayoumi opened a bank account for the hijackers, cosigned and guaranteed their lease and sometimes paid their rent. On the day he relocated them to San Diego, and soon after, Bayoumi made repeated calls to Anwar Al-Aulaqi, allegedly a senior al-Qaida recruiter and planner who was later killed by a U.S. drone strike. Bayoumi introduced the hijackers to Al-Aulaqi, who became their imam and, investigators believe, a trusted confidant with full knowledge of the planned attacks.
Bayoumi also allegedly introduced the two hijackers to Mohdhar Abdullah, whom he asked to get them acclimated. Abdullah allegedly bought fake IDs for the hijackers, helped them apply to language and flight schools and scouted out the airport with them. Bayoumi left the U.S. the summer before 9/11 without leaving a forwarding address.
The plaintiffs claim that Bayoumi sat at the center of a Saudi official network that supported the two San Diego hijackers financially and logistically. These men hardly knew English, they argue, and would have been lost without a support network.
From the time of their arrival until the attacks, the wife of alleged Saudi agent Osama Bosnan signed over to Bayoumi’s wife checks totaling some $150,000 for the alleged support of the two hijackers. (The money was apparently intended by Princess Haifa, wife of the Saudi ambassador, for Bosnan’s wife’s medical needs.) And in the days before the attacks, a senior member of the Saudi Ulema named Saleh Hussayen abruptly moved to the same Virginia hotel as the San Diego hijackers. The Second Circuit has found that this raises a plausible inference of intentional indirect support.
When the 9/11 Commission interviewed Bosnan, he implausibly denied knowing Bayoumi, even though witnesses called them close friends, their phones exchanged 700 calls in a year, and their wives had been arrested for shoplifting together at a J.C. Penney. When the FBI tried to interview Hussayen, he “feigned a seizure, prompting the agents to take him to a hospital, where the attending physicians found nothing wrong with him.” Hussayen then returned to Saudi Arabia to receive a promotion.
Bob Graham, the Senate intelligence chairman who cochaired the 9/11 Joint Inquiry, concluded in an affidavit when the plaintiffs reopened the case: “I am convinced that there is a direct line between at least some of the terrorists who carried out the September 11th attacks and the government of Saudi Arabia, and that a Saudi government agent living in the United States, Omar al Bayoumi, provided direct assistance to the September 11th hijackers [from San Diego]. … I further believe that al Bayoumi was acting at the direction of elements of the Saudi government.”
None of this is to mention allegations of Saudi support for the lead hijacker pilots out of both Germany and, according to a still-secret investigation, Florida. The lion’s share of the complaint alleges, charity by charity, the pervasive sponsorship of al-Qaida’s global jihad by state-controlled charities with the regime’s knowledge.
These are certainly allegations that a Ron Motley would enjoy sharing with a jury. Will the case ever get that far?
The Kingdom argues that the “whole tort” did not occur in the U.S., and the tort claim is based on “discretionary” acts. If it prevails on either point, then the 9/11 plaintiffs can’t sue a state actor under the tort exception of the Foreign Sovereign Immunities Act. Philosophically, there is the question of what actions and knowledge may be attributed to a state that we fictitiously treat as a single unit. Bob Graham says only that “elements” of the Kingdom supported terror. Likewise, 9/11 Commissioner John Lehman says “it was well-known in intelligence circles that the Islamic Affairs office functioned as the Saudis’ ‘fifth column’ in support of Muslim extremists.” A fifth column is sometimes defined as a subversive faction that undermines a larger group. Certainly, other elements of the Saudi government cooperate in the war on terror. May we say that both were acting for the state?
For better or worse, the 9/11 plaintiffs are back on an appellate treadmill. Whatever Judge Daniels decides on the Kingdom’s motion to dismiss, the case is sure to be appealed to the Second Circuit, and then to the U.S. Supreme Court. It’s hard to make the rebuilding at Ground Zero look efficient, but the U.S. legal system is doing its best.
One World Trade Center eventually rose from the ashes, and the 9/11 plaintiffs will likely get their day in court. They may or may not get to tell the story of Omar Al Bayoumi and the Kingdom of Saudi Arabia. But the plaintiffs are already in discovery against 18 defendants who are not insignificant. Among them are the three charities alleged to lie at the center of the Saudi state system for underwriting global jihad: the International Islamic Relief Organization, the Al-Haraiman Islamic Foundation and the Muslim World League (affiliated with the World Assembly of Muslim Youth). Also in the mix is an alleged al-Qaida financier (Wa’el Jelaidan) who occupied key positions in the Rabita Trust and the Saudi Joint Relief Committee for Kosovo and Chechnya. That pretty much covers the rest of the 156-page complaint.
The Saudi charities in discovery chose not to invoke sovereign immunity. They can argue on summary judgment that they’re not agents of the state. But they may have missed their best chance to get out of the case. With or without the Kingdom, they’re still headed toward trial.
If the case against the Kingdom of Saudi Arabia survives a new round of appeals, we project that In re 9/11 will go to trial in the Southern District of New York between Sept. 11, 2017, and Sept. 11, 2019. The ghost of Ron Motley will surely be there.
The Global Lawyer is a regular column by American Lawyer senior international correspondent Michael D. Goldhaber.