Can Saudi government once again evade suit by 9/11 families?

April 14, 2015

(Reuters) – In dueling briefs filed Friday, the Kingdom of Saudi Arabia and the families of people killed in the attacks of September 11, 2001 made their last written arguments to U.S. District Judge George Daniels of Manhattan, who will decide later this year whether the families can bring claims against Saudi Arabia for allegedly helping al Qaeda operatives carry out the 9/11 attacks.

The two briefs present a starkly different view of what’s known about Saudi Arabia’s involvement with the 9/11 operatives – and what standard the plaintiffs must meet to continue litigating claims against the Saudi government. The government’s lawyers at Kellogg Huber Hansen Todd Evans & Figel, as well Robbins Russell Englert Orseck Untereiner & Sauber, which represents a Saudi charity alleged to have acted as an agent of the government, argue that exhaustive U.S. investigations of alleged ties between of purported Saudi operatives and the al Qaeda hijackers haven’t turned up solid evidence that the Saudi government knowingly and directly supported the attacks. Without that evidence, their brief argues, the 9/11 families cannot overcome the presumption that foreign sovereigns are immune from litigation in U.S. courts and their case against Saudi Arabia must be dismissed.

“Plaintiffs have attempted to meet their burden of production by submitting thousands of pages of inadmissible and irrelevant materials,” the Saudi brief said. “If they had a single piece of evidence that would stand up in court, they would highlight it in their papers. Instead, they focus heavily on witnesses manifestly lacking personal knowledge, and on newspaper articles, blog posts, and similar multiple hearsay. They thus reveal that they have nothing better.”

The plaintiffs’ brief, on the other hand, contends that even U.S. government officials who served on bodies that investigated 9/11 believe Saudi Arabia’s role needs more scrutiny – and they should be permitted to amend their complaint and proceed with discovery in their case.

The plaintiffs have obtained affidavits from former Navy Secretary John Lehman and former U.S. Senator Bob Kerrey, both of whom served on the 9/11 Commission, asserting that the commission did not exonerate Saudi Arabia and its report expressly left room for additional investigation of the Saudi government’s possible ties to the attackers. In addition, Senator Bob Graham, who co-chaired a congressional investigation of the attacks, said in an affidavit for the plaintiffs that, in his view, two Saudi officials in the U.S. at the time of the attacks lent support to the attackers.

The plaintiffs – represented by Cozen O’Connor, Motley Rice, Simmons Hanly Conroy, Kreindler & Kreindler, Anderson Kill, Adams Holcomb, Dickstein Shapiro and Ferber Chan Essner & Coller – argue that Saudi Arabia is asking Judge Daniels to answer the wrong question. The judge should not be deciding whether to grant Saudi Arabia’s motion to dismiss their suit but simply deciding whether to permit the plaintiffs to amend their complaint under the liberal guidelines for such amendments.

“The court need not, and should not, enter the rabbit hole defendants have constructed, whether for purposes of deciding the present motion to amend or defendants’ renewed motion to dismiss,” their brief said. “To the contrary, the court’s inquiry in the present context focuses solely on whether the proposed amended pleading presents a colorable grounds for relief that is not patently frivolous. Because it clearly does, and other factors also demonstrate that justice so requires, plaintiffs’ motion to amend should be granted.”

The two sides are also divided about the significance of deposition testimony the plaintiffs obtained from Zacarias Moussaoui, whom the Saudi brief described as a “convicted, mentally ill terrorist.” The plaintiffs, who interviewed Moussaoui at the supermax prison in Colorado where he is incarcerated, assert that his testimony establishes that “senior Saudi officials made direct financial contributions to al Qaeda” and that he personally traveled to Saudi Arabia to deliver communiqués from Osama bin Laden to onetime Saudi intelligence chief Turki al-Faisal and other Saudi government officials.

Saudi Arabia’s brief said that the judge shouldn’t believe a word from Moussaoui, who has himself previously described his own testimony about 9/11 as “a complete fabrication.” And however “colorful” Moussaoui’s “tangled, self-contradictory tale,” may be, according to the defendants, it is immaterial even if true.

“Colorful is when Zacarias Moussaoui testifies in a courtroom in New York and we watch the color drain out of the faces of the defendants,” said plaintiffs’ lawyer Jerry Goldman of Anderson Kill. Goldman said that Saudi Arabia essentially wants Judge Daniels to decide the merits of the plaintiffs’ case based on these motions, rather than letting the families gain access to discovery such as the documents seized from bin Laden’s hideaway in Pakistan. “The 9/11 Commission never spoke to Khalid Sheikh Mohammed,” Goldman said. “They want to hide witnesses from the American people.”

Saudi Arabia was previously dismissed as a defendant in the 9/11 families’ litigation back in 2005 but the judgment was vacated in 2013 after the 2nd U.S. Circuit Court of Appeals partly overturned its precedent on the tort exception to foreign sovereign immunity.

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