The latest battle in what I like to call the most dangerous ground in the Middle East — that is, the no-man’s land between the White House and Congress — is erupting over Saudi Arabia. It centers on a bill moving through Congress that would strip the kingdom of sovereign immunity and allow lawsuits against it by families of those who perished in the attacks of September 11, 2001, which were launched by Osama bin Laden and, largely, other Saudi nationals.
So in the battle between the Saudis and the 9/11 families, up on whose side does the Obama administration fetch? It turns out, according to the New York Times, to be the side of the Saudis. The Saudis, the Times transmits, are threatening to sell off “hundreds of billions of dollars worth of American assets” — treasury securities and the like — “if Congress passes a bill that would allow the Saudi government to be held responsible in American courts for any role” in the 9/11 attacks.
In the face of this bluster, the Times reports, the Obama administration has been quietly lobbying congress to block passage of the bill. It quotes sources “from both parties.” It reports that the Saudi foreign minister, Adel al-Jubeir, was in town last month “telling lawmakers” that the kingdom would “be forced to sell,” as the Times paraphrased him, something like three quarters of a trillion dollars in American assets if there is a danger that Saudi accounts could be frozen by a court.
This is a fight worth watching — including in Israel. The idea of stripping foreign governments of sovereign immunity in cases involving terrorism goes back at least to the 1990s. That’s when, in 1996, Congress passed the Antiterrorism and Effective Death Penalty Act, which passed the Senate on a vote of 91 to eight and in the House without objection. U.S. President Bill Clinton signed it. Seven years after the bombing of Pan Am flight 103 over Lockerbie, Scotland, Congress had run out of patience.
It was under that law that the estate of Alisa Flatow, the Brandeis University student killed in a bus bombing in Israel, pierced the immunity of Iran. The Flatow case was not the only one. But when her heroic father, Stephen Flatow, tried to seize Iranian government assets in America, he discovered that the Clinton administration had entered court against him. It was one of the most appalling court cases I’ve covered in a long newspaper life.
How the latest maneuvering is going to end is hard to predict. Saudi Arabia isn’t covered by the same law that left Iran exposed, and in a lower court in September, the Saudis defeated an attempt to pierce their sovereignty. Congress is scrambling to pass a new law, which is what U.S. President Barack Obama and Secretary of State John Kerry are teaming up with the Saudis to block. Early versions of the bill had broad support. It is clear that Congress is in no mood to watch the 9/11 families get betrayed.
It’s a bi-partisan mood, by the way. Of the 22 co-sponsors of the measure, known as the Justice Against Sponsors of Terrorism Act, 12 are Republicans and 10 are Democrats. Among the Democrats are such liberal lions are Senator Charles Schumer of New York. It may be that Obama will change some minds with the argument that us piercing diplomatic immunity for terror states could lead to other countries piercing our own immunities.
Or Israel’s. This isn’t being widely discussed as yet, but it’s something think about. If the Saudis lose immunity in this fight, there won’t be any tears shed in New York City. But it may invite attempts to pierce Israel’s immunity in American courts. It’s not that I’m predicting this will happen. It’s just that it’s not difficult to imagine. The fear of things getting out of control was one reason the U.S. government eventually moved to defuse the Flatow case.
The denouement in that case came when the American government settled with her estate by essentially buying the estate’s claim against Iran at a few cents on the dollar. It paid out $16 million or so, a fraction of the $247 million a court had awarded. In return, the U.S. government got the right to anything it might be able to get from the Iranians (which I predict will be bupkis). Given the scale of the claims against the Saudis, however, that strategy might not be politically possible.
Particularly if Congress gets its back up in an election year. Where does Senator Bernie Sanders stand on the campaign by the 9/11 families? He’s not among the co-sponsors of the legislation. Where does Hillary Clinton stand? It was her husband who first fetched up in court on the Iranian side of the Flatow case. This isn’t something that’s likely to get into the debate during the primary campaign. But once the general election turns to foreign policy, hold onto your hat.
Seth Lipsky is editor of The New York Sun. He was a foreign editor of The Wall Street Journal, founding editor of The Forward and editor from 1990 to 2000. Follow him on Twitter: @sethlipsky