Pentagon: Don’t Sue the Saudis for 9/11

They may have promoted al Qaeda’s poisonous ideology. But Saudi Arabia is too valuable an ally against today’s terrorism to make the kingdom pay.

Photo Illustration by The Daily Beast

There’s a major push in Congress right now for a bill that could hold the government of Saudi Arabia legally responsible for the 9/11 attacks. U.S. military and counterterrorism officials now leading the fights against al Qaeda and ISIS think that bill is a terrible idea.

“We don’t need this debate right now,” one defense official said, like others speaking on condition of anonymity because they’re not authorized publicly to criticize the bill, known as the Justice Against Sponsors of Terrorism Act. Saudi officials have lobbied hard against the bill, telling members of the Obama administration, lawmakers, and journalists that the Saudi government has been a stalwart ally with the U.S. and was fighting al Qaeda years before it ever attacked American soil.

That message is resonating inside the Pentagon and in U.S. national security circles. Two former officials, who likewise declined to comment on the record about the bill, said it represented a troubling insertion of politics at a key point in the war against ISIS and would distract from a shared goal of combatting Islamic extremism.

Another currently-serving official said filing lawsuits against Saudi officials placed blame on the wrong party for the deadliest act of terrorism in U.S. history. “As far as I am concerned, Osama bin Laden attacked the United States,” the official said.

In the last two years, the White House and Pentagon officials have repeatedly clashed over the conduct of the wars against ISIS and al Qaeda. The opposition to the bill among defense officials is a rare instance in which those now battling al Qaeda—which carried out the 9/11 attacks—and running an air campaign against its ISIS progeny find themselves in agreement with the White House over the strategy to combat religious extremism and terrorism.

White House spokesperson Josh Earnest said Monday that President Obama would likely veto the bill, which would remove some barriers against bringing lawsuits against foreign government officials who support terrorist attacks that kill Americans. The administration fears that other countries might change their laws to weaken so-called sovereign immunity provisions, thus opening the door to foreign prosecutions of U.S. military personnel, diplomats, and government employees.

Obama will arrive in the Saudi capital Riyadh on Wednesday, amid tensions that were already flaring before the controversy over the proposed law. The president has publicly criticized Saudi Arabia’s human-rights record, its treatment of women, and Saudi funding of religious schools that teach a fundamentalist version of Islam.

U.S. officials acknowledged those long-standing grievances, which themselves may threaten to derail the bilateral relations in the long term. But for now, they argued, Saudi Arabia is one of the best U.S. partners in the region. They said its contribution to fighting extremism can be measured in the more than 1,000 suspected jihadists the government has arrested since the rise of ISIS in 2014, and in the Saudi regime proving to be among the most effective states at spotting potential attacks. Tactically, they see Saudi Arabia as an ally in the war against extremism.

The New York Times reported that Saudi officials have threatened to sell more than $750 billion in U.S. treasury securities and other assets were the bill to become law. But it’s unclear how the Saudis would unload such an enormous sum without losing much of their investment in a fire sale and setting off a global panic.

For their part, the Saudis have portrayed the sale as a way to protect their assets from being frozen amid lawsuits. But the threat has rung hollow in Washington because it would probably hurt the Saudis more than the U.S.

Still, there are other ways Riyadh could punish Washington. Officials said that Saudi Arabia could threaten to curtail ongoing joint efforts to combat terrorism by withholding military and intelligence assistance, for instance.

The country could also stop buying U.S. made weapons.

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That alone could have a large impact. According to State Department statistics released last month, the U.S. has authorized $33 billion in defense sales to the six members of the Gulf Cooperation Council since last May, and Saudi Arabia was the biggest purchaser among the GCC states. (The other members are Bahrain, Kuwait, Oman, Qatar, and the United Arab Emirates.)

“Saudi Arabia is one of the top arms purchasers in the world, with the U.S. being a major supplier,” Lori Plotkin Boghardt, an expert on the Gulf at the Washington Institute for Near East Policy, told The Daily Beast. “One area where they could respond would be to direct weapons purchases to companies of what they consider less complicated countries.”

Still others are confident that no matter how much the U.S. needs Saudi Arabia to defeat ISIS, Saudi Arabia needs the U.S. more. The regime fears Sunni extremist elements could try to undo a kingdom that is already battling falling oil prices and an ensuing economic crisis.

U.S. officials said they weren’t ignorant of the many long-standing issues that have divided the two countries. Some said they shared Obama’s comments, revealed in a recent feature story in The Atlantic, that Saudi Arabia’s decades-long support of a certain thread of Islam, Wahhabism, has fueled the ideology that became ISIS and al Qaeda.

As it was described in the piece, Malcolm Turnbull, the prime minister of Australia, recently asked Obama during a private meeting, “Aren’t the Saudis your friends?”

According to the piece, the president smiled and responded: “It’s complicated.”

But the politics of that relationship may have reached a breaking point. Debate over the bill is happening as the Obama administration says it may soon declassify 28 pages from a joint congressional inquiry into the 9/11 attacks that are said to find potential links between Saudi government officials in the U.S. and some of the terrorists.

The bill has also gained support from Republicans and Democrats, including GOP presidential candidate Ted Cruz and Democratic frontrunner Hillary Clinton. Holding Saudi Arabia accountable, it would seem, is an issue that both parties can agree on.

“If Saudi Arabia participated in terrorism, of course they should be able to be sued,” Sen. Chuck Schumer (D-NY), a co-sponsor of the bill, said Monday. “This bill would allow a suit to go forward and victims of terrorism to go to court to determine if the Saudi government participated in terrorist acts. If the Saudis did, they should pay a price.”

There’s precedent for the surviving family members of Americans killed in terrorist attacks suing for damages. In 1998, U.S District Judge Royce Lamberth ordered the government of Iran to pay nearly $250 million to the family of a 20-year-old exchange student who died in a bombing in Israel that was carried out by a militant group linked to Iran.

Just two years ago, Lamberth awarded $454 million to 62 relatives of some Marines and Navy corpsmen killed in the 1983 suicide bombing of the U.S. Marine barracks in Beirut, Lebanon, an attack that was also blamed on Iran. Family members of that attack have won billions in damages in other cases.

And on Tuesday, the family of journalist Steven Sotloff filed a lawsuit against the government of Syria, alleging that it provided “material support” to the ISIS militants who kidnapped Sotloff and beheaded him in 2014.

Under U.S. law, Americans can sue foreign governments for acts of terrorism that occur overseas. The proposed bill would allow lawsuits to go forward if the terrorist attack occurred in the U.S.

But it’s not clear that anyone who brings a law would ever see such big judgments as in previous cases—much less ever actually obtain the money. What’s more, there’s no guarantee they’d even have their day in court.

Any successful case would have to demonstrate that a Saudi official who assisted with the plot was doing so in connection with his job, and not undertaking that support entirely on his own without any official knowledge, Peter Margulies, a professor at the Roger Williams University School of Law, told The Daily Beast.

“You’d have to show that in some way the government contemplates this, it’s part of the job description,” Margulies said. The bill as it’s written now wouldn’t remove all the protections that foreign officials enjoy, and significant legal and jurisdictional hurdles would still be in place.

In that respect, the bill is not as “radical” as some of its critics have charged, Margulies said. “On balance… [it’s] a worthwhile effort that will promote transparency and accountability. I think there’s strong evidence that at the very least the Saudi government didn’t diligently monitor the behavior of its mid- and lower-ranking officials” who may have aided the 9/11 hijackers, Margulies said.

But, he added, “It’s not going to be open season on the Saudis.”

Updated 9:22 a.m. to correct Gulf Cooperation Council, previously referred to incorrectly as the Gulf Coordination Council.