The Atlantic's James Fallows on how the fight over SCOTUS highlights the media's struggles to cover this political moment.
The Senate overrides President Obama’s veto of a bill that would allow 9/11 victims’ families to sue Saudi Arabia. How these lawsuits might work — and how other nations might respond.
- Karoun Demirjian Reporter, The Washington Post
- Stephen Vladeck Professor of law, University of Texas School of Law
- Yochi Dreazen Foreign editor, Vox; author, "The Invisible Front"
- Terry Strada National chair, 9/11 Families & Survivors United for Justice Against Terrorism
MR. JOSHUA JOHNSONFrom WAMU and NPR in Washington, I'm Joshua Johnson sitting in for Diane Rehm. Thanks for joining us. Diane is in Boston receiving an award from the Network For Excellence In Health Innovation. Bipartisanship came back to Congress yesterday in a big way to advance a bill over the objections of President Obama. The item passed through a veto override lets the families of 9/11 victims sue Saudi Arabia.
MR. JOSHUA JOHNSONJust ahead, we'll hear from the relative of a 9/11 victim who support this law and from a law professor who does not. But we begin here in studio with two reporters who have been following this. Yochi Dreazen is foreign editor at Vox. Yochi, welcome to the program.
MR. YOCHI DREAZENThanks a lot.
JOHNSONAnd Karoun Demirjian covers defense and foreign policy for The Washington Post. Karoun, glad to have you.
MS. KAROUN DEMIRJIANGood to be here.
JOHNSONKaroun, let me start with you. Yesterday's vote was overwhelming. The Senate voted 97 to 1. The House voted 348 to 77. What happened to make this such a landslide?
DEMIRJIANWell, this bill was a very politically popular measure. You had the families of the victims of the September 11th attacks have been pushing for this for years. It's been -- I believe the first iteration of the bill, which was much broader than what passed yesterday was introduced in 2009 so this has been, basically, seven years of campaigning for some sort of legislation to give these families a chance to sue Saudi Arabia for alleged ties to the terrorists who carried out the September 11th attacks.
DEMIRJIANYou had a lot of last-minute hand wringing that happened in the last few weeks. You had a lot of debate that was going back and forth between Congress and the White House as people that were concerned were raising objections to the bill saying maybe it's going to have repercussions that will actually be very bad for the United States. It'll damage diplomatic relations. But in the end, this was a very difficult vote for lawmakers not to take. We're talking about the families of the victims of the worst terrorist on U.S. soil that are saying we need this in order to get our day in court, in order to have justice due.
DEMIRJIANAnd it's very hard for a lawmaker to say no to that. And so everyone -- pretty much everyone, not absolutely everybody, but a vast majority of members of Congress from both sides of the aisle decided, yeah, we've got to take this vote for them.
JOHNSONThe optics of it would've been a little bit too persuasive for them to vote against allowing this law to live.
DEMIRJIANWell, not even just the optics, but even people that had criticism of the law were saying, look, I do also sympathize with the September 11th families, you know, because they do deserve something. We just are worried about doing something that's too expansive because maybe that'll create problems down the line that we're not foreseeing in this individual circumstance.
JOHNSONAnd we definitely want to get into some of those concerns about expansiveness, but first, let's lay out what this law actually is. Yochi Dreazen, tell us about the law. What is it called? What does it do? What changes does it make?
DREAZENSo it's called JASTA, the Justice Against Sponsored Terrorism Act. And what it does is basically put a giant loophole into a different law with the wonderful name of the Foreign Sovereignties Immunity Act. That law had basically said you can't sure foreign governments in American courts and the fear was that if you do, then other countries will sue the American government in their courts and it could just blow up and become an endless array of diplomatic incidents.
DREAZENThe fear, particularly right now, is for instance, the family of somebody who dies in Pakistan in an American drone strike can sue the U.S. government. But in this case, what this allows U.S. families to do, the victims of 9/11 is sue the Saudi government, try to get discovery motions and get paperwork from the Saudi government, information from the Saudi government. And if they win their case, have Saudi assets that are in the United States, where the Saudis own hundreds of billions of dollars of assets, frozen and then try to get that money for the families.
DREAZENWhat you've heard the Saudi government say is they will start selling off these assets. The threat is if they sell hundreds of billions of dollars of treasuries, of debt, of stock, it's basically saying we'll blow up your economy. But that's what it would allow it to do.
JOHNSONTalk about what President Obama wrote in his veto letter. Why was he opposed to this?
DREAZENSo he opposed it for a few reasons. One, he thinks that Saudi Arabia, the relationship with them, is too valuable to mess up. Two, he thinks this is a blunt instrument on a very narrow problem. And three, he worries a lot about what this could mean for what happens to the U.S. government. What other countries might U.S. citizens sue? What countries might sue the United States? And some of the comments from lawmakers who voted in favor of the bill, after the vote, were kind of amazing.
DREAZENThere's one I just want to read a little bit of because it gives you a sense of the tenor. This is from Bob Corker, the chairman of the Senate foreign relations committee, who voted in favor of it, not opposed. In favor. "I don't think the Senate or House has functioned in an appropriate manner. I have tremendous concerns about the sovereign immunity procedures set in place by the countries as a result of this vote." So that's about as good a critique as you could make and that's from someone who voted in favor.
JOHNSONKaroun, talk a little bit more about where the U.S. relationship with Saudi Arabia stands today. It's a little touchy, isn't it?
DEMIRJIANIt's pretty testy. I mean, this is -- it's a two-sided issue, right? From one view, the United States and Saudi Arabia have a very close relationship. You have the military component. I mean, the weapons component. Under the Obama administration, the United States sold Saudi Arabia over $110 billion worth of weapons that is really a record in eight years. You've got the fact that they are allies that have to work together in the war in Syria right now.
DEMIRJIANYou have issues of just the Middle East being counterbalanced between Saudi Arabia's alliances and Iran's and, you know, who we usually side with. But at the same token, Saudi Arabia has also funded and promoted this very fundamentalist reading of Islam that is very popular with these extremist groups. Now, Saudi Arabia will say, we don't support extremism. We don’t support terrorism. It's a problem for us, too. But I forget who said this phrase, which -- this really encapsulates the best, which is that, in a way, Saudi Arabia is both arsonist and firefighter when it comes to this question of what the problem is with these groups that are buying into this very, very strict reading of Islam, which is not in any way a majority of Muslim.
DEMIRJIANBut still, creates this -- is both somehow feeding into the problem and also fighting the problem. So that is the push and pull between the United States and Saudi Arabia. And these days -- and when I say these days, I really mean, like, this month, basically. We've seen this come to a head in a way that these simmering tensions, which have been under the surface for awhile have not erupted. We saw a vote that is very rare to happen about -- the Senate took a vote of disapproval. It didn't pass, but it was a vote to disapprove of the arms sales against -- that we sell to Saudi Arabia. Didn't pass, but it was the same week as the JASTA bill was being discussed and as the speech that we were waiting on, the speech had to come down.
DEMIRJIANSo you have a lot of things that have been simmering, tensions under the surface with the United States and Syria, coming out right now. And a lot of experts are saying, well, it's becoming more acceptable, really, to criticize Saudi Arabia than it has been in the past.
JOHNSONSo does that -- so you say it's becoming more acceptable to criticize Saudi Arabia. Does that feel like Congress' mood towards Saudi Arabia based, perhaps on that vote that didn't go all the way is pre-saging kind of that lawmakers are not quite as worried about (word?) ?
DEMIRJIANI think it's not taboo anymore to bring up things against Saudi Arabia as frequently or as vocally or as forcefully. It's just the juxtaposition of the two measures, even though one certainly passed and one didn’t, that that was a rare thing to have that happen, that confluence happen in Congress. But I think in general, what you have right now is you have just kind of a difference between where Congress is and where the administration is. And the administration is very concerned about making sure that it doesn't rock the boat diplomatically because of all of these alliances we have with Saudi Arabia, because of where our interests are aligned and where you need that partnership to function.
DEMIRJIANCongress, basically, their first obligation is to constituents and they're saying that -- it's almost like game of bluff-calling, at this point. They're saying we don’t really think that Saudi Arabia has anything worry about. If they're not guilty, what's the big deal?
JOHNSONRight. If you have nothing to hide, then what's the problem?
DEMIRJIANRight. If you have nothing to hide, what's the problem. This is just a law that's going to let people that have a legitimate grievance against a foreign state sponsor of terrorism that they allege it could be, you know, bring a court case. And if the court decides it's not a big deal, nothing to substantiate that, you have no problem. And they're saying that both to Saudi Arabia and to other countries that are worried about, well, you know, what if the United States decides that -- what if there are retaliatory actions? Excuse me. Saying that basically to the administration's position that this isn't just about Saudi Arabia, that other countries also could say -- could look at that and say, well, if the United States is going to have this standard, then we're going to change our standard, too.
JOHNSONThen we're going to do it, too. And we should be clear that these are lawsuits in U.S. federal courts, not like the international criminal court or like, Yochi, this would be a lawsuit in a federal court, right?
DREAZENThis would. I mean, we're not (unintelligible) to the ICC. I mean, there are two other things happening there, both really important to FLAG. One is there is fury, not just a concern, but actual fury both on Capitol Hill and in parts of the White House for that matter about the U.S. support for the Saudi war in Yemen. Right now, the U.S. is actively involved in helping Saudi Arabia carry out a massive campaign, and part of carpet bombing, against Iranian-backed Huthis inside of Yemen. The casualty figures are rather staggering. It's well over 1,000 dead. Many hundreds of children dead. Many people, including many U.S. allies say that the Saudis are committing war crimes, which means the U.S. is helping the Saudis commit war crimes.
DREAZENSo hanging over all of this, one is what's happening in Yemen with its complete carnage helped by the U.S. and two, the relationship with Iran. You have many on the Hill who say Saudi Arabia -- Iran is terrible. Saudi Arabia is terrible. We shouldn't tilt ourselves so much towards Saudi Arabia.
JOHNSONWe're coming up on a break in just a moment in our discussion of this bill regarding 9/11 victims families suing Saudi Arabia with Karoun Demirjian of The Washington Post and Yochi Dreazen of Vox. Glad to see people already lining up on the phones. If you'd like to chime in as well, we welcome your participation. Give us a call, 800-433-8850. 800-433-8850. Email us, firstname.lastname@example.org. Find us on Facebook or send us a tweet.
JOHNSONWe are @drshow. Yochi Dreazen, right before we go to break, there's been a lot of speculation and investigation over how involved the Saudis may have been in 9/11. What do we actually know about this, if anything? Very briefly.
DREAZENSure. We know that Saudis were among the 19 hijackers. Saudi Arabia provided many of them. We know Osama bin Laden, obviously, was a Saudi national whose wealth came from contacts with the Saudi government, from his family. We know that many wealthy Saudis funded al-Qaida and have funded other terror groups around the world. We don't know that the Saudi government itself knew about, condoned or added to it. So that Saudi Arabians contributed money, yes. That Saudi Arabia, the country, we don't know.
JOHNSONTime for a break. When we come back, we'll continue our conversation about this bill for 9/11 families to sue Saudi Arabia, including conversation with a woman who has a very personal reason to support this bill. She lost a loved one when the towers fell. Please continue calling in on the phone. 800-433-8850 or email us, email@example.com. I'm Joshua Johnson. We're back in a minute.
JOHNSONIt's "The Diane Rehm Show." I'm Joshua Johnson sitting in for Diane. Now let's hear from a woman who supports this bill for very personal reasons. Terry Strada is the national chair of 9/11 Families & Survivors United for Justice Against Terrorism. Her husband was working at Cantor Fitzgerald when the towers fell. Terry Strada joins us from Capitol Hill. Terry, welcome to the program.
MS. TERRY STRADAHi, thank you. Thank you for having me.
JOHNSONThank you for making time for us. Tell us why this bill is so important to you and to families who've been through what you've been through.
STRADAIt is so important to us to have the ability now to pursue justice, just like any other United States citizen has the right to do, to pursue justice in the U.S. court of law. So we're thrilled that the bill passed. And we look forward to, you know, now our case being able to proceed and go forward.
JOHNSONNow, you are on Capitol Hill now. Were you at Congress when the vote happened?
STRADAYes, I was. I was in both chambers yesterday, and it was extremely emotional and exciting and very gratifying to watch our Congress work so phenomenally well together. I mean, it was a bipartisan bill all along. And we had overwhelming support from both chambers. And it was really a true testament to our democracy.
JOHNSONNow, you've been focused on who financed the 9/11 terror attacks. What has made this process so difficult for you in terms of seeking justice?
STRADAWell, the lower courts has misinterpreted our law, a longstanding statute, that there's an exception to the foreign (unintelligible) after any act of terrorism. And they claimed that the entire tort had to happen within our borders. Anything that happened outside of the borders, well, then you can't hold that nation accountable.
STRADASo the analogy is if someone gives somebody money in a New York City café to blow a building up and people are killed, and it's a foreign nation, I can hold that nation accountable, because the whole entire tort happened within our borders. But if we take the same person giving the same money to the same person in Geneva, Switzerland, and he flies over here and carries out the terrorist attack, I can't hold that nation accountable because they gave the money outside our borders.
STRADAAnd that is just not the way the law was meant to be interpreted. Congress knew that. And that's why, you know, they got behind the bill to say that we need this law to allow the victims to have their day in court, and to give the court's jurisdiction to hear our case.
JOHNSONLet's talk about that day in court. How strong do you feel your evidence is to prove your case against the Saudis? I'm not asking you to show your hand, but, you know, if you were able to walk into court next week, how strong do you think your case is right now?
STRADAWell, if I didn't know anything about the evidence that we have, I would say the Saudis certainly did not want this bill to pass when they spent $5 million lobbying against the bill. So they must be very concerned about the evidence that exists about the role that they played in 9/11.
STRADAWhat we have exactly, I'm not sure, but it is about the financers, so I'm sure, you know, the banking system, the charities that they donated the money and the way it flowed into al-Qaeda, into other terrorist organizations, I imagine, you know, that's what they are so afraid of being known and learned about more. But it's very important that we do learn about it so that we can prevent future terrorist attacks. I mean, that was the other piece to (unintelligible), to deter future terrorist attacks against our nation.
STRADAYou know, accountability's important. The (unintelligible) future terrorist attacks is important. And JASTA will play a role in both of those.
JOHNSONWe're speaking to Terry Strada. She's the national chair of 9/11 Families & Survivors United for Justice Against Terrorism. Terry, I wonder what you make of President Obama's veto letter. He argued that this bill would jeopardize anti-terror operations around the world, and it would make it harder for us to prosecute the war on terror in a cohesive and methodical and a systematic way. What do you make of that?
STRADAWell, does any of that make any sense to you? I mean, he didn't address the language of the bill at all in the veto. He just went on all of these hypothetical, you know, unintended consequences that might possibly happen if this, you know, (unintelligible) A, B and C and X, Y. He just didn't -- it was almost rambling. It really didn't make sense because it didn't address the language of the bill. And the bill is (unintelligible) crafted to hold any nation accountable if they give logistical or monetary support to a designated terrorist organization that then carries out an attack on America, against United States citizens.
JOHNSONWell, I do -- I have to admit, I do kind of understand the argument because, I mean, if the United States has authority to go after countries that it has officially considered state sponsors of terror, Iran, Syria, countries like that, then if the United States determines through the process that Saudi Arabia is a state sponsor of terror, the law already allows for that. Can you see any logic in the president's argument that this might be leading us down a road that we'll regret?
STRADANo, absolutely not. How can you regret holding accountable the people that are financing terrorist attacks that are killing Americans? I mean, the people that are responsible for murdering 3,000 people have never had to answer on the merit in the U.S. court. It doesn't apply guilt or innocence. It just gives the court jurisdiction to hear the case. And they have every, you know, ability to defend themselves.
STRADAIf there's no evidence there, why do they claim they're innocent? Why did spend $5 million against the bill? It doesn't take us down any road other than a better, safer America, and justice for annihilating families to which we deserve. I mean, why have we been denied justice, something that every other United States citizen is entitled?
JOHNSONSo, Terry, what happens now? How will these lawsuits move forward? What's the timeline?
STRADAI don't know the timeline. You know, I'm not one of -- I'm not with the lawyers. I know it's a pending lawsuit. You know, there's a judge. I'm sure he has to set a calendar. I mean, that's the extent of what I know about a lawsuit, you know, that there is judge that oversees it, and lawyers that will go in and produce the evidence.
JOHNSONOne last thing I would ask you, Terry, before we let you go. Does this bill give you any peace of mind? I know that nothing can bring your husband back, but does this bill...
JOHNSON...help at all? Does this ease the pain at all?
STRADAYes, it eases the part where you wake up in the morning and go to sleep at night and you know that the people that killed your husband have completely gotten away with it. And now when I wake up, this morning, I said, the people that killed my husband, they actually will be held accountable. It's a very different feeling. It's a very satisfying feeling, and it's the right thing to do for my children and for our country.
JOHNSONTerry Strada is the national chair of 9/11 Families & Survivors United for Justice Against Terrorism. Her husband worked at Cantor Fitzgerald when the towers fell. Terry Strada, I am eternally sorry for your loss, but I am eternally grateful for you making time for us this morning. Thank you very much for talking to us.
STRADAYou're welcome. And thank you very much for having me.
JOHNSONLet's continue our conversation on the bill with Karoun Demirjian of The Washington Post and Yochi Dreazen of Vox. We will get to your phone calls momentarily. Karoun, what did you make of what Terry Strada said?
DEMIRJIANWell, that was the point I was making before, which is that clearly it's a very, very sympathetic argument that the families of the 9/11 victims were making, and that really grabbed members of Congress, and is why you saw such an overwhelming support for this bill. But, you know, the back and forth that you were both having right there does illustrate how split both sides are even though there actually is a lot more nuance about this piece of legislation than people tend to see.
JOHNSONIt's very nuanced stuff, yeah.
DEMIRJIANIt is, but in a weird way, it's -- we were talking about optics before, right? A lot of this has to do with the optics of how this bill is perceived by people on either side of it. Because the bill's a lot more nuanced than I think people on either side let on when they're making these campaigns. As far as for the 9/11 victims, right, they're saying that this gives you peace of mind, you can wake up and feel like the people might actually be brought to justice, but there is clearing that whole legal standard of proof, right? Which, as Yochi was saying earlier, there hasn't really been a smoking gun and hard and fast proof that ties the Saudi government to this.
DEMIRJIANAnd that is going to be a pretty difficult hurtle to clear in a court case. There also is this pesky little piece of this legislation that lets the Attorney General give a stay of proceedings for 180 days at a time, pretty much indefinitely. So if the government decides that a particular case that's being brought against another country is egregious that it's going to harm our national security concerns that much, there is a way for the government to step in and keep this from moving forward as swimmingly as everybody seems to think that it might on that side. On the other side of it, right...
JOHNSONSo wait, wait, wait. I don't want to blaze past that.
DEMIRJIANNo, no, it's fine.
JOHNSONDoes that mean that the administration, this one and potentially the next one, could just kind of kick this can down the road indefinitely through built-in language in the bill?
DEMIRJIANNot carte blanche, but in individual cases...
JOHNSONCase by case.
DEMIRJIAN...if there is something that arises that they consider that damning, that complicating for the United States, that then there is a mechanism in this bill that lets there be certain delays brought up. I mean, that's for one side of it. That's why I'm saying the optics for the 9/11 families -- victims' families, excuse me, are that the emotional argument then that this bill is not a complete solution, and yet, you know, you still have that much motion behind it.
DEMIRJIANThere are similar caveats on the other side as well, right? For the president's argument that, well, okay, fine, making this bill a law is going to cause all of these problems that's going to happen with the U.S./Saudi relationship, with other countries as well. Okay, we don't know that for sure. That's a warning of a maybe that could happen. But, you know, there's questions about how it's perceived. I mean, I was talking with somebody yesterday that said, it doesn't matter if this isn't actually Congress saying Saudi Arabia, you had a role in 9/11, that's pretty much how it's being perceived, as a verdict in Saudi Arabia.
JOHNSONWell, let me ask Yochi Dreazen about that. Has there been any reaction from Saudi Arabia in the hours after this bill passed?
DREAZENSo what the Saudis have been saying in the run-up to the bill and what they've been repeating a little bit since it passed, but mainly the run-up was, we hold a lot of your money. We will start selling a lot of what we hold, and that will do terrible things to your economy. They've said it obviously in a more diplomatic, polite way, but what they have said is, we will start preemptively selling hundreds of billions of dollars of the things we own inside the U.S.
DREAZENAnd that's kind of been the implicit threat. It's worth pointing out, the Saudi Arabian government for decades had been, if not the most powerful, for a foreign government it was the most powerful beyond APEC and the other groups that lobby (unintelligible). In the 1980s there was an attempt by APEC to block weapons sale to Saudi Arabia. The first President Bush said basically to APEC, do your best, and APEC lost.
DREAZENSo people, when they think of foreign governments with power in Washington, usually think of Israel. Saudi Arabia for decades was right behind it. And this has been the biggest slap to that relationship and the biggest punch to their face perhaps in the history of the relationship with the United States. And we can't -- we shouldn't look past just how massive and significant that is.
DEMIRJIANI agree, but by another token, you know, none of this exists in a vacuum, right? You don't have -- yes, Saudi Arabia made that threat several months ago, and the question is are they really going to make good on that threat at a moment at which Saudi Arabia's having its own economic problems. I mean, we just saw a news headline a few days ago that they were cutting government salaries by 20 percent or something, right? So it's not like you can just do something and have it not hit you back, especially when we're talking about economic relationships.
DEMIRJIANAt the same token, you know, concerns -- the not Saudi Arabia tied diplomatic concerns are raised because United States has a ton of military personnel overseas engaged in certain -- you know, engaged in engagements that are not necessarily globally popular. Afghanistan, Iraq, drone usage in Pakistan, even Israel related issues, right, saying, what if people drag American officials into court? What if it's not even that the court case goes anywhere, but we end up giving up state secrets in the proceedings?
DEMIRJIANI mean, these are all real concerns, but, again, those don't exist in a vacuum either. These countries all have relationships with the United States that are worth sustaining for other purposes. And this is the push and pull, right? Will that overarching relationship, U.S./Saudi, U.S./any other country, trump these concerns about these individual issues, like the JASTA bill that are making them mad?
JOHNSONThat's Karoun Demirjian of The Washington Post. I'm Joshua Johnson, and you're listening to "The Diane Rehm Show." Let's dive into some of your calls and emails. One email from Fay says, "The executive branch is responsible for foreign policy. Can this new law be deemed as unconstitutional as the legislative branch does not determine foreign policy?" Yochi.
DREAZENVery doubtful. There are all kinds of checks and balances, at least theoretically, built on to the executive branch's ability to carry out foreign policy to wage war. In recent decades Congress has basically given up a lot of those powers and the White House has taken them on themselves, but Congress does have a say. Congress does have some power. So the constitutional argument, if that was one the White House thought might happen, they wouldn't have felt the need to veto this. They would've just said, let a court knock it down. The fact they didn't gives you a sense that they don't think that that much has much weight.
JOHNSONLet's dive in on the phones now, 800-433-8850. Beginning with Gary in Savannah, Ga. Gary, welcome.
JOHNSONWhat's on your mind, Gary?
GARYWell, I just think that America needs a reality check when it comes to this whole 9/11 thing. First off, it was our dishonorable actions in Afghanistan that set the attack in motion with Osama bin Laden. Secondly, because of the address of the building, the survivor families were given millions of dollars, guaranteed educations, got to keep Park Avenue apartments.
GARYMeanwhile in Oklahoma City, which suffered a bombing, which killed children and hundreds of government employees, who, you know, don't count for anything, those people got no compensation. They didn't even get basic medical care. And they're still trying and still fighting for basic medical care. And the people who were in those building on 9/11 were part and parcel of companies that participated in and contributed to the economic collapse in 2006, and yet we hold them up as heroes.
JOHNSONSo you think that the 9/11 victims are getting favoritism?
GARYYes, they are. Exactly, they're getting it. Politicians are afraid to vote against this bill because then their opponents could hold it up and say, oh, look what they did. They didn't vote for the 9/11 victims.
JOHNSONWell, Gary, I hear your point, and thank you for calling in. This idea of the optics of the 9/11 bill is kind of compelling. Karoun.
DEMIRJIANYes, and it's difficult to take this sort of vote before an election season. But to speak, I guess, to give members of Congress some credit and not just consider them completely mercenary and base human beings in this regard, I think it actually is -- like, these people have all -- not all, but many of them have met with these families. It is a very sympathetic argument. It's very hard to say, you know, absolutely not to somebody who's grieving and just wants their day in court. It's not guaranteed a victory. It's not guaranteed any money out of this, but wants that, even with the real and significant diplomatic concerns and concerns about retaliation abroad.
DEMIRJIANBut the other thing is that I think there were a few details that your caller brought up there that seemed like they're, I don't know, massaging the chronology of things a little bit. Just especially given that, you know, we did go into Afghanistan. We started the war in Afghanistan after the September 11th attacks, and I think that's probably worth noting.
DREAZENThere was one thing he raised thought that I thought was interesting legitimately, which is the question of what is terrorism, what isn't and what does the U.S. government consider terrorism and what doesn't. The 9/11 families, this notion that they're living in Park Avenue apartment is very likely offensive. That said, the idea that they have gotten money from the U.S. government, whereas victims of other terror attacks have not, that is true.
DREAZENYou know, the victims of attacks that are not 9/11, there were not 3,000 of them, but prior terror attacks against U.S. service people in Lebanon, against U.S. civilians and service people in Saudi Arabia, they have not gotten the same resources. And the caller is right, that for Oklahoma City, which we should remember until 9/11 was the worst attack of domestic terrorism in American history, did not get these same types of benefits.
DREAZENPart of that is we're quick to say if it's an attack by a group like al-Qaeda, it's terrorism. For political reasons and other reasons, we don't like to necessarily say an attack by someone like Timothy McVeigh is terrorism in the same way.
JOHNSONTime to take one more break. We'll continue our conversation on this bill with Yochi Dreazen of Vox, Karoun Demirjian of The Washington Post. And after the break we will hear from a law professor who says that President Obama was right and we may just regret approving this bill. I'm Joshua Johnson. Glad to be with you. You're listening to "The Diane Rehm Show" from WAMU and NPR.
JOHNSONWelcome back. Let's continue the conversation about this 9/11 Victims Families Bill with Professor Stephen Vladeck. He's a Professor of Law at the University of Texas School of Law. Professor Vladeck, welcome to the program.
MR. STEPHEN VLADECKFantastic. Thank you for having me.
JOHNSONYou've expressed some real concerns about this bill. Partly that it's designed to take away some road blocks, but that it also creates new road blocks. What do you mean by that?
VLADECKWell yeah, I mean, you guys were talking in the last half hour about the theory behind the bill that it was supposed to clear away these obstacles that federal courts had imposed on these lawsuits by the 9/11 victims' families against Saudi Arabia. And sort of finally got them to reach the merits. We heard that too from -- from (unintelligible) . But the problem with the bill is that right at the last minute, before the Senate passed it, Senator Schumer actually introduced a series of amendments that create these new obstacles.
VLADECKYou guys already talked about one of them. You talked about the stay provision, which could theoretically allow the Justice Department to put many, if not most of these cases, on indefinite hold. But the bill actually also watered down two of the most important features of what the victims' families had proposed. First, now, it looks like the plaintiffs are going to have to show that Saudi Arabia was actually directly responsible for 9/11, as opposed to a broader theory of aiding and abetting where they just supported the attacks.
VLADECKBut second, and most importantly, the bill no longer takes away Saudi Arabia's immunity from having any of its assets in the United States seized or used to satisfy a judgment. And so, I guess the real question that this whole episode raises is not the question that I think folks have posed, which is as between justice for the 9/11 victims and our relations with Saudi Arabia, which should yield. I think the real question is given how illusory the benefits may turn out to be for the plaintiffs, are the costs really worth it?
JOHNSONWell, let's dig into that a little bit more. In terms of the legal road to actually getting a benefit for the plaintiffs. What would it actually take to prove that Saudi Arabia was involved in 9/11? If I'm a federal judge and you come to me with this lawsuit, what are you going to have to do to get me to rule in your favor?
VLADECKSure. I mean, so, you know, as you guys have been mentioning, these cases have been going on for a decade. And at least to this point, federal judges have said it is not enough to show in a case like this that the defendant was somehow indirectly responsible. That, for example, he contributed money to an Islamic charity that he knew was a front for Al Qaeda and therefore financed the attacks. The courts have required more than what we call secondary liability. They've required some kind of clearer, more direct relationship.
VLADECKAnd I think the problem is, even if the plaintiff's theory about Saudi Arabia is right, that still may not be enough to get them a victory on the merits. Even under the bill Congress has now enacted.
JOHNSONSo, I want to be clear. It's not enough for someone to have said, and correct me if I'm wrong, it's not enough for someone to have said, you know, I hate America. I would love it if something awful happened to them. They would have had to actually be actively involved in doing something that was part of the 9/11 attacks. Not just supporting, right?
VLADECKAt least under the Foreign Sovereignty Immunities Act. And I think it's really important to keep in mind that the rules for foreign sovereign immunity are a lot stricter than the rules for suits against private defendants for a couple of reasons, right? First, we assume Congress does not inadvertently or accidentally get rid of a foreign state's immunity in US courts. And second, we are more sensitive to the foreign relations consequences in those kinds of cases than if, for example, the suit was against a private bank.
VLADECKAnd so that's why I think, you know, folks are being a little overly optimistic about the language Congress actually enacted. As opposed to the original bill, which was much more aggressive. And I think would have gone much further toward providing the plaintiffs with the relief they're seeking.
JOHNSONSo suppose a family won one of these lawsuits, theoretically, what might they get? Are we talking about just money, or are there other kinds of restitution that might be involved?
VLADECKWell, so the problem is I think as the bill is actually drafted, they'll get neither. So in order for the US courts to have the power to demand a foreign sovereign turnover assets on US soil, Congress has to expressly waive not just that foreign government's immunity from suit, but also its immunity from having its assets attached or used to execute a judgment.
JOHNSONSo wait a minute. Does that mean that Saudi Arabia is saying we've got all these billions of dollars in assets? We'll pull them out of the country. Was that just kind of a dodge, was that bluster? Are we actually not able to touch those assets without Congress taking further action?
VLADECKSo I think there are a couple things going on here. First, I think a lot of folks haven't read the bill that carefully. I mean, you guys spoke before the break about how nuanced the bill is. Not only is the bill nuanced, but the bill that Congress actually passed is very different than the one that has been the subject of most of the public discussion. And the final bill, I think, is not nearly as obvious on this front. So, you know, I think the first problem is that it's not obvious that the bill actually kneecaps the ability of the federal courts to demand payment from the Saudi government.
VLADECKAnd I think the second issue is if you're the Saudi government, there's still the symbolic harm of having to go through the cost of litigation, of having to potentially have an American court say yes, we find Saudi Arabia was indirectly liable for 9/11. Even if at the end of the day, they're not left on the hook for any damages. So I think there are a couple of reasons why we still see these concerns from the Executive Branch, from former government lawyers, and from the Saudis about the precedent this sets.
VLADECKEven if at the end of the day, not a single cent of Saudi money is going to be seized by a US court to enforce one of these judgments.
JOHNSONHow sympathetic are you to the case of the 9/11 victims' families? I mean, let's be clear. This is ultimately about the families of more than 3,000 people who were killed in an act of terror on US soil who will never be right.
JOHNSONTheir lives are ruined forever and I have to admit, it's a really compelling argument to say these people murdered my loved one. I have no recourse. Saudi Arabia is not considered a state sponsor of terror, what the heck do you want me to do? There's nothing else we can do except push for a bill like this. How persuasive, if at all, is that argument for you, even just on a gut level?
VLADECKI find it terribly persuasive. I mean, I'm a New Yorker. I went to elementary school under the World Trade Center and I totally understand where the plaintiffs are coming from. That’s exactly why I don't understand how we got to this point. If we are sympathetic to the 9/11 victims' families, if we think they should have their day in court, if all we want is to make sure that they get justice for their loved ones and lost ones, then this is not the bill. Because Congress took away the very rights, the very powers that they demanded and that the original bill provided.
VLADECKAnd so that's where I come down, which is that I actually think all things being equal, we probably ought to err on the side of our own citizens, even at these foreign policy and diplomatic relations costs. The problem is that the (unintelligible) that Congress actually passed, all things are not equal. And it's not going to do any of the things the plaintiffs have been led to believe and have been telling everyone that they'll do. So, if the benefits were actually there, if the bill did what it was originally set out to do, I think this would be a very different conversation. And frankly, a much more sympathetic one.
JOHNSONStephen Vladeck is a Professor of Law at the University of Texas School of Law. Professor Vladeck, thanks for talking to us.
VLADECKThanks for having me.
JOHNSONLet's dive in on the phones again. 800-433-8850. We welcome more of your emails as well. Drshow@wamu.org. Find us on Facebook or follow us on Twitter. We are @drshow. Let's dive in with someone from right up the road in North Bethesda, Maryland. Sepita, welcome to the program Sepita.
JOHNSONWhat's on your mind?
SEPITASo, my question is about the future outcomes of this bill? And I understand that this bill could work both ways, both for the citizens of the United States and also for the citizens of other countries to be able to sue back or push their concerns. So, could this bill possibly, in the future, kind of help the countries, help the global peace by stopping countries to just get into any conflict without thinking? For example, what we have in Syria right now. That countries are just in there and, you know, the conflict is escalating more and more.
JOHNSONSepita, hold on one second. I just want to make sure I fully understand your question. It sounds like you're asking whether or not the threat of being sued under this bill might make countries think twice about their actions toward one another and push more toward peaceful resolution than toward anything that could be seen as an act of aggression. Is that what you're asking?
JOHNSONGot it. Let me put that question to Yochi Dreazen from Vox.
DREAZENSo, to the first part, I wish Professor Vladeck were still on the phone. But...
JOHNSONI know. I cut him off a little too soon.
DREAZENIt's, I mean, it is worth noting that there have been lawsuits already filed in American courts against the US government for drone strikes. So, the families of people killed in Pakistan have already sued the US government and said, you wrongly killed our loved one who was innocent, who was not a combatant. Those cases have gone nowhere. The power of the United States government to say, on national security grounds, we will not answer this. We cannot answer this is extraordinarily extensive. I think much more powerful than people realize.
DREAZENIn some ways, there are like multiple steps built into the question. It's -- would other countries pass versions of this bill in their own countries and then sue the United States in their own countries? Saying hey US, you don't have sovereignty here, because we don't have sovereignty in the US. Already, companies, sorry, already, excuse me, the United States government can be sued in American courts by the citizens of other countries. That already happens, so in some ways, it's could this lead to similar bills elsewhere in which the US is sued?
JOHNSONKaroun Demirjian, you had mentioned earlier that this month, I believe it was, that the Senate had tried to move a bill forward that was a little bit more aggressive toward Saudi Arabia, and it didn't fly.
JOHNSONGo ahead. Go ahead.
DEMIRJIANIt was a minority of Senators and it was related to the issue of us complaining about -- us not liking what Saudi Arabia is doing in Yemen. And that on that grounds, basically saying we're not going to -- we're going to subject all future arms sales to a check basically to make sure that it's not being used to hurt civilians in Yemen.
JOHNSONOkay, so I'm glad you mention that it's a minority of senators. I was just kind of wondering whether or not you thought was part of a shifting tide in the US Senate or if it was just like a small faction?
DEMIRJIANWell, no, it's a smaller faction, but I think it's notable that it came up and had the support of I think 26 Senators, which I know is a real small minority, but again...
JOHNSONThat's not an inconsiderable number.
DEMIRJIAN...it's not nothing. Especially in circumstances like this. Those types of, those types of resolutions don't come up all that often. And, you know, it is a -- the fact that they came up in such close proximity to the (unintelligible) vote is also just telling of the fact that people are airing a lot more grievances against Saudi Arabia than they did before. There's one other point that I just kind of want to make, just because we had a little bit of discussion about you know, watering things down and trends in Congress and why did certain things happen the way they did?
DEMIRJIANThe original bill that your Vladeck, Mr. Vladeck made the point that, you know, it was watered down to the point of having almost no merit. I mean, that was done because it was actually a gesture to people who were raising concerns about legislation being too sweeping. And the process isn't really completely over. At this point, you know, Bob Corker and Lindsay Graham and a whole bunch of other people are -- I believe 28 Senators yesterday signed a letter saying that they were going to return to this issue if there was any kind of blow back.
DEMIRJIANAnd look at ways to limit it. One of the proposals out there is to actually limit it just to the event of 9/11, but that's been dismissed out of hand, because the sponsors of the bill say well, that's just an invitation to people that want to commit future terrorist acts to go ahead and fund terrorists willy-nilly. I think just one other thing that's worth mentioning is just because we discussed the stay provision and the government's power in this (unintelligible) ...
DEMIRJIAN...much more than I was expecting. There is a qualification on that, in the bill, which is that you can have that 180 day stay in cases where the United States is engaged in quote good faith discussions with the foreign government that -- about the resolution of those claims. So, basically, if there's a diplomatic channel that's happening that's very similar to the court proceeding, the diplomatic channel wins out. But it has to be something happening.
JOHNSONThat's Karoun Demirjian of the Washington Post. I'm Joshua Johnson and you're listening to The Diane Rehm Show. Back to the phones now. 800-433-8850. Let's hear from Mia in Chapel Hill, North Carolina. Mia, welcome.
MIAThanks, Joshua. I'm curious if the panel could comment on the Saudi Arabia bill verses the 9/11 First Responders Bill that has yet to be passed. I assume everyone can conclude that the first responders, who are still sick or who have passed away from their illnesses or injuries are also victims. And I don't really understand how the same politicians can vote against that bill and for this one.
JOHNSONYeah Mia, good question. Thanks for bringing that up. Yochi Dreazen, what's the discrepancy there?
DREAZENIt's a spectacular question and the fact that there's even a controversy at all about giving money for ambulance drivers, fire fighters is outrageous and a moral failing on the part of our government. The simple cold reason is that would be taking US government money and giving it to the victims -- to the fire fighters and police officers. This would be allowing US citizens to try to get money from a different government. And that's been the issue. The issue is should the United States Congress itself take US dollars and give it to those people or should it not?
DREAZENThe fact that it hasn't -- to me, the answer is obviously yes and should have happened a long time ago. The fact that it happened, has not happened is an outrage. I think Mia was, if anything, understating how completely morally flawed that this is.
JOHNSONKaroun, that sounds, just infuriating to hear. Is there any -- do you get the sense that anyone in Congress is actually ashamed of the fact that that bill has not moved?
DEMIRJIANOh, a lot of people in Congress are ashamed of the fact that the bill hasn't moved.
JOHNSONThen why hasn't it moved?
DEMIRJIANBecause you're talking about, like Yochi said, this is money. And what has caused more gridlock in Congress the last few years -- especially, especially when we're in a situation right now where you know, you're talking about government shutdowns every time we need to pass even a mini-budget because we're under this sequestration cap where everything is capped and there's -- you know, people are jockeying with each other of, you know, defense spending verses spending on non-defense programs. And we have to pay for things.
DEMIRJIANNo we don't, because it's an emergency and it's important enough. I mean, this is the classic head butting between Republicans and Democrats. And then, although, I will say that there is a group of Republicans that are also incredibly embarrassed about this. Like Peter King and other people from New York. They're just saying, look, this is different, this is hugely different because...
JOHNSONThis was 9/11, for crying out loud.
DEMIRJIAN...this was 9/11. Right. Why can't we just resolve all of our disagreements around 9/11? Just, we can pick up the fight around everything else, but just this.
JOHNSONHow much money are we talking about in this bill? Do you know, roughly?
DEMIRJIANHow much are we talking about? I don't actually know offhand.
DREAZENIt's in, it's in the low billions. It's not going to make any of these families wealthy. It's also worth pointing out that in the aftermath of 9/11, there were people saying ground zero is not safe. People are breathing in things that are not safe to breathe in. The US government, in particular the then EPA Director, Christine Todd Whitman, assured people that the air was safe. It was not. So, there is unquestionably direct culpability on the part of the US government. And again, the fact that these families are still waiting, as people die, is outrageous.
JOHNSONWe have time, maybe, to squeeze in one more call. Let's go to Arlington, Texas. Andrew in Arlington, welcome.
ANDREWHi, thanks for taking my call.
JOHNSONMy pleasure. What's on your mind, briefly?
ANDREWI'm a veteran. I served in the Air Force Reserve, deployed to Afghanistan in 2014. And as I heard it reported in other reportings, that this information about Saudi Arabian state involvement happened in 2004 was when George Bush learned about it. I'd like to comment about his continued invasion of the Iraq/Afghanistan war. And 300,000 troops that died in those countries. Not one of our troops died in a country fighting a government that actually sponsored the terror. And how, in my opinion, it's shameful it is that Bush got re-elected on the war on terror.
ANDREWWhen he knew in 2004 that Iraq and Afghanistan wasn't the state sponsor of the attack. I'll take my answer off the air. Thank you.
JOHNSONThanks, Andrew. So, it sounds like Andrew's pointing to Saudi Arabia and why we're not more militarily active in Saudi Arabia. Yochi, briefly.
DREAZENVery briefly. I mean, I think that we do not know that the Saudi Arabian government was involved. We simply don't know that, and you've had commissions made up of Democrats and Republicans, including many people who despise George W. Bush who did not come away thinking the Saudi Arabian government itself knew about or supported the attack.
JOHNSONKaroun, last word real quick. What's the timeline look like for moving forward with this? Is Congress on to other stuff, or are there people who are actively thinking about ways to reform this bill?
DEMIRJIANCongress is on break now until the election, so this gets kicked to the, you know, the election circuit, I guess, to be discussed. If all hell breaks loose in the next six weeks, and if there's major repercussions and if all the people that were warning of bad things are proven right, then I think probably Congress regroups after the election and tries to limit the impact of it somehow. But otherwise, they've got a lot of other things to do.
JOHNSONYeah, all you had to do was say, there's an election, and that means nothing is going to happen for a little while. Karoun Demirjian is a reporter at the Washington Post. Karoun, thanks for spending the hour with us.
JOHNSONAnd Yochi Dreazen is Foreign Editor at Vox and the author of "The Invisible Front." Yochi, I appreciate you taking time with us.
JOHNSONFeel free to continue commenting on Facebook, follow us on Twitter. We are @drshow. Until we meet again, I'm Joshua Johnson, sitting in for Diane Rehm. Thanks for listening.
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