How would suing the Saudi government work? (Hint: it’s not easy)
The case against Libya is a useful guide
“Sometimes you have to do what’s hard,” said Barack Obama on Wednesday. “And, frankly, I wish Congress here had done what’s hard.”
He was referring to the House’s decision to override the President’s veto of a bill that would let US citizens sue the government of Saudi Arabia for its involvement in 9/11. Obama chalked the decision up to a political gambit, saying, “If you’re perceived as voting against 9/11 families right before an election, not surprisingly, that’s a hard vote for people to take. But it would have been the right thing to do.”
The President is worried that allowing American citizens to sue Saudi Arabia for 9/11 would open the US up to similar lawsuits from around the world. But aside from the contentious question of whether it’s a good idea, practically speaking, Congress’s decision has got Americans scratching their heads for another reason: how on earth do you sue a foreign government?
Lawsuits against foreign governments by private American citizens are rare, but not unheard of. The 1976 Foreign Sovereign Immunities Act protects foreign governments from getting sued by average Joes, and was implemented to prevent precisely the kinds of return lawsuits that Obama worries about. But there is at least one exception to the law that is instructive.
In 1988, Pan Am Flight 103, a 747 carrying 259 people was blown up mid-air. All the passengers and crew members were killed, as were 11 people on the ground in Lockerbie, Scotland. 189 of those killed were American citizens, leaving behind hundreds of family members seeking answers — and restitution.
In the years that followed, Libya’s involvement in the Pan Am bombing came into focus. It appeared that the head of security for Libyan Arab Airlines, who was also an intelligence officer in the Libyan government, had coordinated the attack. He was found guilty and imprisoned in Scotland. In 2003, Libya admitted government complicity in the bombing. More recently, in 2011, Gaddafi himself was purported to have ordered the attack directly.
The first time American relatives of Flight 103 victims tried to sue Libya in 1994, a federal court threw it out. It didn’t meet the standards for an exemption under the Foreign Sovereign Immunities Act. So families came together and lobbied Congress to change the legislation to permit victims’ relatives to sue state sponsors of terrorism. In 1996 they succeeded, and families again banded together to sue Libya in an American court of law.
The process was lengthy, and the United States imposed sanctions on Libya throughout. Feeling the burn, Libya decided in 2002 to settle the lawsuit, and pay out $10 million to each of victims’ families. The Libyan government got clever, though, agreeing essentially to hold the restitution money for ransom — 40% would be paid when the UN lifted sanctions, 40% when the US lifted sanctions, and the remainder when the US took Libya off its list of nations that sponsor terrorism.
For the victims’ families, it wasn’t a simple matter of collecting the money. It involved waiting years for a complicated game of foreign policy chess to conclude. The process was influenced by a range of factors completely outside the families’ control or even understanding, like Libya’s WMDs and American oil interests. The matter was finally settled in 2006, with the full restoration of US-Libya ties.
Because the Pan Am lawsuit was settled, we haven’t exactly seen how such a court case would work if it were taken all the way. If no settlement were agreed upon, it’s a mystery how the fees would be collected. Still, now that formerly classified pages of the 9/11 Commission report have been released, there’s little doubt that the Saudi government sponsored terrorist activities that led to 9/11. Facing a potential guilty verdict, and unsure what that would entail, perhaps Saudi Arabia would cough up the money in a settlement, just like Libya did.
That would be great news for 9/11 families. But it might not be such good news for America. The Foreign Sovereign Immunities Act exists for a reason: it’s intended to set the global standard for who is allowed to sue foreign governments and under what circumstances — and to keep that bar set high. The concern around the latest legislation is that it will open up the US government to lawsuits from the citizens of other countries.
After all, it’s not like the United States doesn’t have a few international casualties of its own to answer for.
