Saudi Arabia: The Golden Chain and The Missing 28 Pages


Golden Chain

There are a lot of voices on both the Left and Right side of aisle calling for Obama to declassify the infamous 28 pages of a report that may link Saudi Arabia in some fashion or another to the al Qaeda attack on American soil on September 11, 2001. The Saudis are now saying they either don’t want the declassification or at the very least not allow the Justice Against Sponsors of Terrorism Act (JASTA) Bill to become law. JASTA would allow surviving victims of the 9/11 attack to sue Saudi Arabia in civil court for any culpability in financing the al Qaeda attack.

 

Authors Millard Burr and Rachel Ehrenfeld of the American Center for Democracy (ACD) have posed further incrimination against Saudi Arabia that beyond the 28 pages. Evidently a Bosnian police raid on a Muslim charity group in Sarajevo turned up some evidence of fund raising for Usama (or Osama – depending who you read) bin Laden’s al Qaeda. That Burr and Ehrenfeld suggest that evidence points to numerous Saudi families of wealth that were sugar-daddies to al Qaeda. Al Qaeda called these sugar-daddies the Golden Chain. The problem: The U.S. Government has made much of that evidence classified just as the 28 pages. Here is a teaser paragraph from the Burr-Ehrenfeld essay:

 

How much of the Sarajevo material remains classified and unpublished is debatable. However, like the missing Congressional report, substantial material that covers the genesis and expansion of al Qaeda in the 1990s has never been released. What we do know is that one note taken from the Sarajevo hoard that surfaced at the trial is a bin Laden note saying: “we took very huge gains from the country’s people in Saudi. We were able to give political power to the Mujahideen, gathering donations in very large amounts…”

 

Just think if there are some names on the 28 classified pages that are also on the Golden Chain. That could finally reveal just how involved the Saudi government or policies that can be associated with wealthy Saudis that are today considered legitimate global business partners. A civil trial could then open some cans of worms that the Intelligence communities of both the USA and Saudi Arabia that might lead to some criminal investigations. AND there you have it – My guess is neither the U.S. Government nor the Saudis want those cans of worms opened. What do you think?

 

Bosnia-Herzegovina map 1-1995

 

Just a brief aside: I heard on Fox News that Obama might declassify some of those 28 pages today. However, Google is fairly silent on the today thing. Google searches do point to former Senator Bob Graham reporting that a partial declassification of the 28 pages (e.g. AP, Fox News and Esquire) Hmm … Do you think the U.S. Intelligence community might be pressing Obama on what the public can see?

 

JRH 4/24/16

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Saudi Arabia: The Golden Chain and The Missing 28 Pages

 

By Millard Burr and Rachel Ehrenfeld

April 23, 2016 6:32PM

American Center for Democracy

 

Bin Laden Golden Chain al Qaeda list - Arabic

Arabic UBL-al Qaeda writing discovered at Bosnia-BIN office

 

The American media, which continues to concentrate on a bill making its way through Congress that would allow American citizens to sue the Kingdom of Saudi Arabia for losses suffered as a result of the 9/11 attacks, paid no attention to the Golden Chain.

 

The victims claim that the release of the 28 pages missing from the 9/11 Commission Report is of crucial importance to their case. Those pages, they say, would show the interrelationship that ties the hijackers to the Saudi regime itself and therefore would offer a damning indictment of the Kingdom. But President Obama, like President Bush before him, refuses to make it public. And the Saudi Royal Family that vehemently denies funding al Qaeda threatened that if the 28 pages are released, they would sell more than $750 billion of Saudi investments in the U.S.

 

Of equal if not of greater importance than the missing 28 pages, is the forgotten investigation of the Bosnia-BIF office. Crucially, among the boxes and files was found a note ostensibly written by Osama Bin Laden that lists a “Golden Chain” of twenty Arab plutocrats who were and remain suspected of financing international terrorism, including the funding of al Qaeda.

 

—-

 

The Golden Chain was established about the time of al Qaeda’s founding in 1988. Bin Laden’s notes on efforts to recruit wealthy Saudi Arabian families who could fund his group were also found at Sarajevo. Much of the information derived from the Sarajevo came to light during the 2003 trial of an al Qaeda financier, Enaam Arnaout, in Chicago.

 

In March 2002, a search of the Benevolence International Foundation (the Bosanska Idealna Futura, or BIF) in Sarajevo, Bosnia, would provide the West with the most significant trove of information ever to be found on the Genesis and growth of the al Qaeda organization.

 

In fact, Bosnian investigators unearthed an intelligence mother lode: Not only did they seize weapons, false passports, plans for making bombs, jihadist videos and literature, their search also yielded material of great historic value. On a computer file titled “Tareekh Osama” (Osama’s History), there were found documents, letters, and photos relating to the birth and early days of al Qaeda, some of it in bin Laden’s handwriting. Included in the haul was an organizational chart, and notes on al Qaeda activity reportedly prepared by bin Laden, and his mentor Sheikh Abdallah Azzam. The file had been kept by Bin Ladin confidant Enaam Arnaout, who clearly obviously thought the BIF office in Bosnia was safe from intrusion. Ironically, before 9/11 Arnaout and the BIF were under investigation in the United States for operating the charity as a racketeering enterprise. One that provided material support to al Qaeda. Following 9/11, it seemed only a matter of time before Arnaout would be indicted.

 

Why the raid took place when it did, and who sponsored the raid (in Sarajevo and Washington), remains something of a mystery. As a result of the Dayton Accords, Bosnia-Herzegovina had been governed by a unique tripartite power-sharing arrangement since 1996; a rotating presidency allowed Muslim Bosniaks, Serbs, and Croats to share power. Importantly, in 2002 Alija Izetbegović, the powerful Islamist Muslim Brother, was no longer first among equals. The West’s bete-noire had stepped down after serving as Chairman of the Presidency from October 1996 through October 2000. Thus, given the power structure that existed in Sarajevo in early 2002 (and in the aftermath of 9/11 2001), it is posited that the CIA either took part in or at least was instrumental in, the raid on the BIF location.

 

Incredibly, the trove of information discovered in that raid was given publicity in Bosnia itself. No effort was made by the Bosnia intelligence agency to tailor, redact, or eliminate information found in the Bosanska, and thus, the information itself proved to be a bombshell both inside and out of Bosnia. Unlike Washington where the most astounding intelligence is immediately classified secret and squirreled down some intelligence rat hole, the Bosnian services shared their find with the world. And in an order issued on 6 March 2003 by the Supreme Court of Bosnia, the computer files that had been seized were delivered to the U.S. Embassy. The documents were then translated into English. Later, some appeared in a trial of a BIF official Enaam Arnaout.

 

Included in the files were “scanned letters” between Arnaout and bin Laden (using their nom de guerre) and letters concerning other al Qaeda principals. The letters revealed that al Qaeda leaders were paid, and weapons for the group were purchased from funds provided by Muslim charities. There were also letters authorizing the purchase, and purchase orders for rifles, RPGs, mortars, and other weaponry, with instructions to distribute the weapons to camps operated by al Qaeda.

 

Other memoranda provided a chronology of events from the founding of al Qaeda in Khost to the movement’s activity in Peshawar, Pakistan, during its first months of existence. There were reports on al Qaeda activity in the various jihad on-going in Bosnia, the Sudan, and Chechnya. An article published in 1988 in Arab News outlined bin Laden’s activity and included a photo of Arnaout and Bin Laden walking together at “Masada”, an Arab-Afghan camp for mujahideen.

 

In the search of the BIF’s Sarajevo offices, “law enforcement authorities” discovered conclusive evidence that tied the BIF Chief Executive Officer Enaam Arnaout to al Qaeda, and to its leader Osama Bin Laden. One letter even allowed Arnaout to sign an authorization on bin Laden’s behalf. Though the Sarajevo documents remained secret for months, they included the minutes of an 11 August 1988 meeting during which bin Laden discussed the creation of what would then be known as the al Qaeda. It is recalled that in the decade following the founding of al Qaeda 1988 only a few hundred jihadists had been permitted to take the oath of allegiance (the baya’t) to Osama bin Laden. Arnaout was thus a member of a very select body of mujahideen.

 

The evidence unearthed in Sarajevo was sufficient to charge Arnaout with conspiracy to provide material support to terrorists. Arnaout, who was born and raised in Syria and was a member of a Saudi family of Albanian heritage, was also an American citizen and had been a resident of the U.S. since 1992. Thus, in the end, there would be no escaping U.S. justice.

 

Concerning the BIF, a “charity” incorporated in the State of Illinois in March 1992, the arrest of Arnaout was soon followed by the closure of BIF operation in Canada and Bosnia, and then by most of its offices located overseas; namely, in Pakistan, Bosnia, Yemen, Sudan, Azerbaijan, Tajikistan, Bangladesh, Turkey, Dagestan, Soviet Georgia, China, and Ingushetia (moved from Chechnya).

 

In December 2001, and shortly after 9/11 but before the indictment of Arnaout himself, BIF funds had been blocked in the USA, Canada, and Bosnia. At that time, it was reported that the US government had in its possession substantial evidence proving that the Arnaout-bin Laden intimate relationship dated from the mid-1980s. The relationship was in fact fixed well before the creation of the al-Qaeda organization in August 1988 in Khost, Afghanistan.

 

Given the evidence uncovered at the BIF office in Sarajevo (and, reportedly additional evidence of BIF’s terrorist ties discovered by Bosnian police in a later raid on local charities on 3 June), it was not surprising that Arnaout was soon indicated in the United States.

 

See UNITED STATES of America v. Enaam M. ARNAOUT, a/k/a “Abu Mahmoud”, a/k/a “Abu Mahmoud al Suri”, a/k/a “Abu Mahmoud al Hamawi”, a/k/a “Abdel Samia”, U.S. v. ARNAOUT, No. 02 CR 892, 231 F.Supp.2d 797 (2002), U.S. District Court, N.D. Illinois, Eastern Division. November 22, 2002, Patrick J. Fitzgerald, et.al., United States Attorneys.

 

The Trial

 

On March 2003 the Chicago trail [sic] of Enaam Arnaout was truncated just before it began == much to the dissatisfaction of most observers. Arnaout had been charged with racketeering conspiracy, providing material support to organizations engaged in violent activities, money laundering, mail fraud and wire fraud. He faced a possible 90-year sentence. However, before the charges could be tried Arnaout pleaded guilty in federal court to a single count of illegally funding and supplying military assistance to mujahideen in Bosnia and Chechnya.

 

The federal case, which focused on the Arnaout-Bin Laden relationship, was blown to smithereens when a federal judge ruled that evidence was spotty at best. Prosecutors dropped all charges after Arnaout pled guilty to a single felony count. For reasons still not clear, the government settled for a penalty less than the twenty years that Arnaout could have received. As an editorial in the New York Sun put it, “The government’s decision to accept a plea to a single, and relatively minor, count [transpired] so as to avoid a risky trial.” Nonetheless, federal prosecutors were “unwilling to credit [Arnaout] for cooperating.”

 

True or false, and despite the congressional testimony of then-FBI Director Robert Mueller before a U.S. House Appropriations Subcommittee on 14 September 2006, the Arnaout imbroglio was not one of the FBI’s finest hours.

 

Indeed, in February 2006, a federal judge had reduced the Enaam Arnaout sentence from 11 years and four months to 10 years, after the 7th Circuit Court of Appeals ruled that his original sentence was improperly enhanced.

 

The Golden Chain

 

The Golden Chain was established about the time of al Qaeda’s founding in 1988. Bin Laden’s notes on efforts to recruit wealthy Saudi Arabian families who could fund his group were also found at Sarajevo. Much of the information derived from the Sarajevo came to light during the 2003 trial of an al Qaeda financier, Enaam Arnaout, in Chicago.

 

How much of the Sarajevo material remains classified and unpublished is debatable. However, like the missing Congressional report, substantial material that covers the genesis and expansion of al Qaeda in the 1990s has never been released. What we do know is that one note taken from the Sarajevo hoard that surfaced at the trial is a bin Laden note saying: “we took very huge gains from the country’s people in Saudi. We were able to give political power to the Mujahideen, gathering donations in very large amounts…”

 

Within the Sarajevo trove, there was found the essential minutes of a meeting held on 11 August 1988 during which Bin Laden initiated actions that established a jihadist movement loyal to himself. A week later the organization was officially established, and a copy of the oath of allegiance taken by some 40 participants was included in the file. The minutes of that seminal conclave end on 20 August.

 

Also recorded were bin Laden’s “own statements on the efforts to recruit members from Saudi Arabia for his network and to raise money.” Also included in the Bosnia find was a letter on Saudi Red Crescent/Peshawar letterhead and with it a note added by Osama Bin Laden to his money-manager Wael Jalaidan citing “an extreme need for weapons.” (John Solomon, “Bosnia Raid Yields al-Qaida Donor List,” Miami Herald via AP, Feb. 19, 2003.)

 

Many questioned why bin Laden, a member of one of Saudi Arabia’s wealthiest family, searched for funds outside his fortune to fund al Qaeda. But Osama was not rich enough to fund the expensive jihad he had in mind. Though the bin Laden family was wealthy, Osama could not easily access the $300 million that some analysts felt he had squirreled away. His accounts were blocked in the United States and Saudi Arabia, and his family was watched closely and warned not to assist him financially. Still, during his stay in the Sudan (1991-1996) he probably invested more than $50 million (including $30 million deposited in the al-Shamal Bank). But when bin Laden departed the Sudan in 1996, he had little to show for his investments. By the admission of those al Qaeda members who knew him best, his personal wealth had been squandered. To carry out his jihadist agenda he had to continue to call on wealthy Gulf plutocrats, viz., the Golden Chain, to finance al Qaeda.

 

Included in the US government indictment of Enaam Arnaout on 9 October 2002 (02 CR 892) was an interesting memorandum, “Clarifying the Mujahideen’s situation to the world and keeping the spirit of Jihad alive.” (Exhibit 17, Department of Justice, “Government’s Evidentiary Proffer Supporting the Admissibility of Coconspirator Statements” in the case of USA v. Arnaout, USDC, Northern District of Illinois, Eastern Division, filed 29 January 2003.) Of even more explosive power, however, was a memorandum that appeared as Exhibit 5: With regard to that piece of evidence the Justice Department noted: “Among the recovered files was a copy of a 1988 handwritten draft listing wealthy financiers of UBL’s mujahideen operation in Afghanistan, referred to within al Qaeda as the ‘Golden Chain.’” The information presented on lined paper and translated from the Arabic by the U.S. Department of Justice was headed by a verse in Arabic from the Koran: “And spend for God’s cause.” (“Government’s Evidentiary Proffer Supporting the Admissibility of Coconspirator Statements” in the case of USA v. Arnaout, USDC, Northern District of Illinois, Eastern Division) filed on January 29, 2003.)

 

The Golden Chain memorandum, it included twenty-five names, including twenty very wealthy Saudis. (N.B: at the time of the discovery only two names on the list remained unidentified.) Of the twenty Saudis, six were bankers, and they were tied to the big three of Saudi banking: the National Commerical [sic] Bank of Saudi Arabia, Riyadh Bank, and Al Rajhi Banking and Investment Corp. Ther[e] twelve Saudi businessmen on the list, and the bankers owned or controlled sixteen of the top 100 Saudi companies. The list included eight individuals charged by the families of victims of 9/11 with being complicit in aiding and assisting al Qaeda. Also included were the names of two former government Ministers.

 

After each name, there was a second name, in parenthesis, of the al Qaeda operative who received money from the donor. “Osama” appeared after seven entries. The donors [sic] names included Saudi Arabia’s most prominent citizens including the bin Laden family, the al Rajhi, Sharbatly, al Naghi, bin Mahfouz, and Adel Faqih. The corporate net worth of the Golden Chain, as calculated more than a decade later accounted for more than $85 billion, or approximately 42% of Saudi Arabia’s GDP.

 

Whether or not bin Laden personally wrote the Golden Chaim memo, it is indisputable that he was in a position to know the family fortunes of the individuals named. In some cases, they were allied directly or tangentially with his family. They included Saleh Kamel, head of third largest Saudi company, and Suleiman Abdulaziz al Rajhi, head of 4th largest Saudi commercial bank. The “bin Mahfouz” family was in charge of Saudi Arabia’s most important bank. Also on the list, Abdel Qader Faqeeh (Adel Faqh) head of Savola Group, the 13th largest Saudi company. Mohammed al-Issa was head of the powerful al-Issa group, itself the 20th largest Saudi Company. Issa himself was a board member of the Saudi Research & Marketing Company (along with Mohammed Hussein al-Amoudi, Saleh Abdullah Kamel, Abdullah Bin Khaled bin Mahfouz, among others.) He was also Deputy Chairman of the Arab Cement Company whose shareholders included the Binladin Group, the bin Mahfouz and the al Rajhi, and whose chairman was Turki Bin Abdulaziz al Saud. That the individuals listed would be asked to assist Osama bin Laden in his jihadist mission is not surprising. It was all one big happy family.

 

Wael Julaidan, the al Qaeda moneyman and former Secretary-General of the Muslim World League, and of the well-funded Rabita Trust of Pakistan, was charged with collecting donations from four wealthy individuals. Mohammad al-Amin Khalifa, Osama’s wealthy brother-in-law, was another collection agent, who was known to have close ties to bin Laden’s two money men, Julaidan, and Yasin al-Qadi.

 

As could be imagined, the list which included such luminaries as “bin Mahfouz,” created a furor in Saudi Arabia, where the memorandum appeared to implicate a score of the Kingdom’s wealthiest citizens. Nearly all were either indirectly or directly involved in the Royal Family’s charity organizations as founders or board members.

 

Years later, following the September 2001 attacks on the U.S., the “9/11 Commission” issued a report in which a chapter devoted to “The Foundation of the New Terrorism, acknowledged that Osama bin Laden sought financial assistance from wealthy Muslims in Saudi Arabia and the Gulf states, and that “the eventual success of the jihad in Afghanistan depended on an increasingly complex, almost worldwide organization.” Unfortunately, the report was long on implication and short on names.

 

The Golden Chain list included names of persons who were friendly to the Afghan-Arab movement and later to bin Laden himself. The Golden Chain gained importance after 1990 — when Osama bin Laden escaped house arrest in Saudi Arabia and a year later emerged in the Sudan. Indeed, the name al Qaeda came into vogue and the need for funding expanded after Osama move to the Sudan and al Qaeda’s expanding activities first in Somalia, and later in the Balkans.

 

Why then should anyone believe that any individual whose name appears on the Golden Chain memorandum, and who, like Khalid bin Mahfouz, claims he “never knowingly made any donation to al Qaeda or any organization or person acting on al Qaeda’s behalf or to any other terrorist organization,” is telling the truth?

 

It is unknown if any of those whose names appeared on the Golden Chain memo has ever been interrogated, charged with a crime, or chastised by the Saudis. It is safe to assume that In the Dessert Kingdom, where jihad is paramount and ‘silence is golden,” the Golden Chain members have little to worry about.

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More: JASTA, Saudi Threats against U.S. Economy & 28 Classified Pages


BHO Broken Promise- 28 Pages

John R. Houk – Editor

 

Here are a series of posts I discovered after cross posting the New York Sun’s essay – Obama v. 9/11 Families (of which I included a short relevant intro) – at three of my active blogs.

 

JRH 4/20/16

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The 9/11 Civil Litigation and the Justice Against Sponsors of Terrorism Act (JASTA)

 

By Steve Vladeck

April 18, 2016 at 8:02 AM

Just Security

 

For lots of readers, I suspect Saturday’s front-page New York Times story by Mark Mazzetti was their first exposure to the ongoing efforts by 9/11 victims and their families to sue the government of Saudi Arabia and other entities in U.S. courts over their alleged role in providing financial support for the September 11 attacks. Indeed, allegations of Saudi involvement are also back in the public eye in connection with the possible declassification of 28 pages of the 9/11 Commission’s Final Report that supposedly deal with the role and responsibility of various senior Saudi officials.

 

In a nutshell, (1) the 9/11 plaintiffs’ claims–that the Saudi government and a wide range of other entities, including banks, provided material support to the perpetrators of the 9/11 attacks–have gone nowhere, thanks to a series of shifting (but now largely stabilized) court rulings concerning the Foreign Sovereign Immunities Act (FSIA) and the Anti-Terrorism Act (ATA); (2) Congress is now considering legislation–the Justice Against Sponsors of Terrorism Act (JASTA)–that would in effect overrule each of those holdings; and (3) the Obama administration is, as Mark’s story explains, aggressively lobbying against that legislation, out of fears over the potential diplomatic and economic consequences of U.S. court judgments against the Saudi government that could run into the billions of dollars, and concerns over reciprocity from foreign countries.

 

In this post, I aim to provide a more detailed explanation of the legal background against which JASTA is being considered–so folks can better understand exactly what courts have held to date, and why JASTA could be a big deal, albeit in a very narrow class of cases.

 

I. The FSIA and theTerrorist AttacksLitigation

 

The shifting litigation sands vis-a-vis Saudi Arabia date back to a pair of 2005 district court rulings (In re Terrorist Attacks I and II), which threw out claims against the Saudi government and other state-run entities on the basis of the FSIA’s “discretionary function” exception. That exception preserves the sovereign immunity of foreign states even over non-commercial torts (for which the FSIA otherwise allows suits) if the tort resulted from discretionary conduct on the part of a foreign sovereign (e.g., whether to provide financial support to particular entities with links to terrorist organizations).

 

On appeal, the Second Circuit affirmed in In re Terrorist Attacks III, albeit on different grounds: The Court of Appeals there held that a different FSIA provision, waiving the sovereign immunity of “state sponsors of terrorism,” was the exclusive means for seeking to hold a foreign sovereign liable for its involvement in acts of terrorism, and so the fact that the State Department had not designated Saudi Arabia a “state sponsor of terrorism” precluded liability under any of the FSIA’s other exceptions (including the non-commercial tort exception) for terrorism-related claims. The court also held that it lacked personal jurisdiction over many of the other defendants (a holding that the Second Circuit would expand upon in its April 2013 decision in Terrorist Attacks IV).

 

The plaintiffs in Terrorist Attacks III sought certiorari, at which point the Supreme Court called for the views of the Solicitor General. In its “CVSG” brief, the U.S. government recommended that the Court deny certiorari–albeit on an alternative ground from that relied upon by the Second Circuit: In then-Solicitor General Elena Kagan’s view, the FSIA could theoretically allow a foreign sovereign to be held liable for terrorism-related non-commercial torts even if it was not a state sponsor of terrorism, but only if, as the Supreme Court had already interpreted the non-commercial tort exception in Amerada Hess, the “entire tort” took place within the territorial United States (as opposed to the injury arising from the tort).

 

As the government argued, even taking the plaintiffs’ allegations as true, a material amount of the allegedly tortious conduct (including the alleged help in financing the 9/11 attacks) took place overseas. Thus, the government offered a far narrower (and less vulnerable) ground on which to defend the Second Circuit’s ruling–which may have had a lot to do with the Supreme Court’s subsequent denial of certiorari, which appeared to conclude (at least at the time) the Terrorist Attacks litigation.

 

Things would indeed have ended there, except that, in 2011, the Second Circuit overruled its holding in In re Terrorist Attacks III, concluding in a different case (Doe v. Bin Laden) that the exceptions to the FSIA for non-commercial torts and state sponsors of terrorism were wholly unrelated–and therefore provided independent grounds on which to hold foreign sovereigns liable in U.S. courts. In other words, under Doe, a foreign sovereign that is not a “state sponsor of terrorism” can still be held liable for terrorism-related conduct under the FSIA, so long as one of the other exceptions–including the non-commercial tort exception–applies.

 

The Doe ruling led the Terrorist Attacks plaintiffs to file a Rule 60(b) motion for relief from the judgment in their earlier case, which provoked its own round of litigation, culminating in the Second Circuit’s December 2013 ruling that the plaintiffs were entitled to relief from the earlier judgment, which sent the case back to the district court for (re-)litigation of the original merits. Finally, last September, the district court nevertheless granted Saudi Arabia’s renewed motion to dismiss based upon the FSIA–because, as the U.S. government had argued in its 2009 CVSG brief in Terrorist Attacks III, the “entire tort” did not take place within the territorial United States, and so the non-commercial tort exception did not abrogate Saudi Arabia’s sovereign immunity. That ruling itself is now being appealed to the Second Circuit–so the underlying litigation remains very much ongoing…

 

II. The Anti-Terrorism Act and Aiding-and-Abetting Liability

 

Although the effort to hold the Saudi Arabian government liable notwithstanding the FSIA has received most of the headlines, there have also been concerted efforts by the 9/11 families to hold private individuals and entities liable under the Anti-Terrorism Act–which creates civil remedies for U.S. nationals to obtain triple damages against those responsible for injuries arising out of “an act of international terrorism,” but, notoriously, does not specify the parties against which such liability may be pursued, or the theories upon which such liability may be predicated.

 

As relevant here, the biggest open question is whether the ATA allows theories of “secondary liability,” i.e., whether claims may be maintained against entities that were not directly responsible for the underlying act of international terrorism, but that somehow supported it (including by aiding and abetting the perpetrators). Both the Second and Seventh Circuits (the latter sitting en banc) have expressly held that the ATA does not allow claims based upon common law understandings of secondary (or accessory) liability, although the Seventh Circuit in Boim III nevertheless adopted an expansive theory of primary liability–what Judge Posner called “primary liability . . . [with] the character of secondary liability.” As he explained, “In addition to providing material support after the effective date of section 2339A, a donor to terrorism, to be liable under section 2333, must have known that the money would be used in preparation for or in carrying out the killing or attempted killing of, conspiring to kill, or inflicting bodily injury on, an American citizen abroad.” Indeed, the Seventh Circuit explained, such not-quite-secondary liability requires proof of intentional misconduct–a high (and potentially insurmountable) hurdle to holding banks, governments, and other entities liable on a theory that they did nothing more than provide material support to the perpetrators of the underlying acts.

 

And the Second Circuit subsequently held that the ATA also requires proximate causation, i.e., that the tortfeasor’s contribution be a “substantial factor in the sequence of responsible causation and whose injury was reasonably foreseeable or anticipated as a natural consequence.”

 

I don’t mean to get lost in the doctrinal weeds (which are, as should be clear, quite densely packed). The larger point is that these circuit-level decisions, together with the nature of the 9/11 attacks themselves, have made it difficult to use the ATA to impose any civil liability against those indirectly responsible for September 11.

 

III.  JASTA

 

Understanding this litigation background should help to put into perspective exactly what JASTA does. The bill passed the Senate but died in the House in the 113th Congress, and has, to date, only gotten out of the Senate Judiciary Committee in the 114th Congress. As relevant here, JASTA would work four material changes to existing law:

 

  • It would amend the non-commercial tort exception to the FSIA to abrogate sovereign immunity in tort suits “in which money damages are sought against a foreign state arising out of physical injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of the office or employment of the official or employee (regardless of where the underlying tortious act or omission occurs), including any statutory or common law tort claim arising out of an act of extrajudicial killing, aircraft sabotage, hostage taking, terrorism, or the provision of material support or resources for such an act, or any claim for contribution or indemnity relating to a claim arising out of such an act.”

 

  • It would amend the ATA to expressly allow aiding-and-abetting liability not in all cases, but in cases arising out of an act of international terrorism “committed, planned, or authorized” by a designated Foreign Terrorist Organization (FTO): “[L]iability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”

 

  • It would amend the ATA to allow personal jurisdiction against such entities to the constitutional limit “for acts of international terrorism in which any national of the United States suffers injury in his or her person, property, or business by reason of such an act in violation of section 2333.”

 

  • It would also amend the ATA to repeal the prohibition on suits against “a foreign state, an agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority.”

 

JASTA’s amendments to the FSIA and ATA would apply to any civil action “pending on, or commenced on or after, the date of enactment of this Act; and . . . arising out of an injury to a person, property, or business on or after September 11, 2001.” In other words, the new law would apply to some pending cases–all those in which the underlying injury took place on or after September 11. Claims arising before September 11 would, presumably, not be covered.

 

IV. Taking Stock

 

It is certainly Congress’s prerogative to expand the scope of statutory liability that it created in the first place. And it’s hard to argue that amending the Anti-Terrorism Act to allow aiding-and-abetting liability (and more expansive personal jurisdiction) against private entities raises foreign relations and diplomatic questions nearly as grave or fraught as those provoked by the FSIA amendment.

 

The much more sensitive part of JASTA is the FSIA amendment and the last ATA amendment–which could be especially powerful for tort claims against foreign sovereigns that (1) are not designated as state sponsors of terrorism; but (2) could nevertheless be held liable in tort for “extrajudicial killing, aircraft sabotage, hostage taking, terrorism, or the provision of material support or resources for” an act of international terrorism within the United States, even where much of the underlying tort occurred overseas. At least at the moment, that basically appears to be at most a class of one–to wit, Saudi Arabia, at least if the allegations in the pending lawsuits are true.

 

Although it’s easy to be sympathetic to the plaintiffs in the Terrorist Attacks litigation, as Mark explained in his Times article,

 

Obama administration officials counter that weakening the sovereign immunity provisions would put the American government, along with its citizens and corporations, in legal risk abroad because other nations might retaliate with their own legislation. Secretary of State John Kerry told a Senate panel in February that the bill, in its current form, would “expose the United States of America to lawsuits and take away our sovereign immunity and create a terrible precedent.”

 

Those reciprocity considerations, combined with the concerns about the United States’ diplomatic relations with Saudi Arabia and the potential economic consequences if, as a result of the bill, Saudi Arabia seeks to withdraw as many of its financial resources from U.S. territory as possible, are what potentially makes JASTA such a fraught proposition.

 

I don’t have a strong position on whether Congress should enact JASTA’s FSIA amendment or the last amendment to the ATA, largely because I’m not in a good position accurately to balance the ramifications of enacting JASTA against the unquestioned entitlement of the 9/11 victims and their families to appropriate legal relief, or to assess whether, if the FSIA and last ATA amendment were excised, JASTA’s amendments to the rest of the ATA would still go a sufficiently long way toward providing the 9/11 victims and their families with meaningful judicial redress. Moreover, I suspect reasonable minds will disagree about which of these compelling but competing considerations should receive greater weight. My hope, though, is that this post will at least help to illuminate what the legal obstacles to relief for the 9/11 families have been to date, what JASTA would do to eliminate them, and why, per Mark’s story in Saturday’s Times, it has proven so controversial.

 

Update (4/18/2016, 6:14 p.m. EDT): This post has been revised to clarify the effect of JASTA’s fourth provision–which would not create a new exception to liability for the U.S. government and its officers, but would rather excise the existing bar on liability for foreign states and their officers. Thanks to a careful reader for prompting this important clarification!

 

Steve Vladeck is co-editor-in-chief of Just Security. Steve is a professor of law at American University Washington College of Law. Follow him on Twitter (@steve_vladeck).

 

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Saudis Warn US of Economic Retaliation Over 9/11 Bill

A bi-partisan bill has been proposed in Congress that would allow victims of terrorist attacks to sue foreign governments that are responsible.

 

April 19, 2016

Clarion Project

 

The Twin Towers on fire after 9-11 Attack

The Twin Towers on fire during the September 11, 2001 terror attack in New York City. (Photo: © Reuters)

 

Saudi Arabia has threatened economic retaliation if the U.S. passes pending legislation that would allow victims of terrorist attacks to sue foreign governments that are responsible.

 

The bipartisan bill, co-sponsored by Sen. Chuck Schumer, D-New York, and Sen. John Cornyn, R-Texas, would permit victims of 9/11 to sue the Saudis and other financial partners of terrorism. The Obama administration is vigorously trying to block the bill.

 

Saudi Arabia warned it will sell off hundreds of billions of dollars of American assets if the bill is passed. Delivering the message personally in Washington, Saudi Foreign Minister Adel al-Jubeir told Congress Saudi Arabia would sell $750 billion in treasury securities and other assets before they would be in jeopardy of being frozen by American courts.

 

Saudi Arabia denied involvement in the 9/11 attacks, however, the official U.S. government report on the attack contains 28 censored pages on the topic of “foreign support for the September 11 hijackers.” Investigators say these pages confirm the Saudi’s role in the 2001 attacks that claimed the lives of close to 3,000 people and injured more than 6,000.

 

For years, the Saudis have asked for the release of the censored pages, but the Bush administration said disclosure would damage the U.S.’ ability to gather intelligence on terrorists. The Obama administration also refused to release the redacted pages.

 

Fifteen of the 19 hijackers were from Saudi Arabia. Other evidence of Saudi involvement in the terrorist attacks includes information leaked from the censored pages including the documentation of a series of phone calls between one of the hijackers’ Saudi handlers in San Diego and the Saudi Embassy, and the transfer of $130,000 from then-Saudi Ambassador Prince Bandar’s family checking account to one of the hijacker’s handlers in San Diego.

 

Zacarias Moussaoui, the so-called “20th hijacker,” who was sent to prison for his role in the attacks said members of the Saudi royal family donated funds to al-Qaeda. He also said he personally met a Saudi diplomat in Washington to plot the assassination of the U.S. president using a surface-to air missile. The two discussed bombing the U.S. Embassy in London as well.

 

“The Saudis have known what they did in 9/11, and they knew that we knew what they did, at least at the highest levels of the U.S. government,” said former Sen. Bob Graham, co-chair of the 9/11 congressional inquiry commission.

 

Families tried in the past to sue the Saudi government, but the cases were rejected due to a 1976 law granting foreign nations immunity from lawsuits in the American judicial system.

 

“I think part of the concern is that somehow this is a thumb in the eye to Saudi Arabia, a valuable ally,” said Senate-sponsor Cornyn. “It’s not open-ended and it’s not targeted at Saudi Arabia.”

 

Cornyn also dismissed the threats from Saudi Arabia. “It’s seems overly defensive to me and I doubt they can do it,” he said. “I don’t think we should let foreign countries dictate the domestic policy of the United States.”

 

 

Other analysts say it is unlikely the Saudis will follow through on their threats.

All of the presidential candidates support the bill, expect John Kasich, who has not commented on it to date.

 

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IPT’s Hoekstra: Public Deserves to See Full 2002 Congressional 9/11 Report

 

Relevant Radio ‘The Drew Mariani Show’
April 19, 2016

Investigative Project on Terrorism

 

[Blog Editor: To listen to the audio, you can either go to the IPT post or go to this podcast link: http://relevantradio.streamguys.us/DM%20Archive/DM20160418c.mp3]

 

[Start transcript]

 

Drew Mariani: Hey, when the planes slammed into the World Trade Center and the Pentagon back on 9/11, remember that, Osama bin Laden was revealed as the mastermind behind it. We knew at the time that there was an obvious Middle Eastern terrorism link. What we didn’t know was what countries were involved and to what extent. We went into Afghanistan, well, because you know that’s where bin Laden was holed up and why we sent troops into Afghanistan, and you know we didn’t know about the rest. The most disturbing was that we didn’t know that Saudi Arabia, where bin Laden was born and raised, could have played a role in this. You know Congress investigated the events surrounding 9/11; they came up with a 400-page report, and that was released to the public. And I should say most of it was released to the public. I think they held back about 28 pages and they’re still labeled as classified. But what’s contained on those pages is really fodder for a lot of conversation right now. It’s suspected to contain information on Saudi Arabia’s role on that fateful day. Right now Saudi Arabia has told the Obama administration and members of Congress that it’s going to sell off hundreds-of-billions of dollars’ worth of American assets, it will be a huge asset dump held by their kingdom, if Congress passes a bill that would allow the Saudi government basically to be held responsible in American courts for any role in September 11th in 2001, when those attacks took place. The Obama administration has lobbied Congress to block the bill, according to some officials. But the Saudi threats have been of course the subject now of intense discussion in recent weeks between both lawmakers and officials from the State Department and the Pentagon. And a number of officials have warned basically senators of diplomatic and economic fallout from you know any sort of legislation. So what’s going to happen? And what is the truth behind all this? Joining me right now is Pete Hoekstra. He’s the Shillman Senior Fellow with the Investigative Project on Terrorism, the former Chairman of the U.S. House Intelligence Committee, and former member of the House Committee on Education and the Workforce. And Peter, thank you for your time. It’s good to have you back. I know you just came out with a book, I want to plug that for you too. It’s called ‘Architects of Disaster: The Destruction of Libya. It came out about four months ago, folks, you may want to check that out. And you can learn more about him at investigativeproject.org. This is a big story. How do you know how do we know Saudi Arabia is involved and you know what do you think’s going to happen ultimately with you know Congress and possible legislation?

 

Pete Hoekstra: Well a couple of things, number one – I’ve been advocating for the last period of time that these 28 pages be made public, that if there need to be some redactions to protect sources, those redactions be made, but overall that the public 13 years after this report was completed, now almost 15 years after 9/11, you know they, the public deserves to see all of this information. And so it should move forward. In regards to the legislation that Senator Cruz is pushing, I’m not quite sure about a couple of things. I’m you know I’m not sure why we need to just highlight Saudi Arabia. Any country –

 

Mariani: Right.

 

Hoekstra: – that is identified with terrorism should be able to be held accountable; I’m thinking of Iran, should be able to be held accountable. So just singling out Saudi, I’m not sure that that is appropriate. There’s a number of countries that may in one form or another be somewhat supporters of terrorism against U.S. property, U.S. goods or U.S. persons. So let’s make sure that they can be held accountable. I think that the action that Saudi Arabia is talking about, and they’re not talking about disinvesting in the United States to punish the United States, the explanation that they’re giving is – we’ve got to disinvest in the United States because if we actually become liable and the courts find for some defendants that we are liable and you know hold us accountable or hold a judgment against us for X-hundreds-of-millions or a billion dollars, at that point in time the U.S. courts may come and seize U.S. assets that we own. And so what we want to do is to protect ourselves. We’re going to disinvest in the United States so that a U.S. court can’t freeze any of our assets. Oh, I think their economy and our economy and their, the assets they hold in the United States are so significant that they could never actually pull that off, pull it off successfully. If they did they’ve have to do it at a fire sale.

 

Mariani: Yeah.

 

Hoekstra: And they wouldn’t want to do that.

 

Mariani: Yeah, I read earlier today that they would be forced to sell about 750-billion dollars in Treasury securities and other assets. Again, I want to go back to you know what would happen if this did take place. Let’s take a worst-case scenario, say this is pushed and it goes through, what happens if the information is exposed and we find out Saudi Arabia had a, had something to do with 9/11?

 

Hoekstra: Well you know I’ve had access to those 28 pages. I think that this will, it will raise more questions than what it will answer. OK? I don’t think that someone will read through there and they will find, or again, who knows – some people may read it and they will see a smoking gun, others will read it and they will see something different, but I think what it, you know my belief is that what it will show is that you know this is not classified or a secret or whatever, you know. The Saudis have for years been funding radical jihadism in the form of funding radical mosques, believers in Wahhabism, where much of this hatred and doctrine of jihadism comes from, and they’ve been funding these mosques around the world. And so you know many of us have called for them to stop the funding of these kinds of mosques for an extended period of time.

 

Mariani: And let me just ask you, because you’ve had access to those 28 pages, are there other nations in addition to Saudi Arabia? It’s kind of the sense that I’m getting from you, it’s not just Saudi Arabia, there may be other nations involved?

 

Hoekstra: No, I don’t think if you go through there that you would see a litany of a number of different countries; I’m just saying from my experience with terrorism –

 

Mariani: Right.

 

Hoekstra: – is that you know there are a number of countries that are involved in terrorism and, or you know certain state governments, you know everything from the Palestinian Authority –

 

Mariani: Right.

 

Hoekstra: – to Iran, and these types of things, that you know any type of legislation like what Senator Cruz is proposing –

 

Mariani: Right.

 

Hoekstra: – shouldn’t be limited to just Saudi. That’s two very different issues.

 

Mariani: And your mindset right now is that they should be released, the American public has a right to know.

 

Hoekstra: Yeah. And we ought to just make sure that, you know it’s been 13 years since I’ve seen them, that if there is any sensitive information in there regarding sources or individuals that may have been the source of some of these information, make sure you redact that information. But other than that, let the information become public. It’s been a long time.

 

Mariani: Yeah, great. Before I let you go, because I only have a minute or two left –

Hoekstra: Sure.

 

Mariani: – you just came out with a book too, ‘Architects of Disaster: The Destruction of Libya.’ I have not gotten the book or read it, but I would love to maybe have you back to talk about it. Fill me in, what was your book about?

 

Hoekstra: It’s about what happened in Libya. We had a tremendous success story in Libya. [Muammar] Gaddafi after years of being on the outside, you know supporting terrorism against the United States and the West, culminating really with the take-down of Pan Am 103. In 2004, he gave up his nuclear weapons program, he gave, he paid reparations to the victims of his terrorist attacks, and he became a partner in fighting radical jihadism with the United States, a bipartisan success of a consistent policy for 20 years and finally Gaddafi changed sides.

 

Mariani: Wow.

 

Hoekstra: In 2011, Secretary of State Clinton and President Obama decided that Obama needed, or excuse me, that Gaddafi needed to go, they partnered with radical jihadists, and they were successful in getting rid of Gaddafi. And what we now have is you know for the last four years we’ve had a failed state. It’s now part of the caliphate. It’s exporting ideology, it’s exporting fighters, and it’s exporting weapons to Africa, to the Middle East and to Europe. It’s been a disaster. It’s, you know and for eight years there it was a rock of stability and certainty in northern Africa. And now it is the disaster of Libya, the destruction of Libya.

 

Mariani: Yeah, the book is called ‘Architects of Disaster: The Destruction of Libya.’ It’s available at all major bookstores. And Pete, I want to thank you for your time. Thank you for your service to the country and for the insight you’re able to offer. I always enjoy your, our conversations.

 

Hoekstra: Hey, thanks for the invite.

 

Mariani: Thank you.

 

Hoekstra: I enjoyed being with you.

 

Mariani: Check him out too, the website is investigateproject.org [sic], investigativeproject.org, great site to check out.

 

[End transcript]

 

 

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The 9/11 Civil Litigation and the Justice Against Sponsors of Terrorism Act (JASTA)

 

About Just Security

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Saudis Warn US of Economic Retaliation Over 9/11 Bill

 

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IPT’s Hoekstra: Public Deserves to See Full 2002 Congressional 9/11 Report

 

About The Investigative Project on Terrorism

Obama v. 9/11 Families


911 Terrorism by frames

Blog Editor Intro to: Obama v. 9/11 Families

John R. Houk, Editor

 

I suspect President Barack Hussein Obama will continue to betray the American citizens and the U.S. Constitution by bowing to the wishes of Saudi government pertaining to Justice Against Sponsors of Terrorism Act:

 

JASTA allows terrorism victims, like victims of the September 11th attacks, the right to pursue foreign states and sponsors of terrorism in federal court. The bill allows Americans to direct financial damage claims against those who funded the attacks. The legislation would also afford this right to families of other American victims of terrorism, that have occurred since September 11, 2001.

 

The following is a summary of the bill:

 

  • First, JASTA amends the Foreign Sovereign Immunities Act (FSA) so that foreign sponsors of terrorism cannot invoke “sovereign immunity” in cases arising from a terrorist attack that kills an American on American soil.

 

 

If JASTA becomes law and President Obama declassifies 28 pages of sealed documents that many in-the-know have hinted, links Saudi Arabia to financial involvement in the 9/11 attack on the Twin Towers. The Saudis have threatened to sell off their USA Treasury Securities if JASTA becomes law. A Fox News story says the Saudis believe that amount is in the area of 750 BILLION bucks.

 

I suspect President Obama will continue to heinously betray America by fighting and preventing JASTA from becoming law. After all, BHO simply needs to veto JASTA and not declassify the 28 documents that may indeed implicate Saudi Arabia in some manner to 9/11.

 

Alisa Flatow & scene of terrorist bombing

Alisa Platow

 

JRH 4/19/16 (Hat Tip Donald Moore of Blind Conservatives)

Please Support NCCR

*******************

Obama v. 9/11 Families

 

By Editorial of The New York Sun 

April 18, 2016

 

President Obama owes Americans a public explanation for why his administration is lobbying Congress to protect Saudi Arabia from lawsuits by families of those killed in the attacks of 9/11. The lobbying was disclosed Friday in a scoop by the New York Times. It reported that the kingdom threatening to sell hundreds of billions of dollars in American assets if Congress exposed it to suits related to the attacks, most of whose perpetrators, including Osama bin Laden, were Saudis.

 

Alisa Flatow Memorial in Israel

Gilabrand / via Wikipedia commons

NEVER FORGET: The Obama administration owes America an explanation for why it is fighting against a bill in Congress that would allow 9/11 families to pierce Saudi Arabia’s sovereign immunity from civil suits and be brought to book for its role in the terrorist attacks of 2001, most of whose perpetrators, including Osama bin Laden, were Saudis. The use of tort law against terror was pioneered by the Estate of Alisa Flatow, slain by Iran in 1995; her campaign to seize Iranian assets was also opposed by the State Department. She is remembered widely, including at a memorial, above, in the Jewish state.

 

Mr. Obama’s administration isn’t alone. Its truckling to the Saudis, its siding against Americans, is part of a long scandal going back to the Clinton administration, which fetched up in court on the side of Iran against the estate of Alisa Flatow. She was the Brandeis coed who was slain in 1995 by Iran in a bus bombing at Israel. Her heroic father, Stephen Flatow, pressed her case in an early test of whether American tort law could be used in this war.

 

The estate of Alisa Flatow won that case, and was awarded something like $247 million dollars. Come time to collect, however, the Clinton administration appeared in court against Alisa Flatow’s estate. In the settlement that followed, the Flatows got a pittance of the court’s award — only $16 million. The government, using taxpayers’ money, essentially bought the Flatows’ claim, giving it the right to keep whatever it can wrest from the Iranians. It’s unclear as yet what that will be.

 

Saudi Arabia can’t be sued under the same law that the Flatows used against Iran, however; that law, the Anti-Terrorism and Effective Death Penalty Act, covered only certain nations officially listed by our State Department as sponsors of terror. The families suing Saudi Arabia tried to pierce its sovereign immunity under more traditional law, but they lost in United States district court and are now appealing. The law the administration opposes would end the sovereign immunity defense for the Saudis.

 

It may well be that Mr. Obama could make a case for what it is doing. The administration argues that by piercing sovereign immunity in these kinds of cases we would open ourselves and our allies to a reciprocal strategy. It wouldn’t surprise us were the State Department animated by baser instincts, including a notorious pro-Arab bias. In any event, despite the danger of reciprocity State has been warning against, no one has laid a legal glove on us in a generation.

 

Whatever case the administration wants to make, though, will be difficult to advance while skulking around Capitol Hill — or bowing to Saudi Kings in their opulent tents. Mr. Obama is scheduled to visit Saudi Arabia this week. The measure Mr. Obama opposes passed early tests in the Congress by overwhelming votes. We’d like to think that this reflects growing ire in a Congress the administration has attempted over and over again to sideline from foreign policy.

 

It’s been more than 20 years since Alisa Flatow was slain, and the only thing Iran has received is Obama’s appeasement. It’s been 15 years since 9/11 and our government still won’t come clean on what it knows about the Saudi role. The bill to which the administration objects is called the Justice Against Sponsors of Terrorism Act. It’s a marker of the American retreat that the battle in the Middle East is being left to the tort lawyers — and that the administration opposes even that.

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Obama v. 9/11 Families

 

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