The 9/11 legal battle

If nothing else, the lawsuit filed Thursday by Cozen O’Connor, the Center City law firm, against the government of Saudi Arabia, various Saudi government linked charities and Prince Salman, a member of the Saudi royal family, suggests this litigation is not going away anytime soon.

The firm filed its first suit against the Saudis in 2003 on behalf of insurers who covered commercial property at ground zero and who had lost upwards of $5 billion.

The lawsuit hit a roadblock over the Foreign Sovereign Immunities Act, which sharply restricts lawsuits by U.S. citizens against foreign governments for supporting terrorism. Cozens lawyers, their clients and other firms that also have sued the Saudis maintain that there is ample evidence to hold the Saudis accountable.

They say the Saudis funded and controlled Islamists charities that in turn financed al Qaeda and other terrorist groups through the 1990s, providing a platform for their emergence as a global threat.

The legal hurdle for the plaintiffs is high though. Under the FSIA, foreign governments can be sued for terrorism only if the state department has issued a finding that the government has sponsored terrorism. No finding, no viable lawsuit against a foreign sovereign. And there has been no finding where Saudi Arabia, an important U.S. ally, is concerned. In 2009, the U.S. Supreme Court turned down an appeal by Cozen of a decision by the U.S. Court of Appeals for the Second Circuit in New York finding that Saudi Arabia could not be sued under FISA.

Though many of the other defendants remain in the original lawsuit, Cozen clearly is hoping to engineer an end around with its latest complaint. There is a new plaintiff, the somewhat obscurely named Lloyd’s Syndicate 3500, a London based reinsurer, and a new claim.

The suit was filed in a new federal jurisdiction, Johnstown, near the crash site of flight United flight 93 in Shanksville.

 This time the insurer is seeking to be repaid for claims paid on behalf of airlines, aircraft manufacturers, airline security companies and others that were sued by victims of the 9/11 attacks. Cozen and others have always maintained that the FISA permitted lawsuits against foreign sovereigns for acts of terrorism, without a state department designation. If that argument doesn’t prevail this time, perhaps politics will change the terms of the debate.

 Members of congress have introduced legislation that would make clear that lawsuits such as the one that Cozen filed can go forward. Although the proposal hasn’t gained much traction so far, the politics around the issue could change if the discovery process generates more information suggesting Saudi government responsibility.

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