The Supreme Court yesterday asked the U.S. Solicitor General's office to weigh in on whether a huge lawsuit against the government of Saudi Arabia charging that it was a source of terrorist financing before the 9/11 attacks should move forward.
The decision could breathe life into a long-running lawsuit alleging that Saudi government-backed charities financed al Qaeda and other terrorist groups. The Supreme Court is weighing whether to accept an appeal filed by the Cozen O'Connor law firm of a lower court finding that Saudi Arabia could not be sued under U.S. law.
The Solicitor General's office functions effectively as the United States' lawyer before the Supreme Court and its views likely will figure prominently in the Supreme Court's deliberations.
Nancy Winkelman, an appellate lawyer at Schnader Harrison Segal & Lewis L.L.P. said the Supreme Court's request is a signal that the court believes the issues raised in the case could have merit.
In cases where the solicitor general says there is merit, the Supreme Court typically accepts between 50 and 60 percent for review, Winkelman said. It typically declines to hear the overwhelming majority of cases where the solicitor general finds there is no basis for an appeal, she said.
"This is a significant development," she said. "It says to me that the Supreme Court believes this is an important case and that it wants to weigh the issues carefully."
The Saudi government denies that it financed terror organizations and has complained in court filings that the lawsuit has upset relations with the United States.
The Supreme Court yesterday rejected 600 requests that it hear appeals of lower-court decisions. It granted certiorari, or accepted, five and referred two, including the Saudi case, to the solicitor general.
"The Supreme Court did not deny certiorari, and they had to pass a threshold to do that," said Stephen Cozen, the lead lawyer in the lawsuit against Saudi Arabia. "I would think it is totally appropriate for the Supreme Court to ask the solicitor general for its views."
Cozen O'Connor, which is taking the lead on the appeal, filed suit with other law firms alleging that in the years before the 9/11 attacks the Saudi government financed Islamist charities that in turn funded al Qaeda.
Cozen O'Connor is representing dozens of insurers that paid out $5 billion in property damage and other claims stemming from the attacks.
The Cozen appeal seeks to overturn a decision by the U.S. Court of Appeals for the Second Circuit in Manhattan that U.S. law bars lawsuits against foreign governments for acts of terrorism, unless the State Department has designated those governments sponsors of terrorism.
The original lawsuit against Saudi Arabia and various Islamist charities and Persian Gulf banks cited hundreds of findings and other documents generated by U.S. intelligence agencies that the charities financed terrorist operations. The lawsuit also is based on the results of the law firm's own investigation.
The lawsuit cited public statements by former U.S. government officials that the Saudis had been warned on several occasions before the 9/11 attacks that the charities were providing financial assistance to al Qaeda.
While the solicitor general technically has 30 days to respond, it likely will take longer, as it surveys the relevant U.S. agencies for their views on the impact on U.S. relations with Saudi Arabia of permitting the lawsuit to go forward.