US Congress.. (photo credit:REUTERS)


With the US Congress having passed a law Friday to let private individuals sue Saudi Arabia in US courts over the September 11, 2001, terror attacks, some are asking: why not the Palestinian Authority as well? Only weeks ago, a $655 million terror judgment against the PA relating to terror attacks against Americans in Israel during the Second Intifada was thrown out by a US federal appeals court, giving the PA some jurisdictional immunity from almost any lawsuit.

Even taking those two results together, the truth is, the first question posed is the wrong question and needs to be rephrased to get to the real issues.

The right question would be: why should the end result be different between how Saudi Arabia and the PA are treated if their goal was the same? Why are they viewed so differently, even now? First, the Justice Against Sponsors of Terrorism Act is not law yet. The law which let Shurat HaDin go to trial and win a judgment against the PA has been in effect for over a decade, but US President Barack Obama must sign JASTA for it to go into effect, and he has made it clear that he will veto it.

But let us assume that Congress overrides his veto, a very real possibility considering the law has wide bipartisan support.

Next, a case would need to go to trial in order to make our two cases identical. A long line of cases have been filed against Saudi Arabia for 9/11, and have been stuck for years because of its sovereign immunity – the idea that countries cannot be sued.

This law is supposed to remove that sovereign immunity, but a court will need to make that call, let a trial go forward and find the evidence convincing.

At least one top commentator, Steve Vladeck of Texas Law School and editor of the much-read Just Security legal blog, has said that the law is a handicapped version of what was originally proposed.

He said the law only allows cases involving primary liability for terrorism, which would be very hard to prove against anyone, let alone Saudi Arabia, as opposed to aiding and abetting liability, which might have been easier to prove. Vladeck noted that the final version of the law lets the US Secretary of State weigh in to convince courts to hold off indefinitely if the US and the foreign state are in negotiations over the issue. Incentive for the US could be Saudi Arabia’s threat to sell off its investments of $750 billion in US assets. That negotiation clause is a vague and easy standard to satisfy for letting a case sit on the shelf until everyone forgets about it – especially to avoid a $750b. withdrawal.

But let’s say the case makes it through all of these hoops. It would still need to survive an appeal.

This is where the case against the PA fell, and there are strong indications that the appeals courts might find reasons to overturn a judgment or might even declare the law unconstitutional, getting Saudi Arabia off the hook.

If a judgment gets passed this point against Saudi Arabia, and if Shurat HaDin fails to restore its judgment against the PA on appeal, then the question is very relevant.

There are still other differences: the laws being used are different, the PA is not viewed as a country like Saudi Arabia, the technical jurisdictional problems are different, and JASTA only allows suits for terrorism that took place on US soil. The Shurat HaDin cases were for terrorism against US citizens overseas.

But why make the US soil versus foreign soil distinction, if the key is making foreign countries pay for attacking US citizens? That is where things get interesting.

The likely answer is as disturbing as it is obvious.

Nine-eleven led to the deaths of almost 3,000 Americans, the destruction of the Twin Towers, the symbol of American economic power, and almost destroyed the Pentagon, the symbol of American military power. If there were ever an attack which not only called for bypassing sovereign immunity from a justice perspective but which could also rally massive bipartisan political pressure around it, that attack would be 9/11.

In contrast, 33 people were killed in the six terror attacks on Israel which the PA was sued for. The numbers were not just smaller, but the US was not the target, and effectively, those Americans who were killed were caught up in a “foreign” conflict.

That would be the disturbing justification for treating Saudi Arabia and the PA differently.

Of course, the comeback is that justice is blind, terror is terror, Israel is an ally, and that those members of the PA involved in terror were also trying to sway US policy in the region.

But if justice turns out not to be blind in this case, the reasons will not be a mystery.

As reported by The Jerusalem Post