Sovereign Immunity or cover-up?

Full disclosure: I have a pony in this race. I am an American and, as an attorney, I am an officer of the court. I make this disclosure in the light of an amicus curiae brief recently filed with the U.S. Supreme Court by the Obama-Holder Department of Justice. The brief pertains to the mammoth case that came to the Supreme Court via the Second Circuit Court of Appeals (New York) called In re Terrorist Attacks on Sept. 11, 2001. The Supreme Court is currently pondering whether the case merits its review.

In its friend-of-the-court brief, the Justice Department has argued, almost unimaginably, that the Supreme Court should not review the Second Circuit’s ruling that the victims of 9/11 and their families may not sue the Saudi government or, more importantly, the individual Saudi princes who personally (not as government actors) gave money to Muslim charities they knew would be funding al-Qaeda’s jihad against America.

The basis for both the trial court’s dismissal of the complaint and the Second Circuit’s affirmation of that ruling is the complex area of the law known as sovereign immunity. To avoid the weeds, let’s stay at a high altitude. The basis for sovereign immunity is clear: Governments need to know that other countries’ governments will not allow their citizens to lodge lawsuits in their home courts for any perceived wrong committed by the foreign power. Without sovereign immunity, governments would spend fortunes and tie up personnel defending themselves in courts around the globe.

For much of our history, U.S. courts have granted the executive branch a great deal of leeway in determining the scope of this immunity because it is the executive branch that is responsible for international relations. Before 1952, the executive took the view that all acts of a sovereign nation should be immune. From 1952 onward, however, the government has taken the more reasonable "restrictive" approach. This grants immunity for actions a foreign government takes when it is acting as a government, but not for actions taken when it is acting as, for example, a commercial enterprise, which might occur when the government in question owns a company doing business in the United States.

In 1976, Congress passed the Foreign Sovereign Immunities Act (FSIA), which effectively codified the restrictive view of sovereign immunity. The statute is not clear on many points, however, and that leads to legal disputes like the 9/11 case.

What makes the Justice Department’s position unimaginable is that its brief concedes that the Second Circuit’s ruling got the law wrong (although the brief maintains that it fortuitously got the result right) and that it is in conflict with other circuit courts that have ruled on the issue.

The two situations in which the Supreme Court is most likely to accept the type of discretionary appeal known as a writ of certiorari are when the circuits below "split," or when a circuit has issued a bad ruling that will have serious implications for federal law. The Obama-Holder Justice Department admits that both conditions are met in this case, yet it still favors immunity. Worse, it believes the Supreme Court should not even review the matter. In other words, the Obama administration concedes that the Second Circuit, one of the more influential federal appellate courts, got the rationale for its holding wrong, but it nonetheless opposes giving the victims of 9/11 their day in court.

The other unimaginable position maintained by the U.S. government is that the Saudi princes acting as private individuals should be immunized from lawsuits by the victims of 9/11 – not on the basis of sovereign immunity, but because the Obama administration doesn’t feel there is enough evidence against them. But even the Second Circuit recognized there was a wealth of evidence to show that these princes knowingly funded al-Qaeda’s terrorism via Muslim charities.

What makes this position even more outrageous is that the only valid basis for the Justice Department to step in and offer its opinion in this case was to clarify for the Supreme Court the executive’s view of the interpretation of sovereign immunity under the FSIA. That the Justice Department would even venture its opinion on the wholly unrelated issue of whether there was sufficient evidence presented in the complaint to justify allowing the case to go forward against the individual princes is, at the very least, problematic.

The question now crying out to be asked: How far will the Obama administration go to prevent private plaintiffs from exposing the quite personal ties between our Saudi "friends" – who love to host U.S. presidents bearing words of praise – and our jihadi enemies fighting to impose the rule of sharia around the world?

David Yerushalmi is an attorney specializing in litigation and general counsel to the Center for Security Policy. This originally appeared in National Review.