Letter from Washington — From the October 2017 issue

Crime and Punishment

Will the 9/11 case finally go to trial?

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Similarly uninterested in the facts, at least as Graham saw them, was the 9/11 Review Commission authorized by Congress in 2014 to examine the progress of reforms recommended by the original commission, and recheck its conclusions on the attacks. Three commissioners were appointed to the task by the FBI director, James Comey: Reagan’s former attorney general, Edwin Meese; the former Democratic congressman Tim Roemer; and Bruce Hoffman, a terrorism expert and former RAND official. This inquiry, working with the “full cooperation” of the FBI, upheld the conclusions of the original commission in full. No one from this commission contacted Graham.

In reality, the Obama Administration was well aware that Saudi Arabia was a supporter of terrorism, though it kept the information to itself. Only through WikiLeaks did we learn of Secretary of State Hillary Clinton’s classified cable, circulated to department officials in December 2009, stating as fact that “donors in Saudi Arabia constitute the most significant source of funding to Sunni terrorist groups worldwide.” Saudi Arabia was of course also a significant source of funding to the U.S. defense industry. Two years after the classified cable, Clinton aide Jake Sullivan emailed her the “good news” that the kingdom had just signed a $30 billion order for Boeing F-15 fighters. “Not a bad Christmas present,” observed someone else on the same email thread.

However, while the administration and the intelligence agencies maintained the tradition of protecting the Saudis, the long-stalled legal case against the kingdom was coming back to life. One major stumbling block remained: the Foreign Sovereign Immunity Act. Faced with this legal bulwark, the families and their lawyers resolved to get Congress to change the law. The resulting legislation, the Justice Against Sponsors of Terrorism Act (JASTA), was crafted to blow away the Saudis’ immunity from prosecution.

Kathy Owens was among the widows and other plaintiffs crowding the corridors of Congress in May 2016 to push for the bill. For the first decade after the attack, she had paid little attention to the lawsuit, adding her name only at her father’s urging. Then she happened to pick up a magazine excerpt from Anthony Summers and Robbyn Swan’s book on 9/11, The Eleventh Day. “It woke me up,” she told me. “What? There was Saudi involvement and possibly our government was onto it, and nothing was being done about it, and things were being kept secret?” Learning about JASTA from a website run by Sharon Premoli, Owens started making trips to Washington.

The government warned that the proposed law could inspire similar legislation abroad, allowing foreigners to sue America, and Americans (though JASTA did not apply to individuals). The president’s press secretary pushed this argument, as did State Department officials. Prominent former national security experts dispatched warnings to Congress. Even the Dutch parliament weighed in, apparently swayed by the State Department’s pronouncements.

“It was a bogeyman they threw out in every setting,” one of the senior lawyers involved in the lawsuit told me, explaining that the government had been raising the same objection on previous occasions. Yet “we haven’t seen any floodgate of claims against the United States.” In the view of this attorney, who has spent most of his life since 9/11 working on the case, the Obama Administration was merely “feigning” concern. “They’re not dumb. They had to understand that these arguments didn’t hold water.”

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is the Washington editor of Harper’s Magazine and the author, most recently, of Kill Chain: The Rise of the High-Tech Assassins.

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