The continuing Saudi-American cover-up of 9/11

The Justice Department continues to insist that the 9/11 victims can’t sue various Saudi individuals and institutions (including Prince Bandar bin Sultan, aka “Bandar Bush”) for their complicity in the 9/11 attacks, and that classified evidence of that complicity now in the hands of the U.S government shouldn’t be made available to the public. There are hard questions here, but I think I disagree.

So the Justice Department continues to support the legal position of the Saudi government that (1) the families of the 9/11 victims can’t sue various Saudi parties they claim were accessories to the crime; and (2) some of the evidence, which is classified, shouldn’t be made public.

Fearless prediction: some of the wingnuts who were utterly silent about this matter when it was the Bush Administration carrying the Saudis’ water will suddenly be up in arms about the participation of Barack Hussein Obama in the cover-up. Second fearless prediction: very few of my allies in demanding either prosecutions or a Truth Commission to ensure some sort of accoutability for torture will be especially loud in demanding accountability for mass murder. What’s the case, for example, for releasing the torture photos but keeping the 9/11 evidence secret? (Note that the accountability in question isn’t just that of the Saudis for whatever aid they provided to al-Qaeda, but of the American officials who knew about it and kept that knowledge from the public.)

On the existing public record, there’s no way to know to what extent the Saudi royal family, or elements of the Saudi government were responsible for the mass murders of 9/11. It seems incontrovertible that royal and official funds (to the extent such a distinction actually exists in the Saudi system) put money in the hands of some of the terrorists, knowing that they were terrorists. There’s no evidence that I’ve seen, either way, about whether the attacks were ordered by, or known to, the Saudi government or individual members of the royal family.

What is clear is that documents in possession of the U.S. government cast the Saudis in a very unfavorable light, that a civil trial on the issue would be extremely embarrassing to Saudi Arabia, and that the Saudis have put strong pressure on the U.S. government to help keep the public from knowing the facts.

One of the people involved in paying al-Qaeda operatives in the U.S. was Prince Bandar al-Sultan, a.k.a. “Bandar Bush.” (That was the Beloved Leader’s nickname for him.) So when the Bush Administration’s Justice Department, under Ashcroft and Gonzales, collaborated with the Saudis in keeping the facts from being publicly acknowledged, there was a reasonable suspicion that the Administration was consulting its own political interests as well as the nation’s security interests.

The failure of the Kerry campaign to exploit the issue &#8212 after a glancing mention of it in Kerry’s acceptance speech brought the Democratic delegates to their feet &#8212 has always been a mystery to me. I was convinced then, and remain convinced now, that “Bandar Bush” could have been the winning issue that year, especially with Bob Graham as the VP candidate.

Perhaps Kerry was acting out of what he tought was the national interest. After all, the Saudi royals have stuff we need, and nothing they do that helps the U.S. is likely to be popular in the Kingdom. (When I had a chance to question Wesley Clark on this issue, he pointed out that if Saudi Arabia had free elections, Osama bin Laden would be elected President.) So there’s a policy basis for swallowing hard and covering up for them.

On the other hand, there’s lots of Saudi money sloshing around the country: to law firms, to non-profit groups, and to universities. Virtually every big law firm in the country has a retainer from the Saudi government, one or another Saudi royal, or one or another Saudi institution. It’s not unreasonable to worry that all that money, some of which goes to enterprises that employ important Democrats, might exert some influence. Did someone tell Kerry’s Finance Director that raising the Saudi-9/11 issue would complicate fundraising, and did the Finance Director talk to the campaign manager or the candidate? I wouldn’t be surprised.

I’m not sure what to think either about the law or the policy.

Figuring out how the Foreign Tort Claims Act interacts with the doctrine of sovereign immunity is way beyond my competence. In principle, it ought to be possible to distinguish between sovereign acts, such as Her Majesty Queen Elizabeth II, Deo Gratias Regina, etc., etc., Fidei Defensor, approving an Order in Council, and private acts, such as Mrs. Philip Mountbatten allowing her corgis to tear up your flowerbed.

There are good reasons to put the sovereign acts of foreign powers beyond the reach of American courts; we wouldn’t want Bangaladeshi courts hearing suits by Bangaladeshi citizens against U.S. Presidents for policies that contribute to global warming and thus to rising sea levels and the inundation of the Bangaladeshis’ land. On the other hand, if the Mrs. Mountbatten’s corgis tear up your flowerbed, why should you be out of luck? If the U.S. government, as a matter of policy, wants to substitute itself as the defendant and pay for your flowers, fine.

In this case, if the individual defendants want to plead that their actions were official rather than personal, and if the Saudi Government wants to say, “Yes, it was our official policy to support al-Qaeda cells in the United States,” then I can see why sovereign immunity would apply. But if not, then I don’t see why the suit shouldn’t go forward.

But again, that’s my imagination about what the law ought to be, and I don’t have any problem believing that the law actually is that a member of a foreign royal family can kill as many Americans as he likes and not have to answer for it. And, if that’s what the law is, then it’s appropriate for the Justice Department to so represent in court. On the other hand, the Justice Department is, properly, reluctant to reverse itself once it’s taken a position in court, and it’s possible that what’s happening now is that a choice made on political grounds five years ago is being adhered to out of a foolish consistency.

Of course the issue here is the information, not the damages. My strong impulse is to say, “If the Kingdom doesn’t want Americans to know about its participation in murdering other Americans, it should avoid participating in such murders. Otherwise, tough luck.” If the courts won’t make those files available, and the Executive Branch doesn’t want to because it would cause a diplomatic incident, then let the Congress do it. There are times when fidelity to the truth exacts a price. This is such a time, and I think the price probably ought to be paid.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com