Although Congress voted Wednesday to override President Barack Obama’s veto of legislation that allows relatives of 9/11 victims to sue the government of Saudi Arabia for their deaths, it’s unclear how soon they can expect to make their case in court.
Legal experts say the families still face hurdles – procedural and political – before they see a U.S. court decide whether Riyadh played a role in the deadly terrorist attacks of 2001, in spite of overwhelming support in both the Senate, where Obama’s veto was rejected 97-1, and the House of Representatives, where the tally was 348-77.
It could take months for the families’ attorneys to gather documents and conduct interviews to back their claim of Saudi official involvement – not a small feat considering that no previous inquiry has uncovered a smoking gun.
“It’s unclear what the legislation ultimately will allow, and what the costs will be and whether it will really allow the families to get any sort of closure or not,” said Michael Gerhardt, constitutional law professor at the University of North Carolina School of Law. “Lawsuits can be very difficult avenues to try and settle acts of terror.”
Congress, however, was willing to let the families try, handing Obama the first veto override of his administration by margins that left little doubt where the sympathies lay. Only Harry Reid of Nevada, the top Senate Democrat, voted to sustain the president’s veto in the Senate.
“Our administration was dead wrong on this issue,” said Sen. Chuck Schumer, D-N.Y., who ordinarily would be among the president’s biggest supporters in Congress.
“I’ve never been shy about voting against the president when I disagree with him, and this bill is no exception,” said Democratic Sen. Claire McCaskill of Missouri.
McCaskill voted in 2015 to override Obama’s veto of a bill that would have authorized construction of the Keystone XL pipeline, but that override failed.
The override drew praise from the campaign of Republican presidential candidate Donald Trump, which distributed a statement by former New York Mayor Rudy Giuliani calling Obama’s veto “an insult to those we lost on 9/11.”
Family members said they knew that even with the enactment of the Justice Against Sponsors of Terrorism Act, their day in court was distant.
“I think there’s probably a long road ahead. There was a hope that things would happen really fast, but it doesn’t seem to be working that way,” said Lorie Van Auken, whose husband, Kenneth Van Auken, died in the World Trade Center.
Still, she added, Wednesday’s vote “means we’re one step closer to justice.”
Embarking on a lobbying blitz, Saudi Arabia tried to stop the legislation, a sign of the increasing tensions between Riyadh and Washington over the Saudis’ roles in conflicts in Yemen, Syria and elsewhere. Saudi officials had warned they’d sell off billions of dollars in U.S. assets if the so-called “9/11 bill” became law.
Saudi representatives in Washington declined to comment, but they have steered journalists to the public remarks of U.S. officials who support the president’s veto.
Speaking before the House vote, White House spokesman Josh Earnest called the Senate vote “embarrassing” and “an abdication of their basic responsibilities as elected representatives of the American people.”
In July, Congress released a long-withheld 28-page section of what had been the first U.S. report on the Sept. 11, 2001, terror attacks. The section had been declared classified for national security reasons and withheld when the report was released in June 2003.
The suppressed chapter spelled out a series of possible links between the hijackers and Saudi officials that the congressional investigators said they thought deserved more attention. Fifteen of the 19 hijackers, all of whom died in the attacks, were Saudis who’d lived in Florida, California, Virginia and New Jersey.
It also described what the investigators said was an “unacceptable” lack of awareness by the CIA and the FBI of Saudi activities inside the United States. It blamed that lack of awareness on the FBI’s part prior to the Sept. 11 attacks on “Saudi Arabia’s status as an American ‘ally.’ ”
However, there was no bombshell revelation in the 28 pages that tied the hijackers directly to the Saudi government. Instead, the section urged more thorough investigation, while pointing out that the information it contained had been gleaned from FBI and CIA files.
“I expect there is still a fair bit of secrecy that may be difficult if not impossible to penetrate,” said Gerhardt, the law professor.
The extra pressure on an already strained alliance was just one concern to the Obama administration. Apart from the diplomatic fallout, the White House said the law also might work in reverse, allowing, said Republican Sen. Bob Corker of Tennessee, the chairman of the Foreign Relations Committee, the possibility that the U.S. could be sued in cases of, for example, civilians killed in drone strikes.
Still, Corker voted to override, while some experts argued that such concerns were misplaced.
“The law should not open up the floodgates for foreign lawsuits against United States diplomats, soldiers or corporations,” said Juan Basombrio, an attorney based in Costa Mesa, California, who recently won a Supreme Court case on the issue of foreign sovereign immunity. Diplomats, he noted, are protected by the Vienna Convention’s grant of immunity, and soldiers are also shielded.
“What the White House has provided as the main reasons for the veto are just plain wrong,” he said.
Basombrio said the legal hurdles for the 9/11 victims included that a judge, not a jury, would hear a case. Judges are thought to be less likely to be swayed by their emotional reactions to allegations than juries are.
In addition, a judge is required to stop litigation if the Justice Department says it is negotiating with the country being sued. Another obstacle is that the plaintiffs have the burden to first prove that the exception to sovereign immunity applies.
Fifteen years after the attacks, senators were unwilling to challenge the wishes of the 9/11 families.
“I think they should have their day in court,” said Sen. Lindsey Graham, R-S.C., as he walked onto the floor to cast a vote to override. “But I also want to look at how you may deal with the problems that may flow from this.”
Graham had expressed reservations early on despite being an original co-sponsor of the bill. He even briefly placed a hold on his own legislation in April over concerns that the law could be turned against Americans in retribution. After the House passed the measure earlier this month, he said he wanted to make sure “anything we do doesn’t come back to bite us.” Graham pushed for more time to find a compromise with the president and the bill’s sponsors, in order to advance it without harming the relationship with a key ally.
Van Auken, who’s among the four outspoken 9/11 widows known as the “Jersey Girls,” said the 28 pages and other inquiries wove a tangled story of Saudi royals, government businesses, intelligence operatives and terrorists. At the very least, she said, there’s enough suspicion of Saudi official involvement to allow the lawsuit to go forward.
“We’ve been waiting for 15 years,” Van Auken said. “It’s really time to know. It’s time to know what happened and to hold people accountable.”
Lindsay Wise, Anita Kumar and Vera Bergengruen contributed to this article.