9/11 widow calling out U.S.-Saudi coziness highlights failure of liability regime to deliver justice

Flag from Ground Zero appears in September 11 commemoration
last week at American History Museum in Washington, D.C.
G. Edward Johnson via Wikimedia Commons CC BY 4.0

"Tell the Saudis to stop lying," a September 11 widow told the 25th annual memorial gathering in New York City on Friday.

Terry Strada is the widow of Thomas S. Strada, a father of three and Cantor Fitzgerald bond broker killed in the terrorist attack on September 11, 2001. She broke the tradition of exclusively apolitical statements at the annual memorial. But she drew applause from the crowd and shamed the assembly of every living former President and the current Vice President, who were there.

Here's more of what Strada had to say, from The Hill:

"For 25 years, administration after administration, including leaders in front of us here today, chose to protect the Saudis instead of standing with the 9/11 families," she said. 

"They withheld evidence," Strada continued. "They vetoed JASTA [Justice Against Sponsors of Terrorism Act]. They broke promises, both public and private. It has been one betrayal after another."

"Tell them that if they want to be friends with the USA, they cannot continue to deny all of this, all of the pain, all of the destruction that we have all been suffering through," Strada said.

The Guardian has further coverage. 

There's no disputing Strada's facts. Twenty-eight pages of the 2002 congressional report on 9/11 were redacted for 14 years and did show possible ties, though nothing definitive, between Saudi officials and 9/11 hijackers. Many 9/11 records, including parts of the 2002 report, remain classified and have dribbled out over the years, including daily presidential briefings released just last week. Tim Burke at the Freedom of the Press Foundation has more on the latest. The City of New York also dumped a document trove into sunlight last week, including revelations of especial interest to first responders showing what officials knew about dangerous air quality.

Both Bush and Obama administrations tried to protect the Kingdom of Saudi Arabia (KSA) from accusations of 9/11 responsibility. The United States is not dependent on Saudi oil. But the White House saw, and still sees, KSA as an essential diplomatic and military partner in Middle East security.

In 2016, President Obama did veto JASTA. Congress overrode the veto five days later. The law waives foreign sovereign immunity in civil claims against foreign governments that aid and abet terrorism, whether with action or with money. 

Legislators were not so noble as it might seem. They knew well that JASTA claims would be next to impossible to prove against KSA, especially while 9/11 intelligence remained classified. So JASTA was really symbolic, something to boast about back home in the district. September 11 families would be pacified for a time while preoccupied with the bureaucracy of civil litigation.

Even if JASTA plaintiffs could obtain evidence, they would have a hard time ever proving a causal chain from the Saudi state to the 9/11 attacks. KSA might have ignored warning signs—so did the United States—but was hardly looking to destabilize geopolitics and send energy demand into free fall.

Indeed, since 2016, no JASTA suit has gained serious traction. A much touted suit against Israel in 2017 has gone nowhere and certainly has not been a deterrent to Israeli warfare. Iran has not even defended against JASTA suits and has suffered default judgments. That just moves plaintiffs into enforcement actions in the United States, in which they've been profoundly unsuccessful. Administrations of both parties have intervened against the plaintiffs, preferring that the government control Iranian assets to use them for diplomatic leverage.

The determination of Strada and other JASTA plaintiffs despite long odds, dim enforcement prospects, and opposition of their own government is a stirring reminder of the manifold purposes of tort law, or civil dispute resolution more generally. The U.S. tort system tends to emphasize, usually to a fault, the aim of compensation. But most 9/11 plaintiffs have received some compensation already from the federal victim compensation find.

Rather, plaintiffs in many types of cases, and especially in wrongful death, are usually after something else entirely. No amount of money can bring back a loved one. But justice is a relentless motivator.

Nevertheless, the law never has favored compensation for plaintiffs in U.S. courts for matters implicating foreign affairs. The preference is partly structural. The Constitution provides roles for both the executive and legislature in foreign policy. Congress often has abdicated, justifiably and not. But foreign policy in any event was always to be policy, by design, a matter of distributive justice for the political branches, not a problem in corrective justice for the courts. 

The preference also is political and is less defensible in that vein. As money became the lingua franca of Washington especially in the post-World War 20th century, policymakers became reluctant to trust courts, much less civil complainants, with regulatory influence over powerful and wealthy actors. In other words, the grubby hands of the unwashed masses must not be allowed to derail the gravy trains of the elite. The distaste for civil complainants against states supporting terrorism is a cousin, and not even a distant one, of the reluctance to create private causes of action in civil rights and consumer protection. 

In an outcome under-reported by mass media amid the usual flurry of Supreme Court opinions late in the last term, in Cisco Systems, Inc. v. Doe, in June, the Court disallowed a lawsuit accusing a U.S. corporation of knowingly developing technology for the Chinese government to facilitate the identification, arrest, and torture of members of the Falun Gong spiritual movement. The Court ruled out both corporate liability under the 1789 Alien Tort Statute (ATS) and aiding-and-abetting liability under the Torture Victim Protection Act (TVPA), appended to the ATS in 1991.

Both conclusions are debatable on the merits; the Court ruled 6-3. But more significant is the problem that remains: whether, or when and how, transnational actors can be held accountable in the United States for their complicity in human rights violations abroad.

As the United States has sought to eschew judicial involvement in foreign matters, other nations and the international legal system have been trying to step up. There is needed and dawning recognition around the world that transnational actors, public and private, have for too long been permitted to operate above the law. From Big Oil in South America, to Big Ag in Africa, to Russia in the former SSRs, the supposed rule of law has failed to stop bad actors from literally getting away with murder.

Which brings us back to KSA. To be fair to the past presidents, the United States always has been in a tough spot with the Saudis.

KSA seems to enjoy impunity in the murder of Jamal Khashoggi, oppression of dissidents at home and abroad, dubious policies on gender and sexual orientation equality, religious freedom, and immigrant labor, and financing war in Syria and Yemen. I'm not saying all such Saudi policies are indefensible, and I'm not letting the United States off the hook for its own issues. I mean only that there seems to be no official inquiry at all; other nations fairly accuse the United States of a double standard. 

The pandering of Bush, Obama, Biden, and Trump to Saudi royals is perennially stomach-churning. Western politicians will smile and abide when KSA hosts the 2034 FIFA World Cup, just as they abided Saudi acquisition of LIV Golf (until this year), Newcastle United, and Electronic Arts. And the United States is moving forward (probably) on an agreement to share nuclear technology with KSA for, one hopes, only civilian applications. 

And no wonder. The United States and KSA continue to rely mutually on strategic alliance for security interests in the Middle East. Meanwhile, Trump and allies, including son-in-law Jared Kushner, are profiting handsomely from Saudi investments.

One might wonder whether a time will come to pay the piper. Late last week, KSA grew frustrated as Iran-backed Houthi rebels seized from Saudi-financed government forces the entire Red Sea coast of Yemen. The Houthis thus gained control—this might sound familiar—of a vital strait and key islands in the transit of oil.

About the same time, KSA suffered a drone attack on its East-West oil pipeline. The massive conduit, stretching 1,200 km (746 miles), vital in the best of times, is a critical overland bypass to the Strait of Hormuz. The attack came from Iraqi territory, but almost certainly was the work of Iran-backed forces, and the timing dovetailed with the Houthi advance. The pipeline is shut down now for damage and risk assessment. I hope you filled your gas tank over the weekend.

In the wake of this one-two punch, reports say that Crown Prince Mohammed bin Salman (MBS) himself—whom you might remember from such hits as the Khashoggi dismemberment and Biden fist bump—asked the White House to intervene militarily against the Houthis. Middle East commentator Professor James M. Dorsey observed analogously seven years ago: "The Saudis do not want an open conflict with Iran. The Saudis would like others to fight that war, and the others are reluctant."

Whether or not Trump personally felt inclined to oblige in Yemen, U.S. military resources happen to be running thin. And Republicans campaigning for midterm election would go into full meltdown if the country were to go to war on a second front.

So the President had to let down his Riyadh chum, but did pledge to send 200 military advisers to beef up intelligence sharing. Why does that also sound familiar (inflation since 128 in 1950)? Well, don't worry, the President said. He had a call with MBS, and "everything's going to work out fine and dandy. It's going to be very good."

A deepening Saudi alliance, a merely symbolic JASTA, and a neutered ATS: Seems to me that the United States is succumbing to sycophancy as its place in the new world oligarchy.

Panelists on child labor describe accountability efforts

Schoolchildren play at a Goboué, Côte d'Ivoire, school
built by Nestlé and cocoa partners. Nestlé via Flickr CC BY 2.0.

Liability for child labor and child trafficking was the subject of an informative continuing legal education program from the International Law Section of the American Bar Association in January.

The program contemplated various legal vehicles for liability, including the alien tort statute (ATS) and the Trafficking Victim Protection Act (TrVPA). And don't count out ordinary, common law tort, said Terry Collingsworth, executive director of the International Rights Advocates. 

The program description set the alarming scene:

There is no childhood for boys and girls who are trafficked as sex slaves or for imperiled cobalt miners in the Democratic Republic of the Congo working without protective gear, or for children who are forced to fight as soldiers or girls conscripted into forced marriages. Nor is there a childhood for enslaved young boys as young as five who are sold to human traffickers and made to work as fishermen for up to 12 hours a day, seven days a week.

Despite a range of UN protocols and statutory accountability mechanisms, abusive child labor practices persist.

The reach of the 1789 ATS has been limited in recent years by Supreme Court rulings requiring that a matter "touch and concern" the United States. Collingsworth—whose commentary I found most informative, and a fellow Duke Law alum—criticized this interpretation of the ATS as reading non-extraterritoriality into the statute, "as if it should only apply if the kids were kidnapped from the United States."

The "read in" did contradict decades of federal court precedent, dating to the 1980s. At the same time, statutory interpretation recognizes a presumption against extraterritoriality, so the courts arguably strayed from first principles.

Even with the knowledge requirement, " sadly, there's enough of that to keep us busy for the rest of eternity," Collingsworth said.

Provided jurisdiction and venue can be managed in U.S. courts, ordinary, common law tort theories can be helpful: assault and battery, infliction of emotional distress, and unjust enrichment. The challenge there, Collingsworth explained, is that "it takes years." He said a pre-2001 case against Exxon is going to trial only now.

"It shouldn't be that hard to enforce internationally agreed norms prohibiting the abuse of children," he said.

Another angle of attack on the problem panelists said, is section 307 of the U.S. Tariff Act, which prohibits the import of goods "mined, produced, or manufactured wholly or in part in any foreign country by convict labor or[] forced labor or[] indentured labor." In a related vein, I myself have seen certifications on products, and I wouldn't mind seeing more.

At the international level, the problem with abundant human rights instruments is a lack of enforcement mechanism, panelists said. Without enforcement, agreements and treaties "only offer cover for companies," Collingsworth said. 

A virtual attendee asked about defensive claims that child labor is culturally normal or provides a worthwhile avenue of economic opportunity. Collingsworth said that child advocates hear those arguments "all the time: ... someone says it’s always been that way, that’s how they learn a skill or trade." The speaker, he said, "is usually a rich guy benefiting from the labor.

"If you ask the kids if they’d rather work or go to school, that’s an easy one."

The ABA International Law Section hosted the panel "Childhood Denied: A Lifetime Lost: Conventions and Cases" on January 25. International law and gender consultant Elizabeth Brand moderated. Other panelists, besides Collingsworth, were Shandra Woworuntu, chair of the International Survivors of Trafficking Advisory Board; Jo Becker, advocacy director for the children's rights division at Human Rights Watch; Will Lathrop, field office director of the Ghanaian International Justice Mission.

Court sentences 'Hotel Rwanda' activist to 25 years; U.S. plaintiffs serve Greek airline in civil action

Paul Rusesabagina

(NDLA: Creator: Erik Mårtensson/TT | Credit: TT Nyhetsbyrån CC BY-NC-SA 4.0)

Real-life "Hotel Rwanda" protagonist Paul Rusesabagina was sentenced in Kigali to 25 years' imprisonment on terrorism and related charges.

PRI The World's Marco Werman has an interview with journalist and author Michela Wrong about the latest in the case.  I wrote about the case in February.

Besides the concerning criminal proceeding in Kigali, the luring in 2020 of Rusesabagina, a Belgian citizen and U.S. resident, from his San Antonio, Texas, home to his abduction on a Dubai flight purportedly bound for Burundi spawned a lawsuit in the United States.  Claiming under the alien tort statute (ATS) and Torture Victim Protection Act (TVPA), Rusesabagina's family sued GainJet, the Athens-based airline that conveyed Rusesabagina in his abduction to Kigali, and Constantin Niyomwungere, who the complaint alleges was a Rwandan agent pretending to be a pastor conveying Rusesabagina to speak in Burundi.

Upon news of the criminal conviction, I thought it time to check the docket in Rusesabagina v. GainJet Aviation S.A. (Court Listener; see also family statement on conviction and more at Rusesabagina Foundation).  Regrettably, there is little of substance to report.  As one might expect, the plaintiffs have struggled with service of process.

The complaint was filed in the Western District of Texas in December 2020.  In May, plaintiffs reported to the court their intention to drop Niyomwungere from the lawsuit.  Plaintiffs wrote that Niyomungere "gave statements to the Rwanda Investigation Bureau in February and August of 2020 admitting that he had helped to kidnap Mr. Rusesabagina."  However, plaintiffs wrote, Niyomwungere is believed to reside in Burundi, and Burundi is not a signatory to the Hague Service Convention.

Meanwhile, plaintiffs had had service on alleged "co-conspirator" GainJet translated into Greek and delivered to Greek authorities under the Hague convention.  In the latest docket entries, in late August, GainJet returned a waiver of service of summons without waiving any defense of jurisdiction or venue.

Plaintiffs re-alleged in the May report that GainJet told Rusesabagina he was aboard a flight to Burundi.  Then "Gainjet’s pilot and flight crew stood idly by and watched as Mr. Rusesabagina was tied up by the hands and legs, his eyes covered, and his mouth gagged," plaintiffs further alleged, and GainJet accepted payment from the Rwandan government.

A private charter service, GainJet does fly to the United States.  In 2019, the U.S. Soccer Women's National Team flew home from the World Cup in France on a GainJet 757 to New York.  But I've not been able to identify any GainJet office or assets in the United States.  That bodes ill for having a federal district court in Texas exercise jurisdiction.

At the same time, GainJet holds itself out worldwide, and in English, as a luxury charter service.  Ongoing association with the Rusesabagina case can't be good for business amid the jet set.

A defense response in the case is due in late October.

Alien tort animates U.S. lawsuit in abduction of 'Hotel Rwanda' hero, threatens immunity of social media

Paul Rusesabagina at the University of Michigan in 2014

(photo by Ford School of Public Policy CC BY-ND 2.0)

The alien tort statute has turned up more than usual lately in my newsfeed.  In two compelling appearances, the law is implicated in the criminal prosecution now underway in Kigali of "'Hotel Rwanda' hero" Paul Resesabagina, and it has a cameo in the section-230-reform show now playing on Capitol Hill.

Last week, Professor Haim Abraham, of the University of Essex School of Law, spoke to the Obligations Discussion Group, organized by the University of Oxford Faculty of Law, on his current working paper, "Holding Foreign States Liable in Tort."  Working at the intersection of torts and human rights, Professor Abraham is passionate about the problem of accountability for wrongs perpetrated by state actors.  His present work means to outline a policy framework to support state liability, and he made a reference in passing to the American alien tort statute (ATS).

Dating to 1789, the ATS, complemented by the Torture Victims Protection Act of 1991 (TVPA), is a principal legal avenue to liability for torts committed abroad.  ATS liability, though, runs up against serious hurdles, namely, the law's own vague scope, and foreign sovereign immunity.  On its own terms, the ATS only pertains when a wrong rises to a violation of international law or treaty, often imprecise benchmarks.

The enigmatic 18th-century enactment says little else.  Especially in recent decades, the U.S. Supreme Court has grown fastidious in its interpretation of the law, rejecting claims without sufficient nexus to the United States.  Meanwhile, ATS plaintiffs must take care to pursue wrongdoers as rogues, lest defendants present as state actors entitled to foreign sovereign immunity.  The TVPA was a mitigation of that latter limitation.

Sharing Professor Abraham's appetite for accountability, not to mention my self-interest in full employment for torts professors, my attention is captured anytime the ATS turns up in a way that might yield fresh fruits.  And so it has.

Graves of genocide victims in Rwanda in 1995
(photo by Gil Serpereau CC BY-NC-ND 2.0)

The New York Times, among others, has reported on the shady chain of events that led to the presently ongoing criminal trial in Kigali of Paul Resesabagina, the man who saved some 1,200 lives during the Rwandan genocide in 1994 and whose story was turned into a major motion picture starring Don Cheadle.  Living outside Rwanda first in Belgium and then in the United States, Resesabagina has been an outspoken critic of Rwandan authorities, both as to the genocide and as to subsequent Rwandan foreign policy, including alleged involvement in war crimes in the Democratic Republic of Congo.  He knew better than to return to Rwanda, but, reports state, Resesabagina thought he was on a plane to Burundi for a speaking engagement when the plane landed in Kigali, and he was placed under arrest on terrorism charges.

There's plenty to debate about the criminal matter in Rwanda, but my focus here is on events back home.  Rusesabagina's family in San Antonio, Texas, in December 2020, sued GainJet and Constantin Niyomwungere in federal district court under the ATS and TVPA, and in Texas tort law on counts of fraud, false imprisonment, intentional infliction of emotional distress, and civil conspiracy.  GainJet is the company that conveyed Rusesabagina from his Dubai layover to Kigali, and the family alleges that Niyomwungere, a purported pastor who invited Rusesabagina to to speak in Burundi, was in fact a secret operative of the Rwandan government.

The pleadings mean to represent the abduction as a violation of international law, besides common law torts, and to bring the case within the scope of the TVPA, too.  The complaint characterizes the abduction of Rusesabagina as "extraordinary rendition" and charges the defendants with torture of Rusesabagina upon or after his landing in Kigali, stating that he was kept bound, blindfolded, and gagged for days and "physically and psychologically tortured" in interrogation.

GainJet B757 ascending from Coventry, England, in 2015

(photo by Rob Hodgkins CC BY-SA 2.0)

Niyomwungere is characterized alternatively as a state actor or a free agent working with the state, to deal with immunity on that front.  Either he was a state actor, in which case the state would have to concede its role in the abduction, or he was a rogue, subject to tort liability (if he can be brought within U.S. jurisdiction).  The complaint furthermore alleges that GainJet, a private charter company based in Athens, Greece, was a knowing co-conspirator with the Rwandan government, so the GainJet pilot and co-pilot, knowing what was afoot, failed to signal an emergency in the air.  The complaint catalogs GainJet commercial outreach to Rwanda and speculates that the firm was anxious for work amid the Greek economic debacle.

The complaint asserts that the matter in sum sufficiently "touches and concerns the United States" to satisfy Supreme Court requirements, because the defendant-conspirators reached out to Rusesabagina at his Texas residence to lure him abroad.  That by itself is a thin reed, but the U.S. residency of the plaintiffs bolsters the nexus.

Meanwhile, in Washington, D.C., Senate Democrats are circulating a proposed bill that would carve out some slices of Internet service providers' infamous tort immunity under section 230 of the Communications Decency Act of 1996.  Section 230 reform has become a bipartisan cause since both Democrats and Republicans, often for different reasons, have sought to blame social media companies for our present national discontent, whether for not censoring enough or for censoring too much.

The proposal does not represent a wholesale repeal and reinstatement of conventional publisher liability in tort, as some congresspersons called for.  Among proposed new immunity exceptions are actions in civil rights law, antitrust law, "stalking, harassment, or intimidation laws," wrongful death, and, lo and behold, "international human rights law," specifically, the ATS.

The theory behind the proposal as to the ATS is that social media companies over which the United States has jurisdiction could be held liable for having facilitated human rights violations abroad.  As Lauren Feiner observed for CNBC, this measure

could be particularly risky for Facebook, which acknowledged in 2018 that it was “too slow to prevent misinformation and hate” on the platform as Myanmar military officials sought to weaponize it in what became characterized as a genocide against the minority Rohingya Muslims. The SAFE TECH Act would clarify that Section 230 immunity should not bar suits under the [ATS], which could allow survivors of the genocide in Myanmar to bring cases against the platform in the U.S.

People displaced by violence in Myanmar in 2012
(photo by UK Department for International Development CC BY-SA 2.0)

Myanmar would be only a starting point, as social media, including Facebook's WhatsApp, have been blamed for eruptions of violence around the world, notably including mob violence in India (which I talked about at a Dubai event in 2019 sponsored by India-based Amity University).  Plaintiffs would face the usual high hurdles of the ATS, including the international law requirement and the requisite U.S. nexus, as well as hurdles in conventional tort law, such as duty and proximate causation.  But it's not hard to imagine plaintiffs surviving dismissal to see discovery.  Even without further process, discovery would be a boon to human rights advocates.

Over its centuries of life on the books, the alien tort statute has been counted out as a dead relic, resurrected as a reputed redeemer, and wrangled as a menacing mischief-maker.  What seems certain now, whether under the ATS, TVPA, or instruments yet to be devised, is that in our smaller world, the challenges of legal accountability for both states and corporations for transnational misconduct cannot be written off easily as beyond the scope of national concern or domestic jurisdiction.

The case in Texas is Rusesabagina v. GainJet Aviation, S.A., No. 5:20-cv-01422 (W.D. Tex. filed Dec. 14, 2020).  At the time of this writing, PACER shows no activity since filing.

The section 230 reform bill was introduced in the Senate, 117th Congress (2021-2022), on February 8, 2021, as S.299.