Within hours of planes crashing into the World Trade Center towers on Sept. 11, 2001, Cozen O’Connor was flooded with calls from insurance companies. A simple question, “Can we sue Afghanistan?” evolved into a full-blown case in which the prominent Philadelphia law firm is holding more than 400 alleged sponsors of al-Qaeda, including the Kingdom of Saudi Arabia and several Islamist charities, financially liable for 9/11.
The case has taken a number of years to wind its way through the lower courts. Cozen O’Connor has filed a petition with the U.S. Supreme Court to hear the case. The firm seeks to recover $5 billion in property losses.
Last November, Sean Carter and Stephen A. Cozen, C’ 61, L’64, founder and chairman of Cozen O’Connor, shared their legal strategies for the case during a forum that was part of the Lawyering in the Public Interest series.
Carter said the multimillion dollar investigation posed a number of challenges, chief among them identifying covert supporters of al-Qaeda. This is difficult, he said, because the U.S. government and intelligence agencies protect such information. Further, the firm was implicating Saudi Arabia, a U.S. ally with unlimited financial and legal resources to mount a good defense.
Consulting sources such as congressional hearings on terrorism and counterterrorism experts, Carter pieced together how a small group of Afghan war veterans managed to build a global organization over a decade. “Ostensible charities” that were created and controlled by the Saudi government, channeled support to al-Qaeda operatives throughout the world, said Carter.
Cozen attorneys made a strategic decision to sue “robust charities” such as the Saudi High Commission for Relief to Bosnia and Herzegovina because their clients were not only motivated by public interest, but also wanted to recover losses. They decided to treat these charities as controlled agents of the Saudi government because the Kingdom used them to further its interests. This designation gave the charities immunity under the Foreign Sovereign Immunity Act (FSIA), but also allowed attorneys to attribute their conduct to the Kingdom and hold it accountable for 9/11. The FSIA gives immunity status to foreign states and their agencies unless one of the Act’s exceptions applies.
In the U.S. District Court in New York, Cozen argued that the Kingdom and its agents were not immune because FSIA includes an exception to immunity for tort claims seeking recovery for injuries suffered in the United States. Judge Richard Casey dismissed the case, concluding that FSIA does protect the princes and that even if Saudi agents knowingly provided money to al-Qaeda, they were “exercising a legitimate government function” because they were pursuing foreign policy interests.
Cozen appealed the decision in the U.S. Court of Appeals for the Second Circuit, which also dismissed the case, concluding that immunity for “terrorist” torts can only be withdrawn from countries on the State Department’s list of designated sponsors of terrorism. Saudi Arabia is not on the list. The court also suggested that the response to the 9/11 attacks is best left to foreign policy and not the courts.
Cozen was “shocked” by the court’s “ideological approach.” Penn Law Professor Stephen Burbank, who provided legal counsel on the case, considers the decision “ironic” because FISA’s intent was to transfer such decisions on immunity from the executive to the judicial branch. The idea was to prevent short-term political interests from influencing determinations.
For now, Cozen attorneys are optimistic that the case will be heard in the Supreme Court because it presents “federal questions of paramount importance,” said Carter.