(CN) — Investigating a former Saudi consular official in Los Angeles, attorneys for 9/11 families hit a roadblock in their longstanding litigation to hold the kingdom liable for the worst terrorist attacks in U.S. history: claims of diplomatic immunity.
If Saudi Arabia’s expansive view of the Vienna Convention prevails, the families’ attorney Sean Carter argued Thursday, “States could simply organize terrorist attacks using their diplomatic and consular facilities.”
Roughly a dozen attorneys wrangled for nearly five hours over what information Saudi Arabia must disclose, while an audience of some 450 victim family members and reporters listened via phone.
With U.S. courts largely closed by the coronavirus pandemic, Thursday’s remarkable conference gave hundreds of people across the country an opportunity to hear the slow but steady progress in one of the oldest and most controversial cases in the Southern District of New York.
For nearly two decades, family members of 9/11 victims have struggled to vault various procedural hurdles standing in the way of their lawsuit Saudi Arabia. It took an act of Congress — the Justice Against Sponsors of Terrorism Act, or JASTA — for the families to even gain the ability to pierce the kingdom’s cloak of sovereign immunity in 2016.
Some two years later, the passage of that legislation led to a watershed ruling allowing the families to look into two Saudi-linked men — reputed intelligence officer Omar al-Bayoumi and former consular official Fahad al-Thumairy — for alleged ties to the hijackers.
But the kingdom claimed other immunities, including a more than 50-year-old treaty considered a bedrock of international law.
Known as the “treaty of treaties,” the Vienna Convention gives broad protections for activities that take place on diplomatic grounds, but the counsel for the 9/11 families argue that this calculus changes for alleged illegal conduct.
“They gave Thumairy diplomatic immunity so that he could get out of the country,” Carter claimed, referring to Saudi Arabia. “If it was anyone else, he would be in jail right now.”
The declassified section of the 9/11 report claimed Thumairy may have met hijackers Khalid al-Mihdhar and Nawaf al-Hazmi as imam for the King Fahad Mosque, “widely known for its anti-Western” views and built in 1998 with funding provided by Saudi Arabia’s Crown Prince Abdulaziz. Counsel for the 9/11 families want to probe Abdulaziz about his alleged ties to Thumairy, an effort that Saudi Arabia is trying to block, citing privileges protecting current and former high-ranking officials.
Under his visa, Thumairy would have required diplomatic license plates on a registered vehicle to track his movements. But the 9/11 families’ legal team claim that a State Department communication showed Thumairy obtained a car and license plate, suggesting an effort to avoid detection.
Denying that Thumairy narrowly avoided prison, Saudi Arabia’s attorney Michael Kellogg said that the former consular official returned to the United States after the attacks and tried to reenter on a diplomatic visa that had been revoked.
In a joint investigation earlier this year, the New York Times and ProPublica reported that U.S. authorities revoked the visa of the other man under investigation, Bayoumi, on the grounds of “quasi-terrorist activities.”
Should the 9/11 families win on the issue of diplomatic immunity, there are other obstacles in the hunt for evidence. Some Saudi witnesses have refused to submit to deposition, and it is unclear whether the judge has the power to ask the kingdom to compel that testimony.
Ordering such testimony is not as simple a matter as declaring: "You're a totalitarian regime; just force them," Kellogg, Saudi Arabia's attorney, said.
Then, there is the matter of the pervasive U.S. government secrecy surrounding Saudi Arabia's role in the attacks, even some four years after the declassification of the 9/11 report.
In 2018, U.S. Magistrate Judge Sarah Netburn ordered the FBI to declassify more about Saudi Arabia’s alleged ties to the attacks for the litigation, but much of the record remains secret. Attorneys shared privileged evidence over Skype during Thursday’s proceedings that was not made available to the press and public, who only had audio access to the hearing.
There have been some technical hiccups along the way. The FBI inadvertently revealed the identity of one Saudi official: Mussaed Ahmed al-Jarrah, a mid-level Foreign Ministry official assigned to the kingdom’s Embassy in Washington, D.C., in 1999 and 2000, Yahoo News reported.
Thursday’s hearing was supposed to occur a week ago, before the dial-in system became too overwhelmed to accommodate an audience of hundreds.
Proceedings were delayed by roughly 30 minutes over a technical issue that Judge Netburn resolved by shutting her computer down and turning it back on again.
“I have a computer invented just after they invented computers,” Netburn quipped.
Glitches notwithstanding, Netburn noted that the pandemic ultimately allowed unprecedented access to the landmark proceedings. A physical courtroom would not have been able to accommodate an audience of that size, with victims’ families throughout the country dialing in from the comfort of their homes.
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