INTRUDERS IN THE HOUSE OF SAUD - PART II
What Gerson sees in Burnett is the perfect opportunity for the judiciary to play a critical role in the war on terror, punishing those enemies of the United States that the executive branch, hamstrung by diplomatic considerations, cannot. ''If we left justice solely to the U.S. government, when it has so many commercial and other interests with countries like Saudi Arabia, what action would be taken?'' he asked. ''We've refused to join the international criminal court. And trying to accuse a foreign country of criminal activity gets us into a terrible diplomatic mess. So why shouldn't they be held responsible in our courts?''
To those accustomed to the genteel rites of diplomacy, the adversarial American court system may seem an unfortunate forum to engage questions of international wrongdoing. In an affidavit in the Burnett case, Charles Freeman, a former ambassador to Saudi Arabia, disparagingly referred to this solution as ''the privatization of foreign policy.'' Gerson prefers to call it the privatization of justice. Absent the judiciary, he argues, victims of terror have no other means of redressing wrongs. ''Freeman's notion, which represents institutionalized State Department dogma, is like the old idea that the Post Office is only something that the U.S government can do -- it's so antiquated it's absurd,'' he said. ''The idea is that the government is obligated only to itself and responsible to no one. Well, that idea has been eroding with the advent of contemporary human rights. This is the great human rights case. It's the right to be free from terrorism.''
American civil courts are not unfamiliar with lawsuits involving international human rights. Since 1980, lawyers have made shrewd use of an obscure 1789 law called the Alien Tort Claims Act, originally intended to combat piracy, which gives American courts ''original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.'' As a result, American judges have heard from Guatemalan victims of torture, from Haitian dissidents and from survivors of the Bosnian genocide. In the last decade, the same law has also been used in an attempt to hold multinational corporations accountable for malfeasance -- like Unocal, for example, for its alleged use of forced labor to provide security for oil pipelines in Myanmar.
The difference between Alien Tort cases and Burnett, however, can be measured in light years. Alien Tort cases are generally brought by human rights lawyers, working for a pittance, hoping to turn a 215-year-old law into an instrument of justice for citizens around the globe. Burnett is being brought by a plaintiffs' lawyer, toiling for a cut of the proceeds, hoping to use laws recently enacted by a law-and-order Congress to punish those who have brought harm to Americans. One can see how tastelessly opportunistic it might seem from the point of view of the human rights community: plaintiffs' lawyers, swooping in, turning a handsome profit off history's ugliest moments. Yet some human rights experts see real value in Burnett. ''It seems like a righteous case brought by an experienced lawyer,'' said Paul Hoffman, the human rights attorney involved in the Unocal suit. ''And who else has the kind of resources for it? Who else has that kind of cash up front?''
Motley does, of course. Yet there aren't many precedents for spectacular payoffs in cases like this one. Almost none of the plaintiffs who have sued successfully using the Alien Tort Claims Act have been able to collect from the hostile foreign parties they've targeted; generally, they are awarded default judgments when the defense doesn't show up in court. And most of the successful cases using antiterrorism statutes have been directed at countries on the State Department list of terrorism sponsors, like Iran and Cuba, whose American assets, if there are any, are generally frozen. The victories in all these cases are mainly moral rather than financial. In going after wealthy Saudis and Saudi financial institutions with considerable assets in the United States, Motley is part of the first generation of lawyers trying these cases who might actually be able to collect.
Unless, that is, the Bush administration tries to block the suit. As a rule the administration favors a limited role for the judiciary in international cases. Later this month, it will argue before the Supreme Court against the use of the Alien Tort statute for human rights cases, absent a law from Congress explicitly allowing as much. Even with an imprimatur from Congress, the president clearly doesn't like Motley's use of the antiterrorism statutes; back in October 2002, news articles reported ''administration officials'' saying that the government was considering asking the courts to dismiss the suit. Victims' families reacted with the outrage you'd expect. The administration never intervened.
But should the administration consider Motley's suit a threat? David Aufhauser, the former general counsel to the Treasury Department, said he believes that private and government action against terrorism are not mutually exclusive pursuits. ''If brought soberly and with substance, private actions can be of material assistance to the government,'' he said. ''Because I can tell you: the bankers of terror are cowards. They have too much to lose by transparency. Name, reputation, affluence, freedom, status. They're the weak link in the chain of violence. They are not beyond deterrence.''
Jean Charles-Brisard, Motley's chief European investigator, was a bit late to arrive at La Reserve Hotel in Geneva one afternoon last December, but it didn't seem to matter. The witness he was meeting, Carmen bin Laden, wasn't ready to speak with him anyway, because she was still talking to a pair of foreign journalists about ''Inside the Opaque Kingdom,'' her chronicle of tribulations within the bin Laden family. When she finally finished, she walked over to Brisard, magisterially shook his hand and took a seat on a hard maroon couch. She was trim, plump-lipped, imposing and, in her own way, spectacular. Her face was stretched as taut as a volleyball net, and her coat collar was a vivid species of fur. She pulled out a cigarette.
Carmen bin Laden is Osama's Swiss-born sister-in-law. She is currently embroiled in a bitter divorce from his half-brother Yeslam, who is a defendant in Burnett. This makes her, like many of the witnesses in Motley's case, fairly rich in ulterior motives. Her discussion with Brisard did not last long. After just a few minutes, she received a phone call and abruptly left. Brisard turned to me and apologized for her ''bizarre'' behavior. ''She's not a key witness,'' he said. ''She's a contextual witness.''
Over the course of their investigation, Motley's team has learned what the professional intelligence community has long known: the information trade often involves questionable types. Michael Elsner, an associate at Motley Rice who often accompanies Brisard on these trips, told me of once receiving a phone call from a Russian fellow named Igor who said just enough about Islamic banks and charities operating in Chechnya to earn himself an invitation to chat. The man who showed up was bald, rotund and almost permanently attached to a shining silver briefcase. ''He was supposed to get us things,'' Elsner said. Yet he never returned. It's probably just as well. A background check revealed that Igor had a small problem with embezzling.
With his $12 million, Motley has begun an investigation that even most nation-states could not afford. But money alone is not enough to form an ersatz C.I.A. Motley sought out former intelligence agents, journalists and professors, all of whom spent their lives obsessing about Al Qaeda. Some turned out to be shady and unreliable. Yet Motley has had some success. Early on, one of his sources in Afghanistan learned of a Taliban fighter who was selling a computer file that he claimed had belonged to Muhammad Atef, military commander for Al Qaeda until he was killed in November 2001 in Afghanistan. The seller wanted $80,000. Motley wired it to Dubai. Motley's team also discovered a document supposedly signed by Mullah Omar containing a directive to turn over $2 million ''in Saudi Arabia aids'' to a terrorist in central Asia. That got attention in the press.
But Motley also concedes that his team had a hard time separating wheat from chaff when it began its investigation two years ago. Fakihi's computer, which Motley was so pleased to have obtained, for example, ended up adding little to the information he'd already collected. The car that came with it is still sitting somewhere in Europe.
Motley is now focusing on the documents culled by foreign governments, which have already been vetted and, presumably, authenticated. This is where Brisard comes in. Though his book was criticized in the United States, he is nevertheless considered an expert on Al Qaeda's financing stream, particularly its Saudi tributaries, and has written a well-respected report on the subject for the United Nations Security Council. So far Brisard has gotten his hands on two million pages of documents from 35 foreign governments, some of them quite tantalizing: Swiss bank records of Osama bin Laden; Albanian intelligence reports on bin Laden business dealings; information from 34 Bosnian hard drives from the offices of Al Haramain Charitable Foundation, which Brisard said he managed to get instead of the F.B.I. (Why? I asked. ''Because the U.S. promised to give them the technology to recover the deleted files, but didn't,'' Brisard answered. ''And we did.'') Recently, added Motley, an Oregon federal prosecutor investigating Al Haramain called him, wondering whether he could have a look at those files. Motley said he obliged.
One may wonder why these countries would bother cooperating with an American civil lawsuit. Motley has a characteristically blunt explanation. ''Please -- these countries have their own parochial agendas,'' he said. ''Radical Islamic fundamentalism is a huge problem in France. A huge problem in Spain. A terrible problem in Germany. And look at Chechnya! Why do you need to look any further at why Russia's gonna help us? Or look at Jordan. It's a secular kingdom! They're certainly not rah-rah-rah on the Wahhabi movement.''
How this formidable pile of information will be interpreted by the courts -- if Motley's case ever gets that far -- remains to be seen. For the lay person, any foray into the intelligence world is surreal and initially intoxicating; who wouldn't respond to the formation minutes of Al Qaeda, which the team obtained from Bosnia? If genuine, this and many of Motley's documents are certainly of historical relevance, but whether they're of legal relevance, demonstrating that Motley's defendants knew they were providing material support to terrorists, is another question entirely.
''The claim against my client is that it gave money to charities and the money ended up in the hands of terrorists,'' said Christopher Curran, the lawyer for Al Rajhi Bank, one of the banks being sued by Motley. ''But these were government-regulated and government-approved charities that held themselves out as bona fide charitable organizations. When we Americans donate our clothes to Goodwill or our funds to the United Way, do we really know where it's all going? Don't we also rely on government regulation and the representations of the charities themselves?''
Even if Motley compiles enough evidence to prove his defendants knowingly financed terrorism, it may not be enough: the judge must still agree that it is appropriate for an American court to assert jurisdiction over them. In the cases of the Saudi Princes Turki and Sultan, for example, the judge did not. In November the United States District Court in Washington ruled that the allegations against the princes, as Saudi officials, were not enough to surmount sovereign immunity, a powerful privilege that protects states and their officials not just from liability but also from lawsuits themselves.
The ruling didn't affect Motley's banking, charity and nonsovereign defendants, but his team was devastated when it heard the news. ''The judge proceeded as if it were a time of peace,'' Gerson said, ''and it's a time of war.''
For Gerson and Motley, war means interpreting the antiterrorism statutes as aggressively as possible. But even people sympathetic with their efforts think there are limits. Like suing sovereigns. ''Look,'' said Aufhauser, the former Bush administration official, ''you have to be mindful that bringing them into an American court is an invitation for enormous mischief abroad, potentially against former and current U.S. officials . . . like me.''
The United States more or less had to cope with this problem last year, when Iraqi families, using Belgium's ''universal jurisdiction'' law (now amended to give immunity to world leaders), tried to call Colin Powell, former President Bush and Dick Cheney into court for the bombing of a civilian shelter during the gulf war in 1991. Youssef M. Ibrahim, a former New York Times reporter who is now the managing director of Strategic Energy Investment Group, a consulting firm based in Dubai, told me that two lawyers in Saudi Arabia are flirting with the idea of recruiting Iraqi clients to sue Donald Rumsfeld for the use of depleted uranium munitions in Iraq. What if their targets don't stop with Rumsfeld? And what if they also sue Lockheed Martin and Northrop Grumman for making those arms? Or their engineers for designing them?
For those who believe the executive branch should be wholly in charge of foreign policy, Burnett feels like a mockery of international relations, a flagrant end run around the institutions designed to engage the world community. ''If people think we should be tougher on these countries, we have a democratic process to try to bring that about,'' said Murphy, the former State Department official. ''They can vote, they can lobby, they can form networks and lobby even better. But it shouldn't be dictated by the initiatives of just a few victims.''
Particularly, the argument goes, when Saudi Arabia has an incentive to finally address the problem of terrorist financing itself. In May and November 2003, terrorists blew up housing complexes in Riyadh, which reportedly spurred more on-the-ground intelligence cooperation between the United States and Saudi Arabia than ever before. The Treasury Department, charged with tracing terrorism dollars, noted in an announcement in January that it worked jointly with Saudi Arabia to close down four offices of the charity Al Haramain outside the kingdom. Would now be the time to humiliate Saudi Arabia with a lawsuit, just as our objectives are finally starting to align?
''Basically, this is U.S. diplomacy by contingency-fee lawyer,'' said Curran, the defense lawyer. ''No one disputes that all of those responsible for 9/11 should be tracked down and held fully responsible. But in this case, allegations have been made indiscriminately against some of the most prominent and reputable Saudi organizations and citizens -- many of whom are Western-oriented and could play a major role in fostering constructive relations between our two countries. These lawsuits undermine that possibility.''
Meanwhile, the American budget and trade deficits continue to grow. Is now the time to scare away the foreign investors who are pouring money into the American economy and buying Treasury bonds? Less than a year after Sept. 11, The Financial Times reported, Saudi investors had already withdrawn as much as $200 billion from the United States. ''At the end of the day, I believe this president will prevent this lawsuit,'' Ibrahim said. ''There's nothing more cowardly, as you know, than capital.''
Some human rights lawyers, though reasonably convinced of the merits of Motley's case, also balk at the ''material support'' clauses it relies so heavily upon, believing they've been defined too broadly and could therefore unwittingly penalize those who give money to groups they consider politically legitimate. ''When Nelson Mandela came to Yankee Stadium, should all the people who put $10 in the hat be treated as terrorists?'' asked David Cole, a human rights lawyer who is leading an aggressive challenge to these statutes. Cole pointed out that not long before, the United States government had labeled the African National Congress a terrorist organization. ''Are we going to go down the road of guilt by association in the name of fighting terrorism, just as we did in the name of fighting Communism?'' Cole said. ''That's my principal concern.''
Motley would point out that he is not going after $10 donors in his lawsuit, but the gulf states may not view it that way. ''I give to charity personally,'' said Khaled Al-Maeena, editor in chief of The Arab News, an English-language newspaper published in Jidda. ''You can quote me on this. A lot of people supported the Afghan struggle against the Soviet Union. Some of that money may have been siphoned. But that does not mean we are responsible for Sept. 11. Who are these people who are accusing them? They are fat-cat lawyers -- fat-cat lawyers who want to make money.''
Indeed, perhaps the most discomfiting aspect of the Burnett case is the message it sends abroad. The United States already has an international reputation for unquenchable litigiousness. And Motley, often prone to rhetorical excess -- like referring to Prince Turki as Prince Cooked Goose -- hardly seems like the most sensitive champion of private action against foreign defendants. The average Saudi may read about Burnett and feel not deterred but further inflamed: the United States walked away from the Kyoto treaty; it attacked Iraq with only meager international support; it repeatedly flouted the desires of the United Nations. And now, the United States, whose citizens are among the richest and luckiest on Earth, has responded to its misfortune with a trillion-dollar lawsuit aimed at, of all things, some of the most prominent relief organizations in the Middle East.
''A judgment will cause great resentment on the part of the people here,'' Al-Maeena concluded, with a sigh so audible it temporarily muffled our connection across the globe. ''And it will be fuel, I think, for our own extremists.''
In mid-December, the Motley team got some disorienting though not entirely unexpected news. A panel of federal judges ordered the consolidation of all Sept. 11 cases involving foreign defendants into the Southern District of New York. It's for the pretrial phase only, in order to spare the defendants the hassle of showing up in multiple courts for multiple lawsuits, but it nevertheless has its consequences. Motley, who had been following his own rhythms, must now reach a power-sharing agreement with the lawyers representing a dozen or so other cases, and their styles, defendants and theories of liability are not necessarily the same. As it turns out, Motley's first attempt at court-driven diplomacy may not involve his defendants but his new colleagues. And lawyers, of course, get along only slightly better than warring nations. So far, no agreement has been reached.
Because Motley has served the most defendants and is representing the most wrongful death claims, he will doubtless have leverage in this deal. And some of the other lawyers now involved in this case could prove a real asset to Motley's team. Like James Kreindler, for example. Though Gerson was the first to sue Libya in the case of Pan Am 103, it was Kreindler, an airline litigation expert, who ultimately represented most of the families. His faint New York patois and familiarity with the folkways of the Southern District also can't hurt; he seems to have a genuine rapport with the new judge in this case, Richard C. Casey.
But Kreindler has spent only $2million so far on his suit. A good portion of it went toward examining Al Qaeda's ties with Iraq, which now appears to be moot -- even if he could provide proof, the Bush administration has declared Iraq's assets off-limits. Most important, though, Kreindler's approach to his lawsuit is very different from Motley's. ''You have to handle this case in a delicate way,'' he said, ''in a way that doesn't burn bridges with our government.'' He stressed that he's a Democrat. ''But I believe in letting the government go first in their criminal prosecutions, and it takes years for the government to do its work. But when that's done, you have the weight of the government behind you when you make allegations.''
This approach does not harmonize well with Motley's instincts. Patience is not his strong suit. ''Jim is the Job of the trial bar for waiting so long on Pan Am 103,'' he said. ''But my clients don't want to wait. They want the trial last week.''
And yet they may have no choice. The court system, their chosen means of justice, is a fundamentally slow, lumbering thing, and with so many different lawyers and philosophies now thrown in the mix, it seems now to be even slower. Motley's clients, like Motley himself, may have to accept that legal solutions to misfortune, as gratifying and empowering as they seem, still don't give their victims full control.
Still, Motley is proceeding apace, serving defendants and collecting documents from around the globe. And Bush has yet to interfere. Last year, at a Republican fund-raiser in Little Rock, Deena Burnett said she asked the president what he thought of the lawsuit she had initiated. The two were standing side by side, waiting to have their picture taken together. She said that Bush turned and looked at her, just before the flashbulb popped. ''You just keep doing what you're doing,'' he said.
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