The Cable

Lindsey Graham Pushes Compromise on Saudi 9/11 Bill

Looking to unite the White House with a divided Congress while still protecting the U.S. against foreign lawsuits, a key Republican senator is proposing a new compromise on legislation to help give justice to survivors of terror attacks on American soil.

RIYAD, SAUDI ARABIA - APRIL 20:  US President Barack Obama (R) shakes hands with Saudi Defense Minister  Muhammed bin Salman Erga Palace in Riyadh,  on April 20, 2016. During his two-day visit, Obama is to attend a Gulf summit.
 (Photo by Pool / Bandar Algaloud/Anadolu Agency/Getty Images)
RIYAD, SAUDI ARABIA - APRIL 20: US President Barack Obama (R) shakes hands with Saudi Defense Minister Muhammed bin Salman Erga Palace in Riyadh, on April 20, 2016. During his two-day visit, Obama is to attend a Gulf summit. (Photo by Pool / Bandar Algaloud/Anadolu Agency/Getty Images)

Looking to unite his fellow lawmakers while protecting the U.S. against foreign lawsuits, a key Republican senator is proposing a new compromise on legislation to help give justice to survivors of terror attacks on American soil.

The effort, which could expose Saudi Arabia to litigation for any role it had in the 9/11 attacks, has major implications for U.S.-Saudi relations and comes as President Barack Obama arrives in Riyadh to show his support for the kingdom’s ruler.

The proposal by Sen. Lindsey Graham (R-S.C.) seeks to allay criticisms by the White House and Republicans of a current bill that would allow U.S. courts to sue foreign states for playing a role in a terrorist attacks that killed Americans on U.S. soil.

The Obama administration opposes that bill, saying it could expose the U.S. and its citizens to legal jeopardy if other nations pass retaliatory laws that strip Americans of sovereign immunity in foreign courts. Graham’s compromise would raise the burden of proof required to sue a foreign power, and make it far more difficult to hold nations responsible for terrorist acts carried out by proxy forces.

“I want to make sure that if America is aligned with somebody, we don’t own everything they do everywhere on the planet,” Graham told reporters Wednesday as he entered the Senate chamber.

He specifically warned that America’s support for Kurdish YPG fighters in Syria could expose the U.S. to legal action under the current version of the Justice Against Sponsors of Terrorism Act that has divided congressional leaders.

“We’re helping the YPG Kurds, right?” Graham said. “They’re the cousins of the PKK, which is a terrorist organization in the eyes of the U.S. government and the Turkish government. Well, if they collaborate on an attack inside Turkey, I don’t want to be held liable.”

A senior Obama administration official declined to comment on Graham’s still-fledgling proposal, but said “the specific hypothetical he raised is, in part, what undergirds some of our concern over the current draft.”

Top Senate Democrats — including Minority Leader Harry Reid of Nevada and Chuck Schumer of New York — are bucking the White House to back the bill’s current form.

Unusually, the main opposition to the legislation has come from Republicans who share Obama administration concerns about sovereign immunity and — looking long-term — do not want to alienate Saudi Arabia, a longtime strategic ally in the Middle East. Obama was in Riyadh on Wednesday for a meeting of Persian Gulf leaders amid strains between Saudi Arabia and the U.S.

“It opens up America to a tremendous amount of liability,” Senate Intelligence Chairman Richard Burr told Foreign Policy. “There are a lot of things that we do that might be defined as [a terrorist act].”

Schumer told FP he was trying to strike a compromise with Republicans, but a final agreement hadn’t been made yet.

“We’re working on it,” he said Wednesday as he entered an elevator to the Senate chamber. “I’m talking to Lindsey and to [Sen. Jeff] Sessions.”

The original bill, which passed the Senate Judiciary Committee in January, enjoys broad bipartisan support and is sponsored by Schumer and Sen. John Cornyn (R-Texas). Congress’s increasingly vocal criticism of Riyadh signals a break from the past, when America’s dependence on Saudi oil was viewed as paramount to concerns about human rights and support for extremism.

The Saudi government has been lobbying aggressively against the bill. Last Friday, The New York Times reported that Saudi Foreign Minister Abdel al-Jubeir told a group of American lawmakers that Riyadh would have no choice but to sell as much as $750 billion in U.S. assets if the bill became law, a rare and unusual threat.

Some American families whose relatives were killed in the September 2001 attacks want to sue Riyadh because 15 of the 19 airplane hijackers were Saudi nationals and allegations that have surfaced that some Saudi officials provided support to the terrorists ahead of the attack.

Cornyn has accused Obama of “pulling out all the stops” to shield Saudi Arabia from a bill that he said would bring justice to the families of 9/11 victims.

“I wish the president and his aides would spend as much time and energy working with us in a bipartisan manner as they have working against us, trying to prevent victims of terrorism from receiving the justice that they deserve,” Cornyn said on the Senate floor Tuesday.

A Democratic Senate aide who supports the bill said the administration’s warnings about stripping a foreigner’s sovereign immunity are a “major stretch.” Before 2005, the aide said, individuals could hold foreign governments responsible for attacks on the U.S. and “there was no flood of suits.”

Legal experts agree the bill, in its current form, is unlikely to dramatically increase the risk of litigation to Americans and U.S. businesses. But they said the threat of retaliatory laws by foreign governments is a legitimate concern.

“In the long run, I’m not super worried that U.S. companies or individuals would be subject to a massive number of lawsuits around the world, but it’s really a slippery slope,” said Matt Zierler, a professor of international law at Michigan State University.

Mark Zaid, a veteran national security lawyer in Washington, noted that it is possible that the legislation could trigger more claims against the U.S. government than before, especially regarding its more controversial and covert activities. “For example, we could be sued for alleged use of drones,” he said.

Graham’s legislation seeks a middle ground that would stipulate that foreign powers can only be sued if their actions are the “proximate cause” of a terrorist attack. “That’s a hugely high bar and that’s his goal,” said Zierler.  “He’s trying to make the standard of criminal justice clear.”

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