By Michael D. Goldhaber, From The Am Law Daily

Petrodollars just don’t buy what they used to on Capitol Hill.

The U.S. Senate on Tuesday unanimously passed the Justice Against Sponsors of Terrorism Act, defying a five-week lobbying campaign by the White House and the Kingdom of Saudi Arabia. The bill clarifies that the Anti-Terrorism Act covers the aiding and abetting of terrorism, and that a sovereign may be liable for a tort committed outside the U.S. If passed into law, it would clear the way for a civil litigation filed in 2002 by 9/11 families, in tandem with World Trade Center insurers, seeking to hold the kingdom and its charities liable for supporting al-Qaida and aiding the hijackers through tortious acts both inside and outside the U.S. After a long and twisting history, In re Terrorist Attacks on Sept.11, 2001 was dismissed last year pending an active appeal to the U.S. Court of Appeals for the Second Circuit.

Plaintiffs counsel Sean Carter of Cozen O’Connor voiced confidence that a bill with such broad appeal would pass the House, and that the president wouldn’t veto a veto-proof bill. As the next step, Carter expects to seek a summary remand to the district court. “The change in law would remove the basis for dismissal,” he said.

A variant of the 9/11 bill passed the Senate unanimously at the end of the last congressional session. The plaintiffs revived the debate by taking their case to “60 Minutes” on April 10—the week before the president’s visit to Saudi Arabia and the New York presidential primaries. JASTA might be the only bill to draw support from Bernie Sanders and Hillary Clinton, Donald Trump and Ted Cruz.

Saudi Arabia responded with a concerted public relations campaign that either fell short or backfired.

A threat by the kingdom to sell its $750 billion in U.S. Treasury bonds, reported by The New York Times, was instantly met with skepticism. A 2013 Congressional Research Service Report, examining the possibility that China might carry out such a plan, found the scenario implausible because it would inflict so much economic harm on the seller. The Saudi foreign minister later denied that his nation ever threatened to withdraw its investments.

Some foes of the bill tried to minimize the suppression of the “28 pages” of the joint congressional intelligence report exploring the Saudi connection to 9/11, by arguing that the 9/11 Commission Report exonerated Saudi Arabia. This argument failed, first, because it distorted the report’s conclusion.

But more fundamentally, the debate should be about the 28 volumes of appendixes compiled by plaintiffs over 14 years without the benefit of either proper government disclosure or (as of yet) discovery on the merits. “It’s not just the 28 pages,” says plaintiffs counsel Jerry Goldman of Anderson Kill.

Other foes of the bill warned that weakening sovereign immunity would open the U.S. to suit in Pakistani court by the guests at a drone-hit wedding. Still others feared entrusting sensitive foreign policy to the vagaries of “plaintiffs’ diplomacy.” Perhaps a jury trial ending in a $200 billion verdict would stoke Saudi anti-American sentiment, or even help to destabilize the country.

Careful redrafting has addressed these more serious fears. Two particular changes satisfied senators who had threatened to place a hold on Tuesday’s bill. First, the term “international terrorism” now excludes acts of war. Second, the bill now authorizes a court to stay a suit if the U.S. is negotiating with the foreign state defendant.

This “Stay of Actions Pending State Negotiations” is bad news for trial watchers. But it bodes well for JASTA’s passage, and for a rational resolution to the 9/11 litigation. After the plaintiffs fill in the blanks of history, the new president can craft a legal accounting with all due responsibility.

Some lawyers have long warned that courts won’t act against terror without legislative and executive approval. Unlike those who sued Iran under an existing law, the 9/11 plaintiffs filed their action on spec. Fourteen years ago, that seemed foolhardy, because it was hard to imagine that the political branches would ever endorse their quest. Ironically, Saudi Arabia has delayed the litigation long enough to see the decline of its geopolitical and lobbying power. 

The Global Lawyer is a regular column by American Lawyer senior international correspondent Michael D. Goldhaber.

IMAGE: The U.S. Capitol building in Washington, D.C. Photo: Diego M. Radzinschi/NLJ

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