[Originally published at vikinglaw.us]

Congress’ override this week of President Obama’s veto of JASTA (the Justice Against Sponsors of Terrorism Act) comes as no surprise—the legislation is wildly popular, even though it upends a centuries-old international legal doctrine, and despite potentially disastrous ramifications to U.S. defense and intelligence efforts.  For the sake of focus, I’ll forego political and legal criticism of JASTA itself; that criticism has been thoroughly  developed elsewhere  (for just two cogent discussions of JASTA’s international jurisprudential ramifications, see Ted Folkman’s post on Letters Blogatory, and this Bloomberg editorial.)

I’ll also forego arguments in favor of sovereign immunity in general (nutshell definition:  with very few exceptions, nation-states are not subject to suit in the courts of other nation-states).  It’s a necessary though thoroughly frustrating concept, and Congressional leaders are already expressing second thoughts over their rush to override. Even the Act’s proponents now recognize how sovereign immunity protects us.

This is a practical criticism.  Setting aside this ancient doctrine and its value to U.S. interests abroad, let’s assume that claims go forward and the Saudi government actually appears to defend.  What then?  How might 9/11 plaintiffs substantiate their allegations that Saudi Arabia funded the attacks?

Plaintiffs bear a significant burden to show that a defendant caused injury, and whatever the complaint, whatever the forum, that showing requires evidence.  To prove the Saudis funded Al Qaeda’s 9/11 operations, a plaintiff must show a judge and jury more than mere conjecture—they have to show a paper trail.  They cannot simply subpoena documents located overseas.  That paper trail will certainly not be compelled in Saudi Arabia; the Kingdom is not about to cough up voluminous documentation demanded in the course of expansive discovery.  It is not going to be compelled in Iraq or Afghanistan or Pakistan or any number of other countries in the Middle East.  The plaintiffs’ best (only?) course of action will be to follow the money.  And where does the money trail lead?  To banks.  Especially Swiss banks.

Thanks to incredibly stringent secrecy laws (releasing client information has been a criminal offense since 1934), Switzerland is the undisputed center of global banking and the place where the most crucial evidence is likely to be found.  But the nearly impermeable nature of the Swiss banking veil is the stuff of legend, and the odds of a Swiss court ordering the wholesale release of bank records is slim at best.  Swiss law allows banks to release account information in only very limited circumstances—namely, under allegations of tax evasion, money-laundering, and fraudulent activity.  The Swiss have yet to fully carve out an exception for state-sponsored terrorism claims, and even if they had such an exception, production of the evidence could only be compelled in Switzerland via a Hague Evidence Request.*

That instrument itself is delicate in nature—it must carry a surgically specific identification of the documents sought, and it must demonstrate precisely how the documents will be used at trial.  It cannot speculate, and it cannot purport to lead to other evidence (ie: no fishing).

This is where a case against the Saudis is most likely to fall apart.  American lawyers too often draft Hague Evidence Requests by simply copying subpoena language and pasting it into the Request.  Ctrl-C/Ctrl-V is not the best strategy for compelling evidence in civil law jurisdictions (like Switzerland).  Simply put, non-U.S. jurisdictions (even our fellow common law countries!) have prominent “No Fishing” signs posted at their courtroom doors.

So cui bono?  Who benefits from the statutory dismantling of sovereign immunity?  Not the victims or their families.  Not even their lawyers on contingency, who fight the good fight but lose for lack of evidence.

The winners will be the lawyers who represent the Saudis, and the members of Congress who can tell their constituents they stood up against a foreign tyrant.  Nobody else.

The victims of 9/11 will have been paid only lip service, as their families labor under a false hope:  if those who financed the attacks can’t be tried criminally, they can at least be made to pay recompense.

But the financiers have already beaten the rap.  And they’ll probably beat it again.

* The Swiss Anti-Money Laundering Act (AMLA) does mandate that banks report certain information to Swiss regulatory authorities, and it allows the sharing of that information with other governments.  AMLA does not, however, circumvent the normal process of evidence compulsion through the courts; Article 31, Section (b) indicates that non-Swiss requesting authorities must utilize the procedure set forth in the Hague Evidence Convention.

Update, January, 2018:  The Saudis have already moved for dismissal in at least one suit, arguing that the plaintiffs have no evidence– only speculation and opinion.  (See here for details.)