By Dan Christensen, FloridaBulldog.org
The judge in the Pensacola Naval Air Station terrorist shooting case has asked the Biden administration to declare whether victims of the 2019 attack should be barred from suing Saudi Arabia because of “serious and sensitive matters of foreign policy and military affairs.”
U.S. District Judge M. Casey Rodgers directed the court clerk to serve her order on U.S. Attorney General Merrick Garland and others, and asked for a response within 30 days of her July 27 order.
“Given the sensitive nature of the United States foreign relations that could be impacted by this case, the Court finds it necessary…to raise the political doctrine question as a potential bar to jurisdiction and seek a statement of interest from the United States,” says the order. She added that the government can opt not to provide such a statement.
The political question doctrine requires federal courts to abstain from ruling on matters that are more appropriately decided by the political branches of government to maintain the separation of powers, the judge wrote.
Her order comes as Rodgers considers whether to adopt Magistrate Zachary Bolitho’s recommendation in May that the families of three murdered U.S. Navy servicemen and eight others who were wounded in the attack cannot sue Saudi Arabia for damages.
Bolitho concluded that the kingdom is beyond the jurisdiction of U.S. courts after the kingdom’s lawyers invoked the U.S. Foreign Sovereign Immunities Act. In response, a lawyer for the plaintiffs filed a stinging retort in June that accused Magistrate Bolitho of numerous legal errors.
HOW WILL U.S. ANSWER?
“One legal error in particular infects the others, and that was the Magistrate Judge’s refusal to permit one bit of jurisdictional discovery” or fact-finding, wrote Pensacola attorney Christopher Paulos. “Having misread the law and barred Plaintiffs from the discovery they were entitled to, the Magistrate Judge then drew findings of fact based on an incomplete and misleading factual record.”
How the U.S. answers Judge Rodgers’ question, if it does, could impact the weightier, two-decade old litigation in New York that seeks to hold Saudi Arabia financially accountable for the Sept. 11, 2001 al Qaeda attacks on New York City and Washington, D.C.
At 6:42 a.m. on Dec. 6, 2019, Royal Saudi Air Force Officer Mohammed Saeed Al-Shamrani armed himself with a 9mm handgun and walked into a classroom building at the Naval Air Station Pensacola and started shooting, chanting “Allahu Akbar,” an Islamic phrase meaning “God is Great.” He killed Ensign Joshua Kaleb Watson, 23, of Coffee, AL; Airman Cameron Scott Walters, 21, of Richmond Hill, GA, and Airman Mohammed “Mo” Haitham, 19, of St. Petersburg.
Eight others, including three law-enforcement officers, were wounded before Al-Shamrani was shot and killed.
Al-Shamrani, who the Magistrate said had “significant ties to al Qaeda,” was assigned to the base as part of an “ongoing multi-billion-dollar military equipment and training agreement between the United States and Saudi Arabia – two countries that have had a strategic partnership for over eight decades,” the order says. “Obligations under this agreement are central to Plaintiff’s theory of liability” under both the federal Anti-Terrorism Act and Florida common law.
JURY VERDICT COULD ‘DISRUPT’ FOREIGN RELATIONS
Judge Rodgers expressed concern that “the proper construction” of the agreement might impact sensitive foreign relations if “the ultimate legal conclusion differs from what Saudi Arabia and the United States understand the agreement to be. Moreover, any jury verdict could disrupt foreign relations in the event the Executive Branch has made a conscious decision – for reasons of sensitive foreign policy – not to negotiate compensation with the victims through diplomatic channels.”
The plaintiffs’ complaint alleges former President Trump spoke with Saudi King Salman about “taking care of the [victims’] families and loved ones,” but that no compensation was ever provided.
The order goes on to say discovery and a trial “would certainly raise questions about the United States Navy’s overall operation of the international aviation training program and the conclusions made in its investigative report.
“For example, the Navy’s report concluded that the…program had a ‘microclimate’ of harassment that was partially responsible for the terror attack and that internal vetting and chain-of-command procedures could have been improved to identify terror risks earlier.
“Plaintiffs’ theory of the case – that Saudi Arabia’s actions primarily caused the terror attack – is seemingly at odds with both the Navy’s report and government official’s public statements regarding the FBI investigation, potentially undermining the FBI’s ongoing investigation and the Navy’s already settled investigative conclusions. And most likely, a trial on the merits would raise questions of comparative fault regarding the Navy’s role in causing the attack, possibly incentivizing Saudi Arabia to blame the United States – its ally – in federal court to lessen its own liability,” the order says.
Outside court, however, it is common knowledge that numerous public officials have questioned the authenticity of the U.S.-Saudi alliance in the years since 9/11. “Saudi Arabia has been shown to be a perfidious ally,” former U.S. Sen. Bob Graham, D-FL told Florida Bulldog in 2016. Graham co-chaired Congress’s Joint Inquiry into 9/11.
All this comes against a backdrop of President Biden’s reported efforts to dramatically alter Middle East politics by orchestrating a deal that would establish diplomatic relations between Saudi Arabia and Israel, and distance the kingdom from Russia and China.
The New York Times, which first reported the initiative, has reported that Biden sent his national security adviser, Jake Sullivan, to the kingdom “to test the ground for an agreement bringing together two historic adversaries…Among the hurdles has been Saudi Arabia’s insistence on a mutual security pact with the United States and development of a civilian nuclear program in which the country could enrich its own uranium, both nonstarters in the past.”