Attorneys litigating civil claims related to September 11 and other terrorist attacks connected to Osama bin Laden say they doubt it will be any easier to pursue claims against the Al Qaeda leader following his death.
Although bin Laden is believed to be the mastermind behind September 11,the 1998 embassy bombings in Nairobi and Dar Es Salaam, and a number of other terrorist attacks around the world that killed U.S. citizens, he has often served only as a temporary or relatively minor player in subsequent civil litigation stemming from those attacks.
Beyond the logistical hurdles inherent in trying to serve a person as elusive as bin Laden with court papers, Allan Gerson of Washington’s AG International Law said that the foreign governments, banks and other entities alleged to have funded bin Laden are often more effective defendants in pursuing civil claims.
Gerson, a former counsel for international affairs with the U.S. Department of Justice, has been pursuing a case since 2002 against several Saudi financial institutions accused of funding the September 11 attacks; Osama bin Laden is not a defendant. The case was first filed in U.S. District Court for the District of Columbia but was transferred to U.S. District Court for the Southern District of New York in 2004, where it is still pending.
“You have jurisdiction over the banks because the banks do business in the United States,” Gerson said in a phone interview this morning. “They were the ones that continued to allow money to go to Al Qaeda.”
Bin Laden’s death could open the door to civil litigation targeted directly at him if new assets are uncovered, said Bill Wheeler of Mississippi’s Wheeler and Franks. The firm is pursuing a civil suit pending in Washington federal court stemming from the 1998 embassy bombings in Africa.
If an estate is discovered abroad, said Wheeler's co-counsel, James Franks, “that would be much easier than trying to get service on bin Laden [when he was alive].” But the ability to access those assets would depend on the probate laws in that country, he added.
Wheeler said bin Laden was named as a defendant in their lawsuit for symbolic reasons when the suit was originally filed in 2002. But as the case proceeded, he and the other plaintiffs’ attorneys decided it would make more sense to dismiss bin Laden and focus their energies on the two main defendants – the governments of Sudan and Iran, who are accused of facilitating the attacks.
“We wanted to get the countries we could prove,” Wheeler said. “When we initially filed the lawsuit, we felt that there could be assets that bin Laden held around the world that we might be able to get to… We’ve all learned a whole lot since then.”
Washington attorney Steven Perles of the Perles Law Firm, who was brought on to the case after bin Laden had been dismissed, said that suing a state accused of supporting terrorism can go much farther in stifling future terrorist activities than trying to sue an individual such as bin Laden.
“If you look at cases against Osama bin Laden, from initiating the lawsuit to enforcing the lawsuit, I’ve never been under the view that bin Laden or his organization is a very good target,” Perles said. “Rather than attack the tip of the spear, we’re more interested in the material supporter.”
Naming bin Laden as a defendant can serve some legal purposes, said Timothy Fleming of Washington’s Wiggins, Childs, Quinn & Pantazis. Fleming was originally part of a team of plaintiffs’ attorneys who filed suit in Washington against bin Laden and the Iranian government, among other defendants, in the plotting and carrying out of September 11. That case has since been moved under the umbrella of the larger multi-district litigation relating to September 11 proceeding in New York.
Fleming said that his suit is taking a different path than other litigation included in the multi-district case because it is targeted at Iran, as opposed to other financial institutions or groups with ties to Saudi Arabia; he said attorneys in his case plan to file proofs drawing the connection between Iran, bin Laden and other terrorist groups in the next few weeks.
There is a pending motion for judgment against bin Laden, Al Qaeda and other defendants who failed to respond to the suit, Fleming noted. He said he is still figuring out what effect bin Laden’s death might have on the ability to recover damages if the judge grants the motion.
“I don’t know that it’s made easier or more difficult by his death," Fleming said. "It actually might be a little easier in that he’s not around to direct people in terms of hiding his assets.”
Ron Motley of South Carolina’s Motley Rice, one of the firms leading the multi-district litigation in New York, said he doesn’t believe bin Laden’s death will have any effect on the actual case, since bin Laden was never treated as a legitimate defendant. If any assets are uncovered following his death, Motley added, those claims might not be worth pursuing.
“If [assets are] spread in a thousand different places, the cost of publication could exceed damages,” he said. “The law needs to be more claimant friendly but it’s not.”