By Haggai Carmon

After 9/11, some of the insurance companies and families of the victims sued members of the Saudi royal family for financially supporting Al Qaeda. They have accused the Saudis of funding Osama bin Laden and other terrorist leaders directly or by donating money to so-called charitable organizations they knew to be financing Al Qaeda.

The Justice Department filed a “friend of the court” brief before the Supreme Court, suggesting the court dismiss the case and uphold the district court ruling that sided with the Saudis, citing the U.S. Foreign Sovereign Immunity Act (FSIA). According to the lower court, the Saudi royal family cannot be sued in an American court for their official acts.

Even though the 1996 exception to FSIA states that countries that sponsor terrorism lose their rights to immunity from American civil suits, Saudi Arabia was not on the State Department’s terror list. Although the plaintiffs could name Saudi Arabian royal family members in a civil lawsuit seeking damages which resulted from their sponsorship of terrorism, the U.S. government has not singled Saudi Arabia as a terror-sponsoring nation, and therefore, they do not fall within the exception to FSIA which removes immunity.

In the Justice Department’s brief, Solicitor General Elena Kagan agreed with the ruling of the U.S. Court of Appeals for the Second Circuit regarding the defendants’ immunity. She said that historically, the judiciary has looked to the executive in such matters, as subjecting a foreign state to civil suit can seriously affect international relations.