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When the September 11 families filed a civil lawsuit intended to bankrupt the terrorists, lobbied Congress and the President to appoint an investigative commission, and vetoed Henry Kissinger as chair, they elevated the role of ordinary citizens from foreign policy observers to citizen diplomats.

Following the precedent set by the families who sued Libya after Pan Am flight 103 was bombed in 1988, the 9/11 families stepped onto a playing field usually reserved for Presidents, Secretaries of State, a handful of Senators, and professional diplomats. To the extent they have been accepted as team members, if only out of deference, and if only on the back bench, their presence is significant. Now, all citizens, otherwise on the sidelines in foreign affairs, stand to become more effective when holding Presidents accountable for their foreign policy decisions.


The 9/11 lawsuit, like the civil action against Libya, which is tentatively settled, adds a judicial arrow to America's quiver of political, economic, military, and diplomatic responses to terrorism.

Litigation is an important weapon for several reasons. First, it opens a judicial front in the war against terrorism which supplements military, political, and economic sanctions. Second, as the result of globalization, there is an intricate network of individuals, groups, corporations, and nation-states which facilitate terrorism and make military and political measures less than adequate. Third, given the supremacy of the rule of law in a democracy, judicial outcomes eventually put pressure on the other two branches of government to be more accountable to the voters. For example, when the Pan Am plaintiffs' lawsuit initially faltered because Libya had immunity as a sovereign nation, Congress amended antiterrorism statutes to preclude immunity pleas by state sponsors of terrorism.

Since September 11, Americans have been speculating about why the administration is more focused on Iraq than Saudi Arabia, home to 15 of the 19 hijackers. Investigating Saudi individuals and organizations seems like a no-brainer. But, according to a report in The New York Times dated October 25, 2002, the State Department is concerned the 9/11 lawsuit "threatens to damage Saudi-American relations." The simple truth is that the attacks on the World Trade Center and the Pentagon--not the civil action against Saudi Arabia--damaged our relations. The Washington Post's Jim Hoagland criticized the State Department in his column December 1, 2002 for attempting to "disguise the central reality" that "Al Qaeda and other terrorists float in a sea of Saudi petrodollars that have been unleashed on the rest of the world with no control and precious little concern about what happens outside the kingdom."

The attorneys for the plaintiffs in the 9/11 lawsuit are Allan Gerson, an authority on international law who served under Reagan as counsel to two UN ambassadors, and Ron Motley, best known for representing plaintiffs against the tobacco companies and the asbestos industry. Their complaint states that the plaintiffs will use the civil justice system to attack those who "hide behind the cloak of legitimacy" while giving terrorists their "monetary lifeblood." Their allegations are direct: "The charitable, financial, religious, and political networks that front terror--the Defendant banks, charities, financial and business institutions--are responsible for the death and injuries of September 11, 2001." Without hesitation, they name "members of the Saudi Royal family" who deny complicity and register outrage at the implication that they might be held responsible.

In an Op-Ed piece December 30, 2002 in The New York Times, Gerson and Motley called on the Bush administration to worry less about reasonably priced oil and more about exposing "the webs of terrorist financing." None of us, much less the 9/11 families, should have to be "confronted with reports" as Gerson and Motley put it, that "State Department officials have held talks with the Saudis over whether to block the lawsuit on the grounds that it could impair American foreign relations."

Most Americans, unschooled as diplomats but loyal to country, seem reluctant to ask why the administration is pursuing a war against Iraq and hurling insults at Iran and North Korea when Al Qaeda is based in Afghanistan, Pakistan, Yemen, Indonesia and elsewhere. Presidents, entrusted by the Constitution with almost exclusive authority over foreign policy, do not always feel obliged to inform the American people about their game plans. Rather, they are in the habit of acting first and declaring victory later. The result is an uncomfortable disconnect between our leaders and those of us who elect them.

"People inside the process, constituting as they do a self-created and self-referring class, a new kind of managerial elite," as Joan Didion describes them in Political Fictions, "tend to speak of the world not necessarily as it is but as they want people out there to believe it is." The 9/11 plaintiffs are seeking answers to questions posed by those of us "out here" about the world as it is beyond foreign policy clichés.

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A short history of America's response to terrorism under previous administrations is not reassuring about the future. The September 11 attacks were the latest in a series of assaults against American civilians and military personnel which date back as far as the 1979 Iran hostage crisis.

In the mid-80s, Sanford J. Ungar, a senior associate for the Carnegie Endowment for International Peace, edited a collection of essays, Estrangement: America and The World, about America's vulnerability as a superpower. He pointed to the Iran hostage crisis, not Vietnam, as "the ultimate notification to the United States that its standing overseas had changed dramatically and would never be the same again." Ungar anticipated how globalization--before that term was used--would empower individuals. He observed, "The Iranian militants took advantage of satellite linkups to protest the evils of American-inspired modernization. They cut immediately to the quick of America's national ego." By the same token, globalization has empowered Americans to respond directly to terrorism's threats and to distrust government-to-government relations.

The U.S. Embassy in Tehran was seized by opponents of America's friend, the Shah, on November 4, 1979 and 52 Americans were held hostage for a year. Their captivity began a year before the 1980 Presidential election, which Jimmy Carter lost, and ended on the day Ronald Reagan was inaugurated. Two months into the Iranian crisis, the Soviets invaded Afghanistan, a country of scant importance to Americans at the time. Carter tried unsuccessfully to force a Soviet withdrawal through diplomatic and economic sanctions, including a boycott of the 1980 Moscow Olympics. The Soviets stayed in Afghanistan 10 years until they were kicked out by the mujahideen, the freedom fighters supported by the United States. The mujahideen later morphed into the Northern Alliance and lost control to the Taliban. The rest is history.

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Four years after our humiliation in Iran, while Reagan was president, 241 U.S. Marines were killed by a truck bomb during a peace-keeping mission in Lebanon. Five years after that, in 1988, Pan Am 103 was downed. Terrorists seemed to have a green light, while America didn't even see the intersection. In 1993, the World Trade Center was bombed (six dead and 1,000 injured); in 1995 a National Guard Building was bombed in Riyadh (five Americans dead); in 1996 a military barracks was bombed in Saudi Arabia (19 American servicemen dead, 500 wounded including 372 Americans); in 1998 America's embassies in East Africa were bombed (224 people dead, including 12 Americans, and 4,500 injured); and in 2000, the USS Cole was blown up in port in Yemen (17 sailors dead and 39 injured).

"September 11 happened," according to The New York Times foreign affairs columnist Thomas L. Friedman in his book, Latitudes and Attitudes: Exploring the World after September 11, "because America had lost its deterrent capability. We lost it because for twenty years we never retaliated against, or brought to justice, those who murdered Americans."

While a few terrorists have been convicted for their criminal acts--in the first World Trade Center bombing and the American Embassy bombings in Africa--no response can match the sustained civil and criminal actions pursued by the relatives of the Pan Am victims.

On December 21, 1988, Libyan intelligence agents blew up Pan Am 103 over Lockerbie, Scotland, killing 270 people, including 189 Americans and 11 people on the ground. The Pan Am families expected President Reagan to retaliate swiftly, but they were deeply disappointed. In The Price of Terror: How the Families of the Victims of Pam Am 103 Brought Libya To Justice, Jerry Adler, an editor for Newsweek, and Allan Gerson, who represented the families and now represents the 9/11 families, explained, "The bombing took place just before Christmas, with less than a month of Reagan's term remaining. In 1988 the Cold War was on its way to ending, and the administration had no appetite to take on new crusades."

Nevertheless, the Pam Am families pursued justice with unwavering perseverance. As a result of their tenacity, two Libyan agents were brought to trial in The Hague under Scottish law and one was convicted on January 31, 2001. Gerson and Adler recite the families' victories: "they had forced [George H. W.] Bush to create a commission to investigate the disaster, they had helped pass the Aviation Security Act of 1990, added millions of dollars to the reward program to capture terrorists, helped win mandatory Security Council sanctions on Libya, proved Pan Am's 'willful misconduct' in letting the bomb on board the plane, erected the cairn [at Arlington National Cemetery], amended the Foreign Sovereign Immunities Act, and helped pass the Iran-Libya Sanctions Act." In short, they fashioned remedies where there had been none.

Lead counsel for the Pan Am plaintiffs, Lee Kreindler, in a letter to The New York Times dated June 13, 2002, confirmed earlier reports that a settlement with Libya is all but signed. Under the proposed terms of the settlement, Libya would denounce terrorism, accept responsibility for bombing Pan Am 103, help bring two more intelligence agents to trial, and provide monetary compensation to the families. In return for Libya's admissions, compensation, and cooperation, the United Nations would cancel sanctions against Libya; the United States would lift its own sanctions and remove Libya from the list of states which sponsor terrorism.

Libya's leader Moammar Gadhafi, in an interview January 13, 2003 with Lally Weymouth for Newsweek-Washington Post, acknowledged that settlement negotiations have been taking place but said that, even if Libya were to pay compensation, it would not accept responsibility for the bombing. He suggested that Libya would require compensation for Libyan deaths in an American attack on Tripoli in 1986 which included Gadhafi's daughter among the victims.

The Pan Am case has set an example for another civil lawsuit, this one based on the 1986 bombing of a West Berlin discotheque that left two American soldiers and a Turkish woman dead and 229 people wounded. On November 13, 2001, a German court convicted four terrorists, including one Libyan. Prosecutors were unable to convict Gadhafi, but the court held that the Libyan secret service planned the attack. The finding of Libyan state involvement paves the way for the American victims to bring a civil lawsuit.

American victims of terrorism are not just people who were in the wrong place at the wrong time. Their lives were taken solely on account of their nationality. Since any of us might have stood in their places, all of us are responsible for bringing the perpetrators to justice and preventing future attacks.

If previous military, diplomatic, and economic sanctions have proved insufficient-- alone or cumulatively--then civil litigation is an important addition. If the foreign policy establishment is uncomfortable with litigation because it may upset traditional government-to-government allegiances, or weaken Presidential authority, then both justifications need to be examined by the American people. Civil litigation may become the brightest light to shine on flaws in American foreign policy-making, much the same as the 9/11 investigation commission will bring to light weaknesses in the domestic agencies charged with protecting our national security.

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