1 56eWterC 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 In re Terrorist Attacks on 3 September 11, 2001, 4 4 03 MD 1570 (RCC) 5 ------------------------------x 5 New York, N.Y. 6 June 14, 2005 6 10:00 a.m. 7 7 Before: 8 8 HON. RICHARD CONWAY CASEY, 9 9 District Judge 10 10 APPEARANCES 11 11 KREINDLER & KREINDLER 12 Attorneys for Ashton Plaintiffs 12 BY: JAMES P. KREINDLER 13 ANDREW J. MALONEY 13 VINCENT I. PARRETT 14 14 HANLY CONROY BIERSTEIN & SHERIDAN, LLP 15 Attorneys for Burnett Plaintiffs 15 BY: ANDREA BIERSTEIN 16 -and- 16 MOTLEY RICE, LLP 17 BY: MICHAEL E. ELSNER 17 JUSTIN B. KAPLAN 18 18 19 DICKSTEIN SHAPIRO MORIN & OSHINSKY 19 Attorneys for Plaintiffs Cantor Fitzgerald and Port 20 Authority 20 BY: STACEY SAIONTZ 21 21 BRODER & REITER 22 Attorneys for Schneider Plaintiffs 22 BY: JONATHAN C. REITER 23 23 J.D. O'BRIEN & ASSOCIATES 24 Attorneys for Tremsky Plaintiffs 24 BY: DAVID O'BRIEN 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 56eWterC 1 1 COZEN O'CONNOR 2 Attorneys for Federal Insurance Plaintiffs 2 BY: ELLIOT R. FELDMAN 3 SEAN P. CARTER 3 4 RICH HAILEY 4 Attorney for Havlish Plaintiffs 5 5 JEFFREY S. GOLDMAN 6 FREDERICK J. SALEK 6 Attorney for O'Neil Plaintiffs 7 7 SPEISER, KRAUSE, NOLAN & GRANITO 8 Attorneys for Plaintiffs' Steering Committee 8 BY: KENNETH P. NOLAN 9 9 JONES DAY 10 Attorneys for Defendants Saudi Bin Laden Group 10 Bakr Bin Ladin, Omar Bin Ladin, Tariq Bin Ladin 11 BY: JAMES E. GAUCH 11 STEPHEN J. BROGAN 12 MELISSA D. STEAR 12 13 WILLIAMS & CONNOLLY 13 Attorneys for Defendant Abdul Rahman Bin Kahlid Bin 14 Mahfouz 14 BY: PETER J. KAHN 15 THOMAS C. VILES 15 JOHN L. CUDDIHY 16 16 WHITE & CASE 17 Attorneys for Defendant Al Rajhi 17 Banking & Investment Corp. 18 BY: CHRISTOPHER M. CURRAN 18 NICOLE E. ERB 19 19 HUNTON & WILLIAMS 20 Attorneys for Defendant Yassin Abdullah Al Kadi 20 BY: BONNIE K. ARTHUR 21 21 JOSHUA L. DRATEL, P.C. 22 Attorneys for Defendant Sami Omar Al-Hussayen 22 BY: MARSHALL A. MINTZ 23 23 PATTON BOGGS 24 Attorneys for Defendant National Commercial Bank 24 BY: RONALD S. LIEBMAN 25 MITCHELL BERGER SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 56eWterC 1 KELLOGG, HUBER, HANSEN, TODD & EVANS 1 Attorneys for Defendants Prince Turki Al-Faisal Bin 2 Abdulazia Al-Saud, Prince Bandar Bin Sultan Bin Abdulaziz, 2 Princess Haifa Al-Faisal, and the Kingdom of Saudi Arabia 3 BY: MICHAEL J. GUZMAN 3 4 KING & SPALDING 4 Attorneys for Defendant Arab Bank, PLC 5 BY: RICHARD T. MAROONEY, JR. 5 6 WILMER CUTLER PICKERING HALE and DORR, LLP 6 Attorneys for Defendant Mohamed Al-Faisal Al-Saud 7 BY: LOUIS R. COHEN 7 DAVID P. DONOVAN 8 8 SHEARMAN & STERLING 9 Attorneys for Defendant Saudi American Bank 9 BY: DANIEL M. SEGAL 10 10 BAKER BOTTS 11 Attorneys for Defendants HRH Prince Sultan Abdulaziz 11 Al-Saud and HRH Prince Salman Bin Abdulaziz Al-Saud 12 BY: CASEY COOPER 12 WILLIAM H. JEFFRESS 13 JAMIE S. KILBERG 13 14 DLA PIPER RUDNICK GRAY CARY US LLP 14 Attorneys for Defendants African Muslim Agency, Heritage 15 Education Trust, International Institute of Islamic 15 Thought, Mar-Jac Investments, Inc., Reston Investments, 16 Inc. Safa Trust, York Foundation, Taha Al-Alwani, Muhammad 16 Ashraf, M. Omar Ashraf, M. Yaqub Mirza, Iqbal Unus, Jamal 17 Barzinji, Sterling Management Group, Sterling Charitable 17 Gift Fund, Inc., Mena Corporation, Grove Corporate, Inc. 18 and Sana-Bell, Inc. 18 BY: STEVEN K. BARENTZEN 19 19 BERNABEI & KATZ 20 Attorneys for Defendants Dr. Abdullah M. Al-Turki, Dr. 20 Abdulla Naseef, Dr. Abdullah Al-Obaid, Dr. Abdul Rahman Al 21 Swailem, Sheik Saleh Al-Hussayen, Sheik Shahir Batterjee, 21 Mushayt for Trading Company, Mohammed Al Sayed Mushayt, 22 Sheik Hamad Al-Husaini, Saudi Arabian Red Crescent 22 Society, Sheik Salman Al-Oadah, Sheik Safer Al-Hawali, Al 23 Haramain Islamic Foundation, Inc. Soliman H.S. Al-Buthi, 23 Soliman J. Khuderia, Talal M. Badkook, Dr. Adnan Basha and 24 Perouz Seda Ghaty 24 BY: ALAN R. KABAT 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 56eWterC 1 GILLEN PARKER & WITHERS 1 Attorneys for Defendant Zahir H. Kazmi 2 BY: WILMER PARKER 2 3 MARTIN F. McMAHON & ASSOCIATES 3 Attorneys for Defendants Saleh Abdullah Kamei, Al Baraka 4 Investment & Development Corp., International Islamic 4 Relief Organization, Rabita Trust, Dallah Al Baraka Group, 5 LLC, Makkah Mukarrahman Charity Trust and Wael Jalaidan 5 BY: MARTIN F. McMAHON 6 JASON A. DZUBOW 6 CHRISTOPHER SMITH 7 7 BRYAN CAVE, LLP 8 Attorneys for Defendant Prince Naif bin Abdulazia Al-Saud 8 BY: JAMES M. COLE 9 JAMES J. MURPHY 10 BANCROFT ASSOCIATES PLLC 10 Attorneys for Defendant Yousef Jameel 11 BY: VIET D. DINH 11 12 CURTIS, MALLET-PREVOST, COLT & MOSLE, LLP 12 Attorneys for Defendants HRH Prince Abdullah Al Faisal Bin 13 Abdulaziz Al Saud, Alfaisaliah Group, Faisal Group Holding 13 Co. and Mohammed Bin Abdulrahman Al Ariefy 14 BY: DARIA M. CIAPUTA 14 15 STEPTOE & JOHNSON, LLP 15 Attorneys for Defendant Mohammad Bin Abdullah Aljomaih 16 BY: CHRISTOPHER T. LUTZ 16 17 ROBBINS, RUSSELL, ENGLERT, ORSECK & UNTEREINER, LLP 17 Attorneys for Defendant Saudi High Commission 18 BY: ROY T. ENGLERT, JR. 18 LAWRENCE S. ROBBINS 19 MAX HUFFMAN 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 56eWterC 1 (Case called) 2 (In open court) 3 THE DEPUTY CLERK: Your Honor, now before the Court 4 this morning, In Re Terrorist Attacks on September 11, 2001, 5 docket No. 03 MDL 1570. 6 THE COURT: All right. We have just a little 7 housekeeping which I thought might get things to move along a 8 little smoother. I'm going to give you some directions for 9 today's arguments. 10 I've received the letter from the Burnett plaintiffs, 11 regarding their proposed supplemental material that they hope 12 to add in opposition to the motions to dismiss by three 13 defendants. I have received the defendants' noted opposition 14 to that proposed supplemental material. I have also received 15 the opposition to the Federal plaintiffs' supplemental 16 affirmation regarding the Foreign Sovereign Immunity Act 17 motions. 18 I've been out of the office for several days and have 19 just received these letters this morning. Additionally, the 20 Court has not received courtesy copies of either of these 21 proposed supplemental offerings, so I do not know what these 22 submissions contain. The objecting defendants state that the 23 vast majority of the supplemental documents were available at 24 the time that these motions were briefed. If that is the case, 25 the Court will not permit these submissions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 56eWterC 1 For purposes of this morning's argument, the parties 2 are to argue only what is included in the papers accepted by 3 the Court. I expect strict adherence to this ruling. When the 4 Court receives the proposed supplemental documents, it will 5 review them and inform the parties if further arguments or a 6 response from the defendants is necessary. 7 In that regard, I ask Mr. Carter and Ms. Flowers, 8 under separate cover, to specifically identify when each 9 document was received in plaintiffs' custody. I do not want 10 any discussion or argument about the documents, only the date 11 that they were received. 12 All right. With that ruling, we will commence with 13 our argument. Who is designated to lead off? 14 MR. ROBBINS: Your Honor, I'm Larry Robbins for the 15 Saudi High Commission. 16 With the Court's permission, your Honor, the parties 17 have worked out a proposed order of argument, subject, 18 obviously, to the Court's questions and other allocation 19 preferences. 20 The three defense counsel have divided their time over 21 the course of an hour, to present all of our arguments. I will 22 divide my time 20 minutes to open, ten to rebut. Mr. Jeffress, 23 on behalf of Prince Salman, will divide his time ten and five. 24 Mr. Cole, on behalf of Prince Naif, will divide his time ten 25 and five. And we've agreed with the plaintiffs' counsel that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 56eWterC 1 they will follow our opening arguments, and we've reserved the 2 time allotted, the proposed time for rebuttal with, of course, 3 the Court's permission. 4 with that, I propose to begin my argument for the Saudi 5 High Commission. 6 THE COURT: The clock will start now. 7 MR. ROBBINS: Thank you, your Honor. 8 THE COURT: Go right ahead. 9 MR. ROBBINS: Thank you very much. 10 Your Honor, just yesterday the world was reminded 11 again about the horrifying circumstances that gave rise to the 12 formation of my client, the Saudi High Commission, for the 13 relief of Bosnia and Herzegovina, as news accounts showed the 14 surfacing of a grizzly videotape reflecting the murder of six 15 Muslim men and children by a Serb soldier, in July 1995, six of 16 some 7,000 who were killed in Srebrenica alone. Serb military 17 officials, armies under the direction of Slobodan Milosevic, 18 burned shrines, burned libraries, burned the Oriental Institute 19 in which the largest collection of Arabic-Turkish-Persian 20 manuscripts in southeastern Europe were destroyed, in the 21 course of the war, mosques, schools, libraries with pillars, 22 and thousands of orphans were made through the slaughter of 23 their parents. 24 It was in the wake of this horrifying series of acts 25 of genocide that my client was formed by High Order 17419 of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 56eWterC 1 the president of the Council of Ministers, the king of Saudi 2 Arabia. It was formed in 1993 and given in the High Order a 3 monopoly to provide all of Saudi Arabia's foreign aid to the 4 victims of the Bosnian warfare. Now, we have submitted in 5 connection with our motion papers two declarations, your Honor, 6 that set out precisely what the Saudi High Commission is, what 7 it does, how it's constituted, how it operates. 8 The first of these is a declaration of Dr. Al-Nafissa, 9 a member of the Council of Ministers, which is the highest 10 governing body in the kingdom, who was authorized by the king 11 of Saudi Arabia himself to make that declaration. 12 Second, we've submitted the declaration of 13 Mr. Al-Roshood, who was the director of the executive office of 14 the Saudi High Commission which makes the funding decisions. 15 These declarations are authoritative, they are dispositive, 16 they are uncontroverted. What they tell you is about the 17 formation first and foremost by the High Order, which High 18 Order also designated Prince Salman, represented by 19 Mr. Jeffress, as the president of the Saudi High Commission. 20 Much of its remaining staff is detailed but from other 21 government ministries and other administrative organs which are 22 responsible for the payment of the members of the Saudi High 23 Commission. The executive committee, which, as I say, makes 24 all pertinent funding decisions is made up of officials 25 selected by Prince Salman himself. The largest source of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 56eWterC 1 funding for the Saudi High Commission is from the kingdom's 2 treasury, about 30 percent of all total funds distributed by 3 the high commission. 4 As Dr. Al-Nafissa explains, the Saudi High Commission 5 is, as he puts it, an arm of the Saudi Arabian government, and 6 its actions constitute the formation and implementation of the 7 kingdom's foreign policy. Implementing that foreign policy, 8 your Honor, from 1993 to 2000, the Saudi High Commission 9 provided approximately $448 million to Bosnia, about half of it 10 in the form of direct foreign aid to the Bosnian government. 11 As I say, the Saudi High Commission was vested with total 12 authority, a monopoly preempting the entire field for the 13 provision of Saudi Arabian foreign aid to Bosnia and the 14 victims of genocide in Bosnia. 15 We have submitted in connection with our motion papers 16 Exhibit 3 to the declaration of Mr. Al-Rashood, and, 17 interestingly enough, the plaintiffs have submitted the same 18 document. And this is an audit performed by the Bosnian 19 government of the funds and where they went and meticulously 20 lays out precisely how the Saudi High Commission used its 21 money. It went, as the audit reveals, for the provision of 22 medicine, for ambulances, for rebuilding libraries and 23 religious institutions, for buying computers, for rebuilding 24 schools and for the welfare and upkeep of the orphans of the 25 Serb genocide. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 56eWterC 1 In discharging these duties, Dr. Al-Nafissa tells us 2 in his declaration the decision how to allocate funds, who and 3 how to provide them, were within the discretion of the 4 executive committee of the SHC, the supreme commission of the 5 SHC, and Prince Salman as president of the Saudi High 6 Commission. 7 The international community recognized the fundamental 8 governmental nature of the Saudi High Commission. Its 9 employees, in discharging their duties in Bosnia, wore badges 10 of the U.N. high commission for refugees when serving in 11 Bosnia. Their vehicles wore U.N. HCR license plates. The 12 Saudi High Commission was also the instrument by which the 13 kingdom provided funding to UNESCO for projects in Bosnia. 14 Now, these features of the Saudi High Commission that 15 I have detailed and which are set out in greater detail in the 16 two declarations that we've submitted are sufficient in all 17 material respects to establish immunity under the Foreign 18 Sovereign Immunity Act for purposes of this lawsuit. They show 19 in every relevant particular that the Saudi High Commission is 20 an organ within the meaning of the statute and, therefore, an 21 agent or instrumentality within the meaning of 1603(b) of the 22 statute. 23 Dr. Al-Nafissa says so pointblank. He states in his 24 declaration that the Saudi High Commission is "an arm of the 25 Saudi Arabian Government," and that alone, I suggest, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 56eWterC 1 Honor, is dispositive. But he goes on to say precisely why he 2 reaches that conclusion. And again, let me stress, 3 Dr. Al-Nafissa sits on the highest governing body of the 4 country. He was specifically authorized by the king of Saudi 5 Arabia to submit his declaration, and he is the person who 6 provides legal counsel to the Council of Ministers on a 7 day-to-day basis. He sets out all of the factors that the 8 Second Circuit in the Filler case identify as criteria for 9 organ staffs. 10 The Saudi High Commission was created for a national 11 purpose in the words of Filler. It was created by a High Order 12 of the king, staffed largely by civil servants, funded largely 13 by the government, carries out ASA foreign policy, is regarded 14 as an arm of the government, and foreign governments recognize 15 the SHC as an organ of the kingdom. 16 Your Honor, in the face of these submissions, what do 17 the plaintiffs argue to you in their brief as a reason to 18 conclude that notwithstanding these submissions, the Saudi High 19 Commission is not an organ? They make two arguments explicitly 20 and one that is rather more implicit in their papers but is 21 worth fleshing out. 22 They first say, well, there's one factor that we 23 haven't addressed that surfaces in the Third Circuit's USX 24 opinion, and that is the ownership structure. And as we 25 explain in our brief, and, for that matter, as the Third SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 56eWterC 1 Circuit explained in the USX case, that factor is only 2 pertinent and it wouldn't be pertinent in the case of a 3 commission that is not going to be owned by the government. 4 What they say more to the point is that the Saudi High 5 Commission somehow waived its right to assert that it's 6 governmental because in order to do business, or, I should say, 7 in order to provide assistance, rather, in Bosnia, it was 8 required to comply with Article 22 of the law on foreign 9 humanitarian organizations under Bosnia law. And Article 22, 10 they say, required the Saudi High Commission to assert that it 11 was nongovernmental. But we have submitted a declaration of 12 Mr. Hajrudin, our Bosnian counsel, former minister of justice, 13 former Supreme Court judge in Bosnia, who explains that the 14 plaintiffs have fundamentally misunderstood Article 22, which 15 requires only that foreign humanitarian organizations not be 16 part of the Bosnian government. 17 As a matter of fact, Mr. Hajrudin then attaches to his 18 declaration in Exhibits C and D two documents that make 19 absolutely clear that the Bosnian government itself recognized 20 that the Saudi High Commission was indeed a part of the Saudi 21 Arabian, of the kingdom's government. 22 Exhibit C is a request by the Bosnian ambassador in 23 Riyadh for diplomatic status for the Saudi High Commission in 24 conducting its business in, and providing aid to Bosnia, and 25 describes the high commission "as a government organization." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 56eWterC 1 And Exhibit D makes the same point. In every relevant 2 particular, this confirms once again not only that under Saudi 3 Arabian law, but for that matter, Bosnian as well, it is 4 understood that the Saudi High Commission was indeed an arm of 5 the kingdom when it was providing aid to Bosnian victims. 6 So that leaves us really, your Honor, with just an 7 argument that the plaintiffs don't really come out and say, but 8 which I think they hope you will come to on your own, and that 9 is the characterization of the Saudi High Commission as just 10 one among many charities that they treat with a broad brush and 11 ask you to conclude, at least implicitly, are all the same and 12 none of them governmental. 13 And that, I think is fundamentally belied by the 14 record because, as Dr. Al-Nafissa explains in paragraph 5 of 15 his declaration, in all relevant respects, the Saudi High 16 Commission is fundamentally distinguishable from other 17 charitable organizations. Its formation was fundamentally 18 different. It was formed by a High Order of the president of 19 Council of Ministers, the king of Saudi Arabia. Its management 20 is fundamentally different. It is run by a high government 21 official, Prince Salman. Its executive committee, which makes 22 funding decisions, is selected by a high government official, 23 Prince Salman. Its staffing is fundamentally different. It 24 has taken civil servants seconded by government agencies and 25 its purpose is fundamentally different, to implement, carry SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 56eWterC 1 out, and formulate the foreign policy of the kingdom with 2 respect to Bosnia and the victims. 3 So I suggest, your Honor, that there cannot be any 4 serious debate that my client is entitled to sovereign status 5 under the FSIA, and that leaves only the question whether the 6 plaintiffs have carried their initial burden of establishing an 7 exception. I respectfully suggest that under the very plain 8 terms of your Honor's January 18 decision, it is inconceivable 9 that they have discharged that burden. The only argument they 10 really make is the noncommercial tort exception, but for the 11 various reasons we set out in our brief, they fail, I suggest, 12 at every turn. 13 I think we unquestionably meet the discretionary 14 function of exception for the noncommercial tort exception 15 because, as Dr. Al-Nafissa sets out in paragraph 9 and in 16 paragraph 7 of his declaration, the Saudi High Commission had 17 complete discretion as to how and whom to fund. 18 They cannot meet, moreover, the entire tort 19 requirement set out in Amerada Hess as set out by the Supreme 20 Court and as set out in your Honor's decision in at least the 21 Second Circuit, the Second Circuit takes the entire court 22 document seriously as reading Amerada Hess by its terms, and 23 they cannot establish anything that the Saudi High Commission 24 did, allege anything, that is to say, in the United States. 25 Finally, they have no facts, no facts. They have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 56eWterC 1 conclusory allegations, but they have no facts that support 2 causation. As your Honor said at page 24 of your Honor's 3 decision, with respect to the causation requirement that was 4 before the Court in connection with Prince Sultan and Prince 5 Turki, there must be some facts to support an inference that 6 the defendant knowingly provided assistance or encouragement to 7 the wrongdoer. Here, Al Qaeda. Well, you will search these 8 complaints high and low, and you will not find facts to support 9 causation. 10 I want to quickly, and I mean quickly, just itemize 11 what pass for facts in these complaints and suggest how far 12 short of the mark plaintiffs are falling. They say first the 13 Saudi High Commission has been criticized for exporting 14 Wahabism. That has nothing much to do with the knowing 15 provision to Al Qaeda of funds. 16 They say, second, that on October 21, 2001, five 17 Algerians were arrested following a threat to the U.S. embassy 18 in Bosnia. One of these Algerians has been identified as an Al 19 Qaeda member. Another of the Algerians, a man by the name of 20 Sabir Lamar, supposedly worked as a translator at one time for 21 the Saudi High Commission. That, too, does not remotely meet 22 the standard set out in your Honor's opinion. 23 They say, third, that following the arrest of the five 24 Algerians, United States forces found on some computer hard 25 drive in some premises in Sarajevo that had been used by the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 56eWterC 1 Saudi High Commission some pictures, no doubt disturbing 2 pictures, of the World Trade Center, U.S. embassies in Kenya 3 and Tanzania, USS COLE, as well as pesticides and crop dusters. 4 I think it's possible to infer that someone with some 5 connection to the premises who may have had some connection or 6 not with the Saudi High Commission had some kind of interest in 7 some places in which terrible deeds were committed. But the 8 suggestion that that ties my client in any meaningful way as 9 facts supporting an inference that the Saudi High Commission 10 knowingly provided assistance to Al Qaeda is extraordinarily 11 attenuated. 12 THE COURT: What was the date the pictures were found 13 on the hard drive, Mr. Robbins? 14 MR. ROBBINS: I believe there was an indication that 15 they were found following the arrests on October 21, 2001. I 16 want to suggest that it was found sometime in October, perhaps 17 later, in the latter part of October. 18 THE COURT: After 9/11? 19 MR. ROBBINS: Yes, that's correct. 20 And, finally, your Honor, there was a suggestion that 21 some unidentified group of investigators have allegedly been 22 unable to account for some $41 million donated to the Saudi 23 High Commission, and I suppose the plaintiffs want you to 24 believe that since somebody can't account for some portion of 25 money, it must somehow follow that that money was knowingly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 56eWterC 1 donated to Osama Bin Laden and his colleagues. I think that it 2 doesn't require much argument to show how far short of the mark 3 that falls, but it is worth saying that the only hard evidence 4 we have about the use of the money is, again, the audit, which 5 is before your Honor as a detailed exhibit submitted by both 6 sides and which I think belies the suggestion that there is 7 money unaccounted for and still further belies the suggestion 8 that the money was improperly used. 9 Let me close by making two final points. We have 10 argued as well as in our papers and moved to dismiss not only 11 on foreign sovereign immunity grounds but also on the grounds 12 of personal jurisdiction. Your Honor explained that in the 13 January order, that for purposes of the purposeful direction 14 theory of personal jurisdiction, which is the only argument 15 that is made against the Saudi High Commission, there must 16 again be facts showing in the, Court's words at page 32, some 17 personal or direct involvement by the defendant in the conduct 18 giving rise to plaintiffs' claims. There is nothing, nothing 19 remotely like this in any of the complaints. 20 Let me leave you with one last detail, your Honor. 21 The briefs may give you the wrong impression, if you 22 read the plaintiffs' briefs, because they contain a number of 23 factual assertions in the briefs that evidently are, the 24 plaintiffs must think are crucial to their arguments or else 25 they wouldn't be there, in particular, crucial to their SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 56eWterC 1 noncommercial tort argument, crucial to their personal 2 jurisdiction argument, and not a one of them appears in the 3 complaints. 4 Let me read you from the closing portion of 5 plaintiffs' brief in opposition to our motion to dismiss. 6 These are the arguments that the plaintiffs thought were 7 crucial to personal jurisdiction, to their showing, and I'm 8 reading from page 23 that the SHC, in the plaintiffs' words, 9 directed its conduct at the United States, and here is what the 10 plaintiffs tell the Court: "The SHC has employed senior Al 11 Qaeda operatives, including Al Qaeda members directly involved 12 in plots to attack the United States. In fact, the SHC's 13 headquarters in Sarajevo were used as a base for planning and 14 coordinating terrorist operations." 15 They go on to say: "The financial police for 16 Herzegovina and Bosnia minister of finance have described the 17 SHC as an Al Qaeda front." 18 Every sentence I just read you is both false and 19 nowhere contained in any of the complaints. 20 With that, I'd like to yield to my colleague 21 Mr. Jeffress, on behalf of Prince Salman. 22 THE COURT: Thank you, sir. 23 MR. JEFFRESS: May it please the Court, Prince Salman 24 is a senior member of the Royal Family of Saudi Arabia. He is 25 governor of Riyadh and has been for years. He has held various SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 56eWterC 1 official positions with the government, in this case most 2 importantly as president of the Saudi High Commission, since 3 its founding. He was appointed president in the same order of 4 the president of Council of Ministers that created the SHC. 5 THE COURT: Could I have the date that it was founded 6 again, Mr. Jeffress? 7 MR. JEFFRESS: 1993, your Honor. 8 And there is nothing in the complaints, nothing in the 9 materials that had been submitted to your Honor that connects 10 Prince Salman in any way with Al Qaeda or with Osama Bin Laden, 11 with one exception, which is cited in footnote 3 of our motion. 12 Osama Bin Laden issued an open letter to King Fahd in 1995 in 13 which he referred to Prince Salman, along with the king, Prince 14 Sultan and Prince Naif as the sources of all evil in Saudi 15 Arabia. And he has been an enemy of the Saudi Royal Family, 16 including Prince Salman, since the early 1990s. And your Honor 17 knows, I think, from the previous submissions by Prince Sultan 18 that this followed the 1995 open letter following his 19 banishment from the kingdom, and he was stripped of citizenship 20 in 1996. 21 Now, your Honor, you outlined of course, in your 22 January opinion on the earlier motions the legal standards that 23 the plaintiffs must satisfy either to overcome or to establish 24 an exception to the Foreign Sovereign Immunity Act or to 25 establish personal jurisdiction on the purposefully directed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 56eWterC 1 activities theory, or, for that matter, to warrant discovery 2 against a sovereign defendant. And Mr. Robbins has actually 3 quoted those standards to you this morning, and I thought I 4 would devote my time to dealing with what specific allegations 5 are there in these complaints against Prince Salman. 6 Your Honor, there are four, having to do with conduct 7 or showing or having to do with attempting to show any 8 knowledge by Prince Salman prior to the terrorist attacks of 9 September 11, 2001. 10 They are as follows: No. 1, in the plaintiffs' 11 opposition, they spend two full pages, opposition to our 12 motion, they spend two full pages on an allegation that's 13 actually not in the complaints, and that is demonstrated to be 14 false even by the plaintiffs' own submissions. The plaintiffs 15 note that Prince Salman is chairman of the Al Birr Society of 16 Riyadh. The plaintiffs then say that the Al Birr Society of 17 Al-Riyadh is the same as the Benevolence International 18 Foundation, BIF, which was discussed by your Honor in your 19 January opinion, in connection with the motion of Adel 20 Batterjee. 21 It is completely untrue and the plaintiffs' 22 submissions show it is untrue. It is apparently based on a 23 confusion since Al Birr is a common word in Saudi Arabia 24 meaning benevolence or charity. The same word is used in the 25 name of two organizations, but aside from that, there is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 56eWterC 1 absolutely no connection. BIF is a local charity in Riyadh 2 supporting the needy. BIF is an organization actually 3 headquartered in the United States with worldwide operations. 4 That's the first allegation. 5 The second particular allegation having to do with 6 Prince Salman is that in September of 2000, he received a 7 letter as president of the Saudi High Commission from an 8 organization called the Mothers of Srebrenica, and they were 9 complaining that monies raised in Srebrenica, which is a part 10 of Bosnia-Herzegovina, was not used for local relief. There is 11 absolutely no mention of terrorism, no mention of Osama Bin 12 Laden, no mention of Al Qaeda, nothing to connect it to this 13 case whatsoever. 14 The third allegation, particular allegation as to 15 Prince Salman is that in 1981, 1981, he chaired a committee to 16 assist the Afghan mujahideen in their conflict with the Russian 17 occupiers. 18 And the final, fourth, is the only allegations as to 19 his knowledge prior to September 2001, is that he received a 20 letter from the Palestinian ambassador in the year 2000, having 21 to do with aid Saudi Arabia was providing to Palestine, 22 complaining that some of these monies were being given to 23 radical organizations, rather than directly to the PLO. Again, 24 no connection to anything in this case. 25 And, your Honor, there are, of course, allegations in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 56eWterC 1 the complaints that say that Prince Salman, who was part of a 2 worldwide conspiracy, that he aided and abetted the attacks of 3 September 11, those are, as your Honor noted in your earlier 4 opinion, conclusory allegations. They have never been accepted 5 to suffice for overcoming Foreign Sovereign Immunity Act 6 offense or for establishing jurisdiction or, for that matter, 7 for provoking discovery. 8 Another particular allegation that's made in the 9 complaint, not so much having to do with knowledge but his 10 activities, Prince Salman is alleged to have made personal 11 contributions to well established Islamic charities. Those are 12 the IIRO, World Assembly of Muslim Youth, Al Haramain, Sendal 13 Al Khiar. These are the same organizations to which Prince 14 Sultan was alleged to have made contributions and which were 15 dealt with in your Honor's January opinion. There is less, 16 actually, alleged in the complaints or submitted by the 17 plaintiffs in connection with these motions to establish any 18 connection by Prince Salman of any idea that these 19 organizations served as fronts for Al Qaeda or funneling money 20 to Al Qaeda than there was to Prince Sultan. 21 As to discovery, the discovery issue, your Honor, 22 well, let me first say that the discretionary function 23 exemption for the FSIA is complete even putting aside 24 causation. The doctrine is completely applicable here, and I 25 would refer your Honor to the declaration of Dr. Mutlib SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 56eWterC 1 Al-Nafissa, Exhibit C to Prince Salman's motion, which states 2 that as head of the SHC, Prince Salman more than any other 3 person is responsible for carrying out Saudi Arabian policy to 4 Bosnia-Herzegovina and that decisions regarding what causes to 5 support and how to distribute funds are within his discretion 6 as well as the discretion of the SHC's executive committee in 7 that regard. There is no question that these functions 8 involved "an element of choice based on considerations of 9 public policy," and that's a quote from your Honor's opinion in 10 January. 11 The minimum contacts, your Honor, in terms of 12 attempted jurisdiction over Prince Salman, it's unclear whether 13 plaintiffs continue to rely on these contacts, but here's 14 what's mentioned in their opposition. Five things: 15 One, he owns stock in two companies that do business 16 in the U.S. Your Honor has dealt with that contention in the 17 earlier opinion, that ownership of stock does not establish 18 price. He was hosted by President George H. W. Bush at the 19 White House in 1989. On the same trip to the United States, he 20 visited with Maryland governor William Schaefer on an official 21 visit to sign a trade pact between the State of Maryland and 22 Riyadh province. 23 The other two allegations have to do not with Prince 24 Salman but with his son who actually raised racehorses in the 25 United States prior to his death. And his son's estate was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 56eWterC 1 involved in a lawsuit in New Jersey after his death. 2 Those are the allegations, your Honor. They're 3 obviously insufficient under the Helicopteros, the Colombia 4 case in the Supreme Court and under your Honor's opinion in 5 January. 6 With respect to what the plaintiffs have stated in 7 their papers, your Honor, please give us discovery, no 8 indication of exactly what discovery they want, but it is clear 9 that with respect to any of these issues, the Jazini v. Nissan 10 case in the Second Circuit, as well as the Robinson v. Malaysia 11 case which talks about how discovery, where the plaintiffs have 12 not alleged specific facts to show what needs to be discovered 13 is at odds with the goal of the FSIA to enable a foreign 14 government to obtain an early dismissal where the substance of 15 the claim does not support jurisdiction. 16 I submit, your Honor, for those reasons, the complaint 17 should be dismissed as to Prince Salman. 18 Thank you. 19 THE COURT: Thank you, sir. 20 Next. 21 MR. COLE: Good morning, your Honor. James Cole. I 22 represent Prince Naif, who is the minister of interior for the 23 Kingdom of Saudi Arabia. 24 In the complaint there are a lot -- actually, not very 25 many broad unspecific allegations that he conspired with Osama SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 56eWterC 1 Bin Laden, that he aided and abetted Osama Bin Laden and Al 2 Qaeda and that he provided material support to Osama Bin Laden 3 and Al Qaeda. None of those are true, your Honor. 4 Prince Naif is the person in the Saudi government who 5 is responsible for stripping Osama Bin Laden of his citizenship 6 and freezing his assets. And in the fatwa that Osama Bin Laden 7 issued in 1996, he specifically names Prince Naif, as 8 Mr. Jeffress noted, as one of the sources of all the evil that 9 Al Qaeda was fighting against. 10 Your Honor, the only thing you could ever find that 11 Osama Bin Laden and Prince Naif could ever agree on is the 12 elimination of each other, not jointly pursuing terrorist acts. 13 But apart from the other illogic of Prince Naif being named as 14 a defendant here, when you look at the complaint and the 15 allegation, he is entitled to sovereign immunity, and there is 16 no jurisdiction over his person. 17 As to his status as a sovereign, it is clearly pled in 18 all of the complaints. They state explicitly, as minister of 19 interior, by function, he supervises charities in the kingdom. 20 As minister of interior, he is, they allege, the head of the 21 Saudi Committee for Relief of Afghans, which supervises, they 22 say, Al Haramain. And as minister of interior, he supervises 23 the Saudi Joint Relief Commission for aid to Kosovo, and he 24 sits on the Saudi Supreme Council, which is headed by Prince 25 Sultan, who, as you know, your Honor, has already been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 56eWterC 1 dismissed under these same and, frankly, more extensive 2 allegations. 3 With the exception of an allegation in the Federal 4 Insurance case that he made a personal contribution, every 5 single other allegation in all of the complaints only concerns 6 Prince Naif in his official capacity, and as such he is 7 entitled to immunity under the Foreign Sovereign Immunity Act. 8 The plaintiffs have tried to establish the noncommercial tort 9 exception as to Prince Naif and to no avail. There are no 10 facts they have pled that meet the standards your Honor has set 11 out in your January opinion that Prince Naif needs to be shown 12 he knew or should have known that the money he was providing to 13 charities under his supervision was going to them as fronts for 14 Al Qaeda and that he had the intention of supporting Al Qaeda 15 by doing so. 16 If I can just go through briefly what it is they have 17 in their complaints and how utterly short it falls, they say as 18 the minister of interior, he is alleged to head the Saudi 19 Committee for Relief of Afghans, that then a step down, that 20 organization is alleged to oversee Al Haramain, and then they 21 go on to make allegations about what Al Haramain has done. 22 But, if you read the complaint, there are no specific 23 allegations whatsoever about Prince Naif's involvement with Al 24 Haramain. 25 If you read the sections in the complaint about Al SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 56eWterC 1 Haramain, you will not find any reference to any activities or 2 knowledge of Prince Naif. The only basis for their allegation 3 is his chain of authority, that because he is the minister of 4 the interior and because of that he oversees an organization 5 and because of that, part of the chain goes down to Al 6 Haramain, that is all they have, your Honor. It's like saying 7 that Secretary Rumsfeld, as the secretary of defense, because 8 within his chain of authority falls every government contractor 9 who does business with the defense department is thereby 10 charged with knowledge and liability for everything each one of 11 those defense contractors does, and your Honor, the law does 12 not go that far. 13 The other allegations that are made, Federal Insurance 14 brings out again, supervision over the Muslim World League 15 IIRO, the Saudi Red Crescent Society and other specific 16 charities where they say just because he's minister of 17 interior, he has oversight of them. But, again, it is only by 18 function of his office. They allege no personal involvement 19 and no specific activity. 20 Even if you look at the exhibits that have been filed 21 prior to the arguments and your opinion on January 18, you see 22 that those exhibits don't establish anything about Mr. Prince 23 Naif either. The Court considered them and found that they 24 fell short as to Prince Sultan and Prince Turki and they fall 25 short similarly for Prince Naif. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 56eWterC 1 There is one more organization they allege him to have 2 involvement with which is the Saudi Arabian Committee for the 3 Intifada, but, as Mr. Jeffress mentioned, that organization and 4 those allegations only dealt with issues of Palestinian 5 politics and have absolutely nothing to do with this case. 6 Beyond this, your Honor, there are no allegations 7 against Prince Naif in any of these complaints. None of them 8 established any tortious conduct on his part whatsoever, but 9 even if they did, all the activities that are alleged, except 10 for the personal contribution, and I'll get to that, are 11 discretionary functions that are entitled to the same treatment 12 that Prince Sultan received. They are, in fact, identical in 13 nature of looking at, considering, and deciding the Saudi 14 policy on charitable contributions. 15 The last issue, your Honor, is the personal 16 jurisdiction issue for the personal contributions. And it's 17 only in the Federal Insurance complaint that there is any 18 allegation of personal contributions. And when you look at 19 this issue, first, there are no allegations anywhere in the 20 complaint of minimum contacts by Prince Naif with the United 21 States. Not one. So we are left with issues of specific 22 jurisdiction. And as your Honor pointed out, to do that, they 23 need to establish that Prince Naif personally directed his 24 activities toward the United States and that the injuries for 25 which the plaintiffs are suing were the proximate result of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 56eWterC 1 those activities. They need to allege specific facts showing 2 that he intended his personal contribution to be used to 3 perform the Al Qaeda attacks of the United States, and this has 4 not been done. 5 When you look at the responsive pleading that the 6 plaintiffs put in, a consolidated pleading on behalf of the 7 Burnett, the Ashton, and the Federal Insurance plaintiffs, they 8 finally describe with some sort of specificity what they are 9 referring to for Prince Naif's contribution, and they say it is 10 a 2 million rial contribution to the Saudi Joint Relief 11 Committee. And from that, they say, it went to the constituent 12 organizations, that's their term, that make up the Saudi Joint 13 Relief Committee. Organizations like IIRO, they say, like the 14 World Assembly of Muslim Youth, Al Haramain, the Muslim World 15 League. And they say just because Prince Naif made this 16 contribution, it therefore went to all of these organizations. 17 But there's two major problems with this argument. 18 The first is that the plaintiffs have a fundamental 19 misconception of the Saudi Joint Relief Committee. It is not 20 made up of constituent organizations, and money you give to it 21 does not go to any of those constituent organizations. We 22 submitted with our reply brief as Exhibit 1 the Royal Order 23 that established the Saudi Joint Relief Committee, and it shows 24 that the only role for any of these other organizations is to 25 be part of an advisory board for the relief work done by the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 56eWterC 1 Saudi Joint Relief Committee. And that's because these 2 organizations also do relief work. The rest of the advisory 3 board is made up of representatives of a number of ministries 4 of the kingdom. 5 The only entity that is to provide relief is the Saudi 6 Red Crescent, not these other charities, and the decisions for 7 what relief will be given by the Saudi Joint Relief Committee 8 come from the Council of Ministers on the recommendation of the 9 Saudi Joint Relief Committee. 10 Your Honor, once you expose the plaintiffs' 11 misconception that money to the Saudi Joint Relief Committee 12 automatically means it goes to these other charities, you are 13 left with no allegations in the complaint as to where the money 14 contributed to the Saudi Joint Relief Committee goes. There's 15 certainly nothing in there to support an allegation that it 16 went to Al Qaeda or an Al Qaeda front or that Prince Naif 17 intended it to go there. But if you look at the defendants' 18 own exhibit, which is Exhibit 2 that Ms. Bierstein put in, in 19 their response to Prince Naif's motion to dismiss, you see from 20 their own exhibit where that money was intended to go. It is 21 an article. It is only five lines long, and they ignore half 22 of it. 23 First, it says that Prince Naif did in fact make a 2 24 million rial contribution to the Saudi Joint Relief Committee. 25 It then goes on to state that Prince Naif has given directions SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 56eWterC 1 for the allocation of this amount, for the purchase of 2,000 2 tents to provide lodging to Chechen refugees at the Ingotia 3 border. But they ignore that in their own exhibit, and they 4 ignore it because it directly contradicts the allegations they 5 are trying to make and have no support for. 6 Your Honor, this is, I'm afraid, emblematic of much of 7 what I find wrong in plaintiffs' complaints. They make broad, 8 ugly, unspecific, and conclusory allegations against my client, 9 but when you ask for facts or you look into the facts that they 10 put forward, you find that the facts either don't exist or go 11 against their position. 12 Your Honor, Prince Naif is immune from suit in this 13 case. There are no allegations that will establish any 14 exceptions. And finally, there is no personal jurisdiction 15 over him. But, more importantly, there is no evidence and no 16 allegations that he had any involvement in the 9/11 attacks. 17 For those reasons, your Honor, I would ask that you 18 dismiss the complaints against him at this time. 19 THE COURT: Thank you, sir. 20 Who is next? 21 MR. FELDMAN: Good morning, your Honor. Elliott 22 Feldman, for the plaintiffs. 23 I would like to begin by commenting briefly on the 24 Court's ruling concerning the evidentiary proffer that was 25 submitted. May I be heard to create a record on that point, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 56eWterC 1 your Honor. 2 THE COURT: You may. 3 MR. FELDMAN: Thank you, your Honor. 4 Your Honor, in all candor, you've thrown us for a loop 5 with that ruling this morning, and I can appreciate the Court 6 was out of the office and that the Court just had the 7 opportunity to read the papers recently. 8 THE COURT: You only submitted them recently. 9 MR. FELDMAN: Well, several weeks ago, your Honor. 10 And it's noteworthy, Judge, if I could kind of give a 11 little bit of background. With the greatest respect, the 12 landscape changed after the Court's order and opinion of 13 January 2005. The three defendants whose motions are being 14 heard today had briefing closed before the Court's ruling in 15 that respect. Before the Court's ruling, the plaintiffs were 16 proceeding, and, right or wrong, I think we had a reasonable 17 basis for our approach that at this stage in opposition to 18 motions to dismiss, all that the Court would be examining were 19 allegations in the complaints. Therefore, in connection with 20 the submissions, there were few, if any, extrinsic documents 21 that were -- 22 THE COURT: Sir, when did you have those documents? 23 If you're going to force this point, you shouldn't have been 24 shocked by this ruling this morning. When did you have them? 25 MR. FELDMAN: I mean, we're dealing -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 56eWterC 1 THE COURT: When did you have them is the question, 2 sir, and I expect an answer. 3 MR. FELDMAN: Which specific document? Meaning all? 4 THE COURT: Don't play that game with me. Papers that 5 were objected to by the defendants. 6 MR. FELDMAN: They have -- 7 THE COURT: When did they come into your possession? 8 MR. FELDMAN: Over -- 9 THE COURT: I ruled that you should inform the Court 10 of that in writing without argument. 11 MR. FELDMAN: Your Honor -- 12 THE COURT: And you just avoided my question and are 13 pushing this. 14 MR. FELDMAN: I'm not avoiding this, with the greatest 15 respect, your Honor. 16 THE COURT: Did you have them, sir, when these papers 17 were fully submitted? 18 MR. FELDMAN: No. We did not have all of those 19 papers. 20 THE COURT: When did you have them? 21 MR. FELDMAN: They were acquired at different periods 22 of time, your Honor. With the greatest respect, I can't at 23 this moment give you specific dates. I can tell you that many 24 of them -- 25 THE COURT: Why shouldn't they have been in your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 56eWterC 1 papers? 2 MR. FELDMAN: I'll tell you why, because, No. 1, we 3 didn't have many of them. 4 THE COURT: Which ones? 5 MR. FELDMAN: Again, your Honor, right now, I can't 6 tell you specifically which ones were -- 7 THE COURT: Sir, you're the one -- 8 MR. FELDMAN: I don't mean to argue with your Honor 9 one little bit. I'm just trying to explain our approach. I 10 understand your Honor's ruling. 11 THE COURT: To go back to my ruling, I'm not going to 12 reverse myself, you stick to my ruling and stick to the dates. 13 You're fencing with me. 14 MR. FELDMAN: I'm not fencing. 15 THE COURT: Sir, I've ruled. 16 MR. FELDMAN: We'll proceed, your Honor. I just 17 wanted to point out -- 18 THE COURT: Yes, you will. 19 MR. FELDMAN: I appreciate your Honor's indulgence. 20 THE COURT: I don't enjoy playing games with the Court 21 or blowing smoke. Adhere to the ruling and move on, sir. 22 MR. FELDMAN: I will, your Honor, and I am. 23 THE COURT: Right now. 24 MR. FELDMAN: Yes, your Honor. 25 Your Honor, I'd like to focus my argument on the issue SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 56eWterC 1 of knowledge with respect to Princes Salman and Naif and on the 2 allegations of culpable conduct on the part of these princes as 3 well as the so-called charities that they supervised, the Saudi 4 High Commission and the SJRC, Saudi Joint Relief Committee, 5 both with respect to their individual and collective intent to 6 sponsor Al Qaeda and related terrorist groups. 7 A discussion of the allegations and evidence relating 8 to these factors then should enable us, your Honor, to focus on 9 the exceptions to FSIA immunity as well as the exception to the 10 exception of discretionary conduct. 11 I do note, your Honor, that this is an unusual process 12 at this point. It's part opening statement, it's part an 13 evidentiary proffer, and it's part a closing argument on the 14 basis of the facts and the law. And it's unusual again because 15 in the Court's order and opinion, the Court has ruled that the 16 plaintiffs must present specific factual allegations or 17 evidence to sustain our burden of production on FSIA issues. 18 Notwithstanding, your Honor, the absence of any true evidence 19 in this case, we don't have any sworn answers to interrogatory. 20 We don't have any deposition testimony. 21 We have none of the tools that I traditionally would 22 be using at this point in a more conventional case. We're, 23 therefore, relying on materials, your Honor, and, of course, 24 given the Court's ruling today, some of the materials that I'm 25 prepared to present we will not present. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 56eWterC 1 THE COURT: Move on, sir. 2 MR. FELDMAN: In that respect -- 3 THE COURT: Don't get back into that. I don't 4 appreciate a back door approach either. 5 MR. FELDMAN: I don't mean to give one, your Honor. 6 THE COURT: Move on. 7 MR. FELDMAN: Your Honor is aware that the plaintiffs 8 believe we are entitled to conduct discovery, under the cases 9 in the Second Circuit. And we say this not just for the 10 plaintiffs' benefit, we say it with the greatest respect for 11 the Court's benefit. We believe discovery on a number of these 12 issues is important to create an appropriate record to assist 13 the Court in its ultimate fact-finding function. It is the 14 defendants, of course, who are claiming immunity, who have the 15 ultimate burden of persuasion to the extent there are disputed 16 issues of fact. And with that, to that extent, again, 17 plaintiffs submit, and above all, it is the Court which is 18 entitled to have the parties engage in appropriate discovery. 19 Now, briefly, your Honor, what is not at issue, and 20 I'll be very brief in this respect, and I will not address 21 these issues beyond the following comments. What has been 22 obviated, in other words, by the Court's order and opinion, No. 23 1, that a(5) and a(7) under the FSIA are not mutually 24 exclusive, and therefore, nondesignation of defendants is 25 immaterial to evaluating the applicability of a(5). SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 56eWterC 1 No. 2, the Court's opinion notes that Judge Robertson 2 had rejected the entire tort argument, and this Court further 3 noted and summarized the arguments advanced by the parties. 4 Plaintiffs, of course, submit that the entire tort did take 5 place in the United States. The defendants dispute this. We 6 would submit that if the defendants' position were upheld, it 7 would lead to an absurd result whereby someone could start a 8 plane into the United States, fly over a foreign border, and 9 then turn back into the United States and thereby immunize 10 their conduct. But we read the Court's opinion as essentially 11 embracing Judge Robertson's view in that respect. 12 No. 3, the higher standard of causation argued for by 13 the defendants has been rejected, and mere proximate causation 14 is required. 15 And No. 4, the Court held that the definition of 16 tortious conduct under a(5) means a tort as defined by New York 17 law, and, parenthetically, plaintiffs would note that other 18 relevant bodies of law may be triggered such as federal common 19 law. But the Court did hold that the definition of tortious 20 conduct which applies to a(5) includes concerted actionable 21 theories of liability. 22 Now on the first critical issue, we would submit, your 23 Honor, for defendants who have funded Al Qaeda through 24 intermediary as opposed to the Saudi High Commission which we 25 submit provided direct assistance that the Court held is very SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 56eWterC 1 much in play is, of course, the issue of knowledge. In its 2 opinion, the Court held that there were insufficient 3 allegations and evidence to infer that Princes Sultan and Turki 4 knew that the charities they supported were Al Qaeda fronts. 5 Boim and Halberstam are instructive and make it clear 6 that if there is such knowledge, then giving money to a 7 terrorist front with such knowledge is a basis for finding 8 tortious conduct and thus accepting immunity under a(5). As 9 this Court held, there must be some facts to spirit an 10 inference that the defendant knowingly provided assistance or 11 encouragement to the wrongdoer. And this, Judge, is what we 12 view as our burden of production at this point under the 13 Court's opinion. 14 The allegations and evidence which we will reveal will 15 show specifically for these defendants as well as in a broader 16 context within which they were operating that there is in fact 17 a reasonable basis for the Court to apply an exception to FSIA 18 immunity. That will consist, that basis will consist of 19 specified allegations as well as direct and circumstantial 20 evidence. Under Saudi Arabia v. Nelson, we believe all of our 21 allegations should be accepted as true at this stage. 22 Defendants dispute that, but clearly, when allegations are not 23 disputed, they are properly accepted as true by the Court again 24 at this stage. 25 Bearing in mind the blueprint which the Court's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 56eWterC 1 opinion affords, we submit the allegations and evidence will 2 show a reasonable basis for the Court to find or infer that 3 Princes Salman and Naif knowingly funded and provided 4 assistance to Al Qaeda through intermediaries serving as fronts 5 or conduits for this worldwide terrorist organization. In 6 addition, the allegations and evidence will show the reasonable 7 basis for the Court to find or infer that the charities that 8 these princes supervised, the Saudi High Commission and the 9 SJRC, operated as Al Qaeda fronts and directly provided funds 10 and other logistical assistance to Al Qaeda and related 11 terrorist groups, thereby rendering the issue of knowledge moot 12 as to plaintiffs' claims against the charities themselves, 13 again, because there was direct assistance. 14 Finally, the allegations and evidence will show a 15 reasonable basis for the Court to find or infer that by virtue 16 of their supervision and patronage of these and other relevant 17 charities, and information which they received by virtue of 18 their governmental positions, Princes Salman and Naif directly 19 assisted Al Qaeda and other organizations through their 20 supervisory roles which enabled these Al Qaeda fronts and 21 conduits to serve their terrorist functions, of which these 22 princes were aware. 23 At the conclusion of my review of the allegations and 24 evidence, your Honor, I believe it will be clear that there's a 25 reasonable basis for the Court to apply exceptions to FSIA SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 56eWterC 1 immunity. At that point, your Honor, with the Court's 2 permission, I'll return to the exception to the exception, 3 discretionary conduct issue, which, for reasons I think will be 4 clear, has been a nonissue as to these defendants. 5 Now, again, your Honor, with respect to the evidence, 6 the Court is essentially asking us for Princes Naif and Salman 7 to demonstrate a state of mind. That's tough to do in the best 8 of circumstances without access to discovery. Here, to do it 9 through allegations and through the evidence which the Court is 10 allowing requires the inferential reasoning, and so we would 11 ask the Court to bear that in mind. 12 One final comment, your Honor, concerning designation 13 before I begin with the description of the allegations against 14 these three defendants, the Court has referenced designation, 15 or the absence thereof, in several instances in its opinion. 16 For instance, the Court found that Boim was distinguishable 17 because the charities that Princes Turki and Sultan were 18 alleged to have supported were not designated unlike Hamas in 19 Boim. The Court notes in its opinion not only BIF and certain 20 branches of Al Haramain have been designated under Executive 21 Order 13224, we would submit that additional information on 22 this point may have been helpful in assisting the Court through 23 this complex area of counterterrorism designations, and again 24 the plaintiffs had requested an evidentiary hearing and 25 reiterate this request now. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 56eWterC 1 First point, your Honor, is the designation under 2 13224, which is the counterterrorism designation, which was not 3 available before 9/11. Executive Order 13224 was issued after 4 9/11. Before then, designation was allowed but only for state 5 sponsors of terrorism or foreign terrorist organizations or 6 terrorists themselves. As to individuals who are entities who 7 sponsored terrorism, they were capable of being designated only 8 with respect to a finding that they had disrupted the peace 9 process in the Middle East. And this is pursuant to Executive 10 Orders 12947 and 13099. So pre-9/11 there was no vehicle for 11 designating individuals or entities sponsoring terrorist 12 organizations who themselves were not directly committing acts 13 of terror unless their acts were related to the Middle East 14 peace process which, of course, is not the focus of our case. 15 The focus of the Court and the parties in this case 16 should be on the activities and knowledge of the defendants 17 pre-9/11, and your Honor has already raised that in an issue 18 about the raid at the SHC's headquarters. Much of the 19 allegations and evidence that we can present and will present 20 will show activities that took place pre-9/11. And to 21 demonstrate a state of mind and awareness on the part of these 22 defendants, with respect to the illicit activities in funding 23 and assisting Al Qaeda and related terrorist groups. 24 Designation after 9/11 as it relates to pre-9/11 25 activities is significant as in the case of Al Haramain by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 56eWterC 1 reflecting on those terrorist activities before 9/11, but 2 conversely, your Honor, we would submit that the absence of 3 designation is not necessarily significant at all. And I say 4 this because there has been testimony in Congress. There are 5 other reports. 6 Your Honor, under the Court's ruling may I refer to 7 testimony in a committee on governmental affairs report? This 8 is a public record. It was not attached to the briefs. 9 THE COURT: You may. 10 MR. FELDMAN: Thank you, your Honor. 11 In the congressional hearing before the committee on 12 governmental affairs of the United States Senate dealing with 13 terrorism financing is the report in question, dated July 31, 14 2003. Richard Newcomb, who is the director of the Office of 15 Foreign Asset Control of the Department of Foreign Treasury, 16 testified, "When we have a target we wish to designate, we 17 develop evidence so that should a designation happen, we are 18 able to sustain a challenge to that in federal court. So we do 19 develop evidentiary packages as the basis for recommendations." 20 Mr. Newcomb then was questioned by Chairman Collins on 21 recommendations that, as the chairman put it, were turned down. 22 What do you do then, the question was. And Mr. Newcomb 23 explained that there were many reasons why designations were 24 turned down. He said, "For example, the FBI may say we have 25 law enforcement equities in that particular target at this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 56eWterC 1 time. If you move forward now, you will disrupt those 2 equities." And the point, your Honor, is designation 3 ultimately is a political process, and there are many critics. 4 I'm sure the Court has read reports. 5 THE COURT: When did he testify? 6 MR. FELDMAN: Pardon me, your Honor. 7 THE COURT: When did he testify? 8 MR. FELDMAN: He testified on July 31, 2003. 9 THE COURT: All right. Almost two years ago. Go 10 ahead. 11 MR. FELDMAN: Ultimately, your Honor, it is political, 12 and there are law enforcement issues, there are diplomatic 13 issues, there are a number of factors that may result in 14 someone or an entity and individual not being designated. 15 Consequently, we do not believe that the absence of designation 16 should be viewed as evidence of exculpation in and of itself. 17 Let me proceed to a discussion, first of all, of the 18 Saudi High Commission. And, basically, I would begin by saying 19 what do we know about it. We know it was formed in 1993, that 20 King Fahd made Prince Salman president of the Saudi High 21 Commission. King Fahd ordered that solely the high commission 22 and Prince Salman would have exclusive authority to collect 23 donations and provide humanitarian relief in Bosnia and 24 Herzegovina, and this is from the Saudi High Commission brief 25 at page 3. There is no discretionary authority for the SHC to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 56eWterC 1 do anything else, such as direct funds to terrorists. 2 Now, the Saudi High Commission, your Honor, alleges 3 that it's one of the following, a political subdivision of the 4 Kingdom of Saudi Arabia or an agency of the Kingdom of Saudi 5 Arabia, or an instrumentality of the Kingdom of Saudi Arabia, 6 or now, an organ of the Kingdom of Saudi Arabia. This is the 7 motion at page 11 following. 8 From this relationship, your Honor, the Saudi High 9 Commission argues that it's entitled to sovereign immunity. 10 The allegations in plaintiffs' consolidated complaints reflect 11 the alternative arguments advanced by the Saudi High 12 Commission. Briefly, as the Court is aware, and I'll simplify 13 and generalize, but briefly, a political subdivision is 14 essentially part of the government. An agency or 15 instrumentality is owned by the government. An organ is 16 exclusively or extensively controlled by the government. 17 Now, the Saudi High Commission, your Honor, doesn't 18 tell us what it is. And admittedly there are legitimate 19 challenges in applying the framework of this statute to a 20 monarchal government like the Kingdom of Saudi Arabia. The 21 resolution of this fundamental threshold issue of what exactly 22 is the Saudi High Commission underscores the need for discovery 23 so the Court has an appropriate record upon which to make a 24 decision. And this lack of clarity about something as basic as 25 the identity of this defendant doesn't arise just on that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 56eWterC 1 issue. 2 For instance, in its motion, the Saudi High Commission 3 raises lack of personal jurisdiction as a defense. The Kingdom 4 of Saudi Arabia, your Honor, did not raise lack of personal 5 jurisdiction as a defense, because it has substantial contacts 6 with the United States, both governmental and commercial. We 7 would submit that it's disingenuous, to put it politely, for 8 the Saudi High Commission to claim immunity as a political 9 subdivision or controlled organ of the kingdom and at the same 10 time to raise lack of minimum contacts as a defense to personal 11 jurisdiction given its allegations of complete organized 12 control by the kingdom and financial dependence on the kingdom, 13 including funding and staffing. And that's contained on page 14 12 of its motion. 15 There clearly is a reasonable basis for this Court to 16 attribute the contacts of the Saudi Arabia to the Saudi High 17 Commission. The only basis upon which lack of minimum contacts 18 should be a defense is if it's a nongovernmental organization. 19 However, the Saudi High Commission disputes this and says it is 20 not. Plaintiffs have argued that it may well be an NGO, based 21 upon the simple but compelling evidence that that's how it 22 registered in Bosnia. It called itself a nongovernmental 23 organization. The Saudi High Commission admits in its brief, 24 your Honor, that it registered in Bosnia as a "foreign 25 humanitarian organization." This is on page 5. The Saudi High SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 56eWterC 1 Commission does not define this term for the Court. The Saudi 2 High Commission admits that "the law of humanitarian 3 organizations," and I would insert "of Bosnia," "requires that 4 humanitarian organizations operating in Bosnia-Herzegovina be 5 nongovernmental," and this is the declaration of Mr. Hajrudin, 6 at paragraph 4. 7 The Saudi High Commission then argues that this 8 seemingly straightforward term, nongovernmental organization, 9 means that the Saudi High Commission is not considered part of 10 the government of Bosnia-Herzegovina. And, your Honor, we 11 would submit again respectfully that this argument on its face 12 is absurd. Why would it be necessary for a registration 13 process for "foreign humanitarian organizations," which is what 14 the Saudi High Commission says it was, to entail a 15 certification that the NGO proposing to register is not part of 16 the Bosnian government? The Saudi High Commission's argument 17 flies in the face for the rationale of the registration 18 process. Basically it's to make sure that a government knows 19 that another government isn't setting up shop within its 20 borders and that the entity seeking to register is truly an 21 independent nongovernmental humanitarian organization. 22 Saudi Arabia was able to establish the Saudi High 23 Commission within Bosnia and Herzegovina by saying it was not 24 part of the Kingdom of Saudi Arabia. Otherwise, Bosnia and 25 Herzegovina properly may have objected to its presence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 56eWterC 1 Now, years later, we're being told that the Saudi High 2 Commission and, by extension the Kingdom of Saudi Arabia, are 3 saying that all along, the Saudi High Commission was in fact an 4 arm of the Kingdom of Saudi Arabia. 5 There are other reports, your Honor. Again, under the 6 Court's ruling, I will not submit them. But I don't want your 7 Honor to think I'm making this up out of whole cloth, there is 8 extensive literature on this. At a minimum, the Saudi High 9 Commission's self-description as an NGO is contradictory of its 10 legal argument that it is one of many different types of 11 governmental units defined in the FSIA, although it won't tell 12 us which one. On the basis of this record, which I think 13 anyone would agree is confusing as a result of the words we're 14 hearing from this defendant itself, this Court should order 15 discovery to proceed. 16 You know, it is known that the Saudi High Commission 17 acts both as an independent charity and as the coordinating 18 body of charities in Bosnia. Exhibit 1 to -- I'm sorry. An 19 exhibit in the affirmation of Sean Carter, from my firm, 20 submitted together with the briefs in opposition to the motion 21 to dismiss of the Saudi High Commission -- this is dated 22 November 1, 2004, so it was submitted under the Court's ruling 23 in timely fashion, is a 1996 CIA report on terrorism sponsored 24 by charities. 25 It discusses, your Honor, the pervasive involvement of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 56eWterC 1 the so-called Islamic charities in sponsoring terror. It 2 concludes that one-third of these charitable organizations 3 support terrorist groups or employ suspected terrorists. It 4 describes the activities and connections among 15 such 5 organizations, including the Saudi High Commission and the 6 charities with which it is linked, including the designated Al 7 Haramain. 8 The Saudi High Commission also is noted in the CIA 9 report as having extremist connections to Hamas, IIRO and the 10 Muslim World League. This is also in 182 of the federal 11 complaint. 12 By 2001, the Saudi High Commission had collected and 13 distributed in Bosnia and Croatia almost 1.7 billion Saudi 14 rials. The conversion rate is one to one, one Saudi real being 15 a little more than a quarter in our currency. And as will be 16 discussed in a moment, Judge, in connection with the 17 contributions of Prince Salman and then Prince Naif, Prince 18 Salman has been a long-term donor and sponsor of a broad group 19 of charities including, of course, the Saudi High Commission. 20 Now, one of the most indicting pieces of evidence 21 against the Saudi High Commission comes from Prince Salman. 22 Our allegations and evidence make it clear that probably by 23 1995 and certainly by the year 2000, Prince Salman was aware 24 that the Saudi High Commission was diverting substantial 25 amounts of cash intended for humanitarian relief in Bosnia SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 56eWterC 1 directly to Al Qaeda and other related terrorist groups, and 2 that's Federal complaint paragraph 184. There is a report, 3 your Honor, that informs that allegation. I will not reference 4 it now, but I want the Court to be aware that there is an 5 underlying report. 6 In addition, your Honor, Prince Salman received 7 notification from a Bosnian association in September 2000 that 8 funds donated to the Saudi High Commission were being 9 improperly diverted. This association was the Mothers of 10 Srebrenica and Podrinje, which, in correspondence advised 11 Prince Salman that $100 million in U.S. funds donated to the 12 Saudi High Commission were not reaching the intended 13 beneficiaries. That was in September of 2000, your Honor, and 14 that is referenced in the Federal complaint, paragraphs 185 and 15 457. 16 Thus, by virtue of other allegations in the complaint 17 informed by other reports and this report, it is clear that 18 through the mid-1990s and certainly by 2000, the Saudi High 19 Commission, in fact, was diverting funds to terrorists, and 20 Prince Salman was aware of this. Despite this, the Saudi High 21 Commission continued to operate. Prince Salman made no 22 decision to shut it down or overhaul it prior to 9/11. 23 Now, again, the evidence I'm presenting deals with the 24 SHC. It is important to keep these allegations and this 25 evidence in mind, your Honor, when we deal with Prince Salman SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 50 56eWterC 1 with respect to his knowledge of the illicit activities of the 2 charity that he supervised. 3 Shortly after 9/11, your Honor, and this relates to 4 some of the evidence that was brought up earlier, in September 5 2001, NATO forces raided the Saudi High Commissions offices in 6 Bosnia. Whether it was September or October isn't clear. It 7 was clearly after 9/11. I don't know that the precise date is 8 all that material for the Court's consideration. 9 NATO discovered plans for further terrorist attacks, 10 including pictures of the World Trade Center and, Judge, the 11 pictures were both pre-9/11 and post-9/11. This was not some 12 news-happy employee who was surfing the web and pulling up 13 pictures after the attack. There were pre-9/11 photos of the 14 World Trade Center, and it shows, your Honor, the involvement 15 of this organization in evaluating and being aware of this 16 building. If that's a coincidence, your Honor, then, you know, 17 I don't know how we would explain it. 18 My experience, your Honor, is that coincidences are 19 not coincidences. There is usually a cause and effect 20 relationship. And if this organization has a photo of the 21 World Trade Center discovered shortly after the attack in its 22 preattack condition, I would submit that's a compelling piece 23 of evidence. It clearly could have been erased. It could have 24 been deleted after the attack. It was still there. It was 25 still there because they also discovered plans -- this is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 56eWterC 1 NATO -- for further terrorist attacks. There also were 2 pictures of the USS COLE, and there was a lot of stuff that may 3 not be all that important, anti-Semitic and anti-American 4 literature. 5 This raid netted computer files on the use of 6 aircraft, instructions on how to fake United States State 7 Department identification badges, information about pesticides 8 and crop dusters and photographs and maps of Washington marking 9 government buildings. 10 Your Honor, at some point they have to explain why 11 this organization would have that information when it's 12 supposed to be assisting in the building of mosques and helping 13 the needy and homeless in Bosnia. 14 Substantial sums of local currency were found at a 15 safe. There were intelligence reports, with references in 16 paragraph 183 of the Federal complaint, from Bosnian federal 17 agencies that the Saudi High Commission facilitated the 18 movement of Al Qaeda into Bosnia and Herzegovina by providing 19 them with false employment documentation. And, your Honor, 20 this is consistent with Al Qaeda's self-description as an 21 Islamic army, in addition to being a terrorist organization. 22 There were reports, as noted by counsel, that the SHC had 24 23 vehicles with diplomatic plates, reports that question the 24 purpose of these plates which others have stated were used to 25 transport fighters and weaponry inside Bosnia and Herzegovina. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 52 56eWterC 1 And, your Honor, again, there was a letter reference in our 2 complaint from David Aufhauser, general counsel of the treasury 3 department, who described the pattern of Saudi charities 4 employing terrorists, providing them with cover in operations 5 of other countries. In fact, the 9/11 Commission report which 6 defense counsel have cited on numerous occasions concluded that 7 two of the principal hijackers, Al-Hazmi and Al-Mihdhar, had 8 previously fought as Al Qaeda soldiers in Bosnia against the 9 Serbs in 1995. That's on page 131. 10 The commission further concluded that Bin Laden drew 11 on a broad network of Islamic fighters and radicals from the 12 Balkans and elsewhere to recruit Al Qaeda operatives and 13 soldiers. That's on page 194 of the report. 14 The raid was conducted, your Honor, contemporaneously 15 with arrests by Bosnian authorities of individuals, at least 16 several of whom or all of whom were SHC employees, several of 17 whom were suspected as being members, suspected of being 18 members of an Al Qaeda-related terrorist organization known as 19 the GIA. They were handed over to U.S. authorities, and one of 20 the individuals was Bensayah Belkacen, who was identified as a 21 top lieutenant to Osama Bin Laden when arrested. He had phony 22 passports and a mobile phone number for another top Bin Laden 23 aide, Abu Zubeida, who is considered to be one of the Al 24 Qaeda's top advisors. 25 We allege in our complaint, paragraph 184 of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 56eWterC 1 Federal complaint that Matt Levitt, a former analyst for the 2 FBI who has testified as a counterterrorism expert in a federal 3 criminal case, also testified that over $41 million in 4 donations to the Saudi High Commission were not used for 5 humanitarian relief and had been unable to be traced, and 6 Congress has confirmed that authorities were and are attempting 7 to trace millions of dollars in unaccounted funds. 8 In our complaint, paragraphs 187 and 459, we allege 9 that the financial police of the Federation of Bosnia and 10 Herzegovina have described the Saudi High Commission as a front 11 for terrorism. Prince Salman, again, has been informed of 12 this, and there are reports that he has admitted this. 13 Summing up for the Saudi High Commission, your Honor, 14 the information is compelling. This alleged Saudi Arabian 15 governmental unit was, in fact, an Al Qaeda front. At this 16 stage of the pleadings, your Honor, with respect to the Court 17 accepting as true undisputed allegations and considering the 18 allegations and evidence in dispute or otherwise for those 19 allegations which the defendants do in fact dispute, the 20 evidence is compelling that it directly and intentionally 21 funded and otherwise assisted Al Qaeda and associated terrorist 22 organizations. This is precisely what we have alleged in 23 paragraph 188 of our complaint. 24 At a minimum, your Honor, using the Court's opinion as 25 a road map, there is a reasonable basis for this Court to draw SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 54 56eWterC 1 an inference to that effect. This is sufficient to apply the 2 a(5) exception under the Court's analysis. Further, since the 3 record created by the Saudi High Commission itself is 4 abundantly unclear regarding its alleged governmental status, 5 there is a reasonable basis for this Court to reject the Saudi 6 High Commission's claim of immunity and for the Court to assert 7 jurisdiction over the Saudi High Commission based upon our 8 allegations and evidence of our, in support of the plaintiffs' 9 concerted action theories of liability. 10 With respect to Prince Salman and Prince Naif that 11 I'll discuss now, your Honor, unless the Court has any comments 12 regarding the Saudi High Commission. 13 THE COURT: No. Go right ahead. 14 MR. FELDMAN: It's almost a Watergate type approach. 15 But it's not just what did he know and when did he know it but 16 what did he do and when did he do it. Prince Salman, as the 17 Saudi government official responsible for supervising this 18 entity we've been discussing, the Saudi High Commission, 19 oversaw its operations. We would submit and we have alleged 20 that he did it so as to continue and enable the Saudi High 21 Commission to intentionally fund Al Qaeda and associated 22 terrorist organizations. And again, at a minimum, your Honor, 23 there's a reasonable basis for this Court to draw an inference 24 that Prince Salman in his official capacity knew of the Saudi 25 High Commission's support of Al Qaeda and that he intended to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 55 56eWterC 1 sponsor terrorist organizations, including Al Qaeda, by 2 continually enabling the operations of the Saudi High 3 Commission, as well as by donating and raising substantial sums 4 of money for the Saudi High Commission, despite knowledge of 5 its illicit activities. 6 Now, as noted, Prince Salman, as a long-time donor and 7 systematic donor of funds to these so-called Saudi charities 8 which we have alleged, and the evidence supports, he knew to be 9 Al Qaeda fronts, he's also their principal sponsor of 10 fund-raising events for these Al Qaeda fronts and conduits. We 11 have alleged and have submitted evidence, but the complaint 12 itself alleges that over a long period of time, in the 1990s 13 and through pre-9/11, Prince Salman funded WAMY, the IIRO, MWL, 14 Muslim World League, which has been described as the mother of 15 the IIRO, the Saudi High Commission, the SJRC, and Al Haramain. 16 Federal paragraph 461 refers generally and specifically to 17 certain contributions. 18 Your Honor, in February 1994, Prince Salman raised 19 just shy of 7 billion Saudi rials for the IIRO. In 1995, there 20 was another fund-raising event with a donation by Prince Salman 21 of 1 million Saudi rials. In '96, the same, another event for 22 the IIRO, another 1 million Saudi rials from Prince Salman, and 23 much else from other persons who donated at these events. Over 24 6 million Saudi rials, $1 million in contribution from Prince 25 Salman. In 1999, he upped it to 1.5 million, in a fund-raiser SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 56 56eWterC 1 for IIRO, WAMY, and Al Haramain. And in addition, there were 2 fund-raising events in December 1999 for these organizations. 3 Now, these contributions are alleged extensively in 4 the plaintiffs' complaint. Our brief also notes that in 1999, 5 Prince Salman donated $400,000 to an event sponsored by IIRO, 6 WAMY, and Al Haramain. This is paragraph 461. Each of these 7 organizations in 1999 was known by Prince Salman to be a 8 terrorist front and conduit for Al Qaeda. We don't say this 9 lightly. This is what the allegations show. This is what the 10 evidence shows, your Honor. 11 Prince Salman, in his brief, acknowledges this 12 particular donation, and his attorneys write on his behalf, "We 13 do not concede that this donation was personal, rather than 14 official." That's in footnote 3. Your Honor, parenthetically, 15 it's of interest to note that just like the Saudi High 16 Commission cannot tell us definitively what it is, Prince 17 Salman either can't or won't clearly identify whether in 18 donating these huge amounts of money he was acting in a 19 personal or official capacity. It is the defendants, your 20 Honor, that have the ultimate burden of persuasion on this 21 issue. 22 We have allegations and evidence of acknowledged 23 contributions by Prince Salman to Al Qaeda connections. In 24 response, we have what I would call an evasive reply, evasive 25 statement by Prince Salman saying I gave the money, but I'm not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 57 56eWterC 1 going to tell you in what capacity I gave it. This Court 2 should insist upon discovery taking place so that we can 3 procure the testimony, among others, of Prince Salman to 4 provide a clear record for the Court to base its decision. 5 Until then, respectfully, we submit that at this stage, the 6 Court should reasonably infer that at least under the 7 circumstances we detailed, that at least some of these 8 donations were made in a personal capacity. Until discovery 9 takes place, we can't give the Court more information 10 concerning other donations or other charities, but, Judge, 11 circumstantially, it's overwhelming that there were many, many 12 other donations given the context of the fund-raising events 13 and funding of these charities. 14 Your Honor, before I discuss the evidence establishing 15 knowledge on the part of Prince Salman with respect to these 16 donations, I wanted to briefly set the legal context. We're 17 proceeding against Prince Salman and other defendants inter 18 alia on the basis of concerted action theories of liability of 19 conspiracy and aiding and abetting. 20 As explained Halberstam, conspiracy, of course, is an 21 agreement to participate in a wrongful activity. Aiding and 22 abetting focuses on whether a defendant knowingly gave 23 substantial assistance to someone who performed wrongful 24 conduct, not on whether the defendant agreed to join the 25 wrongful conduct. Thus, as noted in Halberstam, liability can SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 58 56eWterC 1 be triggered if there is an agreement to participate in a tort 2 or in substantially aiding tortious conduct. And on this 3 latter point, substantially aiding tortious conduct. 4 Halberstam held that a person who assists in a tortious act may 5 be held liable for other reasonably foreseeable acts resulting 6 from such aid. And this Court has noted that in the years 7 leading up to 9/11, Al Qaeda was increasingly vocal in its 8 hatred of the U.S. Thus, by extension, if we show a reasonable 9 basis for the Court to find or infer knowing assistance, 10 including giving money through intermediaries, known or 11 reasonably that should be known to be Al Qaeda fronts, then 12 there similarly is a reasonable basis for finding or inferring 13 that the attacks of 9/11 were foreseeable results of this 14 assistance. 15 With respect to the claims against these princes in 16 their personal capacity and against the Saudi High Commission, 17 to the extent the Court rejects its claim of immunity, it's 18 important to heed the words of the 7th Circuit in Boim: "If we 19 failed to impose liability on aiders and abetters who knowingly 20 and intentionally funded acts of terrorism, we would be 21 thwarting Congress' clearly express intent to cut off the flow 22 of money to terrorists at every point along the causal chain of 23 violence." 24 What are the evidence, what are the allegations of 25 Prince Salman's knowledge, your Honor? During the extensive SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 59 56eWterC 1 period of time that he had made his contributions to some of 2 the charities to which he contributed, the following 3 information is known about those charities. Let me begin with 4 IIRO. 5 In 1996, through the CIA report referenced before, the 6 United States Government determined that IIRO was connected 7 with Osama Bin Laden. The Court will also note that the 8 government noted it was linked with the Saudi High Commission. 9 A gentleman named Arafat El-Asahi, the head of the IIRO in 10 Canada and probably all of North America, testified in Canadian 11 federal court, in 1999, that during his eight years with the 12 IIRO in Canada, the IIRO was controlled by the Muslim World 13 League, which in turn was controlled by the Kingdom of Saudi 14 Arabia. His testimony was as follows: "Let me tell you one 15 thing. The Muslim World League, which is the mother of IIRO, 16 is a fully government-funded organization. In other words, I 17 work for the government of Saudi Arabia. I am an employee of 18 that government. Second, the IIRO is the relief branch of that 19 organization, which means that we are controlled in all our 20 activities and plans by the government of Saudi Arabia." 21 That's referred to in paragraph 115 of our complaint. 22 Now, from paragraph 400 of our complaint, we reference 23 a meeting that the Court is aware of, with then Interior 24 Minister Pasqua of France. This occurred in November of 1994. 25 Foreign Minister Pasqua travelled to Saudi Arabia. He met with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 60 56eWterC 1 King Fahd, Crown Prince Abdullah, Prince Naif and intelligence 2 Chief Turki. This information has direct relevance, of course, 3 for purposes of establishing knowledge on the part of Prince 4 Naif, whom I will address in a moment. It is reasonable for 5 the Court to infer, however, that information provided by 6 Minister Pasqua about the charities' funding and support of 7 terrorists would have been supplied by these Saudi Arabian 8 officials to Prince Salman, who, after all, Judge, was in 9 charge of the largest or at least one of the largest charities, 10 the SHC. Minister Pasqua only named "The world Islamic League" 11 which the Court found was not one of the charities to which the 12 Prince had donated. The World Islamic League is the Muslim 13 World League, and, of course, parenthetically, the Muslim World 14 League is one of the charities to which Prince Sultan had made 15 donations. 16 Now, there are numerous reports beginning after that 17 in the late 1990s and continuing into the 9/11 era of numerous 18 links of the IIRO with terrorist organizations. Much of this 19 is alleged in the complaint. Deregistration by Kenya, 20 connections with Osama Bin Laden, reports of possible radical 21 movements in other nations like India. And recall, your Honor, 22 that the admitted contribution by Prince Salman was in 1999. 23 We have again the CIA report as early as 1996, numerous media 24 reports, after that, and these media reports are important, 25 your Honor. The testimony that I read from the head of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 61 56eWterC 1 Canadian branch of the IIRO indicated that if he sneezed, 2 people in Riyadh were aware of it. 3 Judge, it is important for the Court to draw a 4 reasonable inference that when there are intelligence reports, 5 when there are media reports concerning these illicit 6 activities that the highest ranking Saudi officials would be 7 made aware of this when those reports attack the charities that 8 they supervise and personally fund. 9 Similarly, Prince Salman is known to have made 10 donations to Al Haramain, numerous donations, and this is 11 alleged. Al Haramain, as the Court is aware, first was 12 designated by the U.S. Government as a terrorist sponsor in 13 March of 2002. Additional branches were designated in January 14 of '04, May, June, and September of '04, under Exhibit 1, the 15 CIA report of 1996. Al Haramain was determined by the CIA to 16 have facilitated the operations of terrorist groups operating 17 in Bosnia, operating illegally through drugs and prostitution. 18 There are other allegations of numerous other reports 19 linking Al Haramain with terrorist organizations, all 20 consistent with the 1996 CIA report. Again, your Honor, we 21 submit it is not only reasonable for the Court to infer that 22 Prince Salman and later Prince Naif were aware of these 23 reports, it is unreasonable to assume or infer that they would 24 not have been aware of it. In some way, they would have 25 shielded themselves from these widely distributed media SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 62 56eWterC 1 reports. And while it's in legal context, Judge, newspapers 2 reports may not be particularly probative, they're particularly 3 probative here. As such, media reports are a way to broadcast 4 information across countries and back around the world, and I 5 think the Court needs to take into account the breadth and 6 scope and the timing of these reports in assessing what 7 reasonably would have been the state of mind on the part of 8 Prince Salman during the period he continued to fund 9 substantial amounts of cash with respect to these illicit 10 charities, including the one that he was directly supervising, 11 the SHC. 12 Now, the allegations that have already been referenced 13 provide a reasonable basis for the plaintiffs' claims against 14 Prince Salman, both in his official capacity as well as, we 15 submit, in his personal capacity. There are other reports, 16 your Honor, in which he is reported to have contributed to the 17 SJRC, and there are detailed allegations against the SJRC, in 18 our complaint, which I'll discuss in moment. 19 In addition, your Honor, there are allegations 20 concerning the connection of Wael Jelaidan, who was serving as 21 SJRC director who was identified in the 1999 interview by Al 22 Jazeera with Osama bin Laden as being one of the important 23 officers in Al Qaeda. So this is an organization, identified 24 as such in '99, in a widely distributed videotape, to which 25 Prince Salman continues to donate funds. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 63 56eWterC 1 In addition to these media reports and in addition to 2 these government reports, and the underlying evidence of 3 knowledge and intent which they furnish, there also is direct 4 and circumstantial evidence that such knowledge was 5 communicated directly to Prince Salman and Prince Naif by 6 officials of other governments, again, underscoring ample basis 7 in the allegations and evidence for this Court to find or infer 8 knowledge and intent on their part. 9 We will not discuss the exhibit to our motion for 10 leave to supplement the record which we have submitted. 11 Bear with me one moment, I'm trying to parse what was 12 in the exhibit versus what was alleged. 13 In Federal paragraph 463, it is alleged that the U.S. 14 Government, in 1999, had requested a meeting with Saudi 15 Arabian's top officials. The information at that time 16 indicated involvement in sponsoring terrorism on the part of 17 numerous Saudi charities. The 1996 CIA report again references 18 the IIRO, the Muslim World League, World Assembly of Muslim 19 Youth, Saudi High Commission, Al Haramain, and the Saudi Joint 20 Relief Committee. 21 During this period of time, your Honor, it's crucial 22 to note from 1977 forward there was intelligence sharing 23 between the United States and Saudi Arabia pursuant to the 24 affidavit submitted by Prince Turki, so we not only have these 25 Princes' awareness of media reports, we not only have the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 64 56eWterC 1 direct information that was serviced, such as to the Mothers of 2 the Srebrenica, but we now have a conduit for U.S. intelligence 3 to come directly to these Saudi officials. There were two 4 meetings, 1999 and 2000. Officials were reported to have 5 indicated that changes would be made. This is referenced again 6 in paragraph 463 of the Federal complaint, and there were no 7 meaningful changes reported as a result of those visits. 8 So, on a direct level, on an inferential level and 9 again on a governmental level, we have numerous sources of 10 information, and yet the funds continue to flow. The funds are 11 raised in illicit activities and continued to take place all 12 formulating in 9/11. It's reasonable for this Court to infer 13 that all of this information would have been conveyed directly 14 or indirectly to Prince Salman. He's in charge of one of the 15 largest charities. There's no reason to assume that there 16 wouldn't have been some firewall erected to shield them from 17 this information if other officials received it. 18 In this Court's opinion, the Court notes that it gives 19 "great weight to any extrinsic submissions such as affidavits 20 made by foreign defendants regarding the scope of their 21 official responsibilities." Part of the challenge that your 22 Honor is facing here is to evaluate what we would consider the 23 one-sided self-serving submissions which we are unable to test 24 as we would in the normal course through the advocacy system. 25 Now, there are reports, your Honor, with statements SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 65 56eWterC 1 submitted by Prince Salman, and I would submit that the Court 2 should take into account the statements that Prince Salman has 3 made and given the circumstances where he made those 4 statements. He says one thing when he's in Bosnia. He says 5 another thing when he's in Saudi Arabia. But the evidence is 6 compelling, your Honor, that he has a selective memory in the 7 way that many politicians do, unfortunately, and tells his 8 audience what they want to hear, and this is alleged generally 9 and specifically in the complaints. 10 It is plaintiffs' position that the Court should 11 accept our well pleaded allegations as being true, rather than 12 trying to evaluate the weight of the underlying evidence, if 13 you will. And we would submit, your Honor, again that any 14 factual dispute can be resolved only after discovery has taken 15 place. But to the extent the Court concludes otherwise and is 16 going to weigh the value of the evidence, instead of accepting 17 these affidavits, these self-serving submissions at face value, 18 we respectfully ask the Court to consider the reliability, or 19 lack thereof, of the affiants. 20 As to Prince Salman, to sum up, the allegations and 21 evidence provide a reasonable basis for this Court to find or 22 infer that Prince Salman knowingly funded or assisted Al Qaeda 23 through intermediaries which he knew to be Al Qaeda fronts, and 24 further to find or infer that Prince Salman intended to and, in 25 fact, did directly assist these terrorist organizations. This SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 66 56eWterC 1 is sufficient, your Honor, to find or infer tortious conduct 2 under New York law and, under a(5), to support an assertion of 3 personal jurisdiction under our concerted action theories of 4 liability and again to reject the claim of immunity. 5 Prince Naif. Now, Prince Naif is touted by his 6 attorneys as a fierce opponent of terrorism. In his motion, he 7 says he ordered all of Osama Bin Laden's assets to be frozen in 8 1994 so they couldn't be used for terrorist purposes. He is 9 said to have presided over a 1988 joint meeting of Arabian 10 ministers of interior and justice at which time the Convention 11 On Fighting Terrorists was adopted. This is on page 2 of his 12 motion. 13 Now, again, it's helpful to know, and I'll return to 14 this when we discuss the discretionary conduct exception, it's 15 helpful to kn