Afghanistan Can’t Toss 9/11 Liability Claim

     MANHATTAN (CN) – A widower whose wife died in the Sept. 11 terrorist attacks can advance conspiracy and wrongful-death claims against Afghanistan, the 2nd Circuit ruled.



     The unsigned decision makes no finding as to Afghanistan’s alleged liability for the attacks.
     “Let us be clear: we make no judgment as to whether the allegations in the complaint are sufficient to state a claim or even to provide jurisdiction,” the 12-page decision states. “Indeed, the District Court had ordered further discovery to provide for fact finding with regard to whether the alleged acts were attributable to Afghanistan and whether they were discretionary.
     “What we decide today is simply that limited discovery to determine whether jurisdiction exists should proceed.”
     The decision stems from a January 2002 lawsuit filed anonymously in Washington, D.C., charging Afghanistan with conspiracy and wrongful death. The plaintiff claimed to have subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA).
     After Afghanistan failed to respond, the court entered a default judgment against it the next year.
     “In February 2004, Afghanistan moved to vacate the entry of default and to dismiss the complaint against it for lack of subject matter jurisdiction,” the Manhattan-based federal appeals court summarized. “It argued that claims like Doe’s, predicated on terrorist acts, can only be brought under the terrorism exception, § 1605A. That exception is not available against Afghanistan, all agree, because the sate Department has not designated Afghanistan as a state sponsor of terrorism.”
     Cuba, Iran, Sudan and Syria are the only states with such a designation.
     But U.S. District Richard Roberts in D.C. refused to vacate the suit four years later on the grounds that the noncommercial tort exception applied.
     Afghanistan appealed, arguing that FSIA cases allowed under the noncommercial tort exception must also fulfill the terrorism exception.
     The case was later transferred to the 2nd Circuit, which affirmed Roberts’ ruling on Monday.
     The three-judge panel rejected Afghanistan’s proposed “narrow” reading of the statute.
     “Specifically, there is no doubt that the terrorist acts giving rise to the harms at issue – aircraft sabotage, extrajudicial killing, and conspiracy to support the same – are all torts. Additionally, the complaint alleged nondiscretionary acts by employees of the foreign state within the scope of their employment,” the 12-page decision states. “Therefore, at the pleading stage, the claim appears to fit within the noncommercial tort exception.”
     The judges add later: “All this is to say, Afghanistan’s proposed narrow reading of the noncommercial tort exception would not so much be a reading of the statue as it would be a decision that the terrorism exception amounts to a partial repeal by implication of the noncommercial tort exception.”
     Such a reading would have barred a wrongful death suit against the Chilean government for an alleged car bombing in Washington, D.C., or against the Libyan government for the bombing of the Pan Am 103 over Lockerbie, Scotland, according to the panel.
     Judges Amalya Lyle Kearse, Guido Calabresi and Richard C. Wesley remanded the case to the Southern District of New York.

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