COURT OF APPEALS UPHOLDS LOWER COURT’S RELIANCE ON FOREIGN SOVEREIGN IMMUNITY EXCEPTION IN REJECTING DISMISSAL OF SEPTEMBER 11 SUIT AGAINST AFGHANISTAN
The United States Court of Appeals for the Second Circuit ruling of November 7th on the appeal by Afghanistan of the district court’s decision blocking dismissal of a 9/11 widower’s conspiracy and wrongful death action against the nation, concurred with the lower court’s findings. The suit had been brought by Judicial Watch, the government corruption watchdog, on behalf of “John Doe”, whose wife perished in the south tower of the World Trade Center on September 11, 2001. It was filed in the United States District Court for the District of Columbia in December of that year, naming Usama bin Laden and Afghanistan as defendants, and citing the noncommercial tort exception to the Foreign Sovereign Immunities Act (FSIA). A default judgment against Afghanistan followed in 2003, due to a lack of response on its part to the complaint. The next year the response came in the form of two motions, one to vacate the default judgment and a second seeking dismissal of the proceedings. The aforementioned adverse district court decision regarding Afghanistan was handed down in September 2008.
The appellate court agreed with the lower court’s application of the noncommercial tort sovereign immunity exception, which removes the shield against the jurisdiction of the American judiciary, and permits lawsuits against foreign countries for monetary compensation relative to damages in personal injury cases, when said injury is inflicted in the United States and brought about by the wrongful act of the foreign nation. The Court of Appeals also offered no dissent to the district court’s repudiation of the argument made by counsel for Afghanistan that accountability for terrorist activity be determined solely by placement on the State Department’s list of state supporters of terrorism on September llth, from which Afghanistan was absent. The district court maintained that to interpret the noncommercial tort exception in such a manner would have a ludicrous outcome. However, the higher court did remand the suit for jurisdictional discovery, due to factual issues dealing with attribution of the Taliban’s alleged part in the 9/11 attacks to
Afghanistan, and the question of whether the acts could be considered “discretionary” with regards to the noncommercial tort exception, according to section 1605(a)(5)(A).