Monday, January 14, 2013
In Re Terrorist Attacks on September 11, 2001: Dismissals of Claims Against Saudi Defendants Under the Foreign Sovereign Immunities Act (FSIA)
Jennifer K. Elsea
Practical and legal hurdles, including the difficulty of locating hidden al Qaeda members and the infeasibility of enforcing judgments in terrorism cases, hinder victims’ attempts to establish liability in U.S. courts against, and recover financially from, those they argue are directly responsible for the September 11 terrorist attacks. Instead, victims have sued numerous individuals and entities with only indirect ties to the attacks, including defendants who allegedly provided monetary support to al Qaeda prior to September 11, 2001. Within the consolidated case In Re Terrorist Attacks of September 11, 2001, one such group of defendants was the Kingdom of Saudi Arabia, several Saudi princes, a Saudi banker, and a Saudi charity. Plaintiffs argued that these Saudi defendants funded groups that, in turn, assisted the attackers.
A threshold question in In Re Terrorist Attacks was whether U.S. courts have the power to try these Saudi defendants. In August 2008, the U.S. Court of Appeals for the Second Circuit affirmed dismissals of all claims against the Saudi defendants, holding that U.S. courts lack jurisdiction over the claims. Specifically, the court of appeals held that in this case, U.S. courts lack: 1) subject matter jurisdiction over the Kingdom of Saudi Arabia, because the Kingdom is entitled to immunity under the Foreign Sovereign Immunities Act (the FSIA) and no statutory exception to immunity applies; 2) subject matter jurisdiction over the Saudi charity and Saudi princes acting in their official capacities, because they are “agents or instrumentalities” of the Kingdom and thus, under the FSIA, are entitled to immunity to the same extent as the Kingdom itself; and 3) personal jurisdiction over Saudi princes sued in their personal capacities, because the princes had insufficient interactions with the forum to satisfy the “minimum contacts” standard for personal jurisdiction under the Fifth Amendment due process clause.
This report summarizes the FSIA and jurisdiction in cases against foreign defendants and analyzes the recent court of appeals decision.
Date of Report: December 20, 2012
Number of Pages: 13
Order Number: RL34726
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Posted by Penny Hill Press, Inc. at Monday, January 14, 2013