Foreign Relations & International Law

Magistrate Judge Recommends Court Reject Efforts to Turn Over Frozen Afghan Funds to 9/11 Families

Tia Sewell
Tuesday, August 30, 2022, 9:36 AM

In her recommendation, Judge Netburn argued that plaintiffs’ motions in these cases should be denied for three reasons.

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On Aug. 26, a U.S. magistrate judge in the Southern District of New York recommended that a federal district court judge reject the plaintiffs’ effort to use assets from Afghanistan’s central bank to compensate the families of Sept. 11 victims. In her 43-page report and recommendation, Magistrate Judge Sarah Netburn noted that the Taliban’s de facto control over Afghanistan has opened questions as to whether funds in the country’s central bank—approximately $3.5 billion of which lie in the Federal Reserve Bank of New York—could be turned over to relatives of U.S. victims of terrorism: "The Taliban's victims have fought for years for justice, accountability, and compensation. They are entitled to no less," Netburn wrote. "But the law limits what compensation the [c]ourt may authorize and those limits put the [central bank]'s assets beyond its authority."

In her recommendation, Judge Netburn argued that plaintiffs’ motions in these cases should be denied for three reasons: First, she asserted that Afghanistan’s central bank is immune to the jurisdiction of this court—and U.S. federal courts generally. Second, setting aside the issue of jurisdiction, she stated that the court cannot determine that the Terrorism Risk Insurance Act of 2002 (TRIA) authorizes the turnover of funds to Sept. 11 victims’ families because doing so would imply recognizing the Taliban as Afghanistan’s official government—which is something only the U.S. president can do. And third, under TRIA, the U.S. government’s authority to mobilize assets of Afghanistan’s central bank would require that the Taliban and the bank have a consensual relationship, which Judge Netburn argued is not the case given that the Taliban seized the bank by force.

Back in February, Lawfare Senior Editor Scott Anderson explained how these assets have become the subject of litigation and detailed a White House proposal to transfer half of the funds into a third-party trust to ensure that they could be used for the benefit of the Afghan people.

You can read the report here or below.

Tia Sewell is a former associate editor of Lawfare. She studied international relations and economics at Stanford University and is now a master’s student in international security at Sciences Po in Paris.

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