U.S. victims seek money to satisfy judgments against Taliban, but those are sovereign funds and Taliban is not recognized government, judge says

August 29, 2022, New York – A federal judge found that 9/11 families and other U.S. victims cannot recover billions of dollars from the Central Bank of Afghanistan to satisfy judgments against the Taliban. The report and recommendation, handed down by Magistrate Judge Sarah Netburn on Friday afternoon, is a victory for Afghan civil society groups, which argued in an amicus brief filed by the Center for Constitutional Rights that the $3.5 billion in blocked assets belong to the people of Afghanistan and should be used to alleviate the devastating humanitarian crisis there. 

At issue are $7.1 billion that the previous government of Afghanistan placed in the New York Federal Reserve. President Biden froze the funds after the Taliban takeover in August 2021, and, in February, he signed an executive order effectively allocating half for humanitarian relief in Afghanistan, leaving half subject to litigation. A group of 9/11 families that won a 2011 default judgment against those responsible for the attacks had filed a motion arguing that more than $2 billion should be turned over to them. American victims of a 2016 attack in Afghanistan had filed a separate motion seeking $138.4 million, and other victims made similar claims against the remainder of funds.

Judge Netburn’s report, which a district judge will review, would deny the plaintiffs’ motions and largely adopts the arguments of the Afghan organizations – Global Advocates for Afghanistan, Afghan Network for Advocacy and Resources, the Afghan-American Community Organization, and Afghans for a Better Tomorrow. 

“The people of Afghanistan have endured decades of catastrophic suffering at the hands of foreign actors and occupiers,” said Sadaf Doost, co-founder of Global Advocates for Afghanistan. “Allowing the $3.5 billion held in the Central Bank of Afghanistan to satisfy judgments against the Taliban would reward the Taliban for their illegitimate ruling of Afghanistan by implicitly recognizing the Central Bank as an official Taliban agency or instrumentality – such a decision would not only drive the Afghan people into further suffering, but result in a grave, unconstitutional error.” 

The Afghan groups’ brief points out that the target of the 9/11 lawsuits is the Taliban, not the state of Afghanistan, and that U.S. courts have long differentiated a state from its rulers. While the amici organizations believe the plaintiffs deserve compensation, to allow them to seize these particular funds would harm Afghans, not the Taliban, who would be using the people’s money to pay off their debts. Judge Netburn agreed with the Afghan groups, finding that if “innocent parties” like the Central Bank were forced to cover the judgments it would allow “a non-state terrorist group like the Taliban [to] drain an Afghan treasury built on international donations and Afghans’ savings to reduce its own liability.” 

Because Afghanistan, rather than the Taliban, owns the money, the legal principle of sovereign immunity applies. Under both U.S. and international law, states enjoy immunity from court rulings in other countries, with few exceptions. U.S. law, for example, allows a carveout for state sponsors of terrorism, but the U.S. government does not so designate Afghanistan. The funds, Judge Netburn said, lie beyond the court’s jurisdiction. 

She also agreed with the Afghan groups’ assessment that allowing seizure would elevate the Taliban. It would implicitly recognize them as the owner of sovereign assets, granting them a status that not only contravenes U.S. foreign policy but harms the amici organizations and the millions of other Afghans suffering under the Taliban. In fact, no country in the world recognizes the Taliban as the legitimate government of Afghanistan. 

Notably, the U.S. government filed a Statement of Interest that made arguments similar to those in the Afghan civil society brief – but stopped short of taking a position on whether the motions should be granted.

“One year after the Taliban takeover, the people of Afghanistan continue to endure a profound humanitarian and human rights crisis. Judge Netburn’s thorough report forestalls the further injustice of allowing the Taliban to evade liability by raiding the peoples’ coffer, and provides some hope that the people of Afghanistan will have access to the resources they so desperately need,” said Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights, which represents the amici. “The 9/11 families should be able to enforce their judgments and secure some justice — against the Taliban, with the Taliban’s funds.”

The Afghan organizations opposing seizure of the funds have led advocacy, human rights, and humanitarian efforts in response to the Taliban takeover. As Afghans and Afghan-Americans, they have a direct and deep interest in the outcome of this case. They believe the money should be used to alleviate the humanitarian emergency in a country where U.S. and European sanctions are compounding suffering caused by decades of war, misrule, and occupation. 

In addition to the amicus brief filed by the Center for Constitutional Rights, amicus briefs were filed by Women’s Forum on Afghanistan, Unfreeze Afghanistan, and ​​Open Society Justice Initiative submitted on behalf of Naseer A. Faiq, Chargé d’ Affaires of the Permanent Mission of the Islamic Republic Afghanistan to the United Nations. The organization 9/11 Families for Peaceful Tomorrows also takes the position that the full $7.1 billion belongs to the Afghan people. 

For more information, visit the Center for Constitutional Rights case page.