Following the United States government’s withdrawal from Afghanistan in 2021 and the Taliban’s takeover of the country, the Biden Administration announced it would freeze over $7 billion held in the New York Federal Reserve. This was part of a coordinated effort of the U.S. and European governments to block the Central Bank of Afghanistan from gaining access to nearly $9 billion of the country’s foreign currency reserves, purportedly to deny the Taliban these funds. The result, however, is collective punishment against Afghan civilians for the Taliban’s actions, as it contributed to the collapse of the Afghan economy and the humanitarian crisis.

Following the blocking of Afghan assets, a number of U.S. families who had secured judgments against the Taliban related to its role in the September 11th attacks and other attacks against U.S. citizens filed motions in federal court seeking to enforce those judgments using the frozen Afghan Central Bank funds. In February 2022, President Biden signed an executive order effectively allocating half of the $7.1 billion that the previous government of Afghanistan had placed in the New York Federal Reserve for humanitarian relief in Afghanistan and leaving half subject to litigation brought by some of the 9/11 families. 

The Center for Constitutional Rights represents a group of Afghan and Afghan-American civil society organizations that have filed a brief of amici curiae in these cases. Global Advocates for Afghanistan, Afghan Network for Advocacy and Resources (Project ANAR), the Afghan American Community Organization, and Afghans for a Better Tomorrow have asked the court to deny the motion to turn over assets belonging to the Afghan people to U.S.-based plaintiffs. While they support the plaintiffs’ effort to secure just compensation, to do so in this way would harm Afghans and not the Taliban, who would be using the people’s money to pay their debts; they would neither be directly compensating the U.S. victims nor facing the punitive effects of the judgments. 

Amici Afghan organizations argue in their brief that to allow the plaintiffs to seize the money in question would be not only unfair to the people of Afghanistan but also unlawful. While the plaintiffs’ argument tries to erase this distinction, U.S. courts have long differentiated between a state and its government; here, moreover, the Taliban is at best a de facto authority.

Further, because the state of Afghanistan—not the Taliban—owns the money, the longstanding legal principle of sovereign immunity protects the assets. Under both U.S. and federal law, sovereign states—and property held in state central banks—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 has never designated Afghanistan as such.  

Amici further argue that to turn the funds over to the plaintiffs would also elevate the status of the Taliban by implicitly recognizing it as the owner of sovereign assets, granting it a status that not only contravenes U.S. foreign policy but harms the amici organizations and the millions of other Afghans who are suffering through a humanitarian and human rights crisis under the Taliban. In fact, no country in the world recognizes the Taliban as the legitimate government of Afghanistan. 

Notably, the United States had filed a Statement of Interest in the litigation in February 2022 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.

Already, the U.S. government’s decision to freeze the Afghan assets has had serious and widespread effects. Food security levels have plunged at an alarming rate, leaving half the population facing acute hunger, including nine million in a state of emergency food insecurity—the highest number in the world. And 82 percent of families in Afghanistan have suffered from lost wages and income since August 2021, in addition to the impacts of a surge in the prices for main food commodities, cash flow shortages, and a liquidity disaster. These circumstances have forced families to sell their children and kidneys to repay debts or prevent the rest of their family members from starving. Humanitarian organizations have warned that by the second half of 2022, it is expected that nearly the entire population—97 percent—will be living “well below the poverty line,” with the International Rescue Committee making the dire prediction that, “[u]naddressed, the current humanitarian crisis could lead to more deaths than twenty years of war.”

Following the district court's decision that Afghan Central Bank funds cannot be used to satisfy judgments against the Taliban, the creditors appealed. The Center for Constitutional Rights filed briefs of amici curiae in two cases, Havlish v. the Taliban and Owens v. the Taliban, arguing that the Second Circuit Court of Appeals should uphold the district court decision, on October 6, 2023. The briefs were filed on behalf of the four organizations in the lower court amicus brief, plus Rawadari, the Transitional Justice Coordination Group, and the Women's Forum on Afghanistan.