September 11 and 1998 embassy bombings survivors cannot seize Afghan bank assets, US court rules

Court says Da Afghanistan Bank shielded under Foreign Sovereign Immunities Act

The World Trade Centre in New York burns after being hit by planes in New York on September 11, 2001. Reuters

Advocates for survivors and victims of the September 11, 2001 attacks and the August 7, 1998, bombings of two US embassies in East Africa cannot seize $3.5 billion of Afghanistan central bank assets to address the Taliban's role in the attacks, a divided federal appeals court has ruled.

The 2nd US Circuit Court of Appeals in Manhattan said Da Afghanistan Bank was protected under the Foreign Sovereign Immunities Act from having to give up assets blocked at the Federal Reserve Bank of New York, because it qualified as an agency or instrumentality of Afghanistan.

Campaigners also failed to show the bank was liable as a Taliban agency or instrumentality under the federal Terrorism Risk Insurance Act, although that law abrogated immunity that the Afghan bank had under the immunities act.

The 2-1 decision is a defeat for groups of victims' families and survivors who sued many defendants including Al Qaeda over the attacks, and sought half of the $7 billion of DAB funds that former president Joe Biden froze in August 2021.

Some sought to attach the assets, while others obtained default judgments after the defendants failed to show up in court.

Circuit Judge Jose Cabranes said that as of August 15, 2021, the day Kabul fell and the assets were blocked, there was no evidence DAB was aiding or controlled by the Taliban. Only later did the Taliban install new leadership at the bank, he said.

Lawyers for many of the plaintiffs had no immediate comment.

Circuit Judge Richard Sullivan dissented, saying the decision defeated the Terrorism Risk Insurance Act's objective of making "any assets available" to victims.

He also said Afghanistan no longer qualified as a foreign state under the immunity act, and thus the Afghan bank's funds were not covered.

Two lower court judges had ruled against the plaintiffs in 2023.

The US government considers the Taliban specially designated global terrorists. Mr Biden ordered that the other $3.5 billion of frozen bank funds be set aside for the Afghan people.

Nearly 3,000 people died on September 11, 2001, when planes were flown into New York's World Trade Centre, the Pentagon in northern Virginia and a Pennsylvania field.

Two hundred and twenty-four people died on August 7, 1998, when lorry bombs exploded in front of the US embassies in Nairobi, Kenya and Dar es Salaam, Tanzania.