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Saudi Immunity Affirmed
Seven Saudi Arabian defendants who may have played a critical role in the 9/11 terrorist attacks cannot be sued in the United States, according to the U.S. Court of Appeals for the Second Circuit. On August 14, 2008, the Second Circuit ruled that the Foreign Sovereign Immunities Act renders the Kingdom of Saudi Arabia, four Saudi princes, a Saudi banker, and the Saudi High Commission for Relief to Bosnia and Herzegovina immune from litigation in U.S. courts; In re Terrorist Attacks on September 11, 2001, 2008 U.S. App. LEXIS 17223.
While acknowledging that plaintiffs' allegations include a wealth of detail … that, if true, reflect close working arrangements between ostensible charities and terrorist networks, including al Qaeda, the court nevertheless held that defendants retain their immunity because they do not fall under any of the FSIA's statutory exceptions. Those exceptions include (1) designation as a State Sponsor of Terrorism by the U.S. government, (2) personal injury or death resulting from a foreign sovereign's tortious act, and (3) commercial activity.
The decision sets a precedent in the Second Circuit with its holding that an individual official of a foreign state acting in his official capacity is the agency or instrumentality of the state, and is thereby protected under the FSIA. Judges Jacobs, Cabranes and Vitaliano agreed with similar decisions in the 4th, 5th, 6th, 9th, and D.C. Circuits and rejected the narrow[] construction of FSIA immunity held in the 7th Circuit.
Also noteworthy is the court's argument that applying the torts exception in this case would violate an important procedural safeguard--the formal designation of a defendant as a terror sponsor. The court reasoned that to apply the Torts Exception where the conduct alleged amounts to terrorism within the meaning of the Terrorism Exception would evade and frustrate that key limitation on the Terrorism Exception. Additional
analysis of the decision is available at the New York Law Journal.
-- Christina E. Mason, legal assistant, Berliner, Corcoran & Rowe, LLP.
Wed, / / Embassy Law Link
