9/11 Victim’s Lawsuit Moves Forward; Court Rules Against Afghanistan – OpEd
By Jim Kouri
In a decision that promises to give an opportunity to a 9/11 family survivor to obtain justice, on Monday the United States Court of Appeals for the Second Circuit ruled in favor of a Judicial Watch client and 9/11 widower “John Doe” in his “conspiracy and wrongful death” lawsuit against the Islamic State of Afghanistan (John Doe v. Osama bin Laden, et. al., Islamic Emirate of Afghanistan, also known as the Islamic State of Afghanistan (No. 09-4958-cv)).
The court records and all documents in the case use the “John Doe” identity in order to protect him and his family from any kind of terrorist retribution.
The State of Afghanistan filed an appeal after the district court refused to dismiss the complaint. According to the appellate court ruling issued November 7, 2011:
Defendant-Appellant Afghanistan appeals from an order of the United States District Court for the District of Columbia denying without prejudice its motion to vacate entry of default and to dismiss the complaint…we agree with the district court that Plaintiff-Appellee John Doe’s suit is properly considered under the noncommercial tort exception to foreign sovereign immunity provided by 28 U.S.C. § 1605(a)(5).
Because factual issues persist with respect to whether the Taliban’s actions in allegedly agreeing to facilitate the attacks of September 11, 2001, are properly considered to be the action of Afghanistan and as to whether any such actions were “discretionary” under § 1605(a)(5)(A), we remand the case for jurisdictional discovery…
According to officials at Judicial Watch, the “noncommercial tort exception” to the Foreign Sovereign Immunities Act provides that a foreign state shall not be immune from liability in any case “in which money damages are sought against a foreign state for personal injury…occurring in the United States and caused by the tortious act or omission of that foreign state….”
Lawyers for Afghanistan argued that a country can only be held accountable for terrorist acts if the country is on the State Department’s list of terrorist supporting countries, an interpretation of the “noncommercial tort exception” the district court said would lead to an “absurd” result Congress could not have intended.
Sadly, even after overwhelming evidence of being a sanctuary for the terrorist group al-Qaeda, Afghanistan and its ruling Taliban party had not been placed on the U.S. State Department’s list of state sponsors of terrorism until after the 9/11 attacks.
“We are pleased the court was not persuaded by the State of Afghanistan’s ridiculous interpretation of the law. The State of Afghanistan is certainly responsible for the attacks of 9/11 and the murders of nearly 3,000 innocents, including the wife of our client. After nearly 10 years, we look forward to finally being able to make the case for our client in court. It is beyond belief, frankly, that Afghanistan has yet to be held accountable in court for 9/11,” stated Judicial Watch President Tom Fitton.
Fitton’s organization has built a reputation as a tough non-partisan group that investigates government and political corruption and prosecutes malefactors using the civil courts.
According to Judicial Watch, “John Doe’s” wife was attending a meeting on an upper floor of the south tower of the World Trade Center when United Airlines flight 175 struck the tower several floors below. “Jane Doe” was 47 years old at the time of her death and was survived by her husband and their two children.
In December 2001, Judicial Watch filed a civil lawsuit on behalf of “John Doe” with the U.S. District Court for the District of Columbia against Bin Laden and the State of Afghanistan “for conspiracy and wrongful death under the noncommercial tort exception of the Foreign Sovereign Immunities Act (FSIA).”
In 2003, the court clerk filed a default against Afghanistan for failing to respond to the lawsuit. Afghanistan eventually did respond in 2004, moving to vacate the default and filing a motion to dismiss the lawsuit. In September 2008, the U.S. District Court “denied without prejudice” Afghanistan’s motion to dismiss, leading to the appeal to the United States Court of Appeals for the Second Circuit.