Havlish v. Taliban / In re 9/11 Attacks - Frozen Afghan Assets (Amicus)

At a Glance

Date Filed: 

April 25, 2022

Current Status 

On April 20, 2022, the Center for Constitutional Rights filed an amicus brief on behalf of four Afghan civil society organizations opposing efforts to recover $3.5 billion in sovereign Afghan Central Bank assets held in the U.S., belonging to the people of Afghanistan, to satisfy the plaintiffs' judgments against the Taliban. On August 26, 2022, the magistrate judge issued a report and recommendation finding that the funds are beyond the jurisdiction of the court and cannot be used to satisfy judgments against the Taliban.

Client(s) 

Amici Afghan Civil Society Organizations are:
Global Advocates for Afghanistan
Afghan Network for Advocacy and Resources (Project ANAR)
Afghans for a Better Tomorrow
Afghan American Community Organization

Case Description 

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, 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 an amicus brief in the case. 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 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.”

Case Timeline

August 26, 2022
Magistrate judge issues report and recommendation finding that funds cannot be used to satisfy judgments against Taliban
August 26, 2022
Magistrate judge issues report and recommendation finding that funds cannot be used to satisfy judgments against Taliban
April 27, 2022
Court accepts amicus brief
April 27, 2022
Court accepts amicus brief

Magistrate Judge Netburn granted the motions of the Afghan Civil Society Organizations, Unfreeze Afghanistan, and Naseer Faiq to submit amicus briefs, while denying the motion of September 11th Families for Peaceful Tomorrows.

Plaintiffs-creditors replied to the Ashton plaintiffs' opposition to their turnover motions.

April 20, 2022
Center for Constitutional Rights files brief of amicus curiae on behalf of Afghan civil society organizations alongside briefs from September 11th Families for Peaceful Tomorrows and Unfreeze Afghanistan
April 20, 2022
Center for Constitutional Rights files brief of amicus curiae on behalf of Afghan civil society organizations alongside briefs from September 11th Families for Peaceful Tomorrows and Unfreeze Afghanistan
Our amicus brief opposes the plaintiffs-creditors’ efforts to recover sovereign assets belonging to the people of Afghanistan, namely through the Afghan Central Bank, as means of satisfying their judgments against the Taliban. September 11th Families for Peaceful Tomorrows and Unfreeze Afghanistan also file amicus briefs supporting this argument.
March 20, 2022
Plaintiffs-creditors move for partial turnover of assets
February 11, 2022
United States files Statement of Interest
February 11, 2022
United States files Statement of Interest
September 16, 2021
Writ of Execution
September 16, 2021
Writ of Execution
The Writ of Execution, which was issued by U.S. Marshal Ralph Sozio on September 13, 2021, is filed on September 16.