Following Taliban takeover of Afghanistan, 9/11 families sought assets that judge rules belongs to sovereign state to satisfy Taliban debts, but doing so would recognize Taliban as “government” of Afghanistan in violation of Constitution, judge says

February 22, 2023, New York – Yesterday, a federal district judge ruled that 9/11 families and other U.S. victims cannot claim billions of dollars from the Central Bank of Afghanistan to satisfy judgments against the Taliban. The decision is a victory for Afghan civil society groups, which argued that the $3.5 billion in blocked assets belong to the people of Afghanistan and should be used to alleviate the devastating humanitarian crisis there. 

The Afghan organizations believe the plaintiffs deserve compensation. But allowing them to seize these sovereign funds would, the organizations argued, harm Afghans, not the Taliban, who would be using the people’s money to pay off their debts. Judge Daniels agreed, saying that “[T]he Taliban – not the former Islamic Republic of Afghanistan or the Afghan people – must pay for the Taliban’s liability in the 9/11 Attacks.”

At issue are the remainder of the $7.1 billion that the government of Afghanistan deposited in the New York Federal Reserve before the Taliban’s August 2021 takeover. President Biden froze the funds after the takeover and later allocated half for providing relief in Afghanistan, leaving half subject to litigation. A group of 9/11 families that had won a 2011 default judgment against those responsible for the attacks filed a motion seeking $2 billion; U.S. victims of a 2016 attack in Afghanistan filed a motion seeking $138.4 million; and other victims also made legal claims on the funds.

While affirming that the judgment creditors are entitled to collect their judgments, Judge Daniels concluded that “neither the Taliban nor the Judgment Creditors are entitled to raid the coffers of the state of Afghanistan to pay the Taliban’s debts.” The various victims groups responded immediately to the ruling by filing motions for reconsideration and stays of the decision, pending appeal.

Judge George B. Daniels’ ruling, which upholds a magistrate judge’s August 2022 recommendation, denies these motions, largely adopting the arguments that Afghan organizations made in an amicus brief filed by the Center for Constitutional Rights. The organizations include Global Advocates for Afghanistan, Afghan Network for Advocacy and Resources, the Afghan-American Community Organization, and Afghans for a Better Tomorrow. 

“The people of Afghanistan have been forced, time and time again, to suffer the consequence of foreign invasion, occupation, and violence perpetrated by bad-faith actors,” said Sadaf Doost, co-founder of Global Advocates for Afghanistan and Bertha Justice Fellow at the Center for Constitutional Rights. “Judge Daniels’ decision prevents exacerbating an already grave and unprecedented human rights and humanitarian crisis, and offers a path forward for Afghan civilians to continue demanding access to what is rightfully theirs.” 

Judge Daniels ruled that the funds in question lie beyond the court’s jurisdiction. Because Afghanistan, rather than the Taliban, owns the money, the legal principle of sovereign immunity applies. Under both U.S. and international law, states enjoy immunity from court rulings in other countries, with few exceptions, and assets in central banks enjoy heightened protections. U.S. law, for example, allows a carveout for state sponsors of terrorism, but the U.S. government does not so designate Afghanistan.  

He also concurred with the Afghan groups’ assessment that allowing seizure would elevate the Taliban to that of the government in Afghanistan. It would implicitly recognize the group as the owner of sovereign assets, granting them a status that not only contravenes U.S. foreign policy but harms the amici organizations and the millions of other Afghans suffering under the Taliban. In fact, as Judge Daniels points out, no country in the world recognizes the Taliban as the government of Afghanistan. 

Notably, the U.S. government filed a Statement of Interest that made arguments similar to those in the Afghan civil society brief – but stopped short of taking a position on the motions.

“As the people of Afghanistan continue to endure a profound humanitarian and human rights crisis, with little attention or support from the international community, Judge Daniels’ careful decision forestalls a further injustice and provides some hope that the people of Afghanistan will soon have access to resources they so desperately need and deserve,” said Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights, which represents the Afghan amici organizations. “The 9/11 families should be able to enforce their judgments and secure some justice — against the Taliban, with the Taliban’s funds.”

The Afghan amici organizations have led advocacy, human rights, and humanitarian efforts in response to the Taliban takeover. As Afghans and Afghan-Americans, they have a direct and deep interest in how the funds are used. They believe the money should be used to alleviate the humanitarian emergency in a country where U.S. and European sanctions are compounding suffering caused by decades of war, misrule, and occupation. 

Amicus briefs opposing seizure of the funds were also filed by Women’s Forum on Afghanistan, Unfreeze Afghanistan, and ​​Open Society Justice Initiative submitted on behalf of Naseer A. Faiq, Chargé d’Affaires of the Permanent Mission of the Islamic Republic of Afghanistan to the United Nations. The organization 9/11 Families for Peaceful Tomorrows also takes the position that the full $7.1 billion belongs to the Afghan people. 

For more information, visit the Center for Constitutional Rights case page.