Court should reject 9/11 families and other victims' bid to access funds for judgments against Taliban

October 11, New York – Afghan and Afghan-American civil society organizations are urging the Second Circuit Court of Appeals to uphold a federal district ruling that $3.5 billion in blocked assets cannot be used to satisfy 9/11 judgments and other cases against the Taliban. Issued in February, that ruling was a victory for the organizations, which argued that the money in Afghanistan’s Central Bank is a state asset for the people of Afghanistan and should be used to alleviate the unprecedented humanitarian crisis there, not pay off the Taliban’s debts for the grievous harms it caused.

“In this difficult moment for the people of Afghanistan, any decision to seize Afghanistan’s assets under the guise of holding the Taliban responsible would not only be misguided, but would implicitly recognize the Taliban – a non-state actor – as the legitimate government of Afghanistan, which is systemically implementing gender apartheid in Afghanistan,” said Shaharzad Akbar, human rights activist and Executive Director of Rawadari. “While all victims and survivors deserve truth, justice and reparations, this claim to Afghanistan’s sovereign assets is not the path to justice, but rather, an act that will alienate millions of Afghans who share the desire for justice and accountability for the gross violations committed by the Taliban.” 

At issue are the remainder of the $7.1 billion belonging to Afghanistan central bank, Da Afghanistan Bank (DAB), 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 took measures to facilitate access of half for humanitarian relief for the people of Afghanistan, with the remainder blocked. Multiple groups of 9/11 families that had won default judgments against those responsible for the attacks, including the Taliban, as well as U.S. victims of a 2016 attack on private contractors in Afghanistan filed motions for turnover of those assets for partial settlement of their judgments against the Taliban. Separately, victims of the 1998 bombings of the U.S. Embassies in Tanzania and Kenya asked a second district court judge to authorize their “attachment” of the same assets to satisfy any judgments they secure against the Taliban; that judge also denied that request based on a finding that the assets of Afghanistan’s central bank enjoy immunity for seizure under a U.S. statute, the Foreign Sovereign Immunities Act.

The organizations – Transititional Justice Coordination Group (TJCG), Rawadari, Women’s Forum on Afghanistan, Global Advocates for Afghanistan, Afghan Network for Advocacy and Resources (Project ANAR), the Afghan-American Community Organization, and Afghans for a Better Tomorrow – believe the plaintiffs should receive compensation. But allowing them to seize these sovereign funds would harm Afghans, not the Taliban, the organizations say in an amicus brief filed on their behalf by the Center for Constitutional Rights.

Further, the organizations say, allowing the plaintiffs access to the sovereign funds would relieve the Taliban of both a significant debt and the punitive effect of the judgments. It would also grant the Taliban a level of official recognition – as owner of sovereign assets of Afghanistan held in the state’s central bank – that contravenes fundamental constitutional principles and U.S. foreign policy. Indeed, no country in the world recognizes the Taliban as the legitimate government of Afghanistan.

“The district court correctly found that the $3.5 billion of frozen central bank assets are sovereign funds of Afghanistan. The situation remains dangerous and difficult for civilians in Afghanistan and these Afghan and Afghan-American groups have provided important context on why the funds are needed for the Afghan people for the appeals court to consider,” said Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights, which represents the amici. “The 9/11 families and other victims should be able to enforce their judgments — against the Taliban, with the Taliban’s funds. It would be both unlawful and profoundly unjust to turnover assets belonging to the Afghan people to satisfy judgments against a group that continues to suppress the rights of girls and women, minorities and other groups, while spreading fear across the country.”

Advocates at the amici organizations have committed many years to documenting abuses against, and securing the rights of, Afghans. Some have carried out this work after being forced into exile; others face ongoing risk of persecution and death from the Taliban. They have a direct and deep interest in ensuring that the remaining $3.5 billion of Afghanistan’s assets held in the United States are used to prevent further deterioration of the economic, humanitarian, and human rights situation for the Afghan people. 

“Victims’ relatives have the right to remedy –  the TJCG stands with this right,” said Ehsan Qaane of the Transitional Justice Coordination Group. “The perpetrators of the heinous 9/11 crimes and their partners and facilitators must be held  accountable. But regrettably, justice was abandoned in false “peace talks,” and revenge was chosen over justice from the beginning, with the United States making peace with the Taliban, without accountability, and imposing that on the people of Afghanistan. This has significantly contributed to the (re)victimisation of more than 30 million Afghans, and the assets at  issue in the ongoing litigation belongs to them, not the Taliban.”

As Afghanistan endures one of the world’s worst humanitarian disasters, the Taliban shows no concern for the needs of the people. Rather, they are “ruling Afghanistan through fear and repressive policies aimed at suppressing communities, and women in particular,” according to a February report by a U.N. Special Rapporteur. Families have been forced to sell their organs and children for food, while others have sedated their hungry children with tranquilizers to make them sleep. The UNHCR reported that 28.3 million Afghans, two-thirds of the country, are in need of humanitarian and protection assistance.

Amicus briefs opposing seizure of the funds to pay judgments against the Taliban and urging the Court of Appeals to maintain the funds in the DAB central bank were also filed by 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; Unfreeze Afghanistan; and Terry Kay Rockefeller, a member of 9/11 Families for Peaceful Tomorrows, in her individual capacity. 

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