Court opinion on ATS and TVPA claims related to 9/11 material support allegations

In re: TERRORIST ATTACKS ON SEPTEMBER 11, 2001., 2012 WL 257568 (2012) in part due to the failure of States to achieve anything like consensus on the definition of terrorism.” Jd. at 97. But it did so largely because there has been some disagreement among States on how to distinguish “terrorists” from “freedom fighters,” and because the district court had rested its holding on the Restatement (Third) of the Foreign Relations Law of the United States instead of primary sources of international law. Jd. at 98-103, 107-08. Those concerns are not present here. Any disagreement about how to characterize attacks by domestic attacks within a country by national liberation movements is inapplicable to al-Qaeda’s international terrorist attacks on innocent civilians in the United States. See Almog, 471 F. Supp. 2d at 281; Bahlul, 2011 U.S. CMCR LEXIS 3 at *128. And the primary sources of international law discussed above reveal a customary norm of international law that directly covers the acts of international terrorism alleged in these cases -- transnational attacks, *134 and the provision of material support for such attacks, on innocent civilians intended to influence the conduct of a government or population by intimidation or coercion. That norm is no “less definite [in] content ... than the historical paradigms familiar when [the ATS] was enacted.” Sosa, 532 U.S. at 732; cf Abdullahi, 562 F.3d at 184 (although there are varying definitions of piracy, it is actionable under the ATS because “ ‘whatever may be the diversity by definitions,’ ” there was a consensus “ ‘that robbery or forcible depredations upon the sea ... is piracy’ ”) (quoting United States v. Smith, 18 U.S. (5 Wheat) 153, 159-61 (1820)). Finally, international terrorism is clearly “capable of impairing international peace and security,” Mores, 414 F.3d at 249, a factor this court has found to be “important” in demonstrating that the international law norm is of “ ‘mutual’ concern to States,” and thus actionable under the ATS, Abdullahi, 562 F.3d at 185. The U.N. Security Council Resolutions specifically state as much, see supra at Point n.b.2, and the United States invaded Afghanistan because the Taliban regime had supported al-Qaeda prior to the September 11th Attacks. See Hamdan v. Rumsfeld, 548 U.S. 557 567-68 (2006) (discussing Authorization for Use of Military Force, 115 Stat. 224 (2001)). *135 For these reasons, there is a customary international norm against the commission of and provision of material support for acts of international terrorism that is sufficiently universal, obligatory, definite, and of mutual concern to States to give rise to a claim under the ATS. Thus, plaintiffs’ allegations that defendants purposefully provided financing and other forms of material support to al-Qaeda to further its terrorist mission to attack the United States and its nationals state a claim under the ATS, without regard to whether they also state a claim for aiding and abetting the September 11th Attacks. The district court therefore erred as a matter of law in dismissing the ATS claims on the ground that they failed to allege that defendants “ourposefully aided and abetted, conspired with, or materially supported al Qaida mm the commission of an act of terrorism involving the hijacking of a commercial airplane.” SPA233 (Terrorist Attacks V) (emphasis added). IU. The District Court Improperly Dismissed the Torture Victim Protection Act Claims Plaintiffs also brought claims under the Torture Victim Protection Act (““TVPA”), which provides a cause of action for victims of torture or extrajudicial killings perpetrated by “individual[s]” acting “under actual or apparent authority, or color of law, of any foreign nation.” 28 U.S.C. § 1350 *136 note. The district court dismissed plaintiffs’ TVPA claims against defendants Al Rajhi Bank, Saudi American Bank, and National Commercial Bank on the ground that corporate entities are not “individuals” who may be sued under the TVPA. SPA52 (Terrorist Attacks I) (citing Arndt v. UBS AG, 342 F. Supp. 2d 132, 141 (E.D.N.Y. 2004)). This conclusion is incorrect, and the issue is likely soon to be definitively resolved by the U.S. Supreme Court, which is considering a pending case presenting this issue. As an initial matter, this Court has already indicated that an organizational defendant can be sued under the TVPA in Khulumani v. Barclay Nat’l Bank. Ltd., 504 F.3d 254 (2d Cir. 2007). In Khulumani, the plaintiffs asserted aiding and abetting claims under the TVPA against a bank for its participation in the torture and extrajudicial killings committed by the South African apartheid regime. /d. at 259. This Court dismissed the TVPA claims on the ground that the plaintiffs failed to allege that the bank had acted under color of law, but it did not question whether the bank was a proper defendant under the TVPA in the first place. Jd. at 260. Based on Khulumani, the district court later held that a “corporation or other entity may ... be subject to liability under the TVPA for aiding and *137 abetting” a principal violator. SPA210 (Terrorist Attacks IV); accord SPA234 (Terrorist Attacks V). More importantly, the Supreme Court recently granted certiorari in Mohamad v. Rajoub, 132 8. Ct. 454 (2011), which will resolve a circuit split over whether the TVPA permits actions against non-natural persons. Compare Sinaltrainal v. WESTLAW HOUSE_OVERSIGHT_023403