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Children in hospital in Afghanistan

Severely malnourished Afghan children fill the therapeutic feeding wards at the Indira Ghandi Institute of Child Health, a state hospital in Kabul, Afghanistan, on January 18, 2022. (Photo: Scott Peterson/Getty Images)

US Judge Says Billions in Seized Central Bank Funds Belong to Afghan People

The judge's report, said a Center for Constitutional Rights attorney, "provides some hope that the people of Afghanistan will have access to the resources they so desperately need."

Jessica Corbett

A leading U.S.-based rights group on Monday welcomed a federal judge's conclusion that 9/11 families should not be allowed to claim billions of dollars from Afghanistan's central bank to pay off legal judgments against the Taliban.

"As the daughter of a 9/11 victim, it makes me sick to think that Afghan victims of atrocity are being deprived of necessary resources during a time of great need."

U.S. Magistrate Judge Sarah Netburn's Friday afternoon report "is a victory for Afghan civil society groups," said the Center for Constitutional Rights (CCR), which filed an amicus brief for the organizations arguing that the blocked funds should be used to alleviate Afghanistan's humanitarian crisis.

Netburn's report followed months of mounting criticism of U.S. President Joe Biden's handling of the Da Afghanistan Bank (DAB) assets. After the Taliban retook control of the country last year amid the U.S. withdrawal, Biden refused to release about $7 billion in funds at the Federal Reserve Bank of New York.

In February, Biden took executive action to earmark half the funds for future Afghan aid that would sidestep the Taliban government, but it was never made clear how or when such relief would be given. The other half of the money was to be made available to victims who have won legal judgments against the Taliban related to 9/11 and other terrorist attacks.

Netburn said she recommended against the $3.5 billion being used to pay such claims for three reasons.

"First, DAB is immune to this court's jurisdiction. It is the central bank of a foreign state. This means it is entitled to immunity from jurisdiction and its property is entitled to immunity from execution," she wrote. The Terrorism Risk Insurance Act (TRIA) "may overcome DAB's execution immunity, but not its jurisdictional immunity."

"Second, even if there was jurisdiction, the court is constitutionally restrained from making the finding that TRIA requires to authorize the turnover," Netburn continued. "Only the president may recognize the government of a foreign sovereign nation. Courts may not do so directly or by implication. Authorizing the parties to satisfy the Taliban's judgments with Afghanistan's central bank funds unavoidably acknowledges the Taliban as the Afghan government."

"Third, even if that were not the case, TRIA § 201(a) requires an agency relationship in order to execute on an entity's assets," the judge added. "This relationship requires a manifestation of consent that is not present where the Taliban has seized DAB by force."

The New York Times reported Saturday that "a federal district court judge for the Southern District of New York, George B. Daniels, is supervising the litigation and has the authority to issue a ruling that disagrees with Judge Netburn's legal analysis. And if he instead rules in accordance with her recommendation, the victims' families could file an appeal."

While Fiona Havlish, the named plaintiff in a group of 9/11 families trying to seize the funds, said she disagrees with Netburn's perspective, Leila Murphy, a steering committee member for September 11th Families for Peaceful Tomorrows, praised the judge's report.

"As the daughter of a 9/11 victim, it makes me sick to think that Afghan victims of atrocity are being deprived of necessary resources during a time of great need," Murphy said in a statement. "I am relieved that the judge has taken a step toward the only legally and morally correct approach—making the entire $7 billion available to Afghans to deal with the economic crisis we helped to cause."

CRR senior staff attorney Katherine Gallagher on Monday similarly praised Netburn's report.

"One year after the Taliban takeover, the people of Afghanistan continue to endure a profound humanitarian and human rights crisis," she said. "Judge Netburn's thorough report forestalls the further injustice of allowing the Taliban to evade liability by raiding the peoples' coffer, and provides some hope that the people of Afghanistan will have access to the resources they so desperately need."

Gallagher added that "the 9/11 families should be able to enforce their judgments and secure some justice—against the Taliban, with the Taliban's funds."

Sadaf Doost, co-founder of Global Advocates for Afghanistan—one of the groups represented by CCR—highlighted that the Afghan people "have endured decades of catastrophic suffering at the hands of foreign actors and occupiers," and echoed one of the judge's primary conclusions.

"Allowing the $3.5 billion held in the central bank of Afghanistan to satisfy judgments against the Taliban," Doost warned, "would reward the Taliban for their illegitimate ruling of Afghanistan by implicitly recognizing the central bank as an official Taliban agency or instrumentality—such a decision would not only drive the Afghan people into further suffering, but result in a grave, unconstitutional error."

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