Terrorist Attacks on September 11, 2001 v. Al Qaida
122 F. Supp. 3d 181
S.D.N.Y.2015Background
- Plaintiffs sued dozens of defendants alleging they funded and otherwise supported al Qaeda and the Sept. 11 attacks; Dr. Abdul Rahman Al‑Swailem was named as former President of the Saudi Joint Relief Committee (SJRC) and the Saudi Red Crescent Society (SRC).
- Al‑Swailem served as president of both Saudi instrumentalities from 1998/1999 until 2005; plaintiffs allege he used those offices (e.g., appointing Wa’el Julaidan) to channel support to al Qaeda.
- The SJRC and SRC were previously held to be Saudi instrumentalities entitled to FSIA immunity by the Second Circuit. The Second Circuit remanded claims against individual Charity Officials (including Al‑Swailem) for jurisdictional discovery.
- Saudi Arabia (through its Ambassador) requested that the court grant Al‑Swailem common‑law sovereign immunity and declared his challenged acts were official. Al‑Swailem moved to dismiss for lack of subject matter jurisdiction on that basis.
- Plaintiffs opposed, arguing (1) the State Department should first be asked for a suggestion of immunity, (2) immunity is not available for officials of entities performing private‑like activities, and (3) jus cogens/illegal conduct defeats immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court may decide common‑law immunity absent a State Department suggestion | Saudi must first seek a suggestion of immunity from State Dept.; otherwise motion premature | Courts may decide immunity claims when State Dept. has not acted; foreign sovereign or its rep may present claim directly to court | Court: district court may decide immunity without Executive input here because State Dept. has not signaled and neither party sought suggestion of immunity |
| Whether Al‑Swailem is entitled to conduct‑based (official‑act) immunity for acts as SJRC/SRC president | Acts involved terror and are not protected; hiring Julaidan was personal and unlawful | Allegations concern acts taken in official capacity leading instrumentalities that are immune; Saudi declared acts were official | Court: conduct‑based immunity applies because alleged acts were official‑capacity acts for immune Saudi instrumentalities |
| Whether allegations of unlawful or jus cogens conduct strip immunity | Jus cogens violations (terrorism, murder) remove immunity | Second Circuit does not recognize a jus cogens exception to common‑law immunity for official‑capacity acts | Court: allegations of unlawful conduct do not overcome conduct‑based sovereign immunity under controlling precedent |
| Whether court should defer immunity decision until personal‑jurisdiction discovery completes | Plaintiffs say immunity decision is premature before jurisdictional discovery | Sovereign immunity is immunity from suit and may be decided before discovery; subject‑matter jurisdiction is nonwaivable | Court: may resolve immunity now; grants dismissal for lack of subject‑matter jurisdiction |
Key Cases Cited
- Samantar v. Yousuf, 560 U.S. 305 (U.S. 2010) (FSIA does not govern individual foreign officials; common‑law immunity remains available)
- Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009) (former official entitled to immunity for acts performed in official capacity)
- Republic of Mexico v. Hoffman, 324 U.S. 30 (U.S. 1945) (courts may determine immunity in absence of State Department recognition)
- Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (U.S. 2007) (courts may choose threshold grounds, including immunity, before other proceedings)
- In re Terrorist Attacks on Sept. 11, 2001 (Saudi Joint Relief Committee), 714 F.3d 109 (2d Cir. 2013) (SJRC and SRC are instrumentalities entitled to FSIA immunity)
- Rosenberg v. Lashkar‑e‑Taiba, 980 F. Supp. 2d 336 (E.D.N.Y. 2013) (State Department statements recommending conduct‑based immunity for former officials acting in office)