Afghans Urge Court Not to Give Frozen Central Bank Assets to Sept. 11 Families

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Advocates for the Afghan radical accidental it would beryllium unjust and amerciable to usage $3.5 cardinal of Afghanistan’s assets to wage disconnected the Taliban’s judgement debts.

Huge crowds past  twelvemonth  extracurricular  the Azizi Bank main   subdivision  successful  Kabul, Afghanistan, aft  the Taliban swept the country.
Credit...Jim Huylebroek for The New York Times

Charlie Savage

May 10, 2022, 11:14 a.m. ET

WASHINGTON — Exiled Afghans are urging a national justice to cull the effort by relatives of victims of the Sept. 11 attacks to prehend $3.5 cardinal successful frozen Afghan cardinal slope funds to wage disconnected judgement debts owed by the Taliban, caller tribunal filings show.

In 3 filings, groups of Afghans argued that the frozen wealth belonged to the Afghan people, not the Taliban. They portrayed immoderate diversion of the funds arsenic unlawful and immoral astatine a clip erstwhile their country’s system is collapsing, causing a swelling humanitarian situation and exodus of migrants.

Lawyers for Naseer Faiq, a diplomat from the erstwhile Afghan authorities who continues to tally its ngo to the United Nations implicit the objections of the Taliban, wrote that helium “fully supports compensation for the victims of the Taliban.” But it was incorrect to instrumentality that compensation from assets that helium said belonged to the Afghan radical arsenic a whole, the lawyers said.

“That compensation cannot travel from the Afghan people, who are neither morally nor legally liable for the tragic events of Sept. 11, 2001, oregon the different acts of coercion committed by the Taliban,” the little continued. Many Afghans helped the United States combat the Taliban, it noted, arguing that the Afghan radical were victims of the Taliban, too.

The Afghans’ objections adhd to the dilemma facing the Federal District Court justice presiding implicit the analyzable litigation, Judge George B. Daniels of the Southern District of New York, who is inactive deciding whether the wealth tin beryllium utilized to wage disconnected the families of Sept. 11 victims. Magistrate Judge Sarah Netburn is assisting him successful that effort.

The high-stakes lawsuit arises from the bonzer spectacle of a sanctioned violent enactment that has taken implicit a state by subject unit but is not recognized arsenic its morganatic government. The lawsuit raises caller ineligible issues that interaction connected matters of overseas policy, planetary finance, counterterrorism and home politics.

Two plaintiffs from a radical that has taken the pb successful trying to prehend the funds — Fiona Havlish and Ellen Saracini, who mislaid their husbands successful the attacks — said successful a connection that “our hearts are with the Afghan radical who are suffering nether the Taliban rule.”

But, citing the Taliban’s “command implicit each aspects of beingness successful Afghanistan, including the cardinal bank,” they argued that “the tribunal should use the instrumentality arsenic Congress has written it to fulfill the judgments we and others person justly held against the Taliban for truthful galore years.”

The quality implicit the funds traces backmost to lawsuits filed years agone by relatives of radical killed successful the Sept. 11 attacks. The families sued groups similar Al Qaeda and the Taliban for their losses, winning by default erstwhile the defendants did not amusement up successful court. At the time, the judgments seemed symbolic since determination was nary mode to cod the money.

But erstwhile the authorities collapsed during the Taliban takeover successful August, its cardinal slope — known arsenic Da Afghanistan Bank, oregon DAB — had accumulated $7 cardinal deposited astatine the Federal Reserve of New York. Because it was nary longer wide who had lawful entree to those funds and sanctions prohibited fiscal dealings with the Taliban, the Federal Reserve suspended entree to DAB’s account.

In September, lawyers for a plaintiffs’ radical successful the Havlish lawsuit — astir 150 people, linked to 47 estates of the astir 3,000 radical killed successful the Sept. 11 attacks — persuaded a justice to nonstop a U.S. marshal to service the Federal Reserve of New York with a writ of execution to statesman seizing the Afghan funds to wage disconnected its judgement debt. That has acceptable disconnected a scramble by different plaintiff groups who demanded a stock successful the funds.

The Biden medication intervened, saying it wanted to survey the substance earlier informing the tribunal what the U.S. authorities thought its interests were. President Biden utilized an enforcement bid successful February to formally frost each the funds, and past acceptable speech fractional of them for the intent of aiding the Afghan people.

The apical State Department authoritative for Afghanistan, Tom West, later said successful an onstage interrogation that the medication believed the champion usage of that $3.5 cardinal would beryllium to recapitalize an autarkic cardinal slope and revive the country’s collapsing fiscal strategy alternatively than money humanitarian assistance similar nutrient and medicine.

Mr. Biden’s determination near the remaining $3.5 cardinal successful the cardinal bank’s relationship for the relatives of Sept. 11 victims to proceed pursuing successful court. Most — but not each — of the different plaintiff groups yet agreed to backmost the Havlish group’s assertion successful speech for what would beryllium a proportionally smaller stock of the proceeds, taxable to Judge Daniels’s approval.

But the justice has yet to find whether the funds tin beryllium utilized for that purpose. The medication did not instrumentality a wide presumption connected what helium should do.

Under a 1978 law, the assets of a overseas authorities held successful the United States are usually shielded by sovereign immunity. But Congress has carved retired a constrictive objection for definite coercion situations. A 2002 law says if idiosyncratic has obtained a judgement against a violent enactment for an enactment of terrorism, the blocked assets of “any bureau oregon instrumentality of that violent party” tin beryllium seized to wage disconnected the debt.

The 2002 instrumentality has been utilized to prehend assets of Iran and Cuba, which had been designated arsenic authorities sponsors of terrorism. The question is whether the Afghan cardinal slope qualifies nether the contiguous circumstances — successful which Afghanistan has not been deemed a authorities sponsor of terrorism, but a sanctioned violent radical has seized power and go the country’s de facto authorities without being legally recognized.

The Havlish plaintiffs person argued that the slope qualifies arsenic an bureau oregon instrumentality of the Taliban, and that turning implicit the assets would extract a measurement of justness “from the violent radical that nurtured, protected and supported Al Qaeda.”

But leaders of an Afghan civilian nine enactment argued that paying disconnected the Taliban’s debts with the funds of the Afghan radical would alternatively confer implicit designation of the Islamist group’s “violent takeover of their country” and “permit the Taliban to beryllium relieved of a judgement against them without bearing the punitive effects of outgo of the judgments.”

While Mr. Biden’s determination protected fractional of the Afghan bank’s assets from the Sept. 11 plaintiffs, the information that helium near the different fractional for them to proceed pursuing successful tribunal provoked crisp disapproval successful Afghanistan, arsenic good arsenic among immoderate different relatives of Sept. 11 victims, who objected to seizing the funds.

Unfreeze Afghanistan, an American radical that besides opposes giving the wealth to relatives of the Sept. 11 victims, alternatively advocated releasing the assets to the Afghan cardinal slope truthful that it could resume making the banking strategy and broader system relation — including done regular injections of hard currency.

The group’s brief suggested that the technocrats astatine the slope could marque currency infusions enactment to assistance the Afghan system commencement functioning again without the wealth being diverted to the Taliban, utilizing controls and transferring the funds successful tranches taxable to monitoring, with immoderate further transfers halted if that were to happen.

Mr. Faiq was much cautious, suggesting that the funds could yet beryllium utilized to recapitalize an autarkic cardinal slope for the state “whenever and nevertheless that tin beryllium done successful compliance with sanctions against the Taliban.”

Criticizing Mr. Biden’s determination to support lone fractional the bank’s assets from the lawsuits, a missive from 9 erstwhile pistillate Afghan leaders besides said, “We bash not recognize wherefore this extortion sought should not widen to the afloat $7 cardinal that person been frozen.”

They added: “These funds were enactment extracurricular the state for the sole intent of safeguarding them, and they are needed to enactment the Afghan currency. We would expect U.S. authorities, including the courts, to support the assets of our cardinal slope — not conscionable fractional but successful full.”

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