Order Code RL34726
In Re Terrorist Attacks on September 11, 2001:
Dismissals of Claims Against Saudi Defendants
Under the Foreign Sovereign Immunities Act
October 29, 2008
Anna C. Henning
American Law Division
In Re Terrorist Attacks on September 11, 2001:
Dismissals of Claims Against Saudi Defendants Under
the Foreign Sovereign Immunities Act (FSIA)
Practical and legal hurdles, including the difficulty of locating hidden al Qaeda
members and the infeasibility of enforcing judgments in terrorism cases, hinder
victims’ attempts to establish liability in U.S. courts against, and recover financially
from, those they argue are directly responsible for the September 11 terrorist attacks.
Instead, victims have sued numerous individuals and entities with only indirect ties
to the attacks, including defendants who allegedly provided monetary support to al
Qaeda prior to September 11, 2001. Within the consolidated case In Re Terrorist
Attacks of September 11, 2001, one such group of defendants was the Kingdom of
Saudi Arabia, several Saudi princes, a Saudi banker, and a Saudi charity. Plaintiffs
argued that these Saudi defendants funded groups that, in turn, assisted the attackers.
A threshold question in In Re Terrorist Attacks was whether U.S. courts have
the power to try these Saudi defendants. In August 2008, the U.S. Court of Appeals
for the Second Circuit affirmed dismissals of all claims against the Saudi defendants,
holding that U.S. courts lack jurisdiction over the claims. Specifically, the court of
appeals held that in this case, U.S. courts lack: 1) subject matter jurisdiction over the
Kingdom of Saudi Arabia, because the Kingdom is entitled to immunity under the
Foreign Sovereign Immunities Act (the FSIA) and no statutory exception to
immunity applies; 2) subject matter jurisdiction over the Saudi charity and Saudi
princes acting in their official capacities, because they are “agents or
instrumentalities” of the Kingdom and thus, under the FSIA, are entitled to immunity
to the same extent as the Kingdom itself; and 3) personal jurisdiction over Saudi
princes sued in their personal capacities, because the princes had insufficient
interactions with the forum to satisfy the “minimum contacts” standard for personal
jurisdiction under the Fifth Amendment due process clause.
In response to congressional inquiries, this report summarizes the FSIA and
jurisdiction in cases against foreign defendants and analyzes the recent court of
Overview of the Foreign Sovereign Immunities Act . . . . . . . . . . . . . . . . . . . 1
Jurisdiction in Cases Against Foreign Defendants . . . . . . . . . . . . . . . . . . . . 3
Subject matter jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Personal jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
U.S. Court of Appeals Decision in In Re Terrorist Attacks
on September 11, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Charity and princes as “agents and instrumentalities”
of the Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Relevant FSIA Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Princes sued in their personal capacities . . . . . . . . . . . . . . . . . . . . . . . . 9
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
In Re Terrorist Attacks on
September 11, 2001: Dismissals of Claims
Against Saudi Defendants Under the
Foreign Sovereign Immunities Act (FSIA)
Numerous legal and practical obstacles, such as the infeasibility of locating al
Qaeda operatives, stand in the way of victims seeking to establish liability in U.S.
courts against, and recover damages from, the terrorists who planned and carried out
the September 11, 2001, attacks. Victims, however, have sued numerous individuals
and groups with only indirect ties to the attackers, including defendants who
allegedly provided monetary support to al Qaeda prior to September 11, 2001.
In Re Terrorist Attacks on September 11, 2001, is a consolidated case that
includes, among other claims, claims against the Kingdom of Saudi Arabia, several
Saudi princes, a Saudi banker, and a Saudi charity.1 Plaintiffs argued that these Saudi
defendants played a “critical role” in the September 11 attacks by giving money to
Muslim groups, which in turn funded al Qaeda.2 However, in August 2008, the U.S.
Court of Appeals for the Second Circuit affirmed dismissals of the claims against the
Saudi defendants.3 This report examines the legal bases for those dismissals.
Overview of the Foreign Sovereign Immunities Act
The Foreign Sovereign Immunities Act (the FSIA) applies to all foreign states
and their “agents and instrumentalities.”4 Immunity for sovereign nations against
suits in U.S. courts has a long history and is based on the principle that conflicts with
foreign nations are more effectively addressed through diplomatic efforts than
through judicial proceedings.5 Congress passed the FSIA to codify these longstanding principles and to clarify limitations on the scope of immunity that had
emerged in international practice.6
In Re Terrorist Attacks on September 11, 2001, 538 F.3d 71 (2d Cir. 2008).
Id. at 76.
Id. at 75-76.
Foreign Sovereign Immunities Act of 1976, P.L. 94-583; codified at 28 U.S.C. §1602 et
For more on the history of foreign sovereign immunity and the FSIA, see CRS Report
RL31258, Suits Against Terrorist States by Victims of Terrorism, by Jennifer K Elsea. See
also Elizabeth L. Barh. Is the Gavel Mightier Than the Sword? Fighting Terrorism in
American Courts. 15 Geo. Mason L. Rev. 1115, 1125 (2008).
See Permanent Mission of India to United Nations v. City of New York, 127 S.Ct. 2352,
The FSIA contains both a general, presumptive rule against litigation in U.S.
courts and a number of exceptions permitting suits. As a general rule, foreign states,
together with their agents and instrumentalities, are “immune from the jurisdiction
of the courts of the United States and from the states.”7 However, the FSIA
authorizes jurisdiction over foreign nations in several exceptions.8 Namely, a foreign
state is not immune from U.S. courts’ jurisdiction where: 1) the foreign state has
waived its immunity;9 2) the claim is a specific type of admiralty claim;10 3) the claim
involves specified commercial activities;11 4) the claim implicates property rights
connected with the United States;12 5) the claim arises from tortious conduct that
occurred in the United States;13 6) the claim is made pursuant to an arbitration
agreement;14 or 7) the claim seeks money damages against a designated state sponsor
of terrorism for injuries arising from a terrorist act.15
The exception for designated state sponsors of terrorism removes immunity for
designated “state sponsor[s] of terrorism” and their “official[s], employee[s], and
agent[s]” in suits involving “personal injury or death that was caused by an act of
torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of
material support or resources ... for such an act.”16 However, the exception applies
2356 (discussing Congress’s intention to codify an understanding of immunity as restricted
to public acts and to codify the real property exception existing in international practice at
28 U.S.C. §1604.
28 U.S.C. §1605.
28 U.S.C. §1605(a).
28 U.S.C. §1605(b).
The commercial activities exception applies if a foreign state: 1) conducts the relevant
commercial activity in the U.S.; 2) performs an act in the U.S. related to the commercial
activity in question; or 3) conducts commercial activity that causes a “direct effect” in the
U.S. 28 U.S.C. §1605(a)(2).
The property rights exception applies if: 1) rights in property have been taken in violation
of international law and the property at issue (or property exchanged for the property at
issue) is located in the U.S.; 2) the property at issue (or property exchanged for the property
at issue) is owned or operated by the foreign state or its agent or instrumentality and the
foreign state or its agent or instrumentality is engaged in commercial activity in the U.S.;
or 3) “the property rights in property in the United States acquired by succession or gift or
rights in immovable property situated in the United States are in issue.” 28 U.S.C.
28 U.S.C. §1605(a)(5).
28 U.S.C. §1605(a)(6).
28 U.S.C. §1605(a)(7).
Id. The terrorist state exception has served as the basis for significant litigation since
Congress added the exception to the FSIA in 1996. The exception has also spurred legal
disputes over attachment of assets. As a result, it has been amended several times, most
recently by Section 1083 of the National Defense Authorization Act for FY2008, which
added provisions regarding attachment of foreign assets to facilitate satisfaction of money
only to countries designated by the U.S. Department of State as state sponsors of
terrorism.17 This list currently includes Cuba, Iran, Sudan, and Syria.18
Jurisdiction in Cases Against Foreign Defendants
Before asserting jurisdiction to accept a case, a federal court19 must establish its
authority over the dispute involved and the parties to the litigation. In other words,
courts must assert both subject matter jurisdiction over each claim and personal
jurisdiction over each defendant in a case. For cases involving foreign defendants,
the analyses for subject matter and personal jurisdiction differ according to whether
the FSIA applies.
Subject matter jurisdiction. For claims by U.S. plaintiffs against foreign
non-state defendants to whom the FSIA does not apply — for example, claims
against individuals or corporations — federal law authorizes subject matter
jurisdiction as long as the “amount in controversy” exceeds $75,000.20
In contrast, for claims against foreign states and their instrumentalities, the FSIA
is a jurisdictional gatekeeper. The FSIA denies subject matter jurisdiction over claims
against foreign defendants entitled to immunity.21 Conversely, the FSIA authorizes
subject matter jurisdiction over claims in which a foreign state would be entitled to
immunity under the FSIA but for the application of an exception.22
Personal jurisdiction. Personal jurisdiction is the second threshold hurdle
for assertion of judicial authority in cases involving foreign defendants. Whereas
subject matter jurisdiction governs courts’ power over particular claims, personal
jurisdiction governs courts’ power over particular defendants. Thus, even if a court
damages awards. P.L. 110-181. For information on suits against terrorist states, generally,
see CRS Report RL31258, Suits Against Terrorist States by Victims of Terrorism, by
Jennifer K Elsea.
28 U.S.C. §1605(a)(7)(A).
22 CFR §126.1(d).
Although state courts occasionally hear cases involving foreign defendants, cases
involving foreign states or foreign officials are usually removed to federal courts under 28
U.S.C. §1441(d). For this reason, this discussion focuses on jurisdiction in federal courts.
28 U.S.C. §1332(a).
28 U.S.C. §1330(a).
See Republic of Austria v. Altmann, 541 U.S. 677, 691 (2004) (“‘At the threshold of every
action in a district court against a foreign state, ... the court must satisfy itself that one of the
[the FSIA] exceptions applies,’ as ‘subject-matter jurisdiction in any such action depends’
on that application” (quoting Verlinden v. Cent. Bank of Nigeria, 461 U.S. 480, 493-94
establishes jurisdiction over the subject matter of a claim, it cannot exercise its
authority over a defendant for whom it lacks personal jurisdiction.23
Personal jurisdiction requires both statutory authority and satisfaction of Fifth
Amendment due process standards. As with subject matter jurisdiction, statutory
authority for personal jurisdiction over foreign defendants follows one of two distinct
routes according to the FSIA’s application. If the defendant is a foreign state or its
agent or instrumentality, personal jurisdiction is statutorily authorized under the FSIA
if subject matter jurisdiction is established.24 Alternatively, for a defendant who is not
a foreign state or its agent or instrumentality, the ordinary procedure for obtaining
statutory authority for personal jurisdiction applies; typically, a federal court must
find statutory authority for personal jurisdiction in the laws of the state in which it
However, constitutional limits apply regardless of a statutory basis for personal
jurisdiction. Under the due process clause, personal jurisdiction is constitutional if:
1) defendants have had “certain minimum contacts with” the judicial forum
attempting to assert jurisdiction, and 2) asserting such jurisdiction “does not offend
traditional notions of fair play and substantial justice.”26 The type and quantity of
contacts necessary to constitute “minimum contacts” differ according to the type of
personal jurisdiction — general or specific — that applies. General jurisdiction,
which allows a court to exercise jurisdiction over a foreign defendant for any claim,
does not require contacts related to the specific claim in the case but instead requires
“continuous and systematic” contacts with a forum.27 Conversely, specific
jurisdiction, which limits a court’s jurisdiction over a defendant to claims in a
particular case, involves no “continuous and systematic” requirement; instead, it
requires that a defendant’s contacts with the forum “relate to” or “arise out of” the
claim at issue in the case.28
In rem jurisdiction is an alternative jurisdictional basis permitting suits in some admiralty
cases and in cases in involving immovable property. In rem jurisdiction does not authorize
judicial power over particular defendants; rather, it provides jurisdiction over property
located in the United States. As a practical matter, in rem jurisdiction is unlikely to serve
as a basis for a defendant to which the FSIA applies, because the FSIA’s exceptions
effectively cover in rem jurisdiction. For this reason, in Permanent Mission of India to the
United Nations v. City of New York, a case involving real property located in the United
States, the Supreme Court essentially ignored any potential analysis of in rem jurisdiction
and focused instead on the interpretation of the property exception under the FSIA. 127
S.Ct. 2352 (2007).
28 U.S.C. §§1330(b), 1608.
Fed. R. Civ. P. 4(k). However, most U.S. states’ so-called “long-arm” statutes extend
personal jurisdiction to the extent authorized under the U.S. Constitution. Thus, in many
cases, identical statutory and constitutional analyses apply to personal jurisdiction questions.
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotations omitted).
Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 416 (1984) (internal
quotation marks omitted).
Id. at 414 n.8.
U.S. Court of Appeals Decision in In Re Terrorist Attacks on
September 11, 2001
In August 2008, the U.S. Court of Appeals for the Second Circuit affirmed
dismissals of claims against the Kingdom of Saudi Arabia, a Saudi charity, Saudi
princes, and a Saudi banker in In Re Terrorist Attacks on September 11, 2001.29
Plaintiffs in the case are victims of the September 11 terrorist attacks. They alleged
that the Saudi defendants had supported al Qaeda’s financial backers prior to the
attacks and were therefore civilly liable for plaintiffs’ injuries. However, the court of
appeals did not reach the merits of these allegations.
Instead, the court held that U.S. courts lack jurisdiction over the claims against
the Saudi defendants.30 The legal bases for this holding were lack of subject matter
jurisdiction under the FSIA and lack of personal jurisdiction. The most significant
aspects of the court of appeals’ opinion were interpretations of the FSIA, namely: 1)
its interpretation of “agent or instrumentality” under the FSIA as extending both to
the Saudi charity and to individuals sued in their official capacities, and 2) its
interpretation of the commercial activities and torts exceptions under the FSIA as
having a narrower scope than plaintiffs had advocated.
The court’s holding facilitates a relatively broad scope of foreign sovereign
immunity, and therefore, a relatively narrow scope of subject matter jurisdiction over
foreign officials and government-controlled entities. This decision is generally in line
with other circuit court rulings. In addition, language within the opinion reflected the
court’s deference to the FSIA’s underlying emphasis on resolving disputes with
foreign actors through diplomatic rather than judicial channels.
Background. In Re Terrorist Attacks is a case consolidated for pre-trial
purposes in the U.S. District Court for the Southern District of New York.31 The
Second Circuit Court of Appeals opinion reviewed dismissals of only a subset of the
claims at issue in the case.
Plaintiffs in In Re Terrorist Attacks are individuals and businesses injured by
the September 11 terrorist attacks. They brought claims based on state and federal
tort law and various federal laws, including the Torture Victim Protection Act, for
injuries suffered as a result of the attacks.32
The dismissed claims fall into four categories: 1) claims against the Kingdom
of Saudi Arabia; 2) claims against four Saudi princes in their official capacities; 3)
claims against the Saudi High Commission for Relief to Bosnia and Herzegovina (the
SHC), a charitable organization operated in connection with the Saudi government;
538 F.3d 71.
Id. at 75-76.
Id. at 78.
Id. at 75.
and 4) claims against a banker and Saudi princes in their personal capacities.33
Underlying all of the claims was the allegation that defendants had “played a critical
role in the September 11 attacks by funding Muslim charities that, in turn, funded al
The court affirmed dismissals of the first three sets of claims for lack of subject
matter jurisdiction under the FSIA. Because the FSIA precludes courts from asserting
jurisdiction over claims against foreign states, one of the FSIA exceptions must apply
before a U.S. court may assert jurisdiction over the Kingdom of Saudi Arabia or any
of its “agencies or instrumentalities.” As discussed below, the Second Circuit held
that none of the FSIA exceptions applied.
The fourth set of claims (those brought against princes in their personal
capacities) fell outside of the scope of the FSIA. Nonetheless, as discussed below, the
court dismissed those claims for lack of personal jurisdiction.
Charity and princes as “agents and instrumentalities” of the
Kingdom. Because a foreign state’s “agent or instrumentality” is entitled to the
same immunity to which its state itself is entitled under the FSIA, a key threshold
question was whether the SHC and the princes sued in their official capacities
qualified as agents or instrumentalities under the FSIA. The FSIA defines “agency
or instrumentality” as any entity which is: 1) a “separate legal person, corporate or
otherwise”; 2) “an organ of a foreign state or political subdivision thereof, or a
majority of whose shares or other ownership interest is owned by a foreign state or
political subdivision thereof”; and 3) not a U.S. citizen or created under the laws of
a third country.35
The SHC “charity”. Whether the SHC was an agent or instrumentality turned
on whether it was an “organ” of the Kingdom of Saudi Arabia.36 The court applied
a multi-factor test, derived from a previous Second Circuit decision and from
decisions from other circuits, to determine whether SHC was such an “organ.”37
Specifically, the court applied the following five criteria: “1) whether the foreign
state created the entity for a national purpose; 2) whether the foreign state actively
supervises the entity, 3) whether the foreign state requires the hiring of public
employees and pays their salaries, 4) whether the entity holds exclusive rights to
some right in the [foreign] country; and 5) how the entity is treated under foreign
state law.”38 Emphasizing that the Saudi government had formed SHC and paid its
Id. at 76-78.
In Re Terrorist Attacks, 538 F.3d at 76.
28 U.S.C. §1603(b).
See definition, 28 U.S.C. §1603(b).
In Re Terrorist Attacks, 538 F.3d at 85-86 (citing Filler v. Hanvit Bank, 378 F.3d 213, 217
(2d Cir. 2004)).
employees, the court held that the SHC was an organ, and thus was an “agent or
instrumentality,” of the Kingdom.39
Officials. The plaintiffs sued four Saudi princes for actions taken within their
official capacities.40 All four princes hold positions of power in the SHC; three of the
princes are members of the country’s “Supreme Council of Islamic Affairs,” the body
responsible for monitoring and approving “Islamic charitable giving both within and
outside the Kingdom”; and the fourth prince is the SHC’s president, in addition to his
roles as a provincial governor and crown prince.41
Although several other federal courts of appeals have ruled on the extension of
foreign sovereign immunity to foreign officials, treatment of officials under the FSIA
was a question of first impression for the Second Circuit.42 Raising a number of
textual arguments and referencing the FSIA’s legislative history, the court held that
individuals acting within their official capacities are indeed “agents or
instrumentalities” of their states and are therefore entitled to immunity under the
FSIA to the same extent as their states.43 The court noted that at the time the FSIA
was enacted, Congress expressed a desire to codify common law principles, one of
which was that immunity extends to a state’s officials.44 The court also emphasized
the potential erosion of immunity for foreign states if immunity extended only to
government actions distinct from the actions of officials as individuals, noting that
“the state cannot act except through individuals.”45
The Second Circuit Court of Appeals’ holding is consistent with the conclusions
of five of the six other federal courts of appeals that have considered whether an
individual may be protected as an agent or instrumentality.46 Only the Court of
Appeals for the Seventh Circuit reached the opposite conclusion. In Enahoro v.
Abubakar, the Seventh Circuit rejected a military junta general’s immunity claim.47
Focusing on the text of the FSIA, the Enahoro court held that the phrase “separate
The four princes named were Prince Salman bin Abdulaziz al-Saud, Prince Sultan bin
Abdulaziz al Saud, Prince Naif bin Abdulaziz al-Saud, and Prince Turki al-Faisal bin
Abdulaziz al Saud. Id. at 77.
Id. at 80-81.
Id. at 81-85.
Id. at 81-83.
Id. at 84.
The Fourth, Fifth, Sixth, Ninth, and the D.C. Circuits have held that officials acting within
their official capacities are “agents or instrumentalities” of their countries for the purpose
of the FSIA. See Velasco v. Gov’t of Indonesia, 370 F.3d 392, 399 (4th Cir. 2004); Keller
v. Cent. Bank of Nigeria, 277 F.3d 811, 815 (6th Cir. 2002); Byrd v. Corporacion Forestal
y Industrial de Olancho S.A., 182 F.3d 380, 388 (5th Cir. 1999); Jungquist v. Sheikh Sultan
Bin Khalifa Al Nahyan, 115 F.3d 1020, 1027 (D.C. Cir. 1997); Chuidian v. Philippine Nat’l
Bank, 912 F.2d 1095, 1101-03 (9th Cir. 1990).
408 F.3d 877 (7th Cir. 2005).
legal person, corporate or otherwise” within the “agency or instrumentality”
definition in the statute, together with a lack of statutory references to individuals,
suggested a lack of congressional intent to extend immunity to individuals.48
Specifically, it held that if Congress had intended “separate legal person” to
encompass individuals, it would have used more natural language, rather than a
phrase often intended in law to refer to corporations.49 In In Re Terrorist Attacks, the
Second Circuit characterized the Seventh Circuit as an “outlier” on this issue.50
Relevant FSIA Exceptions. After holding that the FSIA applied not only to
the Kingdom of Saudi Arabia but also to Saudi officials and the SHC as an agency
or instrumentality of the Kingdom, the court of appeals next examined whether any
FSIA exception applied. First, the court held that the terrorist state exception did not
apply because the U.S. State Department has not designated the Kingdom of Saudi
Arabia as a state sponsor of terrorism.51 Next, although the court found two other
exceptions — the commercial activity and torts exceptions — “potentially
relevant,”52 neither exception applied to the Saudi defendants.
Commercial activities exception. To support their argument that the
commercial activities exception should apply to the Saudi defendants, the In Re
Terrorist Attacks plaintiffs characterized defendants’ charitable contributions to
Muslim groups as a form of money laundering.53 The court rejected this
characterization as incompatible with the Supreme Court’s interpretation of the
commercial activities exception.
The FSIA defines “commercial activity” as “a regular course of commercial
conduct or a particular commercial transaction or act.”54 The court noted the
“circularity” of this definition and relied upon the U.S. Supreme Court’s definition
of “commercial activity”(for the context of the FSIA exception) as “the type of
actions by which a private party engages in ‘trade and traffic or commerce.’”55 Under
this definition, the court noted that the appropriate focus in determining whether an
action constitutes “commercial activity” is on an action’s nature rather than its
purpose. With this framework, the court upheld the district court’s finding that
defendants’ “charitable contributions” fell outside the scope of the commercial
Id. at 881-82.
Id. (“Given that the phrase ‘corporate or otherwise’ follows on the heels of ‘separate legal
person,’ we are convinced that the latter phrase refers to a legal fiction — a business entity
which is a legal person. If Congress meant to include individuals acting in the official
capacity in the scope of the the FSIA, it would have done so in clear and unmistakable
In Re Terrorist Attacks, 538 F.3d at 81.
Id. at 75.
Id. at 80.
Id. at 90-91.
28 U.S.C. §1603(d).
In Re Terrorist Attacks, 538 F.3d at 91 (citing Republic of Argentina v. Weltover, 504 U.S.
activities exception by reason of their non-commercial nature, regardless of the
contributions’ alleged money laundering purpose.56
Torts exception. Finally, the court rejected the torts exception as inapplicable
to claims against the Saudi defendants. Specifically, the court noted that Congress’s
purpose in enacting the torts exception was to create liability for incidents, such as
traffic accidents, that occur in the United States.57 Furthermore, the court was
concerned about the effect that an expanded torts exception would have on the other
FSIA exceptions. It emphasized that if the exception were expanded to include all
conduct conceivably characterized as tortious, the torts exception would “vitiate” the
terrorist state exception’s limitation to designated terrorist states.58
Princes sued in their personal capacities. For claims made against a
Saudi banker and against several Saudi princes for actions taken in their personal
capacities, subject matter jurisdiction was not precluded by the FSIA. However, the
court upheld the district court’s determination that it lacked personal jurisdiction over
the Saudi defendants sued in their personal capacities.59
Specifically, the court concurred with the district court’s finding that the princes
sued in their personal capacities lacked sufficient contacts with the forum to permit
personal jurisdiction under the constitutional “minimum contacts” standard. Plaintiffs
argued that the minimum contacts test was satisfied because the defendants had
purposefully directed activity at the judicial forum by supporting the attacks. The
court rejected this argument, acknowledging that it had been a successful argument
in cases where defendants were “primary participants” in the terrorist acts but holding
that the banker and princes’ activities were too attenuated from the actual attacks to
satisfy due process requirements.60 Similarly, the court rejected the plaintiff’s
argument that potential foreseeability of the terrorist attacks was a sufficient basis for
establishing minimum contacts.61 It noted that foreseeability alone is insufficient to
pass constitutional muster for personal jurisdiction; instead, the constitutional
standard requires “intentional” conduct, “expressly aimed” at residents in the
Because it determined that the contributions fell outside of the scope of “commercial
activities,” the court did not decide whether money laundering or other criminal acts could
constitute “commercial activities” under the FSIA. Id. at n.17.
Id. at 87.
Id. at 88.
Id. at 96
Id. at 93-95.
Id. at 94-95.
In In Re Terrorist Attacks, the U.S. Court of Appeals for the Second Circuit
joined several other federal courts of appeals which have interpreted the FSIA’s
“agent or instrumentality” definition as encompassing foreign individuals sued in
their official capacities. The court also adopted narrow interpretations of the
commercial activities and torts exceptions under the FSIA. Those threshold
interpretations undergirded the court’s legal bases for dismissing claims against
various Saudi defendants for lack of jurisdiction. Thus, the court of appeals’ decision
restrains efforts by September 11 victims and other plaintiffs seeking recovery in
U.S. courts against foreign officials and government-controlled entities like the Saudi
Despite its impact on the plaintiffs, the court’s opinion emphasized that a lack
of judicial jurisdiction under the FSIA should not necessarily exculpate foreign
nations (or their agents and instrumentalities) from suffering consequences as a result
of supporting heinous acts. The court noted that “deterrence (or punishment) does not
begin and end with civil litigation brought by individual plaintiffs. Our government
has other means at its disposal — sanctions, trade embargos, diplomacy, military
action — to achieve its foreign policy goals....”63 In this way, the In Re Terrorist
Attacks opinion appears to correspond with congressional intent in enacting the
Id. at 90.