Can Class Action Lawsuits Help Fight Terrorism?

The War Against Terror is being fought on many fronts, with military actions only the tip of a complicated, international iceberg. In economics, education, politics, culture and, of course, law, efforts are constantly being made to help prevent anything like 9/11 from happening again.

It does serious harm to U.S. counterterrorism policies.

Earlier this month, the U.S. Supreme Court was asked to reinstate claims against a wide range of individuals and entities formally removed from a class action lawsuit over the 9/11 attacks. The suit, brought by the families and estates of the victims, was launched in the wake of the attacks and seeks compensation from worldwide banks, charities, and non-profits alleged to have financed the hijackers, al-Qaida, and bin Laden, who are also named in the complaint. The lawsuit was brought under the Alien Tort Statute and the Torture Victim Protection Act, and also seeks compensation from a construction company founded by bin Laden’s father, as well as other bin Laden family members. In April, however, a Second Circuit ruling saw more than 60 of the defendants removed from the suit, with a New York judge noting that in many cases there was no express connection between the 9/11 attacks and the organizations or individuals. That decision is now being appealed.

Anti-terrorism claims cannot establish liability based upon aiding-and-abetting, according to the Second Circuit ruling. Other defendants were dismissed on personal jurisdiction grounds, or because, as humanitarian organizations, they enjoyed foreign immunity. This, plaintiffs argue in their petition, could negatively impact counterterrorism operations.

“Each conclusion is inconsistent with the redress and deterrence of material support of terrorism that congress designed the ATA to accomplish, conflicts with the holdings of another court of appeals and other federal courts, and does serious harm to U.S. counterterrorism policies,” the petition said. In particular, plaintiffs take issue with the Second Circuit’s assertion that personal jurisdiction requires showing a “specific intent” to hurt the United States, and that even knowingly contributing to al-Qaida using front groups and affiliated organizations does not necessarily grant a basis for jurisdiction and culpability.

A Seventh Circuit ruling, highlighted by the petition to the Supreme Court, previously found that the standard for causation should be relaxed in terrorism cases because the acts by their nature result from multiple causes.

“The Second Circuit’s rule precludes recovery even when such ‘front groups’ effectively operate as part of the principle terrorist groups targeting the United States,” the petitioners said. “The activities addressed by the complaint are precisely those that the ATA was designed to address and that have been the focus of executive branch counterterrorism efforts.”

The Second Circuit, though, has found all but twelve defendants fail to qualify. The twelve that remain are thought to have provided direct support to organizations and individuals who carried out the attacks, rather than simply giving financial support. The twelve are all ‘charitable organization’ managers who allegedly provided financial support directly to al-Qaida.

In appealing against the removal of so many defendants, plaintiffs seem to be arguing that more inclusive legal action is a far more effective weapon in the fight against terrorism. Can the threat of legal action against the supporters of organizations who commit terror acts become a deterrent? It’s unclear how enforceable requests for compensation would be if defendants are routinely operating abroad. At the same time, banks that are known to launder, transfer or raise funds to supply al-Qaida and terrorism must be held accountable and cannot assume they are beyond U.S authorities while simultaneously giving de facto support to anti-U.S. action.

It’s a complicated issue, made more emotional by the strong feelings of those who suffered in the 9/11 attacks. However the Supreme Court rules the case is certainly far from over.

The lawsuit is In re: Terrorist Attacks on September 11th, case number 13-318, in the U.S. Supreme Court.