2d Circuit rejects 9/11 case against Saudi officials

Representatives of the victims of the September 11 attacks sued members of the Saudi kingdom and leadership, including the Kingdom of Saudi Arabia, four Saudi princes, a Saudi banker and the Saudi High Commission for Relief to Bosnia and Herzegovina, claiming that they helped funnel money and logistical support to al Qaeda. They theory of the lawsuit is that "there would not be a trigger to pull or a bomb to blow up without the resources to acquire such tools of terrorism and to bankroll the persons who actually commit the violence.” Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1021 (7th Cir. 2002). The case is dismissed under the Foreign Sovereign Immunities Act.

The case is In Re the Terrorists Attacks on September 11, 2001, decided on August 14. The FSIA protects foreign governments from lawsuits in the United States. “Under the Act, a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state.” The FSIA is intended to prevent U.S. courts from interfering with foreign relations. The Second Circuit states:

Recognizing “the potential sensitivity of actions against foreign states,” the FSIA “aimed to facilitate and depoliticize litigation against foreign states and to minimize irritations in foreign relations arising out of such litigation.”

The question here is whether FSIA also protects individual officials of a foreign state acting in his official capacity, and not just foreign states. The Court of Appeals has never resolved this issue before, but other Circuits have, and the Second Circuit follows their lead, holding, "We join our sister circuits in holding that an individual official of a foreign state acting in his official capacity is the 'agency or instrumentality' of the state, and is thereby protected by the FSIA." Since FSIA prohibits these lawsuits against agencies of a foreign government, the Second Circuit interprets the law to include high ranking officials of those agencies, without whom the agencies could not function.