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2nd Cir. Tosses Arab Bank Terror Suit, Wants SCOTUS to Overrule

By Casey C. Sullivan, Esq. | Last updated on

The Second Circuit reluctantly dismissed five lawsuits against Jordan's Arab Bank on Tuesday, ruling that the bank was immune from suit under the Alien Tort Statute. Plaintiffs sought to hold the bank accountable for financing and facilitating terrorist attacks in the West Bank.

Those suits were barred by Second Circuit and Supreme Court precedent, the court explained, while inviting an en banc sitting or the High Court to overrule earlier decisions that have kept terror victims from recovering in court.

Pirate Law, Reborn as Human Rights Law

The plaintiffs alleged that the Arab Bank financed several Palestinian organizations, such as Hamas and the Al Aqsa Martyrs' Brigade. Those groups, the plaintiffs claim, carried out attacks, including suicide bombings, on in the West Bank and Gaza, which left plaintiffs injured or their family members dead. They sued in the Eastern District of New York under the Anti-Terrorism Act and the Alien Tort Statute. The ATA allows any U.S. national injured by "an act of international terrorism" to sue in U.S. district courts. The Alien Tort Statute grants district court's jurisdiction for torts "committed in violation of the law of nations of a treaty of the United States."

The Alien Tort Statute, also known as the Alien Tort Claims Act, is one of the oldest laws in the U.S. Passed in 1789, it's believed that the ATS meant to allow U.S. courts to hear claims against pirates who operated outside the bounds of national laws.

For over a century, the law was largely forgotten, until human rights organizations revived it in 1980. That year, the Center for Constitutional Rights brought suit in the Second Circuit on behalf of the victims who had been tortured by a Paraguayan police chief. Since then, the ATS has been used regularly to allow foreign citizens to sue for human rights abuses that occurred outside the United States.

The Shadow of Kiobel I and Kiobel II

But while the Second Circuit helped conceptualize the ATS as a human rights tool, it has also placed significant limits on the statute. In 2010, the Second decided Kiobel v. Royal Dutch Petroleum. In that case, now known as Kiobel I, Nigerian citizens sought to use the ATS to hold Royal Dutch Shell accountable for attacks and murders against human rights advocates in Nigeria. But the Second Circuit ruled that the ATS does not allow suits against corporations -- an interpretation that other circuits have rejected.

That decision was appealed to the Supreme Court, giving rise to Kiobel II. The Supreme Court upheld the Second Circuit's dismissal of the suit, but on different grounds. Under the presumption against extraterritoriality, the Supreme Court explained, the ATS cannot be used for torts that occurred wholly on foreign soil.

That decision "cast a shadow" over Kiobel I, Judge Sack wrote for the panel. Since the Supreme Court claimed that "mere corporate presence" isn't enough to establish U.S. jurisdiction, it indicated that corporations might nonetheless be open to suit under the ATS.

That puts Kiobel I in question, Sack explained, and indicates that the precedent might deserve to be overturned. "We will leave it to either an en banc sitting of this Court or an eventual Supreme Court review to overrule Kiobel I if, indeed, it is no longer viable."

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