WASHINGTON – Almost 20 years ago, around 150 family members of 9/11 victims requested a measure of justice for their losses by pursuing a list of targets like Al Qaeda and the Taliban. A decade later, a court find the defendants responsible by default and ordered them to pay damage worth around $ 7 billion.
But with no way to get it back, the judgment seemed symbolic.
Today, however, the Taliban have regained control of Afghanistan. Group leaders say their country’s central bank account at the New York Federal Reserve, in which the former government accumulated around $ 7 billion in foreign aid and other sources, is theirs by right. . And that in turn raised a question: If the money belongs to the Taliban, shouldn’t the plaintiffs in the 9/11 trial have the right to seize it?
Senior officials in the Biden administration are currently debating the answer to this question, which presents a complex web of national security, legal, diplomatic and political issues – the latest example of how thorny issues stemming from terrorist attacks remain unsolved more than two decades later.
One of the details to be determined is whether and how the United States can bypass any legal requirement to recognize the Taliban as the legitimate Afghan government in order to use the money in the central bank account to help resolve the claim. families of September 11. .
The administration is due to tell a court by Friday what outcome would be in the national interest, even as the United States grapples with broader issues stemming from the end of the US military presence in Afghanistan. In addition to recognition, they include how to provide humanitarian aid that could prevent a mass exodus of migrants.
The Justice Department has negotiated with lawyers for the 9/11 plaintiffs over a possible deal to split the money if the government supports their attempt to seize it, and the White House National Security Council has worked with government agencies to weigh the proposal, according to people who described the deliberations on condition of anonymity.
In a statement, two of the plaintiffs in the lawsuit – Fiona Havlish, whose husband worked on the 101st floor of the South Tower, and Ellen Saracini, whose husband was the pilot of one of the hijacked planes that landed in the World Trade Center – said the administration should help their cause.
“After our husbands were killed in the terrorist attacks of September 11, 2001, we spent many years fighting for justice on their behalf,” they said. “Together with the others in our case, we have secured a binding pecuniary judgment against the Taliban and now call on President Biden to ensure that the funds we have attached come back to us and not to the terrorists who played a role in the death of our family. . “
Any transfer of the Afghan central bank’s reserves is sure to infuriate the Taliban at a time when the West is trying to pressure and get the organization to behave differently from the last time it ruled this country, on issues ranging from respect for women’s rights to refusal to host international terrorist groups. The Taliban demanded access to the funds.
Afghanistan under the Taliban
With the departure of the US military on August 30, Afghanistan quickly fell back under Taliban control. Across the country, concern for the future is widespread.
The National Security Council declined to provide a statement for this article, and much remains unclear about the parameters of what the US government can do – not to mention what decision it will make, several people familiar with the matter have said. .
After the Taliban brutally took military control of the country in August, the New York Federal Reserve blocked access to the Afghan central bank account. Under the long-standing counterterrorism sanctions imposed on the Taliban by the United States, it is illegal to engage in financial transactions with them.
Soon after, lawyers for the families in the old default judgment case persuaded a judge to issue an order that started the process of transferring the money to pay off the debt. On September 13, a United States Marshal served the Legal Department of the Federal Reserve of New York with an “execution order” to seize the money.
To complicate matters even further, a second group of plaintiffs in a smaller case – brought to the North District of Texas by seven State Department contractors who were injured in terrorist attack in Afghanistan in 2016 – are also seeking to seize part of the funds to repay a $ 138 million default judgment against a list of defendants that included the Taliban.
The Ministry of Justice has intervened in both cases, invoke a power injecting the government into any pending litigation and informing the court of how the United States sees its interests. The litigation has been frozen pending its declaration, according to court documents.
Behind the scenes, the plaintiffs’ lawyers have opened negotiations with the Department of Justice. They have proposed a deal to split the $ 7 billion among three categories of recipients if the Biden administration backs them up in court, people familiar with the matter said.
Under the proposal, the plaintiffs, as holders of the default judgment, would keep some of that money, while redirecting the rest to two other purposes.
Some of the remaining money would go to several thousand spouses and children of those killed in the 9/11 attacks who were not part of the trial, and who for technical reasons has not received certain payments from a terrorist compensation fund set up by Congress.
The other part would go to various organizations that provide food and medicine to Afghans. Complainants say it could be a legal way to tap into stranded central bank funds so that some can be quickly spent on humanitarian aid.
It is not known how much money would go into each of these three pots; people familiar with the talks said the numbers remain subject to negotiation. The proposed deal would pay no payments to other relatives of the victims of the 9/11 attacks.
A person familiar with the matter said that in their internal deliberations, the Biden team had four priorities to guide them.
First, the person said, the administration is determined that no money from the Afghan government reserves goes directly to the Taliban.
Second, the person said, the Biden administration recognizes that Afghanistan has acute humanitarian needs and therefore part of the reserves should be used to address this issue.
Third, the person said, the administration considers the claims of victims of terrorist attacks to be legitimate and believes that they should also be handled by these funds.
And fourth, the person said, the Biden administration will not recognize the Taliban as the legitimate government of Afghanistan – a move that would have a myriad of other legal and diplomatic consequences – to resolve the issue of central bank funds. afghan. Instead, he will tackle this matter according to the circumstances and on his own schedule.
Several people familiar with the matter said it may not be legally necessary to recognize the Taliban as the government of Afghanistan in order to seize central bank funds to pay for the court judgment. Instead, they said, a judge could conclude that the organization simply has a sufficient interest in the funds to make their seizure legal.
The negotiations come as the Taliban have lobbied separately for access to Afghan central bank funds in the United States, as well as smaller deposits in Europe. On November 17, the acting foreign minister of the Taliban issued a public letter to the United States Congress imploring him to release the funds, saying there was no justification for blocking them now that the war is over and they were needed to avert a humanitarian crisis this winter.
“We are convinced that freezing Afghan assets cannot solve the current problem and neither is it the demand of the American people, therefore your government must unfreeze our capital,” he said. “We fear that if the current situation prevails, the Afghan government and people will face problems and become a cause of mass migration in the region and the world, which will therefore create new humanitarian and economic problems for the world. . “
But the US government pushed back on the Taliban’s message in a statement by Thomas West, the Special Representative for Afghanistan, even as he said the United States will continue to provide humanitarian assistance to the Afghan people.
“We have provided $ 474 million this year, applaud the sustained efforts of Allies and partners in this space, and we are doing everything we can to help the UN and humanitarian actors grow to meet the needs this winter,” Mr. West wrote on Twitter.
The question of how to direct more humanitarian aid to Afghanistan would be a particular problem in light of political sensitivities to ask Congress for more money and strong political opposition within the Biden administration to any transfer. funds to the Taliban themselves.
Another person familiar with the matter said the Biden administration is considering another option, particularly if a judge decides it would not be legal to use Afghan government assets to satisfy plaintiffs’ judgments against the Taliban.
Under this second option, if a person deemed to be an authorized representative of the Afghan central bank agreed to transfer part of the funds directly to non-governmental organizations providing humanitarian assistance in Afghanistan, the Treasury Department Office of Foreign Assets Control could grant a license to allow this step. However, determining who that person would be presents additional challenges.