This past November, in Doe v. Bin Laden,1 the U.S. Court of Appeals for the Second Circuit ruled that a man could proceed with his lawsuit against the nation of Afghanistan for the death of his wife in the Sept. 11, 2001, World Trade Center attack. The plaintiff, who was allowed to file the action using a pseudonym to protect himself and his family, seeks to hold Afghanistan liable for the support and protection its former Taliban-led government provided to the al Qaeda terrorists. The ruling was the first positive legal news for 9/11 families who have brought death claims against Afghanistan and other foreign sovereigns.

Doe represented a swift legal about-face for the Second Circuit that led the panel to solicit the views of all active judges under a rarely invoked “mini-en-banc” internal court procedure designed to address inconsistent prior opinions.2 Resort to the procedure was necessary because of the Second Circuit’s decision three years earlier in In re Terrorist Attacks on September 11, 2001,3 which declared that the Foreign Sovereign Immunities Act (FSIA) barred suits against the government of Saudi Arabia and its officials for their alleged involvement in the 9/11 attack and specifically ruled that the FSIA’s noncommercial tort exception was inapplicable. Doe determined, however, that the noncommercial tort exception of the FSIA actually allowed suit against a foreign government for the 9/11 attack.

FSIA and Exceptions

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