Text extracted via OCR from the original document. May contain errors from the scanning process.
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001
795
Cite as 349 F.Supp.2d 765 (S.D.N.Y. 2005)
§ 1605(a)(7) state sponsor of terrorism
claim into a § 1605(a)(5) tort claim.
With respect to Prince Sultan’s and
Prince Turki's arguments that the entire
tort, meaning both the tortious conduct
and the injury, must occur in the United
States, Judge Robertson disagreed and
stated the FSIA “preserves immunity for
tort claims unless injury or death occurs in
the United States.” Burnett If, 292
F .Supp.2d at 19 n. 4 (quoting Tel-Oren v.
Inbyan Arab Republic, 726 F.2d 774, 775
(D.C.Cir.1984)) (Edwards, J., concurring)
(some emphasis omitted). Courts in the
Second Circuit seem to take the opposite
approach. “Although cast in terms that
may be read to require that only the injury
rather than the tortious acts occur in the
United States, the Supreme Court has
held that this exception ‘covers only torts
occurring within the territorial jurisdiction
of the United States.” Cabiri v. Govt of
the Republic of Ghana, 165 F.3d 198, 200
n. 3 (2d Cir.1999) (quoting Amerada Hess,
488 U.S. at 441, 109 S.Ct. 683); see also
Arsh v. State of Israel, 962 F.Supp. 377,
383-84 (S.D.N.Y.1997) (citing legislative
history stating both the tort and injury
must occur within the United States for
the exception to apply and dismissing com-
plaint where plaintiffs failed to allege spe-
cific tort or place tort occurred); Kline,
685 F.Supp. at 391 (finding tort exception
inapplicable where victim was abducted in
Mexico City and brought to the United
25. Judge Robertson recognized the same diffi-
culty. Although he did consider Plaintiffs’s
claims under the tort exception, he found that
the language of the state sponsor of terrorism
exception buttressed his ultimate conclusion
that the tortious acts exception would not
provide subject matter jurisdiction over
Prince Sultan and Prince Turki. Unlike
(a)(7), the tort exception “makes no mention
of the ‘provision of material support.’”’ Bur-
nett IT, 292 F.Supp.2d at 20 n. 5. After review-
ing canons of statutory construction counsel-
ing that Congress acts intentionally when it
States because “the entire tort must be
committed in the United States”).
Plaintiffs allege that the Kingdom,
Prince Sultan, and Prince Turki tortiously
aided and abetted the September 11 ter-
rorists by supporting charities that, in
turn, supported al Qaeda and international
terrorism. Plaintiffs also claim that, in
return for protection of the Kingdom,
these Defendants essentially willfully ig-
nored the threat that Osama bin Laden
and al Qaeda posed to the United States.
Plaintiffs do not claim that the Kingdom or
the Princes undertook any of their alleged
acts in the United States. Yet, in the
Plaintiffs’ view, the operative torts for the
Court’s consideration are the attacks of
September 11, which did take place in the
United States. See Burnett If, 292
F.Supp.2d at 19 n. 4 (noting death and
injuries occurred in United States). Fur-
ther, Plaintiffs claim it would be unjust to
allow foreign nations to escape liability for
tortious acts performed in the United
States if they could show that some act of
planning the tort took place outside the
United States.
Additionally, Defendants submit that,
since the allegations are precisely those
outlined in § 1605(a)(7)—that is, “personal
injury or death that was caused by an act
of ... extrajudicial killing, aircraft sabo-
tage ... or the provision of material sup-
port or resources ... for such an act?—
none of the other exceptions should be
read to apply in its place.” Defendants
includes particular language in one section of
a statute but omits it from another, Judge
Robertson concluded that Congress’s omis-
sion of ‘provision of material support’ from
(a)(5) should be treated as intentional. IJd.;
see also HCSC-Laundry v. United States, 450
U.S. 1, 6, 101 S.Ct. 836, 67 L.Ed.2d 1 (1980)
(per curiam) (“[I]t is a basic principle of
statutory construction that a specific statute
. controls over a general provision ...,
particularly when the two are interrelated
and closely positioned.’’).
HOUSE_OVERSIGHT_017860