Case No. 16-499 | 2d Cir. Decision
The plaintiffs, victims of terrorist attacks spanning over ten years, accused Jordan’s largest financial institution, Arab Bank, of processing financial transactions for known leaders of Hamas and other terrorist groups. The Plaintiffs argued that Arab Bank knew that the money they were processing was being used to fund terrorism, specifically suicide bombers, and did so anyways. However, this term the Court will decide a more fundamental issue: whether the bank can be sued in the United States. To do so, the Court must interpret the Alien Tort Statute, written in 1789—long before the magnitude of this issue could have conceivably been understood. The language of the statute provides that federal district courts can hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” At present, the circuits are split as to whether the statute categorically forecloses corporate liability.
Sound familiar? The Court has actually heard argument on this question before, in Kiobel v. Royal Dutch Petroleum. Esther Kiobel attempted to sue the Royal Dutch Petroleum Co. and its subsidiaries for aiding and abetting the human rights abuses of a military dictatorship operation in Nigeria. Ultimately, the Court had parties brief and reargue a broader question, and a unanimous Court held that there was a general presumption against the application of U.S. law outside U.S. borders, thus avoiding the question of corporate liability.
It is entirely possible that during this term, the Court might again avoid the question. Although the Department of Justice has submitted a brief asserting that private plaintiffs can sue corporations committing human rights abuses, the agency representing the U.S. government urges remand on the grounds that, here, the connection to the United States is too tangential. Although the money was—at some point in the process—funneled through Arab Bank’s New York branch, the money ultimately passed from a foreign entity to another foreign entity. Other extraneous factors might influence the Court’s thinking in this case, including foreign policy concerns, as Jordan is an important ally to the United States in the fight against ISIS.