X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Although Osama bin Laden and Al Qaeda might be behind on their reading and regularly missing the newest episodes of “Friends,” a federal judge has decided they can be served notice through television broadcasts and ads in regional newspapers. The unusual methods of notification would inform bin Laden and his terrorist group of civil suits filed against them for the Sept. 11 attack on New York’s World Trade Center. Other unconventional means were used to notify fellow defendants of the Taliban and the Islamic Emirates of Afghanistan. The four are defendants in two suits filed separately by Raymond Anthony Smith and Jane Doe, both administrators of deceased family members’ estates. Smith’s brother George E. Smith was killed when US Airways Flight 175 struck the World Trade Center’s South Tower. The Doe suit was filed to represent a woman who lost her husband when the North Tower collapsed. Smith’s and Doe’s suits both state wrongful death, survival, assault, battery, false imprisonment and civil RICO claims. The Doe suit also includes a negligence/intentional infliction of emotional distress claim. Doe’s suit was filed Oct. 12 and refiled for technical reasons Nov. 15, the same day James E. Beasley of Philadelphia’s Beasley, Casey & Erbstein filed Smith’s suit. He and colleagues Slade H. McLaughlin and James E. Beasley Jr. represent both plaintiffs. “We know we don’t have a lot of time,” McLaughlin said. “The Taliban is being eradicated with some urgency.” U.S. District Judge Harold Baer Jr. of the Southern District of New York approved service by alternative means on Dec. 20 after deciding it was likely the defendants could be notified that way. However, Baer cautioned that bin Laden and Al Qaeda could challenge the court’s jurisdiction as well as the method of service. Doe and Smith argued that the usual notice methods — mail or personal delivery — would not work for bin Laden and Al Qaeda, and Baer agreed. The Federal Rules of Civil Procedure grant plaintiffs the option to use “other means not prohibited by international agreement as may be directed by the court.” Baer looked to a 1999 order in Odillia Mutaka Mwami v. United States, Osama Bin Laden, by a District of Columbia federal court that allowed plaintiffs to serve bin Laden by publication. For six weeks, notices of the suit ran in The Daily Washington Law Reporter, the International Herald Tribune and Al-Quds Al-Arabi. The federal court had relied on a 2nd U.S. Circuit Court of Appeals decision in S.E.C. v. Tome. “I see no reason to depart from the sound reasoning of the district court in Odillia Mutaka Mwami and the 2nd Circuit in Tome,” Baer wrote in Smith v. Islamic Emirate of Afghanistan. “Indeed, here the argument in favor of service by publication may even be stronger than it was in Odillia Mutaka Mwami since bin Laden can be presumed to know that the estates of the victims would file civil suit against him in this district arising from the attack on the World Trade Center for which he has been widely held accountable.” Baer also permitted Al Qaeda to be served in the same manner as bin Laden because of the current difficulty in serving a high-ranking official and possible disintegration of the association before one could be found. On the basis of the 1985 Eastern District case Legend Industries Inc. v. C.P.P. Corp., summonses and complaints must be delivered to “a sufficient authority or responsibility within the organization so as to make it reasonable to assume he will realize his responsibility and know what he should do with any legal paper served on him.” PERSONAL DELIVERY Because Doe and Smith were able to locate Mullah Abdul Salam Zaeef, the Taliban’s ambassador to Pakistan and a high-ranking member of the organization, Baer said, the personal delivery provision of the FRCP applied. The younger Beasley said the first attempts to serve the Taliban were foiled. The Taliban folded its New York City office several days before the papers were to have been served. However, Beasley had a fax number for Zaeef at the embassy in Pakistan, but Zaeef was removed by officials before the materials could be sent. The firm worked quickly to obtain local legal counsel or to find someone in Pakistan to deliver the summonses and complaints, but had no luck. A religious figure was hired, but he backed out. An investigative and security agency was recommended by a friend of Beasley’s. The firm was hired. Once it had located Zaeef, a lawyer who worked with the agency was employed to deliver the papers. At 6 a.m. Dec. 29 in Islamabad, the Taliban and the Islamic Emirate of Afghanistan were personally served through Zaeef. After days of tracking Zaeef’s movements, a lawyer from Pakistan, his assistant and members of a security service, hired by Beasley, delivered the papers to a guarded residence where the ambassador was staying. The ambassador refused to sign the papers, which were carried inside by a guard. Another set was later posted on the door of the residence — a standard that meets Pakistani law. Beasley and McLaughlin said they did not expect a reply from the Taliban within the 60-day response period. If there is no reply, the firm will move for default judgment and seek damages. The Taliban, Beasley said, has deep pockets. It is estimated that $325 million in defendants’ assets, mostly Taliban money, has been frozen by the Office of Foreign Assets Control in Washington, D.C. “I don’t think anyone will come from the Taliban to defend the suit,” McLaughlin said. “I can’t imagine they would. But if we had to mount the necessary proof, we could do it.” Beasley said that obtaining the money from our government should prove less difficult than for the Iran hostages, who sued Iran but were stymied by the Algiers Accord, which relinquished the country’s frozen assets in return for the hostages. He also said that the Taliban and the Islamic Emirate are not protected by sovereign immunity. “In this case, the defendants are not recognized as a government, so they are not entitled to sovereign immunity. You can sue countries that are designated terrorist states because they don’t meet the predicate of foreign sovereignty. It is a simple tort case,” Beasley said. The U.S. Department of State may have earmarked the frozen funds for building the new Afghan government. BIN LADEN AND AL QAEDA While they are named defendants, bin Laden and Al Qaeda have few assets and are less important to the goals of the civil case. “The Taliban is where the substantial assets are,” Beasley said. “From a functional standpoint, we have done the necessary [job] for our clients.” Nonetheless, the firm will make the attempt to serve bin Laden. Baer ordered that ads be placed in Afghan and Pakistani newspapers and on international broadcast television, notifying bin Laden and Al Qaeda of the suits against them. The ads are to run in the Heward, Anis, Kabul News and the Kabul Times in Afghanistan and in the Pakistani paper Wahat, which bin Laden used to publish his fatwahs. In addition, broadcast commercials are to run on Al Jazeera, Turkish CNN, BBC World, ARN and ADF networks. McLaughlin estimates it would cost $100,000 to fulfill Baer’s order. The firm plans to request that the number of media outlets and messages be moderated, hopefully to just Al Jazeera satellite television. “[Bin Laden] has only used Al Jazeera television. That’s his media outlet. It is satellite-based, and we know he has satellite phones and television, so he likely will get it or someone will tell him about it. I’m not sure if we publish it he’ll read it in a paper,” Beasley said. This is the first known attempt to serve a summons by broadcast, and Beasley is still struggling with how to accomplish it. He said he isn’t sure how to deliver the message. One idea is to record the summonses and claims and broadcast the static picture for 30 seconds. Because serving bin Laden is moving slowly and the possibility that he will be killed rather than captured alive exists, the firm has already started exploring how to sue bin Laden’s estate. It is unclear where that estate might exist, but McLaughlin said it is possible a case against his estate might be established in the country in which he dies, in Saudi Arabia or in Afghanistan.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.