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A Saudi charity that allegedly funded terror activities cannot be sued for the Sept. 11, 2001, attacks because of the Foreign Sovereign Immunities Act, a federal judge has ruled. Southern District of New York Judge Richard Conway Casey found that the Saudi High Commission was shielded from suit under the act because it presented a prima facie case that it is a foreign sovereign. Because the Saudi High Commission “was formed by order of the Kingdom’s governing body, it provides the Kingdom’s aid to Bosnia, it is governed by a Saudi official and its employees are civil servants, it is an organ of the Kingdom of Saudi Arabia,” Casey wrote in three of the several cases connected to the Sept. 11 attacks that have been consolidated before him by the Panel on Multi-District Litigation under 03 MDL 1570. The court also found that the Saudi High Commission has not waived its sovereign immunity. Casey also made a similar finding on claims brought by representatives, survivors and insurance carriers of the families of Sept. 11 victims against the commission’s president, Prince Salman bin Abdulaziz Al-Saud, and the Saudi Interior Minister, Prince Naif bin Abdulaziz Al-Saud. Both were accused of providing material support to al-Qaida and other terrorist organizations. Casey’s rulings were among several made on jurisdictional issues in three cases, Ashton v. al-Qaida Islamic Army, 02 civ. 6977, Federal Insurance v. al-Qaida, 03 Civ. 6978 and Burnett v. Al Baraka Inv. & Dev. Co., 03 Civ. 9849. The Saudi High Commission, formed in 1993, allegedly contributed $600 million in aid to Bosnian Muslims impoverished by the civil war in the former Yugoslavia. But plaintiffs charged that the commission did not actually provide support for needy Bosnian Muslims. Instead, they claimed, the commission diverted funds to support terrorist activities. One example they cited was $41 million that the commission was unable to account for. Moreover, they charged that al-Qaida fighters entered Bosnia-Herzegovina disguised as commission relief workers. Following the Sept. 11 attacks, they allege, a raid by U.S. forces on the Sarajevo branch of the commission found computer hard drives with photographs of the World Trade Center before and after its destruction as well as photos of the destruction of U.S. embassies in Kenya and Tanzania and the bombing of the U.S.S. Cole. Also found, they said, were files on pesticides and crop dusters and the locations of government buildings in Washington D.C. The Saudi High Commission, the plaintiffs charged, “has long acted as a fully integrated component of al-Qaida’s logistical and financial support infrastructure” and the Sept. 11 attacks were a “direct, intended and foreseeable product of [its] participation in al-Qaida’s jihadist campaign.” PROBLEM FOR PLAINTIFFS One problem for the Federal Insurance plaintiffs, Casey said, was that their complaint alleged that the Saudi High Commission is an “agency, instrumentality and organ” of the Kingdom of Saudi Arabia. “They now back away from that allegation and join other Plaintiffs in disputing SHC’s status,” he said. The plaintiffs argued that, even if the commission and the two princes could properly assert immunity, that immunity is overcome by the Foreign Sovereign Immunities Act’s exception for torts, which lifts immunity “for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortuous act or omission of that foreign state or any official … of that foreign state while acting in the scope of his office,” 28 U.S.C. �1605(a)(5). Here, Casey said, the commission and the princes were not accused of being the actual perpetrators of the attacks, but of conspiring or aiding and abetting. “Even if Plaintiffs alleged that SHC was tortuously liable for the attacks of Sept. 11, such allegations could not overcome the discretionary function exception,” which is designed to prevent “judicial second-guessing” through tort actions of “decisions grounded in social, economic and political policy,” Casey said. “SHC offers undisputed evidence that all decisions regarding the distribution of humanitarian relief funds were within the sole discretion of its Chairman Prince Salman and the advisors he selected,” Casey said. “Further, SHC was guided by the Kingdom’s policies regarding Bosnia-Herzegovina in making its funding determinations.” Accordingly, he said, the commission’s “alleged misuse of funds and/or inadequate record-keeping, even if it resulted in the funds going to terrorists — was the result of a discretionary function and cannot be the basis for overcoming SHC’s immunity.” The judge went on to find that the three complaints must be dismissed against the princes because of a lack of personal jurisdiction. DEFENDANTS REMAIN But some other defendants were unable to have the lawsuit dismissed, as the judge found that additional discovery would help him assess whether the Rabita Trust, which has been designated a “global terrorist entity” and had its assets frozen by the U.S. Treasury Department, can be sued here because its activities were directed against the United States. And the judge refused to dismiss claims made in the three cases against the International Islamic Relief Organization, which operated in Falls Church, Va. He found that the plaintiffs had made a prima facie case that the organization, which allegedly supported an al-Qaida guest house and had been involved in several al Qaeda attacks, “purposefully directed its activities at the United States.” James Kreindler, Andrew Maloney and Justin Green of Kreindler & Kreindler represent the Ashton plaintiffs. Eliot Feldman of Cozen O’Connor in Philadelphia represents the Federal Insurance plaintiffs. Ronald Motley of South Carolina’s Motley Rice represents the Burnett plaintiffs. Lawrence Robbins of Robbins, Russell, Englert, Orseck & Untereiner in Washington, D.C., represents the Saudi High Commission. William Jeffress Jr. of Baker Botts represents Prince Salman. James Cole of Brian Cave represents Prince Naif.

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