Jesner v. Arab Bank : U.S. Foreign Policy and National Security Interests

Jesner v. Arab Bank presents the U.S. Supreme Court with the question of whether the Alien Tort Statute (ATS), 28 U.S.C. 1350, “categorically forecloses corporate liability.” (The ATS states: “The district courts shall have original jurisdiction of 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.”) The case is on appeal from the U.S. Court of Appeals for the Second Circuit, which affirmed the decision of the U.S. District Court for the Eastern District of New York. The trial court dismissed petitioners' suits on the ground that the Second Circuit had foreclosed claims against corporations under the ATS. Jesner's facts and issues are well summarized elsewhere. In short, several alien persons suffered injury or death from terrorism in Israel and the Palestinian territories. Petitioners—survivors and the deceased's relatives—accused Arab Bank, which is headquartered in Jordan and has multiple branches around the world, including one in the United States (specifically, New York), of “financing and facilitating” terrorist groups that perpetrated the attacks. In particular, petitioners allege that respondent knowingly used its New York branch to collect donations, transfer money, and serve as a “paymaster” for international terrorists. . . . [T]he Bank distributed U.S. dollar payments in the hundreds of millions to finance suicide bombings and to make so-called “martyrdom” payments – payments rewarding families of the perpetrators for killing innocent civilians.Petitioners invoked the ATS in a suit they filed in the district court seeking damages from Arab Bank. The USG observes that petitioners' claims may not be sufficiently connected to the United States to satisfy the extraterritoriality concerns raised in Kiobel. As the USG summarizes, petitioners' claims “involve foreign plaintiffs seeking recovery from a foreign defendant based on injuries incurred at the hands of foreign terrorist organizations acting on foreign soil.” The USG notes that the only connection to the United States that the court of appeals identified “is the alleged routing of dollar-denominated foreign transactions through respondent's New York branch.”This article focuses on U.S. foreign policy and national security interests discussed in the brief the U.S. government submitted in Jesner as amicus curiae supporting neither party