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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 II, 292 F.Supp.2d at 19 n. 4 (quoting Tel-Oren v. Libyan 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. Gov’t of the Republic of Ghana, 165 F.3d 193, 200 n. 3 (2d Cir.1999) (quoting Amerada Hess, 488 U.S. at 441, 109 S.Ct. 683); see also Hirsh 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 complaint where plaintiffs failed to allege specific 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

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 terrorists 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 ignored 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 II, 292 F.Supp.2d at 19 n. 4 (noting death and injuries occurred in United States). Further, 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 sabotage ... or the provision of material support or resources ... for such an act”—none of the other exceptions should be read to apply in its place.25 Defendants

25. Judge Robertson recognized the same difficulty. 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.’” Burnett II, 292 F.Supp.2d at 20 n. 5. After reviewing canons of statutory construction counseling that Congress acts intentionally when it includes particular language in one section of a statute but omits it from another, Judge Robertson concluded that Congress’s omission of ‘provision of material support’ from (a)(5) should be treated as intentional. Id.; 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.”).

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