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In re: TERRORIST ATTACKS ON SEPTEMBER 11, 2001., 2012 WL 257568 (2012)

necessary to mount a significant transborder attack. See JA3777-78. In particular, plaintiffs alleged that support during that crucial period enabled al-Qaeda to expand its footprint, train terrorists, plot and plan acts of terror, and carry out such acts around the world. JA798-800, 823, 843-44, 3783, 3836, 3871; cf. SPA152 (Terrorist Attacks IV) (as the district court elsewhere acknowledged, "[s]ince its inception in the late 1980's, al-Qaeda has relied on well-placed financial facilitators and logistical sponsors to raise, manage and distribute money and resources, enabling it to grow rapidly into a formidable international terrorist network").

Imposing ATA liability on defendants who provide this crucial formative support for a terrorist organization is clearly consistent with Congress' intent, see supra pp. 66-73, and consistent with the nature of *119 how terrorist groups grow and become capable of undertaking attacks which, like the September 11 attacks, often take years of planning and development. See, e.g., 9/11 Commission Final Report p. 48. Thus, as the Seventh Circuit has held en banc, the ATA is predicated on the assumption that "[t]errorism campaigns often last for many decades .... Seed money for terrorism can sprout acts of violence long after the investment." Boim III, 549 F.3d at 700. The court went so far as to conclude that, as a general matter, imposing liability upon "someone who with the requisite state of mind contributed to a terrorist organization in 1995 that killed an American abroad in 2045 ... would not be as outlandish, given the character of terrorism, as one might think." Id. at 699-700. Here, of course, a much more direct connection of a few years exists between defendants' acts that supported the development of what became the world's most extensive and capable global terrorist organization and that group's execution of its most sophisticated and deadly operation.

Lastly, the district court found that "[t]he United States had not even been targeted by al Qaeda" when "defendants provided [Osama bin Laden] with funding" while "in Sudan during the early 1990's." SPA247 (Terrorist Attacks V). This finding is blatantly incorrect. See supra pp. 28- *120 29. Osama bin Laden had been openly "singl[ing] out the United States for attack" "since 1992." 9-11 Commission Final Report, at 48. "Plans to attack the United States were developed with unwavering single-mindedness throughout the 1990s." Id.

II. The District Court Improperly Dismissed The Alien Tort Statute Claims Because The Statute Encompasses Claims Based On Acts Related To International Terrorism

The district court dismissed the Alien Tort Statute ("ATS") claims against a handful of defendants because it thought plaintiffs were required to, but did not, plead "factual allegations [to] support a reasonable inference that the defendant[s] purposefully aided and abetted, conspired with, or materially supported al Qaeda in the commission of an act of terrorism involving the hijacking of a commercial airplane." SPA233 (Terrorist Attacks V). That holding is based on a mistaken assumption that the ATS authorizes, or plaintiffs alleged, only tort claims based on the hijacking of a commercial airplane in violation of international law. Neither the ATS nor plaintiffs' complaints are so limited. Instead, the ATS permits the federal courts to adjudicate a civil action "by an alien for a tort only, committed in violation of the laws of nations or a treaty of the United States." 28 U.S.C. § 1350. As explained below, the "laws of nations" *121 prohibit acts of international terrorism, including the provision of material support for terrorism, and is not so narrowly focused on hijacking commercial airplanes. See infra at Points II.B & C. And, plaintiffs adequately pled facts that readily support a reasonable inference that defendants knowingly and intentionally provided financing and other forms of material support to al-Qaeda to further its international terrorism. See supra Points I.B.2 & I.B.3.

The ATS is a jurisdictional statute that Congress enacted as part of the Judiciary Act of 1789 on the "understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at that time," namely "violation of safe conducts, infringement of the rights of ambassadors, and piracy." Sosa v. Alvarez-Machain, 542 U.S. 692, 712, 724 (2004). In Sosa, the Supreme Court held that federal courts also may permit aliens to assert tort claims "based on the present-day law of nations" as long as they "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms." Id. at 724-25. In making this determination, courts should consider "the potential implications for the foreign relations of the United *122 States" and should be "wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs." Id. at 727.

In cases decided after Sosa, this Court has looked to three factors to determine whether a claim adequately alleges a violation of customary international law that is cognizable in a tort action under the ATS. To state an ATS claim, the alleged tort must

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