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SDNY COURTHOUSE, August 28 – In the ongoing lawsuit "In Re Terrorist Attacks on September 11, 2001," originally filed in 2003, a conference was held on February 22, 2022 after the US' action on frozen Taliban funds. Inner City Press covered it, below.

  The conference concerned writs of execution levied against Afghan assets held in the Federal Reserve Bank of New York. Counsel cited applicable New York law in the CPLR, and expressed deference to US foreign policy. The UN, it's said, is complaining about the use of funds - it it doing its own fundraising off Afghanistan.

U.S. District Court for the Southern District of New York Magistrate Judge Sarah Netburn held the conference.

Inner City Press live tweeted Judge Netburn's November 10, 2021 conference, here.

On Thursday October 28, before a Monday hearing, John Fawcett's right to now invoke the Fifth Amendment to avoid questions about his leak of information from the case was taken up, and disposed of, by Judge Netburn. Inner City Press live tweeted here.  The rejection of Fawcett's Fifth Amendment claims by Magistrate Judge Netburn was upheld by District Judge George B. Daniels on October 29.

On Saturday October 30, two days before the hearing, Saudi Arabia proposed cutting off the audio line and closing the courtroom for some or all of Fawcett's testimony. Letter here. It is an outrage: "counsel for Saudi Arabia proposed that the  courtroom be closed for any testimony that reveals protected material, and counsel for Fawcett  proposed that, in order to avoid inadvertent disclosure of protected material, the courtroom be  closed and the audio feed be cut off for the entirety of Fawcett’s testimony, that counsel  promptly review the transcript and propose redactions, and that the transcript be made public as  soon as practicable after the hearing. Saudi Arabia takes no position on whether the courtroom  should be closed for the entirety of Fawcett’s testimony. If the courtroom is not closed for the  entirety of Fawcett’s testimony, we request that counsel and the witness be instructed not to  disclose Saudi Arabia’s or Al Jarrah’s protected information without giving us an opportunity to  object and to request that the courtroom be closed for that specific part of the testimony."

On November 10, the Hogan Lovells law firm dropped the Taliban as a client. Judge Netburn held a proceeding; Inner City Press live tweeted it here and below.

In late August 2022, Magistrate Judge Netburn recommended not granting victims access to the $3.5B the Administration had said would be for them: "These creditors hold judgments against the Taliban for its role in the September 11 Terrorist Attacks or other terrorist acts. They move under § 201(a) of the Terrorism Risk Insurance Act of 2002 (“TRIA”) for a turnover of the DAB Funds to satisfy these judgments. The Court recommends denying these motions for three reasons. First, DAB is immune to this Court’s jurisdiction. It is the central bank of a foreign state. This means it is entitled to immunity from jurisdiction and its property is entitled to immunity from execution. TRIA may overcome DAB’s execution immunity, but not its jurisdictional immunity. Second, even if there was jurisdiction, the Court is constitutionally restrained from making the finding that TRIA requires to authorize the turnover. Only the President may recognize the government of a foreign sovereign nation. Courts may not do so directly or by implication. Authorizing the parties to satisfy the Taliban’s judgments with Afghanistan’s central bank funds unavoidably acknowledges the Taliban as the Afghan government. Third, even if that were not the case, TRIA § 201(a) requires an agency relationship in order to execute on an entity’s assets. This relationship requires a manifestation of consent that is not present where the Taliban has seized DAB by force." Only the President may - so what will the Administration do? Watch this site.

From November 10: Now in 9/11/01 case a plaintiff says despite Taliban takeover the case should go on against the Islamic Republic of Afghanistan, for default.

Judge Netburn: It is a new country with a new name.

 Judge Netburn: I'll need briefing on the issue. When US administrations change, the country doesn't. But what's happened in Afghanistan seems different. The country's name has changed, the fundamentals of the country have changed.

 Judge Netburn: I'm thinking we should ask for the opinion of the U.S. State Department, about the new government of Afghanistan. I'll take all this under advisement. We are adjourned.

Watch this site.

Inner City Press notes that in this case, Docket Item 6122, Motion for Conference dated April 14, 2020, says "You do not have permission to view this document."

Judge Netburn has ruled, in the interim: "ORDER: On November 1 and 2, 2021, this Court held an evidentiary hearing into the breach of the protective orders in this litigation. This order governs subsequent proceedings related to that hearing. By November 24, 2021, the Kingdom of Saudi Arabia, the law firm of Kreindler & Kreindler, and John Fawcett shall file proposed findings of fact, conclusions of law, and any remedies the parties believe are appropriate based on that hearing. Proposed findings of fact shall be supported with specific citations to the record. These filings shall be made under seal pursuant to this Order, with access restricted to the parties. By December 1, 2021, the remaining law firms of the Plaintiffs' Executive Committees shall file a letter with the Court stating if they believe any redactions to the parties' November 24 filings are necessary. SO ORDERED. (Signed by Magistrate Judge Sarah Netburn on 11/4/2021)."

The case is In Re Terrorist Attacks on September 11, 2001, 03-md-1570 (Daniels / Netburn).

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