40 Foley Square, Feb 23 -- When the Second
Circuit Court of Appeals held an in-person oral argument
on February 23, amid a blizzard that shut down the SDNY,
it was to review SDNY Judge George B. Daniels ruling of no
personal jurisdiction over Dubai International Bank in the
ongoing 9/11 case. Inner City Press live tweeted:
Noel Francisco of Jones Day, for Dubai Islamic
Bank: The President is the single foremost actor in
foreign policy, but played no role... Congress passed
the statute in Fuld's case because it felt it needed to-
it did not inadvertently apply to the PLO jurisdiction.
Suppose that the Rules Committee said that PLO says be
subject to US jurisdiction if they maintain an office in
US - no one would think they have that authority-
Judge: If you can effect service on them-
Francisco: With an ad in the Financial Times... Even if
Rule 4(k)(2) were a statute - and it's not - the statute
carries with it its history.
Judge: If there's a term in the statute that
could be understood one way or another, that's one thing
- but here it refers to a document, the US Constitution
Francisco for Dubai International Bank: "Personal
jurisdiction, blah blah blah"
[Yes, Noel Francisco spoke over three 2d
Circuit judges (Lynch, Lohier and Menashi) and said
"blah blah blah"]
Judge: So those international rules that that
Congress can override are- Francisco: There's TAG
jurisdiction. Judge: Let me ask you about 4(k)(1) -
would there be jurisdiction over Osama Bin Laden?
Francisco: I would concede, it would satisfy minimal
contacts
Noel Francisco: Even accepting the CIA documents,
which I think are inadmissible - they provided banking
services, that is not enough for aiding and abetting
liability. Judge: Does the District Judge get to decide?
Or is it if a reasonable jury could find it?I
Francisco:
At the summary judgment phase... I ask, has there been a
political judgment by Congress - I say no. You have to get
into the facts. The District Court correctly found that
the Dubai Islamic Bank did not knowingly direct its
conduct toward the US
Francisco:
Even if they knew the accounts were affiliated with Al
Qaeda- Judge: Is that just dictum, as pertains to in
personam jurisdiction? Francisco: You could short circuit
it - my fundamental point is, It's the political branch's
decision.
Judge:
Even a single act - if the guy at the Dubai Bank said, God
bless you Osama, I'll give you a loan to attack the Towers
in New York- there would be no jurisdiction? Francisco:
I'm not saying that. In your hypothetical, I think that
probably would. I
Noel
Francisco: I direct you to Joint Appendix 3075, plaintiffs
admit that Aziz Ali, who left just before the attach, had
no account -
Judge:
You are not consenting to jurisdiction? Francisco: I am
not. Not in the slightest
Noel
Francisco: Even if you don't believe in substantive due
process- some do and some don't - Congress can override
those principles Judge: Minimum contacts is not part of
the common law Francisco: Our common law has liquidated
the law of nations in a lot of ways
Noel
Francisco: The US is the biggest country in the world. So
when we made pronouncements it becomes customary
international law. Judge: Because other countries like it?
Francisco: Look at how Justice Thomas approaches it-
Judge: What if we sent it back to SDNY?
Noel
Francisco: District Courts in this District are bound by
what you rule, unless the Supreme Court explicitly changes
it. So apply your precedents under 4(k)(2)- so I think you
should provide guidance. We represent clients. Clients
spend money- Judge: Thank you
Chris
Eiswerth: The Ali account helped Al Qaeda- Judge: You
mean, it helped escape to Pakistan? Eiswerth: We can trace
it. Judge: What if the money sat there until he went to
Pakistan? Eiswerth: We can't yet show it went to the
hijackers.
Judge:
Was that account in the original account? Eiswerth: Yes.
Judge: But it turns out none of the money went to the 9/11
attack. Eiswerth: It's an operational account- Judge: It's
a checking account. Eiswerth: In 1992, the chairman signed
off on the letter
Eiswerth:
The CIA found the chairman was personal friends with Bin
Laden. Judge: But he's kicked out. Is there evidence he
wasn't? Eiswerth: Fast forward to when he steps down. The
US found there was back-channel going on.
Judge:
What's the best piece you've got? Inner City Press
@innercitypress · 6h Eiswerth: Congress wants this to go
forward. Judge: If we were to remand this, to allow Judge
Daniels to determine in the first instance what Fuld
means, is that the narrowest way to address this?
Eiswerth: Yes.
Judge:
We'll take it under advisement. Thank all of you who came
here in these conditions. And for dressing warm. It
would have been a problem not to ...