The takeover of Afghanistan by the Taliban – and as a result of the country’s already devastating humanitarian situation – has sparked a debate over what to do with billions of dollars in frozen Afghan state assets held abroad, mostly in the United States.
Following the takeover, a group of families of about 150 U.S. victims of the Sept. 11 attacks entered the arena, saying they owed about $ 7 billion in frozen assets held by the New York Federal Reserve. The sum was awarded by a federal judge in 2012 following an absentee verdict against a number of defendants – including the Taliban, al Qaeda, Osama bin Laden and Iran – who never appeared in court.
Following the return of the Taliban to power in Afghanistan, families in the so-called Havlish case – named after plaintiff Fiona Havlish, whose husband worked on the 101st floor of the South Tower – say they finally have the ability to enforce the decision. They subsequently persuaded a federal judge to begin a process to seize the money.
A U.S. marshal handed the New York Federal Reserve a “writ of execution” in September, in a series of moves first reported by The New York Times.
However, the US government intervened in the case, requesting a series of delays so that it could give its position on the issue.
Meanwhile, several other groups of 9/11 plaintiffs, who have separate cases against the Taliban or other actors involved, have since joined the fight, claiming in court letters that they are also entitled to frozen Afghan funds.
The deadline for the government to respond – which can offer a window into the Biden administration’s thinking on a legally and diplomatically complex issue – is Friday.
“The government can say, ‘We take everything.’ [the money]”And then there will be a trial for that,” Andrew Maloney, a lawyer representing a group of 9/11 families in a case called the Ashton case, told Al Jazeera.
“Or they can say ‘we will give you everything’ and then we are happy and move on to the next stage of how to distribute it. Or they can do something between them – half the money can go to the victims and the other half will go to humanitarian aid for Afghanistan, “he said.
“It will be very significant and we will continue from there,” he said.
Debate on Afghan funds
The Taliban’s light offensive in Afghanistan, in which they captured Kabul on August 15, 2021, prompted governments and international institutions to quickly freeze Afghanistan’s central bank’s assets abroad totaling about $ 10 billion.
The World Bank and the International Monetary Fund also froze about $ 1.2 billion in aid money for the now-overthrown government in Kabul.
As all Western governments refuse to formally recognize the Taliban as a legitimate government in Afghanistan, and some, such as the United States, are legally barred from transferring funds to what they see as a “terrorist organization,” the money remains unknown.
In October, the Taliban sent a letter to the US Congress demanding the release of funds, with Amir Khan Mutaki, the group’s top diplomat, writing that frozen assets remain at the heart of the country’s “fundamental challenges” and warnings. for a new migrant crisis from Afghanistan, as citizens face widespread hunger and insecurity.
Others, including prominent human rights groups, have called for the frozen funds to be distributed through humanitarian channels that surround the Taliban.
This position gained momentum on Capitol Hill, with 40 US lawmakers calling on the Biden administration to free up a “significant share” of relevant UN agencies, arguing (PDF) that the deteriorating famine crisis could be exploited by Islamic State in Khorasan Province, ISKP (ISIS-K), the local branch of ISIL (ISIS) in Afghanistan.
They wrote in a letter to the administration: “This terrible scenario will become more likely if we fail to deal with the heartbreaking humanitarian situation that is unfolding there today.”
Others, such as Shah Mehrabi, a professor of economics at Montgomery College in Maryland and a board member of the Afghan Central Bank before the Taliban takeover, say completely bypassing the Taliban will create unsustainable parallel institutions that will defeat the Afghan central bank.
Mehrabi has proposed a gradual and independently monitored release of funds from the Taliban government, ranging from $ 100m to $ 125m a month.
What did the US government say?
The US government has said it is legally impossible to release frozen funds to the Taliban.
However, the Biden administration provided nearly $ 782 million to humanitarian agencies and sought to ease some restrictions, including allowing cash flows to some emergency services and allowing remittances to unauthorized Afghans.
Meanwhile, lawyers for the Sept. 11 victims and the Biden administration, according to the New York Times and those familiar with the situation, are discussing the division of the $ 7 billion in question between three countries: the Sept. 11 plaintiffs; humanitarian aid agencies; and the families of 9/11 victims who have no claims but have not received money from a special compensation fund granted by Congress.
Potentially insurmountable legal obstacles are still unresolved.
It remains unclear whether the money could be confiscated if Washington continues to deny the Taliban a legitimate government in Afghanistan that undermines Taliban ownership of the funds.
What do the families of September 11 want?
At the same time, the different groups of victims of 9/11 are far from united as to who they believe has legal claims to the funds.
Lawyers for the Havlish case say other cases – with the exception of a 2016 federal lawsuit filed by former Texas State Department executors – do not yet have final decisions against the Taliban and therefore there is no legal way to seize the money.
Representatives of Havlish’s plaintiffs declined to comment to Al Jazeera in anticipation of the government’s response on Friday.
Other groups, in particular plaintiffs in several other 9/11 cases, including the Ashton case, said they were also entitled to the funds based on a 2006 non-compliance decision against the Taliban, whether or not they had already been awarded compensation.
“I think all the 9/11 families who have a default sentence against the Taliban should be treated equally. It’s simple, “said Maloney, a lawyer representing the Ashton family.
He estimated that about 80 percent of the families of the 2,977 people killed on Sept. 11 already have these sentences by default.
Meanwhile, lawyers for the September 11 O’Neill case, which represents a group of victims who have no default sentences against the Taliban, have submitted documents (PDF) supporting the government’s review, arguing that it could lead to wider dispersion. funds to families.
The O’Neill case, originally filed in 2004, did not specifically identify the Taliban or Afghanistan as defendants.