The fall of Afghanistan to the Taliban marked a second torment for 9/11 victims, but one consolation is that they have a legal path to claim significant additional damages. Or at least they might have had one if not for a White House order last month that excludes all but a few from receiving a payout.
In February, in a move that seemed out of the blue, President Biden signed an executive order to divide some $7 billion in seized Afghan assets. The order says half should go to humanitarian aid for Afghans, and the other half for the Taliban’s U.S. victims. The big surprise is that the order took a narrow view of which victims are worthy. Rather than make $3.5 billion available to the thousands of terror victims throughout the U.S., the President’s plan will direct most of it to about 150 people.
That’s because one set of victims already has a claim on Taliban cash. The so-called Havlish plaintiffs, who include Americans injured on 9/11 and relatives of some who died, won a default judgment against the Taliban in 2011. Their claim lay dormant for years while the Taliban had no cash within reach of the U.S. But when the terror group became sovereign again, the Havlish plaintiffs reasserted their claim to Afghan national funds.
The executive order directs a federal court to distribute awards only to plaintiffs with a current court-backed claim, so thousands of victims could go empty-handed. Only the Havlish plaintiffs have a previous court ruling against the Taliban, and their claim is moving quickly. A federal judge may garnish the Taliban funds as soon as this month.
What makes the executive order especially strange is that the U.S. already has a process to allocate terror money to victims on an equitable basis. Congress created the Victims of State Sponsored Terrorism Fund in 2015 as a compensation pool administered by the Justice Department. The Afghan assets could be added to the Justice victims fund and distributed more widely and fairly. Alleged victims could skip trial and submit a standard application, with extensive time to make claims.
Why did the White House decide to carve out a special fund for the Havlish plaintiffs? The Occam’s razor answer is the influence of plaintiffs lawyers. Attorneys for the Havlish plaintiffs are set to claim up to a third of the multibillion-dollar payout. That’s enough money to buy the yachts of Russian oligarchs if they come up for sale. If the awards were channeled through the federal victims fund, lawyers would be capped at 15% of each payout.
The Biden Administration has said little about its decision, but its favoritism for a small number of plaintiffs deserves scrutiny. Among the Havlish group’s representatives is
who advised the White House on Afghan evacuees as a special counsel to the National Security Counsel and left in January to rejoin Jenner & Block, one of the firms that stands to benefit from the executive-order windfall. Mr. Wolosky says Havlish plaintiffs deserve a lion’s share because they’ve claimed little from the Justice Department fund.
New York-area Democrats in Congress also may have pushed for the Havlish carve-out, eager to tout a victory for local 9/11 victims. Sens.
(N.Y.) held up a strategically important Sudan terrorist settlement last year to get more money for the 9/11 victims in their states.
The Afghan funds could be transferred soon, but the White House can still open the pool to more worthy claimants. Members of Congress who represent other states with terror victims also have a stake here, and should raise a fuss. The White House is intentionally ducking the victims process Congress created. A few trial lawyers shouldn’t be able to engineer a payout that enriches them at the expense of thousands of other deserving victims.
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Appeared in the March 10, 2022, print edition.