Victims, however, have sued numerous individuals and groups with less direct ties to the attackers, including defendants who allegedly provided monetary support to Al Qaeda prior to September 11, 2001. Plaintiffs argued that these Saudi defendants played a "critical role" in the September 11 attacks by giving money to Muslim groups, which in turn funded Al Qaeda. To address some issues involving the interpretation of the FSIA, among other related matters, Congress is considering the Justice Against Sponsors of Terrorism Act ( S. 2040 , H.R. 3815 ).This report addresses relevant legislative developments in its final section. Overview of the Foreign Sovereign Immunities Act

The Foreign Sovereign Immunities Act (the FSIA) applies to all foreign states and their "agencies and instrumentalities." The FSIA denies subject matter jurisdiction over claims against foreign defendants entitled to immunity. Personal jurisdiction requires both statutory authority and satisfaction of Fifth Amendment due process standards. U.S. Court of Appeals Decision in In Re Terrorist Attacks on September 11, 2001 ("Terrorist Attacks III")

In August 2008, the U.S. Court of Appeals for the Second Circuit (Second Circuit) affirmed dismissals of claims against the Kingdom of Saudi Arabia, a Saudi charity, Saudi princes, and a Saudi banker in In r e Terrorist Attacks on September 11, 2001 . Instead, the court held that U.S. courts lack jurisdiction over the claims against the Saudi defendants. The legal bases for this holding were lack of subject matter jurisdiction under the FSIA and lack of personal jurisdiction. In December 2013, the Second Circuit ordered these claims against Saudi Arabia and its agencies or instrumentalities be reinstated in the interest of justice to determine whether the tort exception applies. Charity and Princes as "Agencies and Instrumentalities" of the Kingdom

Because a foreign state's "agency or instrumentality" is entitled to the same immunity to which the state itself is entitled under the FSIA, a key threshold question was whether the SHC and the princes sued in their official capacities qualified as agencies or instrumentalities under the FSIA. Specifically, the court concurred with the district court's finding that the princes sued in their personal capacities lacked sufficient contacts with the forum to permit personal jurisdiction under the constitutional "minimum contacts" standard. In Re Terrorist Attacks on Remand to the District Court

On remand to the district court, Judge Daniels of the U.S. District Court for the Southern District of New York dismissed the claims against the Kingdom of Saudi Arabia and the SHC, holding the FSIA tort exception does not apply because of the "entire tort" rule, and suggested that the discretionary act exception to the tort exception might otherwise apply to preclude jurisdiction. Consequently, it is insufficient to overcome immunity to allege that an injury or damage occurred within the United States; it must also be demonstrated that the defendant's tortious conduct occurred within the United States. U.S. Court of Appeals' Dismissal of Claims Against Private Banks

In a separate decision in In re Terrorist Attacks on September 11, 2001 , the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of claims against five defendants whose cases had been dismissed by the district court for failure to state a claim on which relief could be granted. Plaintiffs brought claims against these defendants under a common-law tort theory as well as the Anti-Terrorism Act (ATA), the Alien Tort Statute (ATS), and the Torture Victims' Protection Act (TVPA). Circuit for aiding and abetting and conspiracy liability.
Practical and legal hurdles, including the difficulty of locating hidden Al Qaeda members and the infeasibility of enforcing judgments in terrorism cases, hinder victims' attempts to establish liability in U.S. courts against, and recover financially from, those they argue are directly responsible for the September 11 terrorist attacks. Instead, victims have sued numerous individuals and entities with only indirect ties to the attacks, including defendants who allegedly provided monetary support to Al Qaeda prior to September 11, 2001. Within the consolidated case In re Terrorist Attacks of September 11, 2001, one such group of defendants was the Kingdom of Saudi Arabia, several Saudi princes, a Saudi banker, and a Saudi charity. Plaintiffs argued that these Saudi defendants funded groups that, in turn, assisted the attackers.
A threshold question in In re Terrorist Attacks was whether U.S. courts have the power to try these Saudi defendants. In August 2008, the U.S. Court of Appeals for the Second Circuit affirmed dismissals of all claims against the Saudi defendants, holding that U.S. courts lack jurisdiction over the claims. Specifically, the court of appeals held that in this case, U.S. courts lack (1) subject matter jurisdiction over the Kingdom of Saudi Arabia, because the Kingdom is entitled to immunity under the Foreign Sovereign Immunities Act (the FSIA) and no statutory exception to immunity applies; (2) subject matter jurisdiction over the Saudi charity and Saudi princes acting in their official capacities, because they are "agents or instrumentalities" of the Kingdom and thus, under the FSIA, are entitled to immunity to the same extent as the Kingdom itself; and (3) personal jurisdiction over Saudi princes sued in their personal capacities, because the princes had insufficient interactions with the forum to satisfy the "minimum contacts" standard for personal jurisdiction under the Fifth Amendment due process clause.
In 2011, the Second Circuit reversed itself with respect to the immunity of non-terrorist states, finding that the tort exception under the FSIA does not exclude terrorist acts that take place within the United States. In 2013, the court ordered these claims against Saudi Arabia and its agencies or instrumentalities be reinstated in the interest of justice to determine whether the tort exception applies. The district court again dismissed the claims in 2015 on the basis that the "entire tort" defendants were alleged to have committed did not occur within the United States. This decision has been appealed to the U.S. Court of Appeals for the Second Circuit.
In a separate decision, the court of appeals affirmed the dismissal of claims against private Saudi banks on the basis that the Anti-Terrorism Act (ATA) does not permit secondary liability under an aiding-and-abetting theory. It also affirmed the dismissal of claims against these defendants brought under the Alien Tort Statute and the Torture Victims Protection Act, as well as claims brought as common law torts.
To address some issues related to the interpretation of the FSIA, among other related matters, Congress is considering the Justice Against Sponsors of Terrorism Act (JASTA; S. 2040, H.R. 3815).This report summarizes the FSIA and jurisdiction in cases against foreign defendants, analyzes the court decisions, and reviews legislative efforts to revise the FSIA and the ATA.