On August 31st, 2021, President Biden announced the end of the United States’ twenty-year war in Afghanistan. The chaotic withdrawal and subsequent Taliban takeover of the country triggered a flood of litigation in U.S. courts. Two cases, in particular, have attracted significant media attention: first, the 9/11 victims’ families’ suit for $7 billion of Afghanistan’s foreign exchange reserves and second, a U.S. marine’s alleged abduction of an Afghan national. These two cases are part of a dangerous trend: the usurpation of the President’s power as the Chief Diplomat of the United States by domestic courts, undermining the fundamental principles of American foreign policy.
Afghan Central Bank Assets Litigation
After the Taliban takeover, the U.S. Treasury froze Afghanistan’s central bank reserves—amounting to just over $7 billion—which are held at the Federal Reserve Bank of New York. Soon after, four groups of plaintiffs seized the opportunity to claim the reserves, including the 9/11 victims’ families, represented in Doe v. Taliban and Havlish v. Bin Laden. Standing for these suits rests on broad post-9/11 federal legislation enabling private litigation as a means of compensation for acts of terrorism. As such, these suits treat the Taliban as an entity distinct from the government of Afghanistan, evading the question of central bank immunity, a privilege normally afforded to central bank assets under international law.
Plaintiffs in Havlish won a default judgment against the Taliban, Osama bin Laden, and other “non-sovereign” defendants in December 2011, well before the Taliban were in power. Because the new Taliban government now claims ownership of the assets owned by Afghanistan’s central bank, Da Afghan Bank (DAB), the plaintiffs have served a writ of execution on the Federal Reserve to enforce the judgment. The Doe plaintiffs, whose claim arises out of injuries sustained in a 2016 terrorist attack, have also served a writ to obtain DAB assets. The Department of Justice (DOJ) intervened with a Statement of Interest (SOI) detailing the United States’ substantial foreign policy interest in the case. The SOI includes the assertion that any decision overturning funds to the plaintiffs cannot be based on Taliban ownership of the central bank’s assets, as the U.S. has not recognized the Taliban as the government of Afghanistan.
In response, President Biden signed an executive order requiring financial institutions to transfer $3.5 billion to DAB, preserving half of the U.S.-held Afghan reserves for Afghanistan and detaching half the funds from ongoing litigation. Since that executive order, those funds have been transferred to an “Afghan Fund” to be used for the benefit of Afghans without allowing the Taliban to access the $3.5 billion.
On February 21, 2023, the Southern District of New York held that the court is “constitutionally restrained” from deciding the case in favor of the plaintiffs, agreeing with the government’s position that finding for the plaintiffs would amount to recognition of the Taliban as the legitimate government of Afghanistan. The Havlish plaintiffs’ attorney has announced their intent to appeal the court’s decision.
Abduction of an Afghan Child
In another case, U.S. Marine Corps attorney Joshua Mast has been accused of abducting an Afghan child during the withdrawal of US troops from Afghanistan. The abduction only became known in September 2022, when an Afghan couple filed a lawsuit on behalf of the child, now 3½ years old, against Mast and his wife.
The Afghan couple, known only as John and Jane Doe, allege that they are the child’s rightful parents. John Doe, the child’s first cousin, adopted the child when she was two months old after her parents and five siblings died in a U.S. military raid. While the baby was still in Afghanistan—being cared for by the Afghan couple following the deaths of her biological parents—Mast secured a custody order for her in a Fluvanna County, Virginia state court. The court granted custody on the promise that a waiver of jurisdiction from the Afghan government was imminent. The waiver never arrived and, according to the Afghan government, was never promised. Despite a federal judge’s ruling against the Masts in this matter, the state court proceeded with the case and granted the Masts a final adoption order. As the Taliban took over the country, Mast promised to get the family into the United States. Upon arrival, he allegedly used his military authority to take custody of the child against the Afghan couple’s will, abducting her. The DOJ has since filed a motion to intervene in the case citing foreign policy concerns.
The child remains with the Masts to this day as litigation over the adoption continues in Virginia.
Executive Power Over Foreign Affairs
The Supreme Court has time and time again affirmed the immense power the President wields in foreign affairs. In United States v. Curtiss-Wright Export Corp., the Court, relying on the President’s constitutionally designated role as commander-in-chief and head of the executive branch, held that the President is the “sole organ” in international relations. Since the case was decided in 1936, the President has exercised plenary power over U.S. foreign affairs independent of Congress and the courts.
That power has only expanded since 1936. When President Carter froze Iranian assets in the U.S. in reaction to the hostage crisis, the Court upheld his actions as a proper use of executive power. In 2002, when the State Department and Congress clashed over the power to recognize foreign nations, the Court again affirmed the executive branch’s absolute authority to direct foreign affairs with its holding in Zivotofsky v. Kerry. Even in the Afghan adoption case, Judge Moore noted that the State Department, not private litigants or the courts, “determine the foreign policy interest of the United States.”
It is worth noting that there is a question of whether Congress has the ability to check the President’s power over foreign relations. Justice Kennedy, writing for the Court in Zivotofsky, notoriously pushed back on Curtiss-Wright’s sweeping “sole organ” theory, although misstating the text of the latter in so doing. Despite the Court’s apparent rejection of that theory, they still affirmed its fundamental principle: foreign affairs must be conducted with “one voice”, and that is the President’s voice.
It is undeniable that the President, not Congress or the judiciary, directs American diplomacy and sets the agenda for foreign affairs. Yet in these cases, where foreign affairs are inseparable from the issues themselves, the President and the Department of Justice have only pled with the courts to act in the national interest—possibly due to what Nicholas Bagley has called “the procedure fetish”, which has undermined the willingness of the executive to ambitiously exercise authority. For example, in the Afghan bank litigation, President Biden’s executive order to preserve half of DAB’s funds for Afghanistan can be best described as a half-measure, removing some funds from ongoing litigation in the name of foreign policy interest but not all. In that case, the President has effectively ceded the executive power to decide the fate of the remaining foreign assets to the courts.
A Privileged Solution
Despite the substantive differences between these cases, both have significant implications for U.S. foreign policy. The Afghan bank litigation cases, aside from concerning billions of dollars in foreign-owned reserves, present a problem regarding foreign recognition: if the court, which is part of the U.S. federal government, rules in favor of the plaintiffs, it would be an admission by a government entity that the funds of Afghanistan’s central bank currently belong to the Taliban as Afghanistan’s government. This intrudes on the President’s power to recognize a foreign government. While SDNY Judge George Daniels agreed with the government’s position on this matter, there is no guarantee that the judges on the U.S. Court of Appeals for the Second Circuit will hold the same view.
On the adoption case, the Taliban, as the de facto government of Afghanistan, have expressed intent to “seriously pursue” the child abduction issue with American authorities, i.e. the Department of State, not any federal or state judge. Additionally, the U.S. government has a duty to fulfill its foreign obligations, namely the reunification of a child displaced by war with her family. That is a duty belonging to the executive–not judicial–branch.
Few solutions to these cases have been offered, and of those, none address the underlying issue: the judiciary’s encroachment of the President’s absolute authority in the realm of foreign affairs. The core problem with allowing the judiciary to decide, whether implicitly or explicitly, any question regarding foreign affairs is that it is simply impractical. A government cannot function when many dissenting voices are empowered with the ability to recognize foreign governments and to decide other important diplomatic issues. For a coherent foreign policy, it is necessary and logical that the power of diplomacy rests in one person: the head of state.
A more aggressive approach to litigation that implicates foreign affairs is necessary. The executive should assert a foreign policy privilege, reserved only for cases whose outcome would substantially affect U.S. international relations. No such privilege currently exists in common law, but the assertion of such a privilege is not unprecedented. In United States v. Reynolds, the Supreme Court formally recognized the state secrets privilege, which the President may assert in litigation to block any evidence that could harm national security. In practice, this privilege is powerful enough to completely abrogate ongoing litigation.
The state secrets privilege draws from the President’s immense authority over matters of national security. Given the President’s similarly great authority over foreign affairs, it is reasonable for an analogous privilege to arise from that power to protect the international interests of the United States.
Given the criticism already lodged at the state secrets privilege, it is not difficult to imagine similar criticism of another powerful executive privilege. However, the alternative is to allow present and future judicial encroachment on the President’s authority as Chief Diplomat of the United States.
Author Biography: Matthew Broussard is a Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a J.D. Candidate at The George Washington University Law School. He has a Bachelor of Arts in History from Rhodes College.
Editor: Zach Burgoyne