Your Bank May Be an International Terrorist: The Inconsistent Application of Tort Law Principles to Financial Services Under the Anti-Terrorism Act

• Author: Elizabeth Walsh Pittman
• Position: Elizabeth Walsh Pittman is a candidate for Juris Doctor, Class of 2019, at SMU Dedman School of Law. Elizabeth would like to thank her parents, Sam and Missy Pittman, as well as her siblings, Sam and Sarah Margaret, for their endless support and encouragement during her pursuit of a legal education.
• Pages: 411-422

Your Bank May Be an International Terrorist:

The Inconsistent Application of Tort Law

Principles to Financial Services Under the

Anti-Terrorism Act

E

LIZABETH

W

ALSH

P

ITTMAN

*

I. The Business of Terrorism

In today’s world, it often feels like terrorism is everywhere. But has

international terrorism become so pervasive that it has touched one of the

most secure and sophisticated institutions in the Western world? Has

funding international terrorism become a business opportunity for our

banks? In a recent federal court decision, Owens v. BNP Paribas (hereinafter

Owens II),

1

the United States District Court for the District of Columbia

dismissed a lawsuit filed against an international bank by the victims and

families affected by the 1998 American embassy bombings. The dismissed

complaint alleged that the bank was civilly liable for the victims’ injuries

under the Anti-Terrorism Act (ATA).

2

In dismissing this claim, the court

addressed the ill-defined proximate causation requirement necessary to

trigger liability under the ATA, as well as the concept of secondary liability

under the ATA.

3

But, the court’s analysis of this claim is flawed due to its

minimized consideration of the innate foundation tort law provides for the

ATA.

In 1998, Osama bin Laden’s international terrorist organization, al Qaeda,

bombed the United States embassies in Kenya and Tanzania, killing over

two hundred people and injuring thousands more.

4

Despite the occurrence

of the attacks in 1998, the legally pertinent time period for the provision of

liability began in the early 1990s, when the Sudanese government invited bin

Laden and al Qaeda to relocate to Sudan, giving rise to a symbiotic

relationship between the nation and the terror organization.

5

Sudan

provided a safe haven for al Qaeda members to live, train, and own

* Elizabeth Walsh Pittman is a candidate for Juris Doctor, Class of 2019, at SMU Dedman

School of Law. Elizabeth would like to thank her parents, Sam and Missy Pittman, as well as

her siblings, Sam and Sarah Margaret, for their endless support and encouragement during her

pursuit of a legal education.

1. Owens v. BNP Paribas S.A., 235 F. Supp. 3d 85, 100 (D.D.C. 2017) [hereinafter Owens II].

2. Amended Complaint ¶1, [Owens II] (No. 15–1945).

3. Id. at 90.

4. Id. at 86-87.

5. Id. at 88.

THE INTERNATIONAL LAWYER

A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW