Under the heading of “arguments you never want to find yourself making,” consider the DC Circuit’s recent decision (link opens a PDF) upholding Afghanistan’s immunity from suit under the Foreign Sovereign Immunities Act (which governs claims against foreign governments) for its involvement, via its sponsorship of Al Qaeda, in the 1998 embassy bombings. Now, for the uninitiated (count your blessings), one of the exceptions to immunity under the FSIA – and, apparently, the only one the plaintiffs thought they could pursue – is that a foreign state may be liable for
an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.
The idea behind this “commercial activity” exception is that states should be able to be sued in at least some cases when they do things, like selling oil or running airlines, that ordinary businesses do. The problem, of course, is that this argument put the plaintiffs in the preposterous position of arguing that the Taliban’s relationship with Al Qaeda was “a commercial activity.” They explained this theory thus:
The Taliban actively aided Bin Ladin by assigning him guards for security, permitting him to build and maintain terrorist camps, and refusing to cooperate with efforts by the international community to extradite him. Bin Laden provided approximately $10-$20 million per year to the Taliban in return for safe haven.
Slip op. at 24. Naturally, the DC Circuit did not buy the idea that this is the sort of activity that characterizes non-sovereign commercial actors:
Granting refuge to terrorist training camps is a uniquely sovereign act; it is not the sort of benefit that a commercial landlord can bestow upon a commercial tenant. As the plaintiffs themselves describe, refuge involved both the “assigning [of] guards for security” and the “refus[al] to . . . extradite” bin Laden.
Id. at 27.