(L); 23-354 (L) Havlish v. Taliban; Aliganga v. Taliban

23-258 (L); 23-354 (L)
Havlish v. Taliban; Aliganga v. Taliban
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 19 th day of March, two thousand twenty-six.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
RAYMOND J. LOHIER, JR.,
RICHARD J. SULLIVAN,
JOSEPH F. BIANCO,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
STEVEN J. MENASHI,
EUNICE C. LEE,
BETH ROBINSON,
MYRNA PÉREZ,
ALISON J. NATHAN,
SARAH A. L. MERRIAM,
MARIA ARAÚJO KAHN,
Circuit Judges.
_____________________________________
FIONA HAVLISH, ET AL., JOHN DOES 1
THROUGH 7, FEDERAL INSURANCE
CO., ET AL., RAYMOND ANTHONY
SMITH, ET AL., KATHLEEN ASHTON, ET
AL.,
Plaintiffs-Appellants,
v. 23-258 (L)
23-263 (CON)
23-304 (CON)

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2
23-346 (CON)
23-444 (CON)
THE TALIBAN,
Defendant-Appellee,
FEDERAL RESERVE BANK OF NEW
YORK,
Garnishee-Interested-Party-Appellee,
_____________________________________
ESTATE OF JESSE NATHANAEL
ALIGANGA, ET AL., RIZWAN KHALIQ,
ET AL., JAMES OWENS, ET AL.,
Plaintiffs-Appellants,
v. 23-354 (L)
23-797 (C)
TALIBAN, AKA THE ISLAMIC EMIRATE
OF AFGHANISTAN,
Defendant-Appellee.
_____________________________________
MATTHEW D. MCGILL , Gibson, Dunn & Crutcher LLP,
Washington, D.C. (Jessica L. Wagner, Gibson, Dunn &
Crutcher LLP, Washington, D.C.; Robert L. Weigel, Jason W.
Myatt, Gibson, Dunn & Crutcher LLP, New York, NY;
Clifton S. Elgarten, Emily M. Alban, Crowell & Moring LLP,

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3
Washington, D.C.; Jane Carol Norman, Bond & Norman
Law, PC, Rockville, MD, on the brief), for Plaintiffs-Appellants
Estate of Jesse Nathanael Aliganga, et al., Rizwan Khaliq, et
al., and James Owens, et al.
IAN H EATH G ERSHENGORN, Jenner & Block LLP, Washington,
D.C. (Douglass A. Mitchell, Jenner & Block LLP,
Washington, D.C.; Lee Wolosky, Benjamin D. Alter, Jenner
& Block LLP, New York, NY; Andrianna D. Kastanek, Jenner
& Block LLP, Chicago, IL; David A. Barrett, Boies Schiller
Flexner LLP, New York, NY; Stuart H. Singer, Boies Schiller
Flexner, Fort Lauderdale, FL; Timothy B. Fleming, Wiggins
Childs Pantazis Fisher Goldfarb, PLLC, Washington, D.C.,
on the brief), for Plaintiffs-Appellants Fiona Havlish, et al.,
Appellants in 23-258.
S AMUEL ISSACHAROFF, New York University School of Law,
New York, NY (Andrew J. Maloney, III, Kreindler &
Kreindler LLP, New York, NY; Noam Biale, Sher Tremonte,
LLP, New York, NY, on the brief), for Plaintiffs-Appellants
Kathleen Ashton, et al., Appellants in 23-444.
John Thornton, Orlando do Campo, do Campo & Thornton,
P.A., Miami, FL, for Plaintiffs-Appellants John Does 1 through
7, Appellants in 23-263.
Sean P. Carter, Stephen A. Cozen, Cozen O’Connor,
Philadelphia, PA; Richard Klingler, Ellis George Cipollone
O’Brien Annaguey LLP, Washington, D.C.; Carter G.
Phillips, Sidley Austin LLP, Washington, D.C., for Plaintiffs-
Appellants Federal Insurance Co., et al., Appellants in 23-346.
Dion G. Rassias, The Beasley Firm, LLC, Philadelphia, PA,
for Plaintiffs-Appellants Raymond Anthony Smith, et al.,
Appellants in 23-304.

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4
Following disposition of this appeal on August 26, 2025, an active judge of
the Court requested a poll on whether to rehear the case en banc. A poll having
been conducted and there being no majority favoring en banc review, the petition
for rehearing en banc is hereby DENIED.
William J. Nardini, Circuit Judge, joined by Raymond J. Lohier, Jr., Circuit
Judge, concurs by opinion in the denial of rehearing en banc.
Richard J. Sullivan, Circuit Judge, joined by Debra Ann Livingston, Chief
Judge, Joseph F. Bianco, and Michael H. Park, Circuit Judges, dissents by opinion
from the denial of rehearing en banc.
Steven J. Menashi, Circuit Judge, dissents by opinion from the denial of
rehearing en banc.
José A. Cabranes and Guido Calabresi, Circuit Judges, filed a statement with
respect to the denial of rehearing en banc.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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23-258 (L); 23-354 (L)
Havlish v. Taliban; Aliganga v. Taliban
NARDINI, Circuit Judge, joined by L OHIER, Circuit Judge, concurring in
the denial of rehearing en banc:
I concur in the denial of rehearing en banc. In particular, I agree
with the view, expressed by the panel majority and by Judge Menashi
in Part I.A-B of his dissent from the denial of rehearing en banc, that
the Executive Branch is generally entrusted with the power to
recognize foreign governments.

-- 5 of 41 --

23-258 (L); 23-354 (L)
Havlish v. Taliban; Aliganga v. Taliban
S ULLIVAN, Circuit Judge, joined by L IVINGSTON, Chief Judge, B IANCO , PARK, Circuit
Judges, dissenting from the denial of rehearing en banc:
In these cases, victims of terrorism seek to recover assets held by a Taliban-
controlled bank. The panel rejected their claims after concluding that those assets
belong to the notional State of pre-Taliban Afghanistan and accordingly enjoy
immunity under the Foreign Sovereign Immunities Act (the “FSIA”), 28 U.S.C.
§§ 1330, 1602–11. To reach that conclusion, the panel conflated diplomatic
recognition with statutory immunity in civil litigation, subverted the purpose of
the FSIA, and ignored the precedent interpreting it.
Even so, the victims still should have prevailed under the Terrorism Risk
Insurance Act of 2002 (the “TRIA”), which overrides immunity as to “the blocked
assets of [a] terrorist party.” Terrorism Risk Insurance Act of 2002, Pub. L. No.
107-297, § 201(a), 116 Stat. 2322, 2337–40 (codified as amended 28 U.S.C. § 1610
note). But the panel sidestepped the TRIA’s text, its purpose, and our own caselaw
to conclude that the victims could not recover because the assets did not belong to
the Taliban when the government froze them – even though they did when the
victims sought turnover.

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2
The full Court should have addressed those errors today. Instead, we
double-down on a panel opinion that obscures the plain meaning of two federal
statutes, muddies our jurisprudence, and blocks the families of those killed in
Taliban-directed terrorist attacks from claiming assets held by a Taliban-controlled
bank. For the reasons set forth below and in my prior dissent to the panel opinion,
I respectfully dissent from the denial of rehearing en banc.
I. Background
The Taliban ruled Afghanistan from 1996 to 2001. During that period, it
helped al-Qaeda kill and maim thousands of Americans through several infamous
acts of terrorism: the 1998 bombing of the U.S. embassies in Kenya and Tanzania,
and the unprecedented attacks of September 11, 2001 in the United States.
After the 9/11 attacks, a U.S.-led coalition invaded Afghanistan and toppled
the Taliban. But when U.S. troops left Afghanistan twenty years later, Taliban
insurgents once again seized control of the country, capturing Kabul, the capital
of Afghanistan, on August 15, 2021. They later “attained de facto control” over the
former central bank of Afghanistan – Da Afghanistan Bank (“DAB”) – by filling its
leadership positions with Taliban loyalists, including multiple designated
terrorists. Havlish v. Taliban, 152 F.4th 339, 346 (2d Cir. 2025).

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3
On the day that Kabul fell to the Taliban, the U.S. Treasury Department
froze assets that DAB held in an account at the Federal Reserve Bank of New York
(the “FRBNY”). Then-President Biden subsequently issued an Executive Order
preventing the Taliban from accessing these funds in order to safeguard the
“welfare of the people of Afghanistan.” Id. (quoting Exec. Order No. 14,064, 87
Fed. Reg. 8391 (Feb. 11, 2022)). The Executive Branch does not view the Taliban as
the legitimate government of Afghanistan, and it has transferred similar assets to
individuals whom it has accredited as official representatives of the Afghan
people. But it cannot be disputed that the former government of Afghanistan no
longer exists, that Afghan embassies have been forced to close, and that the Taliban
now controls the territory of the country, administers public services, and
exercises governmental authority.
With the Taliban back in control, two sets of plaintiffs commenced legal
actions to recover from it. In the first case, victims of the embassy bombings
pursue pre-judgment attachment of DAB’s assets. And in the second, 9/11 victims
– who have already obtained a judgment against the Taliban – seek turnover of
the same funds. The respective district courts dismissed both suits on FSIA
immunity grounds.

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4
A divided panel affirmed, holding first that the FSIA protects the assets here
because the Executive Branch has recognized a notional state of Afghanistan, and
second that the TRIA does not apply because the proper time to assess DAB’s status
as an agency or instrumentality of a terrorist party is as of when the assets were
blocked – before the Taliban took control of DAB – and not when the plaintiffs
sought turnover. As noted in the panel dissent, both holdings are incorrect as a
matter of law. Id. at 366 (Sullivan, J., concurring in part and dissenting in part).
II. The FSIA
The panel opinion’s analysis of the FSIA contravenes the statutory text,
thwarts its purpose, and throws precedent to the wind. “The FSIA provides that
‘a foreign state shall be immune from the jurisdiction of the courts of the United
States and of the States.’” Samantar v. Yousuf, 560 U.S. 305, 313 (2010) (quoting 28
U.S.C. § 1604 (emphasis added)). Accordingly, we must first determine whether
the “defendant is a ‘foreign state’ within the meaning of the Act.” Id. Such
“[i]nterpretation of the FSIA's reach” presents “a pure question of statutory
construction . . . well within the province of the Judiciary.” Republic of Austria v.
Altmann, 541 U.S. 677, 701 (2004) (internal quotation marks omitted).

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5
For over thirty years, we have “construed ‘foreign state’ as used in the FSIA”
by employing a judicially crafted test to examine whether an entity “bear[s] the
attributes of statehood.” Kirschenbaum v. 650 Fifth Ave. & Related Props., 830 F.3d
107, 123 (2d Cir. 2016) (internal quotation marks omitted) (explaining that those
attributes include “a defined territory and population, self-governance and foreign
relations, and the capacity to wage war and to enter into international
agreements”), abrogated on other grounds by Rubin v. Islamic Republic of Iran, 583 U.S.
202 (2018); see also Samantar, 560 U.S. at 314 (“The term ‘foreign state’ on its face
indicates a body politic that governs a particular territory.”). By parsing,
interpreting, and applying the FSIA’s text at the outset of private civil suits, we
have consistently discharged our “solemn duty” to “interpret the act[s] of
Congress, in order to ascertain the rights of the parties.” Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 385 (2024) (internal quotation marks omitted); see
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the
province and duty of the judicial department to say what the law is.”).
That duty has added force in the context of the FSIA – which expressly
aimed to “transfer primary responsibility for deciding ‘claims of foreign states to
immunity’ from the [Executive] to the courts.” Samantar, 560 U.S. at 313 (quoting

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6
28 U.S.C. § 1604). Prior to the FSIA’s enactment, “initial responsibility for deciding
questions of sovereign immunity fell primarily upon the Executive acting through
the State Department, and the courts abided by ‘suggestions of immunity’ from
the State Department.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 487
(1983). But rather than enhancing the Executive’s flexibility in conducting foreign
affairs, this deference to the Executive’s immunity determinations instead resulted
in foreign governments “putting strong pressure on the Department of State to
decide a lawsuit.” Foreign Sovereign Immunities Act: Hearings on H.R. 11315 Before
the Subcomm. on Administrative Law and Governmental Relations, 94th Cong., 2d Sess.
34 (1976) (testimony of Monroe Leigh, Legal Adviser, Dep’t of State). The
Executive thus became “involved in a great many cases where [it] would rather
not do anything at all,” and it accordingly supported the effort to transfer
immunity decisions to the courts, which it “would much rather” have “handle[]”
such questions. Id. Heeding the Executive’s request, “Congress passed the F[SIA]
in order to free the Government from the case-by-case diplomatic pressures” of
the prior approach. Verlinden, 461 U.S. at 488. For this reason, where the political
branches have agreed that immunity decisions should be made by the courts, “the
views of the executive branch should not control the question of whether, under

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7
the FSIA, a foreign state (or agency or instrumentality) is entitled to immunity.”
Restatement (Fourth) of Foreign Relations Law § 452 rptr. n.1 (2018) (hereinafter
“Restatement”).
The panel opinion brushes all this aside. Instead of attempting to interpret
and apply the words “foreign state,” it holds – flatly and categorically – that “[t]he
Executive Branch’s formal recognition of a state or government establishes [it] as
a foreign state for purposes of the F[SIA].” Havlish, 152 F.4th at 365. But that
oversimplistic approach to statutory interpretation disregards both the Supreme
Court’s clear instruction that the Executive’s views regarding the FSIA’s scope
“merit no special deference,” Altmann, 541 U.S. at 701, and our own Court’s
admonition that “reliance on Executive Branch definitions to construe ‘foreign
state’ under the FSIA raises several concerns,” Kirschenbaum, 830 F.3d at 124.1
The panel opinion races past these warnings because it confuses the “power
to recognize foreign nations and governments,” Zivotofsky ex rel. Zivotofsky v. Kerry,
1 To be sure, the Executive is free to “fil[e] statements of interest suggesting that courts decline to
exercise jurisdiction in particular cases implicating foreign sovereign immunity.” Altmann, 541
U.S. at 701–02 (expressing no opinion on the question of what level of deference such statements
should be granted in cases covered by the FSIA). But the government filed no such statement in
this appeal, and the panel opinion instead depends primarily on a State Department “Fact Sheet”
– an online list of “independent states” – that “was last updated in March 2025.” Havlish, 152
F.4th at 353. And while Judge Menashi insists that “the Executive Branch did provide its views
in this case” via letters submitted in the district court proceedings, Menashi Dissent at 8–9, the

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8
576 U.S. 1, 14 (2015) – which unquestionably belongs to the Executive and confers
a variety of tangible benefits on recognized States – with the separate and
narrower authority to determine when statutorily created FSIA immunity should
attach in civil litigation, which clearly belongs to the Judiciary. Havlish, 152 F.4th
at 351–52; see Restatement § 452 rptr. n.1 (“[While] the President has the exclusive
power to recognize foreign states for diplomatic purposes[,] [c]lassification as a
foreign state for FSIA purposes is a matter of statutory interpretation.” (citations
omitted)).
Both Judge Menashi’s separate dissent and Judge Nardini’s concurrence
repeat this mistake of blurring the distinction between diplomatic recognition and
statutory immunity.2 But while it is true that certain legal benefits have
panel opinion did not rely on those letters, which are brief squibs submitted years ago by a
previous U.S. attorney under a prior presidential administration. See, e.g., Letter of the United
States, Owens v. Taliban, No. 22-CV-1949 (S.D.N.Y. Feb. 24, 2023). Accordingly, the question of
what degree of deference might be afforded to formal executive intervention of that sort is not
before us.
2 Judge Menashi persists in this error throughout his dissent. See Menashi Dissent at 9 (“The FSIA
does not empower the courts to countermand the President’s decision to recognize a country.”);
id. at 11 (similar); id. at 13 (similar). But no one disagrees that the Executive has the exclusive
authority to recognize foreign states, or even that such a recognition decision may “aid” courts
“exercising independent judgment in determining the meaning of [the FSIA’s] provision[s].”
Loper Bright, 603 U.S. at 371. Such Executive input does not, however, strip the courts of their
capacity, and duty, to interpret the FSIA, which regulates only the narrow issue of immunity from
litigation in a particular case. Judge Menashi’s – and the panel’s – maximalist approach would
ignore that crucial distinction and dispense with any limiting principle: the Executive could

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9
historically flowed from “formal recognition,” including the ability to sue in
United States courts, to assert common-law sovereign immunity (prior to the
passage of the FSIA), and to engage in “regular diplomatic relations,” Zivotofsky,
576 U.S. at 11, Zivotofsky did not call into question Congress’s substantial powers
over foreign affairs generally. As the Supreme Court explained, “[t]he Executive's
exclusive power extends no further than his formal recognition determination,” and
“Congress may . . . express its disagreement with the President in myriad ways.”
Id. at 30 (emphasis added). With the FSIA, Congress vested the courts – not the
Executive – with the role of determining whether foreign states should enjoy
statutory immunity. The determination of whether an entity is a “foreign state”
under the FSIA in the narrow context of a particular civil suit, does not “alter the
President’s recognition decision[s]” or their discrete legal effects, id.; it merely
reserves questions of statutory construction to the judicial branch, as Congress
intended.
Answering the FSIA question thus requires the core judicial work of parsing
the term “foreign state” – a task in which the Executive’s input might assist us, but
recognize Disneyland, Facebook, or Purdue Pharma as a “foreign state,” and courts would have
to defer to that decision, toss the text of the FSIA aside, and dismiss all private civil suits against
those entities.

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10
in which it certainly does not bind us. See Beierwaltes v. L’Office Federale de la Culture
de la Confederation Suisse, 999 F.3d 808, 818 (2d Cir. 2021) (FSIA “vest[s] sole
responsibility for applying [its] standards in the federal judiciary”); Loper Bright,
603 U.S. at 386 (emphasizing that while “[t]he views of the Executive Branch could
inform the judgment of the Judiciary,” they “d[o] not supersede it”). The panel
opinion ignores that fundamental principle, making us the first Circuit court in
history to conflate the Executive’s power to recognize nations with the Judiciary’s
duty to interpret the jurisdictional grant of the FSIA. In essence, the panel opinion
reduces statutory immunity to a mere subspecies of Executive recognition.
Our new rule will have disastrous consequences. In this case it impedes
victims of terrorism in their multi-decade quest to recover lawful damages from
the perpetrators of heinous acts of terrorism. More generally, it frustrates the
congressional intent to compensate victims of terrorism, makes a hash of fifty
years of FSIA jurisprudence, and risks confusing other courts. Worst of all, this
new rule marks a return to the very “bedlam” that Congress sought to abate by
enacting the FSIA. See Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134, 141
(2014) (“Congress abated the bedlam in 1976, replacing the old executive-
driven . . . immunity regime with the Foreign Sovereign Immunities Act’s

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11
‘comprehensive set of legal standards governing claims of immunity in every civil
action against a foreign state.’” (quoting Verlinden, 461 U.S. at 488)). Under the
panel’s theory, courts would have no role in interpreting the meaning of the term
“foreign state,” notwithstanding the clear purpose of the statute and the
unmistakable precedents of the Supreme Court and our Court to the contrary. See
Samantar, 560 U.S. at 323 n.19 (explaining that, through the passage of the FSIA,
the State Department “sought and supported the elimination of its role with
respect to claims against foreign states and their agencies or instrumentalities”);
Kirschenbaum, 830 F.3d at 124–25 (refusing to “rel[y] on Executive Branch
definitions to construe ‘foreign state’ under the FSIA” in part because the FSIA
aimed “to transfer the determination of sovereign immunity from the executive
branch to the judicial branch” (internal quotation marks omitted)); see also OI Eur.
Grp. B.V. v. Bolivarian Republic of Venezuela, 73 F.4th 157, 170 (3d Cir. 2023) (“For
this Court to hold that . . . decisions about sovereign immunity from suit are once
again an Executive prerogative . . . would undermine the principal purpose of the
FSIA.”). Remarkably, the panel opinion makes no attempt to engage with these

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12
problems or explain how its holding comports with the language of the FSIA or
the precedents interpreting it.3
III. The TRIA
The panel compounds its FSIA error by imposing extra-textual limits on the
reach of the TRIA. But those limits foil that statute’s purpose and have no mooring
in any text or authority beyond the panel’s own vague sense of good policy.
The TRIA broadly empowers plaintiffs to enforce their judgments against
“the blocked assets of [a] terrorist party (including the blocked assets of any
agency or instrumentality of that terrorist party).” TRIA § 201(a). As we have
explained, Congress passed the TRIA to “establish[] once and for all” that
judgments obtained by terrorist victims “are to be enforced against any assets
available in the U.S.” Weinstein v. Islamic Republic of Iran, 609 F.3d 43, 50 (2d Cir.
3 Furthermore, even if Afghanistan qualifies as a foreign state, the FSIA would shield only its own
“agen[cies] or instrumentalit[ies].” 28 U.S.C. § 1603(a)–(b). And DAB is an agency of the Taliban
– not Afghanistan. The Taliban has slotted loyalists (including designated terrorists) into DAB’s
leadership positions, “prohibited women from working at DAB,” and “required that the Taliban
flag be flown at DAB meetings.” Havlish, 152 F.4th at 371–72 (Sullivan, J., concurring in part and
dissenting in part); see also Menashi Dissent at 13–16 (agreeing with this much of the panel
dissent’s agency-or-instrumentality analysis). Indeed, the panel opinion itself acknowledges that
“[t]here is little question that the Taliban has attained de facto control over DAB” and that no
country (including the United States) “has recognized the Taliban as Afghanistan’s legitimate
government.” Havlish, 152 F.4th at 346. It nevertheless overlooks these inconvenient facts and
instead relies on an almost twenty-year-old doctoral dissertation from outside the record to
support its (never briefed or raised) theory that the notional state of Afghanistan theoretically
owns DAB’s capital. Id. at 357. But there is simply no evidence that the Taliban has respected the
niceties of Afghan banking law as interpreted by a single graduate student in 2007.

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13
2010) (emphasis added and internal quotation marks omitted). Here, victims of
terrorism seek blocked assets held in the U.S. account of a Taliban-controlled
entity. The TRIA thus should make this an easy case.
The panel nevertheless holds that courts must assess the defendant’s status
as an “agency or instrumentality” of a terrorist group at the time when the assets
are blocked, as opposed to when a turnover order is issued. Havlish, 152 F.4th at
366. That reading both conflicts with the text and purpose of the TRIA and clashes
with our approach in FSIA cases, where we assess execution immunity by
evaluating conditions at the time of execution. See Aurelius Cap. Partners, LP v.
Republic of Argentina, 584 F.3d 120, 130 (2d Cir. 2009) (highlighting that, in the FSIA
context, “the property that is subject to attachment and execution must be property
in the United States of a foreign state and must have been used for a commercial
activity at the time the writ of attachment or execution is issued” (first emphasis
deleted and internal quotation marks omitted)). The panel insists, however, that
its interpretation makes sense because “[i]f an entity becomes an agency or
instrumentality of a terrorist party after that entity’s property is blocked, those

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14
blocked assets cannot have been utilized to further the mission of the terrorist
party.” Havlish, 152 F.4th at 364.
But nothing in the text of the TRIA limits its scope to assets actively
employed to fund a terrorist campaign; rather, the statute uses intentionally broad
terms to advance its goal of “deal[ing] comprehensively with the problem of
enforcement of judgments issued to victims of terrorism,” Weinstein, 609 F.3d at 50
(internal quotation marks omitted); see also Barnhart v. Sigmon Coal Co., 534 U.S.
438, 461–62 (2002) (“We have stated time and again that courts must presume that
a legislature says in a statute what it means and means in a statute what it says
there.” (internal quotation marks omitted)). The panel’s interpretation thus flows
not from the text of the TRIA, nor even from that statute’s purpose, but instead
from its own sense of how Congress should have acted to limit the exposure of
terrorist organizations. In addition to being illogical, that is simply not our role.
Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 122 (2007) (Scalia, J.,
dissenting) (“We must interpret the law as Congress has written it, not as we
would wish it to be.”).

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IV. Conclusion
The panel opinion’s pretzel logic, disregard of precedent, and indifference
to text and purpose should not have survived en banc review. But instead of giving
that opinion our full scrutiny, we close our eyes. That inaction will prove costly,
as the panel decision will contort our jurisprudence, confuse lower courts, and
eviscerate the FSIA and TRIA – all while leaving victims of terrorism empty-
handed. For these reasons, and for the reasons set forth in my original dissent to
the panel opinion, I respectfully dissent from the denial of rehearing en banc.

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23-258 (L); 23-354 (L)
Havlish v. Taliban; Aliganga v. Taliban
MENASHI, Circuit Judge, dissenting from the denial of rehearing en
banc:
I would reconsider these cases en banc because the panel
opinion erred in concluding that the Afghan central bank—“Da
Afghanistan Bank” or “DAB”—is entitled to immunity under the
Foreign Sovereign Immunities Act.
I agree with the panel opinion that a court cannot second-guess
the recognition decision of the President that a country is a “foreign
state,” even for purposes of the FSIA. The FSIA aimed to provide
predictable standards by which foreign sovereigns receive immunity
in American courts, and it would undermine that purpose if the
Executive and Judicial Branches could reach conflicting conclusions
about which states are sovereign in the first place. In our
constitutional system, the President rather than the courts recognizes
foreign states. Because the Executive Branch recognizes Afghanistan
as a foreign state, the panel was bound to accept that determination.
But DAB is not itself a foreign state. It receives immunity only if it
qualifies as “an agency or instrumentality” of Afghanistan. 28 U.S.C.
§ 1603(a). DAB does not so qualify because Afghanistan neither owns
nor controls it. I would therefore hold that DAB is not entitled to
immunity.
The panel opinion further erred in concluding that for purposes
of § 201 of the Terrorism Risk Insurance Act of 2002 (“TRIA”), the
status of an entity as an agency or instrumentality of a terrorist party
must be determined as of the date that the assets sought in the
turnover motion were blocked. I would hold instead that a court must
make that determination at the time of the turnover order. This
approach accords with the text and purpose of the statute, and it
parallels the related framework of the FSIA.

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2
Because I would hold that (1) DAB is not an agency or
instrumentality of Afghanistan that receives immunity under the
FSIA, and (2) the status of an entity as an agency or instrumentality
under the TRIA must be assessed at the time of the turnover order, I
dissent from the denial of rehearing en banc.
I
The panel opinion correctly held that the President’s
determination that a country is a foreign state is conclusive. That
holding accords with the text, structure, and purpose of the FSIA. The
FSIA does not provide statutory standards for determining whether
an entity qualifies as a foreign state, and it does not authorize a federal
court to invoke principles of international law to override a
recognition decision by the President acting within his exclusive
constitutional sphere of authority. The FSIA does, however, provide
standards for determining whether an entity qualifies as an agency or
instrumentality of a foreign state, and under those standards DAB is
not one.
A
Before the FSIA was enacted, “[t]he doctrine of foreign
sovereign immunity developed as a matter of common law.”
Samantar v. Yousuf, 560 U.S. 305, 311 (2010). Early on, Chief Justice
Marshall explained that a foreign sovereign lacks a right to immunity
from suit in American courts because “[t]he jurisdiction of the nation
within its own territory is necessarily exclusive and absolute” and “is
susceptible of no limitation not imposed by itself.” Schooner Exch. v.
McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812). As a matter of comity,
however, countries typically waived jurisdiction over foreign
sovereigns—and, on the suggestion of the Executive Branch, the
Supreme Court agreed to waive its jurisdiction over an armed ship of

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3
a foreign state found in an American port. See id. at 137, 145-47.
“[T]hat opinion came to be regarded as extending virtually absolute
immunity to foreign sovereigns.” Verlinden B.V. v. Central Bank of
Nigeria, 461 U.S. 480, 486 (1983).
Following that precedent, the Supreme Court “consistently has
deferred to the decisions of the political branches—in particular, those
of the Executive Branch—on whether to take jurisdiction over actions
against foreign sovereigns and their instrumentalities.” Id. “For much
of our history, claims of foreign sovereign immunity were handled on
a piecework basis that roughly paralleled the process in Schooner
Exchange.” Opati v. Republic of Sudan, 140 S. Ct. 1601, 1605 (2020).
“[A]fter a plaintiff sought to sue a foreign sovereign in an American
court, the Executive Branch, acting through the State Department,
filed a ‘suggestion of immunity’—case-specific guidance about the
foreign sovereign’s entitlement to immunity.” Id. If the State
Department provided the suggestion of immunity, “the district court
surrendered its jurisdiction.” Samantar, 560 U.S. at 311. Only “in the
absence of recognition of the immunity by the Department of State”
did the district court exercise the “authority to decide for itself
whether all the requisites for such immunity existed.” Ex parte
Republic of Peru, 318 U.S. 578, 587 (1943).
The State Department provided suggestions of immunity in all
cases against friendly sovereigns until 1952, when it “announced the
‘restrictive’ theory of foreign sovereign immunity.” Turkiye Halk
Bankasi A.S. v. United States, 143 S. Ct. 940, 946 (2023); see also Republic
of Austria v. Altmann, 541 U.S. 677, 689-90 (2004). Pursuant to the
restrictive theory, “immunity was typically afforded in cases
involving a foreign state’s public acts, but not its strictly commercial
acts.” Turkiye Halk Bankasi, 143 S. Ct. at 946. The restrictive theory did
not alter the role of the courts. “As in the past, initial responsibility

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4
for deciding questions of sovereign immunity fell primarily upon the
Executive acting through the State Department, and the courts abided
by ‘suggestions of immunity’ from the State Department.” Verlinden,
461 U.S. at 487.
But the adoption of the restrictive theory produced inconsistent
results. Diplomatic pressure and political considerations sometimes
“led to suggestions of immunity in cases where immunity would not
have been available under the restrictive theory.” Id. When a foreign
state failed to request a suggestion from the State Department, “the
responsibility fell to the courts to determine whether sovereign
immunity existed, generally by reference to prior State Department
decisions.” Id. “Not surprisingly, the governing standards were
neither clear nor uniformly applied.” Id. at 488.
By enacting the FSIA in 1976, Congress “sought to standardize
the judicial process with respect to immunity for foreign sovereign
entities in civil cases.” Turkiye Halk Bankasi, 143 S. Ct. at 946. The FSIA
“codifies a baseline principle of immunity for foreign states and their
instrumentalities,” id. (citing 28 U.S.C. § 1604), and it authorizes suit
only if one of several enumerated exceptions to that principle applies,
see 28 U.S.C. §§ 1605-07.
Congress explained that the purpose of this framework is to
provide for “the determination by United States courts of the claims of
foreign states to immunity.” Id. § 1602 (emphasis added). Congress
furthered that purpose by codifying the restrictive theory of
sovereign immunity into a set of rules that could be consistently
applied. Those rules replaced the inconsistent invocation of sovereign
immunity that prevailed when the courts relied on suggestions of
immunity from the State Department. See H.R. Rep. No. 94-1487, at 7
(1976); see also Altmann, 541 U.S. at 691.

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5
The FSIA provides no standards, however, for determining
whether a country is a “foreign state” in the first place. It does not
even define “foreign state.” To be sure, in the absence of a recognition
decision by the Executive Branch, courts have determined whether a
state is sovereign by reference to “general principles of international
law,” but “those principles were defeasible, subconstitutional rules
that the sovereign could override through clear command.” Fuld v.
PLO, 145 S. Ct. 2090, 2115 (2025) (Thomas, J., concurring in the
judgment). Judicial deference to the decisions of the political branches
to override international default rules “respects the Constitution’s
design by reserving matters of foreign affairs to the political
branches.” Id.
If courts were to develop rules that supersede the decision of
the political branches that a country qualifies as a foreign state, those
rules would replicate the patchwork immunity regime that the FSIA
aimed to replace. Under the FSIA, a foreign state receives
presumptive immunity from suit. See 28 U.S.C. § 1604. If immunity
were to depend on a country persuading not only the State
Department but each court in which litigation occurs that it should be
considered a foreign state, there would be even less predictability
than prevailed prior to the FSIA. A court in the Second Circuit might
decide that Afghanistan is not a foreign state, but a court in the Fifth
Circuit might decide that it is—perhaps based on different
interpretations of the relevant international law standards. The
Supreme Court would need to resolve such disagreements, followed
by remands for previously dismissed litigation to proceed or for
previously conducted litigation to be dismissed. This sort of system
would not represent an improvement on the pre-FSIA framework; it
would be more costly and time-consuming, and the strain on
American foreign policy would result not from decisions of the

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6
politically accountable Executive Branch but from the unaccountable
courts.
We have explained that “[i]n the FSIA, Congress set forth ‘a
comprehensive set of legal standards governing claims of immunity
in every civil action against a foreign state or its political subdivisions,
agencies, or instrumentalities’ and vested sole responsibility for
applying those standards in the federal judiciary.” Beierwaltes v.
L’Office Federale de la Culture de la Confederation Suisse, 999 F.3d 808,
818 (2d Cir. 2021) (citation and alteration omitted) (quoting Verlinden,
461 U.S. at 488). But that means the responsibility of the federal courts
is to adjudicate the “claims of immunity” for which the FSIA provides
standards. In contrast to those comprehensive standards, “[t]he FSIA
begins with the baseline presumption that foreign states are ‘immune
from the jurisdiction of United States courts,’” id. (quoting Chettri v.
Nepal Rastra Bank, 834 F.3d 50, 55 (2d Cir. 2016)), and it provides no
standards—comprehensive or otherwise—for deciding which entities
qualify as foreign states that receive the presumption.
In a different context, the Supreme Court has declined to
interpret a statute in a way that “would require courts, rather than the
President,” to evaluate “a foreign government’s conduct” because the
statutory text “offers no standards that would enable courts to assess,
for example, whether the situation in North Korea justifies entry
restrictions while the terrorist threat in Yemen does not.” Trump v.
Hawaii, 138 S. Ct. 2392, 2415 (2018). The FSIA similarly offers no
standards for courts to decide—in contravention of the diplomatic
position of the United States—that an entity should not be recognized
as a foreign state. “[T]he absence of any textual basis” for such
authority “likely indicates that Congress did not intend” for courts to
exercise it. Id.

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7
In my view, the panel opinion was correct to observe that
“while the FSIA ‘defines the circumstances in which foreign states are
immune from suit,’ the FSIA emphatically does not charge the
Judiciary with the threshold power to determine whether the basic
legal existence of a foreign state is recognized, especially in
contravention of the Executive.” Havlish v. Taliban, 152 F.4th 339, 351
(2d Cir. 2025) (alteration omitted) (quoting Turkiye Halk Bankasi,
143 S. Ct. at 947).
“A principal purpose” of the FSIA was “to transfer the
determination of sovereign immunity from the executive branch to
the judicial branch, thereby reducing the foreign policy implications of
immunity determinations and assuring litigants that these often
crucial decisions are made on purely legal grounds and under
procedures that insure due process.” H.R. Rep. No. 94-1487, at 7
(emphasis added). To transfer the determination of not only
immunity but also statehood would complicate foreign policy when
courts disagreed with each other or with the political branches, and it
would require courts to depart from purely legal grounds by making
decisions based on extra-statutory standards that implicate political
and diplomatic considerations. The FSIA does not suggest that
Congress wanted courts to do that.
The other dissent says that if the President wants the courts to
respect his recognition decisions, he “is free to file statements of
interest suggesting that courts decline to exercise jurisdiction in
particular cases implicating foreign sovereign immunity.” Ante
at 7 n.1 (internal quotation marks and alteration omitted). The other
dissent reserves judgment on “the question of what degree of
deference might be afforded to formal executive intervention”
because “the government filed no such statement in this appeal.” Id.
So the other dissent might defer to the recognition decision of the

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8
Executive Branch when expressed in a court filing. That possibility
undermines the otherwise confident assertion of the other dissent that
“Congress vested the courts—not the Executive—with the role of
determining whether foreign states should enjoy statutory
immunity.” Id. at 9.
Unquestionably, one purpose of the FSIA was to obviate the
need for the State Department to file suggestions of immunity in
every case. Yet the other dissent reads the FSIA to require additional
court filings such that the State Department must provide suggestions
not only of immunity but also of statehood. That approach defeats the
purpose of the FSIA. Congress wanted the courts to decide whether a
foreign state receives immunity in a given case. Nothing in the FSIA
confers authority on the courts to determine whether a country
should be considered a foreign state at all.
In any event, the Executive Branch did provide its views in this
case. The United States submitted a letter to the district court arguing
that the property of DAB should be immune from execution because
“DAB is an agency or instrumentality of the State of Afghanistan.”1
And the United States filed statements of interest explaining that DAB
“is the central bank of the foreign state of Afghanistan”2 and that
1 Letter of the United States at 2, Owens v. Taliban, No. 22-CV-1949
(S.D.N.Y. Feb. 24, 2023), ECF No. 81; see also id. (“[A]s the United States has
previously stated, and confirms again here, the Da Afghanistan Bank
(‘DAB’) ‘is an agency or instrumentality of the State of Afghanistan and
thus is to be treated as a “foreign state” for purposes of the FSIA.’”) (quoting
Statement of Interest at 21, Havlish v. Bin-Laden, No. 03-CV-9848 (S.D.N.Y.
Feb. 11, 2022), ECF No. 563).
2 Statement of Interest, supra note 1, at 8; see also id. at 15 (“DAB is the central
bank of the State of Afghanistan.”).

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9
“DAB is an agency or instrumentality of the State of Afghanistan.”3
If the United States did not insist that Afghanistan is a foreign state as
frequently and as fervently as the other dissent would have preferred,
that is only because there has never been a practice of filing
suggestions of statehood, and no court has ever said that such a
practice is required.
B
The FSIA does not empower the courts to countermand the
President’s decision to recognize a country as a foreign state—and the
Constitution certainly does not do so either.
Under the Constitution, the President is “the sole organ of the
federal government in the field of international relations.” United
States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). The
Constitution vests in the President the power to appoint and to
receive ambassadors, U.S. Const. art. II, §§ 2-3, and these authorities
mean that “recognition is exclusively a function of the Executive,”
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964); see also
Guaranty Trust Co. v. United States, 304 U.S. 126, 137 (1938) (“What
government is to be regarded here as representative of a foreign
sovereign state is a political rather than a judicial question, and is to
be determined by the political department of the government.”). The
Supreme Court has reaffirmed that “[r]ecognition is a topic on which
the Nation must ‘speak with one voice’” and “[t]hat voice must be the
President’s.” Zivotofsky v. Kerry, 576 U.S. 1, 14 (2015) (alteration
omitted) (quoting American Ins. Assn. v. Garamendi, 539 U.S. 396, 424
(2003)).
3 Statement of Interest at 21, John Does 1 Through 7 v. Taliban, No. 20-MC-
740 (S.D.N.Y. Feb. 11, 2022), ECF No. 49.

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10
The other dissent does not dispute that the recognition power
belongs exclusively to the President. It argues, however, that while
the “formal” recognition of a foreign state is a decision that
“unquestionably belongs to the Executive,” the “separate and
narrower authority to determine when statutorily created FSIA
immunity should attach … clearly belongs to the Judiciary.” Ante at
7-8. The other dissent describes the latter determination as involving
“the core judicial work of parsing the term ‘foreign state.’” Id. at 9.
And it emphasizes that it “is emphatically the province and duty of
the judicial department to say what the law is.” Id. at 5 (quoting
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). But the
invocation of that familiar truism begs the question of what the law
requires. Cf. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2263
(2024) (recognizing that sometimes “the best reading of a statute” is
that another branch of government has “discretionary authority”).
Determining whether a country qualifies as a foreign state
under the FSIA is—at the very least—not “a pure question of statutory
construction.” Ante at 4 (emphasis added) (quoting Altmann, 541 U.S.
at 701). The FSIA provides comprehensive statutory standards for
evaluating whether, for example, the activities of a foreign state at
issue in a particular case were commercial rather than governmental.
See 28 U.S.C. § 1605(a)(2). But it provides no standards for deciding
that a country does not qualify as a foreign state at all and therefore
cannot claim immunity in any case. Conducting such an inquiry
necessarily requires a court to look beyond the statute to geopolitics,
international legal standards, and American diplomacy. That exercise
might be inevitable in the absence of a recognition decision by the
Executive Branch. Indeed, the traditional approach has been that “a
court will decide whether to treat an entity as a state, or a foreign
regime as a government, where such a determination is necessary for

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11
the purposes of a case before the court” only “[i]n the absence of a
Presidential decision.” Restatement (Third) of Foreign Relations Law
§ 204 cmt. a (1987). But when the relevant constitutional actor has
exercised the recognition power, the courts have no authority—based
on the FSIA or the Constitution—to second-guess it.4
The other dissent criticizes the panel opinion for purportedly
making ours “the first [c]ircuit court in history to conflate the
Executive’s power to recognize nations with the Judiciary’s duty to
interpret the jurisdictional grant of the FSIA.” Ante at 10. But no circuit
court has overridden a decision of the President—acting within his
exclusive constitutional sphere of authority—to recognize a country
as a foreign state. The other dissent would have ours be the first circuit
court in history to conclude that the FSIA requires that result.
4 I would not displace the traditional approach with the framework
proposed in a more recent Restatement. See Kansas v. Nebraska, 574 U.S. 445,
475 (2015) (Scalia, J., concurring in part and dissenting in part) (“[M]odern
Restatements … are of questionable value, and must be used with
caution. … Over time, the Restatements’ authors have abandoned the
mission of describing the law, and have chosen instead to set forth their
aspirations for what the law ought to be.”); see also United States v. Yousef,
327 F.3d 56, 99 (2d Cir. 2003) (explaining that Restatements “are not primary
sources of international law” and “at most provide evidence of the practice
of States, and then only insofar as they rest on factual and accurate
descriptions of the past practices of states, not on projections of future
trends or the advocacy of the ‘better rule’”). But even the most recent
Restatement of Foreign Relations Law explains that “[t]o determine
whether a particular territorial, political, or regional body is a foreign state
under the FSIA, courts consider whether it has been formally recognized by the
United States, as well as the criteria of statehood from international law.”
Restatement (Fourth) of Foreign Relations Law § 452 reporters’ note 1
(2018) (emphasis added) (citing Kirschenbaum v. 650 Fifth Ave. & Related
Props., 830 F.3d 107, 123 (2d Cir. 2016)).

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12
The other dissent faults the panel opinion for “blurring the
distinction between diplomatic recognition and statutory immunity.”
Id. at 8. But it is the other dissent that blurs the distinction between
immunity and statehood, which have always been understood as
different concepts. “[N]ineteenth-century courts deferred to
executive findings of ‘fact’ as to whether the government was
officially sovereign. But those findings typically did not resolve the
immunity issue itself, which could be dependent on the facts of the
case.”5 When courts “could make independent determinations on
whether a foreign sovereign was immune from suit in a particular set
of circumstances,” the courts nevertheless “regarded themselves as
bound by executive branch determinations of the existence of
sovereign status.”6
Perhaps Congress might be able to transfer from the President
to the courts the determination of which entities qualify as foreign
states under the FSIA. If Congress had provided statutory criteria for
determining whether a country qualifies as a foreign state—in the
same way that it provided criteria for adjudicating the claim of a
foreign state to immunity—we would be compelled to conclude that
Congress had attempted to do so. The question would then arise as to
whether Congress was constitutionally permitted to transfer so
integral an aspect of the recognition power away from the President.
The last time such a dispute arose, the Supreme Court explained that
“[t]he President’s exclusive recognition power encompasses the
authority to acknowledge, in a formal sense, the legitimacy of other
states and governments, including their territorial bounds,” and that
5 G. Edward White, The Transformation of the Constitutional Regime of Foreign
Relations, 85 Va. L. Rev. 1, 27 (1999).
6 Id. at 134.

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13
this “is an executive power that Congress may not qualify.”
Zivotofsky, 576 U.S. at 17. In light of that decision, I lack the confidence
of the other dissent that the Constitution would permit Congress to
deprive the President of the power to recognize an entity as a foreign
state eligible for a presumption of immunity in American courts—and
to confer that power instead on the judiciary.
But Congress has not even attempted to make such a transfer.
Neither the text nor the structure nor the purpose of the FSIA
indicates that Congress wanted courts to decide which countries
should be recognized as foreign states. And the FSIA has not
previously been understood to transfer this aspect of the recognition
power to judges. In the absence of a clearly expressed congressional
purpose to encroach on what would otherwise be the President’s
exclusive constitutional power of recognition, I would not conclude
that Congress has impliedly so encroached. See Ashwander v. Tenn.
Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“[I]f a
case can be decided on either of two grounds, one involving a
constitutional question, the other a question of statutory construction
or general law, the Court will decide only the latter.”); see also Learning
Resources, Inc. v. Trump, 146 S. Ct. 628, 639 (2026) (“‘Both separation of
powers principles and a practical understanding of legislative intent’
suggest[] Congress would not have delegated ‘highly consequential
power’ through ambiguous language.”) (plurality opinion)
(alteration omitted) (quoting West Virginia v. EPA, 142 S. Ct. 2587,
2609 (2022)).
C
While the FSIA does not provide statutory standards for
determining whether an entity qualifies as a foreign state, it does
provide a detailed scheme for evaluating whether an entity qualifies

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14
as an agency or instrumentality of a foreign state. I would accept the
determination of the President that Afghanistan is a foreign state but
hold that DAB is not an agency or instrumentality of Afghanistan.
Accordingly, I agree with the conclusion of the other dissent that DAB
is not entitled to sovereign immunity. See ante at 12 n.3.
The FSIA provides that not only the foreign state itself but also
an agency or instrumentality of the foreign state receives immunity in
American courts. See 28 U.S.C. § 1603(a). An agency or
instrumentality of a foreign state is an entity that is (1) “a separate
legal person, corporate or otherwise,” (2) “an organ of a foreign state
or political subdivision thereof, or a majority of whose shares or other
ownership interest is owned by a foreign state or political subdivision
thereof,” and (3) “neither a citizen of a State of the United
States … nor created under the laws of any third country.” Id.
§ 1603(b).
No one disputes that DAB is a separate legal person or
contends that it fails the third prong. The question is whether it is “an
organ” of Afghanistan or whether a majority of its shares are
“owned” by Afghanistan. To determine whether an entity is an organ
of a foreign state, we consider “(1) whether the foreign state created
the entity for a national purpose; (2) whether the foreign state actively
supervises the entity; (3) whether the foreign state requires the hiring
of public employees and pays their salaries; (4) whether the entity
holds exclusive rights to some right in the foreign country; and
(5) how the entity is treated under foreign state law.” Filler v. Hanvit
Bank, 378 F.3d 213, 217 (2d Cir. 2004) (alteration omitted).
The record here demonstrates that the Taliban rather than the
State of Afghanistan controls DAB. The district court observed that
the Taliban has “laid claim to the roughly $7 billion in assets held by

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15
[DAB] at the N.Y. Fed.” Owens v. Taliban, No. 22-CV-1949, 2023 WL
2214887, at *1 (S.D.N.Y. Feb. 24, 2023). And the district court found as
follows:
Since taking control of Afghanistan, the Taliban has
installed its own officials at DAB, controlled DAB’s
decision-making, established a committee to replace
Afghanistan’s central banking laws with traditional
Islamic banking, and eliminated (or, at a minimum,
seriously compromised) DAB’s anti-money laundering
and anti-terrorism financing efforts. Foreign governments
and organizations have avoided transacting with DAB
due to its affiliation with the Taliban.
Id. at *2 (citations omitted). The Taliban has also set workplace
conditions at DAB—which now include a prohibition on women
employees, mandatory prayer, and the flying of the Taliban flag at
meetings. See Havlish, 152 F.4th at 371-72 (Sullivan, J., concurring in
part and dissenting in part). The record, in other words, shows that
DAB is no longer “an organ” of the State of Afghanistan.
The panel opinion did not contend otherwise but concluded
that DAB still qualifies as an agency or instrumentality because “a
majority of [its] shares or other ownership interest is owned” by the
State of Afghanistan. 28 U.S.C. § 1603(b)(2). That conclusion rested on
two pieces of evidence. First, “the Afghanistan banking law sets forth
th[at] ‘the capital of Da Afghanistan Bank shall belong to the State of
Afghanistan.’” Havlish, 152 F.4th at 357 (alterations omitted) (quoting
Afghanistan Bank Law, art. 27.2 (Dec. 17, 2003)). Second, “a study
analyzing the structure of central banks finds that DAB is subject to
‘100% state ownership.’” Id. (quoting Jan Weidner, The Organisation
and Structure of Central Banks 192 (Dissertation, Technical
University of Darmstadt 2017)). This evidence does not support the
conclusion of the panel opinion.

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The text of § 1603(b)(2) uses the present tense, and we have
explained that “the present tense reflects the FSIA’s concern with
current political realities and relationships.” Bartlett v. Baasiri, 81 F.4th
28, 33 (2d Cir. 2023) (internal quotation marks omitted); see also
Altmann, 541 U.S. at 696 (“[S]uch immunity reflects current political
realities and relationships, and aims to give foreign states and their
instrumentalities some present protection from the inconvenience of
suit as a gesture of comity.”) (internal quotation marks omitted). As a
result, we have held that “[t]he most natural reading of the statute is
one that gives foreign sovereigns immunity even when they gain their
sovereign status mid-suit,” and for that reason “immunity under the
Foreign Sovereign Immunities Act may attach when a defendant
becomes an instrumentality of a foreign sovereign after a suit is filed.”
Bartlett, 81 F.4th at 33 (citation omitted). It follows that immunity may
also be lost when a defendant ceases to be an instrumentality of a
foreign sovereign because a non-sovereign entity has captured it.
So it matters that the Afghanistan banking law is no longer
operative and does not reflect the current ownership of DAB. The
study of central banks—which was published before the Taliban took
over DAB—simply repeats the formalities of the inoperative banking
law. See Weidner, supra, at 192. It does not address the current reality
of the ownership or control of DAB.
The panel opinion departed from those precedents holding that
claims of immunity must be evaluated in light of current political
realities. I would rehear these cases en banc to eliminate the conflict
with those precedents. See Fed. R. App. P. 40(b)(2)(A)-(B). In doing so,
I would conclude that DAB is not an agency or instrumentality of
Afghanistan but rather of the Taliban and is not entitled to immunity
under the FSIA.

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17
II
I agree with the other dissent that the panel opinion
additionally erred in holding that the status of an entity as an agency
or instrumentality of a terrorist party under the TRIA must be
determined as of the time the assets were blocked. See Havlish, 152
F.4th at 364-65. I would rehear these cases en banc to correct this
second error as well.
Section 201(a) of the TRIA authorizes plaintiffs to seek
execution or attachment of “the blocked assets of [a] terrorist party
(including the blocked assets of any agency or instrumentality of that
terrorist party).” 28 U.S.C. § 1610 note. Section 201(d)(2)(A) defines
“blocked asset” as “any asset seized or frozen by the United States.”
Id. The panel opinion concluded that “[t]he blocking date … serves as
a critical inflection point ripe for determining the time at which we
should evaluate an entity’s status under the TRIA as an agency or
instrumentality.” Havlish, 152 F.4th at 364.
That analysis does not follow from the statutory phrase
“blocked assets.” An asset may be frozen by the United States, and its
owner may later become an agency or instrumentality of a terrorist
party. The asset would remain an “asset seized or frozen by the
United States”—and accordingly a “blocked asset”—regardless of the
change in status of the owner. While “‘blocking’ is a status imposed by
the United States at a certain time,” id. (emphasis added), the status
of being a “blocked asset” continues past the blocking date.
The panel opinion suggested that “blocked assets are not ‘of’ a
terrorist party if those assets did not belong to either the terrorist
party, or an entity then operating as an agency or instrumentality of
the terrorist party, as of the date that the assets were blocked.” Id. But
assets that yesterday were not “of” a terrorist party might today be

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18
“of” a terrorist party if the owner has become an agency or
instrumentality of a terrorist party. Cf. Bartlett, 81 F.4th at 33. No one
doubts that the blocked assets here are assets “of” DAB or that DAB
is controlled by the Taliban. If the assets were unblocked today,
DAB—and therefore the Taliban—would control the assets.
Even if there were some policy reason to approach blocked
assets in the way the panel opinion described, that was not the policy
that Congress adopted in the TRIA. The statute straightforwardly
provides that assets shall be available to satisfy a judgment against a
terrorist party if the assets are “blocked” and are “of th[e] terrorist
party.” 28 U.S.C. § 1610 note. There are no additional requirements.
The history of the statute confirms that Congress intended to
adopt this uncomplicated rule. Prior to the TRIA, the President was
statutorily authorized to prevent the attachment of the blocked
property of foreign states, and he often did so.7 Congress enacted the
TRIA to prevent the President from impeding recovery by judgment
creditors. See Heiser, 735 F.3d at 939. The statute aimed not only to
enable “victims of terrorism” to satisfy judgments “from the frozen
assets of terrorist parties” but also to “establish[] once and for all, that
such judgments are to be enforced against any assets available in the
U.S., and that the executive branch has no statutory authority to defeat such
enforcement under standard judicial processes.” Weinstein v. Islamic
Republic of Iran, 609 F.3d 43, 50 (2d Cir. 2010) (emphasis added)
7 See Heiser v. Islamic Republic of Iran, 735 F.3d 934, 939 (D.C. Cir. 2013) (“The
President waived [attachment] in almost all cases after finding that
attachment of blocked property would ‘impede the ability of the President
to conduct foreign policy’ and ‘impede the effectiveness of prohibitions and
regulations upon financial transactions.’”) (alteration omitted) (quoting
Determination to Waive Requirements Relating to Blocked Property of
Terrorist-List States, 63 Fed. Reg. 59201, 59201 (Oct. 21, 1998)).

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19
(quoting 148 Cong. Rec. S11528 (Nov. 19, 2002) (statement of Sen.
Harkin)). Congress directed that the blocked assets could be used to
pay victims “whether or not the executive agreed.” Heiser, 735 F.3d
at 939. But the panel opinion—by limiting the reach of the TRIA to
assets that belonged to terrorists before the Executive Branch blocked
the assets—effectively returned to the Executive Branch the sort of
discretionary power over the assets that the TRIA aimed to eliminate.
These cases illustrate the problem. It is undisputed that the
assets are blocked, and there is no real question that the owner of
those assets—DAB—is an agency or instrumentality of the Taliban.
Yet the panel opinion held that the assets are beyond the reach of
victims of terrorism because DAB was not an agency or
instrumentality of the Taliban at the time the Executive Branch
decided to block the assets. The Executive Branch blocked the assets
when the Taliban captured Kabul, however, precisely to avoid the use
of the assets for terrorist purposes. Pursuant to the panel opinion, if
the government had blocked the assets after the Taliban took over
DAB, the funds would be available to victims of the Taliban. But if the
government blocked the assets because the Taliban was about to take
over DAB, the victims cannot recover.
The theory of the panel opinion seems to be that the assets
continue to belong to the preexisting DAB that was not an agency or
instrumentality of the Taliban. But that DAB does not exist. The assets
belong to the actual DAB that is an agency or instrumentality of the
Taliban. And the TRIA deals with actual rather than imaginary
ownership. Cf. id. at 940 (deciding, for purposes of the TRIA, whether
an entity “actually owns the contested accounts” by reference to a
conventional and commonly accepted “measure of ownership”).

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20
I would rehear these cases to hold that the status of an entity as
an agency or instrumentality of a terrorist party under the TRIA must
be assessed at the time of the turnover order because the statute, as in
the related context of the FSIA, concerns “current political realities
and relationships.” Bartlett, 81 F.4th at 33.
* * *
The panel opinion correctly accepted the recognition decision
of the President that Afghanistan is a foreign state. But when
evaluating whether DAB qualifies as an agency or instrumentality
under either the FSIA or the TRIA, the panel opinion ignored the
statutory command that sovereign immunity and the execution of
judgments must reflect current political realities. DAB is an
instrumentality of the Taliban rather than the State of Afghanistan.
Because the panel opinion pretended otherwise, I would rehear the
cases en banc. I dissent from the decision of the court not to do so.

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23-258 (L); 23-354 (L)
Havlish v. Taliban; Aliganga v. Taliban
JOSÉ A. C ABRANES AND G UIDO C ALABRESI, Circuit Judges:
After careful review, the Court has voted to deny en banc review
of these cases. Rightly so. Although the cases involve highly
complicated legal issues, we addressed them head-on and
painstakingly in our Majority Opinion. Rather than re-engage in
lengthy disputations here, we stand by—and refer all interested
persons to—that Opinion.

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