argue the Court’s adjudication of Plaintiffs’

796 argue the Court’s adjudication of Plaintiffs’ claims would interfere with the executive branch’s discretion to designate state sponsors of terror. See 28 U.S.C. § 1605(a)(7)(A) (isting statutes that give Secretary of State authority to designate countries as sponsors of terrorism). Fi- nally, Defendants submit the purpose of(a)(5) was “to eliminate a foreign state’s immunity for traffic accidents and other torts committed in the United States, for which liability is imposed under domestic tort law.” Amerada Hess, 488 U.S. at 439-40, 109 S.Ct. 6838; Burnett IT, 292 F.Supp.2d at 19 (stating “the legislative history [of the FSIA] counsels that the exception should be narrowly construed so as not to encompass the farthest reaches of common law’). Plaintiffs respond that if Congress in- tended (a)(5) and (a)(7) to be mutually exclusive or intended that (a)(5) never ap- ply in the terrorism context, Congress would have said so. Indeed, Congress did so very explicitly with respect to (a)(5) and (a)(2) and between (a)(7) and (a)(2). See § 1605(a)(5) (explaining exception can only be used in situations “not otherwise en- compassed in paragraph (2)”); § 1605(a)@) Game). To further buttress their argument, Plaintiffs note the two ex- ceptions have been interpreted to encom- pass different situations. Subsection (a)(7) covers acts of terrorism committed abroad by a state sponsor of terrorism, while sub- section (a)(5) governs tortious acts, includ- ing terrorism, performed in the United States. See Flatow v. Islamic Republic of Tran, 999 F.Supp. 1, 15 (D.D.C.1998) (find- ing (a)(7) applied to conduct outside the United States and stating “28 U.S.C. § 1605(a)(5) already provides jurisdiction over state-sponsored terrorist acts in the United States, ... the state sponsored ter- rorism exception would be redundant if it were held to apply only within the United States”). Again, Plaintiffs argue that De- 349 FEDERAL SUPPLEMENT, 2d SERIES fendants’ argument of exclusivity would lead to absurd results, such that if a for- eign sovereign not designated a state spon- sor of terror was involved in a car accident stemming from negligence it would not be immune; but if it undertook a deliberate act of violence it would enjoy immunity from suit. The Court understands Plaintiffs’ desire to find a legal remedy for the horrible wrongs committed on September 11, 2001. If appropriate, however, these Defendants are entitled to immunity from litigating these gravely serious claims in this forum. Congress made a policy decision that the Executive branch, and not the courts, have the authority to label a foreign nation a terrorist. See 28 U.S.C. § 1605(a)(7)(A). But when it drafted the state sponsor of terror exception it did not include mutually exclusive language that would preclude the application of the torts exception here. It did include such language with respect to the commercial activities exception. See 28 USC. § 1605(a)(7) “A foreign state shall not be immune from jurisdiction of courts of the United States or of the States in any case—not otherwise covered by paragraph (2) above.”); see also 28 U.S.C. § 1605(a)(5) “A foreign state shall not be immune from jurisdiction of courts of the United States or of the States in any case—not otherwise encompassed in para- graph (2) above.”). Particularly in a case such as this where interests of sovereignty, comity, international relations, and separa- tion of powers are implicated, the Court must be vigilant to exercise discipline to apply the law only as it is written. While there are certainly obstacles to (a)(5)’s ap- plication—and the Court is not convinced the Plaintiffs have or can overcome them—the Court will not rule as a matter of law that subsections (a)(7) and (a)(5) are mutually exclusive. Accordingly, the Court will consider Plaintiffs’ evidence HOUSE_OVERSIGHT_017861