Boim Case Reversal Could Be Major Blow To Victim-of-Terrorism Litigants

By Victor Comras

I want to join my colleague Andrew Cochran in expressing disappointment with the Seventh Circuit Court of Appeals decision to reverse and remand the Boim Case for a new trial. This landmark case is key to determining whether those responsible for funding terrorism can be held liable and accountable to the victims through civil damages. And the concern here is that the 7th Circuit Court may now have set much too high an evidentiary bar when it comes to showing a causal link between the funding of terrorists and the terrorist act itself. At a minimum the court’s decision, along with the recent jury verdict in the Holy Land Foundation Criminal trial, underscore the great difficulties that civil litigants will now have to overcome to pursue such cases against terrorism financiers.

The two-to-one Seventh Circuit Court majority decision in the Boim case turns principally on the issue of establishing a sufficient causal link between the defendants funding of Hamas activities and the actual murder of David Boim by Hamas Terrorists. The Court found that the trial court had erred, inter alia, by “relieving” plaintiffs of the burden of actually showing that such a causal link did in fact exist between their financial support for Hamas and David Boim’s murder. The Circuit Court also expressed its concern that the District Court had erred by using the earlier findings of a DC Federal Court upholding Treasury Department terrorism designation actions against Holy Land Foundation and the American Muslim Society to incorrectly alleviate Plaintiff’s burden to prove that these entities had, in fact, funded Hamas. This comment does not address this latter question.

The problem here is in understanding just how much evidence the Circuit Court will require to establish a sufficient causal link between terrorism financing and specific acts of terrorist before defendants can be held accountable. As Judge Evans points out in his dissenting opinion:

“No one would seriously dispute that there must be a causal link between the defendants and the terrorist act. … But just what does “causal link” mean in this context, and how must one prove that the link exists between the defendants and Hamas? The majority wisely declines to set up an absurd requirement that the money given to Hamas by the defendants must be traced directly to, say, purchasing the gun used in the attack. Money, the majority recognizes, is fungible. At times, though, it seems that the majority is requiring a pretty clear trail leading from a defendant to the specific act which caused David’s death. For instance, the majority says that what 'is strikingly absent from the district court’s analysis is any consideration of a causal link between the assistance that the court found AMS/IAP to have given Hamas and the murder of David Boim.' The majority also says that 'there must be proof that the defendant aided and abetted [Hamas] in the commission of tortious acts that have some demonstrable link with David Boim’s death.' But then there is the statement that '[n]othing in Boim I demands that the plaintiffs establish a direct link between the defendants’ donations (or other conduct) and David Boim’s murder . . . .'”

Just where the Circuit Court is going with this causal link question should be a matter of great concern. And it appears to this writer that the Court may be imposing causal link requirements that very few, if any victim- of-terrorism litigants can meet. For the Boim case the court insists that the plaintiffs "must be able to produce some evidence permitting a jury to find that the activities of HLF, Salah, and AMS contributed to the fatal attack on David Boim and were therefore a cause in fact of his death.”. The Opinion further states that “It is not enough to show simply that a defendant generally aided and abetted HLF or even Hamas as organizations; there must be proof that the defendant aided and abetted them in the commission of tortious acts that have some demonstrable link with David Boim’s death.” This involves being able to present evidence of a high degree specificity linking any funding activities to the specific terrorist acts in question.

At the same time the Circuit Court majority also suggests that one way of establishing such a necessary causal link would be to show that the defendants “aided and abetted David Boim’s murder by taking some step that aided Hamas’s terrorism while knowing of its terrorist activities and desiring to help those activities succeed.” What civil litigant, on his own, and without access to hard intelligence, would be able to trace terrorist funding sufficiently to link it to a “fatal attack,” or to establish its aforeknowledge and support. It is extremely unlikely that any terrorist organizations such as Hamas would share information about its terrorist activities with those providing funding for its activities. Such details of envisaged or planned terrorist attacks are always closely held. It is already evident from so many failed criminal trials seeking to attribute “prior knowledge” or “terrorism motivation” to entities that use “charitable giving” as a cover for their terrorism financing activities, that proving such involvement is dubious, and often impossible. These evidentiary standards just don’t fit the reality of terrorism cases where court room evidence concerning the financing and interior workings of terrorist organizations is so extremely difficult to obtain. And even where such evidence may be available to government entities, it is usually classified and considered too sensitive for use in court, or to share with terrorism victims. In such cases it is clear the civil plaintiffs have no choice but to try and “piggyback” much of their evidentiary case on the criminal and administrative findings already established by US government agencies and prosecutors against such entities.

This latest 7th Circuit decision may not augur well for the pending NATWEST and Credit Lyonnais cases now before the New York Eastern Federal District Court. Senior District Court Judge Sifton, in upholding the claims presented in that case, wrote that:

“The requirement that the defendant have specifically intended to further terrorist activities finds no basis in the statute’s language which requires only that the defendant “knowingly provide material support or resources to a foreign terrorist organization” but makes no mention of any specific intent. Such a reading in fact clashes with Congress’s intent. When Congress enacted section 2339B, section 2339A already prohibited the act of providing material support or resources to further illegal terrorist activities when done by an individual “knowing or intending that they are to be used in preparation for, or in carrying out” enumerated terrorist activities…. Congress’s choice to omit the word “intending” from 2339B, while using it in 2339A suggests that Congress did not wish for 2339B to include an intent requirement.”

Compare this to the 7th Circuit Court majority opinion which states:

“To say that funding simpliciter constitutes an act of terrorism is to give the statute an almost unlimited reach. Any act which turns out to facilitate terrorism, however remote that act may be from actual violence and regardless of the actor’s intent, could be construed to “involve” terrorism. Without also requiring the plaintiffs to show knowledge of and intent to further the payee’s violent criminal acts, such a broad definition might also lead to constitutional infirmities by punishing mere association with groups that engage in terrorism . So merely giving money to Hamas or a Hamas-affiliated entity would not by itself suffice to establish civil liability under section 2333 for terrorist acts committed by the agents of Hamas. The Boims would have to show that the donor was aware of Hamas’s terrorist activities and intended to further those activities and also that the murder of David Boim “was a reasonably foreseeable result of making the donation.”

Could it be that we will see a clear divergence between the 7th Circuit and the 2nd Circuit on this very important evidentiary issue?

TrackBack