Did a Federal Court Leave Terrorism Victims Out in the Cold?

By Andrew Cochran

On December 28, a three-judge panel of the U.S. Seventh Circuit Court of Appeals overturned the ruling in the David Boim case, a $156 million judgment against the Holy Land Foundation and other U.S.-based Muslim charities. The case arose out of the murder of David Boim, a seventeen-year-old American citizen who was killed in a Hamas terrorist attack in the West Bank. David's parents had sued the attackers and a number of U.S.-based Muslim charities, including HLF, alleging in part that the charities directly or indirectly raised and laundered money for Hamas and otherwise helped finance Hamas’ terrorist activities. The 7th Circuit opinion reversed the trial court's ruling for the plaintiffs and remanded the case, indicating that the plaintiffs must establish more of a causal link between the defendants' funding and fund-raising activities and the terrorist act (download the 102-page opinion). The potential impact of this decision on other terrorism victims cases moving through the federal courts is now a matter of debate and concern.

We were the first website to analyze and discuss the impacts on the decision. I posted my pessimistic view of the decision on December 29; Victor Comras posted, "Boim Case Reversal Could Be Major Blow To Victim-of-Terrorism Litigants" on December 30; and Jeffrey Breinholt posted a partial rebuttal, "Why the Boim Ruling is a Pyrrhic Victory for the Islamic Charities" on January 2. Given the differences in opinion. I decided to hold a live panel discussion with Victor and Jeffrey, which occurred this past Monday in a U.S. Senate hearing room before a group of invited guests, including Congressional staff. You can download my introductory remarks here.

Victor placed the decision among a number of recent defeats for anti-terrorist financing efforts. He described the ruling as "imposing a new requirement that Plaintiffs actually show a firm causal link between the funding of terrorism and the terrorist act itself." He warned, "I fear that this latest Boim decision will have a serious negative impact on other victims of terrorism cases now pending in the courts, and that it will serve as an important disincentive for new cases to be brought before the courts. This will make the terrorism financiers the winners." You can download a summary of his remarks here.

Jeffrey countered, reiterating points in his January 2 post and adding, "The Seventh Circuit did not back away from the idea that §2339B (the 1996 Antiterrorism and Effective Death Penalty Act) can be used to extend civil liability to non-violent entities who provide things of value to violent individuals. Rather, they found that the district court had not made the requisite finding, and then gave it a how-to manual on how to do it on remand. This makes the result of the remand probably foreordained, hopefully little more than a ministerial act." He also discussed how his attitude towards civil terrorism-related litigation had changed from "dismissive" to "very enthusiastic" in the course of exercising his duties at the DOJ Counterterrorism Section. He described the numerous lawsuits filed in U.S. courts by terrorism victims as "Truth Commissions" which cost taxpayers nothing and should be embraced and promoted. You can download his complete remarks here.

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