Counterterrorism Blog

Last December I used this space to express concern that the 2-1 decision handed down by a Seventh Circuit Court of Appeals three-judge panel in the Boim case represented a serious setback to victims of terrorism seeking to hold accountable those who provide material support to the terrorists that harm them. This decision has now been substantially altered, on appeal, by a second Seventh Circuit panel ruling.

The earlier decision had erected significant and complex impediments to establishing liability in victims-of- terrorism cases (see my previous blog). It held, inter alia, that victim-of-terrorism plaintiffs had to establish a clear causal link between the funding of the terrorists and the terrorist act itself. This new decision does away with that barrier and makes it clear that contributions knowingly made to organizations that engage in terrorist activities may be sufficient to establish liability in such cases.

The latest Seventh Circuit Opinion circumvents the complexities of the earlier decision by abandoning the earlier panel’s reliance on the legal doctrine of “aiding and abetting,” as a basis for “secondary” liability under Section 2333 of the Anti-Terrorism Act of 1996. Rather, the Court now follows a more direct line of reasoning: (1) Section 2331 defines “international terrorism” as including “activities that . . . involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States,” that “appear to be intended . . . to intimidate or coerce a civilian population” or “affect the conduct of a government by . . . assassination,” and that “transcend national boundaries in terms of the means by which they are accomplished” or “the persons they appear intended to intimidate or coerce.” and (2) knowingly donating to a terrorist group that targets Americans outside the United States falls within the terms of this definition.

“Giving money to Hamas,” the court reasons, “like giving a loaded gun to a child (which also is not a violent act), is an ‘act dangerous to human life.’ And it violates a federal criminal statute enacted in 1994 and thus before the murder of David Boim—18 U.S.C. § 2339A(a), which provides that “whoever provides material support or resources . . ., knowing or intending that they are to be used in preparation for, or in carrying out, a violation of [18 U.S.C. § 2332],” shall be guilty of a federal crime.”

The court also reasons that this outcome, reaching to those that fund terrorist organizations, was clearly intended by Congress and that it makes sense as good counterterrorism policy. “Damages are a less effective remedy against terrorists and their organizations than against their financial angels. Terrorist organizations have been sued under section 2333 …but to collect a damages judgment against such an organization, let alone a judgment against the terrorists themselves (if they can even be identified and thus sued), is … well-nigh impossible. These are foreign organizations and individuals, operating abroad and often covertly, and they are often impecunious as well. So difficult is it to obtain monetary relief against covert foreign organizations like these that Congress has taken to passing legislation authorizing the payment of judgments against them from U.S. Treasury funds….But that can have no deterrent or incapacitative effect, whereas suits against financiers of terrorism can cut the terrorists’ lifeline.”

With these principles, the rest of the case for liability is straightforward:

“We know that Hamas kills Israeli Jews; and Boim was an Israeli citizen, Jewish, living in Israel, and therefore a natural target for Hamas. But we must consider the knowledge that the donor to a terrorist organization must be shown to possess in order to be liable under section 2333 and the Proof required to link the donor’s act to the injury sustained by the victim….A knowing donor to Hamas—that is, a donor who knew the aims and activities of the organization—would know that Hamas was gunning for Israelis …., that Americans are frequent visitors to and sojourners in Israel, that many U.S. citizens live in Israel…, and that donations to Hamas, by augmenting Hamas’s resources, would enable Hamas to kill or wound, or try to kill, or conspire to kill more people in Israel. And given such foreseeable consequences, such donations would “appear to be intended . . . to intimidate or coerce a civilian population” or to “affect the conduct of a government by . . . assassination,” as required by section 2331(1) in order to distinguish terrorist acts from other violent crimes, though it is not a state-of-mind requirement; it is a matter of external appearance rather than subjective intent, which is internal to the intender.”

In answer to the argument that it cannot be shown that the Defendents actually intended to cause harm as their contributions were made with societal or humanitarian objectives in mind the court responded

“But if you give money to an organization that you know to be engaged in terrorism, the fact that you earmark it for the organization’s nonterrorist activities does not get you off the liability hook….The reasons are twofold. The first is the fungibility of money. If Hamas budgets $2 million for terrorism and $2 million for social services and receives a donation of $100,000 for those services, there is nothing to prevent its using that money for them while at the same time taking $100,000 out of its social services “account” and depositing it in its terrorism ‘account’….Second, Hamas’s social welfare activities reinforce its terrorist activities both directly by providing economic assistance to the families of killed, wounded, and captured Hamas fighters and making it more costly for them to defect (they would lose the material benefits that Hamas provides them), and indirectly by enhancing Hamas’s popularity among the Palestinian population and providing funds for indoctrinating schoolchildren."

Not intending to be misunderstood when it comes to legitimate humanitarian assistance, the court clarified that there were obviously certain exceptions concerning charitable donations, even if they were to end up in the hands of Hamas.

“ One is the easy case of a donation to an Islamic charity by an individual who does not know (and is not reckless, in the sense of strongly suspecting the truth but not caring about it) that the charity gives money to Hamas or some other terrorist organization.

The other case is that of medical (or other innocent) assistance by nongovernmental organizations such as the Red Cross and Doctors Without Borders that provide such assistance without regard to the circumstances giving rise to the need for it.”

It has been over 12 years since the Boim murder by Hamas terrorists, yet this case is still weaving its way through the courts. Perhaps its greatest importance now will be in setting straight the guidelines for future victims of terrorism litigation. There likely will be more Boim-type cases moving through the courts for some time to come and seeking to hold those that indoctrinate, recruit, arm, sustain, supply and finance terrorists accountable.

A Final Note: The court recognized that it could not avoid the fact that the District Court findings concerning HolyLand Foundation were based, in large measure, on an erroneous determination of collateral estoppel re an earlier District Court ruling upholding an administrative determination against Holyland, and that they, therefore were still entitled to “their day in court” in this case. With respect to Defendant Muhammed Saleh the district court judgment of liability was reversed as he was in an Israel prison at the time of the Boim murder and his alleged collection of funds for Hamas post-dated the Boim murder. All the other defendants remain liable for the $156 million judgment against them.