CHI 57,459,295v1 8-22-08 Nos. 05-1815, 05-1816, 05-1821, 05-1822 Rehearing En Banc UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT FOR THE SEVENTH CIRCUIT FOR THE SEVENTH CIRCUIT FOR THE SEVENTH CIRCUIT Stanley Boim, Individually, and as Administrator of the Estate of David Boim, Deceased, and Joyce Boim, Plaintiffs-Appellees, v. Quranic Literary Institute, Holy Land Foundation for Relief and Development, Islamic Association for Palestine, American Muslim Society, American Middle Eastern League for Palestine, United Association for Studies and Research, Mohammed Abdul Hamid Khalil Salah, Mousa Mohammed Abu Marzook, Amjad Hinawi, and the Estate of Khalil Tawfiq Al-Sharif, Defendants-Appellants. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Case No. 00 C 2905 The Honorable Judge Arlander Keys BRIEF OF BRIEF OF BRIEF OF BRIEF OF AMICUS CURIAE AMICUS CURIAE AMICUS CURIAE AMICUS CURIAE JEWISH COMMUNITY RE JEWISH COMMUNITY RE JEWISH COMMUNITY RE JEWISH COMMUNITY RELATIONS LATIONS LATIONS LATIONS COUNCIL OF THE JEWIS COUNCIL OF THE JEWIS COUNCIL OF THE JEWIS COUNCIL OF THE JEWISH UNITED FUND OF MET H UNITED FUND OF MET H UNITED FUND OF MET H UNITED FUND OF METROPOLITAN ROPOLITAN ROPOLITAN ROPOLITAN CHICAGO IN SUPPORT O CHICAGO IN SUPPORT O CHICAGO IN SUPPORT O CHICAGO IN SUPPORT OF PLAINTIFFS F PLAINTIFFS F PLAINTIFFS F PLAINTIFFS-APPELLEES AND IN SUP APPELLEES AND IN SUP APPELLEES AND IN SUP APPELLEES AND IN SUPPORT PORT PORT PORT OF AFFIRMANCE OF DIS OF AFFIRMANCE OF DIS OF AFFIRMANCE OF DIS OF AFFIRMANCE OF DISTRICT COURT JUDGMENT TRICT COURT JUDGMENT TRICT COURT JUDGMENT TRICT COURT JUDGMENT Joseph A. Morris Morris & De La Rosa 39 South LaSalle Street, Fifth Floor Chicago, Illinois 60603 (312) 606-0876 Samuel B. Isaacson Stanley J. Adelman David J. Pivnick Nika K. Gembicki 203 North LaSalle Street, Suite 1900 Chicago, Illinois 60601 (312) 368-2163 Keith J. Shapiro Daniel D. Rubinstein Gregory E. Ostfeld Kathryn A. Dugan Greenberg Traurig, LLP 77 West Wacker Dr., Suite 2400 Chicago, Illinois 60601 (312) 456-8400 Counsel for Amicus Curiae
Transcript
CHI 57,459,295v1 8-22-08
Nos. 05-1815, 05-1816, 05-1821, 05-1822 Rehearing En Banc
UNITED STATES COURT OF APPEALSUNITED STATES COURT OF APPEALSUNITED STATES COURT OF APPEALSUNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITFOR THE SEVENTH CIRCUITFOR THE SEVENTH CIRCUITFOR THE SEVENTH CIRCUIT
Stanley Boim, Individually, and as Administrator of the Estate of David Boim, Deceased, and Joyce Boim, Plaintiffs-Appellees, v. Quranic Literary Institute, Holy Land Foundation for Relief and Development, Islamic Association for Palestine, American Muslim Society, American Middle Eastern League for Palestine, United Association for Studies and Research, Mohammed Abdul Hamid Khalil Salah, Mousa Mohammed Abu Marzook, Amjad Hinawi, and the Estate of Khalil Tawfiq Al-Sharif, Defendants-Appellants.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division
Case No. 00 C 2905 The Honorable Judge Arlander Keys
BRIEF OF BRIEF OF BRIEF OF BRIEF OF AMICUS CURIAEAMICUS CURIAEAMICUS CURIAEAMICUS CURIAE JEWISH COMMUNITY RE JEWISH COMMUNITY RE JEWISH COMMUNITY RE JEWISH COMMUNITY RELATIONS LATIONS LATIONS LATIONS COUNCIL OF THE JEWISCOUNCIL OF THE JEWISCOUNCIL OF THE JEWISCOUNCIL OF THE JEWISH UNITED FUND OF METH UNITED FUND OF METH UNITED FUND OF METH UNITED FUND OF METROPOLITAN ROPOLITAN ROPOLITAN ROPOLITAN
CHICAGO IN SUPPORT OCHICAGO IN SUPPORT OCHICAGO IN SUPPORT OCHICAGO IN SUPPORT OF PLAINTIFFSF PLAINTIFFSF PLAINTIFFSF PLAINTIFFS----APPELLEES AND IN SUPAPPELLEES AND IN SUPAPPELLEES AND IN SUPAPPELLEES AND IN SUPPORT PORT PORT PORT OF AFFIRMANCE OF DISOF AFFIRMANCE OF DISOF AFFIRMANCE OF DISOF AFFIRMANCE OF DISTRICT COURT JUDGMENTTRICT COURT JUDGMENTTRICT COURT JUDGMENTTRICT COURT JUDGMENT
Joseph A. Morris Morris & De La Rosa 39 South LaSalle Street, Fifth Floor Chicago, Illinois 60603 (312) 606-0876 Samuel B. Isaacson Stanley J. Adelman David J. Pivnick Nika K. Gembicki 203 North LaSalle Street, Suite 1900 Chicago, Illinois 60601 (312) 368-2163
Keith J. Shapiro Daniel D. Rubinstein Gregory E. Ostfeld Kathryn A. Dugan Greenberg Traurig, LLP 77 West Wacker Dr., Suite 2400 Chicago, Illinois 60601 (312) 456-8400 Counsel for Amicus Curiae
Short Caption: Boim, et al., v. Quranic Literary Institute, et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement stating the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3): Jewish Community Relations Council of the Jewish United Fund of Metropolitan Chicago (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: DLA Piper US LLP; Dykema Gossett PLLC; Greenberg Traurig, LLP; Morris & De La Rosa (3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any; and n/a ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: n/a Attorney’s signature: Date: August 22, 2008 Attorney’s Printed Name: Joseph A. Morris Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes X No Address: Morris & De La Rosa, 39 South LaSalle Street, Fifth Floor, Chicago, Illinois 60603 Phone number: (312) 606-0876 Fax Number: (312) 606-0879 E-Mail Address: [email protected]
CHI 57,459,295v1 8-22-08 i
TABLE OF CONTENTSTABLE OF CONTENTSTABLE OF CONTENTSTABLE OF CONTENTS
I. Congress Enacted the Anti-Terrorism Act of 1990 to Create a Broad Remedy for Acts of International Terrorism Against United States Nationals................................................................................................... 4
II. The Legislative History of the Act Demonstrates that Knowledge of a Recipient Organization’s Terrorist Practices Is Sufficient to Establish Liability Under 18 U.S.C. § 2333(a), Irrespective of Whether the Donor Intended to Advance the Violent Component of the Recipient’s Activities. .................................................................................................. 7
A. The Act Was Designed from the Outset to Incorporate a Knowledge and Substantial Certainty Standard of Intent, not Specific Intent. .............................................................................. 7
B. The Amendments to the Act Further Confirm that Congress Made a Deliberate Choice not to Require Specific Intent Under the Act. ............................................................................................... 9
C. Judicial Interpretations of Section 2333 Reaffirm that the Statute Has no Specific Intent Requirement................................... 13
III. The Legislative History of the Act Shows that the Standard of Causation to Establish Liability Under 18 U.S.C. § 2333(a) is Proximate Causation, not Causation in Fact........................................ 18
TABLE OF AUTHORITIESTABLE OF AUTHORITIESTABLE OF AUTHORITIESTABLE OF AUTHORITIES
Federal CasesFederal CasesFederal CasesFederal Cases
Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257 (E.D.N.Y. 2007) ....................... 14, 15
Biton v. Palestinian Interim Self-Gov. Auth., 310 F. Supp. 2d 172 (D.D.C. 2004) ... 22
Boim v. Holy Land Foundation for Relief and Development et al., 511 F.3d 707 (7th Cir. 2007) .................................................................................... 22
Boim v. Quranic Literacy Inst. and Holy Land Found. For Relief and Dev., 291 F.3d 1000 (7th Cir. 2002) ................................................................. 10
Boim v. Quranic Literacy Inst., 127 F. Supp. 2d 1002 (N.D. Ill. 2001) ..................... 10
Humanitarian Law Project v. Gonzales, 380 F. Supp. 2d 1134 (C.D. Cal. 2005) ........................................................................................... 13, 14, 16
Humanitarian Law Project v. Mukasey, 509 F.3d 1122 (9th Cir. 2007), cert. denied, 532 U.S. 904 (2001)............................................................................. 15
Klinghoffer v. S.N.C. Achille Lauro ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 739 F.Supp. 854 (S.D.N.Y. 1990), vacated on other grounds, 937 F.2d 44 (2d Cir. 1991) ........................................................... 5, 6
Klinghoffer v. S.N.C. Achille Lauro ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 816 F. Supp. 930 (S.D.N.Y. 1993)........ 5
Linde v. Arab Bank, 384 F. Supp. 2d 571 (E.D.N.Y. 2005)............................ 10, 15, 17
Federal RulesFederal RulesFederal RulesFederal Rules
Federal Rule of Appellate Procedure 29(d)............................................................. 4, 26
Other AuthoritiesOther AuthoritiesOther AuthoritiesOther Authorities
Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, Stat. 1214 (1996)..................................................... 4, 10, 12 20
Hearing Before the Subcommittee on Courts and Administrative Practice of the Committee on the Judiciary on S.2465, 101st Cong. (1990) ............ 4, 6, 7, 8, 13, 21
Restatement (Second) of Torts § 8A cmt. a (1965) ....................................................... 9
1. Whether a donor to an organization that the donor knows practices
terrorism, can be liable under 18 U.S.C. § 2333(a) in the absence of proof that the
donor intended to advance the violent component of the recipient’s activities.
2. Whether the standard of causation established by Congress for a
private cause of action brought under the Anti-Terrorism Act of 1990 (the “Act”)
requires proof of causation in fact (i.e. “but for” causation), or whether proof of
proximate causation is sufficient to satisfy the element of causation under the Act.
STATEMENT OF IDENTITSTATEMENT OF IDENTITSTATEMENT OF IDENTITSTATEMENT OF IDENTITY AND INTERESTY AND INTERESTY AND INTERESTY AND INTEREST
The Jewish Community Relations Council of the Jewish United Fund of
Metropolitan Chicago (“JCRC”) is the umbrella body for forty-six major Jewish
organizations in the Chicago area and is the community relations arm of the Jewish
United Fund/Jewish Federation of Metropolitan Chicago. As a member of the
Jewish Council for Public Affairs, the JCRC serves as a representative voice of the
organized American Jewish community, providing information for its member
organizations and the general community. As part of its mandate, JCRC identifies
and articulates issues that concern the Jewish community, and advocates on behalf
of Jewish community interests in both the public and judicial spheres.
JCRC has a specific interest in efforts to combat terrorist extremist groups at
home and abroad, as well as exposing and disabling these groups’ domestic
fundraising arms. The rise of global terrorism and the singularly destructive
terrorist attacks in the United States on September 11, 2001 emphasize the need
for vigilance, dedication, and innovative solutions to reduce and eliminate future
CHI 57,459,295v1 8-22-08 3
atrocities. JCRC focuses many of its efforts on fighting terrorism in Chicago, which
has become a hub for the financing of international terrorism. Funds raised in the
United States by the auxiliary arms of terrorist extremist groups, purporting to
operate for charitable purposes, are the lifeblood of global terrorist activities. For
more than a decade, JCRC has stood sentry against these terrorist financiers; the
monitoring and exposure of connections between Chicago organizations and
international terrorism has become a signature JCRC activity.
This case involves individuals and organizations in the Chicago area who
provided material financial support to Hamas, a radical extremist group whose
history of violent tactics against innocent civilians has long placed it on the
Department of State’s list of designated Foreign Terrorist Organizations.1 Hamas’s
anti-American and anti-Israeli terrorist acts, which in the present case culminated
in the murder of an innocent American citizen, cannot be tolerated by nations of
conscience and must be opposed on all fronts. JCRC files this amicus curiae brief in
recognition of the reality that all Americans have a direct stake in the continuing
struggle against global terrorism, and that a challenge to terrorist financing strikes
at the heart of terrorism itself. Domestic fundraising activities are the fertile soil
giving bloom to militant groups with an international reach. Deprived of funding,
these groups must inevitably wither, hastening the day when those who would use
murder to achieve political or ideological ends may be discarded to the waste can of
1 See United States Department of State, Office of the Coordinator for Counterterrorism, Fact Sheet, “Foreign Terrorist Organizations” (Apr. 8, 2008), available at http://www.state.gov/s/ct/rls/fs/08/103392.htm) (last visted on Aug. 18, 2008).
CHI 57,459,295v1 8-22-08 4
Twenty-First Century history.
JCRC seeks leave and authority to file this amicus brief pursuant to Rule
29(a) of the Federal Rules of Appellate Procedure. This amicus brief is not
duplicative of arguments presented in the Plaintiffs-Appellees’ brief, is desirable,
and is relevant to the disposition of the present appeal. See Fed. R. App. P. 29(a);
Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997).
Specifically, this amicus brief illuminates the history of the Anti-Terrorism Act of
1990 (the “Act”), and its subsequent amendments, in connection with the issues of
intent and causation. The brief clarifies Congress’ consideration of these issues and
the intended legal framework to deal with questions of intent and causation under
the statute. Lead counsel for JCRC, Joseph A. Morris, was one of the lead
proponents of the Act and the chief draftsman of the Anti-Terrorism Act of 1992,
and therefore provides a unique perspective that can help the Court beyond help
that lawyers for the parties are able to provide. See Ryan, 125 F.3d at 1063.
ARGUMENTARGUMENTARGUMENTARGUMENT
I.I.I.I. Congress Enacted the AntiCongress Enacted the AntiCongress Enacted the AntiCongress Enacted the Anti----Terrorism Act of 1990 to Create a Broad Remedy Terrorism Act of 1990 to Create a Broad Remedy Terrorism Act of 1990 to Create a Broad Remedy Terrorism Act of 1990 to Create a Broad Remedy for Afor Afor Afor Acts of International Terrorism Against United States Nationals.cts of International Terrorism Against United States Nationals.cts of International Terrorism Against United States Nationals.cts of International Terrorism Against United States Nationals.
The Anti-Terrorism Act of 1990 (the “Act”) adds to the “arsenal of legal tools
that can be used against those who commit acts of terrorism” by creating a civil
cause of action providing for the recovery of treble damages, attorneys fees, and
costs of suit against terrorists who injure a United States national “in his or her
person, property, or business by reason of an act of international terrorism.” 18
U.S.C. § 2333(a); see Hearing Before the Subcommittee on Courts and
CHI 57,459,295v1 8-22-08 5
Administrative Practice of the Committee on the Judiciary on S.2465, 101st Cong.
(1990) (“Hearing”) (statement of Sen. C. Grassley), p. 2.; Hearing (statement of Alan
J. Kreczko), p. 14. The Act supplements the statutory remedy set forth in 18 U.S.C.
§ 2332,2 which criminalizes the murder, attempted murder, or conspiracy to murder
a United States national abroad when such conduct is intended to “coerce,
intimidate, or retaliate against a government or civilian population.” 18 U.S.C. §
2232.
Congress passed the Act in the wake of several lawsuits brought in the
United States District Court for the Southern District of New York and in New York
state courts between 1985 and 1988, arising out of the brutal hijacking of the
Achille Lauro ship on the Mediterranean sea (the “Achille Lauro suits”). See, e.g.,
Klinghoffer v. S.N.C. Achille Lauro ed Altri-Gestione Motonave Achille Lauro in
Amministrazione Straordinaria, 739 F.Supp. 854, 859 (S.D.N.Y. 1990), vacated on
other grounds, 937 F.2d 44 (2d Cir. 1991); Klinghoffer v. S.N.C. Achille Lauro ed
Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 816 F.
Supp. 930, 931 (S.D.N.Y. 1993).
Congress viewed the Achille Lauro suits as an important, pioneering effort in
the struggle against the rising threat of international terrorist acts directed against
the United States and its allies. The Achille Lauro suits exemplified the possibility
of using civil lawsuits to challenge terrorists and their supporting organizations.
2 Section 2332 provides for criminal penalties against anyone who “kills . . . attempts to kill, or engages in a conspiracy to kill . . .[or] engages in physical violence with the intent to cause serious bodily injury” to a United States national “while such national is outside the United States.” Penalties under 18 U.S.C. § 2332 are permitted only if the act in question was “intended to coerce, intimidate or retaliate against a government or civilian population.” 18 U.S.C. § 2332(d).
CHI 57,459,295v1 8-22-08 6
See Hearing (statement of A. Kreczko), p. 12 (noting that the Achille Lauro suits
demonstrated that terrorists “may be subject to civil liability in the United
States”).3 As innovative and effective as they were in connection with the attack on
the Achille Lauro however, the Achille Lauro suits also highlighted the limitations
of using conventional remedies to challenge global terrorist organizations. In
Klinghoffer, for example, the federal courts acquired jurisdiction only by virtue of
the fortuitous fact that the particular terrorist act at issue involved the seizure of a
ship in navigable waters, a traditional maritime wrong within the admiralty
jurisdiction of the federal courts. 739 F. Supp. at 859.
Accordingly, though favorably impressed by the resourcefulness and success
of the Achille Lauro suits, Congress perceived the need to fashion a broader legal
remedy that would be less constrained by common law limitations ill-suited to
international acts of terrorist violence. Congress passed the Act to accomplish the
goal of providing this broader remedy. See Hearing (statement of A. Kreczko), p. 12
(explaining that the Act was designed to “expand[] the Klinghoffer opinion”).4
Demonstrating its commitment to build on the Klinghoffer case and to
provide a broader remedy than would otherwise be available under conventional
jurisprudence, Congress expressed three major objectives in connection with the
3 Klinghoffer was never tried on the merits. It was ultimately resolved by a settlement agreement between the Klinghoffer family and the Palestine Liberation Organization in August 1997, a few weeks before trial was to begin. See Benjamin Weiser, A Settlement With P.L.O. Over Terror On A Cruise, New York Times (Aug. 12, 1997), available at http://query.nytimes.com/ gst/fullpage.html?res=9C01EEDB1E3CF931A2575BC0A961958260 (last visited Aug. 12, 2008).
4 Due to a technical error, the Act was repealed in 1991 and reenacted in 1992. See Seth N. Stratton, Taking Terrorists To Court: A Practical Evaluation of Civil Suits Against Terrorists Under the Anti-Terrorism Act, 9 SUFFOLK J. TRIAL & APP. ADVOC. 27, 30 n.19.
CHI 57,459,295v1 8-22-08 7
Act. First, the Act is meant to explicitly confer jurisdiction and venue upon federal
courts in the United States to hear cases under the Act. Second, the Act is meant to
serve as a symbolic statement of America’s intolerance of terrorist acts against its
citizens abroad. Third, the Act is meant to freeze and seize assets of terrorists and
their funding organizations so that they are “hit[] where it hurts, in their pockets.”
Hearing (statement of Wendy Collins-Perdue), p. 133. These three articulated goals,
particularly the third, express and illuminate a clear congressional purpose with
respect to the elements of intent and causation under the Act.
II.II.II.II. The Legislative History of the Act Demonstrates that Knowledge of a The Legislative History of the Act Demonstrates that Knowledge of a The Legislative History of the Act Demonstrates that Knowledge of a The Legislative History of the Act Demonstrates that Knowledge of a Recipient Organization’s Terrorist Practices Is Sufficient to Establish Recipient Organization’s Terrorist Practices Is Sufficient to Establish Recipient Organization’s Terrorist Practices Is Sufficient to Establish Recipient Organization’s Terrorist Practices Is Sufficient to Establish Liability Under 18 U.S.C. § 2333(a)Liability Under 18 U.S.C. § 2333(a)Liability Under 18 U.S.C. § 2333(a)Liability Under 18 U.S.C. § 2333(a), Irrespective of Whether, Irrespective of Whether, Irrespective of Whether, Irrespective of Whether the Donor the Donor the Donor the Donor Intended to Advance the Violent Component of the Recipient’s Activities.Intended to Advance the Violent Component of the Recipient’s Activities.Intended to Advance the Violent Component of the Recipient’s Activities.Intended to Advance the Violent Component of the Recipient’s Activities.
The text of the Act does not contain any requirement that, to impose liability
under Section 2333, a defendant must specifically intend to advance the violent
component of a recipient organization’s terrorist activities. See 18 U.S.C. § 2333(a).
The legislative history of the Act, both at the time of its original enactment and over
the course of subsequent amendments, makes clear that this omission was no
accident. The Act was never intended to require proof of specific intent, and such a
requirement cannot be squared with the statute’s text, history, or subsequent
interpretation.
A.A.A.A. The Act Was Designed from the Outset to Incorporate a Knowledge The Act Was Designed from the Outset to Incorporate a Knowledge The Act Was Designed from the Outset to Incorporate a Knowledge The Act Was Designed from the Outset to Incorporate a Knowledge and Substantial Certainty Standard of Intent, not Specific Intent.and Substantial Certainty Standard of Intent, not Specific Intent.and Substantial Certainty Standard of Intent, not Specific Intent.and Substantial Certainty Standard of Intent, not Specific Intent.
From its inception, the Act was designed to provide the broadest possible
remedy to deter domestic money-raising activities for terrorists, and thereby to
provide a mechanism for courts and litigants to attack and freeze the assets of not
CHI 57,459,295v1 8-22-08 8
only individual terrorists, but those organizations that fund terrorist activities. As
stated by Joseph A. Morris of the Lincoln Legal Foundation at the congressional
hearings on the Act, “anything that could be done to deter money-raising in the
United States, money laundering in the United States, the repose of assets in the
United States [] would not only help benefit victims, but would also help deter
terrorism.” Hearing (statement of J. Morris), p. 79.
Though the Act is not bound to adhere fastidiously to common law principles,
it does draw on existing concepts of tort law to inform the development and
implementation of 18 U.S.C. § 2333. As Mr. Morris explained in his testimony, “the
fact-patterns that may give rise to [] suits [under the Act] may be as varied and
numerous as those found in the law of torts . . . it is essentially to the existing, well-
developed American State and Federal body of common and statutory tort law that
this bill opens the door[.]” Hearing (statement of J. Morris), p. 83. Consequently,
“American tort law generally would speak quite effectively to the facts and
circumstances of most terrorist actions.” Id., p. 86.
Given the Act’s broad emphasis on doing “anything that could be done” to
deter terrorist fundraising, it should come as no surprise that Congress elected not
to draft a statutory, specific intent standard into the Act, and instead incorporated
from existing tort law a knowledge-based standard of intent. Tort law, as applied to
the Act, tracks criminal law doctrine and attaches liability “to those who knowingly
or negligently make it possible for some actor grievously to injure somebody else[].”
Hearing (statement of J. Morris), p. 136 (emphasis added). That statement comports
with standard tort law concepts of intent, which hold that, “[t]he word ‘intent’ is
CHI 57,459,295v1 8-22-08 9
used . . . to denote that the actor desires to cause consequences of his act, or that he
believes that the consequences are substantially certain to result from it.”
Restatement (Second) of Torts § 8A cmt. a (1965). Intent as a general matter “is not
[] limited to consequences which are desired. If the actor knows that the
consequences are certain, or substantially certain, to result from his act, and still
goes ahead, he is treated by the law as if he had in fact desired to produce the
result.” Id.
Thus, incorporating ordinary tort law and applying it to the Act in accordance
with the legislative history, it is not required that a defendant actually intend to
advance the violent component of a recipient organization’s terrorist activities for
liability to attach. Rather, it is sufficient that the defendant have knowledge of the
recipient organization’s terrorist activities, as such knowledge is sufficient for the
defendant to be “substantially certain” that its funding and support of the recipient
organization will promote terrorist activities. Dollars, ultimately, are fungible
assets, and a sum given to a terrorist organization for any purpose, charitable or
otherwise, ultimately promotes the organizations’ violent activities by priming the
pump with new dollars.
B.B.B.B. The Amendments to the Act Further Confirm that CongThe Amendments to the Act Further Confirm that CongThe Amendments to the Act Further Confirm that CongThe Amendments to the Act Further Confirm that Congress Made a ress Made a ress Made a ress Made a Deliberate Choice not to Require Specific Intent Under the Act.Deliberate Choice not to Require Specific Intent Under the Act.Deliberate Choice not to Require Specific Intent Under the Act.Deliberate Choice not to Require Specific Intent Under the Act.
In 1994 and 1996, Congress passed 18 U.S.C. §§ 2339A and 2339B, which
imposed criminal sanctions for providing material support to terrorist
organizations. When it enacted these amendments, Congress had the opportunity to
decide again whether liability should hinge on support for the terrorist organization
CHI 57,459,295v1 8-22-08 10
alone, or whether intent to support the organization’s terrorist activities would be
required. Congress concluded that support for either is unlawful. Section 2333 is
directed to any “act of international terrorism,” and does not contain a requirement
of specific intent to further terrorist activities. Following the 1994 and 1996
amendments, an “act of international terrorism,” as defined under 18 U.S.C. §
2331(a), has been interpreted to include violations of 18 U.S.C. §§ 2339A and 2339B.
See Boim v. Quranic Literacy Inst. and Holy Land Found. For Relief and Dev., 291
F.3d 1000, 1014-15 (7th Cir. 2002) (“Boim I”); Linde v. Arab Bank, 384 F. Supp. 2d
571, 581 (E.D.N.Y. 2005). For example, the United States District Court for the
Northern District of Illinois held that, inter alia, “providing material support or
resources for terrorism constitutes an act of terrorism under § 2333.” Boim v.
Quranic Literacy Inst., 127 F. Supp. 2d 1002, 1015-1016 (N.D. Ill. 2001). Sections
2339A and 2339B are thus inextricably linked to Section 2333 and the issue herein,
and provide guidance regarding the requirements for a successful claim under
Section 2333.
The findings and purpose of the Anti-Terrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1247 (1996), as enumerated in the
notes to 18 U.S.C. § 2339B, provide strong guidance regarding Congress’ efforts to
combat terrorism. Specifically, Congress found that “international terrorism is a
serious and deadly problem that threatens the vital interests of the United States”
and that “Congress may by law impose penalties relating to the provision of
material support to foreign organizations engaged in terrorist activity.” Id. at §§
301(a)(1) and (a)(2). Congress observed that “some foreign terrorist organizations,
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acting through affiliated groups or individuals, raise significant funds within the
United States.” Id. at § 301(a)(6). It also found, in Section 301(a)(7), that “foreign
organizations that engage in terrorist activity are so tainted by their criminal
conduct that anyanyanyany contribution to such an organization facilitates that conduct.” Id.
at § 301(a)(7) (emphasis added). These findings reflect a congressional judgment
that it would be a futile and self-defeating endeavor to pass a statute that
distinguishes between contributions made to the terrorist organization for a strictly
benevolent purpose and contributions made to fund terrorism. Hence, in enacting
Section 2339B (as with Section 2333), Congress did not incorporate a specific intent
requirement. Section 301(a)(7) makes clear that this was deliberate, because any
funding to a terrorist organization ultimately supports the terrorist activities that
Congress was trying to eliminate.
Had Congress intended to impose a specific intent requirement for Section
2333, while omitting one from the corresponding provision of Section 2339B, it
readily could have expressed its intent at the time it enacted Section 2339B by
adding specific intent language to Section 2333. Congress demonstrated its ability
to incorporate a specific intent requirement when it enacted Section 2339A.5 See 18
U.S.C. § 2339A. Yet in Section 2339B, a criminal statute, Congress incorporated a
knowledge requirement without requiring specific intent and left Section 2333
5 Section 2339A incorporates a requirement of proof of knowledge or intent. Specifically, the statute states that “Whoever provides material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of [one of several federal statutes] . . . , shall be fined under this title, imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.” 18 U.S.C. § 2339A.
CHI 57,459,295v1 8-22-08 12
alone. The omission of a specific intent requirement, both in the original enactment
of Section 2333 and when given the opportunity to revisit the issue in passing
Section 2339B, evidences that Congress does not and has never viewed specific
intent as an element of a Section 2333 claim.
If anything, the history of the amendments reflects that a specific intent
requirement would flatly contradict Congress’ stated intention to do anything that
can be done to eliminate terrorist fundraising in the United States and to halt any
and all contributions to terrorist organizations. In enacting Section 2339B,
Congress noted that its purpose was “to provide the Federal Government the fullest
possible basis, consistent with the Constitution, to prevent persons within the
United States, or subject to the jurisdiction of the United States, from providing
material support or resources to foreign organizations that engage in terrorist
activities.” Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, Sec. 301(b), 110 Stat. 1214, 1247 (1996). That is similar to the goal
expressed in connection with the original enactment of Section 2333, to do
“anything that could be done to deter money-raising in the United States” in order
to deter terrorism. Hearing (statement of J. Morris), p. 79. It is neither logical nor
consistent with Congress’ stated purpose to suggest that Congress would have a
more specific intent requirement in its civil statute than it included in a criminal
statute covering materially similar conduct. Indeed, it is clear that the aim of
Congress in enacting Section 2333 was simply to provide a basis of federal
jurisdiction for the pursuit of all tort remedies, whether available at common law or
by statute, under both state and federal law, subject to whatever standards of
CHI 57,459,295v1 8-22-08 13
proximate causation, ordinary requirements of scienter, and other elements of
liability that are appropriate to each of these independently-existing causes of
action.
Congress intended for persons who knowingly support terrorist organizations
to be held accountable for the wrongs committed by such organizations. This is
sound public policy, because it strikes not only at the terrorist organizations
themselves but also at those who might be inclined to support them. Congress did
not qualify its prohibitions by parsing between support for the terrorist
organization’s “benevolent” and evil purposes; the atrocities committed by such
organizations, in the judgment of Congress, allow for no such “middle of the road”
approach. Congress made clear that its purpose is the elimination of all terrorist
organizations and that purpose is best achieved through adherence to the plain
language of Section 2333, and Section 2339B.
C.C.C.C. Judicial Interpretations of Section 2333 Reaffirm that the Statute Has Judicial Interpretations of Section 2333 Reaffirm that the Statute Has Judicial Interpretations of Section 2333 Reaffirm that the Statute Has Judicial Interpretations of Section 2333 Reaffirm that the Statute Has no Specific Intent Requirement.no Specific Intent Requirement.no Specific Intent Requirement.no Specific Intent Requirement.
The majority of courts to consider this issue have read Section 2333 in
accordance with its plain language and have declined to impute a specific intent
requirement into the text of the statute. See, e.g., Weiss v. Nat’l Westminster Bank
PLC, 453 F. Supp. 2d 609, 625 (E.D.N.Y. 2006) (“[t]he requirement that the
defendant have specifically intended to further terrorist activities finds no basis in
the statute’s language . . . .”); Humanitarian Law Project v. Gonzales, 380 F. Supp.
2d 1134, 1146 (C.D. Cal. 2005) (looking to 18 U.S.C. §§ 2339A and 2339B for
guidance and stating that the court must “assume that Congress knows how to
CHI 57,459,295v1 8-22-08 14
include a specific intent requirement when it so desires as evidenced by § 2339A,
and that Congress acted deliberately in excluding such an intent requirement from
§ 2339B.”); see also United States v. Marzook, 383 F. Supp. 2d 1056, 1070 (N.D. Ill.
2005) (after “conclud[ing] that Section 2339B requires proof that Defendant
provided material support knowing either that the recipient was a designated FTO
or had engaged in terrorist activity[,]” the Court rejected the Defendant’s contention
that the provider of support need to have “specifically intended to further an FTO’s
terrorist activities”). These interpretations are consistent with the plain language of
the statute. In fact, as described above, the inclusion of a specific intent
requirement would modify the statute’s plain language and narrow the statute in a
manner that is entirely inconsistent with congressional intent.6
The ruling in Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257 (E.D.N.Y. 2007),
is instructive in the instant matter. In Almog, the plaintiffs were United States
citizens (or their estates, survivors, and heirs) who were victims of terrorist attacks
6 Notably, the Amicus Brief submitted on behalf of OMB Watch (the “OMB Amicus”) fails to explain how the plain language of Section 2333 can be interpreted to include a specific intent requirement. In fact, while attempting to distinguish the cases that have looked at § 2339B, the OMB Amicus relies largely on cases from contexts other than the Act, with the exception of U.S. v. Al-Arian, 308 F. Supp. 2d 1332 (M.D. Fla. 2004), to argue that claims brought under Section 2333 require a showing of specific intent. The holding in Al-Arian has minimal persuasive value because it was decided prior to the statutory amendments making even clearer the intent of Congress in this area. In addition, the holding has been distinguished by Humanitarian Law Project v. Gonzales, 380 F. Supp. 2d 1134, 1147 (C.D. Cal. 2005) (finding that the amendments to Section 2339B indicate Congress’ disagreement with the holding in Al-Arian that specific intent is required). Furthermore, the OMB Amicus’s reliance by analogy on NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), misses the point. Claiborne Hardware is simply inapposite. This is not a “mere association” case, but rather a “contribution of material support” case. One cannot compare a civil rights case which discusses the First Amendment’s limits on imposing civil liability on groups that associate together and where picketing results in limited violence, with an organization sponsoring terrorism and death by the thousands, especially where a statute has been clearly drafted to reach any monetary contributions supporting such an organization. This is the equivalent of using the First Amendment to challenge a statute that prohibits yelling “fire” in a crowded theatre.
CHI 57,459,295v1 8-22-08 15
in Israel. Almog, 471 F. Supp. 2d at 259-60. The plaintiffs brought suit against the
defendant, Arab Bank PLC, under 18 U.S.C. § 2333, for its role in the
administration of the death and dismemberment benefit plans issued by the Saudi
Committee. Id. The plaintiffs alleged that the defendants had committed an act of
“international terror” under Section 2333 by providing “material support to foreign
terrorist organizations” in violation of Section 2339B(a)(1). Id. at 267. The
defendants moved to dismiss the plaintiffs’ complaint, alleging, among other things,
that the plaintiffs failed to sufficiently plead that the defendants had acted with
specific intent. Id. at 268. The United States District Court for the Eastern District
of New York rejected the defendants’ specific intent argument:
It is sufficient that Arab Bank played a role in a well-publicized plan to reward terrorists killed and injured in suicide bombings and other attacks in Israel; knew that the groups to which it provided services were engaged in terrorist activities; and knew that the funds it received as deposits and transmitted to various organizations were to be used for conducting acts of international terrorism.
Id. (citing Linde v. Arab Bank, PLC, 384 F. Supp. 2d at 585-86) (“[P]laintiffs need
not prove motive in order to succeed in their claims. Plaintiffs acknowledge that
they are unlikely to be able to prove the motive behind any particular attack. . . .
The Bank’s active participation in creating such an incentive is a sufficient basis for
liability under the broad scope of the Act, which imposes secondary liability on
those who substantially assist acts of terrorism.”)). See also Humanitarian Law
Project v. Mukasey, 509 F.3d 1122, 1136 (9th Cir. 2007), cert. denied, 532 U.S. 904
(2001) (“[E]ven contributions earmarked for peaceful purposes can be used to give
aid to the families of those killed while carrying out terrorist acts, thus making the
CHI 57,459,295v1 8-22-08 16
decision to engage in terrorism more attractive”).
The United States District Court for the Eastern District of New York
rejected a similar argument in Weiss v. Nat’l Westminster Bank, PLC., 453 F. Supp.
2d 609 (E.D.N.Y. 2006). In Weiss, the plaintiffs brought suit pursuant to Section
2333, alleging that the defendant, a British bank, had “knowingly maintained”
numerous accounts for Interpal, an organization known to support Hamas, and had
transferred and received money between those accounts and various Hamas front
organizations. Id. at 618. Further, the plaintiffs contended that the defendant
provided Interpal with merchant banking services, both directly and through a
subsidiary, thereby making it possible for Interpal to “maintain merchant accounts
with major credit card companies.” Id. The court rejected the defendants’ argument
that specific intent was required for liability under Section 2339B, finding that a
specific intent requirement “finds no basis in the statute's language,” and in fact
“clashes with Congress’s intent.” Id. at 625.
The Weiss court distinguished the ruling in United States v. Al Arian, 329 F.
Supp. 2d 1294 (M.D. Fla. 2004), which held that specific intent is required under
Section 2339B. 453 F. Supp. 2d at 625. The Weiss court stated that the 2004
amendment of Section 2339B clarified any confusion on the District Court level
regarding the requisite mens rea requirement, thereby rendering Al Arian
effectively moot. Id. (citing Humanitarian Law Project, 380 F. Supp. 2d 1134, 1147
(C.D. Cal. 2005) (“This Court must assume that Congress, with full awareness of
these decisions [Al-Arian and Humanitarian Law Project II (“HLP II”)],
incorporated the HLP II holding into the statute and rejected the Al-Arian ruling
CHI 57,459,295v1 8-22-08 17
requiring specific intent. Therefore, the Court finds that an imposition of specific
intent to further terrorist activities cannot be reconciled with Congress’ clear intent
in passing the AEDPA and the IRTPA”)).
Similarly, in Linde v. Arab Bank, PLC, 384 F. Supp. 2d 571, 587 (E.D.N.Y.
2005), the court found that Section 2339B “was enacted in order to close a loophole
left by Section 2339A, which would have allowed terrorist organizations to raise
funds ‘under the cloak of a humanitarian or charitable exercise.’” Pointing to
Congress’ finding that “foreign organizations that engage in terrorist activity are so
tainted by their criminal conduct that any contributionany contributionany contributionany contribution to such an organization
facilitates that conduct,” the court concluded that Section 2339B is violated “if the
Bank provides material support in the form of financial services to a designated
foreign terrorist organization and the Bank either knows of the designation or
knows that the designated organization has engaged or engages in terrorist
activities.” Id. (emphasis added).
The plain language of Section 2333 demonstrates, and the vast majority of
courts that have considered that language have held, that there is no specific intent
requirement in the statute. Rather, all that is required is that the defendant knew
of an organization’s terrorist activities, and funded and supported the activities of
the organization. In enacting Sections 2339A and 2339B, Congress ably
demonstrated its ability to distinguish between a specific intent statute and one
that required no such specific intent, and chose not to amend Section 2333 to
incorporate a specific intent requirement. In light of this history, JCRC respectfully
submits that the majority of courts to consider this issue have ruled correctly, and
CHI 57,459,295v1 8-22-08 18
that Section 2333 does not include a specific intent requirement.
III.III.III.III. The Legislative History of the Act Shows that the StaThe Legislative History of the Act Shows that the StaThe Legislative History of the Act Shows that the StaThe Legislative History of the Act Shows that the Standardndardndardndard of Causation to Establish Liability Under 18 U.S.C. § 2333(a)of Causation to Establish Liability Under 18 U.S.C. § 2333(a)of Causation to Establish Liability Under 18 U.S.C. § 2333(a)of Causation to Establish Liability Under 18 U.S.C. § 2333(a) Is Proximate Causation, not Causation in Fact.Is Proximate Causation, not Causation in Fact.Is Proximate Causation, not Causation in Fact.Is Proximate Causation, not Causation in Fact.
Just as the broad legislative purpose of the Act would be undermined by
imposing a specific intent requirement that is not contained in the statutory text,
so, too, the imposition of a causation in fact (or “but for”) standard of causation
would directly impede Congress’ goal of reaching all support of and contributions to
terrorist organizations. A causation in fact requirement, if imputed into the Act in
contravention of Congress’ stated intention, could be read to require a litigant to
show a direct connection between a defendant’s specific dollar contributions and the
specific act of terrorism at issue in the lawsuit. That impossible burden would strip
the Act of all meaning and effect, and is flatly inconsistent with the Act’s history.
Section 2333(a) imposes liability for any injury occurring “by reason of an act
of international terrorism.” 18 U.S.C. § 2333(a). Under the plain language of the
statute, therefore, the requirement of causation is linked to the international
terrorist act, not the financial contribution. Put another way, to the extent the text
of Section 2333 contains a causation in fact requirement, the plaintiff need only
show that his or her injury would not have occurred “but for” an act of international
terrorism; no showing is necessary that the injury would not have occurred “but for”
the defendant’s particular contribution to the underlying terrorist organization’s
activities. Consistent with this reading, a review of the legislative history makes
clear that the Act is directed to all contributions to a terrorist organization,
regardless of where the contributions occur along the causal chain in relation to the
CHI 57,459,295v1 8-22-08 19
ultimate act of international terrorism that caused the plaintiff’s injury.
To determine whether “but for” causation is required under the Act, “the
intent of the statute” is instructive. See Tel-Oren v. Libyan Arab Republic, 726 F.2d
774, 788 (D.D.C. 1984) (declining to reach the “difficult question” of “but-for”
causation under the Alien Tort Statute, but noting that an evaluation of the intent
of the statute was needed to address the issue). Here, the legislative history of the
Act shows that Congress recognized the difficulties litigants may face in connecting
specific funds with specific acts of terrorism because of the manner in which
terrorist organizations solicit, invest, and track their money. Because terrorist
money is kept in western countries, including the United States, “legitimate
businesses [are used as] fronts” for terrorist funding, which can cloud and obscure
the use of a given contribution once it has passed from the donor into the possession
of the front organization. See Hearing (statement of D. Pipes), pp. 110, 135.
Given the challenges of tracking any given dollar through the complicated
infrastructure of terrorist financing, Congress unambiguously expressed its goal to
use the Act to impose liability along any point in the causal chain. Congress was
clearly aware that the heart of terrorist funding in the United States lies with
organizations, not individual terrorists and that “the imposition of liability at any
point along the causal chain of terrorism [] would interrupt, or at least imperil, the
flow of terrorism’s lifeblood: money.” See Hearing (statement of W. Perdue), p. 119
(noting that “[i]t is the organizations that support terrorism, that fund it and that
supply it, who are the ones likely to have assets in this country.”); see also Hearing
(statement of J. Morris), p. 84-85 (adding that “even if the [] [Act] had no greater
CHI 57,459,295v1 8-22-08 20
impacts than to deter terrorists from choosing American targets and from keeping
their assets where Americans might reach them, it would make profound
contributions to the antiterrorism struggle.”). Thus, Congress found that any
contribution to a terrorist organization is a contribution that facilitates that
organization’s terrorist conduct. Anti-Terrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, Sec. 301(b), 110 Stat. 1214, 1247 (1996).
The stated goal of intercepting and imposing liability for terrorist financing
anywhere along the causal chain cannot coexist with a requirement of “but for”
causation. Tracing specific funds received by the terrorist organization is a futile
endeavor, as those funds all support the underlying organization; therefore,
requiring “but for” causation is inconsistent with Congress’ finding that any
contribution to a terrorist organization is a contribution to terrorism. If a plaintiff
must show that a specific dollar donated in the United States was used to finance a
particular terrorist attack halfway around the world, tracing that dollar all the way
down the financing chain to prove that the attack could not have occurred “but for”
the specific donation, the circumstances under which liability might be imposed
under Section 2333 would be rare indeed. “Because money is fungible, it is not
generally possible to say that a particular dollar caused a particular act or paid for
a particular gun. If plaintiffs were required to make such a showing, 2333(a)
enforcement would be difficult [and] the stated purpose [of the statute] would be
Recognizing the intrinsic interchangeability of funds, Congress imposed
CHI 57,459,295v1 8-22-08 21
liability for donating money to a terrorist organization under circumstances where
it was reasonably foreseeable that the funds would be used to support terrorist acts,
i.e., proximate causation. Congress’ finding that foreign donations are the “lifeblood”
of terrorist organizations, and that terrorist groups cannot endure when deprived of
foreign donations, fulfills the requirement of causation in fact and vitiates any
argument that plaintiffs are required to make an individual showing of causation in
fact on a case-by-case basis.
At the donation level, therefore, the clause “by reason of” in Section 2333(a)
and its connection to “an act of international terrorism” denotes only a proximate
cause requirement, and this interpretation comports with Congress’ intent to have a
broad statute designed to deter all contributions to terrorist organizations. Because
all contributors to a terrorist organization are deemed to be contributing to the
organization’s terrorist activities, it is inconsequential if any specific donor’s money
directly caused the harm. Accordingly, proximate causation is the intended
standard and that which should be used to determine liability under Section 2333.7
Consistent with the legislative history, the majority of courts to consider the
question of causation under the Act have determined that only proximate causation
is required under the Act, and it is that causation standard that is reflected in the
“by reason of” language of Section 2333. See Biton v. Palestinian Interim Self-Gov.
7 This scenario is comparable to the hypothetical of two fires that cause a building to burn down. See, e.g., Maxwell v. KPMG LLP, 520 F.3d 713, 716 (7th Cir. 2008) (noting the existence of cases where “a condition that is not necessary, but is sufficient, is deemed the cause of an injury, as when two fires join and destroy the plaintiff’s property and each would have destroyed it by itself and so was not a necessary condition; yet each of the firemakers (if negligent) is liable to plaintiff for having ‘caused’ his injury”).
CHI 57,459,295v1 8-22-08 22
Auth., 310 F. Supp. 2d 172, 182 (D.D.C. 2004) (finding that “Ms. Biton has properly
alleged that the bus bombing was the legal cause of her injuries. The Seventh
Circuit [in Boim I] has interpreted the clause ‘by reason of’ to require a showing of
that principles of statutory interpretation demand that [the ‘by reason of’] language
be read as requiring plaintiffs to show that defendant’s actions were the proximate
cause of plaintiffs’ injuries”). As the Strauss court found:
Taking into account the legislative history of these statutes [including Section 2333(a)] and the purpose behind them, however, it is clear that proximate cause may be established by a showing only that defendant provided material support to, or collected funds for a terrorist organization which brought about plaintiffs’ injuries. Congress intended these provisions to impose, ‘liability at any point along the causal chain of terrorism.’
2006 WL 2862704, at *18 (quoting S. Rep. No. 102-342, at 22).
The discussions of proximate causation in the Boim opinions, particularly the
panel opinion now under reconsideration, require reconciliation with the
congressional purpose in drafting the Act. The Boim opinions noted that the Act is
not a strict liability statute and stated that it is well-established that “merely giving
money to an organization engaged in terrorism, without more” does not constitute
an act of international terrorism sufficient to “render the donor liable under section
2333.” Boim v. Holy Land Foundation for Relief and Development et al., 511 F.3d
707, 714 (7th Cir. 2007) (“Boim III”), vacated by Boim v. Holy Land Foundation,
Nos. 05-1815, 05-1816 & 05-1822, 2008 U.S. App. LEXIS 12925, (7th Cir. June 16,
2008) (“To say that funding simpliciter constitutes an act of terrorism is to give the
statute an almost unlimited reach.”). “Funding simpliciter,” however, is a red
CHI 57,459,295v1 8-22-08 23
herring and an illegitimate criticism of Section 2333 since proximate cause is
required.
The Court in Boim I stated that unlike its criminal liability counterparts,
under which liability may be imposed even for relatively small
contributions, provided they were made knowingly and intentionally in support of
terrorism, the “by reason of” language contained in Section 2333 imports a
causation requirement into the Act’s civil liability scheme. Boim I, 291 F.3d at 1012.
Thus, at “the very least, the plaintiffs must be able to show that murder was a
reasonably foreseeable result of making a donation.” Id. This is hardly “funding
simpliciter.” The Boim III court’s insistence that traditional tort principles require
not only a showing of proximate causation, but also that the donation was a cause-
in-fact of David Boim’s death is unnecessary and incorrect. Boim III, 511 F.3d at
740-41, vacated by Boim v. Holy Land Foundation, Nos. 05-1815, 05-1816 & 05-
1822, 2008 U.S. App. LEXIS 12925, (7th Cir. June 16, 2008).
Congress has clearly enunciated its belief that anyanyanyany contribution to a terrorist
organization is a contribution to terrorism. The causal link is the foreseeability of
its use for terrorism. The above example that is relied upon by the Court in Boim III
is in fact not broad enough. Congress has enacted a statute that establishes liability
for all knowing contributors to a terrorist organization that commits a terrorist act
regardless of the donor’s individual intent, and as
[Remainder of Page Intentionally Blank]
CHI 57,459,295v1 8-22-08 24
importantly, regardless of whether that donor’s specific contribution was the sole
cause of the specific terrorist act. Terrorism is a blight on mankind and terrorist
organizations cause the incalculable and heinous loss of human life. Accordingly,
Congress enacted statutes, both civil and criminal, that are intended to eliminate
terrorism at its core, by preventing the funding of terrorist organizations. Sections
2333 and 2339B are drafted broadly and should be interpreted in kind. Congress
intended the elimination of terrorism and that goal is best achieved by finding that
the knowing support or funding of a terrorist organization, in a situation where it is
foreseeable that a terrorist act could ensue as a result of that support, creates
liability under Section 2333.
CONCLUSIONCONCLUSIONCONCLUSIONCONCLUSION
For the foregoing reasons, the Jewish Community Relations Council supports
the position of the Plaintiffs-Appellees herein, and respectfully requests that the
Court grant the relief requested by the Plaintiffs-Appellees.
Dated: August 22, 2008 JEWISH COMMUNITY RELATIONS COUNCIL OF THE JEWISH UNITED FUND OF METROPOLITAN CHICAGO
By: /s/ Joseph A. Morris One of Its Attorneys
Joseph A. Morris Morris & De La Rosa 39 South LaSalle Street, Fifth Floor Chicago, Illinois 60603 (312) 606-0876 Keith J. Shapiro Daniel D. Rubinstein Gregory E. Ostfeld
CHI 57,459,295v1 8-22-08 25
Kathryn A. Dugan Greenberg Traurig, LLP 77 West Wacker Dr., Suite 2400 Chicago, Illinois 60601 (312) 456-8400 Samuel B. Isaacson Stanley J. Adelman David J. Pivnick Nika K. Gembicki 203 North LaSalle Street, Suite 1900 Chicago, Illinois 60601 (312) 368-2163 Counsel for Amicus Curiae
CHI 57,459,295v1 8-22-08 26
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Counsel for Plaintiffs
Richard M. Hoffman Wildman, Harrold, Allen & Dixon LLP 225 West Wacker Drive Suite 3000 Chicago, IL 60606 PH: (312) 201-2961 FX: (312) 416-4750 [email protected]
Nathan Lewin, Esq. Alyza D. Lewin, Esq. LEWIN & LEWIN LLP 1828 L Street, N.W. Suite 901 Washington, DC 20036 PH: 202-828-1000 FX: 202-828-0909 [email protected][email protected] Counsel for Defendant, HLF
John W. Boyd, Esq. Nancy Hollander, Esq. John Cline, Esq. Zachary A. Ives, Esq. FREEDMAN, BOYD, DANIELS, HOLLANDER, GOLDBERG & CLINE, P.A. 20 First Plaza, Suite 700 Albuquerque, NM 87102 PH: 505-842-9960 FX: 505-842-0761 [email protected]
Counsel for Defendant Muhammad Salah
Mary M. Rowland, Esq. Matthew J. Piers, Esq. Frederick S. Rhine, Esq. HUGHES SOCOL PIERS RESNICK & DYM, LTD. Three First National Plaza, Suite 4000 Chicago, IL 60602 PH: 312-580-0100 FX: 312-580-1994 [email protected] Counsel for Defendants, AMS (d/b/a IAP) and IAP
James R. Fennerty, Esq. JAMES R. FENNERTY & ASSOCIATES, LLC 36 South Wabash Avenue, Suite 1310 Chicago, IL 60603 PH: 312-345-1704 FX: 312-422-0708 [email protected] Brendan Shiller, Esq. LAW OFFICE OF BRENDAN SHILLER 36 South Wabash Avenue, Suite 1310 Chicago, IL 60603 PH: (312) 332-6462 FX: (312) 422-0708 [email protected]
CHI 57,459,295v1 8-22-08 28
Counsel for Defendant, QLI
John M. Beal, Esq. 53 West Jackson Boulevard Suite 1108 Chicago, IL 60604 PH: 312-408-2766 FX: 312-408-2765 [email protected]
