*1 sentencing, hearing and suppression displea- its noted repeatedly
district Figueroa-Espana fact
sure These occasions. multiple lied on
openly by Figuer- filed any motions
lies, his sentence. led
oa-Espana, Conclusion
III. reasons, we Affirm foregoing
For sen- conviction
Figueroa-Espana’s
tence. ad individually and as BOIM,
Stanley David Estate
ministrator Boim, Joyce deceased,
Boim,
Plaintiffs-Appellees,
v. FOR FOUNDATION LAND
HOLY DEVELOPMENT, AND
RELIEF Defendants-Appellants. al.,
et 05-1821, 05-1816, 05-1822. 05-1815,
Nos. Appeals, Court States
United Circuit.
Seventh 30, 2005. Nov.
Argued 28, 2007. Dec.
Decided *2 Freedman, Boyd, Dan- Boyd, W.
John Goldbe, Hollander, & Peifer, Guttman iels, (ar- Piers NM, J. Matthew Albuquerque, Rhine, Mary M. Row- S. Frederick gued), *3 Resnick Piers Socol Hughes land, Gessler Fennerty, Beal, R. James M. Dym, John & IL, Defen- Shiller, Chicago, Brendan ' dants-Appellants. Schwartz, Cooper, Seidman, David IL, for Krauss, Chicago, Greenberger & óf Community Relations Council Jewish Metropolitan Fund of United the Jewish Chicago. Elbaum, Anti-Defamation
Daniel Baum, Mu- Katten K. Jonathan League, IL, for Anti-Def- Rosenman, Chicago, chin League. amation EVANS, WOOD, ROVNER, Before Judges. Circuit Judge. ROVNER, Circuit the mur- origins in its has lawsuit This years ten than more Boim David der Israel David, of both a citizen ago. par- his States, living with United gunned down he was when in Israel ents Bank a bus in West waiting while apparently He Jerusalem. outside believed by gunmen at random shot organiza- the terrorist behalf acting on Hamas. tion Crimi- States United Section injured nationals U.S. grants nal Code right terrorism international acts court. in federal damages for treble sue Boim, Joyce Stanley and parents, David’s estate, David’s themselves behalf not against this statute under suit filed shot believed men two only the of individuals array David, but an United States organizations Broadly to Hamas. Harrold, connections alleged Wildman, Landes, J. Stephen lat- theory as Boims’ speaking, IL, Lewin Dixon, Nathan Chicago, &Allen pro- was that of defendants group ter Lewin, Washington, & Lewin (argued), for, otherwise money raising moting, Plaintiffs-Appellees. DC, for behalf working on these defen the District of Columbia Circuit’s finding fund, train, helped had dants and arm that HLF funds the terrorist activities of the terrorists who killed their son. In Hamas. Salah, As to AMS and we con- Quranic Inst., Literacy Boim v. clude that the district court erroneously (“Boim (7th Cir.2002) I”), we sus relieved the Boims of the burden of show- viability tained the of the Boims’ com ing that these defendants’ actions were a plaint, concluding that liability under sec cause in fact of David Boim’s death. As to tion only attached persons QLI, we conclude that the district court acts, who committed terrorist but to all sponte sua erred in prior without no- those and organizations individuals along applying tice summary its judgment deter- *4 the causal chain of terrorism. mination against the other that defendants remand, On the district court found ap Hamas responsible for the murder of pellants Muhammad Abdul Hamid Khalil Boim, David QLI, to against whom the (“Salah”), Holy Salah Land Foundation for Boims did not seek summary judgment. Relief and Development (“HLF”), and However, the district court did not abuse (“AMS”) Society American Muslim liable its discretion when it QLI’s denied request to the Boims on summary judgment. to continue the trial date. Quranic v. Inst., Boim Literacy In (N.D.Ill.2004). light of F.Supp.2d the errors in summary At the the con trial, judgment clusion of a jury below, rulings concluded we vacate the appellant Quranic Literacy judgments entered against Institute these four ap- (“QLI”) also was liable. The jury pellants awarded and remand for proceed- further damages million, of which $52 the district ings. remand, On the Boims will have to court trebled to Salah, million. HLF, $156 demonstrate an adequate causal link be- AMS, QLI and all appeal.1 tween the death of David Boim and the HLF,
Salah, HLF, Salah, actions of and and AMS AMS. contend This will that the require criteria employed by district court of for conduct each imposing defendant, liability incomplete were be it or in- direct involvement with or correct and that the evidence adduced of be- Hamas’s terrorist activities or low not did suffice to impose liability. QLI indirect support of affiliates, Hamas or its complains of the district court’s refusal to helped bring about the terrorist attack continue the trial date after the court’s that ended David Boim’s life. A defen- summary judgment rulings left it as the dant’s conduct need not have been the sole sole defendant facing a trial liability; predominant or attack; of cause on the also contends that the district court erred contrary, consistent with the intent of Con- sponte sua entering partial summary gress liability for terrorism extend the judgment against QLI as to aspect one of length full of chain, the causal even con- liability. duct indirectly facilitated Hamas’s
We reverse entry partial might sum- activities render a defen- mary judgment as to dant liability against de- liable the death of David Boim. HLF, fendants AMS, and But Salah. As the plaintiffs to must be produce able to HLF, we conclude that the district court some evidence permitting a jury to find in giving erred collateral estoppel effect HLF, Salah, activities of and AMS 1. The district ed, court deemed a however, number of other liability their consequently defendants jointly and several liable for the is not before us. judgment. No other appeal- defendants have p.m., 4:00 Shortly before examinations. on David attack fatal contributed ten stopped road off the pulled car in fact a cause therefore and were Boim people assemblage from away feet appel- those proof, such Absent his death. the car’s more one stop; the bus in their judgment entitled bewill lants esti- fire. Gellman opened then occupants chal- has QLI, which As to favor. thirty shots a total mated employed standard lenged shrieking the bullets hear fired; could be limit- he will court, the remand the district day, I don’t “[To] his head. was past whether question ed to shooting.” I survived how Boim. understand of David murder for the responsible out, he (of cry Yair his friend heard opportunity He given will QLI David fall Yair both district see by the turned deprived it was which shot been rul- David summary judgment ground. sponte sua court’s tried stopped there dentist passing A head. to demonstrate attempt ing) evac- subsequently He fact on this him. revive of material dispute exists hospital local to a ambulance uated point. hospital to a second transferred then *5 I. was he shortly after He died surgery. was He room. operating the into taken A. evening same Jerusalem buried from to Israel moved The Boims classmates by his attended a after service a more pursue to in 1985 States United “Part mourners. of other thousands and of fifth David was life. spiritual died, he day away” taken me of was 1996, David was In children. seven Boim’s David was testify. later would Joyce Boim and school high of year third his finishing old. years seventeen an He was college. apply to preparing who student determined and intelligent B. His class- a becoming doctor. of dreamed warm, outgoing as a him knew mates later was Boim David The murder hug his was trademark man. “His young Hi- Amjad individuals: to two attributed Gellman, a Yechiel smile,” recalled his and Both Tawfiq Al-Sharif. Khalil and nawi de- His mother classmate. and friend Au- by the Palestinian apprehended were peacemaker. aas him scribed pending released and then thority in Beit-El, yeshiva near ain studied David ain suicide himself killed Al-Sharif trial. of Jerusa- north village Bank West a small in Jerusalem mall shopping aat bombing 1996, May on p.m. By 3:30 lem. tried was Hinawi year. same later that and sev- David concluded. day had school con- and tribunal Authority Palestinian aat gathered classmates of his eral attack terrorist in a participating victed Jerusa- between busy road stop on bus murder. to Boim’s accomplice being an and hot, early- It was Nablus. lem hard years ten to sentenced He tell- boys were afternoon, and the summer labor. they as sharing stories jokes ing be- were Hinawi Al-Sharif Both carry them would bus that awaited or terrorist be members lieved class taking Jerusalem, where Hamas.2,3 an Hamas wing “military” entrance college their them for prepare same, with- do wing. We shall "military” below have witnesses parties and use of whether as to judgment holding its wing as of Hamas terrorist referred organization that was founded in 1987 people. That influence was evident in the an outgrowth of the Muslim Brotherhood 2006 election of Hamas candidates gov in Egypt. name Its is derived from an erning positions within the Palestinian Au acronym for al-Muqawama “Harakat al- thority. See Zahren Gonzales, v. Islamiyya,” in English which means the 1039, 1040(7th Cir.2007).
“Islamic Resistance Movement.” Its char- ter, written in calls the oblitera- C. tion of the State of Israel and the estab- lishment of Islamic republic in the area Pursuant to section Joyce and Israel, now comprising Bank, the West and Stanley Boim sued a variety of individuals the Gaza Strip. Soon after its founding, organizations for their son’s death. began to engage in terrorist at- Joyce Boim would later testify that their tacks both civilian military targets. aim keep was to “even one nickel” from It officially designated a terrorist or- Hamas that might be used for further ganization by the United Depart- States terrorist acts like the murder of her son. Treasury’s ment Office Foreign In addition to Al-Sharif, Hinawi and (“OFAC”) Assets Control on January 24, whom the murder of David Boim was di- 1995. That designation made it illegal for rectly attributed, the Boims’ amended a United States citizen entity to engage complaint named as defendants a variety in any transactions or dealings involving of individuals organizations with ties the property or interests of Hamas without to Hamas. Among them are four ap- license to do so. Hamas was subsequently pellants: foreign deemed a organization *6 the United States Secretary of State on 1. Salah is a naturalized United States 8, 1997, October a designation that made it citizen who allegedly has served as the illegal anyone within the United States U.S.-based leader of Hamas’s military subject jurisdiction to its provide to wing. Salah was at a arrested Gaza check- material support or resources to Hamas. point in January by military Israeli In addition to its military wing, authorities Hamas and was subsequently charged political has a wing with being advocates on of, be- active member holding half of Palestinian in, people. office Hamas and performing also services for an operates a network of social illicit organization (Hamas), institutions engaging in known as Da’wa provide which activity against medical the public order and un- care, and schooling, other services to Pal- dermining regional security, and providing estinians living in and around the shelter Gaza to terrorists. Salah ultimately Strip and the West Bank. Hamas’s pleaded charita- guilty to these offenses and was ble endeavors have helped it to achieve a incarcerated in Israel until his release in position of influence among the Palestinian or around November In 1997. while term "military” appropriate in reference Similarly, to although a judgment default was terrorist activities. Hinwai, against entered his default cannot defendants, bind the other as we discuss infra say 3. We “believed to be” because not all of at 752. discuss, As we further there is an the defendants have conceded that Al-Sharif array problems of with the evidence that the and Hinawi were of members Hamas and Boims have offered in order to murdered establish that David Boim in further- ance of Al-Sharif Hamas-sponsored and Hinawi were terrorism. Al- members of Ha- though point, concedes AMS/IAP mas and one de- responsible fendant's concession cannot bind another. David’s murder. See at 752-54. infra below, gov- detail greater Israel, discussed U.S. incarcerated he designat- a specially HLF Sa- ernment named added OFAC Treasury Department’s froze its as- organization and specially terrorist list of ed government’s lah re- After he was in 2001 based sets terrorists. designated authorities, organiza- military to Hamas supplied the Israeli funds leased and/or In States. In the United with Hamas. affiliated returned tions Salah District in the Northern of its jury HLF and seven grand a indicted government for: and others for, alia, Salah and providing Illinois indicted inter principals 1988) to conduct (beginning conspiring provide material conspiring of an enter- in the affairs participate organiza- foreign a terrorist resources to (Hamas) crimi- a through pattern prise (Hamas) in of 18 U.S.C. violation tion murder, hos- kidnaping, (including nal acts 2339B(a)(l). alleges § The indictment laundering, obstruction money taking, tage financial channeled substantial that HLF forgery) violation justice, and ostensibly char- through support Hamas Corrupt Organi- Racketeer Influenced affili- organizations itable committees 1962(d) (“RICO”); Act, § zations U.S.C. trial in A two-month with Hamas. ated attempting knowingly providing recently of Texas District the Northern resources support and material provide jury was after the in a mistrial ended (Hamas) in organization foreign a a as to most to reach verdict unable 2339B; § en- 18 U.S.C. violation of HLF. against those including charges, by giving justice to obstruct deavoring organization AMS is now-defunct misleading verified answers false and which in the United States incorporated the Boims interrogatories posed the Islamic Association did business of 18 in violation litigation, civil instant (IAP). there have time Over Palestine dropped government § 1503. The U.S.C. at the lo- multiple entities been AMS/IAP shortly charge before the material theory The Boims’ levels. cal and national following year, of this February In trial. entity, single they all constituted a is that trial, jury acquitted Salah three-month district court which the proposition charge and convicted conspiracy the RICO *7 906-08. We F.Supp.2d at agreed. July charge. On him of the obstruction entity as to this shall refer AMS/IAP. Salah sentenced the district court sup- financial allegedly provided AMS/IAP twenty-one months term of prison IAP, which through HLF. port to Hamas charge. Chicago, described headquartered incorporated organization 2.HLF is an organ- grass-roots not-for-profit, itself as a govern- that the U.S. in the United States com- advancing just, ization dedicated financial provided has determined ment solution and eternal prehensive, Hamas; shut effectively it was support to through po- people Palestine cause of the on that basis government down litical, social, efforts. and educational as the Occu- incorporated HLF was 2001. IAP to have considers government U.S. It in 1989. Fund in California pied Land by, in the U.S. for Hamas front acted to HLF and relocated its name changed communi- reprinting example, organ- not-for-profit It is a in 1992. Texas publications. periodical in its qués fund humanitar- purported ization which organization QLI is another U.S. people in relief for Palestinian ian money raised and laundered allegedly Gaza, one Bank, beyond. At West not-for- QLI is an Illinois for Hamas. largest as the time, itself HLF described incorporated that was profit organization As States. charity the United Muslim 2333; and, indeed, operated Chicago and has section judg- a default Ostensibly, that time. area since its cen- ment against was entered Hinawi below. was to undertake an authori- (The tral endeavor estate, Boims sued Al-Sharifs but English into of the prin- translation tative after were unsuccessful in attempting of Islam. Salah worked for cipal texts service, the estate was from dismissed early in the late or QLI beginning 1980s suit.) mayWe also assume that until when he was arrest- 1990s and upon proof that Hinawi and Al-Sharif com- According plaintiffs, to the ed in Israel. mitted the murder at its behest or with its QLI ways: Hamas and Salah two aided support, likewise would be liable to the by providing Salah him gave it cover to Boims, although Hamas has not been legitimate apparently employment named defendant in this suit. But what actually working while he was on Hamas’s vigorously has been in- disputed from the behalf, helped money raise ception litigation of this is whether and money and funnel to Hamas. under what persons circumstances groups allegedly provided money who D. (directly and other to Hamas 2333(a) permits Section U.S. nationals indirectly) may also liable for David’s injured “by who have been reason of an murder. act of international terrorism” to sue for injuries in Salah, HLF, AMS, their federal court and to recov- QLI all moved to damages. er treble “International terror- dismiss complaint the Boims’ for failure to ism” is turn defined to include conduct them, I, against state a claim and in Boim (a) violent acts or “involve[s] acts we affirmed the district court’s decision dangerous to human life that are a viola- not to do so. We concluded that section tion of criminal laws of the United 2333 reflects an intent Congress to State, any States or of or that would be a allow a injured by U.S. national reason of criminal violation if committed within the international terrorism to recover from jurisdiction United States or of anyone along the causal chain of terrorism (b) State”; appears intended “to intimidate and that is not limited to those population,” or coerce a civilian to influ- who commit the violent act that causes government policy through ence intimi- Thus, injury. 291 F.3d 1010-11. coercion, dation or or to affect the conduct extent that a party provided third government by means of mass destruc- money or other to a terrorist who tion, assassination, (c) kidnaping; engaged act, in a party po- primarily occurs outside of the United tentially could be held liable for the result- *8 States or national transcends boundaries. ing injury along with the terrorist himself. 2331(1). § 18 U.S.C. It is both a fair See id. undisputed inference—and the mur- —that However, response of first der of David Boim constitutes an act of questions three the district court had certi- international terrorism as so defined and review, interlocutory fied for (and reject we did Stanley that Joyce and Boim of the proposition merely giving money that David, course represented by this suit organization terrorism, to an engaged his father as the administrator of his es- tate) more, without injured were would thereby. It constitute an act of equally plain that the international individuals who terrorism sufficient to render themselves killed purportedly Hinawi Al- the donor and liable under section 2333. Id. at David— Sharif —would be liable to Boims the under 1011. violent specified of the commission consti- used funding simpliciter say that
To crime makes it a acts, 2339B section while give tois of terrorism an act tutes or support material provide knowingly Any to reach. unlimited almost an statute that the Unit organization to an terror- resources to facilitate out act which turns foreign terror designated has may be ed States act ism, remote however to 8 U.S.C. pursuant of organization ist regardless and violence from actual 1189(a). injured by reason Thus, § those to intent, be construed could actor’s of financing intentional knowing and re- of the also Without “involve” terrorism. as and activities organizations knowledge terrorist to show quiring statutory provi two by these proscribed vio- payee’s further intent to of and under to entitled recover be sions would acts, a broad defini- such lent criminal can causation provided in- section lead to constitutional might also tion tort law. in traditional be shown association mere by punishing firmities not support need Financial 1015. in terror- F.3d at engage groups as mate qualify in order substantial be .... ism made small donations “even support; rial money to or merely giving Id. So intentionally support and knowingly by itself not entity would Hamas-affiliated for civil the standard may meet terrorism liability under sec- civil to establish suffice Id4 section 2333.” liability under by committed acts for terrorist tion The Boims Id. the last Finally, Hamas. we agents answered aiding holding the donor was questions have show certified would and terror- activities international Hamas’s terrorist an act of abetting aware id., activities, liability sec- those under to further also ism would intended Boim little of David would have the murder statute also that “The tion 2333. those who result limited to reasonably foreseeable “was effect if donation,” because the bomb id. at or making trigger plant pull assets, unlikely to have are persons such conclude, in answer went We States, and in the United assets much less dis by the certified question second Id. by the statute.” deterred would not and intentional court, knowingly trict Thus, knowingly who those at 1021. including support, material ly providing by providing acts intentionally aid terrorist support, to financial limited but com- those who other funds or activities —con organizations under held liable acts could be mit the forbidden separately now that is duct clearly “Congress’ statute, consistent with Code, see 18 U.S.C. Criminal U.S. flow to cut off the intent expressed also consti 2339B—would §§ 2339A along every point money to terrorists terrorism act international an tute es- To violence.” Id. chain of the causal I, 291 2333. Boim of section purposes aiding liability for a defendant’s tablish it a makes 2339A 1014-15. Section F.3d at organ- acts of abetting the terrorist re support or provide material crime to plaintiff would like ization they be intending that knowing sources *9 in order statutes two criminal of these opinion, either in our we clear elsewhere 4. As made Indeed, sec- 2333. section prevail under to and 2339B citing 2339A sections we were 1996, and enacted until was not tion 2339B solely to illus- they criminalize conduct the foreign terrorist designated a was not Hamas activity might qualify as types of trate the prohib- section 2339B organization to which purposes of terrorism acts of international 1997, David after support until 2333; suggesting its financial we were not section was murdered. Boim a violation of have to establish Boims would to that the defendant show knew of Ha- nor they seeking are to activities, illegal mas’s that the defendant hold the defendants liable for contribut- succeed, help desired to those activities ing money for humanitarian efforts. engaged and that the defendant in some Rather, they seeking are to hold them illegal act of helping conduct. Id. at liable for aiding abetting murder 1023; see also id. at 1021. supplying money buy to weap- ons, shooters, train the compensate rejected
We the contention of HLF and the families of the murderers. That Ha- QLI that holding them liable under section may engage mas in legitimate advocacy might contravene the First Amend- or humanitarian efforts is irrelevant for by penalizing ment them for mere associa- First purposes Amendment if HLF and Although tion with Hamas. section 2333 QLI knew about Hamas’ illegal opera- than requires on its face more mere associ- tions and intended help to ac- organization ation with terrorist as a complish illegal goals those they when 1022, predicate liability, 291 F.3d at money contributed organization. suggested defendants were ex- posed liability simply providing mon- 291 sum, F.3d at 1024. In plaintiffs could ey to Hamas even if their intent was to not prevail on an aiding and abetting theo- ostensibly fund its legitimate, humanitari- ry without proving that the defendants’ activities, However, id. we found the intent was help Hamas succeed in its premise argument of this to be mistaken terrorist aims.5 plaintiffs insofar as seeking were to hold Having concluded that the Boims’ com- QLI HLF and theory liable plaint against asserted viable claims these they had aided and abetted David Boim’s defendants, we affirmed the district court’s murder alleged based on their financial decision not to dismiss complaint. outlining ties to Hamas. In the elements appeal While the pending, the defen- aiding and abetting liability, we said dants had consented disposition to final prove must that the defen- Magistrate before Judge Keys, Arlander dant illegal activities, knew of Hamas’s designated magistrate. In the wake of help illegal desired to those activities suc- I, court’s decision in Boim the Boims ceed, and engaged in some act helping amended their complaint to allega- include those activities. Id. at 1023. If all of this tions that the defendants had engaged in a shown, imposing liability then would conspiracy promote Hamas and to raise be consonant with principles articulat- money in the United States for Hamas’s ed in Co., NAACP v. Claiborne Hardware ¶¶ 36, 55, activities. R. 203 886, 920, 3409, 458 U.S. 102 S.Ct. Discovery concluded in April (1982), L.Ed.2d 1215 which held that “[f]or shortly parties thereafter filed cross- liability to be imposed by reason of associ- summary motions for judgment. alone, ation necessary to establish that group possessed goals itself unlawful In November Magistrate Judge and that the individual specific held a in- Keys ruled on the motions for summary tent illegal further those aims.” We judgment. He denied the motions of de- explained: Salah, HLF, AMS/IAP, fendants QLI,
The Boims seeking are not HLF hold and granted the Boims’ partial motion for QLI liable for their mere association summary judgment against defendants Sa- 5. We reject went on to another First Amend- holding regard Our in that is discussed infra challenge ment focused on section 2339B. at 728-30 n. 8.
717 no discerned the court requirement, AMS/IAP, them first deeming HLF, lah, and knowledge of damages that were had dispute Boims for AMS/IAP liable intent, at trial. subsequently activity. Id. As for illegal determined Hamas’s to be that there F.Supp.2d at the observed outset the court manifested organization one was AMS/IAP on liable based HLF court found The incarnations, the court so as multiple First, the court key determinations. two AMS desired IAP and whether considered estoppel effect to collateral granted succeed terrorist activities help determina to Hamas’s Circuit’s of Columbia District assistance, Treasury it in some act of challenging engaged litigation and tion—in finding that HLF constitut the various Department’s fair attribute acts was to organi designated terrorist specially another; thus ed a the court to one IAP entities and, in Hamas HLF funded zation—that and AMS to efforts of IAP rejected the was deed, funding of this acts to for various responsibility attribute 903-06; at F.Supp.2d incontrovertible. Id. at 906-08. IAP entities. different v. & Dev. Holy Land Found. see Relief for determina- threshold Having made (D.C.Cir.2003). 156, 165 F.3d Ashcroft, 333 that there tion, find proceeded court to summary Second, judgment looking at indicating of evidence an “abundance” was case, found there the court in this record did to and and AMS desired that IAP responsi was that Hamas dispute no to be Specifically, Id. at 908. support Hamas. David Boim. 340 for the murder ble had indicated that the record AMS/IAP at 899. F.Supp.2d in Philadel- meeting in a 1993 participated to find proceeded The AMS/IAP and Hamas Hamas members phia theory Boims’ The to the Boims. liable to ways at which sympathizers various supported had AMS/IAP discussed, engaged support Hamas to come Hamas leaders by paying for (which in turn fun- HLF fundraising for and order to attend United States Hamas), and published money to neled conferences, to distribute helping speak documents, and pro-Hamas distributed propaganda, literature and pro-Hamas Hamas terrorist at which held conferences propaganda using that literature Id. at 908-13. were featured. speakers cause, on Hamas’s donations solicit had submitted IAP and AMS Although liable for support was of this basis (who been had Rafeeq Jaber declaration murder, which Boim’s AMS/IAP David who had AMS since president of Hamas’s be- was committed conceded organi- IAP the national president been hest. and from from 1996 zation opin- our understood district court The onward) Jaber denied which AMS/ could say that I to ion Boim AMS/IAP terror- any aid to Hamas’s given IAP had long so as it to the Boims be liable so, intent to do any had ist activities activities, it illegal of Hamas’s aware conclu- rejected these denials the court succeed, and activities help those wished at 913. self-serving. Id. sory and act of assistance. in some engaged Thus, saying without at 906. F.Supp.2d sum, court concluded In our so, relying articula- the court was render were sufficient undisputed facts theory of abetting aiding tion of the having liable to the Boims AMS/IAP standard. governing as the court did The abetted Hamas. aided and finding as whether not render AMS/ these ele- each of court found that act or wrongful particular IAP had aided respect to been With met. ments *11 had a causal connection Fifth Amendment and refused to answer acts series death. See id. questions put to David Boim’s to him regarding his involvement with Hamas. Id. at 922-23. Salah, the court Turning to found gave That invocation a negative rise to undisputed facts sufficient to establish his that, answered, inference had Salah he deliberate of Hamas’s terrorist ac- would have incriminated himself. Id. at tivity. Again the court cited our discuss- record, 923. Based on this the court con- ing aiding abetting liability and in Boim cluded that the Boims had established all governing I the source of as standard. three elements aiding abetting lia- at F.Supp.2d 913. The court cited a bility as to ques- Salah and no factual variety indicating that Salah Hamas, jury tions remained for a to resolve as to provided support including had plea in those elements. Id. guilty military Salah’s an Israeli Hamas, being court to an active member of rejected The court Salah’s contention Hamas, holding performing office longer he was no involved with Hamas Hamas, services for well an August as following January his 1993 arrest Israel detailing 1995 statement in- Salah’s that, consequently, the Boims could volvement with Hamas that Salah had establish no link between his activities custody written while in Israeli to other support of Hamas and David Boim’s death detainees whom he believed to be Palestin- 1996. The court found that prisoners.6 ian Although Salah had raised such a link was required. Id. questions about the voluntariness of his that, say The Seventh Circuit did not plea, the district court found there to be § impose liability under the Boims “an corroborating abundance of evidence” have to link Mr. Salah of the plea both his and the 1995 statement. 340 specifically other defendants at- F.Supp.2d 920. That evidence included Boim; rather, tack that killed David pre- bank records and a memorandum court held that impose liability pared by FBI expert counterterrorism is, aiding abetting providing —that (which L. among things Dale Watson other material to—a organi- detailed Salah’s role in Hamas and his zation, only the Boims need show that many involvement with individuals known the defendants knew of illegal Hamas’ to the American governments and Israeli activities, they help desired to those terrorists). 920-22; as Hamas Id. at see succeed, activities and that engaged Beyond at 721. challenging the ad- infra Boim, act helping. some missibility of some of the evidence docu- at 1028. The evidence shows that all menting his ties to Salah had not Salah, respect three are true with to Mr. evidence, rebutted that the court noted. jury no reasonable could find other- Id. at 922. Additionally, deposed by when wise. again response many the Boims and F.Supp.2d case, averments of the Boims’ statement In any 923.7 facts, of undisputed added, Salah invoked the under established civil con- statement, In that Salah had detailed his per lars in Gaza and the West Bank Mar- instructions; Marzook, zook's relationship stated that he had with Mousa Abu who helped to train certain Hamas recruits. 340 acknowledged po- was the leader of Hamas’s 921; F.Supp.2d at id. at 918. wing litical raising and who had admitted Hamas; money for described various meet- 7. The district court's articulation of what the Marzook; ings that he had with indicated that obligated prove appears Boims were he distributed hundreds of thousands of dol- conflate two distinct theories of *12 that Hamas was other defendants for vis the liable Salah could principles, spiracy Boim’s murder conspir- for David responsible of a in furtherance acts committed withdrawal, he lim- providing would that this determination signaled after his acy even the con- goals of would need to repudiated not the Boims had what evidence it Moreover, Boims if the Id. even spiracy. QLI’s liabili- in order to establish present given Salah unable to show that 688, 9; Op. R. Mem. at see also ty. R. 659 conspir- under support to material instruc- Subsequently, opening in its 9. at for be liable he could still acy principles would state jury, the court tions to the it was long murder so as Boim’s David re- Hamas was group terrorist that “[t]he “the con- reasonably foreseeable result R. 814-1 at murder.” for the sponsible Id. at 924. Hamas.” spiracy that was liability in QLI’s he addressed 107. When summary judg- not seek Boims did The closing opening his statement both court QLI and district against ment Boims’ counsel jury, argument judg- summary QLI’s motion for denied finding in rely on that expressly would defendant ment, QLI as the sole which left against QLI. Id. Boims’ case laying out the liability. Tri- subject of facing trial on (“As you, already has told Judge 1, for December been set previously al had Hamas is re- ... has concluded he just three weeks which was a date murder.”); R. 814-4 for David’s sponsible ruled on court the district off when (“The already ruled that Court has Follow- summary judgment. for motions Ha- organization terrorist the international ruling, QLI summary judgment ing the Boim.”). David killed mas Magis- date. continue the trial moved to as jury selection began trial with that re- orally denied Judge Keys trate date, 1. On on December 24, 2004. scheduled on or about November quest non- attendance but filed a notice of court immediately QLI asked the QLI’s counsel R. 663. The in the trial. antic- interlocutory appeal, and participation an to allow QLI had decided court indicated that correctly that district notice ipating although R. counsel because request, trial deny participate would repre- from to the com- to withdraw defense sought leave had a meritorious also he be- its counsel QLI ground on the not believe senting QLI did plaint, represent competently could not addi- effectively QLI he without lieved defend could 1, a beginning on December QLI unwilling at a trial and its counsel time tional denied, R. that the court likewise request In a collo- defense. an ineffective present prior 658. secretary QLI’s corporate quy trial, Judge Keys Magistrate start of trial, the district in advance of week One not to QLI’s wish it was confirmed resolving certain opinion issued an at 158- R. 814-2 the trial. participate evidentiary in limine and other motions commenced, and The trial thereafter 164. prior without sponte Sua matters. and counsel QLI’s representative although already it had notice, noted that the court not partici- did its counsel present, vis-a- were summary judgment determined who commit to those material providing material Boim I: discussed in we act, an aider and activity type or to a but the assistance support to terrorist §§ 2339A and assis- organization, provide not limited to might see U.S.C. abettor 1012-16, 2339B, aiding F.Supp.2d at qualifies material tance that terrorism, abetting an act of international or 2339B. See 2339A or purposes of sections Certainly, one & id. at 1016-1021 2339A(b)(l) support”). (defining "material § by providing act abet a terrorist aid and could selection, jury give did not pate policy, economy or of the United States.” 1701(a). statement, § opening did not cross-examine Once the President declares present or such an emergency, may “investigate, witnesses witnesses he block QLI, during pendency not make of an closing argu- investiga- and did tion, regulate, jury compel, nullify, The case was submitted to the direct and ment. void, jury prevent prohibit, any acquisition, and the on December returned its *13 use, holding, transfer, following day. withholding, with- verdict drawal, transportation, importation or ex- jury The found favor of the Boims of, in, portation dealing or exercising or against QLI liability. on It awarded any right, power, privilege or with respect damages against million all four $52 to, or involving, any property transactions HLF, IAP/AMS, (QLI, defendants and Sa- any foreign country which or a national lah). damages subsequently Those any by any person, thereof has interest or 2333(a). provided trebled as in section with respect any property, subject jurisdiction of the United States.” II. statutory provision This “is designed to Holy Land Foundation give the President means to control assets by enemy could be used aliens.” A. Estoppel Collateral Based on Liti- DC O’Neill, Global Found. v. Relief gation Designation Over IEEPA (7th Cir.2002). litigation In challenging govern- 23, 1995, January On President Clinton ment’s 2001 decision to HLF spe- name issued Executive declaring Order 12947 cially designated organization, emergency, such an finding “grave District of Columbia Circuit found that acts of violence foreign committed ter- HLF had funded the terrorist activities of that disrupt rorists the Middle peace East noted, Hamas. As we have the district process” amounted to an “unusual and ex- court in gave finding this case collat- traordinary threat to the security, national eral estoppel effect and relied on that find- foreign policy, economy of the United ing to hold HLF liable to the on Boims 1702(a)(1)(B). § This order StatesM” summary judgment. HLF contends that froze all assets of those terrorist organiza- inappropriate for the court to grant persons, tions and regulato- referred to in finding D.C. Circuit’s estop- collateral ry parlance “Specially Designated Ter- pel litigation. effect the instant For the (SDTs), rorists” identified in the order. follow, agree. reasons that we Hamas, commonly known as the Islamic Movement, among Resistance those des- Proceedings the District of Co- ignated organizations. The order also au- lumbia Circuit Secretary thorized the Treasury of the a. Summary designation IEEPA designate additional SDTs found to be “owned or by, controlled or to act for or on Emergency International Economic any entity behalf of’ Hamas or other des- Act, § Powers seq. 50 U.S.C. 1701 et ignated in the order. (“IEEPA”), empowers the President of the United 23, 2001, States to declare a national September emer- On following the gency “to deal with unusual and September ex- by al-Qae- terrorist attacks traordinary threat, da, which has its source President Bush issued Executive Order whole or part substantial outside the Unit- declaring emergency national aris- States, ed security, the national foreign ing “grave from acts of terrorism ... and Treasury 4, 2001, Secretary of of ber threat and immediate continuing HLF for or on finding that “acts nationals issued a States attacks United further blocked find- That order to that States.” of’ Hamas. Pursuant the United behalf or HLF, held property HLF or interests notice to property prior all and without ing, organizations who designated terrorist an under Executive designated SDT designated “specially to as are referred under Execu- 12947 and SDGT Order (SDGTs). subse- terrorists” global in turn OFAC issued tive Order 13224. one designated as quently was freezing all of HLF’s “Blocking Notice” order that order. The subject to SDGTs accounts, funds, and real property addi- designation of further authorizes notice, all to that Pursuant United States. subject to are whose assets tional SDGTs in which involving property transactions con- they are “owned blocking because with- prohibited interest are HLF holds an *14 of’ or on behalf by” or “act for trolled from the OFAC. specific out authorization in, provide sponsor, or “assist SDGTs or 8, 2002, HLF filed suit the March On for,” associ- or are “otherwise ... Dis- District Court the United States them. ated” with designa- its challenging trict of Columbia Watson, L. Dale November On and the block- an and SDGT tion as SDT the Coun- Director of FBI’s the Assistant month, following the its assets. The ing of Division, “action an issued terterrorism notified HLF and Treasury Department (hereinafter, the ‘Watson memorandum” reopening that it the district Memorandum”) to the director underlying the des- record administrative recom- Department’s OFAC Treasury to re- considering whether ignation and designated an SDT HLF be mending that ad- as an SDGT based on designate HLF activities behalf ties to and on based on its linking HLF to Hamas. ditional of Hamas. thirty-one days respond given HLF was activities of HAMAS investigations FBI respond HLF did and to this notice. revealed that States have in the United response submitted evidence support of its entity fundraising primary is the [HLF] that it was not the contention por- significant that a and for HAMAS Hamas. involved with by are [HLF] funds raised tion of the or- by the clearly being used HAMAS 31, 2002, redesignat- HLF was May On provided information ganization. on both SDT and SDGT based ed as an confirms [HLF] this document first evidentiary underlying the record HAMAS. behalf of acting for or on plus addi- in December 2001 designation Further, sup- of [HLF] senior members unclassified informa- and tional classified ideology and activities. HAMAS port evidentiary memoran- a second tion and activities interfere These HAMAS FBI to the OFAC. from the dum pose process and peace East the Middle foreign security, to the national threat blocking challenging lawsuit b. HLF’s economy of the United States. policy, or order such, be considered should [HLF] As a HA- designation as for SDT OFAC in the District Court for HLF’s suit subject prohibitions to the entity, MAS contended that District Columbia statute. IEEPA con- blocking order was and designation 12 at 49. R. 265-1 Ex. Act Procedure trary the Administrative (“APA”), Takings Due Process and accepted of the OFAC The Director Amendment, Fifth recommendation, and on Decem- Clauses Watson’s (a Amendment, “martyrs” HLF’s First Amend term the court construed as Fourth speech and asso to freedom rights referring persons carry- ment who were killed Resto ciation, Religious Freedom and ing out or bombings suicide other terrorist Ultimately, the district court Act. ration Hamas) prisoners, acts on behalf of and in favor of the summary judgment granted and, indeed, needy among eligible families APA claim and dis government support, particularly sought for its HLF remaining claims all but one of missed out applications from the families of “mar- complaint pursuant in HLF’s set forth tyrs” may have favored them with 12(b)(6). Procedure Rule of Civil Federal (e) higher payments; HLF’s Jerusalem of- & Dev. v. Holy Land Found. for Relief fice had acted on behalf of Hamas and was (D.D.C.2002). F.Supp.2d Ashcroft, government shut the Israeli down to the Upon review confined administra- 1995 after the Israelis-concluded that HLF record, court held that the tive the district channeling funds to the families of HLF designating action in OFAC’s activists; following his arrest blocking HLF’s as- SDT SDGT the former head of that office arbitrary capricious sets was not although provided revealed that HLF aid APA. was therefore consistent with the needy, it also channeled some mon- 706(2)(A). § The court ob- See U.S.C. (f) Hamas; ey to eight unidentified *15 pro- that record served the administrative FBI reported informants had instances in for the vided substantial OFAC’s HLF which leaders stated that HLF funds that HLF acts for or on determination supports F.Supp.2d Hamas. 219 Specifically, behalf of the record Hamas. 69-73. The district court concluded that (a) revealed that: HLF had financial con- gave this evidence a the OFAC rational dating nections to Hamas back to 1988 concluding basis for that HLF acts for or raising providing for and (including funds on behalf of Hamas. Id. at 74. The court Hamas, financing financial observed that its role was not to second- leaders); by fundraising trips U.S. guess credibility the OFAC on its determi- (b) actively HLF in- leaders had been implicating foreign nations or on issues in meetings volved various with Hamas policy expertise Branch; of the Executive (including three-day meeting leaders in the court’s sole task was determine Philadelphia, 1993 monitored and re- FBI, by agency corded which five senior Ha- whether the had a reasonable basis officials and three HLF mas senior leaders for its action. Id. at 75. attended, Oxford, meeting and a 1994 exception With one immaterial (relating Mississippi HLF between co-founder of aspect to one of HLF’s Fourth Amend- and a senior concerning Hamas leader claim), ment the court concluded that (c)
fundraising dispute);
HLF had funded
complaint
HLF’s
otherwise failed to state
organizations
charitable
controlled
Ha-
a claim
granted.
on which relief could be
1999,
(specifically,
mas
between 1992 and
Among the claims dismissed
awas
First
approximately
HLF had contributed
$1.4
challenge
alleged
Amendment
which
eight
charity
million to
Hamas-controlled
government, by
blocking HLF’s assets
committees,
or “zakat”
and between 1992
preventing
making
it from
humanitari-
2001,
HLF
given approximately
contributions,
violating
was
HLF’s
million to seven other Hamas-controlled
$5
rights
speech
of free
and free association.
organizations, including hospi-
charitable
(d)
Gaza);
It is
tal in
HLF had
finan-
the resolution of this First Amend-
provided
cial support
family
challenge
members of Hamas ment
that underlies the collater-
compelling inter-
government’s
fied
by the dis-
made
determination
estoppel
al
The court noted
battling
terrorism.
est
case.
in the instant
trict court
have both
humanitarian contributions
concluded
The D.C. district
elements;
non-speech
speech and
unduly inter-
did not
blocking order
reason,
subject
blocking
order
of association.
freedom
with HLF’s
fere
n. 37.
scrutiny.
intermediate
Id.
81-82
neither
noted that
court first
The
four-part
test set forth
Applying the
order,
Orders
Executive
blocking
the two
O’Brien,
391 U.S.
States v.
United
desig-
HLF had been
to which
pursuant
1678-79,
376-77,
20 L.Ed.2d
88 S.Ct.
HLF
precluded
nated,
IEEPA
nor the
(1968),
concluded that
the court
in Hamas or
membership
holding
from
regulating
interest
governmental
views,
rights
HLF’s
so
endorsing its
aspect of contributions
non-speech
implicated.
association
justify the inci-
sufficiently important
for-
that HLF was
at 81. All
F.Supp.2d
HLF’s First Amend-
dental limitations on
money to
giving
doing was
bidden from
court noted
Presi-
rights.
ment
constitutional
there is no
‘“and
power
had the
and Bush
dents Clinton
”
(quoting
Id.
terrorism.’
right to facilitate
IEEPA
issue the Executive
under the
Reno,
Project v.
Law
Humanitarian
emergencies,
declaring national
Orders
Cir.2000)).
(9th
The court
F.3d
Execu-
IEEPA and the two
and both the
First
rejected HLF’s contention
designation and
authorized the
tive Orders
HLF spe-
required proof
Amendment
HLF. The Execu-
blocking
against
order
Hamas’s ille-
intended to further
cifically
fur-
blocking order
tive
and the
Orders
could be
its assets
gal activities before
gov-
and substantial
important
thered the
forth in
requirement,
set
frozen. That
combating terrorism
ernmental interest
Co., su-
Hardware
NAACP v. Claiborne
financial base. More-
by undermining its
*16
102 S.Ct.
458 U.S. at
pra,
over,
in com-
interest
governmental
had not
government
as the
inapposite,
sup-
was unrelated to
bating terrorism
wrongdoing based
guilty
HLF
of
deemed
the
Although blocking
speech.
pressing
with Hamas.
simply on its association
organization result-
designated
assets of
that, in
held
at 81. The court
F.Supp.2d
on the or-
restriction
ed in an incidental
case,
unworkable to en-
any
it would be
that re-
speech,
of
freedom
ganization’s
the
requirement on
such an intent
graft
necessary
than
greater
striction was no
and
ability
designate
government’s
“Mon-
interest.
government’s
further the
organi-
the assets of individuals
block
observed, and the
court
ey fungible,”
known terror-
that act on behalf of
zations
means of
no more narrow
government has
like
organization
as an
organizations,
ist
made to a ter-
ensuring that contributions
intent,
HLF,
cannot con-
of its
regardless
humani-
legitimate
organization for
rorist
aid will
recipient
of its
trol whether
for those
are in fact used
purposes
tarian
terror-
in furtherance of
use that
n.
82;
id. at 71
see also
purposes.
Id.
Humanitarian
(citing
Id.
ist activities.
component”
the “charitable
(noting
1133).
F.3d at
Project,
Law
way for Hamas
“is an effective
of Hamas
blocking
public,
held that the
influence with
The court further
to maintain its
recruit suicide
HLF’s freedom of
children and
did not violate
indoctrinate
order
cannot
consequently, one
blocking order
the extent the
bombers”
speech. To
legiti-
Hamas’s
rights
clear line between
speech
HLF’s free
draw a
interfered with
activities).
For
illegitimate
humanitari- mate and
making
it from
by preventing
reasons,
held
the court
contributions,
justi-
these
the intrusion
an
summary
impermissibly
judgment
looking
order did not
re-
to matters
blocking
rights.
Amendment
complaint
First
outside of the
and without
strict HLF’s
HLF an
granting
opportunity
present
of
the District
Columbia Cir
appeal,
On
pertinent
summary
additional material
to a
entry
summary judg
cuit affirmed
judgment
contemplated by
motion
Rule
APA claim.
HLF on the
against
ment
12(b).
In
respect,
the court had
court held that the actions of
appellate
The
abused its discretion.
knew what that evidence view, er, secrecy however, equitable court’s the an doctrine. Evans v. in the district (7th Cir.2006); Katalinic, 953, that evidence not vitiate shrouding “d[id] 445 F.3d 956 potential Alton, Ill., 878, the conclusive effect of the D.C. City Jones v. 757 F.2d judgment.” (7th Cir.1985). Id. There was noth- Therefore, Circuit’s even if the 885 trial or ing suggest that either the satisfied, it within the criteria are remains prior litigation in the appellate courts offensive use court’s discretion not to allow stamp rejecting acted as a rubber of the doctrine when the court is convinced challenge designation HLF’s to the preclude party that it would be unfair to blocking order. Id. at 905-06. Parklane re-litigating from an issue. See Shore, 322, 331, Hosiery Co. v. 439 U.S. 99 for Non-mutual Offensive
2. Criteria
(1979)
645, 651-52,
S.Ct.
727 651), 331, appellate courts confined themselves to de- 99 S.Ct. at at 439 U.S. termining Treasury Depart- whether the presented the issues of whether question arbitrary capri- was ment’s decision a legal identical is in the two suits are designation cious and whether novo, is de as to which our review question blocking order was inconsistent with (7th Sherman, 890, 893 v. 230 F.3d Adair statutory rights. or constitutional HLF’s Cir.2000). question conclude that the We It was for that reason that the bulk of the litigation in presented the Ashcroft discovery was resolved without litigation Circuit was not the District of Columbia . factfinding the usual kinds of and without in posed the Boims’ question same as the normally are in procedures that followed Consequently, HLF. against case litigation involving facts. In disputed civil non-mutu- criterion for offensive threshold respect, the of the setting this fundamental satisfied, estoppel cannot be al collateral litigation was differ- District Columbia necessarily abused and the district from the instant case. The former ent HLF collaterally estopping in its discretion of an adminis- entailed deferential review contesting proposition from determination, trative whereas the Boim’s intentionally provided ma- knowingly and straight-on in this case calls for complaint by funding its terial to Hamas of whether HLF funded or determination terrorist activities. Hamas’s ac- supported otherwise terrorist that the issue resolved requirement The and, so, if there tivities whether as the prior action must be the same between that relationship causal proceeding is presented one in the instant murder. and David Boim’s Similarity does not exacting criterion. Against backdrop, poten- the sole suffice; must the issue in the current case overlap tial for substantive between the identical issue that was precise be the in- litigation and the District of Columbia Am. Nat’l prior decided in the action. case lies the First Amendment stant Chicago Regional Trust v. Bank & Co. of HLF challenges that raised the former (7th Auth., 420, 125 F.3d 430 Cir. Transp. parties and the district litigation, as 1997) law); Illinois see also (applying Only as to those recognized. court have at 326, Co., 99 Hosiery Parklane 439 U.S. judicial claims was there a de novo assess- SEC, 649; 356, 129 Smith v. F.3d S.Ct. terrorism, and of HLF’s links to ment Cir.1997) (en (6th banc);. Prymer v. place appel- at the that assessment took (7th 1208, Cir.1994); Ogden, 29 F.3d Recall that the district court late level. (7th Byrne, v. 957 F.2d Cir. Crot these claims on had dismissed Ashcroft Brennan, 1992); Levesque v. no pleadings, reasoning that there is (7th Cir.1988). to a right provide funding constitutional context, point we out purposes For thereby facili- organization principal issue in the the first and F.Supp.2d tate terrorism. pro- litigation District of Columbia Although agreed Circuit with this the D.C. Treasury Department’s deci- priety dispose that in order to principle, it held HLF an SDT and SDGT designate challenge sion to First Amendment of HLF’s typical basis, necessary As is for the court and to block its assets. it was Ha- involving actually administrative decision- HLF does fund cases to find that ' designa- appellate making, challenge to the terrorist activities. HLF’s mas’s make that find- proceeded de novo examination court then trigger tion did not evidence, and Treasury ing. Looking to the record De- of the evidence before evidence, un- Rather, the classified particular the district and partment. both *20 728 orders. designation blocking des- Treasury Department’s
derlying the
decision,
found it
The lower court rea-
F.Supp.2d
the D.C. Circuit
at 80-81.
ignation
HLF funded ter-
im-
blocking
that the
order did not
“incontrovertible”
soned
at
Hamas. 333 F.3d
by funding
way
pose “guilt
rorism
association”
at
judgment against
the tort
the NAACP
had; the
in Claiborne Hardware
or-
issue
finding that HLF
The D.C. Circuit’s
HLF from
simply
prevent
der
acted to
terrorist
activities
funded Hamas’s
funding
further
to a terrorist
providing
however,
engaged
that HLF
not,
finding
a
organization, which it had no constitutional
terrorism within
in an act of international
in
event. Id. “Because the
right to do
it
2333 or
meaning of section
imposed
in this case has not
Government
particu-
an act.
In
such
aided and abetted
association,
Hard-
guilt by
the Claiborne
mention,
lar,
let
did
the D.C. Circuit
ap-
is not
specific
requirement
ware
intent
embrace,
in
I that
holding
our
Boim
alone
noted,
at
have
plicable.” Id.
81. As we
organization
an
funding simpliciter of
might
the district court added that
it
inadequate
in
would be
engages
terrorism
the issu-
counterproductive
condition
liability but rath-
to establish section 2333
proof
a
order on
that the
blocking
ance of
support
given
that the financial
must be
er
contribu-
donor knows and intends that its
further ter-
knowledge
and intent to
1011-12,
tions be used
furtherance of terrorism:
at
1021-24.
rorism.
from
point
We took our cue on that
[Ijmposing
“specific
require-
intent”
Supreme Court’s decision
Claiborne
authority to
ment on the Government’s
Hardware,
liabil-
which conditions
civil
blocking
issue
orders would substantial-
ity
organization
of an
for the violent acts of
ly
purpose
undermine the
of the eco-
proof that the or-
one of its members on
programs. Regardless
nomic sanctions
fur-
ganization
specific
had the
intent
intent,
effectively
it can not
HLF’s
wrongdoer.
ther the aims of
See
support given
control whether
to Hamas
919-20,
Im-
at
at 3428-29.
U.S.
S.Ct.
promote
organization’s
is used to
posing liability solely on the basis of an
unlawful activities. Humanitarian Law
organization’s
wrong-
association with a
(First
Project,
729
Project
(citing
Law
v. Mu
F.3d at 1027
Humanitarian Law
ization. See Humanitarian
Pro
Reno,
1122,
(9th Cir.2007);
1130,
(9th
ject
kasey,
1125
v.
205 F.3d
509 F.3d
1135
Cir.
Hammoud,
2000)).
interest,
328
States v.
381 F.3d
Consistent with that vital
United
the
(4th Cir.2004) (en banc),
government
vacated on other
permissibly try
could
to cut off
grounds,
U.S.
S.Ct.
160
provision money
support
543
125
the
of
and other
to
(2005),
part
997
reinstated in relevant
organizations by making
L.Ed.2d
terrorist
such dona
remand,
(4th Cir.2005) (en
on
Therefore, although
undoubtedly
there
topped
litigating
from
here
it
whether
overlap
is some factual
between the Ash-
(or other)
knowingly provided financial
case,
litigation
questions
and this
croft
support to Hamas with the intent to fur-
posed by the two suits are distinct.
In
ther Hamas’s terrorist activities. We need
Ashcroft,
posed by
the issue
HLF’s First
not consider
of the
whether
other
challenge
blocking
Amendment
or-
prerequisites to offensive nonmutual collat-
(directly
it
der was whether
funded
or
satisfied,
estoppel
eral
are
as all of them
indirectly) Hamas’s terrorist
activities.
must be met in order for the doctrine to
Here,
question
is whether HLF funded
Nonetheless,
apply.
we conclude our anal-
knowingly
Hamas’s terrorism
exam-
—for
ysis with a few observations about
ple, realizing
giving money
that it was
Hamas,
opportunity
charities controlled
and that
fullness
fairness
given
litiga-
to such
either
that HLF
donations
charities
would be
Ashcroft
up
challenge
proposition
diverted
terrorist ends or would free
tion to
injured.
ter-
them liable to those so
financing to Hamas and its
render
provided
But,
Ashcroft,
this case does
contrast
activities.
rorist
security
foreign
implicate
national
First,
only
opportu-
a limited
HLF had
degree
to a
that would
policy concerns
contest its
litigation to
nity in the Ashcroft
justify the circumvention of normal discov
As the
involvement with Hamas.
Ashcroft
ery
factfinding procedures.
Park
See
clear,
itself makes
the D.C. Cir-
opinion
n.
Hosiery,
lane
Fourth,
martyrs.
to the families of
Jaber admitted
when individuals with ties
charged
Hamas were arrested
with that each of these
speakers
identified
had
and/or
terrorism,
supporting
IAP and AMS
spoken,
in fact
but said he could not re-
rally
support for
sought
public
them.
member whether
made the state-
Israel,
Following Salah’s arrest
for ex- ments Emerson attributed to them.12
ample, IAP National and AMS held a num-
The district court believed that this was
public
for
garner
ber of events to
sufficient to show that IAP and
AMS
Marzook,
his release.
Abu
whom
When
the intent to aid Hamas’s terrorist activi
Rafeeq
official
Jaber knew to be
AMS/IAP
engaged
ties and in fact
in some acts of
bureau,
political
the head of Hamas’s
F.Supp.2d
assistance. 340
at 912-13. The
York,
IAP National pub-
arrested
New
record convinced the court that “if IAP
garner support
lished documents to
outrightly
never
cheered on Hamas’s ter
IAP
Similarly,
him.
National and AMS
activities,
rorist
quite
has
come
generated and distributed documents soli-
close[;][c]ertainly IAP has never con
citing support for HLF after its assets
Al
demned Hamas’ tactics.” Id.
were
The district
seized
OFAC.
IAP
though Jaber averred that
took no
recognized that these
were
activities
position
bombings,
on whether suicide
law,
against
all of this
“[b]ut
does
example,
right
wrong,
the record
on
part
tend to evidence a desire
had,
fact,
help
praised
IAP to
succeed.”
340 revealed that
IAP
F.Supp.2d
supra.
activities,
911. See note
Hamas’s terrorist
albeit “some
admitted,
subtly.”
what
Jaber
for exam
Fifth,
conferences,
IAP had held annual
ple,
published
that IAP had
articles and
pro-Hamas speakers
participate
invited
characterizing
editorials
suicide bombers
gatherings,
paid
their travel
these
martyrs
fighters;
freedom
Jaber
expenses. An IAP conference in 1989 had
position
that IAP took no
simply said
a veiled Hamas
featured
terrorist as
characterizations.
Id. The court ac
those
A
IAP
guest speaker.
conference
*27
opposition
notion that
to Israel
cepted the
had featured the leader of Muslim Broth-
equate
support
with
for Hamas.
does not
Syria along
erhood of
with the wife of
expressing opposition
But
Id.
912-13.
Marzook,
by
who
that
time had been in
by way
bombings
of suicide
and other ter
custody
federal
in the United States for
shooting
rorist attacks like the
of David
year
excerpt
more than a
and a half. An
book,
to
appeared
“precise
from Steven Emerson’s
American Boim
to the court
mind,
may
hearsay prob
a
their
12. There
well have been
would be admissible for
state
relying
proof
speakers actually
lem with
on Emerson’s book as
but as
that the
made
statements,
book,
speakers
at the
which it-
of what these
said
IAP confer
these
Emerson’s
course,
statement,
See,
is,
e.g., Am. Nat’l Fire
v.
an out-of-court
ences.
Ins. Co.
self
Inc.,
Farms,
451,
(7th
hearsay.
v.
Acre
107 F.3d
456
would constitute
See Schindler
Rose
Seiler,
Cir.2007).
1008,
(7th
1997).
speakers
Cir.
What the
themselves said
474 F.3d
1011
that,
say
to
The Seventh Circuit did
about.”
Id. at 913.
Hamas is
ly what
I,
2333,
help
§
those who
liability
Boim
under
impose
Boims
Pursuant
indirectly, Hamas’s ter
fund,
or
directly
any of the
to link Mr. Salah or
to the same ex
activities are liable
rorist
specifically to the at
other defendants
the terrorist
those who commit
tent as
rather,
Boim;
tack that killed David
declaration, which assert
acts. Id. Jaber’s
that,
liability
impose
court held
supported
IAP nor
that neither
AMS
ed
is,
aiding
abetting
providing
—that
activities,
helping,
or
engaged
terrorist
to[14]
or
support
material
—a terrorist
money to
intentionally
knowingly gave
or
only
the Boims need
show
ganization,
acts,
the court as con-
such
struck
support
knew of Hamas’ ille
that the defendants
Moreover,
self-serving.
Id.13
clusory and
activities,
they
help
desired to
gal
nothing to refute
affidavit did
Jaber’s
succeed,
and that
those activities
provided
sup
IAP
material
evidence
Boim,
helping.
engaged
some act of
during years that he was
to Hamas
port
The evidence
Cause in fact also our language Boim I: of the statute. QLI HLF that tion of the assertion grants right anyone The statute to sue to incompatible it would be First the. injured “by reason of’ an act of interna- Amendment to hold them liable to the 2333(a). § tional terrorism. 18 U.S.C. money Boims on the basis of language That suggests itself there raised and donated to Hamas and its inter- must be some causal link between the purposes. mediaries for humanitarian We particular act of international terrorism emphasized that the defendants could be alleged defendant is to have com- if, example, they liable to the Boims for (or abetted) inju- mitted aided and and the mur- had aided and abetted David Boim’s Indeed, ry plaintiff. suffered we Ha- by taking step der some that aided specifically recognized in Boim I that this knowing mas’s terrorism while of its ter- language meant causation. 291 F.3d desiring help rorist activities and those at 1023. activities succeed.
Thus, that HLF and the Boims theorized repeatedly Congress Boim I noted QLI organizations were front raised when it enacted section 2333 intended to humanitar- money ostensibly legitimate principles, embrace traditional tort id. at money purposes ian but then funneled that 1010, 1015, 1020, and in fact is a cause Ha- knowing intending requirement for all The Restate- torts. arm train mas would use the funds to point unequivocally: ment makes the terrorists, including men who killed Tortious conduct must be a factual cause theory Boim. deemed this com- David We liability im- physical harm for to be patible with the First Amendment in that posed. a factual cause of Conduct is it did not seek to hold defendants liable for harm when the harm would not have giving mere association with Hamas or for occurred absent conduct....
money to aid its humanitarian efforts. Id. (“Factual § (ThiRd) Restatement at 1024-25. Cause”); § 9 com- (SecoNd) Restatement (“[i]n
Thus,
if
implicit
explicit throughout
particular
ment b
order that a
act or
analysis
may
legal
Boim 7’s
is the notion that there
omission
be the
cause of an
interest,
must
link
causal
between the defen-
invasion of another’s
the act or
injury.
dant’s actions and the
omission must
alia be a substantial
[inter
]
”);
bringing
This is evident in our observations that
factor in
about the harm ...
(in
gives anyone “injured by
§
section 2333
rea-
id.
431 comment
order
actor’s
sue,
activity
right
legal
of’ terrorist
son
conduct to be considered
cause of
harm,
along
necessary although
was meant to extend all
it is
another’s
causation,
Congress
the chain of
and that
not sufficient that “the harm would not
incorporate
prin-
neg-
traditional tort
had the actor not been
meant
have occurred
1010, 1011, 1015,
§
ciples.
ligent”);
(noting
See 291 F.3d at
see also
430 comment e
*31
foreseeably might have
injury that his acts
negligence ap
for
principles
that causation
well);
being proof that
Asso
without there also
torts as
caused
to intentional
ply
cf.
injury.
Inc. v.
Calif.,
cause that
his conduct did
Contractors
ciated Gen.
Carpenters, 459
Council
State
Calif.
aiding
abetting
Neither
897, 913,
547-48,
74
519,
103 S.Ct.
U.S.
in
liability,
theory of
which we endorsed
(1983) (Marshall, J., dissent
L.Ed.2d 723
I,
conspiracy,
nor civil
which
Boim
many legal battles have
(“Although
ing)
complaint
in their amended
pursued
Boims
liability
the extent of tort
over
fought
been
remand,
a show
obviates the need for
negligent con
consequences of
for remote
in
is an inde
fact. Neither
ing
cause
that the
duct,
always been assumed
it has
tort;
a vehicle for
simply
each is
pendent
tort can recover
an intentional
victim
liability for a tortious act com
spreading
proves
if he
that the
the tortfeasor
from
E.g.,
v.
by
mitted
another.
Hefferman
a cause-in-fact of his
conduct was
tortious
(7th Cir.2006);
Bass,
596,
F.3d
600-601
467
original).
This is
injuries.”) (emphasis
(Seoond) §
comment
876
see Restatement
to as but-for causation.
often referred
Re
936-38;
b;
§ 340 at
Dobbs
& Kee
Prosser
(ThiRd) §
One
26 comment b.
statement
although
§
at
322-24. So
46
ton
if
have occurred
would
must ask what
by showing that a
might prevail
Boims
engaged in the tortious con
actor had not
else
aided and abetted someone
defendant
duct. Id. comment e.
HLF)
support
(e.g.,
providing
material
component
proxi
foreseeability
The
for its terrorist
or resources to Hamas
(or
cause),
we dis
legal
mate cause
which
activities&emdash;for
example, by hosting a fund
I,
replacement
not a
for
in Boirn
cussed
HLF,
intending
knowing
for
raiser
fact,
to cause
but
alternative
that the
raised would be funneled
funds
an actor’s responsibility
rather confines
terrorism&emdash;there
still
Hamas to
factually
caused
injuries that were both
provision
must be
of materi
type
tortious conduct
his
way
al
or resources was
some
foreseeably
risked
his
injuries that he
cause of David Boim’s death.
It is not
29;
§
conduct.
(Third)
Restatement
enough
simply
show
that a
defendant
Dobbs,
way,
Put
§
at 443^45.
another
180
generally aided and abetted HLF or even
necessary
is a
but not
factual causation
must be
organizations;
there
liability.
for
basis
sufficient
Restatement
aided and abetted
proof that the defendant
a;
§
v.
431 comment
Carris
see
(Seoond)
in the commission of tortious acts
them
(7th
Inc.,
558,
Int’l,
466 F.3d
560
Marriott
some demonstrable link with
Cir.2006) (“
causation ...
is never
‘but for’
David
death. The same is true of
Boim’s
v. Trini
liability”);
for
Sementilli
enough
agreement
to en
conspiracy. The mere
(9th
1130,
Cir.
Corp.,
dad
1139
activity
enough
is not
gage
illegal
1998) (T.G. Nelson, J.,
concur
specially
liability
conspirator;
on the
impose civil
(court
foreseeability if
does not reach
ring)
rather,
conspired
must have
shown).
one
not been
cause
fact has
Beck
who committed a tort. See
someone
foreseeability requirement
thus serves
494, 501-04, 120
Prupis,
v.
529 U.S.
S.Ct.
than
of tortfea-
expand
limit rather
set
1614-15,
(2000);
1608,
see
defendant solely proof that follow within reason- defendant based acts Terrorist support and other David Boim was a foreseeable the donations death of able time conduct, perpetra- without by a defendant the defendant’s provided result of to have actually acts could be deemed of those conduct tors acts; the more by those death, caused give been would section 2338 cause of the by a de- support provided significant than traditional tort sweep a far broader fendant, readily might one infer the more The actual use to principles would allow. a cause of later the funds and other which acts. allegedly provided to Ha- the defendants put intermediaries was would mas and its need that a defendant’s conduct
addWe
This would transform the
be irrelevant.
responsible
circumstance
the sole
not be
*33
a
causation from
proximate
doctrine of
qualify
in order to
as a
terrorist act
for a
that limits tort
into one
principle
fact;
it
enough
it is
that
be a
cause
essentially render-
expands liability,
that
resulting harm.
act and the
cause of the
Ha-
c;
a
who intended to aid
ing
§ 26 comment
see
defendant
(Third)
Restatement
l;
strictly
for
(Seoond)
mas’s terrorist activities
liable
id. comment
also
Restatement
d,
that HLF was
injuries
e. Proof
all
even if that defen-
§ 430 comments
foreseeable
at the
terrorist activities
funding
actually
nothing
Hamas’s
did
to enable
dant’s aid
murder,
that
Boim’s
time of David
injuries
it inflicted.
the terrorism and
funneling
in turn
defendant was
another
Calif.,
Associated Gen. Contractors
Cf.
knowledge
HLF
donations
must
state, federal,
in-
foreign,
one
including
on what
depending
recognized
mean, it
causation to
the ultimate
law.
but-for
ternational
Whatever
understands
expansive
restrictive or
be,
carry
be a
may
can either
it will no doubt
source
2. The
liability. Id. at 1127‘n.
standard
it—as a matter of substantive
Libya
arguing
to be
court understood
of causation. Of
law—its own rules
understanding
highly
restrictive
favor of
these,
variety.
large
are a
See
there
causation,
court was
and the
but-for
266-68,
Any
273.
& Keeton at
Prosser
demanding
causation
concerned
too far
reaching
about
concerns
render
might
inappropriately
standard
with the attenuat-
charge foreign states
immune from
of terrorism
sponsors
state
activities are
of then' financial
impact
ed
In
the court believed
particular,
suit.
questions of sub-
better addressed as
provid-
foreign states were
multiple
where
stantive law....
organiza-
support to a terrorist
ing general
original).
(emphasis
F.3d at 1129
tion,
show that
difficult to
would be
Sudan, 461
Republic
also Rux v.
See
literally
qua
the sine
non
of them was
one
(4th Cir.2006),
de
472-73
cert.
F.3d
injuries
inflicted
or-
cause of the
-
nied,
-,
U.S.
127 S.Ct.
acts—with
result
ganization’s terrorist
(2007).
L.Ed.2d 78
might be
sponsoring
that all of the
states
immune from suit.
Id.
rendered
Moreover,
showing
requiring
Supreme
Court’s decision
Relying on
alone,
cause
Kilbum did
proximate
Grubart,
B.
Inc. v. Great Lakes
in Jerome
showing
plaintiff
relieve the
purport to
Co.,
536-38,
Dredge & Dock
513 U.S.
actually
conduct
the defendant’s
1043, 1049-51,
L.Ed.2d 1024
S.Ct.
contrary,
injury.
her
On the
caused his or
(1995),
language
which construed identical
court, quoting approvingly
the Kilbum
statute,
admiralty
the D.C.
in a federal
*35
treatise,
ac-
from the ProsseR
Keeton
&
foreign
a
showing
a
Circuit held
showing
proximate
a
of
knowledged that
caused the
proximately
state’s conduct
“ ‘some reason-
requires
cause
there to be
pur-
plaintiffs injuries was sufficient
the act of omis-
able connection between
jurisdiction
the FSIA. 376
poses of
under
damage
and the
sion of the defendant
F.3d at 1128.
”
F.3d
plaintiff
which the
has suffered.’ 376
However,
quick
Circuit was
the D.C.
& Keeton at 263.
quoting
Prosser
to what
clarify
holding
that its
was limited
Sudan, 412
Republic
also
v.
See
Owens
of
jurisdic-
in
necessary
order
assert
(con-
(D.D.C.2006)
99, 111-12
F.Supp.2d
and did not ad-
foreign
tion over a
state
require
showing
of
struing Kilbum
necessary
proof
dress what
would be
fact).
cause
liability on that state.
impose
order to
decision
Gru-
Supreme Court’s
only issue be
underline that the
[W]e
bart,
relied,
on which the Kilbum court
causation,
jurisdictional
fore us here is
cause
proximate
makes clear that
likewise
1605(a)(7)
jurisdic
solely
§
because
of an actual factual nexus
entails
Cicippio-Puleo
Is
provision.
[v.
tional
lamic
at 1032
Republic
[(D.C.Cir.2004)].
Iran
],
To
F.3d
succeed in
[1024]
between
plaintiffs
the defendant’s acts
injury. Grubart arose
and the
from a
Loop
commercial
Chicago’s
1992 flood
end,
go beyond
must
plaintiff
the
the
district,
city’s
briefly brought
the
which
jurisdiction
proof satisfying
provide
mil-
to a standstill and caused
downtown
of action.
Id. The
a substantive cause
in losses to area businesses.
of sources
lions of dollars
plaintiff
alleged
has
number
rule,
disregard
but in its
nonremoteness
dredging
com-
after
occurred
The flood
proximity
stringent
Riv-
but familiar
Chicago
of a
in the
less
pilings
replacing
pany
language
of the
of the
one or more
tied to the
accidentally drove
condition
er
phrase
riverbed
the
deep into the
The Act
too
statute.
uses
pilings
new
that ran
freight tunnel
an old
more than one Court
by,”
“caused
which
weakened
river;
collapsed
tunnel
when the
requiring
the
what
Appeals has read
below
later,
the en-
water flooded
river
traditionally
“proxi-
months
called
law has
tort
it,
and,
base-
along with
system
tire tunnel
tort no-
This classic
mate causation.”
the business district.
throughout
bizarre,
ments
the
normally
tion
eliminates
lawsuits,
dredg-
the
multiple
In
face
the
only the com-
obviate not
its use should
admiralty jurisdic-
invoking
company,
ing
for further
the need
plication but even
seeking tion,
in federal
filed suit
temporal
spatial
limitations....
tugboat
liability to
value
limit its
(citations
536,
jurisdiction turned framed it. As we tion as we have aby “caused injury had been relevant discussed, need a defendant’s conduct U.S.CApp. navigable water.” vessel cause of primary or even be the sole (since recodified supplied) (emphasis § 740 be considered injury in order to 30101). pilings Because the § at 46 U.S.C. at 741- Ante injury. a cause in fact of in the tun- resulted had installation whose if Rather, the defen- it is sufficient in the riv- placed been collapse had nel causes of is one dant’s conduct barge upon a perched a crane using erbed Kilbum, a link could injury. such In River, no the Court had Chicago alleged: facts from the readily inferred had barge difficulty concluding let it be known in Lebanon Libyan agents injuries. complained-of caused purchasing Libya was interested in Indeed, 534-35, at 1049. 115 S.Ct. U.S. a hos- hostage, and thereafter American before Court Grubart question from Hizbollah tage procured dredging company’s was not whether allegedly sup- group killed a terrorist flood, actually but caused barge *36 Libyan govern- by the and directed ported injuries resulting were whether rather Similarly at 1129-30. ment. navigable barge from the and too remote had aided Rux, alleged Sudan admiralty jurisdiction. support to waters al-Qaeda 2000 and the October abetted (who, not sur- in Grubart respondents The (which took the Cole attack on the U.S.S. contesting dredging prisingly, sailors) alia, by, inter of lives seventeen admiralty in an effort resort company’s diplomat- al-Qaeda to use Sudan’s allowing liability) contended dam- its to limit allowing al- explosives, ship ic pouch and closely space in both occur ages must train and to enter Sudan Qaeda operatives activity order tortious time to a vessel’s there, allowing shipment and terrorists to invoke admi- a vessel permit owner Yemen, where from Sudan to explosives that cause fact of jurisdiction and ralty F.3d at 473- 461 argument bombing place. took It was this enough. not rec- Circuit rejected: Although, as Fourth Supreme Court make clear not allegations did ognized, the argument of lie demerits alleged acts closely in time Sudan’s its how in want of only its textual 746 bombing quirement
occurred in relation to the and that an act have some factual “chart a did not otherwise direct and un- plaintiffs nexus with the injury before it line between broken factual Sudan’s ac- may be deemed a for liability. basis 474, bombing,” id. at tions and noted, As court, we have the district reasonably supported an nonetheless infer- granting summary judgment in favor of support helped bring ence Sudan’s plaintiffs against and on the AMS/IAP Owens, bombings. about the See also 412 question liability, of finding made no 102-03, (finding juris- 113-14 F.Supp.2d Instead, cause in fact. citing criteria we exception diction under FSIA’s for state- aiding set out for abetting, the court terrorism) (Sudan sponsored allegedly sup- assumed that only the Boims need show shelter, plied security, support, financial knew of illegal Hamas’s AMP/IAP opportunities al-Qae- business both activities, help desired to those activities da during planning and Hizbollah of Au- succeed, engaged in some act of assist- gust bombings 1998 of U.S. embassies in ing F.Supp.2d 916; Hamas. 340 Salaam); Dar Nairobi and es Weinstein v. plaintiffs see also id. at 923. The Iran, Republic F.Supp.2d Islamic proof causation, identified no contending (D.D.C.2002) 13, 19-22 (concluding on en that aiding abetting conspiracy try judgment of default under FSIA that liability theories of require do not such Iran was a but-for cause of suicide bomb notion, proof. That as we have set forth ing Hamas, where, perpetrated by inter above, is mistaken. type Some of causal alia, Iran provided substantial funding link between the defendants’ conduct and military Hamas and Iranian instructors shown, death of David Boim must be had trained Hamas terrorists in use of regardless of theory what explosives); Mousa v. Republic Islamic Iran, (D.D.C.2001) rely upon. F.Supp.2d (finding that provision Iran’s of “massive The district court therefore erred in re- material support” and technical solving liability in favor of the Boims and including financial aid and use of Iranian against summary judgment. AM/IAP military to train instructors Hamas terror Absent a record that dispute revealed no firearms, explosives, ists use of of material fact as to whether AMS/IAP’s grenades, supported entry of default judg actions in support of way some against ment Iran under FSIA suicide death, caused David Boim’s the Boims bombing Hamas); perpetrated by Eisen were not summary entitled to judgment on Iran, Republic v. Islamic feld liability. (D.D.C.2000) (same). F.Supp.2d appropriate The most sum, step junc- at this
In Kilbum does not ture is to remand this case to proposition that a the district defendant can be held court for reconsideration. liable under We are section 2333 absent aware *37 its conduct filed a was a cause in fact cross-motion for of the AMS/IAP plaintiffs most, summary judgment injury. At based in part Kilbum coun- on the against proof sels a lack of rigid unduly alleged its narrow conduct was a view of factual cause in fact of causation. Our own David Boim’s death. under- How- standing causation, believe, ever, of we is not so because the district court shared the narrow and unyielding. sufficiently plaintiffs’ misapprehension It is as to the neces- flexible to account reality sity for the of proof, a such we believe the district may terrorist act many have causes court with- should revisit question on re- out abandoning the longstanding tort re- mand. Our remand order prej- is without F.Supp.2d at matter, helping. of (or in some act for that udice AMS/IAP any proof not insist on Salah) The did motion for 923. court renewing its HLF or finding that any fact or make element of cause in on this of summary judgment in are unable actions If the Boims case. Salah’s plaintiffs’ rea- undefined permit participation his identify evidence sufficient and/or Hamas,” conduct at that was id. “conspiracy inference that sonable AMS/IAP’s mur- Boim’s Boim’s of David nexus with David any cause fact was a causal be entitled der, will then id. at 923. murder. See AMS/IAP con- If the court in its judgment favor. I that Boim did statement The court’s dispute of material there is a cludes that Boim’s death a link to David require not link between to the causal fact as AMS/ id., as a was correct insofar particular, of David the murder conduct and IAP’s link between Salah’s actions direct ato Boim, will be entitled then AMS/IAP not be shown. Boim need killing of David jury question. trial on that ways in which above have mentioned We any nor note that neither We AMS/IAP But might be proven. causation indirect challenged the has appellants other plain- certainly I did relieve Boim jury awarded damages amount of causal establishing some form tiffs of Therefore, if the district Boims. to the actions and a defendant’s link between that the undis- concludes on remand murder. David Boim’s link a causal between facts establish puted at custody in 1996 in Israeli Salah was Boim’s and David conduct a defendant’s Boim’s murder and time David judg- murder, may reinstate the the court no have identified If the court as to that defendant. ment meaningful support to any gave he sort trial necessitates a that the evidence finds (when he was January 1993 Hamas after defendant, as to to cause fact as arrested), forty prior months some may be reinstated judgment then court relied on con- district murder. The conduct any defendant whose against could say that Salah principles spiracy a cause fact to be jury determines active his post-dating acts liable for David’s death. so conspiracy involvement IV. Hamas and not renounce long as did he conspiracy prior from the withdraw Salah Mohammad at killing. Id. 923-24. David’s judgment entered summary partial problems least two There are rea- is flawed for same against Salah First, discussed as we have this rationale. as to we discussed sons that AMS/ above, conspired with oth that Salah set separate Although IAP. there aims Hamas’s ers links to Hamas regarding Salah’s of facts per se not render Salah does (which and activities purposes does not contest Salah by Hamas ter injured those on liable all court relied district appeal), of this Brakegate, supra, v. Adcock what rorists. recitation of incomplete the same Second, 645 N.E.2d Ill.Dec. necessary to establish defen- would be theory Salah plaintiffs’ and abettor. an aider dant’s conspiracy is a Hamas-related member of would be liable Salah The court stated that Boims did supported. The adequately knew not long as he so for David Boim’s death *38 basis for theory possible as a cite activities, not desired of Hamas’s terrorist until against Salah summary judgment succeed, and engaged help those activities QLI filed their consolidated memorandum contends the district to Salah’s motion for abused its discretion in opposition refusing sum- date, reject extend the trial but mary reply and in we judgment support of notion that the trial court obligated summary judgment. their motion for own QLI give more time following the sum juncture, R. 352 at 12-14. Even at that mary judgment ruling. The trial court’s beyond briefly the Boims did little men- ruling request on a continuance is one that tioning conspiracy principles; they civil did we review for abuse of discretion. Re nothing conspiracy to flesh out what the Publicite, Sys. Corp. search v. IPSOS was, it, joined when Salah who it was he (7th Cir.2002). F.3d We will re with, See id. conspired and so forth. For verse the denial of such a request only part, its the district court simply pro- when we are convinced the court below nounced Hamas a conspiracy any without Id. (citing N. Ind. unreasonably. acted discussion of the evidence that sup- would Co., Pub. County Serv. Co. v. Carbon Coal port pronouncement. F.Supp.2d (7th Cir.1986)). 799 F.2d As we Merely at 924. mouthing the word “con- Assocs., Hartwig noted Daniel J. Inc. v. spiracy” enough is not to render a defen- Kanner, (7th 1222-23 Cir. party, dant liable for the acts of a third 1990), the rare instances in which we have certainly summary judgment. not on found the refusal of a continuance to con partial summary So the judgment stitute an typically abuse of discretion against Salah on must also be have unexpected involved an development evidentiary reversed. The record before to which expected counsel could not be the district court must be re-examined on adjust without additional time. This was remand. Unless the identify can not such a situation. Although the district permit would a reasonable court did not summary resolve the judg factfinder to find Salah’s actions on ment motions until three weeks before the behalf of way some caused or commence, trial was to the court had set death, contributed to David Boim’s Salah the trial date some five months earlier. summary will be entitled to judgment. Consequently, all parties, including of the
QLI, ample trial, prepare time to and each obliged of them was to do so on V. assumption that summary judgment would be QLI denied. It is true that Quranic Literacy Institute suddenly found itself alone at the defense As we mentioned in summary our table, but this scenario was neither unfore I, on remand from Boim proceedings seeable nor even pretrial rulings, unusual: QLI’s Boims did not seek to resolve liabili- settlements, guilty pleas frequently ty summary judgment. Consequently, cause drop co-defendants to out of a case once the district court had partial entered at the last minute. Counsel for defen summary HLF, judgment against case, AMS/ dant in a multi-defendant criminal or IAP, Salah, QLI was the sole defen- civil, anticipate must possibility facing dant trial on liability. QLI’s After his may only client be the defendant left requests postpone denied, the trial were when the trial plan date arrives and ac QLI elected to attend but participate cordingly. Moreover, if an unexpected trial, doing nothing to challenge the turn of events has deprived counsel of a plaintiffs’ evidence or to present any evi- opportunity trial, reasonable to prepare for dence of its own. he must an appropriate make record of *39 of Hamas’s question on the mary judgment has con time of additional the lack how murder, Boim’s See, for David e.g., responsibility Unit his client. cretely harmed Rinaldi, opportunity 922, QLI given is the 928-29 that provided 461 F.3d v. ed States Cir.2006) (defendant deprived the it was challenging respond of which (7th to for If the do move must demonstrate Boims first instance. of continuance denial — U.S. -, denied, this issue and the summary judgment on cert. prejudice), (2007). court, of the evi- 708, Gener on consideration 169 L.Ed.2d district S.Ct. unfairness surprise parties, the concludes complaints ic dence marshaled fact as regard. dispute in this material not suffice there is no will that for David Boim’s culpability Hamas’s of discretion find no abuse Although we murder, may enter properly the court then proceed decision in the district court’s the Boims in favor of summary judgment scheduled, conclude we trial as the that has other- QLI that issue. Given on respect in another court did err the that in the trial or no other defect wise shown judgment the to vacate requires us damages award verdict and resulting further QLI and to remand against it, point at that the district court against above, in have noted As we proceedings. in favor of judgment the should reinstate any prior and without the trial advance of If, the against QLI. on the Boims QLI QLI, court deemed the warning hand, there to be the court finds other summary finding on court’s by the bound fact to Hamas’s dispute of material against the other defendants judgment murder, QLI then for the responsibility responsible for David was Hamas limited to that to a trial be entitled will Op. at R. Mem. murder. See Boim’s jury finding that A issue alone. determination, with that 8. Consistent Boim’s death for David responsible in- was opening jury in its advised would, call for reinstatement again, Ha- group “[t]he structions finding to QLI. juryA murder,” judgment against R. for the responsible mas course, would, compel the contrary Boims’ counsel relied and the 814-1 QLI. in favor closing entry judgment finding opening in his 126; statements, R. 814-4 at id. at VI. pre court is not
Although a district summary sponte granting from sua cluded of a the matter briefly address We must re against party, we have judgment the defendants against fees order entered do may the court not warned that peatedly the Boims lawyers. When their and/or giving party notice first so without only lawsuit, not the defendants filed See respond. opportunity but complaint, to dismiss moved Inc., J, Flying v. Pourghoraishi Federal pursuant to sought also sanctions cases). Cir.2006) (coll. (7th QLI 751, 765 single In a Procedure 11. Rule of Civil opportunity. deprived of that opinion of its the conclusion sentence motions to dismiss denying the reason, judgment vacate the For that we sanctions, awarded judge the district proceedings further QLI pending against in they had and costs the fees possible It court. in the district defendants’ responding to have curred in may prove QLI as to error court’s Quranic Litera Boim v. Rule 11 to be motions. harmless, is a matter but that been Inst., F.Supp.2d cy remand. Our decision out on sorted (N.D.Ill.2001). explain However, court did QLI is with- against judgment vacate did nor for the fee award the basis seeking sum- Boims prejudice out *40 who, as between the specify defendants dants and their counsel were jointly to be lawyers, severally was to pay and their the Boims liable for the award. To the extent magistrate their fees and costs. When the this was meant to be a fee-shifting ascertained, award to prevailing parties, the judge later on review of the it is not why clear liability imposed on the petition, Boims’ fee the amount to which defendants’ attorneys. hand, entitled, On the other they he clarified that to the extent it was intended to be a court had awarded Boims their fees “wrongful conduct,” sanction for it is not 11(c)(1)(A), expenses pursuant Rule why clear the defendants themselves were warranted, provides which “[i]f also held liable for may the award. It well may party award to the prevailing court be that either rationale would sup- motion the 11] reasonable ex- [Rule ported the district discretionary court’s de- attorney’s penses pre- fees incurred in cision to award the Boims their fees and senting opposing 184, or the motion.” R. However, costs. the reasonable exercise Op. magistrate judge Mem. at 8. The also of the district court’s discretion requires held that the defendants and their attor- the court why to articulate such an award joint neys were to bear and several liabili- warranted, why is is the defendants ty Id. at award. 20. But the attorneys their who are liable for and/or both the rationale for award and the deci- award, and, to the extent sion to make the defendants as well as imposed attorneys, on the exactly who lawyers responsible their for paying it re- among them is liable. See Katz v. Household murky. mained magistrate somewhat 'l, Inc., (7th Int 36 F.3d 672-73 rejected the judge suggestion that the de- Cir.1994); Studios, Milwaukee Concrete attorneys liable, fendants’ alone should be Co., Fjeld Ltd. v. Mfg. 451 n. reasoning that the Boims had been award- (7th Cir.1993). Given the lack of clarity parties ed their fees and costs as the who in the district court’s opinions, the fee prevailed on the Rule 11 motion rather award can have against no effect any of than against as a sanction the defendants the defendants or their counsel. The (and/or lawyers) filing their a ground- award of fees expenses is therefore less Rule 11 motion. R. Mem. Op. at vacated. 5-6, 20. Elsewhere opinion, same however, magistrate judge stated that VII. to award the the decision Boims the fees concluding Before opinion, our we find it expenses had incurred in success- necessary say a few poten- words about fully opposing the defendants’ Rule 11 mo- tial hearsay problems presented by certain tion specifically “is tailored to redress the aspects of the Boims’ case. In attempting wrongful conduct and is specifically au- to establish the defendants’ links to terror- thorized Rule 11.” Id. at (emphasis ism, the Boims have heavily relied on out- added). of-court statements like the Watson memo- record,
On this the award of fees randum, the contents of which are offered defective, and expenses was as the Boims for the truth of the matters asserted there- all but concede. See Boim Br. at 59. in. The district court relied on these docu- opinions None of the court’s and orders on summary ments its judgment rulings, subject make clear on ground what satisfied that fully statements were the district believed that the award Although portions admissible. of these expenses fees and was warranted nor may statements be admissible for limited why, light rationale, of that purposes, the defen- proscription against hearsay Boims, desired, rather than sub- these state- parts of at least may render Watson affidavit from mitting an truth. We for their inadmissible ments participated in employee who FBI undertake other on remand the court direct *41 memorandum, sub- of the preparation statements the such of careful evaluation govern- another affidavit from Rules of Evidence mitted an Federal ensure copy the averring simply purposes agent for the ment admissible them render there- tendered in that evalua- memorandum To aid Boims. of Watson’s by the cited it copy, that problems posed an accurate tion, potential the with was we note the of the FBI’s on which in the course prepared the statements of been by certain activities, and that the conducted regularly have relied. Boims administra- of the part was memorandum have As we Memorandum. Watson 12, R. 265-1 Ex. tive record Ashcroft. prepared noted, was memorandum this Simon, Nothing in A. Jr. of Samuel Deck FBI’s Coun- Assistant Director the circumstances describes the the affidavit rec- to document his Division terterrorism the memo- prepared under which Watson a designated that HLF ommendation memorandum randum, perhaps the though De- Treasury by the organization regard. in that for itself speaks re- memorandum AC. The OF partment’s led that Wat- length counts however, fact is the troubling, More to conclude colleagues and his son a num- repeats memorandum the Watson It of Hamas. behalf acted for or on HLF informants and from ber statements HLF, the activities details primarily (in un- instances some other individuals mentions the activi- it naturally, but also Watson, named) who, in contrast AMS/ representatives ties of Salah mat- duty report official under no for the notion makes a case LAP and in their statements. Rule ters addressed these of all of defendants activities 803(8) admissible public report deems activities Hamas. the terrorist furthered author that its official the notion based on forth the set As Watson memorandum and will talking knows is about what he des- decision to government’s basis effect, it accurately: “[i]n the facts state SDT, part was HLF an ignate perform officials public presumed the court before record administrative fairly, without carefully and their tasks litigation. the Ashcroft notion finds and this corruption, bias or expo- risk of scrutiny assume, the district may We func- most memorandum, government surround sure that held, court Watson B. Mueller and Christopher 4 tions.” results of as it embodies insofar Kirkpatrick, FedeRal Laird C. Evidence ties into HLF’s investigation government’s ed.2007). (3d pre- That 8:86, § 770-71 proceeding is admissible to the statements not attach sumption does Rule of Evidence to Federal pursuant bear no who parties third themselves setting forth 803(8)(B) report public as a they observe. report what duty to public im to duty pursuant observed “matters state- such 8:88, Unless § at 783-84. Id. matters there to which by law as posed for ad- basis independent at ments F.Supp.2d report.” 340 duty Rules, they must be under the Sutton, mission 337 v. (citing United States 915 Patrick, v. United See States (7th Cir.2003), excluded. and Beech 792, 797 F.3d (1st Cir.2001); 11, United 22 153, 248 F.3d U.S. Rainey, 488 Corp. v. Aircraft (8th Ortiz, 630, 632 125 v. F.3d 450, 445 States 439, 102 L.Ed.2d 169, 109 Ct. Mackey, Cir.1997); v. 117 United States (1988)). may leave a bit The foundation 752 (1st 24, Cir.1997); 28-29
F.3d
Miller v.
seeking
Israel was
Hinawi’s extradition for
(6th
Field,
1088,
Cir.1994);
(3)
1091
murder;
35 F.3d
his involvement with the
Inc.,
Honeywell,
v.
Parsons
Jerusalem Post news article indicat-
(2d Cir.1991);
ing that
activist;
Al-Sharif
United States v. Paz
was Hamas
(4)
sint,
(9th
Stanley
Boim’s
Cir.1983);
deposition testimony
F.2d
424-25
that, in
death,
the wake of
805;
his son’s
see
Fed.R.Evid.
generally
Halloway
media reported that Hamas had taken re-
County,
v.
Milwaukee
F.3d
sponsibility for
(7th
the attack and it
Cir.1999).
public
Accordingly, the district
knowledge that Hamas was
behind
must evaluate
and all statements
*42
attack;
(5)
and
a default judgment had
repeated within the Watson memorandum
Hinawi,
been
against
entered
“which
by
and
relied
Boims to ensure that
means,
practical matter,
as a
that
properly
each is
admissible.
accepts
Court
well-pled
as true the
allega-
attributed
Websites
To
Hamas.
show
tions in
Complaint
is,
about him—that
that the murder of David Boim was the
that he
ais Hamas terrorist
one
and
Hamas,
work of
the Boims submitted the
two
agents
Hamas
who carried out the
Paz,
of Dr.
declaration
Ruven
a former
attack on David Boim.” Id. All of this
security
member of the Israeli
community
problematic
evidence is
way
in one
or an-
who describes
an expert
himself as
in ter-
other.
judgment
The default
against Hi-
counter-terrorism,
rorism and
Islamic
nawi
defendants,
cannot bind the other
world,
movements
the Arab and Islamic
who did not default
consequently
and
groups,
Islamic
Palestinian
and Palestinian
right
proof
Hamas,
insist on
that
society
politics.
Based on his review
Hinawi, and Al-Sharif
responsible
for
of various exhibits submitted in connection
(9
the murder.
The Mary, 13 U.S.
case,
independent research,
his
Crunch) 126, 143,
(1815) (Mar
Boim, yet identify but such fact, respect With to cause in we proof yet and the district court has to began statute, with the requires which it. consider a plaintiff “injured be ... by reason of an
act of international terrorism.” 18 U.S.C. 2333(a). § IX. only way to read this is as a requirement proof cause fact. juncture The district court’s task at this supra See at 739. point Our basic here legal apply is to standards that we has been the statute does not demand parts have discussed here to the an outright responsibility admission of summary judgment case which David Boim’s murder (assuming that the granted. key point Our here has been murder) question terrorist act in is that intent, knowledge, and cause in fact specific tracing of donations to Hamas or assumed, proven, respect must be to the assassins (assuming that to each defendant.
enough to show that the defendants aided Knowledge and intent may seem and abetted a organization). Cir obvious, given public face of a group cumstantial evidence will also suffice. See Hamas, like explained, but as we have supra 741-42, far, however, 742-43. So plaintiffs prove, must nevertheless for each that step has skipped. remand, been On defendant, knowledge and intent that their (or must demonstrate how (or aid) financial contributions other show that there are no material issues of support directly Hamas would or indi — how) fact regarding the monetary dona rectly terrorist activities. See —Hamas’s tions from the organizations defendant 727-31; I, supra at Boim 291 F.3d at supported the activities that grew to in 1011-12, 1014-15, 1021-24. An assump clude the acts of way terrorism. One to do tion that such easy will be is no this, suggested, we would be to show that substitute for the real thing. As we em donations went into a pool central of funds I, phasized in Boim aiding abetting provided weapons training imposed, can in ordinary tort agents. Supra 741-42. one, just cases only as in this when the Plaintiffs would need to show that Hinawi alleged aider or abettor knows what it is Al-Sharif were affiliated with helping and help bring intends to about *46 but would not otherwise have to show 1020-21, 1023; the tortious at result. Id. that particular funds from a defendant or see also id. at 1015. I As Boim went on to ganization way made their to those two explain, proof it is of knowledge and intent particular operatives. Another ave that distinguish serves to culpable the tort- nue would be to money demonstrate that party merely feasor from a that is associ from the organizations defendant went to ating with and expressing its for endeavors, Hamas for its charitable and which, Hamas-conduct repugnant, however thereby up freed funds that Hamas could protected by is the First Amendment. Id. use for terrorist activities during at the time 1023-24. tempting might However it be period to when David skip past requirements Boim was killed. these where a Su pra organization notorious like at 741-42. examples Hamas is con These do not cerned, we cannot setting do so without exhaust the possibilities. A comparable only for grief not created lifetime and course, be made have to will, of showing family every other for Boims but also the supra See as well. Salah defendant to by terrorism. scarred 741, 747-48. to assume error court’s The district X. to be causation needed only proximate
that reasons, we Vaoate foregoing For the necessary in indeed And is proven. against defendants- entered judgments are defendants that to ensure order AMS/IAP, Salah, HLF, and appellants misuse of risks of for remote held liable proceed- further for and REMAND QLI not, a substi- however It is funds. their par- opinion. ings consistent with 740, 742. Supra at fact. cause in tute appeal. own costs shall bear their ties (which may in the fact cause in Proof of remand. apply on Rule 36 shall Circuit proof and straightforward) end further intended to and knew defendants concurring in EVANS, Judge, Circuit (which may be agenda terrorist Hamas’s dissenting part. and part that we so) the tort model will follow less me to case causes of this My review to intended Congress I that in Boim found un- conclude, Keys, that the Judge as did 1021-21; 1009-12, su- adopt. its that Hamas facts show disputed also It will ensure at 737-39. pra murder of for the responsible agents imposed will be statute liability under this Furthermore, I con- cannot Boim. David respect through procedures only require judge failed clude proof Arguments that of law. rule the defendants link between causal are too intent, in fact or cause knowledge, reasons, I re- For those attack. terrorist are context of terrorism onerous dissent, reversal except as to the spectfully us; Congress, not addressed properly Holy Land against judgment plaintiffs not relieve could we the reader Given Foundation. defying without requirements these I point, fatigue at this suffering probably incorporate Congress intent of manifest be brief. will into section principles tort traditional I, Con- clear in Boim made quite As we are speculation Belief, assumption, § under intended for gress in a court of substitutes for no com- persons who only to the “not attach might estab- However the law. indi- acts, those but all terrorist mitted defen- connecting the a line of lish the causal along organizations viduals Boim, the of David the murder with dants the basis That was of terrorism.” chain such they demonstrate demands law statute, that, under our conclusion may be held any defendant before nexus aided to those who liability attached must resist We death. for David’s liable acts. abetted error, admit over gloss temptation to prob- is the that means exactly what But evidence, facts not and assume spurious states, it is correctly majority As the lem. simply side adequately proved undisputed— fair inference—and “both a the face of against of innocence face *47 Boim constitutes murder of David to the endeavor adhere Our terrorism. and that terrorism” act of international has great nation an that this of law dictates injury. The suffered parents and his he founding persev- must its since embodied the individuals who says that majority also desire ere, great how our no matter (if the murder him and Hamas killed unspeak- for the someone accountable hold sup- its “at its behest life committed Boim’s ended David ably evil acts that But, port”) would liable to the Boims. against Hinawi in this matter. That it is majority says, in written Arabic surprising is not all me. As vigorously sites, what to the use of disputed has been from Web Dr. Paz explains that inception litigation of this is whether persons under what circumstances Web sites of Islamic movements and groups allegedly who provided have organizations terrorist long been (di- money and other to Hamas accepted important sources of infor- rectly indirectly) may arid also be liable mation field, for scholars in this as well for David’s murder. as for intelligence organizations and the Clearly, question Boim I settles the press. The organizations rely “whether”; problem arises on the on web sites to deliver messages their question “under what circumstances.” their adherents general public. and the majority says that in a “profound The United Peace, States Institute for I, misreading” of Boim the district court non-partisan federal institution created (and Boims) said that cause- Congress, recently published has necessary in-fact was not but rather that report extensive on the use of the inter- (i.e., proximate cause foreseeability) net terrorists.
sufficient to liability. establish I do not Dr. Paz attaches the report. agree that the district failed to con- Furthermore, while pick defendants I’ll explain moment, sider causation. in a the evidence presented the Boims have first, a slight but detour. Hamas murder, involvement David’s no The immediate cause-in-fact inju- of the defendant has produced any evidence ry gunned here was that two men David disputes which Hamas’s involvement. only can down what be considered a Looking novo, at the issue de I conclude— My departure terrorist act. first from the as did the district court—that gunmen majority apparent is its conclusion that (Hinawi Al-Sharif) and Hamas were the Boims failed to show that the two the direct cause injury of the to the Boims. gunmen and Hinawi—and Ha- —Al-Sharif responsible mas were in fact for the mur- QLI But argues that finding der, as AMS and IAP disagree concede. I Hamas is responsible applied cannot be majority’s rejection with the expert it it because did not have a chance to opinion of Dr. Ruven Paz and the other litigate the issue. That is QLI nonsense. evidence on which the district court relied summary moved for judgment. In re- was, in concluding fact, that Hamas sponse, the Boims submitted statement responsible for murder it publicly facts, took in which produced evidence responsibility for. Dr. Paz is a former responsible Hamas was for the mur- security member of the Israeli community QLI der. could have offered expert who is an terrorism in Furthermore, (when the Arab response. at trial fluent in world and is Arabic. In reaching judge jury instructed the that Hamas had conclusions, analyzed he many his sources been responsible murder), found for the data, including Web sites by QLI, controlled who declined participate documents related to Hinawi’s trial judge because the grant did not sentencing trial and continuance, Boim’s murder. It obviously object did not particularly seems reject, absurd for us to Therefore, instruction. issue as an underpinning expert for an opinion, QLI waived. escape cannot its waiver be- what he believes to be the official verdict participate cause refused to in the trial. *48 that what must be to be rectly, seems from relieve one not does behavior Such a defendant established is that the shown litigation. ordinary requirements the “general sup- provided or funding network my point main to now return I will activities; if that is es- terrorist port” for concerned most majority seems the what could infer tablished, finder then fact the to proven is, needs to be what about —that a cause network the was establishing that before the defendants in fact that establish especially That is Hamas terrorism. majority re- The the terrorists. aided us a reasonable funding was within true if the variously as requirement this to fers if it was act and time of the terrorist cause, cause, cause-in-fact, factual direct majority, In words the significant. the No one chain, causal link. causal estab- organization or if an individual be must that there seriously dispute would in the network United funding a lished the link defendants causal between a fi- ongoing designed provide States entity person A terrorist act. the terrorist ac- for Hamas’s nancial another terror- money to giving knowingly reasonably tivities, might a factfinder murder for a responsible is not group ist establishing that act of that infer the of Hamas. by agents committed ensuing acts of a cause of network mean “causal link” does just But what terrorism, if line could even no Hamas that prove context, how must one dollar linking particular a drawn be the defendants link exists between the act. particular raised to a wisely declines majority The Hamas? Further, that requirement an absurd up set a rea- that follow within Terrorist acts the defendants money given and other the donations time sonable to, say, directly purchasing traced must be to the by a defendant provided Money, the attack. gun used in be those acts could perpetrators times, fungible. At is majority recognizes, caused those been deemed to have re- is majority that the it seems though, sup- acts; significant more and the leading from trail clear pretty quiring defendant, the more by a port provided caused act specific which defendant support was infer that readily might one instance, majority For death. David’s terrorist acts. cause of later from strikingly absent what “is says that refer-, any is consid- The analysis aside, points: minor court’s the district As two strange light assis- link between seems significance of a causal eration ence contri- found that even small the court other statements tance AMS/IAP murder of would And there given Hamas are sufficient. have butions in this says timing majority also with problem Boim.” The to be no David seem defendant must “there case. commis- [Hamas] aided and abetted majority with the company I part Where de- some acts have of tortious sion nothing explanation I see is death.” David Boim’s link with
monstrable adds in link that to show causal how the statement there is But then Keys re- Judge to what sense realistic I demands that Boim “[n]othing failed to that he see I cannot quired. between a direct link establish link. a causal there was whether consider (or con- other donations the defendants’ majority prompted the statement that The duct) Boim’s murder....” and David appears to believe required link causal that no such line, I which said majority’s bottom following: I read it cor- assuming disagree, do *49 that, say Circuit did not The Seventh required and I certainly “Boim did not § impose under the Boims relieve the plaintiffs of establishing some link Mr. Salah or any have to form of causal link between a defendant’s specifically to other defendants the at- actions and David Boim’s murder.” Boim; rather, killed David tack that the link, As to the causal it seems to me that that, to impose liability court held for is, best, only there a semantic difference is, abetting aiding providing —that between what majority the requires and to—a organi- material Judge Keys what spent pages pages zation, only Boims need the show that reiterate, examining. To the majority says knew of illegal Hamas’ the defendants is, that what required instance, is activities, they help desired to those funding network providing financial sup- succeed, and that they engaged activities port of activities, Hamas’s terrorist or oth- helping.... act of some er “general support” from which one can all three shows that are true with re- infer that the network awas cause of the spect to Mr. Salah and no reasonable acts of terrorism. By way of example, the jury could find otherwise. majority said: Quranic Inst., Literacy Boim v. Proof that HLF (N.D.Ill.2004). funding Hamas’s F.Supp.2d terrorist activities at the time of Boim’s part I read the first As of this state- murder, and that another defendant was ment, judge saying is there is no need in turn funneling donations to HLF with link from for a direct Salah’s activities to the knowledge and intent those attack specific that killed David Boim. funds be used to Hamas’s ter- But how is different from what the rorism, might support an inference that majority says? And in fact majority the actions of both HLF and that defen- Judge Keys says that what said was not dant were causes of the murder. wrong: I Nothing Boim demands that the Judge Keys said more than once that the plaintiffs establish a direct link between Boims needed to show “that the defen- (or the defendants’ donations other con- dants knew of illegal activities, Hamas’ duct) and David Boim’s murder —that they desired to help those activities they particular funded the terrorists succeed, and that they engaged in some Boim, who killed David for example.... act helping.” Emphasis added. 340 respect, In that the district court was no F.Supp.2d 885 at 923.1 It seems to me doubt correct when said that engaging in “some act of helping” is need not link the Boims defendants spe- providing same as funding or other the attack cifically to on David Boim. general support to Hamas. precisely It is Later, majority reiterates support” “financial “general support” correct that a judge was “direct link be- that Judge Keys considering as a link actions and tween Salah’s the killing of between the defendants and Hamas terror- But, need not be ism, David Boim shown.” which was the cause of David Boim’s continues, majority indirect causation is death. dissent, commenting my
1. While plaintiffs' col- burden in this civil suit was to say leagues that I believe undisputed that “the prove preponderance their case a mere conclusively facts show that Hamas was re- evidence, that, think, I sponsible murder of David Boim....” accomplished. "conclusively” But issue. The *50 pro-Hamas invited and annual conferences summary on of decisions review Our travel ex- for their paid and There- course, speakers novo. is, de judgments a including at one conference one, even penses, error, there is if fore, minor a signifi- There is terrorist. long veiled Hamas fatal so is not phrasing Keys’ Judge which shows of evidence cant amount evidence undisputed of the review as our money to HLF and If it contributed the supports judgment. record donate, knowing they encouraged others with the evidence. doesn’t, is problem the military its Hamas and money went to on the view, Keys got right Judge my inBut activities. the law. facts both on the evidence at some of look A brief force, of its loses The latter evidence my out Keys relied bears Judge
which because, majority’s course, part effect, was, consider- he conclusion agree, grant I which opinion with link be- a causal was there ing whether HLF has been judgment against summary Hamas actions a defendant’s tween I district agree overturned. fact, that, the evidence terrorism estoppel effect collateral granting erred Salah, the link. As to causal shows Holy Land Foundation to the decision tripa to the that he took includes F.3d Ashcroft, 333 Dev. v. for Relief the re- Israel Occupied Territories (D.C.Cir.2003). ulti- Though if HLF is Marzook, Mohammed Abu of Mousa quest liable, the evidence to be mately found Hamas. for military operations head of as well. strengthened against AMS/IAP those to revive trip purpose that, the evi- even without IBut believe Ha- money to He contributed operations. HLF, the Boims involving dence carrying purpose operatives mas support” “general shown AMS/IAP’s mon- provided He activities. terrorist out one from activities which Hamas buy weapons to operative ey to a Hamas a cause of their actions can infer In a state- operations. in terrorist be used terrorism. ensuing acts of Hamas custody, he in Israeli gave while ment he finding appeal the and IAP also AMS operatives meetings with Hamas describes entities to intertwined they were re- Salah’s military operations. regarding between any distinction that made degree is not Boims’ evidence sponse facts My review of meaningless. them it, primarily dispute but facts which offer conclu- me to the same point leads on various the evidence to move to strike court. as the district sion that his statement contend and to grounds Keys Judge by torture. procured from respectfully I dissent Accordingly, arguments but Salah’s carefully considered as to all defendants court’s decision reliable. the evidence was concluded that majori- HLF, join I HLF. As except me that convinces record My review the ty opinion. articulated majority has standard to Salah. has been met as causal link for a pro- and distributed published
AMS/IAP documents, including one which mar- that advocated
contained editorial meeting death
tyrdom operations, addition, In
death, killing Jews. AMS/ gar- designed to documents
IAP published held IAP for Marzook. public support
ner