Saturday, December 29, 2007

Landmark Civil Terrorism Decision Overturned - Victory For Holy Land Foundation, Defeat For Terrorism Victims

Andrew Cochran

The Holy Land Foundation won an important victory in a U.S. courtroom on Friday, when the Seventh Circuit Court of Appeals overturned a $156 million judgment against it, other Islamic charities in the U.S., and an alleged Hamas fundraiser.. The case arose out of the 1996 murder of David Boim, a 17-year-old American citizen, who was killed in a Hamas terrorist attack in the West Bank. David’s parents sued men who were directly involved in the murder; the Holy Land Foundation (HLF); the American Muslim Society, also known as the Islamic Association for Palestine (IAP); the Quranic Literacy Institute (QLI); the United Association for Studies and Research (UASR); Saleh, the alleged Hamas fundraiser; and others (see this summary judgement order from the first trial for the complete list). Saleh was eventually convicted of obstruction of justice for lying under oath in connection with the suit.

The initial decision was the first in which U.S.-based charities which allegedly raised funds for Hamas were ordered to pay the victims of Hamas' terrorist attacks. So the Seventh Circuit's decision (102-page Acrobat file) is a huge disappointment for terrorism victims who seek to hold financiers responsible for the murderous acts of the groups they fund. The Court ordered a retrial and held the following:

On remand, the Boims will have to demonstrate an adequate causal link between the death of David Boim and the actions of HLF, Salah, and AMS. This will require evidence that the conduct of each defendant, be it direct involvement with or support of Hamas’s terrorist activities or indirect support of Hamas or its affiliates, helped bring about the terrorist attack that ended David Boim’s life. A defendant’s conduct need not have been the sole or predominant cause of the attack; on the contrary, consistent with the intent of Congress that liability for terrorism extend the full length of the causal chain, even conduct that indirectly facilitated Hamas’s terrorist activities might render a defendant liable for the death of David Boim. But the plaintiffs must be able to produce some evidence permitting a jury to find that the activities of HLF, Salah, and AMS contributed to the fatal attack on David Boim and were therefore a cause in fact of his death. Absent such proof, those appellants will be entitled to judgment in their favor.

In the first trial, the court held the following:

(I)n the years after the United States designated Hamas as an SDT, HLF provided significant funding (hundreds of thousands of dollars) to the following organizations: the Islamic Charity Association (a.k.a. Islamic Charitable Society in Hebron), Ramallah Zakat Committee, Jenin Zakat Committee, Nablus Zakat Committee, Tolkarem Zakat Committee, Orphan Care Association in Bethlehem, Qalqiliyah Zakat Committee, Hebron Zakat Committee (a.k.a. Hebron Tithing and Alms Committee), Dar El Salam Hospital, Islamic Aid Committee (a.k.a. Islamic Relief Agency), Sanabil Association for Relief and Development, and the Human Appeal International-Jordan. See Transcript of Deposition of Shukri Abu-Baker, pp. 170-76; see also AR 1209-15 (attached as Exhibit 4 to Plaintiffs’ (IAP/AMS) Rule 56.1 Statement). The evidence further shows that all of these organizations are either known fronts for Hamas, known supporters of Hamas, or entities whose funding is known to benefit the Hamas agenda.

During the recent Holy Land Foundation criminal trial in Dallas, which ended in a mistrial, the prosecution presented evidence of financial transfers between several of the defendants in the Boim case:

FBI Agent Lara Burns’ testimony continued Wednesday morning, as prosecutors introduced bank records to expose close financial ties between the Holy Land Foundation (HLF) and HAMAS leader Musa Abu Marzook, (in the news today for denouncing a planned September peace conference between Israelis and Palestinians) as well as the Islamic Association for Palestine (IAP) , United Association for Studies and Research (UASR), and Infocom - all U.S.- based who acted on behalf of HAMAS.

Payments by Marzook to HLF started in 1988 and ended in 1992, a year when Marzook transferred two $100,000 payments to HLF within ten days. Agent Burns testified before the jury that during this time, Marzook was not employed.

Lead prosecutor Jim Jacks introduced evidence showing that Marzook also transferred over a one million dollars to UASR, IAP and Infocom, as well as tens of thousands to the defendants Mohammad El Mezain, Shukri Abu Baker, Ghassan Elashi during this same period.

HLF itself also paid almost $250,000 to IAP between 1989 and 2001, and over $400,000 to Infocom between 1990 and 2001...

Bank records also showed that in a two month period in 1988, HLF transferred over $250,000 to the bank account of Khairy Al Ahga, a Hamas financier in Saudi Arabia.

Those transfers and others were insufficient, according to the Seventh Circuit. Instead, a more direct causal link between the defendants and the murders must be shown, which, in my opinion, is neither possible to establish by a preponderance of the evidence, nor the intent of the Congress. Applying this standard would make it extremely difficult, if not impossible, for terrorism victims to receive compensation from those whose funds made a particular attack possible.

No comments: