When federal prosecutors tried last year to convict several fundraisers for Muslim organizations of supporting terrorism against Israel, their efforts fell flat. A Dallas jury rejected each of 197 charges against officials of the Holy Land Foundation for Relief and Development.
Earlier last year in Chicago, terrorism charges against two alleged Hamas activists also didn’t stick, and the two were convicted only of obstruction of justice.
The government fared no better in 2005, when Florida college professor Sami al-Arian pleaded guilty to lesser charges after a mistrial in the attempt to label him a point man for Palestinian terrorists here.
And last week came another sign that the courtroom may be too complex a forum for the war on terror. This time it was a civil case that took a turn for the worse, when a tribunal of the 7th U.S. Circuit Court of Appeals reversed a lower court’s ruling that five organizations and an individual fundraiser here were accountable for the Hamas 1996 shooting death of David Boim. A dual U.S.-Israeli citizen, Boim, 17, was murdered while waiting for a bus near his yeshiva in Beit El.
Boim’s parents, Stanley and Joyce, had been awarded $156 million by U.S. District Judge Arlander Keys in Chicago, ruling that they did not have to prove the defendants were directly aware of the attack.
The majority ruling of the appellate court noted that a 2001 statute under which an organization could be held accountable for providing material support to a foreign terrorist organization did not exist at the time of Boim’s murder. Therefore, even if it was proven that the fundraisers knew of terror links, it would not be enough, the majority ruled.
In his dissenting opinion, Judge Terence T. Evans, wrote that, “It seems to me that engaging in ‘some act of helping’ is the same as providing funding or other general support to Hamas. It is precisely ‘financial support’ or ‘general support’ that Judge Keys was considering as a link between the defendants and Hamas terrorism, which was the cause of David Boim’s death.”
A lawyer for Boim’s parents, Nathan Lewin, has requested to bring the case before the entire Seventh Circuit for rehearing.
At the same time, a civil suit brought by dozens of Israeli and American plaintiffs against the Jordan-based Arab Bank here, alleging that the $32 billion institution served as an ATM for the families of suicide bombers, is at an impasse. While the legislation has resulted in the closure of the bank’s New York branch (it still operates an office here) and the seizure of some $400 million in assets, the litigation has come to a virtual halt with the bank declining to provide financial records from the Palestinian Authority, Jordan or Lebanon, citing confidentiality agreements in those jurisdictions.
“It’s a mixed bag,” said Gary Osen, the lawyer for the plaintiffs in the Arab Bank suit, referring to the legal war against terror funding. “The Lord gives and the Lord takes away.”
In the Boim case, he says, “The court had a hard time reconciling common law on aiding and abetting with the statutory criminal provisions that were enacted after Boim was killed. Under the material support statute anyone who knowingly gives money to a foreign terrorist organization or is aware of underlying acts of a foreign terror organization is criminally liable.”
The Arab Bank case would not be affected by the Boim ruling, Osen said, because all the plaintiffs are victims or families of victims harmed in incidents that took place after the anti-terrorism legislation that included the material support of foreign terrorist organizations provision.
Despite its limited success, Osen said litigation and prosecution is still playing a role in the war on terror.
“Overall, litigation is a secondary tool and doesn’t replace a strong military and diplomatic approach,” said Osen. “But in terms of its viability there is still an important place for both criminal prosecution and civil cases, particularly those that target the flow of money.”
Part of the problem, he says, is that juries may not view these cases against funders as seriously as those against would-be combatants such as Jose Padilla, the U.S. citizen convicted last August by a federal jury of plotting to aid al Qaeda in attacks overseas. (Padilla was originally accused of a so-called “dirty bomb” plot within the U.S., that charge was not part of the indictment against him.)
“The cases are less riveting when they involve wire transfers and not explosives and guns,” said Osen. “Also, so much of terror financing is done through fronts and charitable dummy organizations, so it is a much more complicated story to tell.”
Another lawyer in the Boim case added that a further obstacle is the limitations of the legal system’s reach. “What is not appreciated is that the core evidence is in the hands of people who are well beyond the U.S. judicial system,” said Steven Landes. “A perfect example is our effort to prove that Hamas killed David Boim. Hamas admits on a Web site that one of its recently deceased leaders was the commander of the ‘operation’ that murdered David. But the court was concerned that we could not offer the Webmaster as a witness.
“We had FBI reports of a major Hamas conference in the U.S. that made the connection clear but this was also discounted. Were we supposed to call Sheik Yassin?”
Proving an actual connection between dollars raised for Hamas and a particular act of violence by that group could prove an insurmountable obstacle, said American Jewish Congress counsel Marc Stern. “To attempt to actually connect dots from the dollar to the bullet, that would in fact be very difficult,” he said. “You can read the opinion in two different ways: One is that [the courts] really don’t like these cases and they are going to make them impossible to bring, and the other is we are saying, ‘Look, we have no objection but you have to follow the same directions as elsewhere, bring a little bit of proof, give us something to hang our hat on.’ ”
But Lewin says it is unwise and unrealistic, even harmful, to hold anti-terror litigation to the same standards as other cases.
“Terrorism lawsuits are not like environmental or domestic product-safety litigation that is subject to all the usual procedural rules applicable in domestic lawsuits, and I’m astounded that the Seventh Circuit panel didn’t realize that,” he said. “What is needed is some real-life practitioners who can appreciate the difficulties of real-life litigation and how impossible it would be to apply all the defense-protection principles to lawsuits against those who are intent on destroying the system of law in the United States.
“Most appropriate is [late Supreme Court Justice Robert H. Jackson’s] remark that the Constitution is not a suicide pact.”