[color="Red"]Absolutely incredible how this stuff flies. No evidence this little kike was killed by Hamas, or the organizations shaken down had anything to do with Hamas, but they still lost under some obscure and unconstitutional "terror" law.

http://www.theoccidentalobserver.net/2015/06/the-use-and-abuse-of-the-anti-terrorism-act/#comments

In 1996, David Boim, a Jewish teenager living in Israel who was both an Israeli and an American citizen, was shot to death by two men at a bus stop near Jerusalem. His parents filed suit in federal court in the United States in 2000, alleging that the killers had been members of Hamas. The suit named as defendants, among others, the Holy Land Foundation for Relief and Development, the American Muslim Society, and the Quranic Literacy Institute. Boim’s parents argued that, although these defendants had not committed the killing, they were nonetheless liable under the ATA because they allegedly had contributed funds to Hamas — in other words, that they were secondarily liable.

The Seventh Circuit panel (Judge Rovner wrote the majority opinion) was sympathetic to the Boims but struggled to find legal grounds on which to support the secondary liability the Boims sought. In the first appeal, 291 F.3d 1000 (7th Cir. 2002) (an interlocutory appeal prior to trial taken by the defendants from the trial court’s denial of their motion to dismiss), the Seventh Circuit concluded, in a lengthy opinion, that the defendants could be held liable on an aiding and abetting theory borrowed from traditional tort law. The case then resumed in the trial court, which granted summary judgment on liability to the Boims as to three of the defendants and sent issues regarding both liability and damages as to one defendant to a jury. The jury rendered a verdict of $52 million against all defendants, which was trebled, in accordance with the statute, to $156 million.

The defendants appealed again. Several Jewish organizations, including the Anti-Defamation League, filed amicus curiae briefs in support of the Boims and a broad reading of the ATA. In this appeal (511 F.3d 707 (7th Cir. 2007)), Judge Rovner again writing for the majority upheld the holding of secondary liability based on an aiding and abetting theory that the court had set forth in the earlier appeal. Defendants then requested a hearing en banc (of all the judges in the Seventh Circuit), which was granted. Again, numerous Jewish organizations, including the ADL, the Jewish Institute for National Security Affairs, and the Jewish Community Relations Council of the Jewish United Fund of Metropolitan Chicago, filed amicus briefs supporting the Boims and an expansive reading of the ATA. In this third appellate decision (549 F.3d 685 (7th Cir. 2008)), Judge Posner for the en banc majority rejected the earlier panels’ reliance on an aiding and abetting theory for secondary liability, finding no support for it in the text or legislative history of the statute, but approved a different secondary liability theory: that Section 18 U.S.C. 2333 (the ATA section) incorporated by reference two criminal statutes, namely Sections 18 U.S.C. 2339A and 2339B.

The en banc court’s holding that Section 2333 incorporates Sections 2339A and 2339B is odd in many respects, not least the timing of the enactment of these various laws. Section 2339A, enacted in 1994, provides criminal penalties for those who provide “material support or resources” with the knowledge or intention that the support is to be used “in preparation for, or in carrying out” any of over two dozen violent crimes.[5] Section 2339B, enacted in 1996 shortly after the Oklahoma City bombing, provides criminal penalties of up to 15 years imprisonment plus substantial fines for whoever “knowingly provides material support or resources to a foreign terrorist organization,” as “terrorist organization” is defined under Section 219 of the Immigration and Nationality Act. Neither Section 2339A nor Section 2339B makes any reference to Section 2333. Of more relevance to the Seventh Circuit’s incorporation by reference theory, nothing in the text or legislative history of Section 2333 suggests that in 1992, when the ATA was enacted, Congress intended to incorporate by reference statutes, such as Sections 2339A and 2339B, that did not then exist and would not be enacted until years later. The Seventh Circuit reached this logic-challenged result only by a contorted interpretation of the term “international terrorism” as it is used in the ATA.

The Seventh Circuit’s approval of secondary liability under the ATA — first on an aiding and abetting theory and then on an incorporation by reference of the criminal material support statutes theory — opened the floodgates for the use of the ATA in civil litigation. Since the first Boim decision in 2002, there have been well over a hundred published decisions involving the ATA, and the number promises to get even larger. The following lists several general traits of this wave of ATA cases.

First, most of the cases, like Boim itself, involve Jewish plaintiffs (often Israeli as well as Jewish). A review of the published decisions annotated to Section 2333 in the United States Code Annotated shows that approximately 70% of the annotated cases involved Jewish plaintiffs. Examples include Rothstein v. UBS AG, 798 F.3d 82 (2d Cir. 2013); Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50 (2d Cir. 2012); Kaplan v. Central Bank of the Islamic Republic of Iran, 2014 WL 3610784 (D.D.C. July 23, 2014); Wultz v. Islamic Republic of Iran, 864 F.Supp.2d 24 (D.D.C. 2012); Abecassis v. Wyatt, 785 F.Supp.2d 614 (S.D. Tex. 2011); Gill v. Arab Bank, PLC, 893 F.Supp2d 474 (E.D.N.Y. 2012); and Weiss v. National Westminster Bank PLC, 936 F.Supp.2d 100 (E.D.N.Y. 2013). Cases such as In re Chiquita Brands International, Inc., 690 F.Supp.2d 1296 (S.D.Fla. 2010), which involve neither Jewish plaintiffs nor defendants that are avowed enemies of Israel, seem almost anomalous in this context.

Second, the interpretation of the ATA to encompass secondary liability, particularly on a “material support” theory, has brought within the statute’s scope a wide array of defendants, including banks, e.g., Rothstein v. UBS AG and Gill v. Arab Bank, charities and educational organizations, e.g., Boim, businesses such as oil and gas companies, e.g., Abecassis, and media, e.g., Kaplan v. Al Jazeera, 2011 WL 2314783 (S.D.N.Y June 7, 2011). Many of these entities were attractive as defendants because of their deep pockets. The ATA lawsuits also, however, served the purpose of discouraging banks, businesses, donors, media, and others from having transactions with the alleged terrorist organizations, even though the banks, businesses, donors, et alia, may have had only tenuous connections to any alleged terrorist aims or actions — as, for example, where banks engaged only in purely commercial, arms’ length transactions or donors earmarked their donations exclusively for humanitarian purposes.[6],[7]

Third, if an ATA claim survives the initial motion to dismiss, discovery — i.e., the pre-trial phase in civil litigation in which a party can obtain evidence from the opposing party by means of discovery devices such as requests for production of documents, requests for answers to interrogatories, and depositions — often gives the plaintiffs an enormous tactical advantage. Many ATA defendants, especially banks and charities, have extraordinary confidentiality concerns that can easily be compromised or violated by the invasive discovery devices available in civil litigation. In the Linde v. Arab Bank case, for example, the bank was caught on the horns of a dilemma: on the one hand, the district court supported the plaintiffs’ demands that the bank turn over its banking records to the plaintiffs in discovery; on the other hand, three foreign banking authorities threatened the bank with legal action for violating national bank secrecy laws if the banks did so. When the bank refused to produce the documents, the district court sanctioned the bank by permitting the jury to infer from the nondisclosure that the bank had knowingly provided services to a designated foreign terrorist organization.[8]

Fourth, if an ATA claim survives all pre-trial motions and goes to a jury, the risks of a huge plaintiffs’ verdict are very great, particularly in light of the ATA’s treble damages provision. To put it mildly, juries do not like terrorists, or persons they have been convinced are terrorists, and they are generally not well-disposed toward foreign banks or Islamic charities. As mentioned, the plaintiffs in the Boim case received an award of $156 million after trebling. The plaintiffs in Ungar v. Palestinian Liberation Organization received a damages award of approximately $116 million. The plaintiffs in Calderon-Cardona v. Bank of New York Mellon, HSBC, 770 F.3d 993 (2d Cir. 2014), received compensatory damages of $78 million and punitive damages of $300 million. Other examples of outsized awards could be provided.

Finally, even as defendants’ exposure under ATA claims widens, their defenses are being narrowed. Many nations have heretofore been able to invoke absolute immunity from ATA (and other) claims in accordance with the Foreign Sovereign Immunities Act, but that will change if Senator Charles Schumer succeeds in convincing Congress to pass his Justice Against Sponsors of Terrorism Act (“JASTA”). JASTA, indeed, would not only remove sovereign immunity as a defense to ATA claims, but would expressly incorporate secondary liability into the ATA, just in case some courts decline to follow the Boim decision as a matter of precedent. Moreover, JASTA seems designed to weaken the requirement, which many courts have read into the statute, of a substantial causal link between the plaintiff’s injuries and the defendant’s alleged actions. The act broadly states that its purpose

is to provide civil litigants with the fullest possible basis, consistent with the Constitution, to seek relief against persons, entities and foreign states, wherever acting and wherever they may be found, which have provided material support or resources, directly or indirectly, to foreign organizations that engage in terrorist activities.

Impelled by Senator Schumer’s aggressive sponsorship, JASTA passed the Senate in December 2014 and now awaits passage in the House. Schumer has fulsomely proclaimed that his motives for sponsoring this act are sympathy for victims of terrorism and revulsion of those who support the terrorists, and he can be found posing ostentatiously in many photographs with victims of the 9/11 attacks in support of the act. Given, however, that Schumer believes he is on a mission from God to be Israel’s guardian in the Senate[9] and, it seems, has never publicly criticized Israel,[10] one can be forgiven the suspicion that he is fully aware that JASTA, if it passes, will disproportionately benefit Jewish victims of allegedly terrorist acts.

Connecting the dots above, a diagram emerges of the ATA as a powerful weapon in the arsenal of JEN’s pro-Israel and anti-terrorism campaigns. The realpolitik import of the diagram, indeed, is so self-evident that even elements within the JEN in moments of candor acknowledge it. An August 2014 article in Reuters by Alison Frankel, which describes Israel’s “sudden about-face” — one could also say “doublecross” — in its support of the ATA claims brought by the parents of Daniel Wultz, an American/Israeli teenager killed by a Jihad bombing in Tel Aviv in 2007, provides an informative example.[11] The lawsuit alleges that Hamas was using Bank of China accounts to launder money and names the Bank of China as a defendant. Initially, the Israeli government supported the lawsuit; indeed, according to the plaintiffs, the Israeli government supplied the specific information about Bank of China transactions that is the backbone of their case. Later, however, Israel’s economic ties to China became an issue, particularly in light of Prime Minister Netanyahu’s planned state visit to Beijing. The Israeli government then refused to cooperate with the plaintiffs, who felt betrayed. Frankel writes:

The victims’ lawyers claim that the suits against Bank of China would never have been filed had Israel not promised to support the litigation — that, in fact, Israel considered U.S. litigation under the U.S. Anti-Terrorism Act an indispensable element of its national security campaign to choke off terror financing. …

Filings in the litigation . . . amplify the record on Israel’s initial support for the Bank of China litigation and its more recent decision to handicap the cases. The filings detail Israel’s novel tactic of using U.S. litigation to advance its national security objectives: After Israeli diplomacy couldn’t convince the Chinese to shut down suspicious accounts, Israeli operatives, according to the plaintiffs’ briefs, fed hard-won intelligence about alleged Bank of China terrorist accounts to private lawyers, with the express intention of prompting American victims to sue the bank. High-ranking Israeli officials personally assured some of the victims’ families that private U.S. litigation was in Israel’s national security interest. Yet when the country’s strategy changed, Israel walked away from the litigation.

Frankel further notes how a “U.S. congresswoman hand-delivered [a letter from the plaintiffs] to [Natanjahu],” trying, unsuccessfully, to persuade the Israeli government to keep its initial commitment.