The waning days of 2007 saw the Seventh Circuit reversing the $156 million judgment granted against various Muslims and Islamic organizations to the family of David Boim, who was killed by Hamas in Israel in 1996. Now that the holidays are over and I have had an opportunity to review the opinion, I am convinced that it is not the victory (or defeat) it has been made out to be.
The Boims are rightly disappointed. I would be too, if something I worked hard towards - and which was quantified by such a large award - was vacated. In their statement, they claim that the Seventh Circuit's decision is wrong, that it will harm other victims of terrorism seeking compensation and undermine the fight against terrorism, and that it will ultimately be reversed by the Supreme Court.
I predict that it will not require a reversal by the Supreme Court. Instead, the trial court will engage in some additional fact-finding and ultimately reinstate the award. This becomes clear when you consider what the Seventh Circuit wrote. It is basically a how-to manual on the requisite proof, and contains nothing that the Boims seemed unable to offer before the trial judge found it unnecessary.
The big error, according to the panel, was the trial judge's failure to expressly find that the funds provided by the defendants were the but-for cause of David Boim's murder. It was not the Boim's fault that this happened; they were prepared to present such proof before the trial judge announced that she had already made up her mind. However, it is clear that the Boims need not present proof that would trace the funds to the purchase of the murder weapon and bullets. According to the Seventh Circuit:
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 [the defendants] contributed to the fatal attack on David Boim and were therefore a cause in fact of his death…. The Boims would have to show that the donor was aware of Hamas's terrorist activities and intended to further those activities, and also that the murder of David Boim "was a reasonably foreseeable result of making the donation." …
Circumstantial evidence will also suffice. …On remand, the plaintiffs must demonstrate how (or show that there are no material issues of fact regarding how) the monetary donations from the defendant organizations supported the activities that grew to include the acts of terrorism. One way to do this, we suggested, would be to show that donations went into a central pool of funds that provided weapons and training for Hamas agents. Plaintiffs would need to show that [Boim's killers] were affiliated with Hamas, but they would not otherwise have to show that funds from a particular defendant organization made their way to those two particular Hamas operatives. Another avenue would be to demonstrate that money from the defendant organizations went to Hamas for its charitable endeavors, and thereby freed up funds that Hamas could use for terrorist activities during the time period when David Boim was killed. These examples do not exhaust the possibilities.
What about the Boim's case against the Holy Land Foundation, the most famous of the defendants? Here is what the Seventh Circuit wrote:
Proof that HLF was funding Hamas's terrorist activities at the time of David Boim's murder, and that another defendant was in turn funneling donations to HLF with the knowledge and intent that those funds be used to support Hamas's terrorism, might support an inference that the actions of both HLF and that defendant were causes of the murder. Alternatively, if the plaintiffs were able to show that by providing funding to Hamas's other activities, including the hospitals, schools, and other charitable missions that it sponsors, a donor frees up Hamas resources for, or otherwise makes possible, Hamas' terrorist activities, then proof that the defendants provided support to Hamas ostensibly for its humanitarian activities, but with the knowledge and intent that Hamas be able to conduct terrorism also, might support the inference that the defendants were a cause of terrorist activity of the kind that resulted in David Boim's death.Immediately after the Boim ruling was announced, the Council on American Islamic Relations issued a statement, saying: "The defendants in this case have endured a seven-year legal battle in which their reputations have been smeared and their assets confiscated. While the destruction of American Muslim groups who have committed no wrong-doing is irreparable, today's decision, in which the rules of law were finally applied, helps restore the American people's trust in the system."
Is there any chance that the Seventh Circuit thinks that Holy Land Foundation has committed no wrong-doing? Consider this excerpt from the same opinion CAIR celebrates:
The ample record evidence (particularly taking into account the classified information presented to the court in camera) establishing HLF's role in the funding of Hamas and of its terrorist activities is incontrovertible. While not in accordance with proper procedures, HLF has had every opportunity to come forward with some showing that the evidence is false or even that its ties to Hamas had been severed. HLF's presentations at the administrative stage [of the terrorist designation process] did not reach this goal, even when HLF was given an additional thirty-one days to respond to its redesignation and to the new evidence in April of 2002. Even following the district court's judgment, while HLF attempted to supplement the record on appeal, the supplementary material could not have defeated the proposition established by the record evidence that Holy Land was a funder of the terrorist organization Hamas.
I encourage CAIR to read the opinion. What seems to be at issue in Boim is the relatively pro forma requirement that the plaintiffs present their proof and the trial judge make the express finding that no genuine issue exists about actual causation, through the mechanism suggested by the Seventh Circuit. In fact, the dissenting judge's main disagreement with the panel's decision is his belief that the trial judge has already done this. In other words, there does not seem to be much disagreement about what is required, nor that the proof exists.
For example, in describing the intent requirement, the opinion contains this statement, which is so non-controversial as to amount to a mere truism: "[W]e did reject the proposition that merely giving money to an organization engaged in terrorism, without more, would constitute an act of international terrorism sufficient to render the donor liable under section 2333."
Of course. In fact, the desire to clarify that American criminal terrorist financing statutes - upon which the Boim tort case is based - are not strict liability offenses is the reason the Department of Justice proposed statutory amendments to include a more specific definition of "knowingly." Congress enacted these amendments in December 2004. Not only have prosecutors been living with this standard, but it was our idea. This intent standard was the burden undertaken by the prosecutors in two recent Hamas-related criminal prosecutions, and should present no problem for the Boim lawyers, especially since they enjoy a lesser standard of proof that "beyond a reasonable doubt."
So this case might not be bound for the Supreme Court. I recommend that these Islamic organizations not yet count their eggs, and that their partisans keep their non-alcoholic champagne on ice while awaiting the next step in the litigation.