Boim v. Quranic Literacy Institute & Holy Land Foundation

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 01-1969 & 01-1970
JOYCE BOIM and STANLEY BOIM,
Individually and as Administrator of the
ESTATE OF DAVID BOIM,
Plaintiffs-Appellees,
v.
QURANIC LITERACY INSTITUTE
and HOLY LAND FOUNDATION FOR
RELIEF AND DEVELOPMENT,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 2905--George W. Lindberg, Judge.
ARGUED SEPTEMBER 25, 2001--DECIDED JUNE 5, 2002
Before ROVNER, DIANE P. WOOD, and EVANS,
Circuit Judges.
ROVNER, Circuit Judge. In this case of
first impression, the parents of a young
United States citizen murdered in Israel
by Hamas terrorists have sued several
individuals and organizations for the
loss of their son. Two of the
organizational defendants moved to
dismiss the complaint, and the district
court denied the motion. In this
interlocutory appeal, we are asked to
consider the viability of a claim brought
under the never-tested 18 U.S.C. sec.
2333, which allows U.S. nationals who
have been injured "by reason of an act of
international terrorism" to sue therefor
and recover treble damages. We affirm the
district court’s denial of the
defendants’ motion to dismiss.
I.
We derive the facts from the allegations
of the complaint. At this stage of the
proceedings, we must accept these
allegations as true, extending to the
plaintiffs the benefit of every
reasonable inference that may be drawn
from the complaint. Leatherman v. Tarrant
County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 164
(1993); Slaney v. The International
Amateur Athletic Federation, 244 F.3d
580, 597 (7th Cir. 2001), cert. denied,
122 S. Ct. 69 (2001); Camp v. Gregory, 67
F.3d 1286, 1290 (7th Cir. 1995), cert.
denied, 517 U.S. 1244 (1996). We may
affirm the dismissal of that complaint
only if it appears beyond doubt that the
plaintiffs can prove no set of facts in
support of their claim that would entitle
them to relief. Slaney, 244 F.3d at 597.
David Boim was the son of Joyce and
Stanley Boim, who are United States
citizens. David held dual citizenship in
the United States and Israel. In 1996,
the Boims were living in Israel, where
seventeen-year-old David was studying at
a yeshiva. On May 13, 1996, David was
murdered as he waited with other students
at a bus stop near Beit El in the West
Bank. He was struck by bullets fired from
a passing car, and was pronounced dead
within an hour of the shooting. His two
attackers were later identified as Amjad
Hinawi and Khalil Tawfiq Al-Sharif. The
Palestinian Authority apprehended Hinawi
and Al-Sharif, and temporarily imprisoned
them in early 1997. They were released
shortly thereafter, apparently pending
trial. Al-Sharif subsequently killed
himself and five civilians and injured
192 other people in a suicide bombing in
Jerusalem on September 4, 1997. Two other
suicide bombers joined him in this
action. Hinawi, who confessed to
participating in the shooting of David
Boim, was eventually tried for David’s
murder by a Palestinian Authority court
and was sentenced to ten years’
imprisonment on February 17, 1998.
Both Hinawi and Al-Sharif were known
members of the military wing of Hamas.
The Boims describe Hamas as an extremist,
Palestinian militant organization that
seeks to establish a fundamentalist
Palestinian state. The group is divided
into two branches, one political and one
military. The military branch receives
orders and material support from the
political branch. Hamas seeks to advance
its political objectives through acts of
terrorism and works to undermine the
Middle East peace process through violent
attacks on civilians. Hamas has a global
presence, and terrorist operatives in
Gaza and the West Bank receive their
instructions, funds, weapons and
practical support for their missions from
Hamas organizers throughout the world.
The Boims believe that Hamas has command
and control centers in the United States,
Britain and several Western European
countries. The leaders of these control
centers coordinate fund-raising efforts
from sympathetic parties in these various
countries and then launder and channel
the money to Hamas operatives in Gaza and
the West Bank. They also arrange for the
purchase of weapons and for the
recruitment and training of military
personnel. They work with local
commanders in the West Bank and Gaza to
plan terrorist attacks. Hamas was
designated a terrorist organization by
President William Jefferson Clinton in
1995 by Executive Order./1 In 1997,
Hamas was desig-nated a foreign terrorist
organization pursuant to 8 U.S.C. sec.
1189./2
The Boims allege that Hamas’ military
wing depends on foreign contributions,
with approximately one-third of its
multi-million dollar annual budget coming
from fund-raising in North America and
Western Europe. The Boims believe that
the Quranic Literacy Institute ("QLI")
and the Holy Land Foundation for Relief
and Development ("HLF"), along with other
defendants not involved in this appeal,
are the main fronts for Hamas in the
United States. They allege that these
organizations’ allegedly humanitarian
functions mask their core mission of
raising and funneling money and other
resources to Hamas operatives in support
of terrorist activities.
QLI is an Illinois not-for-profit
corporation that purports to translate
and publish sacred Islamic texts, but the
Boims believe it is also engaged in
raising and laundering money for Hamas.
QLI also employed another defendant,
Mohammed Abdul Hamid Khalil Salah,
nominally as a computer analyst. The FBI
has seized $1.4 million in cash and prop
erty from Salah, who is the admitted
United States based leader of the
military branch of Hamas. He has been
prosecuted for channeling money to Hamas
and for recruiting, organizing and
training terrorist operatives in Israel.
Salah is named on a list of Specially
Designated Terrorists compiled by the
United States Treasury Department’s
Office of Foreign Assets Control./3
HLF is also a not-for-profit
corporation, whose ostensible mission is
to fund humanitarian relief and
development efforts. HLF’s director has
acknowledged providing money to Hamas,
and the Boims allege that, although HLF
purports to have a charitable purpose,
its true function is to raise and channel
money to Hamas for terrorist activities.
The U.S. base of HLF’s operations is in
Texas. HLF also has offices in Jerusalem
and in Illinois. HLF, QLI and the other
organizational defendants are linked by
interlocking directorates and by ties to
Salah and Mousa Mohammed Abu Marzook,
another individual defendant (not
involved in this appeal) who has a
leadership role in the military branch of
Hamas./4
According to the Boims, money flows from
American contributors to Hamas in a
three-step process: first, the front
organizations solicit contributions;
second, the leaders arrange for the money
to be laundered and wired overseas; and
third, Hamas operatives in Gaza and the
West Bank use the money to finance
terrorist activities. Because it is
illegal to provide financial support to
recognized terrorist groups, the money
flows through a series of complicated
transactions, changing hands a number of
times, and being commingled with funds
from the front organizations’ legitimate
charitable and business dealings. The
funds are laundered in a variety of ways,
including through real estate deals and
through Swiss bank accounts. The Boims
allege that money raised by HLF and QLI
was transferred to Hamas terrorists using
these various methods in order to finance
terrorist activities. Hamas used the
money raised in this way to purchase
weapons to carry out terrorist attacks,
including the attack on David Boim. Hamas
regularly drew money from a pool of
laundered funds in order to finance
training, weapons purchases, lodging,
false identification, communications
equipment, lethal substances, explosives,
personnel, transportation and other
material support for terrorist
operations. The Boims believe that
expenditures from this pool of funds paid
for the vehicle, machine guns and
ammunition used to kill David Boim, and
also paid for the training of Hinawi, Al-
Sharif and other Hamas operatives
involved in the attack on David Boim. The
funds were also used to provide a stipend
for Al-Sharif’s family, as it is a common
practice to pay the families of suicide
bombers in order to encourage others to
volunteer for these activities.
The Boims bring their suit against HLF,
QLI and other organizational and
individual defendants pursuant to 18
U.S.C. sec. 2333. They charge that all of
the defendants are civilly liable for
David’s murder. They name Hinawi and Al-
Sharif as the persons who actually killed
David, but allege that the other
defendants aided, abetted and financed
Hinawi and Al-Sharif. They assert that
the organizational defendants provided
material support or resources to Hamas as
those terms are defined in 18 U.S.C.
secs. 2339A and 2339B. The Boims seek
compensation for the extreme physical
pain David suffered before his death, and
for the cost of his funeral and the loss
of accretion to his estate due to his
death at age seventeen. They also seek
damages for their own extreme mental
anguish and loss of the society of their
son. They ask for $100,000,000
compensatory damages, $100,000,000
punitive damages, plus costs and
attorney’s fees, and request the trebling
of damages pursuant to the statute.
In the district court, QLI and HLF moved
to dismiss the complaint for failure to
state a claim upon which relief may be
granted. In particular, the defendants
argued that section 2333 does not support
a cause of action for aiding and abetting
acts of international terrorism, and that
the suit is foreclosed by the Supreme
Court’s ruling in Central Bank of Denver,
N.A. v. First Interstate Bank of Denver,
N.A., 511 U.S. 164, 114 S. Ct. 1439
(1994). Because the defendants believed
that aiding and abetting was the sole
basis for the Boims’ cause of action,
they maintained that the complaint should
be dismissed. The Boims argued to the
district court that their section 2333
complaint could be sustained under any
one of three different theories of
liability. First, they maintained that
providing material support to a terrorist
organization was itself an act of
international terrorism as defined in
section 2331. Second, they argued that
the defendants could be held civilly
liable under section 2333 because they
violated sections 2339A and 2339B, the
criminal statutes prohibiting the
provision of material support to
terrorists./5 Third, they contended that
the defendants could be held liable under
section 2333 on an aiding and abetting
theory, and that the Supreme Court’s
holding in Central Bank, which addressed
civil liability for aiding and abetting
in the context of securities fraud
claims, was distinguishable.
The district court denied the motion to
dismiss. Boim v. Quranic Literacy
Institute, 127 F. Supp. 2d 1002, 1021
(N.D. Ill. 2001). Addressing the Boims’
first theory, the court found that
funding, without more, does not "involve
violent acts or acts dangerous to human
life." The court began with the statutory
language, which sweepingly defines acts
of international terrorism to include
"activities involving violent acts or
acts dangerous to human life," and found
that this phrase was so broad that it
provided little guidance concerning where
to draw limits on the conduct Congress
sought to curb. 127 F. Supp. 2d at 1013-
14. Instead, "[c]ontributions to a
foreign organization . . . without a
further allegation of participation by
the contributor, appear too far removed
to constitute direct acts of
international terrorism." Id. The
district court concluded that Congress
meant to reach beyond the persons
directly involved in the violent act, but
that liability should be limited to
persons or organizations that knew about
the violent act and participated in the
preparation of the plan to commit the
violent act. 127 F. Supp. 2d at 1014-15.
Thus, as a matter of statutory
interpretation, the Boims’ allegations of
funding terrorist organizations, without
more direct dealing with the group, did
not constitute activity involving violent
acts or acts dangerous to human life. 127
F. Supp. 2d at 1015. Relying on a Fourth
Circuit case, the court noted that where
funding a terrorist group was the main
allegation, the plaintiffs must also be
able to show that the defendants
providing the funds knew about the
violent act and participated in the
preparation of the plan to commit the
violent act. See United States v. Wells,
163 F.3d 889 (4th Cir. 1998), cert.
denied, 528 U.S. 841 (1999). Because
Salah was alleged to have participated in
recruiting and training terrorists as
well as channeling money to Hamas for
terrorist activities, the court found
that the claim against him could stand.
127 F. Supp. 2d at 1015. The court found
the allegations of funding alone against
the organizational defendants inadequate
on a straight reading of the statute
because, although the Boims alleged that
HLF and QLI knew about Hamas’ plans for
terrorist activities, they did not allege
that these groups participated in the
preparation of the planning for the
violent acts. Id.
The court then considered whether the
action could be sustained under the
Boims’ second theory, that violations of
18 U.S.C. secs. 2339A and 2339B
sufficed to create civil liability under
section 2333. Sections 2339A and 2339B
created criminal liability for persons
providing material support to terrorists.
The court agreed that conduct prohibited
by sections 2339A and 2339B constituted
"international terrorism" as that term
was defined in section 2333. 127 F. Supp.
2d at 1016. The court noted that sections
2339A and 2339B require that support
provided to terrorists be both knowing
and material, but that civil liability
for violations of sections 2339A or 2339B
was limited to the period of time after
sections 2339A and 2339B became law (1994
for section 2339A and 1996 for section
2339B). 127 F. Supp. 2d at 1016-17.
The court also addressed the Boims’
closely related theory that Congress
clarified the meaning of "acts of
international terrorism" when it passed
sections 2339A and 2339B. According to
the district court, these criminal
provisions demonstrated Congress’ intent
to include the provision of material
support to terrorists in its definition
of conduct involving violent acts under
section 2331. If Congress imposed
criminal liability for the provision of
material support to terrorists, the
district court reasoned, it surely meant
for civil liability to reach at least
that far. The court found further support
for the proposition that Congress viewed
the provision of material support to
terrorists as an act of international
terrorism in the repeal of jurisdictional
immunity of a foreign state that has been
designated a state sponsor of terrorism
when the state is sued for personal
injury or death caused by the state’s
provision of material support or
resources to terrorists as defined in
section 2339A. See 28 U.S.C. sec.
1605(a)(7). "Considering Congress has
permitted foreign states that have been
designated state-sponsors of terrorism to
be sued in United States courts for
violating sec. 2339A, it is hard to argue
that Congress did not intend to include
such violations in its definition of
’terrorism’ under the statutory scheme."
127 F. Supp. 2d at 1016.
Because section 2339A was enacted in
1994 and section 2339B was enacted in
1996, the court found that the plaintiffs
would have to rely on their third theory
of liability, aiding and abetting in
order to reach conduct that occurred
before 1994. 127 F. Supp. 2d at 1017. The
court rejected the defendants’ contention
that the Supreme Court generally
precluded aiding and abetting liability
in federal civil causes of action in the
Central Bank decision. Id. Rather, the
district court found that aiding and
abetting liability was available when a
statute provided for it. Section 2333
relies on section 2331(1) for its
definition of "international terrorism,"
and the court found that any action that
falls under the definition of section
2331(1) may be the basis for a civil
action under section 2333. Noting that
aiding and abetting an act of
international terrorism is itself a
criminal violation, the court concluded
that aiding and abetting terrorism is an
activity that involves violent acts or
acts dangerous to human life. The court
sustained the Boims’ cause of action on
the theory that they had sufficiently
alleged that the defendants aided and
abetted international terrorism. 127 F.
Supp. 2d at 1017-18. The court relied on
the liberal standards of pleading under
Federal Rule of Civil Procedure 8 to find
that the Boims had alleged their claim
sufficiently, reasoning that the
complaint provided the defendants with
adequate notice of the charges against
them. 127 F. Supp. 2d at 1018.
The district court also rejected the
defendants’ claim that the Boims had
inadequately alleged causation. HLF and
QLI argued that the Boims had shown no
connection between the defendants’
provision of money to Hamas and the
murder of David Boim. The defendants
characterized the Boims’ complaint as
alleging funding only through 1993, and
maintained the funding was too remote in
time to have proximately caused David’s
murder in 1996. The court first noted
that the Boims alleged the defendants’
funding extended beyond 1993, contrary to
the defendants’ characterization. The
court also found that Congress indicated
by its passage of sections 2339A and
2339B its belief that funding terrorism
causes the harm of the terrorists’ subse
quent actions. 127 F. Supp. 2d at 1019.
According to the court, sections 2339A
and 2339B required that the aid to the
terrorists be "material," a term that
provides the causal link between the
provision of funds and the injury from
the terrorist action. The court found the
complaint sufficient and stated that the
plaintiffs would have to prove the
funding at issue here was material to
David Boim’s murder. 127 F. Supp. 2d at
1019-20.
Finally, the court rejected the
defendants’ First Amendment challenge,
finding that the complaint was not
seeking to impose liability for mere
political association or belief but
rather for knowing and intentional
support of the illegal aims of the
defendant organizations. 127 F. Supp. 2d
at 1020-21. Because the Boims are
required to prove that HLF and QLI
intended to further Hamas’ illegal
activities, either by aiding and abetting
the terrorist action or by violating
sections 2339A or 2339B, the district
court found that the claim survived First
Amendment scrutiny. Id. HLF and QLI
appeal.
II.
The district court granted HLF and QLI’s
motion for a certificate of
appealability, and we subsequently
granted them leave to file an
interlocutory appeal. See 28 U.S.C. sec.
1292(b). Interlocutory appeal is
appropriate when (1) the appeal presents
a question of law; (2) it is controlling;
(3) it is contestable; (4) its resolution
will expedite the resolution of the
litigation, and (5) the petition to
appeal is filed in the district court
within a reasonable amount of time after
entry of the order sought to be appealed.
Ahrenholz v. Board of Trustees of the
University of Illinois, 219 F.3d 674, 675
(7th Cir. 2000). We have interpreted
"question of law" to refer to a question
regarding the meaning of a statutory or
constitutional provision, regulation or
common law doctrine. Id., 219 F.3d at
676. In this case, the district court
correctly certified three issues for
appeal:
(1) Does funding, simpliciter, of an
international terrorist organization
constitute an act of terrorism under 18
U.S.C. sec. 2331?
(2) Does 18 U.S.C. sec. 2333 incorporate
the definitions of international
terrorism found in 18 U.S.C. secs.
2339A and 2339B?
(3) Does a civil cause of action lie
under 18 U.S.C. secs. 2331 and 2333
for aiding and abetting international
terrorism?
See Boim v. Quranic Literacy Institute,
et al., Case No. 00 C 2905, Order (N.D.
Ill. February 22, 2001). The
interpretation of sections 2331 and 2333
presents questions of law which will
control the outcome of this case. As
these are questions of first impression,
the application of these statutes to the
facts alleged here is certainly
contestable, and the resolution of these
issues will facilitate the conclusion of
the litigation. The defendants filed
their motions for certificates of
appealability in the district court
within a reasonable amount of time after
entry of the district court’s order
denying their motion to dismiss (the
district court’s order was docketed
January 10, 2001, QLI filed its motion on
February 14, 2001 and HLF filed its
motion on February 15, 2001). A panel of
this Court granted the defendants’
subsequent petitions for interlocutory
appeal on April 6, 2001, and we now
consider the issues certified by the
district court.
We review de novo a district court’s
ruling on a 12(b)(6) motion to dismiss a
complaint for failure to state a claim on
which relief may be granted. Slaney, 244
F.3d at 597. At this stage of the
proceedings, we accept all factual
allegations in the complaint and draw all
reasonable inferences from those facts in
favor of the Boims, the plaintiffs here.
Id. We examine the complaint as a whole,
and we will allow the case to proceed
unless it appears beyond doubt that the
Boims can prove no set of facts in
support of their claim which would
entitle them to relief. Id.; Pokuta v.
Trans World Airlines, Inc., 191 F.3d 834,
839 (7th Cir. 1999). Federal Rule 8(a)(2)
requires only that a complaint include a
"short and plain statement of the claim
showing that the pleader is entitled to
relief." Fed. R. Civ. P. 8(a)(2);
Leatherman, 507 U.S. at 168. The Boims
thus need not set out in detail all of
the facts upon which they base their
claim. Rule 8(a) requires only that the
complaint give the defendants fair notice
of what their claim is and the grounds
upon which it rests. Leatherman, 507 U.S.
at 168. With these standards in mind, we
turn to the statutes at issue here.
The Boims seek to recover against HLF
and QLI pursuant to 18 U.S.C. sec. 2333,
which provides, in relevant part:
Any national of the United States injured
in his or her person, property, or
business by reason of an act of
international terrorism, or his or her
estate, survivors, or heirs, may sue
therefor in any appropriate district
court of the United States and shall
recover threefold the damages he or she
sustains and the cost of the suit,
including attorney’s fees.
18 U.S.C. sec. 2333(a). "International
terrorism," in turn, is a defined term:
[T]he term "international terrorism"
means activities that--
(A) involve violent acts or acts
dangerous to human life that are a
violation of the criminal laws of the
United States or of any State, or that
would be a criminal violation if
committed within the jurisdiction of the
United States or of any State;
(B) appear to be intended--
(i) to intimidate or coerce a civilian
population;
(ii) to influence the policy of a
government by intimidation or coercion;
or
(iii) to affect the conduct of a
government by assassination or
kidnapping; and
(C) occur primarily outside the
territorial jurisdiction of the United
States, or transcend national boundaries
in terms of the means by which they are
accomplished, the persons they appear
intended to intimidate or coerce, or the
locale in which their perpetrators
operate or seek asylum.
18 U.S.C. sec. 2331(1). These provisions
became law in 1992./6 We turn now to
the Boims’ three theories of liability
under section 2333: (1) that funding
Hamas, without more, is an act of
international terrorism because it is
conduct that involves violent acts or
acts dangerous to human life; (2) that
funding Hamas constitutes the provision
of material support or resources to a
terrorist organization in violation of
the criminal provisions set forth in
sections 2339A and 2339B, and that
violations of these criminal provisions
give rise to civil liability under
section 2333; and (3) that aiding and
abetting an act of terrorism gives rise
to civil liability under section
2333./7
A.
The plaintiffs’ first theory is that the
simple provision of funds to Hamas by QLI
and HLF constitutes an act of
international terrorism because it
"involve[s] violent acts or acts
dangerous to human life." The Boims liken
payments to Hamas to murder for hire: the
person who pays for the murder does not
himself commit a violent act, but the
payment "involves" violent acts in the
sense that it brings about the violent
act and provides an incentive for someone
else to commit it. The Boims urge us to
adopt a very broad definition of
"involves" that would include any
activity that touches on and supports a
violent act. They argue that David’s
murder was indisputably a violent act,
and we have no quarrel with that premise.
But they further argue that the provision
of money or in-kind services to persons
outside the country who set up the
infrastructure used to recruit and train
David’s murderers, buy their weapons, and
compensate their families also "involves"
violent acts. The defendants, in turn,
urge us to read the statute to hold
liable only those who actually commit a
violent act.
No court has yet considered the meaning
or scope of sections 2331 and 2333, and
so we write upon a tabula rasa. The
starting point in all statutory analysis
is the plain language of the statute
itself. United States v. Wagner, 29 F.3d
264, 266 (7th Cir. 1994). We look to the
language in order to determine what
Congress intended, and we also look to
the statute’s structure, subject matter,
context and history for this same
purpose. Almendarez-Torres v. United
States, 523 U.S. 224, 228 (1998) ("We
therefore look to the statute before us
and ask what Congress intended. . . . In
answering this question, we look to the
statute’s language, structure, subject
matter, context, and history--factors
that typically help courts determine a
statute’s objectives and thereby
illuminate its text."). The controversy
here centers on the definition of
international terrorism, and in
particular on the definition of the word
"involve," which is susceptible to many
meanings. The statutory definition of
international terrorism in section
2331(1) is drawn verbatim from the
Foreign Intelligence Surveillance Act, 50
U.S.C. sec. 1801(c) ("FISA"). No court
has yet expounded on the meaning or scope
of "international terrorism" as it is
used in FISA either, so we are not aided
by that origin./8 A dictionary
definition of "involve" demonstrates the
many levels of participation that could
constitute involvement. To involve is: to
enfold or envelop so as to encumber; to
engage as a participant; to oblige to
take part; to occupy (as oneself)
absorbingly; to commit emotionally; to
relate closely; to have within or as part
of itself; to require as a necessary
accompaniment; to have an effect on.
Webster’s Ninth New Collegiate Dictionary
(1983). Because of these many
possibilities, we agree with the district
court that we must look to the structure,
context and legislative history of the
statute to determine what Congress
intended.
The government, in its very helpful
amicus curiae brief, delineates some of
the legislative history of sections 2331
and 2333. That history, in combination
with the language of the statute itself,
evidences an intent by Congress to codify
general common law tort principles and to
extend civil liability for acts of
international terrorism to the full
reaches of traditional tort law. See 137
Cong. Rec. S4511-04 (April 16, 1991)
("The [antiterrorism act] accords victims
of terrorism the remedies of American
tort law, including treble damages and
attorney’s fees."); Antiterrorism Act of
1990, Hearing Before the Subcommittee on
Courts and Administrative Practice of
Committee on the Judiciary, United States
Senate, 101st Congress, Second Session,
July 25, 1990 (hereafter "Senate
Hearing"), Testimony of Joseph Morris, at
136 ("[T]he bill as drafted is powerfully
broad, and its intention . . . is to . .
. bring [in] all of the substantive law
of the American tort law system."). In
particular, the statute itself contains
all of the elements of a traditional
tort: breach of a duty (i.e., committing
an act of international terrorism);
injury to the person, property or
business of another; and causation
(injured "by reason of"). Although the
statute defines the class of plaintiffs
who may sue, it does not limit the class
of defendants, and we must therefore look
to tort law and the legislative history
to determine who may be held liable for
injuries covered by the statute.
The legislative record is replete with
references to the then-recent decision in
Klinghoffer v. Palestinian Liberation
Organization, 739 F. Supp. 854 (S.D.N.Y.
1990), vacated, 937 F.2d 44 (2d Cir.
1991). See Senate Hearing at 1, 12, 17,
79, 83, 122, 133; H.R. Rep. 102-1040, at
5 (1992); 137 Cong. Rec. S4511-04 (April
16, 1991); 136 Cong. Rec. S4568-01
(1990)./9 Leon Klinghoffer was a U.S.
citizen who was murdered in a terrorist
attack on a cruise ship in the Mediterra
nean Sea. The district court found that
his survivors’ claims were cognizable in
federal court under federal admiralty
jurisdiction and the Death on the High
Seas Act because the tort occurred in
navigable waters. 739 F. Supp. at 858-59.
The repeated favorable references to
Klinghoffer indicate a desire on the part
of Congress to extend this liability to
land-based terrorism that occurred in a
foreign country. See Senate Hearing at
12, Testimony of Alan Kreczko, Deputy
Legal Advisor, Department of State ("This
bill . . . expands the Klinghoffer
opinion."); H.R. Rep. 102-1040, at 5
(1992) ("Only by virtue of the fact that
the [Klinghoffer] attack violated certain
Admiralty laws and the organization
involved--the Palestinian Liberation
Organization--had assets and carried on
activities in New York, was the court
able to establish jurisdiction over the
case. A similar attack occurring on an
airplane or in some other locale might
not have been subject to civil action in
the U.S. In order to facilitate civil
actions against such terrorists the
Committee [on the Judiciary] recommends
[this bill]."); 137 Cong. Rec. S4511-04
(April 16, 1991), Statement of Senator
Grassley (section 2333 would "codify [the
Klinghoffer] ruling and makes the right
of American victims definitive"); 136
Cong. Rec. S4568-01 (1990).
The statute clearly is meant to reach
beyond those persons who themselves
commit the violent act that directly
causes the injury. The Senate report on
the bill notes that "[t]he substance of
[an action under section 2333] is not de
fined by the statute, because the fact
patterns giving rise to such suits will
be as varied and numerous as those found
in the law of torts. This bill opens the
courthouse door to victims of
international terrorism." S. Rep. 102-
342, at 45 (1992). This same report also
remarks that the legislation, with "its
provisions for compensatory damages,
treble damages, and the imposition of
liability at any point along the causal
chain of terrorism," would "interrupt, or
at least imperil, the flow of money." Id.
at 22 (emphasis added). See also
Statement of Senator Grassley, 136 Cong.
Rec. S4568-01 at S4593 ("With the
enactment of this legislation, we set an
example to the world of how the United
States legal system deals with
terrorists. If terrorists have assets
within our jurisdictional reach, American
citizens will have the power to seize
them."); Senate Hearing at 17, Statement
of Alan Kreczko ("[F]ew terrorist
organizations are likely to have cash
assets or property located in the United
States that could be attached and used to
fulfill a civil judgment. The existence
of such a cause of action, however, may
deter terrorist groups from maintaining
assets in the United States, from
benefitting from investments in the U.S.
and from soliciting funds within the
U.S."); Senate Hearing at 79, Statement
of Joseph Morris ("[A]nything that could
be done to deter money-raising in the
United States, money laundering in the
United States, the repose of assets in
the United States, and so on, would not
only help benefit victims, but would also
help deter terrorism."). All of this his
tory indicates an intent by Congress to
allow a plaintiff to recover from anyone
along the causal chain of terrorism.
But to the extent that the Boims urge a
reading of the statute that would lead to
liability for merely giving money to
Hamas, a group which then sponsored a
terrorist act in the manner the Boims
have alleged, we agree with the district
court, the defendants and the government
that those allegations would be
inadequate. To say that funding
simpliciter constitutes an act of
terrorism is to give the statute an
almost unlimited reach. Any act which
turns out to facilitate terrorism,
however remote that act may be from
actual violence and regardless of the
actor’s intent, could be construed to
"involve" terrorism. Without also
requiring the plaintiffs to show
knowledge of and intent to further the
payee’s violent criminal acts, such a
broad definition might also lead to
constitutional infirmities by punishing
mere association with groups that engage
in terrorism, as we shall discuss later
in addressing the First Amendment
concerns raised here.
Additionally, the statute itself
requires that in order to recover, a
plaintiff must be injured "by reason of"
an act of international terrorism. The
Supreme Court has interpreted identical
language to require a showing of
proximate cause. See Holmes v. Securities
Investor Protection Corp., 503 U.S. 258,
265-68 (1992) (interpreting "by reason of"
language in civil RICO provision to
require a showing that the defendant’s
conduct proximately caused the
plaintiff’s injury). Foreseeability is
the cornerstone of proximate cause, and
in tort law, a defendant will be held
liable only for those injuries that might
have reasonably been anticipated as a
natural consequence of the defendant’s
actions. Suzik v. Sea-Land Corp., 89 F.3d
345, 348 (7th Cir. 1996); Restatement
(2d) of Torts, secs. 440-447. In the
circumstances of this case, the Boims
cannot show that David Boim was injured
"by reason of" the defendants’ payments
to Hamas in the traditional tort sense of
causation unless they can also show that
murder was the reasonably foreseeable
result of making the donation. To hold
the defendants liable for donating money
without knowledge of the donee’s intended
criminal use of the funds would impose
strict liability. Nothing in the language
of the statute or its structure or
history supports that formulation. The
government, in its amicus brief,
maintains that funding may be enough to
establish liability if the plaintiff can
show that the provider of funds was
generally aware of the donee’s terrorist
activity, and if the provision of funds
substantially assisted the terrorist act
in question. See Halberstam v. Welch, 705
F.2d 472, 477 (D.C. Cir. 1983)
(describing the standards for joint
liability for tortious acts). We will
consider the government’s proposed
standard separately in our discussion of
aiding and abetting liability. For now we
note only that the complaint cannot be
sustained on the theory that the
defendants themselves committed an act of
international terrorism when they donated
unspecified amounts of money to Hamas,
neither knowing nor suspecting that Hamas
would in turn financially support the
persons who murdered David Boim. In the
very least, the plaintiffs must be able
to show that murder was a reasonably
foreseeable result of making a
donation./10 Thus, the Boims’ first
theory of liability under section 2333,
funding simpliciter of a terrorist
organization, is insufficient because it
sets too vague a standard, and because it
does not require a showing of proximate
cause.
B.
The Boims’ second theory of liability is
that the defendants’ violation of
sections 2339A and 2339B, the criminal
counterparts to section 2333, gives rise
to civil liability under section 2333.
The Boims further contend that sections
2339A and 2339B demonstrate Congress’
intent to include the provision of
material support to terrorist
organizations in the definition of
international terrorism for the purposes
of section 2333. The district court
concluded that Congress viewed violations
of sections 2339A and 2339B as
"activities involving violent acts or
acts dangerous to human life," and
therefore found that violations of
sections 2339A and 2339B gave rise to
civil liability under section 2333.
Because much of the conduct the Boims
alleged occurred before the passage of
sections 2339A and 2339B, however, the
district court ruled that the Boims would
have to rely primarily on their aiding
and abetting theory.
In 1994, Congress passed 18 U.S.C. sec.
2339A, which criminalizes the provision
of material support to terrorists:
Whoever, within the United States,
provides material support or resources or
conceals or disguises the nature,
location, source, or ownership of
material support or resources, knowing or
intending that they are to be used in
preparation for, or in carrying out, a
violation of section 32, 37, 81, 175,
351, 831, 842(m) or (n), 844(f) or (i),
930(c), 956, 1114, 1116, 1203, 1361,
1362, 1363, 1366, 1751, 1992, 2155, 2156,
2280, 2281, 2332, 2332a, 2332b, 2332c, or
2340A of this title or section 46502 of
title 49, or in preparation for, or in
carrying out, the concealment or an
escape from the commission of any such
violation, shall be fined under this
title, imprisoned not more than 10 years,
or both.
18 U.S.C. sec. 2339A(a)./11 "Material
support or resources" is a defined term:
In this section, the term "material
support or resources" means currency or
other financial securities, financial
services, lodging, training, safehouses,
false documentation or identification,
communications equipment, facilities,
weapons, lethal substances, explosives,
personnel, transportation, and other
physical assets, except medicine or
religious materials.
18 U.S.C. sec. 2339A(b). Two years later,
Congress extended criminal liability to
those providing material support to
foreign terrorist organizations:
Whoever, within the United States or
subject to the jurisdiction of the United
States, knowingly provides material
support or resources to a foreign
terrorist organization, or attempts or
conspires to do so, shall be fined under
this title or imprisoned not more than 10
years, or both.
18 U.S.C. sec. 2339B(a)(1). Section 2339B
adopts the definition of "material
support or resources" provided in section
2339A, and looks to 8 U.S.C. sec. 1189
for the definition of "terrorist
organization."/12
HLF and QLI, of course, protest the
district court’s conclusion that funding
may form the basis for a section 2333
civil action if the funding meets the
standards for criminal liability under
sections 2339A or 2339B. The defendants
also fault the district court for relying
on Congress’ repeal of the jurisdictional
immunity of a foreign state that has been
designated a state sponsor of terrorism
as evidence of Congressional intent to
allow a section 2333 civil action against
persons who violate sections 2339A and
2339B. See 28 U.S.C. sec. 1605(a)(7). HLF
and QLI present a number of puzzling
arguments against the Boims’ theory of
civil liability through violations of
these criminal statutes. According to HLF
and QLI, Congress neither expressly nor
impliedly amended the definition of
"international terrorism" when it enacted
section 2339A and 2339B because (1) these
sections set forth criminal offenses
separate from the statute making violent
acts of international terrorism illegal
under U.S. law;/13 (2) these sections
provide for relatively minor criminal
penalties compared to the penalties for
violent terrorist acts; (3) nothing in
the text of either sections 2339A or
2339B suggests that violations of these
provisions are acts of international
terrorism remediable under section 2333;
(4) the inclusion of sections 2339A and
2339B in the terrorism section of Title
18 alone does not mean that Congress
intended for violations of these
provisions to constitute acts of
international terrorism for the purposes
of section 2333; and (6) section 2339B
contains a separate remedial scheme that
does not include a private right of
action but instead provides for civil
enforcement by the United States. The
defendants also argue that even if
violations of sections 2339A and 2339B
create civil liability under section
2333, the Boims have insufficiently
alleged violations of those criminal
statutes.
Most of these arguments are tautologous.
For example, sections 2339A and 2339B
certainly do proscribe different conduct
than sections 2332, 2332a, 2332b and
2332d. These latter provisions address
the primary perpetrators of violent acts
of terrorism, while sections 2339A and
2339B apply to those persons who provide
material support to the primary
perpetrators of violent acts of
terrorism. When it passed sections 2339A
and 2339B, Congress undoubtedly intended
that the persons providing financial
support to terrorists should also be held
criminally liable for those violent acts.
Indeed, as we have already noted, the
Congressional record for section 2333
indicates an intention to cut off the
flow of money in support of terrorism
generally. S. Rep. 102-342 at 22 (1992).
Sections 2339A and 2339B further this
goal by imposing criminal liability for
financial support of terrorist activities
and organizations. The fact that Congress
imposed lesser criminal penalties for the
financial supporters indicates perhaps
that they found the financiers less
dangerous or less culpable than the
terrorists they finance, but it does not
in any way indicate that Congress meant
to limit civil liability to those who
personally committed acts of terrorism.
On the contrary, it would be
counterintuitive to conclude that
Congress imposed criminal liability in
sections 2339A and 2339B on those who
financed terrorism, but did not intend to
impose civil liability on those same
persons through section 2333.
Section 2339A prohibits the provision of
material support for an extensive list of
violent crimes associated with terrorism-
-assassination, kidnapping, arson,
destruction of aircraft--that make clear
what types of conduct Congress had in
mind when it defined "international
terrorism" in section 2331(1) as not just
the violent acts themselves, but also
"activities that involve violent acts or
acts dangerous to human life." There is
no textual, structural or logical
justification for construing the civil
liability imposed by section 2333 more
narrowly than the corresponding criminal
provisions. Because Congress intended to
impose criminal liability for funding
violent terrorism, we find that it also
intended through sections 2333 and
2331(1) to impose civil liability for
funding at least as broad a class of
violent terrorist acts. If the plaintiffs
could show that HLF and QLI violated
either section 2339A or section 2339B,
that conduct would certainly be
sufficient to meet the definition of "in
ternational terrorism" under sections
2333 and 2331. Such acts would give rise
to civil liability under section 2333 so
long as knowledge and intent are also
shown, as we shall discuss shortly in the
context of aiding and abetting.
We hasten to add that, although proof of
a criminal violation under sections 2339A
or 2339B might satisfy the definition of
international terrorism under section
2333, such proof is not necessary to
sustain a section 2333 claim. As we
discuss in the context of aiding and
abetting, we believe Congress intended
for civil liability for financing
terrorism to sweep more broadly than the
conduct described in sections 2339A and
2339B. We also note that the district
court seems to have inadvertently
redefined the term "material" in the
context of sections 2339A and 2339B as
meaning substantial or considerable. The
statute itself defines "material support
or resources" as "currency or other
financial securities, financial services,
lodging, training, safehouses, false
documentation or identification,
communications equipment, facilities,
weapons, lethal substances, explosives,
personnel, transportation, and other
physical assets, except medicine or
religious materials." 18 U.S.C. sec.
2339A(b). Thus, the term relates to the
type of aid provided rather than whether
it is substantial or considerable. For
civil liability, section 2333 requires
that the plaintiff be injured "by reason
of" the act of international terrorism.
Because we believe Congress intended to
import standard tort law into section
2333, causation may be demonstrated as it
would be in traditional tort law.
Congress has made clear, though, through
the criminal liability imposed in
sections 2339A and 2339B, that even small
donations made knowingly and
intentionally in support of terrorism may
meet the standard for civil liability in
section 2333. Congress’ goal of cutting
off funding for terrorism would be
seriously compromised if terrorist
organizations could avoid liability by
simply pooling together small donations
to fund a terrorist act.
We turn finally to 28 U.S.C. sec.
1605(a)(7). In relevant part, the statute
provides:
A foreign state shall not be immune from
the jurisdiction of courts of the United
States or of the States in any case . .
. in which money damages are sought
against a foreign state for personal
injury or death that was caused by an act
of torture , extrajudicial killing,
aircraft sabotage, hostage taking, or the
provision of material support or
resources (as defined in section 2339A of
title 18) for such an act if such act or
provision of material support is engaged
in by an official, employee, or agent of
such foreign state while acting within
the scope of his or her office,
employment, agency[.]
Contrary to the defendants’
characterization, the district court did
not rely solely on the passage of section
1605(a)(7) in finding that Congress
viewed the provision of material support
and resources as an act of international
terrorism. After finding support in both
the text and the structure of sections
2333 and 2331 for this proposition, the
court found further reasons in section
1605(a)(7). As the district court noted,
"Considering that Congress has permitted
foreign states that have been designated
state sponsors of terrorism to be sued in
United States courts for violating sec.
2339A, it is hard to argue that Congress
did not intend to include such violations
in its definition of ’terrorism’ under
the statutory scheme." Boim, 127 F. Supp.
2d at 1016. We take the district court to
mean that section 1605(a)(7) implies a
foreign state may be sued in the United
States for acts that would give rise to
criminal liability under section 2339A,
not that section 2339A itself has a civil
provision. The mechanism for suing a
foreign state for these acts that would
give rise to criminal liability under
section 2339A is section 2333. The
defendants complain that Congress did not
specifically mention section 2333 as the
device by which plaintiffs might sue
foreign governments for violations of
section 2339A, but they fail to point to
any other source of civil liability. We
agree that Congress made clear in section
1605(a)(7) its intent to characterize
violations of section 2339A as acts of
international terrorism under section
2333.
The district court believed there was a
timing problem for the Boims in making
their case under these criminal
provisions because much of the funding
conduct allegedly committed by HLF and
QLI occurred prior to the passage of
sections 2339A and 2339B. Indeed, Hamas
was not designated a terrorist
organization under section 1189 until
1997, after David’s murder. Certainly HLF
and QLI could not be held criminally
liable for conduct that occurred before
the statutes were enacted, but that
argument misses the point. We are using
sections 2339A and 2339B not as
independent sources of liability under
section 2333, but to amplify what
Congress meant by "international
terrorism." Sections 2339A and 2339B
merely lend further support to our
finding that Congress considered the
provision of material support to
terrorists an act of international
terrorism. This reading simply amplifies
the conclusion we have already reached by
examining the language and legislative
history of section 2333. Sections 2339A
and 2339B provide criminal liability for
the provision of material support, and
section 2333 provides civil liability.
The Boims may thus show that QLI and HLF
committed an act of international
terrorism subject to civil liability
under section 2333 by proving that QLI
and HLF provided material support to
terrorist organizations. No timing
problem arises because sections 2339A and
2339B merely elucidate conduct that was
already prohibited by section 2333.
C.
We turn next to the Boims’ theory that
HLF and QLI may be held civilly liable
under section 2333 for aiding and
abetting an act of international
terrorism. Under this theory, the Boims
urge us to find that aiding and abetting
a violent act is conduct that "involves"
a violent act as that word is used in
section 2331(1). HLF and QLI contend that
section 2333 does not provide for aiding
and abetting liability, and that the
Supreme Court in Central Bank held that
aiding and abetting liability is
available only when a statute expressly
provides for it. See Central Bank of
Denver N.A. v. First Interstate Bank of
Denver, N.A., 511 U.S. 164 (1994);
Alexander v. Sandoval, 532 U.S. 275, 121
S. Ct. 1511 (2001). The Boims counter
that neither Central Bank nor Sandoval
apply to malum in se torts such as the
murder alleged here. The Boims also
contend that section 2333 explicitly
extends liability to aiders and abettors
because it extends civil liability to
"activities that involve violent acts . .
. that are a violation of the criminal
laws of the United States." Because 18
U.S.C. sec. 2 criminalizes aiding and
abetting the commission of a felony, the
Boims maintain there is no doubt Congress
intended to include liability for aiding
and abetting in section 2333. The
government, in its amicus brief, adds
that the language and legislative history
of section 2333 indicate an intent by
Congress to import into section 2333
civil tort law principles as expressed in
the Restatement Second of Torts, and as
applied in the cases. Under that
jurisprudence, according to the
government, aiding and abetting liability
should be applied under section 2333, and
that result is in no way inconsistent
with Central Bank and Sandoval. Because
of Central Bank’s pivotal importance to
our analysis, we will begin by reviewing
the Court’s reasoning there.
In Central Bank, the Supreme Court held
that a private plaintiff may not maintain
an aiding and abetting suit under section
10(b) of the Securities Exchange Act of
1934. 511 U.S. at 177-78. As the Court
has interpreted it, section 10(b) imposes
private civil liability on those who
commit a manipulative or deceptive act in
connection with the purchase or sale of
securities. 511 U.S. at 167. Yet, that
section contains no express cause of
action giving private plaintiffs a right
to sue. Nonetheless, through judicial
interpretation of the securities laws, an
implied right of action was created
allowing private parties to sue for
damages for violations of section 10(b).
Prior to Central Bank, some lower courts
had interpreted the statute to create a
private right of action not only against
those who violate section 10(b), but also
against those who aid and abet a
violation of section 10(b); other courts
had found that there was no private right
of action for aiding and abetting
liability. The Court granted certiorari
to resolve the continuing confusion in
the circuit courts over the existence and
scope of an aiding and abetting action
under section 10(b). 511 U.S. at 170.
The securities laws contain a number of
provisions creating an extensive scheme
of civil liability. The 1933 and 1934
Acts contain express private rights of
action, and the courts have also found
private rights of actions to be implied
by the terms of sections 10(b) and 14(a)
of the 1934 Act. 511 U.S. at 171. The SEC
adopted Rule 10b-5 to further describe
the conduct prohibited, and it is under
this rule that plaintiffs often brought
their actions. The Court noted that
determining the elements of rule 10b-5
private action claims had posed
difficulty because Congress had not
expressly provided for a private 10(b)
action and thus had no occasion to offer
guidance about the elements of a private
liability scheme. 511 U.S. at 172. The
courts thus had to infer how the 1934
Congress would have addressed the issue
had the 10b-5 action been included as an
express provision of the 1934 Act. 511
U.S. at 173. Because adherence to the
statutory language is the starting point
of any case involving construction of a
statute, the Supreme Court refused to
allow 10b-5 liability for conduct not
prohibited by the text of section 10(b).
511 U.S. at 174. In view of the fact that
section 10(b) made no mention of aiding
and abetting liability, the Court found
that there could be no private right of
action for aiding and abetting a 10(b)
violation.
The Court rejected a claim that language
in the statute imposing liability on any
person who "directly or indirectly"
employs a deceptive practice meant that
Congress intended to cover aiding and
abetting:
The problem, of course, is that aiding
and abetting liability extends beyond
persons who engage, even indirectly, in a
proscribed activity; aiding and abetting
liability reaches persons who do not
engage in the proscribed activities at
all, but who give a degree of aid to
those who do.
511 U.S. at 175-76. Citing section 876(b)
of the Restatement (Second) of Torts, the
Court acknowledged that aiding and
abetting a wrongdoer ought to be
actionable in certain other
circumstances, but the issue here was
whether aiding and abetting was covered
by the statute. The Court stated that it
was inconsistent with settled methodology
in section 10(b) cases to extend
liability beyond the scope of conduct
prohibited by the statutory text. The
Court found that the statute prohibited
only the making of a material
misstatement (or omission) or the
commission of a manipulative act. Because
the statute did not proscribe giving aid
to a person who commits a manipulation or
deceptive act, the Court declined to
extend liability to aiders and abettors.
511 U.S. at 177-78.
The Court further noted that it could
reach the same result by examining the
express causes of action identified in
the 1933 and 1934 Acts as models for
implied rights of action under those same
sections. None of the express causes of
actions in the 1934 Act imposed liability
on aiders and abettors, and the Court
found it would be "anomalous to impute to
Congress an intention in effect to expand
the defendant class for 10b-5 actions
beyond the bounds delineated for
comparable express causes of action." 511
U.S. at 180. This analysis was bolstered
by the conclusion that an action against
aiders and abettors would allow liability
when at least one element critical for
recovery under rule 10b-5 is absent:
reliance. Id. An aiding and abetting
action would allow a defendant to be held
liable without the usual requisite
showing that the plaintiff relied on the
defendant’s statements or actions, in
contravention of the careful limits on
10b-5 recovery mandated by earlier cases.
Id.
The Court also examined the history of
aiding and abetting liability, noting
first that Congress enacted 18 U.S.C.
sec. 2, a general aiding and abetting
statute applicable to all federal crimes,
in 1909. The statute provides that
persons who provide knowing aid to those
committing federal crimes, with the
intent to facilitate the crime, are
themselves committing a crime. 511 U.S.
at 181. The Restatement (Second) of Torts
similarly provides for civil liability
for aiders and abettors by holding an
actor liable for harm resulting to a
third person from the tortious conduct of
another if the actor knows the other’s
conduct constitutes a breach of duty and
the actor gives substantial assistance or
encouragement to the other. Restatement
(Second) of Torts, sec. 876(b). But
Congress did not enact a general aiding
and abetting statue covering civil
actions, either for suits by the
government or suits by private parties.
Thus, when Congress enacts a statute
under which a person may sue and recover
damages from a private defendant for the
defendant’s violation of some statutory
norm, there is no general presumption
that the plaintiff may also sue aiders
and abettors.
Central Bank, 511 U.S. at 182.
Instead, the Court found, Congress had
taken a statute-by-statute approach to
civil aiding and abetting liability. In
sum, the Court found that there was no
reason to attach aiding and abetting
liability in all federal civil statutes,
that Congress had not expressed any
intent to extend aiding and abetting
liability in this particular statute, and
that none of the express causes of action
in the 1934 Act extended aiding and
abetting liability. Even considering the
history of aiding and abetting liability
in the criminal and the civil context,
the Court found no reason to extend that
liability to private causes of action in
the securities statutes. Indeed, Congress
had expressly provided for another type
of secondary liability in the 1934 Act--
"controlling person" liability--and thus
the absence of aiding and abetting
liability appeared to have been a
deliberate choice. 511 U.S. at 183-84.
The Central Bank analysis provides
guidance but is not determinative here
for a number of reasons. First, Central
Bank addressed extending aiding and
abetting liability to an implied right of
action, not an express right of action as
we have here in section 2333. Second,
Congress expressed an intent in the terms
and history of section 2333 to import
general tort law principles, and those
principles include aiding and abetting
liability. Third, Congress expressed an
intent in section 2333 to render civil
liability at least as extensive as
criminal liability in the context of the
terrorism cases, and criminal liability
attaches to aiders and abettors of
terrorism. See 18 U.S.C. sec. 2. Fourth,
failing to extend section 2333 liability
to aiders and abettors is contrary to
Congress’ stated purpose of cutting off
the flow of money to terrorists at every
point along the chain of causation.
Although we have found no support in the
cases for the Boims’ argument that
Central Bank does not apply to malum in
se torts, we also have found no support
for the defendants’ claim that Central
Bank eliminates all aiding and abetting
liability in federal civil cases except
when the words "aid and abet" appear in a
statute./14 The Court care-fully
crafted Central Bank’s holding to clarify
that aiding and abetting liability would
be appropriate in certain cases, albeit
not under 10(b). Central Bank, 511 U.S.
at 177. The first significant factor
distinguishing section 2333 from section
10(b) is that section 2333 provides for
an express civil right of action by
private parties whereas the courts have
created an implied right of action under
section 10(b). Thus, the courts were
already inferring an intent by Congress
to create a private civil cause of action
with section 10(b), and they would have
been stacking another inference on top of
that one in extending liability to aiders
and abettors in rule 10b-5 actions. The
Court was understandably reluctant to
pile inference upon inference in
determining Congressional intent. But no
such stacking is required in section
2333, which expressly creates a private
right of action for plaintiffs who are
injured by reason of an act of
international terrorism. Sandoval is
distinguishable for the very same reason;
it addressed an implied right of action
founded on a regulation promulgated under
Title VI. Here we have an express private
right of action, where Congress’ intent
is clear from the language and structure
of the statute itself as well as from the
legislative history. As we will discuss
below, although the words "aid and abet"
do not appear in the statute, Congress
purposely drafted the statute to extend
liability to all points along the causal
chain of terrorism. It is not much of a
leap to conclude that Congress intended
to extend section 2333 liability beyond
those persons directly perpetrating acts
of violence. Indeed, the statute itself
defines international terrorism so broad
ly--to include activities that "involve"
violent acts--that we must construe it
carefully to meet the
constitutionalstandards regarding
vagueness and First Amendment rights of
association.
The next distinguishing factor is that
the language and legislative history of
section 2333 evidence an intent to import
general tort law principles into the
statute, a factor glaringly absent from
section 10(b). See 137 Cong. Rec. S4511-
04 (April 16, 1991); Senate Hearing at
136. Nothing in section 10(b) reflects an
intent to incorporate general tort law
principles, and a careful review of that
statute demonstrates to the contrary that
Congress intended to limit liability in
certain instances. As the Supreme Court
noted, Congress imposed some forms of
secondary liability in section 10(b)
(such as controlling person liability),
but not others, manifesting a deliberate
choice to exclude aiding and abetting
liability. In contrast, the language of
section 2333 tracks the traditional
elements of tort law as expressed in the
Restatement, and the legislative history
expressly references tort principles in
setting out the perimeters of Congress’
intent.
Unlike section 10(b), Congress also
expressed an intent in section 2333 to
make civil liability at least as
extensive as criminal liability. The
statute defining "international
terrorism" includes activities that
"involve violent acts or acts dangerous
to human life that are a violation of the
criminal laws of the United States or of
any State, or that would be a criminal
violation if committed within the
jurisdiction of the United States or of
any State." 18 U.S.C. sec. 2331(1). This
language, embracing activities that
"involve" violent acts, taken at face
value would certainly cover aiding and
abetting violent acts. Remember, too, the
criminal laws include 18 U.S.C. sec. 2,
which creates liability for aiding and
abetting violations of any other criminal
provisions. By incorporating violations
of any criminal laws that involve violent
acts or acts dangerous to human life,
Congress was expressly including aiding
and abetting to the extent that aiding
and abetting "involves" violence. As we
discussed earlier, "involve" is a rather
broad word. If we were to interpret
"involve" literally, we would be
attributing almost unlimited liability to
any act that had some link to a terrorist
act. Congress could not have meant to
attach unlimited liability to even remote
acts; it must have meant something else.
As we have seen from the language and
legislative history of section 2333, that
something else is traditional tort and
criminal liability. Aiding and abetting,
which is surely subsumed in the
definition of acts that "involve" certain
criminal violations, is a well known and
well defined doctrine. See Damato v.
Hermanson, 153 F.3d 464, 472 n.10 (7th
Cir. 1998) (in the criminal context, the
aider and abettor knowingly assists the
principal in the attainment of the
illegal objective and therefore is
sanctioned as the principal); United
States v. Zafiro, 945 F.2d 881, 887 (7th
Cir. 1991), aff’d, 506 U.S. 534 (1993)
(the crime of aiding and abetting
requires knowledge of the illegal
activity that is being aided and abetted,
a desire to help that activity succeed,
and some act of helping). See also
Halberstam v. Welch, 705 F.2d 472, 477and
481-84 (D.C. Cir. 1983) (setting forth
the elements for civil liability for
aiding and abetting). That Congress did
not use the words "aid and abet" in the
statute is not determinative when it did
use words broad enough to include all
kinds of secondary liability. See Harris
Trust, 530 U.S. at 246 (holding that
ERISA reaches farther than the immediate
wrongdoer because the statute focuses not
on the class of possible defendants but
rather on redressing a particular act or
practice which violates the statute).
Indeed, limiting the term "involve" to
the familiar definitions of aiding and
abetting (or even conspiracy, for that
matter) provides the necessary
clarification that saves the statute from
vagueness. Central Bank is thus
distinguishable on this ground as well.
Finally, if we failed to impose
liability on aiders and abettors who
knowingly and intentionally funded acts
of terrorism, we would be thwarting
Congress’ clearly expressed intent to cut
off the flow of money to terrorists at
every point along the causal chain of
violence. S. Rep. 102-342, at 22 (by
imposing "liability at any point along
the causal chain of terrorism, it would
interrupt, or at least imperil, the flow
of money."). Unlike section 10(b) where
Congress’ intent could be met without
imposing liability on aiders and
abettors, Congress’ purpose here could
not be met unless liability attached
beyond the persons directly involved in
acts of violence. The statute would have
little effect if liability were limited
to the persons who pull the trigger or
plant the bomb because such persons are
unlikely to have assets, much less assets
in the United States, and would not be
deterred by the statute. See Central
Bank, 511 U.S. at 188 (policy
considerations may be used to interpret
the text and structure of a statute when
a literal reading would lead to a result
so bizarre that Congress could not have
intended it). Also, and perhaps more
importantly, there would not be a trigger
to pull or a bomb to blow up without the
resources to acquire such tools of
terrorism and to bankroll the persons who
actually commit the violence. Moreover,
the organizations, businesses and nations
that support and encourage terrorist acts
are likely to have reachable assets that
they wish to protect. The only way to
imperil the flow of money and discourage
the financing of terrorist acts is to
impose liability on those who knowingly
and intentionally supply the funds to the
persons who commit the violent acts. For
all of these distinguishing reasons, we
do not think Central Bank controls the
result here, but that aiding and abetting
liability is both appropriate and called
for by the language, structure and
legislative history of section 2333.
D.
The defendants raise two First Amendment
objections to this section 2333 action
against them. First, they argue that the
Boims seek to hold them liable for their
mere association with Hamas. Harking back
to a line of cases involving the
Communist party, HLF and QLI contend
that, when an organization has both legal
and illegal aims, a person may not be
punished for mere membership in or
association with that organization, but
may be held civilly liable only if he or
she possesses the specific intent to
further the organizations’ illegal
purposes. Second, they contend that, to
the extent the Boims’ claim is founded on
a violation of section 2339B, it cannot
withstand First Amendment scrutiny
because section 2339B fails to account
for the intent and the associational
rights of the contributors who donate
money for humanitarian purposes. The
National Coalition to Protect Political
Freedom and the Center for Constitutional
Rights have jointly filed an amicus brief
in support of the defendants’ First
Amendment arguments, and we will consider
their contentions as well.
1.
HLF and QLI begin their argument with
the well-established proposition that the
Constitution protects against the
imposition of liability based solely upon
association with a group. See NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 920
(1982) ("[c]ivil liability may not be
imposed merely because an individual
belonged to a group, some members of
which committed acts of violence.");
Healy v. James, 408 U.S. 169, 185-86
(1972) ("the Court has consistently
disapproved governmental action imposing
criminal sanctions or denying rights and
privileges solely because of a citizen’s
association with an unpopular
organization."); United States v. Robel,
389 U.S. 258, 265 (1967) (where a statute
establishes guilt by association alone,
the inhibiting effect on First Amendment
rights is clear); Scales v. United
States, 367 U.S. 203, 229 (1961) (a
blanket prohibition of association with a
group having both legal and illegal aims
presents a real danger that legitimate
political expression or association would
be impaired). We have no quarrel with
that general proposition or with its
corollary, that in order to impose
liability on an individual for
association with a group, it is necessary
to establish that the group possessed
unlawful goals and that the individual
held a specific intent to further those
illegal aims. Claiborne Hardware, 458
U.S. at 920-21; National Organization for
Women, Inc. v. Scheidler, 267 F.3d 687,
703 (7th Cir. 2001), cert. granted, 122
S. Ct. 1604 and 122 S. Ct. 1605 (2002).
HLF and QLI protest that the Boims have
not alleged their specific intent to
further the illegal activities of Hamas,
and that the claim does not, therefore,
survive First Amendment scrutiny. Rather,
HLF complains, the Boims have simply
alleged that HLF has admitted providing
funds to Hamas, that HLF functions as a
front organization for Hamas, that HLF
raises and channels funds to Hamas to
finance terrorist activities in Israel,
and that HLF solicits donations over the
internet. HLF protests that even if these
allegations suffice to show a present
intent to further terrorist acts, they do
not show that HLF had that intent prior
to David Boim’s murder. Rather, HLF
believes the Boims are lumping their
organization in with other groups that
may have had an intent to commit illegal
acts, and that the Boims are seeking to
hold them liable for their mere
association with these other
organizations. QLI similarly argues that
the Boims have not alleged a specific
intent on the part of QLI to further the
illegal goals of Hamas, and that they may
not be held liable for merely associating
with organizations that might have
intended to aid the illegal operations of
Hamas.
Amici also emphasize that individuals
may not be penalized for their
association with a political organization
that engages in both lawful and unlawful
ends, absent a showing of specific intent
to further the organization’s illegal
goals. Claiborne Hardware, 458 U.S. at
919-20. The arguments of the defendants
and amici beg the question, though,
because section 2333 does not seek to
impose liability for association alone
but rather for involvement in acts of
international terrorism. The defendants
nonetheless object that the definition of
acts of international terrorism is so
broad that they might be held liable for
involvement in terrorist activity when
all they intended was to supply money to
fund the legitimate, humanitarian mission
of Hamas or other organizations. To
resolve the tension that arises when a
group engages in both protected advocacy
and unprotected criminal acts, we look to
Claiborne Hardware and to earlier cases
that arose out of the McCarthy era, when
the government sought to impose liability
on persons for their association with the
Communist Party.
In Claiborne Hardware, a group of white
merchants and business owners sued the
National Association for the Advancement
of Colored People ("NAACP") for engaging
in a boycott of white-owned businesses.
The merchants alleged that, in enforcing
the boycott, some of the members of the
defendant NAACP had engaged in acts of
physical force and violence, and that the
NAACP should therefore be held liable for
the merchants’ losses. The Court first
held that speeches and nonviolent
picketing in support of the boycott were
activities normally entitled to
protection under the First Amendment. 458
U.S. at 907. The Court noted that the
right of association, the right to join
many voices together to strengthen a
message and make certain it is heard, is
an important constitutional guarantee.
458 U.S. at 908. That right "to associate
does not lose all constitutional
protection merely because some members of
the group may have participated in
conduct or advanced doctrine that is
itself not protected." 458 U.S. at 908.
At the same time, "[t]he First Amendment
does not protect violence." 458 U.S. at
916.
Certainly violence has no sanctuary in
the First Amendment, and the use of
weapons, gunpowder, and gasoline may not
constitutionally masquerade under the
guise of "advocacy."
Claiborne Hardware, 458 U.S. at 916
(quoting Samuels v. Mackell, 401 U.S. 66,
75 (1971) (Douglas, J., concurring)). The
Court concluded that no federal rule of
law restricts a state from imposing tort
liability for business losses caused by
violence or the threat of violence, but
that when such conduct occurs in the
context of constitutionally protected
activity, precision of regulation is
required. Claiborne Hardware, 458 U.S. at
916. When activity protected by the First
Amendment is present, damages are
restricted to the direct consequences of
the illegal violent conduct and may not
include the consequences resulting from
associated peaceful picketing or other
protected First Amendment activity. 458
U.S. at 918 (citing United Mine Workers
of America v. Gibbs, 383 U.S. 715, 729
(1966)). Citing Scales, Healy and Noto,
the Court summarized the rule to be
applied:
Civil liability may not be imposed merely
because an individual belonged to a
group, some members of which committed
acts of violence. For liability to be
imposed by reason of association alone,
it is necessary to establish that the
group itself possessed unlawful goals and
that the individual held a specific
intent to further those illegal aims.
Claiborne Hardware, 458 U.S. at 920.
We have already held that the Boims may
prevail on their claim by showing, among
other things, that the defendants aided
and abetted David’s murder. This requires
them to prove that the defendants knew of
Hamas’ illegal activities, that they
desired to help those activities succeed,
and they engaged in some act of helping
the illegal activities. See Zafiro, 945
F.2d at 887. If the Boims are able to
prove the defendants aided and abetted
terrorist acts, liability would not
offend the principles announced in
Claiborne Hardware. The Boims have
alleged that HLF and QLI supplied money
to Hamas to fund terrorist operations,
that they are "front" organizations with
ostensibly legitimate purposes which are
actually engaged in fund-raising and
money laundering in support of terrorist
activities. They have alleged that HLF
and QLI provided the money to purchase
the weapons and train the men who killed
David Boim. HLF and QLI, of course, deny
these allegations and argue that as a
factual matter, Hamas is primarily a
humanitarian organization, and that any
money supplied to Hamas by QLI and HLF
was intended to fund humanitarian
efforts, not terrorism. This is a classic
factual dispute, not suitable for
resolution on a motion to dismiss for
failure to state a claim. If the Boims
are able to prove their allegations, that
HLF and QLI provided legitimate-looking
fronts for raising money to support the
terrorist operation that resulted in
David Boim’s murder, their claim will not
run afoul of the First Amendment. The
Boims are not seeking to hold HLF and QLI
liable for their mere association with
Hamas, nor are they seeking to hold the
defendants liable for contributing money
for humanitarian efforts. Rather, they
are seeking to hold them liable for
aiding and abetting murder by supplying
the money to buy the weapons, train the
shooters, and compensate the families of
the murderers. That Hamas may also engage
in legitimate advocacy or humanitarian
efforts is irrelevant for First Amendment
purposes if HLF and QLI knew about Hamas’
illegal operations, and intended to help
Hamas accomplish those illegal goals when
they contributed money to the
organization. Claiborne Hardware, 458
U.S. at 932; Scales, 367 U.S. at 229;
Noto, 367 U.S. at 298; Healy, 408 U.S. at
186; Scheidler, 267 F.3d at 703.
Moreover, we believe the Boims’
allegations lend adequate support to
their claims against QLI and HLF. Rule
8(a) requires only a short and plain
statement of the claim showing that the
Boims are entitled to relief. The
defendants repeatedly confuse what must
be alleged with what must be proved. The
plaintiffs need not set out in detail all
of the facts upon which they base their
claim. They need only give QLI and HLF
fair notice of what their claim is and
the grounds upon which it rests.
Leatherman, 507 U.S. at 168. This they
have done.
They allege that QLI and HLF violated
section 2333 by aiding and abetting
Hinawi and Al-Sharif in committing the
murder of David Boim. An aiding and
abetting claim will require the Boims to
prove that QLI and HLF knew about Hamas’
illegal operations and provided aid to
Hamas with the intent to facilitate those
illegal activities. In support of the
claim that HLF and QLI aided and abetted
the terrorists who murdered David, the
Boims allege that HLF and QLI were
engaged in raising and laundering money
for Hamas; that HLF and QLI functioned as
fronts for Hamas in the United States;
that HLF raised and channeled funds to
Hamas to finance terrorist activities in
Israel; that David’s attackers were Hamas
terrorists; that Hamas’ central purpose
is to advance its political goals through
terrorism; that HLF and QLI’s purportedly
humanitarian functions masked their core
mission of raising and funneling money
and other resources to Hamas in support
of its terrorist campaigns; that HLF and
QLI comingled money destined for
terrorist causes with funds from their
legitimate charitable and business
dealings in order to avoid laws against
providing financial support to
terrorists; that money gathered in this
way was sent by the front organizations
(including HLF and QLI) from the United
States to Hamas to buy weapons and carry
out terrorist attacks, including the
murder of David Boim; and that money pro
vided by the front organizations to
finance terrorist activities was in fact
used for that purpose and in particular
was used to purchase the vehicle, machine
guns, and ammunition used to kill David,
as well as to train his killers and to
provide a stipend for the family of one
of his murderers. That is more than
sufficient to notify the defendants of
the nature of the claims against them.
These allegations also implicitly assert
that the defendants had the intent to
further the illegal aims of Hamas prior
to David’s murder, contrary to the
defendants’ characterization. The Boims’
theory of the case, that QLI and HLF
aided and abetted Hamas in murdering
David Boims, does not offend the First
Amendment because they seek to hold QLI
and HLF liable not for their associations
or speech but for their knowing and
intentional financial support of illegal
activities. We also note that discovery
will certainly clarify the Boims’ theory
of the case, and we will not dismiss a
complaint before discovery unless it
appears beyond doubt that the Boims can
prove no set of facts in support of their
claim which would entitle them to relief.
Slaney, 244 F.3d at 597. Although the
defendants claim to have been supporting
only the humanitarian mission of Hamas,
that is a fact question that cannot be
resolved at this early stage of the
litigation.
2.
We turn next to the defendants’
contention that any section 2333 claim
founded on a violation of section 2339B
must fail because section 2339B violates
the First Amendment. As we noted above,
section 2339B subjects to criminal
liability anyone who, within the United
States or subject to the jurisdiction of
the United States, knowingly provides
material support or resources to a
foreign terrorist organization, or
attempts or conspires to do so. 18 U.S.C.
sec. 2339B(a)(1). The defendants complain
that, because section 2339B imposes
liability without regard to the intent of
the donor, it violates the First
Amendment. They maintain that section
2339B unnecessarily interferes with the
associational rights of contributors who
donate money solely for humanitarian
purposes by failing to limit liability to
those who intend to support the illegal
goals of an organization. They contend
that section 2339B will chill legitimate
fund-raising for humanitarian purposes if
a charitable organization could be
prosecuted for providing food for the
needy in the Middle East that happens to
make its way into the mouths of the
families of terrorists. They urge us to
reject the reasoning of the Ninth Circuit
in Humanitarian Law Project v. Reno, 205
F.3d 1130 (9th Cir. 2000), cert. denied,
532 U.S. 904 (2001), in upholding the
constitutionality of section 2339B
against a First Amendment challenge. They
argue that Humanitarian Law Project is
inconsistent with Claiborne Hardware, and
that even if it is not, it is factually
distinguishable from the instant case.
These arguments miss the mark because
the constitutionality of section 2339B is
not before us. The defendants have not
been charged with a criminal violation of
section 2339B. As we discussed above,
section 2339B is relevant to the Boims’
claim only to the extent that it helps
define what conduct Congress intended to
include in its definition of
"international terrorism." Section 2339B
provides further support to the Boims’
theory that Congress meant to include
funding terrorism as an act "involving"
violence. It is the constitutionality of
section 2333 that concerns us today, and
as we have just found, funding that meets
the standard for aiding and abetting
terrorist acts does not offend the First
Amendment. We take the defendants’
argument to be that a section 2333 claim
founded solely on conduct that would
render a person criminally liable under
section 2339B would violate the First
Amendment. With this refinement to the
question, we turn to the Ninth Circuit’s
analysis of section 2339B.
The plaintiffs in Humanitarian Law
Project were organizations and
individuals who wished to provide money
to two groups that had been designated as
foreign terrorist organizations under 8
U.S.C. sec. 1189. They sought a
preliminary injunction barring
enforcement of section 2339B against
them, and maintained that they intended
only to support the nonviolent
humanitarian and political activities of
the designated groups. They argued, as
HLF and QLI do here, that 2339B violates
the First Amendment because it imposes
liability on persons who provide material
support to terrorist organizations
regardless of whether the donor intends
to further the unlawful goals of the
organization. The plaintiffs relied on
Claiborne Hardware for the proposition
that "[f]or liability to be imposed by
reason of association alone, it is
necessary to establish that the group
itself possessed unlawful goals and that
the individual held a specific intent to
further those illegal aims." Humanitarian
Law Project, 205 F.3d at 1133 (quoting
Claiborne Hardware, 458 U.S. at 920).
Claiborne Hardware and the similar cases
we have discussed supra apply to
situations where the government seeks to
impose liability on the basis of
association alone, i.e., on the basis of
membership alone or because a person
espouses the views of an organization
that engages in illegal activities.
Conduct giving rise to liability under
section 2339B, of course, does not
implicate associational or speech rights.
Humanitarian Law Project, 205 F.3d at
1133. Under section 2339B, and indeed
under section 2333, HLF and QLI may, with
impunity, become members of Hamas, praise
Hamas for its use of terrorism, and
vigorously advocate the goals and
philosophies of Hamas. Section 2339B
prohibits only the provision of material
support (as that term is defined) to a
terrorist organization. There is no
constitutional right to provide weapons
and explosives to terrorists, nor is
there any right to provide the resources
with which the terrorists can purchase
weapons and explosives. 205 F.3d at 1133.
Advocacy is always subject to the
highest levels of scrutiny under the
First Amendment, but donations are not
always equivalent to advocacy and are
subject to greater government regulation.
In Buckley v. Valeo, 424 U.S. 1 (1976),
the Supreme Court upheld the $1000 limit
on political contributions to candidates
for federal offices by individual donors.
The Court acknowledged the expressive
element of a contribution to a political
campaign, noting that a contribution
serves as a general expression of support
for a candidate and the candidate’s
views, but does not communicate the
underlying basis for the support. 424
U.S. at 21. Because the expression
involved in donating money "rests solely
on the undifferentiated, symbolic act of
contributing," the size of the donation
provides only a very rough estimate of
the intensity of the contributor’s
support for the candidate. 424 U.S. at
21. The Court concluded that a limitation
on the amount of money a person may
contribute thus involved little direct
restraint on the donor’s political
communication. Any size contribution will
permit a symbolic expression of support,
but a limitation on the size does not
infringe the contributor’s freedom to
discuss issues. The Court acknowledged
that the funds might be used by the
candidate to present views to voters, but
"the transformation of contributions into
political debate involves speech by
someone other than the contributor." 424
U.S. at 21. The Court found that
associational interests were also
implicated because making a contribution
affiliates a person with a candidate, and
enables like-minded people to pool their
resources to further political goals. 424
U.S. at 22. Setting the standard for
reviewing governmental regulation in this
context, the Court held that "[e]ven a
significant interference with protected
rights of political association may be
sustained if the State demonstrates a
sufficiently important interest and
employs means closely drawn to avoid
unnecessary abridgement of associational
freedoms." 424 U.S. at 25 (internal quote
marks omitted).
Applying the Buckley standard to section
2333 claims founded on conduct that would
give rise to criminal liability under
section 2339B, we conclude that the
government’s interest in preventing
terrorism is not only important but
paramount. Humanitarian Law Project, 205
F.3d at 1135. Although that interest has
been made all the more imperative by the
events of September 11, 2001, the
terrorist threat to national security was
substantial in 1992 when Congress passed
section 2333 and in 1996 when Congress
passed section 2339B. That interest is
unrelated to suppressing free expression.
A section 2333 suit founded on conduct
violating section 2339B does not punish
membership in a designated terrorist
organization, or penalize the expression
of views held by these organizations.
Rather, such a suit is aimed at
prohibiting the funding of violent acts
that these organizations wish to carry
out. 205 F.3d at 1135.
The only remaining question is whether
a section 2333 action based on conduct
that violates section 2339B employs means
closely drawn to avoid unnecessary
abridgement of associational freedoms.
Section 2339B forbids the provision of
any amount of "material support or
resources" to a foreign terrorist
organization. "Material support or
resources" includes, among other things,
money, training, weapons, lethal
substances, explosives and personnel.
Congress determined that "foreign
organizations that engage in terrorist
activity are so tainted by their criminal
conduct that any contribution to such an
organization facilitates that conduct."
Pub. L. 104-132, Section 301. Terrorist
organizations use funds for illegal
activities regardless of the intent of
the donor, and Congress thus was
compelled to attach liability to all
donations to foreign terrorist
organizations. In order to be designated
a terrorist organization, a group must
engage in terrorist activity that
threatens the security of United States
nationals or the national security of the
United States. 8 U.S.C. sec. 1189(a).
"Terrorist activity" is defined, in
relevant part, as unlawful activity which
involves any of the following: the
hijacking or sabotage of any aircraft,
vessel or vehicle; the seizing, detaining
or threatening to kill, injure or
continue detaining an individual in order
to compel a third person to do or abstain
from doing any act as a condition for the
release of the individual detained; a
violent act upon an internationally
protected person; an assassination; the
use of any biological agent, chemical
agent, nuclear weapon or device, or
explosive or firearm, with intent to
endanger the safety of one or more
individuals or cause substantial damage
to property. 8 U.S.C. sec.
1182(a)(3)(B)(ii). Given the stringent
requirements that must be met before a
group is designated a foreign terrorist
organization, Congress carefully limited
its prohibition on funding as narrowly as
possible in order to achieve the
government’s interest in preventing
terrorism. We note that Congress did not
attach liability for simply joining a
terrorist organization or zealously
espousing its views. By prohibiting
funding alone, Congress employed means
closely drawn to avoid unnecessary
abridgement of associational freedoms. A
section 2333 action founded on conduct
violating section 2339B is sufficiently
tailored to achieve an important
government interest and does not run
afoul of the First Amendment.
Humanitarian Law Project, 205 F.3d at
1136.
III.
In short, we answer the three questions
certified by the district court as
follows: funding, simpliciter, of a
foreign terrorist organization is not
sufficient to constitute an act of
terrorism under 18 U.S.C. sec. 2331.
However, funding that meets the
definition of aiding and abetting an act
of terrorism does create liability under
sections 2331 and 2333. Conduct that
would give rise to criminal liability
under section 2339B is conduct that
"involves" violent acts or acts dangerous
to human life, and therefore may meet the
definition of international terrorism as
that term is used in section 2333.
Finally, as we have set forth the
elements of an action under section 2333,
civil liability for funding a foreign
terrorist organization does not offend
the First Amendment so long as the
plaintiffs are able to prove that the
defendants knew about the organization’s
illegal activity, desired to help that
activity succeed and engaged in some act
of helping. The plaintiffs have not yet
had an opportunity to develop the facts
of their case. Today we hold that
dismissal would be premature at this
stage of the litigation because we can
envision a set of facts in support of the
claim they have alleged that would
entitle them to relief.
AFFIRMED.
FOOTNOTES
/1 Exec. Order No. 12947, 60 Fed. Reg. 5079 (January
23, 1995). President Clinton invoked 50 U.S.C.
sec. 1701, et seq. (the International Emergency
Economic Powers Act), 50 U.S.C. 21 1601 et seq.
(the National Emergencies Act), and 3 U.S.C. sec.
301 (authorizing the President to delegate cer-
tain functions) to label Hamas and eleven other
groups as "terrorist organizations which threaten
to disrupt the Middle East peace process."
/2 Section 1189 provides a procedure by which the
Secretary of State, in consultation with the
Secretary of the Treasury and the Attorney Gener-
al, may designate certain organizations as "for-
eign terrorist organizations." In order to be so
designated, a foreign organization must "engage
in terrorist activity" as defined in 8 U.S.C.
sec. 1182(a)(3)(B). "Terrorist activities" in-
clude a number of illegal acts such as sabotaging
or highjacking a vessel, aircraft or vehicle;
detaining a person and threatening to kill,
injure or further detain that person in order to
compel a third person to do something; violently
attacking an internationally protected person;
assassinating any person; using a biological
agent, chemical agent, nuclear device, explosive
or firearm with intent to endanger the safety or
one or more persons or to cause substantial
damage to property; or threatening, attempting or
conspiring to do any of these things. 8 U.S.C.
sec. 1882(a)(3)(B)(ii). "Engage in terrorist activity"
is further defined to include providing material
support to anyone conducting a terrorist act,
where material support includes: preparation and
planning of a terrorist activity; gathering of
information on potential targets for terrorist
activity; providing a safe house, transportation,
communications, funds, false documentation or
identification, weapons, explosives, or training
to any individual the actor knows or has reason
to believe has committed or plans to commit a
terrorist activity; soliciting funds or other
things of value for any terrorist organization;
or soliciting any individual for membership in a
terrorist organization or to engage in terrorist
activity. 8 U.S.C. sec. 1182(a)(3)(B)(iii).
Afternotifying Congress of the designation, the
Secretary of the Treasury may require United
States financial institutions to freeze the
assets of a foreign terrorist organization. The
statute provides that Congress may revoke the
designation in certain circumstances and also
provides that any foreign terrorist organization
may seek judicial review of the designation. 8
U.S.C. sec. 1189.
/3 The United States has proceeded against Salah and
Mousa Mohammed Abu Marzook in an unrelated action
to seize funds used in terrorism. See United
States v. One 1997 E35 Ford Van VIN
1FBJS31L3VHB70844, 50 F. Supp. 2d 789 (N.D. Ill.
1999). In that action, the United States has
alleged that Salah and Marzook employed a number
of charitable organizations in the United States
to raise and launder money for Hamas. The FBI
presented evidence in that action that Salah
actively recruited Hamas terrorists, arranged for
and financed their training, served as a finan-
cial conduit for Hamas operations directed from
the U.S., paid for plane tickets to transport
terrorists from the U.S. to the Middle East, and
gave approximately $100,000 to another Hamas
operative for the express purpose of procuring
weapons.
/4 According to the Boims, Marzook has admitted in
an extradition proceeding filed against him that
he is the leader of the political wing of Hamas
and he has raised money for Hamas. Evidence
presented in his extradition proceeding estab-
lished that he transferred funds to Salah, re-
cruited Salah to raise funds for the Hamas mili-
tary activities, knew that Hamas operatives were
carrying out terrorist activities in Israel, and
gave one of the organizers of these terrorist
activities a book of blank, signed checks to fund
Hamas operations. The United States has also
proceeded against Marzook in the Ford Van forfei-
ture action referenced in note 3, supra.
/5 The Boims also argued in the district court that
Congress clarified section 2331(1) in its later
passage of sections 2339A and 2339B. According to
the Boims, Congress demonstrated in sections
2339A and 2339B that the provision of material
support or resources to terrorists is an activity
that involves violent acts or acts dangerous to
human life. The Boims’ argument on this point is
thus two-fold: first, they claim that violations
of sections 2339A and 2339B give rise to civil
liability under section 2333. Second, they main-
tain that sections 2339A and 2339B clarify the
meaning of "involve" in section 2331(1). In
particular, sections 2339A and 2339B demonstrate
that providing material support or resources is
an activity that "involves" violent acts. We will
address both prongs of the Boims’ argument infra.
/6 Sections 2331 and 2333 were initially enacted in
1990 as the Anti-Terrorism Act of 1990, Pub. L.
No. 101-519, sec. 132, 104 Stat. 2250 (1990), but
were repealed as the result of a technical defi-
ciency. They were subsequently re-enacted as part
of the Federal Courts Administration Act of 1992,
Pub. L. No. 102-572, 106 Stat. 4506 (1992).
/7 Because the questions presented in the appeal
implicate, at least in part, the relation between
section 2333 and two criminal statutes, sections
2339A and 2339B, we asked the United States to
file a brief amicus curiae. The United States
accepted our invitation and the plaintiffs and
defendants were afforded an opportunity to re-
spond to the views presented by the United
States.
/8 A few courts, however, have touched on the appli-
cation of the term "international terrorism" in
the context of FISA. See United States v. Sarkis-
sian, 841 F.2d 959, 965 (9th Cir. 1988) (investi-
gation of "international terrorism" by definition
requires investigation of activities that consti-
tute crimes); United States v. Duggan, 743 F.2d
59 (2d Cir. 1984) (asking a court to apply the
definition of "international terrorism" does not
embroil the court in a political question and
thereby violate the separation of powers doc-
trine).
/9 One of Mr. Klinghoffer’s surviving daughters
testified before both the House and the Senate in
favor of the passage of the Antiterrorism Act of
1990. See Senate Hearing; H.R. Rep. 102-1040 at
4.
/10 The defendants have also argued that Congress
listed exhaustively in section 2333(b) all of the
offenses which could give rise to liability under
section 2333(a). We reject this contention be-
cause "international terrorism" is a defined term
that includes conduct much broader than the
offenses listed in section 2333(b). See 18 U.S.C.
sec. 2331. Reading the statute as the defendants
urge would require us to disregard Congress’
express definition of the term "international
terrorism."
/11 The crimes covered by this diverse and extensive
list include, in Title 18: sec. 32, destruction
of aircraft or aircraft facilities; sec. 37,
violence at international airports; sec. 81,
arson within special maritime and territorial
jurisdiction; sec. 175, prohibitions with respect
to biological weapons; sec. 351, Congressional,
Cabinet, and Supreme Court assassination, kidnap-
ping, and assault; sec. 831, prohibited transac-
tions involving nuclear materials; sec. 842(m),
importing and exporting certain plastic explo-
sives; sec. 842(n), shipping, transporting,
transferring, receiving or possessing certain
plastic explosives; sec. 844(f), maliciously
damaging or destroying personal or real property
belonging to the United States; sec. 844(i),
maliciously damaging or destroying personal or
real property used in interstate or foreign
commerce; sec. 930(c), killing or attempting to
kill a person in a federal facility while ille-
gally possessing a firearm or other dangerous
weapon in that facility; sec. 956, conspiracy to
kill, kidnap, maim, or injure persons or damage
property in a foreign country; sec. 1114, protec-
tion of officers and employees of the United
States; sec. 1116, murder or manslaughter of
foreign officials, official guests or interna-
tionally protected persons; sec. 1203, hostage
taking; sec. 1361, injuries to government proper-
ty or contracts; sec. 1362, injury to communica-
tion lines, stations or systems; sec. 1363,
damaging buildings or property within the special
maritime and territorial jurisdiction; sec. 1366,
destruction of an energy facility; sec. 1751,
Presidential and Presidential staff assassina-
tion, kidnapping, and assault; sec. 1992, wreck-
ing trains; sec. 2155, destruction of national
defense materials, premises or utilities; sec.
2156, production of defective national defense
material, premises or utilities; sec. 2280,
violence against maritime navigation; sec. 2281,
violence against maritime fixed platforms; sec.
2332, killing of a United States national outside
the United States; sec. 2332a, use of certain
weapons of mass destruction; sec. 2332b, acts of
terrorism transcending national boundaries; or
sec. 2340A, torture outside the United States.
Section 2332c has been repealed. Title 49, sec.
46502 prohibits aircraft piracy.
/12 See note 2, supra.
/13 Presumably, they are referring to 18 U.S.C.
secs. 2332, 2332a, 2332b and 2332d. These
sections proscribe murder, physical violence, the
use of weapons of mass destruction, acts of
terrorism transcending national boundaries, and
engaging in financial transactions with designat-
ed terrorist countries. These provisions apply to
the person directly engaged in the prohibited
activity, as opposed to persons providing materi-
al support to those directly engaged in the
prohibited activity.
/14 The Fourth Circuit, in Rice v. Paladin Enterpris-
es, Inc., 128 F.3d 233, 252-53 (4th Cir. 1997),
considered the First Amendment implications of a
civil suit seeking to hold liable the publishers
of a book for a murder committed by a reader. The
book, entitled "Hit Man: A Technical Manual for
Independent Contractors," detailed how to commit
murder-for-hire, and the publisher stipulated
that it both knew and intended that its readers
would use the book to commit murder. Under those
circumstances, the court held that liability for
aiding and abetting a malum in se crime such as
murder via speech intended to assist and encour-
age others in that crime would not run afoul of
the First Amendment. Although the Rice court did
not expressly reference Central Bank, its holding
is consistent with the Boims’ reading of that
case.