Boim, Stanley v. Holy Land Foundation

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 05-1815, 05-1816, 05-1821, 05-1822
S TANLEY B OIM , individually and as administrator of the
E STATE OF D AVID B OIM , deceased; and JOYCE B OIM ,
Plaintiffs-Appellees,
v.
H OLY L AND F OUNDATION FOR R ELIEF AND
D EVELOPMENT, et al.,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 2905—Arlander Keys, Magistrate Judge.
A RGUED S EPTEMBER 10, 2008—D ECIDED D ECEMBER 3, 2008
Before E ASTERBROOK, Chief Judge, and P OSNER, F LAUM,
K ANNE, R OVNER, W OOD , E VANS, W ILLIAMS, S YKES, and
T INDER, Circuit Judges.
P OSNER, Circuit Judge. In 1996 David Boim, a Jewish
teenager who was both an Israeli citizen and an American
citizen, living in Israel, was shot to death by two men at a
bus stop near Jerusalem. His parents filed this suit four
2 Nos. 05-1815, 05-1816, 05-1821, 05-1822
years later, alleging that his killers had been Hamas
gunmen and naming as defendants Muhammad Salah
plus three organizations: the Holy Land Foundation for
Relief and Development, the American Muslim Society,
and the Quranic Literacy Institute. (A fourth, the Islamic
Association of Palestine-National, appears to be either an
alter ego of the American Muslim Society or just an
alternative name for it, and need not be discussed sepa-
rately. There are other defendants as well but they are not
involved in the appeals.) The complaint accused the
defendants of having provided financial support to
Hamas before David Boim’s death and by doing so of
having violated 18 U.S.C. § 2333(a), which provides that
“any national of the United States injured in his or her
person, property, or business by reason of an act of inter-
national 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 attor-
ney’s fees.”
The district court denied the defendants’ motion to
dismiss the complaint for failure to state a claim, 127
F. Supp. 2d 1002 (N.D. Ill. 2001); the defendants had
argued that providing financial assistance to a terrorist
group is not an act of international terrorism and there-
fore is not within the scope of section 2333. We
authorized an interlocutory appeal, 28 U.S.C. § 1292(b), and
the panel that heard the appeal affirmed the district court.
Boim v. Quranic Literacy Institute, 291 F.3d 1000 (7th Cir.
2002). The case then resumed in that court. The court
granted summary judgment in favor of the plaintiffs
with respect to the liability of the three defendants other
Nos. 05-1815, 05-1816, 05-1821, 05-1822 3
than the Quranic Literacy Institute. 340 F. Supp. 2d 885
(N.D. Ill. 2004). A jury was convened and, after a trial
lasting a week, found the Institute—which having filed a
statement of “nonparticipation” attended but did not
participate in the trial—liable. The jury then assessed
damages of $52 million against all the defendants (includ-
ing the ones not before us) jointly and severally. The
amount was then trebled and attorneys’ fees added.
These defendants again appealed, this time from a
final judgment. The panel vacated the judgment and
directed the district court to redetermine liability. 511
F.3d 707 (7th Cir. 2007). Judge Evans agreed with the
reversal as to the Holy Land Foundation but otherwise
dissented.
The plaintiffs petitioned for rehearing en banc, and the
full court granted the petition, primarily to consider the
elements of a suit under 18 U.S.C. § 2333 against financial
supporters of terrorism. The parties have filed supple-
mental briefs. A number of amici curiae have weighed
in as well, including the Department of Justice, which
has taken the side of the plaintiffs.
The first panel opinion rejected the argument that the
statute does not impose liability on donors to groups that
sponsor or engage in terrorism. The supplemental briefs
do not revisit the issue, and at oral argument counsel
for Salah and the Holy Land Foundation disclaimed
reliance on their former position concerning the liability
of donors. But in a letter to the court after oral argu-
ment, Salah’s counsel indicated that the disclaimer had
been based solely on a belief that the doctrine of law of the
case foreclosed any further consideration of the statutory
4 Nos. 05-1815, 05-1816, 05-1821, 05-1822
issue in this court. That was a mistake. The full court can
revisit any ruling by a panel. All arguments that the
defendants have presented in their appeals are open
today—and will be open in the Supreme Court. It is better
to decide the question than to leave it hanging; why
bother to address the elements of a legal claim that may
not exist? Before deciding what a plaintiff must prove in
order to recover from a donor under section 2333, we
should decide whether the statute applies. United States
National Bank of Oregon v. Insurance Agents of America, Inc.,
508 U.S. 439, 445-48 (1993).
Section 2333 does not say that someone who assists in
an act of international terrorism is liable; that is, it does
not mention “secondary” liability, the kind that 18 U.S.C.
§ 2 creates by imposing criminal liability on “whoever
commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commis-
sion,” or “willfully causes an act to be done which if
directly performed by him or another would be an
offense against the United States.” See also 18 U.S.C. § 3
(accessory after the fact). The Supreme Court in Central
Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,
511 U.S. 164 (1994), held that section 10(b) of the
Securities and Exchange Act of 1934, which prohibits
securities fraud, does not reach aiding and abetting
because it makes no reference to secondary liability, the
kind of liability that statutes such as 18 U.S.C. §§ 2 and 3
create in criminal cases. The Court discussed the
securities laws at length, but nothing in its holding turns
on particular features of those laws.
Nos. 05-1815, 05-1816, 05-1821, 05-1822 5
So statutory silence on the subject of secondary liability
means there is none; and section 2333(a) authorizes
awards of damages to private parties but does not
mention aiders and abettors or other secondary actors.
Nevertheless the first panel opinion concluded that
section 2333 does create secondary liability. It distin-
guished Central Bank of Denver as having involved an
implied private right of action (for it was a private suit,
yet section 10(b) does not purport to authorize such suits),
while section 2333(a) expressly creates a private right. But
as the dissenting Justices in Central Bank of Denver had
pointed out, the majority’s holding was not limited to
private actions. 511 U.S. at 200. It encompassed suits by
the SEC, which section 10(b) authorizes expressly.
Congress agreed with this understanding of Central Bank
of Denver, for the next year it enacted 15 U.S.C. § 78t(e) to
allow the SEC in section 10(b) suits to obtain relief
against aiders, abettors, and others who facilitate
primary violations. Stoneridge Investment Partners, LLC v.
Scientific-Atlanta, Inc., 128 S. Ct. 761, 771-72 (2008). The
enactment of section 78t(e) would have been pointless
had Central Bank of Denver allowed secondary liability to
be imposed in suits, such as suits by the SEC under
section 10(b), that the statute expressly authorizes. Years
later, reaffirming Central Bank of Denver, the Supreme
Court repeated that the earlier decision had not been
limited to private suits under section 10(b). Stoneridge
Investment Partners, LLC v. Scientific-Atlanta, Inc., supra, 128
S. Ct. at 768-69.
The first panel opinion relied on Harris Trust & Savings
Bank v. Salomon Smith Barney, Inc., 530 U.S. 238 (2000), an
6 Nos. 05-1815, 05-1816, 05-1821, 05-1822
ERISA case involving an application of trust law. Trust
law permits trust beneficiaries to maintain actions
against third parties who have received trust assets
improperly. ERISA not only does not upset this principle
of trust law; it authorizes the Secretary of Labor to
penalize third parties who “knowing[ly] participat[e]” in
a fiduciary’s misconduct. 29 U.S.C. §§ 1106(a),
1132(l)(1)(B)). Harris Trust did not cite Central Bank of
Denver and did not purport to limit its holding. Stoneridge,
decided eight years after Harris Trust, also did not
treat Harris Trust as circumscribing Central Bank of Den-
ver—it did not even cite Harris Trust.
To read secondary liability into section 2333(a), more-
over, would enlarge the federal courts’ extraterritorial
jurisdiction. The defendants are accused of promoting
terrorist activities abroad. Congress has the power to
impose liability for acts that occur abroad but have
effects within the United States, F. Hoffman-La Roche Ltd. v.
Empagran S.A., 542 U.S. 155, 165 (2004), but it must
make the extraterritorial scope of a statute clear. Small v.
United States, 544 U.S. 385, 388-89 (2005); EEOC v.
Arabian American Oil Co., 499 U.S. 244, 248 (1991).
The first panel opinion discussed approvingly an alter-
native and more promising ground for bringing donors
to terrorist organizations within the grasp of section 2333.
The ground involves a chain of explicit statutory
incorporations by reference. The first link in the chain is
the statutory definition of “international terrorism” as
“activities that . . . involve violent acts or acts dangerous to
human life that are a violation of the criminal laws of the
United States,” that “appear to be intended . . . to intimi-
Nos. 05-1815, 05-1816, 05-1821, 05-1822 7
date or coerce a civilian population” or “affect the
conduct of a government by . . . assassination,” and that
“transcend national boundaries in terms of the means by
which they are accomplished” or “the persons they appear
intended to intimidate or coerce.” 18 U.S.C. § 2331(1).
Section 2331 was enacted as part of the Federal Courts
Administration Act of 1992, Pub. L. No. 102-572,
§ 1003(a)(3), 106 Stat. 4506, 4521. Section 2333 (having
been originally enacted in 1990 and repealed for a
technical reason the next year) was reenacted in 1992 as
part of that same Federal Courts Administration Act. So
the two sections are part of the same statutory scheme
and are to be read together. Nicholas J. Perry, “The Numer-
ous Federal Legal Definitions of Terrorism: The Problem
of Too Many Grails,” 30 J. Legis. 249, 257 (2004).
Section 2331(1)’s definition of international terrorism
(amended in 2001 by the PATRIOT Act, Pub. L. No. 107-56,
§ 802(a)(1), 115 Stat. 272, 376, but in respects irrelevant
to this case) includes not only violent acts but also “acts
dangerous to human life that are a violation of the
criminal laws of the United States.” Giving money to
Hamas, like giving a loaded gun to a child (which also
is not a violent act), is an “act dangerous to human life.”
And it violates a federal criminal statute enacted in 1994
and thus before the murder of David Boim—18 U.S.C.
§ 2339A(a), which provides that “whoever provides
material support or resources . . ., knowing or intending
that they are to be used in preparation for, or in carrying
out, a violation of [18 U.S.C. § 2332],” shall be guilty of a
federal crime. So we go to 18 U.S.C. § 2332 and discover
that it criminalizes the killing (whether classified as
8 Nos. 05-1815, 05-1816, 05-1821, 05-1822
homicide, voluntary manslaughter, or involuntary man-
slaughter), conspiring to kill, or inflicting bodily injury
on, any American citizen outside the United States.
By this chain of incorporations by reference (section
2333(a) to section 2331(1) to section 2339A to section 2332),
we see that a donation to a terrorist group that targets
Americans outside the United States may violate section
2333. Which makes good sense as a counterterrorism
measure. Damages are a less effective remedy against
terrorists and their organizations than against their finan-
cial angels. Terrorist organizations have been sued
under section 2333, e.g., Ungar v. Palestine Liberation
Organization, 402 F.3d 274 (1st Cir. 2005); Biton v. Palestinian
Interim Self-Government Authority, 2008 WL 2796469 (D.D.C.
2008); Knox v. Palestine Liberation Organization, 248 F.R.D.
420 (S.D.N.Y. 2008), but to collect a damages judgment
against such an organization, let alone a judgment
against the terrorists themselves (if they can even be
identified and thus sued), is, as the first panel opinion
pointed out, 291 F.3d at 1021, well-nigh impossible. These
are foreign organizations and individuals, operating
abroad and often covertly, and they are often
impecunious as well. So difficult is it to obtain monetary
relief against covert foreign organizations like these that
Congress has taken to passing legislation authorizing the
payment of judgments against them from U.S. Treasury
funds. E.g., Victims of Trafficking and Violence Protection
Act of 2000, Pub. L. No. 106-386, § 2002, 114 Stat. 1464.
But that can have no deterrent or incapacitative effect,
whereas suits against financiers of terrorism can cut the
terrorists’ lifeline.
Nos. 05-1815, 05-1816, 05-1821, 05-1822 9
And whether it makes good sense or not, the imposi-
tion of civil liability through the chain of incorporations
is compelled by the statutory texts—as the panel deter-
mined in its first opinion. 291 F.3d at 1012-16. But in
addition the panel placed a common law aiding and
abetting gloss on section 2333. The panel was worried
about a timing problem: section 2339A was not passed
until 1994, and the defendants’ contributions to Hamas
began earlier. But that is not a serious problem on the
view we take of the standard for proving causation under
section 2333; we shall see that the fact of contributing to
a terrorist organization rather than the amount of the
contribution is the keystone of liability.
Only because this is a very old case—David Boim was
killed 12 years ago—does the 1994 effective date of
section 2339A, two years before his killing, present an
obstacle to liability, though only with respect to Salah and
possibly the Holy Land Foundation (but we are vacating
the judgment against the latter anyway, as we shall
explain). For there is no doubt that the other defendants
made contributions after section 2339A’s effective date.
Salah, however, having been arrested by Israeli authorities
in 1993 and not released until 1997, did not render
material support to Hamas between the effective date
of section 2339A and Boim’s killing, so the judgment
against him must be reversed. Few future cases will be
affected by the timing issue, because few such cases
will involve donations that were made after section 2333
was enacted in 1990 or re-enacted in 1992 but that ceased
before 1994.
10 Nos. 05-1815, 05-1816, 05-1821, 05-1822
In addition to providing material support after the
effective date of section 2339A, a donor to terrorism, to
be liable under section 2333, must have known that the
money would be used in preparation for or in carrying
out the killing or attempted killing of, conspiring to kill,
or inflicting bodily injury on, an American citizen abroad.
We know that Hamas kills Israeli Jews; and Boim was
an Israeli citizen, Jewish, living in Israel, and therefore a
natural target for Hamas. But we must consider the
knowledge that the donor to a terrorist organization
must be shown to possess in order to be liable under
section 2333 and the proof required to link the donor’s act
to the injury sustained by the victim. The parties have
discussed both issues mainly under the rubrics of “con-
spiracy” and “aiding and abetting.” Although those
labels are significant primarily in criminal cases, they can
be used to establish tort liability, see, e.g., Halberstam v.
Welch, 705 F.2d 472 (D.C. Cir. 1983); Restatement (Second) of
Torts §§ 876(a), (b) (1979), and there is no impropriety in
discussing them in reference to the liability of donors to
terrorism under section 2333 just because that liability is
primary. Primary liability in the form of material support
to terrorism has the character of secondary liability.
Through a chain of incorporations by reference, Congress
has expressly imposed liability on a class of aiders and
abettors.
When a federal tort statute does not create secondary
liability, so that the only defendants are primary violators,
the ordinary tort requirements relating to fault, state of
mind, causation, and foreseeability must be satisfied for
the plaintiff to obtain a judgment. See, e.g., Bridge v.
Nos. 05-1815, 05-1816, 05-1821, 05-1822 11
Phoenix Bond & Indemnity Co., 128 S. Ct. 2131, 2141-44
(2008); Stoneridge Investment Partners, LLC v. Scientific-
Atlanta, Inc., supra, 128 S. Ct. at 769; Holmes v. Securities
Investor Protection Corp., 503 U.S. 258, 268-69 (1992); Associ-
ated General Contractors of California, Inc. v. California State
Council of Carpenters, 459 U.S. 519 (1983). But when the
primary liability is that of someone who aids someone
else, so that functionally the primary violator is an aider
and abettor or other secondary actor, a different set of
principles comes into play. Those principles are most
fully developed in the criminal context, but we must be
careful in borrowing from criminal law because the state-
of-mind and causation requirements in criminal cases
often differ from those in civil cases. For example, because
the criminal law focuses on the dangerousness of a defen-
dant’s conduct, the requirement of proving that a crim-
inal act caused an injury is often attenuated and some-
times dispensed with altogether, as in the statutes that
impose criminal liability on providers of material
support to terrorism (18 U.S.C. §§ 2339A, B, and C), which
do not require proof that the material support resulted in
an actual terrorist act, or that punish an attempt (e.g., 18
U.S.C. § 1113) that the intended victim may not even
have noticed, so that there is no injury. The law of attempt
has no counterpart in tort law, United States v. Gladish, 536
F.3d 646, 648 (7th Cir. 2008), because there is no tort
without an injury. E.g., Rozenfeld v. Medical Protective Co., 73
F.3d 154, 155-56 (7th Cir. 1996); Winskunas v. Birnbaum, 23
F.3d 1264, 1267 (7th Cir. 1994).
So prudence counsels us not to halt our analysis with
aiding and abetting but to go on and analyze the tort
12 Nos. 05-1815, 05-1816, 05-1821, 05-1822
liability of providers of material support to terrorism
under general principles of tort law. We begin by
noting that knowledge and intent have lesser roles in
tort law than in criminal law. A volitional act that causes
an injury gives rise to tort liability for negligence if the
injurer failed to exercise due care, period. But more is
required in the case of intentional torts, and we can
assume that since section 2333 provides for an automatic
trebling of damages it would require proof of intentional
misconduct even if the plaintiffs in this case did not
have to satisfy the state-of-mind requirements of sections
2339A and 2332 (but they do).
Punitive damages are rarely if ever imposed unless the
defendant is found to have engaged in deliberate wrongdo-
ing. “Something more than the mere commission of a tort
is always required for punitive damages. There must be
circumstances of aggravation or outrage, such as spite or
‘malice,’ or a fraudulent or evil motive on the part of the
defendant, or such a conscious and deliberate disregard of
the interests of others that the conduct may be called wilful
or wanton.” W. Page Keeton et al., Prosser and Keeton on the
Law of Torts § 2, pp. 9-10 (5th ed. 1984); see, e.g., Molzof v.
United States, 502 U.S. 301, 305-07 (1992); Kemezy v. Peters,
79 F.3d 33, 35 (7th Cir. 1996). Treble damages too, not being
compensatory, tend to have a punitive aim. “The very idea
of treble damages reveals an intent to punish past, and to
deter future, unlawful conduct.” Texas Industries, Inc. v.
Radcliff Materials, Inc., 451 U.S. 630, 639 (1981); see also
Vermont Agency of Natural Resources v. United States ex rel.
Stevens, 529 U.S. 765, 784-86 (2000); Zelinski v. Columbia
300, Inc., 335 F.3d 633, 642 (7th Cir. 2003); Gorenstein
Nos. 05-1815, 05-1816, 05-1821, 05-1822 13
Enterprises, Inc. v. Quality Care-USA, Inc., 874 F.2d 431, 435-
36 (7th Cir. 1989); United States v. Mackby, 261 F.3d 821, 830-
31 (9th Cir. 2001).
To give money to an organization that commits
terrorist acts is not intentional misconduct unless one
either knows that the organization engages in such acts or
is deliberately indifferent to whether it does or not, mean-
ing that one knows there is a substantial probability that
the organization engages in terrorism but one does not
care. “When the facts known to a person place him on
notice of a risk, he cannot ignore the facts and plead
ignorance of the risk.” Makor Issues & Rights, Ltd. v. Tellabs
Inc., 513 F.3d 702, 704 (7th Cir. 2008). That is recklessness
and equivalent to recklessness is “wantonness,” which
“has been defined as the conscious doing of some act or
omission of some duty under knowledge of existing
conditions and conscious that from the doing of such act or
omission of such duty injury will likely or probably result.”
Graves v. Wildsmith, 177 So. 2d 448, 451 (Ala. 1965); see also
Landers v. School District No. 203, O’Fallon, 383 N.E.2d 645
(Ill. App. 1978). “[I]n one case we read that ‘willful and
wanton misconduct approaches the degree of moral blame
attached to intentional harm, since the defendant deliber-
ately inflicts a highly unreasonable risk of harm upon
others in conscious disregard of it.’ Similarly, [another
case] defines ‘willful and wanton’ as exhibiting ‘an utter
indifference to or conscious disregard for’ safety.” Fagocki
v. Algonquin/ Lake-in-the-Hills Fire Protection District, 496
F.3d 623, 627 (7th Cir. 2007) (citations omitted).
So it would not be enough to impose liability on a donor
for violating section 2333, even if there were no state-of-
14 Nos. 05-1815, 05-1816, 05-1821, 05-1822
mind requirements in sections 2339A and 2332, that the
average person or a reasonable person would realize that
the organization he was supporting was a terrorist organi-
zation, if the actual defendant did not realize it. That
would just be negligence. But if you give a loaded gun to
a child, you know you are creating a substantial risk of
injury and therefore your doing so is reckless and if the
child shoots someone you will be liable to the victim. See
Pratt v. Martineau, 870 N.E.2d 1122 (Mass. App. 2007);
Bowen v. Florida, 791 So. 2d 44, 48-49 (Fla. App. 2001). That
case should be distinguished from one in which the gun is
given to an adult without adequately explaining the
dangers—a case of negligent entrustment. To give a small
child a loaded gun would be a case of criminal recklessness
and therefore satisfy the state of mind requirement for
liability under section 2333 and the statutes that it incorpo-
rates by reference. For the giver would know he was doing
something extremely dangerous and without justification.
“If the actor knows that the consequences are certain, or
substantially certain, to result from his act, and still goes
ahead, he is treated by the law as if he had in fact desired
to produce the result.” Restatement, supra, § 8A, comment
b. That you did not desire the child to shoot anyone
would thus be irrelevant, not only in a tort case, see EEOC
v. Illinois, 69 F.3d 167, 170 (7th Cir. 1995), but in a criminal
case. United States v. Fountain, 768 F.2d 790, 798 (7th Cir.
1985); cf. United States v. Ortega, 44 F.3d 505, 508 (7th Cir.
1995).
A knowing donor to Hamas—that is, a donor who knew
the aims and activities of the organization—would know
that Hamas was gunning for Israelis (unlike some other
Nos. 05-1815, 05-1816, 05-1821, 05-1822 15
terrorist groups, Hamas’s terrorism is limited to the
territory of Palestine, including Israel; see Council on
Foreign Relations, “Hamas,” www.cfr.org/publication/
8968/, visited Nov. 16, 2008), that Americans are frequent
visitors to and sojourners in Israel, that many U.S. citizens
live in Israel (American Citizens Abroad, an advocacy
group for expatriates, reports on the basis of State De-
partment data that in 1999 there were about 184,000
American citizens living in Israel, accounting for about
3.1 percent of the country’s population, www.aca.ch/
amabroad.pdf, visited Nov. 16, 2008), and that donations
to Hamas, by augmenting Hamas’s resources, would
enable Hamas to kill or wound, or try to kill, or conspire to
kill more people in Israel. And given such foreseeable
consequences, such donations would “appear to be in-
tended . . . to intimidate or coerce a civilian population” or
to “affect the conduct of a government by . . . assassina-
tion,” as required by section 2331(1) in order to dis-
tinguish terrorist acts from other violent crimes, though
it is not a state-of-mind requirement; it is a matter of
external appearance rather than subjective intent, which is
internal to the intender.
It is true that “the word ‘recklessness’ in law covers a
spectrum of meaning, ranging from gross negligence in
an accident case to the conduct of a robber in shooting at
a pursuing policeman without aiming carefully.” Wright v.
United States, 809 F.2d 425, 427 (7th Cir. 1987). In tort law
it sometimes connotes merely gross negligence and at
other times requires only that the defendant have acted
in the face of an unreasonable risk that he should have
been aware of even if he wasn’t. But when, as in the
16 Nos. 05-1815, 05-1816, 05-1821, 05-1822
passages we have quoted both from judicial opinions
and from the Restatement, recklessness entails actual
knowledge of the risk, the tort concept merges with the
criminal concept, which likewise “generally permits a
finding of recklessness only when a person disregards a
risk of harm of which he is aware.” Farmer v. Brennan, 511
U.S. 825, 837 (1994); see also Desnick v. American Broadcast-
ing Cos., 233 F.3d 514, 517-518 (7th Cir. 2000); American
Law Institute, Model Penal Code § 2.02(2)(c) (1962) (defining
recklessness as “consciously disregard[ing] a substantial
and unjustifiable risk that the material element exists or
will result from his conduct”).
Critically, the criminal (like the tort) concept of reck-
lessness is more concerned with the nature and knowl-
edge of the risk that the defendant creates than with its
magnitude. The Court in Farmer v. Brennan spoke of an
“excessive” risk, a “significant” risk, a “substantial” risk,
and an “intolerable” risk, 511 U.S. at 837-38, 842-43, 846,
the Model Penal Code of a “substantial and unjustifiable”
risk, and the Restatement of an “unreasonable” risk, Restate-
ment, supra, § 500, rather than assigning a minimum
probability to the risk. These are relative terms; what is
excessive, intolerable, etc., depends on the nature of the
defendant’s conduct. Ordinarily, it is true, the risk is
great in a probabilistic sense; for the greater it is, the
more likely it is to materialize and so give rise to a law-
suit or a prosecution and thus be mentioned in a judicial
opinion. The greater the risk, moreover, the more
obvious it will be to the risk taker, enabling the trier of
fact to infer the risk taker’s knowledge of the risk with
greater confidence, see, e.g., Farmer v. Brennan, supra, 511
Nos. 05-1815, 05-1816, 05-1821, 05-1822 17
U.S. at 842; Duckworth v. Franzen, 780 F.2d 645, 652 (7th
Cir. 1985), though, as the Farmer decision emphasizes,
subject to rebuttal. 511 U.S. at 837-42.
But probability isn’t everything. The risk that one of
the workers on a project to build a bridge or a sky-
scraper will be killed may be greater than the risk that a
driver will be killed by someone who flings rocks from
an overpass at the cars traveling on the highway beneath.
But only the second risk, though smaller, is deemed
excessive and therefore reckless. McNabb v. State, 887 So. 2d
929, 974-75 (Ala. Crim. App. 2001). (The first risk might
not even be negligent.) As we explained in United States v.
Boyd, 475 F.3d 875, 877 (7th Cir. 2007) (emphasis added),
“firing multiple shots from a powerful gun . . . in the
dow ntown of a large city at a tim e when
pedestrians . . . are known to be in the vicinity creates a
risk of harm that, while not large in probabilistic terms, is
‘substantial’ relative to the gratuitousness of the defen-
dant’s actions. . . . An activity is reckless when the
potential harm that it creates . . . is wildly disproportionate
to any benefits that the activity might be expected to
confer . . . . The emotional gratification that defendant
Boyd derived from shooting into the night, though
perhaps great, is not the kind of benefit that has weight
in the scales when on the other side is danger to life and
limb, even if the danger is limited, as it was here.” Lennon
v. Metropolitan Life Ins. Co., 504 F.3d 617, 623 (6th Cir. 2007),
says that the risk must be “weighed against the lack of
social utility of the activity” in adjudging its reasonable-
ness. See also Orban v. Vaughn, 123 F.3d 727, 733 (3d Cir.
1997).
18 Nos. 05-1815, 05-1816, 05-1821, 05-1822
So if you give a person rocks who has told you he would
like to kill drivers by dropping them on cars from an
overpass, and he succeeds against the odds in killing
someone by this means, you are guilty of pro-
viding material support to a murderer, or equivalently of
aiding and abetting—for remember that when the
primary violator of a statute is someone who provides
assistance to another he is functionally an aider and
abettor. The mental element required to fix liability on a
donor to Hamas is therefore present if the donor knows
the character of that organization.
The Court also said in Farmer v. Brennan that it was no
defense that “he [a particular prison official] did not know
that the complainant was especially likely to be assaulted
by the specific prisoner who eventually committed the
assault.” 511 U.S. at 843. That brings us to our next ques-
tion—the standard of causation in a suit under section
2333.
It is “black letter” law that tort liability requires proof of
causation. But like much legal shorthand, the black letter
is inaccurate if treated as exceptionless. We made that
point explicitly, with the aid of an example, in Maxwell v.
KPMG LLP, 520 F.3d 713, 716 (7th Cir. 2008): “when two
fires join and destroy the plaintiff’s property and each one
would have destroyed it by itself and so was not a necessary
condition . . . each of the firemakers (if negligent) is [never-
theless] liable to the plaintiff for having ‘caused’ the injury.
Kingston v. Chicago & N.W. Ry., 211 N.W. 913 (Wis. 1927)”
(emphasis added); see also United States v. Feliciano, 45
F.3d 1070, 1075 (7th Cir. 1995). (A “necessary condition” is
Nos. 05-1815, 05-1816, 05-1821, 05-1822 19
another term for a “but for” cause. Maxwell v. KPMG LLP,
supra, 520 F.3d at 716.)
The multiple-fire example and the principle that sub-
tends it were explained at greater length in United States
v. Johnson, 380 F.3d 1013, 1016 (7th Cir. 2004): “[T]wo
defendants each start a fire, and the fires join and destroy
the plaintiff’s house; either fire, however, would have
destroyed his house. Each defendant could therefore
argue that he should not be liable for the damage because
it would have occurred even if he had not set his fire;
but the law rejects the argument . . . . [I]n the famous old
case of Cook v. Minneapolis, St. Paul & Sault Ste. Marie Ry.,
74 N.W. 561, 564 (Wis. 1898), we read that ‘it is no defense
for a person against whom negligence which causes
damages is established, to prove that without fault on his
part the same damage would have resulted from the
negligent act of the other, but each is responsible for the
entire damage.’ See also Anderson v. Minneapolis, St. Paul &
Sault Ste. Marie Ry., 179 N.W. 45, 49 (Minn. 1920); Collins
v. American Optometric Ass’n, 693 F.2d 636, 640 n. 4 (7th
Cir. 1982); Housing 21, L.L.C. v. Atlantic Home Builders Co.,
289 F.3d 1050, 1056-57 (8th Cir. 2002); Sanders v. American
Body Armor & Equipment, Inc., 652 So. 2d 883, 884-85 (Fla.
App. 1995); Garrett v. Grant School Dist. No. 124, 487
N.E.2d 699, 706 (Ill. App. 1985); Hart v. Browne, 163 Cal.
Rptr. 356, 363-64 (App. 1980); W. Page Keeton et al., Prosser
and Keeton on the Law of Torts § 41, pp. 266-67 (5th ed. 1984).
The tortfeasor cannot avoid liability by pointing to an
alternative unlawful cause of the damage that he
inflicted . . . . [S]ince neither fire was a sine qua non of the
plaintiff’s injury, it could be argued that neither fire maker
20 Nos. 05-1815, 05-1816, 05-1821, 05-1822
had committed a tort. Tort law rejects this conclusion
for the practical reason that tortious activity that produces
harm would go unsanctioned otherwise.” The Prosser
treatise also recognizes the multiple-fire case as one in
which the plaintiff is not required to prove “but for”
causation. Keeton et al., supra, § 41, pp. 266-68; cf. Edward
J. Schwartzbauer and Sidney Shindell, “Cancer and The
Adjudicative Process: The Interface of Environmental
Protection and Toxic Tort Law,” 14 Am. J. L. & Med. 1, 31-
32 (1988).
In the fire cases the acts of each defendant are sufficient
conditions of the resulting injury, though they are not
necessary conditions (that is, they are not but-for causes).
But in Summers v. Tice, 199 P.2d 1 (Cal. 1948), where two
hunters negligently shot their rifles at the same time and
a third hunter was hit by one of the bullets, it could not
be determined which hunter’s gun the bullet had come
from and so it could not be proved by a preponderance
of the evidence that either of the shooters was the injurer
in either a sufficient-condition or a necessary-condition
sense; for each hunter, the probability that he had caused
the injury was only 50 percent, since one of the shots
had missed. Nevertheless both defendants were held
jointly and severally liable to the injured person. See
Restatement, supra, § 433B(3) and comment f; Smith v. Cutter
Biological, 823 P.2d 717, 725 (Haw. 1991); In re “Agent
Orange” Product Liability Litigation, 597 F. Supp. 740, 822-23
(E.D.N.Y. 1984).
Similarly, if several firms spill toxic waste that finds
its way into groundwater and causes damage to property
Nos. 05-1815, 05-1816, 05-1821, 05-1822 21
but it is impossible to determine which firm’s spill caused
the damage, all are liable. See, e.g., Chem-Nuclear Systems,
Inc. v. Bush, 292 F.3d 254, 259-60 (D.C. Cir. 2002); United
States v. Alcan Aluminum Corp., 964 F.2d 252, 267-69 (3d Cir.
1992); Michie v. Great Lakes Steel Division, 495 F.2d 213, 217-
18 (6th Cir. 1974); Landers v. East Texas Salt Water Disposal
Co., 248 S.W.2d 731, 734 (Tex. 1952); Phillips Petroleum Co.
v. Hardee, 189 F.2d 205, 211-12 (5th Cir. 1951); 2 Frank P.
Grad, Treatise on Environmental Law § 3.02 (2007); Kenneth
S. Abraham, “The Relation Between Civil Liability and
Environmental Regulation: An Analytical Overview,” 41
Washburn L. J. 379, 386-87 (2002). Even if the amount of
pollution caused by each party would be too slight to
warrant a finding that any one of them had created a
nuisance (the common law basis for treating pollution as
a tort), “pollution of a stream to even a slight extent
becomes unreasonable [and therefore a nuisance] when
similar pollution by others makes the condition of the
stream approach the danger point. The single act itself
becomes wrongful because it is done in the context of what
others are doing.” Keeton et al., supra, § 52, p. 354.
In all these cases the requirement of proving causation is
relaxed because otherwise there would be a wrong and
an injury but no remedy because the court would be unable
to determine which wrongdoer inflicted the injury. If
“each [defendant] bears a like relationship to the event”
and “each seeks to escape liability for a reason that, if
recognized, would likewise protect each other defendant
in the group, thus leaving the plaintiff without a remedy,”
the attempt at escape fails; each is liable. Id., § 41, p. 268.
22 Nos. 05-1815, 05-1816, 05-1821, 05-1822
But we must consider the situation in which there is
uncertainty about the causal connection between the
wrongful conduct of all potential tortfeasors and the
injury. Suppose in our first case that there was a third
fire, of natural origin (the result of a lightning strike,
perhaps), and it alone might have sufficed to destroy the
plaintiff’s house. One might think the law would
require the plaintiff to prove that it was more likely than
not that had it not been for the defendants’ negligence,
his house would not have burned down—the fire of
natural origin would have petered out before reaching it.
Instead the law requires proof only that there was a
substantial probability that the defendants’ fires (or
rather either of them) were the cause. See, e.g., Anderson v.
Minneapolis, St. Paul & Sault Ste. Marie Ry., supra, 179 N.W.
at 46; Restatement, supra, § 432(2) (“if two forces are actively
operating, one because of the actor’s negligence, the other
not because of any misconduct on his part, and each of
itself is sufficient to bring about harm to another, the
actor’s negligence may be found to be a substantial factor
in bringing it about”); see also id., illustration 3.
Our final example is Keel v. Hainline, 331 P.2d 397 (Okla.
1958). Thirty to forty junior high school students showed
up one day for their music class, but the instructor failed to
show so the kids began throwing wooden erasers, chalk,
and even a Coke bottle at each other. One of the students
was struck in the eye by an eraser, and sued. One of the
defendants, Keel, apparently had not thrown anything.
But he had retrieved some of the erasers after they had
been thrown and had handed them back to the throwers.
There was no indication that Keel had handed the eraser
Nos. 05-1815, 05-1816, 05-1821, 05-1822 23
to the kid who threw it at the plaintiff and injured her,
but the court deemed that immaterial. It was enough
that Keel had participated in the wrongful activity as a
whole. He thus was liable even though there was no
proven, or even likely, causal connection between any-
thing he did and the injury. “ ’One who commands, directs,
advises, encourages, procures, instigates, promotes,
controls, aids, or abets a wrongful act by another has
been regarded as being as responsible as the one who
commits the act so as to impose liability upon the former
to the same extent as if he had performed the act him-
self.’ ” Id. at 401. The court did not use the term “material
support,” but in handing erasers to the throwers Keel was
providing them with material support in a literal sense. It
was enough to make him liable that he had helped to
create a danger; it was immaterial that the effect of his
help could not be determined—that his acts could not be
found to be either a necessary or a sufficient condition
of the injury.
The cases that we have discussed do not involve mone-
tary contributions to a wrongdoer. But then criminals and
other intentional tortfeasors do not usually solicit volun-
tary contributions. Terrorist organizations do. But this is
just to say that terrorism is sui generis. So consider an
organization solely involved in committing terrorist acts
and a hundred people all of whom know the character of
the organization and each of whom contributes $1,000 to
it, for a total of $100,000. The organization has additional
resources from other, unknown contributors of $200,000
and it uses its total resources of $300,000 to recruit, train,
equip, and deploy terrorists who commit a variety of
24 Nos. 05-1815, 05-1816, 05-1821, 05-1822
terrorist acts one of which kills an American citizen. His
estate brings a suit under section 2333 against one of the
knowing contributors of $1,000. The tort principles that
we have reviewed would make the defendant jointly
and severally liable with all the other contributors. The
fact that the death could not be traced to any of the contri-
butors (as in the example the Supreme Court gave in
Farmer v. Brennan) and that some of them may have been
ignorant of the mission of the organization (and there-
fore not liable under a statute requiring proof of inten-
tional or reckless misconduct) would be irrelevant. The
knowing contributors as a whole would have significantly
enhanced the risk of terrorist acts and thus the probability
that the plaintiff’s decedent would be a victim, and this
would be true even if Hamas had incurred a cost of more
than $1,000 to kill the American, so that no defendant’s
contribution was a sufficient condition of his death.
This case is only a little more difficult because Hamas
is (and was at the time of David Boim’s death) engaged not
only in terrorism but also in providing health, educational,
and other social welfare services. The defendants other
than Salah directed their support exclusively to those
services. But if you give money to an organization that
you know to be engaged in terrorism, the fact that you
earmark it for the organization’s nonterrorist activities
does not get you off the liability hook, as we noted in a
related context in Hussain v. Mukasey, 518 F.3d 534, 538-39
(7th Cir. 2008); see also Singh-Kaur v. Ashcroft, 385 F.3d 293,
301 (3d Cir. 2004). The reasons are twofold. The first is the
fungibility of money. If Hamas budgets $2 million for
terrorism and $2 million for social services and receives
Nos. 05-1815, 05-1816, 05-1821, 05-1822 25
a donation of $100,000 for those services, there is nothing
to prevent its using that money for them while at the
same time taking $100,000 out of its social services “ac-
count” and depositing it in its terrorism “account.” Kilburn
v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123,
1130 (D.C. Cir. 2004).
Second, Hamas’s social welfare activities reinforce its
terrorist activities both directly by providing economic
assistance to the families of killed, wounded, and captured
Hamas fighters and making it more costly for them to
defect (they would lose the material benefits that Hamas
provides them), and indirectly by enhancing Hamas’s
popularity among the Palestinian population and provid-
ing funds for indoctrinating schoolchildren. See, e.g., Justin
Magouirk, “The Nefarious Helping Hand: Anti-Corruption
Campaigns, Social Service Provision, and Terrorism,” 20
Terrorism & Political Violence 356 (2008); Eli Berman &
David D. Laitin, “Religion, Terrorism, and Public Goods:
Testing the Club Model” 7-10 (National Bureau of Econ.
Research Working Paper No. 13725, 2008). Anyone who
knowingly contributes to the nonviolent wing of an
organization that he knows to engage in terrorism is
knowingly contributing to the organization’s terrorist
activities. And that is the only knowledge that can reason-
ably be required as a premise for liability. To require
proof that the donor intended that his contribution be
used for terrorism—to make a benign intent a de-
fense—would as a practical matter eliminate donor
liability except in cases in which the donor was foolish
enough to admit his true intent. It would also create a
First Amendment Catch-22, as the only basis for inferring
26 Nos. 05-1815, 05-1816, 05-1821, 05-1822
intent would in the usual case be a defendant’s public
declarations of support for the use of violence to
achieve political ends.
Although liability under section 2333 is broad, to main-
tain perspective we note two cases that fall on the other
side of the liability line. One is the easy case of a dona-
tion to an Islamic charity by an individual who does not
know (and is not reckless, in the sense of strongly sus-
pecting the truth but not caring about it) that the charity
gives money to Hamas or some other terrorist organiza-
tion.
The other case is that of medical (or other innocent)
assistance by nongovernmental organizations such as the
Red Cross and Doctors Without Borders that provide
such assistance without regard to the circumstances
giving rise to the need for it. Suppose an Israeli retaliatory
strike at Hamas causes so many casualties that the local
medical services cannot treat all of them, and Doctors
Without Borders offers to assist. And suppose that many
of the casualties that the doctors treat are Hamas fighters,
so that Doctors Without Borders might know in advance
that it would be providing medical assistance to terrorists.
However, section 2339A(b)(1) excludes “medicine” from
the definition of “material resources.” And even if the
word should be limited (an issue on which we take no
position) to drugs and other medicines, an organization
like Doctors Without Borders would not be in violation of
section 2333. It would be helping not a terrorist group but
individual patients, and, consistent with the Hippocratic
Oath, with no questions asked about the patients’ moral
Nos. 05-1815, 05-1816, 05-1821, 05-1822 27
virtue. It would be like a doctor who treats a person
with a gunshot wound whom he knows to be a criminal.
If doctors refused to treat criminals, there would be less
crime. But the doctor is not himself a criminal unless,
besides treating the criminal, he conceals him from the
police (like Dr. Samuel Mudd, hanged for trying to help
John Wilkes Booth, Lincoln’s assassin, elude capture) or
violates a law requiring doctors to report wounded crimi-
nals. The same thing would be true if a hospital unaffili-
ated with Hamas but located in Gaza City solicited dona-
tions.
Nor would the rendering of medical assistance by the
Red Cross or Doctors Without Borders to individual
terrorists “appear to be intended . . . to intimidate or coerce
a civilian population” or “affect the conduct of a govern-
ment by . . . assassination,” and without such appearance
there is no international terrorist act within the meaning
of section 2331(1) and hence no violation of section 2333.
Nor is this point limited to the rendering of medical assis-
tance. For example, UNRWA (the United Nations Relief
and Works Agency for Palestine Refugees in the Near East)
renders aid to Palestinian refugees that is not limited to
m edical assistance to individu al refugees,
www.un.org/unrwa/english.html (visited Nov. 16, 2008).
But so far as one can glean from its website (see id. and
www.un.org/unrwa/allegations/index.html, also visited
Nov. 16, 2008), it does not give money to organizations,
which might be affiliates of Hamas or other
terrorist groups; it claims to be very careful not to em-
ploy members of Hamas or otherwise render any direct
or indirect aid to it. Id.
28 Nos. 05-1815, 05-1816, 05-1821, 05-1822
To the objection that the logic of our analysis would
allow the imposition of liability on someone who with
the requisite state of mind contributed to a terrorist
organization in 1995 that killed an American abroad in
2045, we respond first that that is not this case—the
interval here was at most two years (1994, when section
2339A was enacted, to 1996, when Boim was killed)—and
second that the imposition of liability in the hypothetical
case would not be as outlandish, given the character of
terrorism, as one might think. (There would of course be
no defense of statute of limitations, since the limitations
period would not begin to run until the tort was com-
mitted, and that would not occur until the injury on
which suit was based was inflicted.) Terrorism cam-
paigns often last for many decades. Think of Ireland, Sri
Lanka, the Philippines, Colombia, Kashmir—and Palestine,
where Arab terrorism has been more or less continuous
since 1920. Seed money for terrorism can sprout acts of
violence long after the investment. In any event, whether
considerations of temporal remoteness might at some
point cut off liability is not an issue we need try to
resolve in this case.
An issue to which the first panel opinion gave much
attention (see 291 F.3d at 1021-27), but which received
little attention from the parties afterward, is brought into
focus by our analysis of the elements of a section 2333
violation. That is whether the First Amendment
insulates financiers of terrorism from liability if they
do not intend to further the illegal goals of an organiza-
tion like Hamas that engages in political advocacy as well
as in violence. If the financier knew that the organization
Nos. 05-1815, 05-1816, 05-1821, 05-1822 29
to which it was giving money engaged in terrorism,
penalizing him would not violate the First Amendment.
Otherwise someone who during World War II gave
money to the government of Nazi Germany solely in
order to support its anti-smoking campaign could not
have been punished for supporting a foreign enemy.
But it is true that “an organization is not a terrorist
organization just because one of its members commits an
act of armed violence without direct or indirect authoriza-
tion, even if his objective was to advance the organiza-
tion’s goals, though the organization might be held liable
to the victim of his violent act.” Hussain v. Mukasey, supra,
518 F.3d at 538. That is the principle of NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 920 (1982). The defendants
in the present case could not be held liable for acts of
violence by members of Hamas that were not authorized
by Hamas. Nor would persons be liable who gave
moral rather than material support, short of incitement,
to violent organizations that have political aims. As
intimated earlier in this opinion, a person who gives a
speech in praise of Hamas for firing rockets at Israel is
exercising his freedom of speech, protected by the First
Amendment. See, e.g., Communist Party of Indiana v.
Whitcomb, 414 U.S. 441, 447-49 (1974); Brandenburg v. Ohio,
395 U.S. 444, 447-48 (1969) (per curiam). But as Hamas
engages in violence as a declared goal of the organiza-
tion, anyone who provides material support to it, knowing
the organization’s character, is punishable (provided he
is enchained by the chain of statutory incorporations
necessary to impose liability under section 2333) whether
or not he approves of violence.
30 Nos. 05-1815, 05-1816, 05-1821, 05-1822
Enough about the liability standard. We have now to
consider its application to the facts. That turns out to be
straightforward, except with respect to one of the defen-
dants, the Holy Land Foundation, about which we can
be brief because of the thoroughness of the panel’s con-
sideration. See 511 F.3d at 720-33. A principal basis for
the district court’s finding that the Foundation had vio-
lated the statute was the court’s giving collateral estoppel
effect to findings made in Holy Land Foundation for Relief &
Development v. Ashcroft, 219 F. Supp. 2d 57 (D.D.C. 2002),
affirmed, 333 F.3d 156 (D.C. Cir. 2003). The panel was
unanimous that this ruling was erroneous.
In 2001 the Secretary of the Treasury determined that
the Foundation “acts for or on behalf of” Hamas, and an
order freezing the Foundation’s funds was issued. The
Foundation sued in the District of Columbia. The district
court there found that the Secretary’s finding was not
“arbitrary and capricious” (the standard of review) and
upheld the blocking order. Although the court recited
extensive evidence that the Foundation knew that Hamas
was and had long been a terrorist organization, 219
F. Supp. 2d at 69-75, and it appears that most or perhaps
all of the evidence related to its knowledge before 1996
when David Boim was killed, the validity of the
blocking order did not depend on the Foundation’s
knowledge. 511 F.3d at 731; see Executive Order 13244, 66
Fed. Reg. 49079 (Sept. 23, 2001); Garry W. Jenkins, “Soft
Power, Strategic Security, and International Philanthropy,”
85 N. Car. L. Rev. 773, 808-09 (2007); Jennifer Lynn Bell,
“Terrorist Abuse of Non-Profits and Charities: A Proactive
Approach to Preventing Terrorist Financing,” 17 Kan. J. L.
Nos. 05-1815, 05-1816, 05-1821, 05-1822 31
& Public Policy 450, 458-59 (2008). If someone is giving
money to an organization that the government knows to
be a terrorist organization, any subsequent gift can be
blocked whether or not the donor knows (or agrees with
the government concerning) the nature of the recipient.
Even if the decision of the district court in the District
of Columbia were read as finding that the Foundation
knew that Hamas was a terrorist organization (and, as the
court also found, that the Holy Land Foundation made
contributions to Hamas after the effective date of 18 U.S.C.
§ 2339A, 219 F. Supp. 2d at 70-71), such a finding would
not have been essential to the judgment upholding the
blocking order—and essentiality is at the heart of collateral
estoppel. Arizona v. California, 530 U.S. 392, 414 (2000);
Montana v. United States, 440 U.S. 147, 159 (1979); H-D
Michigan, Inc. v. Top Quality Service, Inc., 496 F.3d 755, 760
(7th Cir. 2007); Central Hudson Gas & Electric Corp. v.
Empresa Naviera Santa S.A., 56 F.3d 359, 368 (2d Cir. 1995);
Restatement (Second) of Judgments § 27 (1982). If a finding
is unnecessary to the judgment, the appellant has no
reason to challenge it and if he does the appellate court
has no reason to review it because it is irrelevant to the
appeal—and so the appellant would not have his (full)
day in court.
So the judgment against the Foundation must be re-
versed and the case against it remanded for further pro-
ceedings to determine its liability. The judgment against
Salah must also be reversed, as we explained earlier.
Regarding the remaining defendants, the American
Muslim Society and the Quranic Literacy Institute, the
32 Nos. 05-1815, 05-1816, 05-1821, 05-1822
judgment of the district court was in our view correct.
The activities of the American Muslim Society are dis-
cussed at length in the district court’s second opinion. See
340 F. Supp. 2d at 906-13. There we learn that while its
activities included donating money to the Holy Land
Foundation, there was much else besides. Moreover, the
fact that the Foundation may not have known that
Hamas was a terrorist organization (implausible as that is)
would not exonerate the American Muslim Society, which
did know and in giving money to the Foundation was
deliberately funneling money to Hamas. The funnel does-
n’t have to know what it’s doing to be an effective funnel.
Nor should donors to terrorism be able to escape
liability because terrorists and their supporters launder
donations through a chain of intermediate organizations.
Donor A gives to innocent-appearing organization B
which gives to innocent-appearing organization C which
gives to Hamas. As long as A either knows or is reckless
in failing to discover that donations to B end up with
Hamas, A is liable. Equally important, however, if this
knowledge requirement is not satisfied, the donor is not
liable. And as the temporal chain lengthens, the likelihood
that a donor has or should know of the donee’s connec-
tion to terrorism shrinks. But to set the knowledge and
causal requirement higher than we have done in this
opinion would be to invite money laundering, the prolifer-
ation of affiliated organizations, and two-track terrorism
(killing plus welfare). Donor liability would be
eviscerated, and the statute would be a dead letter.
With regard to the Quranic Literacy Institute, the district
court, after denying the Institute’s motion for summary
Nos. 05-1815, 05-1816, 05-1821, 05-1822 33
judgment, 340 F. Supp. 2d at 929, submitted the case
against the Institute to a jury trial but instructed the
jury that Hamas was responsible for the murder of David
Boim. The jury was left to decide whether the Institute had
knowingly provided material support to Hamas. The jury
found the Institute liable. By deciding not to participate in
the trial, the Institute waived any objection it might have
had to the jury instructions or the jury’s findings.
In any event, the only factual determination underlying
the judgment against the Institute, as against the American
Muslim Society, that might be questioned—and was by the
panel—was the determination, made by the district court
on summary judgment, that Hamas had been responsible
for the murder. The panel thought that the district judge
had considered inadmissible evidence that the two terror-
ists who shot Boim were in fact members of Hamas.
Here is the panel’s critique of the principal though not
only evidence of their membership:
To show that the murder of David Boim was the
work of Hamas, the Boims submitted the declaration
of Dr. Ruven [sic] Paz, a former member of the Israeli
security community who describes himself as an expert
in terrorism and counter-terrorism, Islamic movements
in the Arab and Islamic world, Palestinian Islamic
groups, and Palestinian society and politics. Based on
his review of various exhibits submitted in connection
with this case, his independent research, and his
knowledge of how Hamas and other Islamic terror
organizations operate, Paz concluded that Hinawi and
Al-Sharif had murdered David Boim, that Hinawi and
34 Nos. 05-1815, 05-1816, 05-1821, 05-1822
Al-Sharif were members of Hamas at the time they
killed Boim, and that Hamas itself had accepted
responsibility for the murder . . . .
In concluding that Al-Sharif was a member of Hamas
and that Hamas had taken responsibility for the
murder, Paz relied heavily on information set forth on
certain websites that he attributed to Hamas. Paz
explained that Hamas publicly acknowledges its
terrorist acts and identifies its “martyrs” as a way to
promote itself and to recruit new members. According
to Paz, internet websites are a means by which Hamas
disseminates such information. Paz’s declaration
asserts that scholars, journalists, and law enforcement
routinely rely on the website postings of terrorist
organizations for what they reveal about the activities
of those organizations. Looking to certain websites
whose content he asserts is controlled by Hamas, Paz
found statements indicating that Hamas had taken
responsibility for the Beit-El attack that took David
Boim’s life and that Al-Sharif was one of the partici-
pants in this attack. Paz repeated these statements in
his declaration.
Paz’s reliance upon, and his recounting of, internet
website postings demand a certain caution in evaluat-
ing his prospective testimony. Such postings would not
be admissible into evidence for their truth absent
proper authentication, and this would typically require
some type of proof that the postings were actually
made by the individual or organization to which they
are being attributed—in this case, Hamas—as opposed
Nos. 05-1815, 05-1816, 05-1821, 05-1822 35
to others with access to the website. Paz’s declaration
identifies the websites from which he quotes as ones
controlled by Hamas, but it does not describe the basis
for his conclusion, and consequently his declaration
does not permit any independent assessment of the
purported links between these sites and Hamas and
the source of the postings that he recounts. Of course,
the rules of evidence do not limit what type of informa-
tion an expert may rely upon in reaching his opinion;
even if that information would not otherwise be
admissible in a court proceeding, an expert witness
may rely upon it so long as it is the type of information
on which others in the field reasonably rely. Indeed,
Rule 703 now expressly permits the expert to disclose
such information to the jury, provided the court is
satisfied that its helpfulness in evaluating the expert’s
opinion substantially outweighs its prejudicial effect.
Nonetheless, a judge must take care that the expert is
not being used as a vehicle for circumventing the rule
against hearsay. Where, as here, the expert appears to
be relying to a great extent on web postings to establish
a particular fact, and where as a result the factfinder
would be unable to evaluate the soundness of his
conclusion without hearing the evidence he relied on,
we believe the expert must lay out, in greater detail
than Paz did, the basis for his conclusion that
these websites are in fact controlled by Hamas and that
the postings he cites can reasonably and reliably be
attributed to Hamas.
Paz’s conclusion that Hinawi was responsible for the
murder of David Boim was based in significant part on
36 Nos. 05-1815, 05-1816, 05-1821, 05-1822
two documents related to Hinawi’s trial and sentenc-
ing by a Palestinian Authority tribunal: (1) a set of
notes prepared by a U.S. foreign service officer who
attended Hinawi’s trial in February 1998, and (2) an
Arabic-language document purporting to be the
written verdict reflecting Hinawi’s conviction and
sentence. The foreign service officer’s notes indicate
that Hinawi was tried in open proceedings for partici-
pating in a terrorist act and acting as an accomplice in
the killing of David Boim, that he was afforded counsel
by the tribunal, that he contended in his defense that
his friend Al-Sharif was the gunman and that Al-Sharif
exploited his friendship with Hinawi by asking him to
drive the car, and that he was convicted on both
charges and sentenced to ten years. Paz’s declaration
accepts these documents as genuine and relies princi-
pally on them for the proposition that Hinawi partici-
pated in David Boim’s murder and was convicted
by the Palestinian Authority tribunal for the same.
Once again we have concerns about whether the
record as it stands lays an appropriate foundation for
these documents. We can assume that the report of a
U.S. government official who, in the course of his
duties, observed a trial in a foreign tribunal may
constitute proof of what occurred in that proceeding.
We also have no doubt that a properly authenticated,
official report of a judgment issued by a foreign tribu-
nal constitutes adequate proof of that judgment. The
difficulty we have with Paz’s reliance upon these
documents is that they have not been properly authen-
ticated. The foreign service officer’s notes are unsigned
Nos. 05-1815, 05-1816, 05-1821, 05-1822 37
and reveal nothing about the circumstances under
which they were prepared. The document that we are
told is the official verdict is entirely in Arabic, is not
readily evident as an official document, and is unac-
companied by an English translation. There is a single
cover note, on the letterhead of the U.S. Consulate
General in Jerusalem, which accompanies these docu-
ments and explains what they are. But the cover note
itself is unsigned and does not even identify its author.
This is unacceptable. We assume that Paz knows more
about these documents and that he would not have
relied upon them if he had doubts about their authen-
ticity. But given that Paz relies almost exclusively on
these documents as proof of Hinawi’s complicity in
Boim’s murder, and because a factfinder could not
evaluate the soundness of Paz’s conclusion without
knowing what these documents say, an appropriate
foundation must be laid for these documents before the
conclusions that Paz has drawn from these documents
may be admitted.
511 F.3d at 752-54 (citations omitted).
We accept the panel majority’s description of the infirmi-
ties of the evidence on which Reuven Paz (formerly
research director of Shin Bet, Israel’s domestic security
agency) based his expert opinion. But we do not agree
that the district court abused its discretion in allowing
the opinion into evidence. As the quoted passage acknowl-
edges (albeit grudgingly, in its warning against using an
expert witness “as a vehicle for circumventing the rule
against hearsay”), an expert is not limited to relying on
38 Nos. 05-1815, 05-1816, 05-1821, 05-1822
admissible evidence in forming his opinion. Fed. R. Evid.
703; Wendler & Ezra, P.C. v. American Int’l Group, Inc., 521
F.3d 790, 791 (7th Cir. 2008); In re James Wilson Associates,
965 F.2d 160, 172-73 (7th Cir. 1992); United States v. Locascio,
6 F.3d 924, 938 (2d Cir. 1993). That would be a crippling
limitation because experts don’t characteristically base
their expert judgments on legally admissible evidence;
the rules of evidence are not intended for the guidance
of experts. Biologists do not study animal behavior by
placing animals under oath, and students of terrorism do
not arrive at their assessments solely or even primarily
by studying the records of judicial proceedings. Notice,
moreover, that there was no need for the plaintiffs to
prove that both Al-Sherif and Hinawi were complicit in
Boim’s death; if either was complicit and a member of
Hamas, that is enough to fix responsibility on Hamas for
killing Boim.
In dissenting from the panel’s ruling Judge Evans offered
an assessment of Paz’s evidence (see 511 F.3d at 758) that
we find persuasive. An expert on terrorism in the Arab
world, fluent in Arabic, Paz explained that the websites
of Islamic movements and Islamic terrorist organizations
have long been accepted by security experts as valid,
important, and indeed indispensable sources of informa-
tion. Terrorist organizations rely on the web to deliver their
messages to their adherents and the general public. The
United States Institute for Peace, a nonpartisan federal
institution created by Congress, published an extensive
report, submitted to the district court along with Paz’s
declaration, on the use of the Internet by terrorists.
And—critically—the defendants presented no evidence
Nos. 05-1815, 05-1816, 05-1821, 05-1822 39
to contradict Paz: no evidence that the killing of Boim
was not a Hamas hit. Had they thought Paz had mistrans-
lated the Arabic judgment against Hinawi, they could
have provided the district court with their own transla-
tion. Had they doubted that Paz can identify a Hamas
website (he gave the web addresses of several of them),
they could have presented testimony to that effect. Paz’s
12-page declaration is detailed, concrete, and backed up by
a host of exhibits. The district court did not abuse its
discretion in admitting his evidence; and with it in the
record and nothing on the other side the court had no
choice but to enter summary judgment for the plaintiffs
with respect to Hamas’s responsibility for the Boim killing.
To summarize, the judgment of the district court is
affirmed except with respect to (1) Salah, as to whom
the judgment is reversed with instructions to enter judg-
ment in his favor; (2) the Holy Land Foundation, as to
which the judgment is reversed and the case remanded for
further proceedings consistent with this opinion; and
(3) the award of attorneys’ fees—for we adopt the panel’s
criticisms of that award, 511 F.3d at 749-50, and anyway
the award will have to be adjusted because of the
further proceedings on remand that we are ordering.
A FFIRMED IN P ART, R EVERSED IN P ART,
AND R EMANDED .
40 Nos. 05-1815, 05-1816, 05-1821, 05-1822
R OVNER, Circuit Judge, with whom W ILLIAMS, Circuit
Judge, joins, concurring in part and dissenting in part.1 At
this late stage in the litigation, we are now turning to a
fundamental question: Are we going to evaluate claims
for terrorism-inflicted injuries using traditional legal
standards, or are we going to re-write tort law on the
ground that “terrorism is sui generis”? Ante at 23. My
c o l l e a g u e s i n t h e m a jo r i t y h a v e o p t e d t o
“relax[ ]”—I would say eliminate—the basic tort require-
ment that causation be proven, believing that “otherwise
there would be a wrong and an injury but no remedy
because the court would be unable to determine which
wrongdoer inflicted the injury.” Ante at 21. The choice is a
false one. The panel took pains to identify a number of
ways in which the plaintiffs might establish a causal link
between the defendants’ financial contributions to (and
other support for) Hamas and the murder of David Boim.
Boim II, 511 F.3d at 741-43. It is not the case that the plain-
tiffs were unable show causation, it is rather that they did
not even make an attempt; and that was the purpose of the
panel’s decision to remand the case.2 But rather than
requiring the plaintiffs to present evidence of causation
and allowing the factfinder to determine whether causation
has been shown, the majority simply deems it a given,
declaring as a matter of law that any money knowingly
1
Judge Wood also joins this opinion except as to Salah’s
liability.
2
Judge Evans, in his dissent from this holding, not only
thought that the plaintiffs could show causation, but that
they already had. 511 F.3d at 760-61.
Nos. 05-1815, 05-1816, 05-1821, 05-1822 41
given to a terrorist organization like Hamas is a cause of
terrorist activity, period. This sweeping rule of liability
leaves no role for the factfinder to distinguish between
those individuals and organizations who directly and
purposely finance terrorism from those who are many
steps removed from terrorist activity and whose aid has,
at most, an indirect, uncertain, and unintended effect on
terrorist activity. The majority’s approach treats all
financial support provided to a terrorist organization
and its affiliates as support for terrorism, regardless of
whether the money is given to the terrorist organization
itself, to a charitable entity controlled by that organization,
or to an intermediary organization, and regardless of
what the money is actually used to do.
The majority’s opinion is remarkable in two additional
respects. By treating all those who provide money and
other aid to Hamas as primarily rather than secondarily
liable—along with those who actually commit terrorist
acts—the majority eliminates any need for proof that the
aid was given with the intent to further Hamas’s terrorist
agenda. Besides eliminating yet another way for the
factfinder to distinguish between those who deliberately
aid terrorism from those who do so inadvertently, this
poses a genuine threat to First Amendment freedoms.
Finally, the majority sustains the entry of summary judg-
ment on a basic factual question—Did Hamas kill
David Boim?—based on an expert’s affidavit that both
relies upon and repeats multiple examples of hearsay.
Rather than sustain the panel’s unexceptional demand that
the expert’s sources be proven reliable, consistent with
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
42 Nos. 05-1815, 05-1816, 05-1821, 05-1822
597, 113 S. Ct. 2786, 2799 (1993), the majority gives its
blessing to circumventing the rules of evidence altogether.
Thus, although I concur in the decision to remand for
further proceedings as to HLF, I otherwise dissent from
the court’s decision.
1.
One point of clarification at the outset. The majority’s
opinion reads as though the defendants were writing
checks to Hamas, perhaps with a notation on the memo
line that read “for humanitarian purposes.” If indeed the
defendants were directing money into a central Hamas
fund out of which all Hamas expenses—whether for
humanitarian or terrorist activities—were paid, it would
be easy to see that the defendants were supporting
Hamas’s terrorism even if their contributions were ear-
marked for charity. In fact, the case is not as simple as
that. For example, much of the money that defendant
HLF provided to Hamas apparently was directed not to
Hamas per se but to a variety of zakat committees and
other charitable entities, including a hospital in Gaza, that
were controlled by Hamas. See Holy Land Found. for Relief
& Dev. v. Ashcroft, 219 F. Supp. 2d 57, 70-71 (D.D.C. 2002),
j. aff’d, 333 F.3d 156 (D.C. Cir. 2003).3 I gather that this is a
3
HLF’s ties to Hamas have yet to be evaluated in this litigation,
because the district court erroneously gave collateral estoppel
effect to the D.C. Circuit’s determination that HLF funded
(continued...)
Nos. 05-1815, 05-1816, 05-1821, 05-1822 43
distinction without a difference in the majority’s view, and
certainly I agree that if the zakat committees and other
recipients of HLF’s funding were mere fronts for Hamas
or were used to launder donations targeted for Hamas
generally, then those donations ought to be treated as if
they were direct donations to Hamas itself.4 But to the
extent that these Hamas subsidiary organizations
actually were engaged solely in humanitarian work and
HLF was sending its money to those subsidiaries to
support that work, HLF is one or more significant steps
removed from the direct financing of terrorism and the
case for HLF’s liability for terrorism is, in my view, a
much less compelling one. Defendant AMS is yet
another step removed, in that AMS is alleged to have
contributed money not to Hamas but to HLF.
Moreover, the type of support that can give rise to
civil liability is not limited to financial support. As the
panel discussed in Boim I, civil liability under section
2333(a) can result from the provision of “material support
or resources” to terrorism and to terrorist organizations
as prohibited by 18 U.S.C. §§ 2339A and 2339B, see 291
3
(...continued)
terrorism by funding Hamas and its affiliates. See ante at 30-31;
Boim II, 511 F.3d at 726-33.
4
Thus, when I discuss aid given to zakat committees and other
organizations controlled by or affiliated with Hamas, I am
assuming that they are not, in fact, mere fronts for Hamas
that are used to launder donations meant to fund Hamas’s
terrorism.
44 Nos. 05-1815, 05-1816, 05-1821, 05-1822
F.3d at 1012-17, and “material support or resources” is
defined broadly to include not only weapons and money
but “any property, tangible or intangible, or service,”
including such things as lodging, expert advice, training,
and personnel. § 2339A(b)(1). Notably, the plaintiffs have
sought to hold AMS liable, and the district court found
it liable, not simply for the financial support it provided
to HLF, but for various types of pro-Hamas advocacy,
such as hosting Hamas speakers at its conferences, pub-
lishing sympathetic editorials in its newsletter, and the
like. See Boim v. Quranic Literacy Inst., 340 F. Supp. 2d 885,
908-13 (N.D. Ill. 2004).
So the majority’s rule has the potential to sweep
within its reach not only those who write checks to
Hamas and the organizations that it controls but also
individuals and groups who support Hamas and its
affiliates in myriad other ways, including those who
advocate on Hama’s behalf. My point is not that there is
no case to be made for imposing liability on such sup-
porters for Hamas’s terrorist acts. My point is simply that
the basis for their liability is not nearly as clean and
straightforward as it might seem from the majority’s
opinion.
2.
The majority has chosen to evaluate the prospective
liability of the defendants in this case through the lens of
primary liability, reasoning that those who provide
financial and other aid to terrorist organizations are
themselves engaging in terrorism and thus may be
Nos. 05-1815, 05-1816, 05-1821, 05-1822 45
held liable on the same basis as those who actually
commit terrorist acts.5 In formulating its theory of primary
liability, the majority relies in part upon section 2331(1)’s
definition of “international terrorism” and partly upon
section 2339A(a)’s criminal proscription against pro-
viding material support or resources to terrorists. Treating
the defendants as primarily rather than secondarily liable
enables the majority to accomplish two things: First, it
compensates for what the majority believes was Congress’s
failure in section 2333(a) to authorize the imposition of
5
There is a point in the majority’s opinion at which it appears
to describe its liability framework as one that straddles both
primary and secondary liability. After concluding that Congress
did not authorize the imposition of secondary liability under
section 2333(a), ante at 4-6, the majority goes on to say that
“there is no impropriety in discussing” such secondary liability
theories as conspiracy and aiding and abetting, ante at 10, and
that “[p]rimary liability in the form of material support to
terrorism has the character of secondary liability,” ante at 10.
I must confess to some uncertainty as to the majority’s meaning.
What is clear to me is that the majority has rejected the theories
of secondary liability discussed in Boim I and Boim II, and at the
same time the majority is not conditioning liability under section
2333(a) on proof of a defendant’s intent or agreement to aid
terrorism, which would of course be necessary to recover under
a traditional aiding and abetting or conspiracy theory of
liability. I shall therefore describe the majority’s liability
framework as one of primary liability while recognizing that
the majority sees some continued relevance—I am not sure
what—in aiding and abetting and conspiracy concepts to
liability under section 2333.
46 Nos. 05-1815, 05-1816, 05-1821, 05-1822
secondary liability on those who aid or abet terrorist acts
or conspire with terrorists. Second, it eliminates any need
for proof of a defendant’s intent to support terrorism; a
defendant’s knowledge that it is providing aid to an
organization that engages in terrorism is deemed
enough to hold that defendant liable for the organiza-
tion’s terrorist acts.
For the reasons outlined in the Boim I opinion, I continue
to believe that Congress when it enacted section 2333(a)
subjected to civil liability not only those who engage in
terrorism but also those who aid or abet terrorism. 291 F.3d
at 1016-21. The government as an amicus curiae has ex-
pressed agreement with that view. The secondary liability
framework is a much more natural fit for what the defen-
dants here are alleged to have done and as I shall discuss
below, the elements of aiding and abetting serve a useful
function in distinguishing between those who intend to aid
terrorism and those who do not.
But even if I am wrong about the availability of second-
ary liability under section 2333(a), I have my doubts about
the viability of the majority’s theory of primary liability.
For there are conceptual problems with this approach,
particularly as it is applied in this case. These problems
may help to explain why the plaintiffs have long since
abandoned any theory of primary liability and have
relied solely on theories of secondary liability in this
appeal. And it makes it all the more extraordinary that
this court has gone out on a limb to craft a liability stan-
dard that none of the parties has advocated.
Nos. 05-1815, 05-1816, 05-1821, 05-1822 47
The majority first posits that the defendants’ alleged
conduct falls within section 2331(1)’s definition of “inter-
national terrorism,” ante at 6-7, but the fit is by no means
perfect. In full, the statutory definition of the term reads
as follows:
[T]he term “international terrorism” means activities
that—
(A) involve violent acts or acts dangerous to hu-
man 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 juris-
diction of the United States or of any State;
(B) appear to be intended—
(i) to intimidate or coerce a civilian popula-
tion;
(ii) to influence the policy of a government by
intimidation or coercion;
(iii) to affect the conduct of a government by
mass destruction, assassination, or kidnap-
ping; and
(C) occur primarily outside the territorial jurisdic-
tion of the United States, or transcend national
boundaries in terms of the means by which they
are accomplished, the persons they appear in-
tended to intimidate or coerce, or the locale in
which their perpetrators operate or seek asylum[.]
18 U.S.C. § 2331(1). The language of this definition cer-
tainly is broad enough to reach beyond bomb-throwers
48 Nos. 05-1815, 05-1816, 05-1821, 05-1822
and shooters to include those who provide direct and
intentional support to terrorists: someone who ships
arms to a terrorist organization, for example, easily could
be thought to be engaging in activity that “involve[s] violent
acts or acts dangerous to human life” as set forth in
section 2331(1)(A). See Boim I, 291 F.3d at 1014-15. But it
is far from clear that sending money to a Hamas-con-
trolled charitable organization, for example, is on par
with that type of direct support for terrorism. It may be, as
the majority posits, that donations to Hamas’s humanitar-
ian wing indirectly aid its terrorism by freeing up other
funds for terrorism, by giving cover to Hamas, and by
otherwise enhancing Hamas’s image. But it is difficult
if not implausible to characterize donations that are
earmarked and used for humanitarian work as violent or
life-threatening acts as referenced in section 2331(1)(A).
Nor is it evident (to say the least) that financially sup-
porting a Hamas-affiliated charity is an act that “appear[s]
to be intended” to have the sorts of coercive or intimidat-
ing effects on government policy or upon a civilian popula-
tion as described in section 2331(1)(B).
It may be more plausible to say, as the majority does, that
one who provides financial support to Hamas, even to its
charitable subsidiaries, is “provid[ing] material support or
resources” to Hamas’s terrorist acts in violation of section
2339A(a) by increasing the heft of Hamas’s purse. See
ante at 7-8. But that theory too has its problems. The
language of section 2339A(a) requires that the material
support or resources be given with the knowledge or
intent that they “are to be used in preparation for, or in
carrying out” one of a number of specified crimes, includ-
Nos. 05-1815, 05-1816, 05-1821, 05-1822 49
ing as relevant here the killing of American citizens.
(Emphasis mine.); see ante at 7, citing 18 U.S.C. § 2332. In
other words, the donor must at least know that the finan-
cial or other support he lends to Hamas will be used to
commit terrorist acts. In Boim I, the panel agreed that
giving money to Hamas with the purpose of financing
its terrorism would both violate section 2339A(a) and
give rise to civil liability under section 2333. 291 F.3d at
1012-16. But at that early stage of this litigation, the Boims
had a straightforward and direct theory that Hamas’s
American contributors (including HLF) intended for their
money be used to support terrorism, that the zakat com-
mittees and other humanitarian organizations to which
these contributors were sending their money were mere
fronts for Hamas, and that the money received by these
front organizations was laundered and funneled into
Hamas’s coffers to fund terrorist activity, including the
attack that took David Boim’s life. See id. at 1004. That
theory was consistent with the express terms of section
2339A(a). But that is no longer the Boims’ theory (they
have long since abandoned it in favor of aiding and
abetting and conspiracy), nor is it the majority’s. The
majority posits that any money given to a Hamas affiliate,
even if it is given with a benign intent and even if it is
actually put to charitable use, furthers Hamas’s terrorism
in one way or another. Ante at 25. Even if that is so, not
all donors will know or intend that their contributions
will be used to commit the sorts of criminal acts identified
in section 2339A(a). And what the statute proscribes is
the knowing or intentional support of specific terrorist
acts, not the knowing support of a terrorist organization.
50 Nos. 05-1815, 05-1816, 05-1821, 05-1822
If nothing else, the defendants’ contributions to charitable
organizations controlled by Hamas would present a
factual question as to whether the defendants knew that
they were supporting the murder of American citizens
or any of the other crimes listed in section 2339A(a).
3.
Causation, as the majority acknowledges, is a staple of
tort law, ante at 18, and yet the majority relieves the
plaintiffs of any obligation to demonstrate a causal link
between whatever support the defendants provided to
Hamas and Hamas’s terrorist activities (let alone David
Boim’s murder in particular). Instead, the majority
simply declares as a matter of law that any money given
to an organization like Hamas that engages in both terror-
ism and legitimate, humanitarian activity, necessarily
enables its terrorism, regardless of the purpose for which
the money was given or the channel through which the
organization received it. “Anyone who knowingly con-
tributes to the nonviolent wing of an organization that
he knows to engage in terrorism is knowingly contributing
to the organization’s terrorist activities.” Ante at 25. This is
judicial activism at its most plain. The majority offers no
rationale for relieving the plaintiffs of the burden of
showing causation, and there is none that I can discern.
The panel in Boim II expressly disavowed any requirement
that the Boims link specific donations or other acts of
support to David Boim’s murder in particular. 511 F.3d at
741. But it did insist on proof that the types of support the
defendants were alleged to have given Hamas were, in fact,
Nos. 05-1815, 05-1816, 05-1821, 05-1822 51
a cause of Hamas’s terrorism. Id. at 741-43. The panel
outlined multiple ways in which the plaintiffs might show
that support given to Hamas, even donations to its human-
itarian activities, furthers its terrorist agenda, such that it
could be considered a cause of David Boim’s murder. Id.
Someone familiar with Hamas’s financial structure, or with
the financing of terrorism generally, presumably could
provide that sort of testimony. But the majority is not even
conditioning liability on expert opinion that might link the
various types of support provided to Hamas with its
terrorist acts. Expert testimony as to the ways in which
even aid to Hamas’s humanitarian wing enables terrorism
would be subject to adversarial testing and the judgment
of the factfinder based on the totality of the evidence put
before the court. But rather than subject the notion of
causation to those checks, the majority, acting as though
we ourselves are experts, simply declares causation to be
a given that cannot be challenged. Liability under the
majority’s announced rule is sweeping: one who gives
money to any Hamas entity, even if it is a small donation
to help buy an x-ray machine for a Hamas hospital, is liable
from now until the end of time for any terrorist act that
Hamas might thereafter commit against an American
citizen outside of the United States. (The majority itself
acknowledges that under its approach a contribution to
a terrorist organization in 1995 might render the donor
liable for the murder of an American citizen committed
by that organization fifty years later. Ante at 28.) This
type of across-the-board judgment is out of place in the
realm of torts. As an appellate court, it is our job to articu-
late a framework of liability under the statute and thereaf-
52 Nos. 05-1815, 05-1816, 05-1821, 05-1822
ter leave it to the parties to present evidence pursuant to
that framework and to the factfinder to determine
whether or not liability has been established. Where it is
open to question, as I believe it is, whether even humani-
tarian support given to Hamas, to its charitable sub-
sidiary, or to a hospital or other institution that receives
funding from Hamas, actually contributes to Hamas’s
terrorist activities, it should be left to factfinding in indi-
vidual cases (subject, of course, to appellate review) to
evaluate, based on the evidence presented in those cases,
what types of support to Hamas and its affiliated entities
actually cause terrorism. Cf. Thorogood v. Sears, Roebuck &
Co., No. 08-1590, 2008 WL 4709500, at *2 (7th Cir. Oct. 28,
2008) (where the claims of multiple plaintiffs present
complex factual questions, it is preferable to let those
claims be resolved via individual lawsuits, so that the
aggregate outcome fairly reflects the uncertainty of the
plaintiffs’ claims, rather than risk error by having the
issue resolved on a class-wide basis by a single trier of
fact).
The majority’s decision to carve out an exception to
its sweeping liability rule for non-governmental organiza-
tions like the Red Cross and Doctors Without Borders
who provide humanitarian aid to individuals affiliated
with Hamas lays bare the weakness of the rule’s
analytical underpinnings.6 Providing medical care on the
6
True, “medicine” is excluded from the definition of the
“material support or resources” to terrorists proscribed by
(continued...)
Nos. 05-1815, 05-1816, 05-1821, 05-1822 53
battlefield to individuals that one knows are Hamas
terrorists (see ante at 26-27) undoubtedly would have
the effect of aiding Hamas’s terrorism—patching up an
injured terrorist enables him to strike again. I do not
doubt that such aid could be given for noble and compas-
sionate reasons, but neither do I doubt that from the
standpoint of the Israelis whom Hamas targets, the know-
ing provision of medical care to individual terrorists
could be and would be understood as aid to terrorism.
One can also imagine scenarios in which medical aid
could be provided for ignoble and devious reasons. Cf.
United States v. Alvarez-Machain, 504 U.S. 655, 657, 112 S. Ct.
2188, 2190 (1992) (physician indicted for participating in
the kidnap and murder of agent of Drug Enforcement
Administration by helping to prolong captured agent’s
life so that others could continue to interrogate and
torture him). Yet, for no apparent reason other than our
own sense that organizations like the Red Cross and
Doctors Without Borders are good and do good, the
6
(...continued)
section 2339(A)(a), see ante at 26, citing § 2239(A)(b)(1). But to the
extent that the medical exclusion lets an organization like
the Red Cross off the hook (although I note that the services
of the Red Cross are not limited to medical aid), then it
logically ought to exonerate those who fund medical services
provided by Hamas hospitals, for example, for the statute in
no way suggests that the exclusion depends on how the
medical aid is provided. Yet the majority insists that funding a
Hamas hospital would render the donor liable while
directly aiding individual Hamas terrorists would not. See ante
at 25, 26-27.
54 Nos. 05-1815, 05-1816, 05-1821, 05-1822
majority simply declares them exempt from the broad
liability standard that it has announced. Ante at 26-27. On
the other hand, any other individual or organization that
gives to a Hamas-controlled charity is deemed liable,
regardless of whether the money is given with a humani-
tarian purpose and regardless of whether the money is,
in fact, put to humanitarian use. So one cannot fund the
construction of a Hamas hospital, buy the hospital an x-ray
machine, or volunteer her medical services to the hospital,
because this is not providing direct aid to individuals in
the manner of the Red Cross. My colleagues reason that
there is a distinction between providing aid to an individ-
ual, even if he is terrorist, and aid to a terrorist organiza-
tion. Ante at 26-27. But to my mind, that is a distinction
without a difference when one knows that the individual
being aided is engaged in terrorism (or is recklessly
indifferent to that possibility). For example, the majority
notes that one way in which Hamas uses its social welfare
activities to reinforce its terrorist agenda is by providing
economic aid to the families of killed, wounded, or cap-
tured Hamas terrorists, which ensures the continued
loyalty of these family members to Hamas. Ante at 25. In
that respect, one who donates money to Hamas in order
to fund such payments thus could be thought to be pro-
moting terrorism. Yet, the same could be said of a donor
who instead makes payments directly to the family mem-
bers of terrorists rather than giving the money to Hamas.
Indeed, that is exactly what HLF is alleged to have done
(among other things). See Boim II, 511 F.3d at 722; Holy
Land Found. for Relief & Dev., 219 F. Supp. 2d at 71-73. So
providing this type of aid to individuals, rather than to
Nos. 05-1815, 05-1816, 05-1821, 05-1822 55
Hamas, would be accomplishing the same end, notwith-
standing the fact that the donor was giving aid to individu-
als rather than to a terrorist organization. See Singh-Kaur v.
Ashcroft, 385 F.3d 293, 301 (3d Cir. 2004) (providing food
and shelter to militant Sikhs who had committed or
planned to commit terrorist acts constituted material
support for terrorism). The distinction between aiding
an organization and aiding individual members of that
organization does not hold up.
It is only the majority’s sweeping rule of liability that
puts humanitarian organizations like Doctors Without
Borders in peril and that forces the majority to carve out
an unprincipled exemption for such organizations. If a
plaintiff were required to establish a donor’s intent to aid
terrorism, along with a causal link between the aid pro-
vided and terrorist activity, then the factfinder would be
able to draw reasoned, pragmatic distinctions (subject, of
course, to appellate review) between those defendants
who are truly enabling terrorism and those who are not.
4.
The secondary liability framework that we outlined in
Boim I, and on which the plaintiffs built their entire case
against the defendants, provides a more grounded and
effective way of identifying and distinguishing between
the types of support and supporters that actually aid
terrorism and those that do not. As the panel recognized,
those who aid and abet Hamas’s terrorism can be held
liable to the same extent as those who commit the terrorist
acts. Boim I, 291 F.3d at 1016-21. But in addition to
56 Nos. 05-1815, 05-1816, 05-1821, 05-1822
showing knowledge of Hamas’s terrorist activity and the
provision of financial or other support to Hamas, aiding
and abetting would require proof of an intent to help
Hamas’s terrorist activities succeed. Id. at 1021, 1023.
Proof of intent would serve two important functions.
First, it would serve to single out the most culpable of
Hamas’s financiers and other supporters by focusing on
those who actually mean to contribute to its terrorist
program, as opposed to those who may unwittingly aid
Hamas’s terrorism by donating to its charitable arm.
I think it would be possible to infer the intent to further
terrorism in a number of scenarios. Donations to Hamas
itself have been a crime since 1997, for example, when
Hamas was formally designated a foreign terrorist organi-
zation pursuant to 8 U.S.C. § 1189, see §2339B(a) and (g)(6);
and so a prohibited donation in the wake of that designa-
tion would be prima facie proof of one’s intent to
further terrorism.7 The same could be said of donations to
zakat committees and other organizations that themselves
have been formally designated as terrorist organizations
based on their links with Hamas. On the other hand, a
factfinder confronted with evidence that a donor gave only
7
Hamas previously had been designated a terrorist organiza-
tion in January 1995 (some fourteen months before David Boim
was killed) and donations to Hamas were prohibited from that
point forward. See Boim II, 511 F.3d at 720. But the criminal
penalties of section 2339B were not triggered until 1997 (the year
after Boim was murdered), when Hamas was designated a
foreign terrorist organization pursuant to section 1189. See
Boim I, 291 F.3d at 1016.
Nos. 05-1815, 05-1816, 05-1821, 05-1822 57
to a non-designated, Hamas-controlled hospital for the
purpose of funding the medical services provided by
that hospital would be free to conclude that the donor
had a benign intent and did not aid or abet Hamas’s
terrorism even if, in the abstract, one might believe that
furthering Hamas’s humanitarian activity enhances its
image and thereby supports its violent activities. The
ability of the factfinder to draw such distinctions is impor-
tant, given the difficulty there might be in deciding, under
the majority’s standard, what constitutes a terrorist
organization and what constitutes the knowing provi-
sion of support to such an organization. Organizations
that openly embrace terrorism as their declared goal are
easy to categorize as terrorist organizations. But what
about organizations that engage in terrorism but disclaim
responsibility? Or organizations whose members fre-
quently engage in terrorist acts with implicit but not
explicit approval from the organizations themselves? And
what are we to make of charitable entities that are
affiliated with such organizations? Or charitable entities
that receive some but not all of their funding from such
organizations—a hospital that receives contributions
from Hamas but is not controlled by it, for example? I am
not sure just how far the majority’s liability rule extends.
Insisting on proof of a donor’s intent to support terrorism
would help to confirm the donor’s culpability in
instances where the terrorist nature of the organization
receiving aid is less clear than it would be if a donor
were making out a check payable to Hamas. It would
also serve as a principled way to exempt organizations
like the Red Cross and Doctors Without Borders, who
58 Nos. 05-1815, 05-1816, 05-1821, 05-1822
engage in humanitarian work that may incidentally or
tangentially aid individual terrorists or terrorist organiza-
tions, but who have no intent to aid terrorist activity.
The intent requirement would also play a vital role in
protecting the First Amendment rights of those accused of
facilitating Hamas’s terrorism. The possibility that a
section 2333(a) suit might implicate First Amendment
rights is not an abstract one. Even to the extent that such
a suit is based on the money that a defendant has contrib-
uted to an organization that engages in terrorism, the
defendant’s First Amendment rights must be accounted
for, given that donating money to an organization, though
it is not speech in and of itself, is one way to express
affinity with that organization and to help give voice to
the viewpoints that organization espouses. See Buckley v.
Valeo, 424 U.S. 1, 65-66, 96 S. Ct. 612, 657 (1976) (per
curiam) (“The right to join together ‘for the advancement
of beliefs and ideas’ is diluted if it does not include the
right to pool money through contributions, for funds are
often essential if ‘advocacy’ is to be truly or optimally
‘effective.’ ”) (quoting NAACP v. Alabama, 357 U.S. 449, 460,
78 S. Ct. 1163, 1170 (1958)); see also Citizens Against Rent
Control v. Berkeley, 454 U.S. 290, 102 S. Ct. 434 (1981).
Certainly, given the government’s paramount interest
in battling terrorism, the government may prospectively
ban, and even criminalize, donations to an organization
that it deems a terrorist organization. See § 2339B(a); Boim
I, 291 F.3d at 1027; Humanitarian Law Project v. Reno, 205
F.3d 1130, 1135 (9th Cir. 2000). Hamas was so designated
in 1997, the year after David Boim was murdered. See n. 7,
supra. But when an organization engages in both legal
Nos. 05-1815, 05-1816, 05-1821, 05-1822 59
and illegal activities and donations to that organization
have not been prohibited, a donor may not be held civilly
liable for the organization’s illegal activity based solely on
his contributions, for to do so would infringe upon the
defendant’s First Amendment freedoms. In re Asbestos
School Litigation, 46 F.3d 1284, 1290 (3d Cir. 1994) (Alito, J.).
And money is not the only type of support that the
defendants are alleged to have provided Hamas. One need
only look again at the conduct for which AMS was held
liable by the district court: hosting Hamas speakers at its
conferences, publishing pro-Hamas articles and editorials
in his newsletters, rallying support for HLF when it was
declared a terrorist organization, and so forth. 340 F. Supp.
2d at 908-13. All of that conduct involves pure speech.
See ante at 29; Boim I, 291 F.3d at 1026.
And so the First Amendment is very much implicated by
this case. Both through their contributions of money to
Hamas and its subsidiary organizations, and (in the case
of AMS) through their advocacy on behalf of Hamas, the
defendants have demonstrated an affiliation with and
affinity for Hamas. But NAACP v. Claiborne Hardware Co.,
458 U.S. 886, 102 S. Ct. 3409 (1982), holds that an
individual may not be held civilly liable for his mere
association with an organization whose members
engage in illegal acts.
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
60 Nos. 05-1815, 05-1816, 05-1821, 05-1822
goals and that the individual held a specific intent
to further those illegal aims.
Id. at 920, 102 S. Ct. at 3429 (footnote omitted). Moreover,
an individual’s intent vis-à-vis an organization that holds
both lawful and unlawful purposes “must be judged
‘according to the strictest law,’ ”
for “otherwise there is a danger that one in sympathy
with the legitimate aims of such an organization, but
not specifically intending to accomplish them by resort
to violence, might be punished for his adherence to
lawful and constitutionally protected purposes, be-
cause of other and unprotected purposes which he
does not necessarily share.”
Id. at 919, 102 S. Ct. at 3429 (quoting Noto v. United States,
367 U.S. 290, 299-300, 81 S. Ct. 1517, 1521 (1961)). The panel
in Boim I recognized that the aiding and abetting
standard is consistent with the rule announced in
Claiborne Hardware in that it conditions liability on proof
that a defendant knew of the organization’s illegal pur-
poses and had the intent to further those purposes when
that defendant joined and/or aided the organization. 291
F.3d at 1023-24. By contrast, the majority’s approach
requires no proof of an intent to further Hamas’s activities;
so long as a donor to Hamas or its affiliate knows that
Hamas engages in terrorism, the donor is liable for any
terrorist act committed by Hamas against an American
citizen regardless of the purpose behind the donation.
The majority suggests that the rule of Claiborne Hardware
does not apply because violence is a stated goal of Hamas
rather than something a few rogue members happen to
Nos. 05-1815, 05-1816, 05-1821, 05-1822 61
engage in without its approval.
The defendants in the present case could not be held
liable for acts of violence by members of Hamas that
were not authorized by Hamas. . . . But as Hamas
engages in violence as a declared goal of the organiza-
tion, anyone who provides material support
to it, knowing the organization’s character, is punish-
able . . . whether or not he approves of violence.
Ante at 29 (emphasis in original). But this holding is
directly contrary to Claiborne Hardware, which requires
proof of a defendant’s intent to further violence even
when violence is a goal that the organization embraces.
See 458 U.S. at 920, 102 S. Ct. at 3429 (“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.”) (emphasis added). See Scales v.
United States, 367 U.S. 203, 229, 81 S. Ct. 1469, 1486 (1961)
(individual may be convicted for active membership in
organization that advocates violent overthrow of U.S.
government so long as there is “clear proof that a defen-
dant ‘specifically intend[s] to accomplish [the aims of the
organization] by resort to violence.’ ”) (quoting Noto v.
United States, 367 U.S. at 299, 81 S. Ct. at 1522); see also
Community Party of Indiana v. Whitcomb, 414 U.S. 441, 447-
49, 94 S. Ct. 656, 661-62 (1974) (government may not
forbid advocacy of lawbreaking or use of force unless it is
inciting imminent lawless action) (citing Brandenburg v.
Ohio, 395 U.S. 444, 447-48, 89 S. Ct. 1827, 1829-30 (1969));
Elfbrandt v. Russell, 384 U.S. 11, 15-18, 86 S. Ct. 1238, 1240-41
62 Nos. 05-1815, 05-1816, 05-1821, 05-1822
(1966). Certainly I agree that someone who gives money
or other support to Hamas knowing that it will be used
for terrorist activity—a violation of section 2339A(a)—can
be held civilly liable for that activity, but in that case one’s
intent could readily be inferred. But to impose liability
based on aid that may have been given—and, in fact,
used—for humanitarian purposes is to do exactly what
Claiborne Hardware proscribes: punish the supporter “for
his adherence to [an organization’s] lawful and constitu-
tionally protected purposes, because of other and unpro-
tected purposes which he does not necessarily share.”
458 U.S. at 919, 102 S. Ct. at 3429 (quoting Noto).
Given that the majority’s analysis requires no proof of
that any of the defendants intended to support Hamas’s
terrorism, it is inconsistent with the Supreme Court’s
First Amendment jurisprudence. Although the majority
suggests that an intent requirement would, as a practical
matter, eliminate donor liability except in those few cases
where a donor declared his intent to support terrorism,
ante at 25, that certainly is not true in other areas of the
law where proof of a defendant’s intent is required. As
we often note in employment discrimination and a wide
variety of other cases, there is rarely direct proof of a
defendant’s intent, and yet intent can be proved circum-
stantially. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 141, 120 S. Ct. 2097, 2105 (2000) (age dis-
crimination); Amrhein v. Health Care Serv. Corp., No. 07-
1460, 2008 WL 4613877, at *3 (7th Cir. Oct. 20, 2008) (Title
VII retaliation); United States v. Roberts, 534 F.3d 560, 571
(7th Cir. 2008) (wire fraud); United States v. Patterson, 348
F.3d 218, 225-26 (7th Cir. 2003) (narcotics conspiracy),
Nos. 05-1815, 05-1816, 05-1821, 05-1822 63
abrogated on other grounds by Blakely v. Washington, 542 U.S.
296, 124 S. Ct. 2531 (2004); Toushin v. Comm’r of Internal
Revenue, 223 F.3d 642, 647 (7th Cir. 2000) (tax fraud); United
States v. Rose, 12 F.3d 1414, 1417, 1420 (7th Cir. 1994)
(aiding and abetting the transportation and receipt of a
stolen motor vehicle). Moreover, should there be
evidence that a defendant has made statements in sup-
port of the use of violence to achieve political ends,
relying on such statements as proof that the defendant
provided financial or other aid to a terrorist organization
with the intent to support its terrorist activities would not,
as the majority suggests, ante at 25-26, pose a First Amend-
ment problem. See Wisconsin v. Mitchell, 508 U.S. 476, 489,
113 S. Ct. 2194, 2201 (1993) (“The First Amendment . . .
does not prohibit the evidentiary use of speech to establish
the elements of a crime or to prove motive or intent.”).
5.
Finally, the majority treats Dr. Paz’s affidavit as suf-
ficient evidence that Hamas was responsible for David
Boim’s murder. Although the majority recognizes that Paz
relied on a variety of unauthenticated electronic and
documentary sources for his conclusion, it nonetheless
deems his affidavit admissible and sufficient to sustain
summary judgment for the plaintiffs on this point
because an expert is free in forming his opinion to rely
on evidence that would not be admissible in court. Ante
at 37-38. But the panel’s principal point was that Dr. Paz’s
conclusion as to who killed David Boim is meaningless
without reference to the websites and documents that he
64 Nos. 05-1815, 05-1816, 05-1821, 05-1822
so heavily relied upon in forming his opinion, and yet
allowing Paz to recount what those sources say without
establishing their authenticity and trustworthiness
would contradict the basic requirement that expert
opinion have “a reliable foundation,” Daubert v. Merrell
Dow Pharmaceuticals, supra, 509 U.S. at 597, 113 S. Ct. at
2799; see also Fed. R. Evid. 703. Paz’s opinion is based
exclusively on what these websites and documents say;
he has no personal knowledge of who killed David Boim.
So if these sources are not genuine or say something
other than what he has represented, then his opinion is
worthless. No expert worth his salt would base his
opinion on internet and documentary sources without
assuring himself that they are reliable—that a website
thought to be a Hamas site is, in fact, a website con-
trolled by Hamas and authorized to make representations
on its behalf, for example, or that what purports to be the
written judgment of a foreign tribunal is actually that. But
Paz’s affidavit does not describe any such efforts that he
made, and there is no other evidence in the record that
establishes the authenticity and reliability of the websites
and documents whose contents he recounts.
The glaring lack of any information confirming the
authenticity and accuracy of Paz’s sources raises obvious
doubts about the reliability of his opinion. To cite just a
few examples: For the proposition that Hinawi killed
David Boim, Paz relies on a document in Arabic that
purports to be the written judgment reflecting Hinawi’s
conviction and sentence before a Palestinian Authority
tribunal, along with the notes of a U.S. State Department
employee who observed Hinawi’s trial. Here is the cover
Nos. 05-1815, 05-1816, 05-1821, 05-1822 65
letter accompanying and describing both the trial notes
and the judgment (Figure 1), followed by the judgment
form (Figure 2):
66 Nos. 05-1815, 05-1816, 05-1821, 05-1822
Figure 1: Cover letter
Nos. 05-1815, 05-1816, 05-1821, 05-1822 67
Figure 2: Hinawi Judgment
No translation of the Arabic-language judgment has been
provided (it could be an advertisement for all I know), and
neither the judgment nor the notes of the foreign service
68 Nos. 05-1815, 05-1816, 05-1821, 05-1822
officer have been authenticated in any meaningful way
by the cover letter, which does not even identify the
letter’s author. We have absolutely no way to know, given
the current state of the record, whether these documents
are what Paz says they are, and thus no way of assessing
the reliability of his conclusions. As a final example, here
is one of the web pages Paz relied on as evidence that
Hamas took responsibility for David Boim’s murder:
Figure 3: web page
Nos. 05-1815, 05-1816, 05-1821, 05-1822 69
The selective translation obviously makes it impossible
for the reader to independently evaluate the context and
meaning of what Paz is relying on. Notwithstanding these
infirmities, the majority is content not only to deem Paz’s
opinion admissible, but to sustain the entry of summary
judgment against the defendants on this point. The defen-
dants cannot be faulted for failing to refute Paz’s conclu-
sions, see ante at 38-39, for the party opposing summary
judgment is not required to rebut factual propositions
on which the movant bears the burden of proof and that
the movant has not properly supported in the first in-
stance. See Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106
S. Ct. 2548, 2557 (1986) (Brennan, J., dissenting) (citing 10A
C. Wright, A. Miller, & M. Kane, F EDERAL P RACTICE &
P ROCEDURE § 2727 (2d ed. 1983)); L & W, Inc. v. Shertech,
Inc., 471 F.3d 1311, 1318 (Fed. Cir. 2006); Black v. M & W
Gear Co., 269 F.3d 1220, 1238 (10th Cir. 2001). In any
other sort of case, this sort of sloppiness would not be
tolerated, and we certainly would not sustain the entry
of summary judgment based on such shaky evidence.8
8
One of the other concerns the panel noted was the lack of a
foundation for attributing the representations on various
websites regarding David Boim’s murder to Hamas. 511 F.3d at
753. If that seems like nitpicking, consider the following: Octavia
Nasr, “bin Laden hacked?”, AC360 / , http://ac360.blogs.cnn.com/
2008/10/23/bin-laden-hacked/ (last visited 11/25/2008).
70 Nos. 05-1815, 05-1816, 05-1821, 05-1822
6.
The murder of David Boim was an unspeakably brutal
and senseless act, and I can only imagine the pain it has
caused his parents. Terrorism is a scourge, but it is our
responsibility to ask whether it presents so unique a
threat as to justify the abandonment of such time-honored
tort requirements as causation. Our own response to a
threat can sometimes pose as much of a threat to our civil
liberties and the rule of law as the threat itself. See, e.g.,
Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193 (1944).
The panel’s in Boim II took a conservative approach, fully
consistent with precedent, that insisted on proof that the
defendant’s actions were a cause of Hamas’s terrorism,
proof that the defendants intended to support terrorism,
and admissible evidence to support such basic factual
points as whether Hamas was responsible for David Boim’s
murder. This en banc court, by contrast, relieves the
plaintiffs of all of these obligations, following a path that
portends sweeping liability for those individuals and
groups who give their support to the humanitarian activi-
ties and affiliates of terrorist organizations but who may
have no intent to support terrorism and whose actual link
to terrorism has never been evaluated by a factfinder.
I stand by the approach taken by the Boim I and Boim II
panel.
7.
For all of the reasons set forth above and in the panel’s
Boim II opinion, I would remand for further proceedings
as to all four defendants, including Salah. I would require
Nos. 05-1815, 05-1816, 05-1821, 05-1822 71
the plaintiffs on remand to demonstrate that any finan-
cial or other support the defendants have given to Hamas
and Hamas-affiliated entities was in some way a cause of
Hamas’s terrorism. I would also insist the plaintiffs set
forth a more complete evidentiary foundation for the
proposition that Hamas killed David Boim.
W OOD , Circuit Judge, concurring in part and dissenting in
part.1 This is a heart-breaking case. No parent can fail to
empathize with Joyce and Stanley Boim, who lost their son
to the evil of terrorism just as he was on the brink of
all of life’s promise. Nothing can bring David Boim back,
but the Boims have taken advantage of a statute that
Congress passed that was designed to provide some degree
of accountability for those who commit such awful acts.
See 18 U.S.C. § 2333(a). In Boim v. Quranic Literacy Inst. &
Holy Land Found., 291 F.3d 1000 (7th Cir. 2002) (“Boim I”),
this court decided that the set of possible defendants in
such an action includes not only the direct actors (here,
Amjad Hinawi and Khalil Tawfiq Al-Sharif) and the
organization to which they belonged and that directed
1
Judge Rovner and Judge Williams join this opinion except
with respect to Salah’s liability.
72 Nos. 05-1815, 05-1816, 05-1821, 05-1822
their actions (here, said to be Hamas), but also organiza-
tions that aid and abet the former two. When all is said and
done, the en banc majority has reaffirmed the latter ruling,
though it does so under a slightly different rubric. But, in
our zeal to bring justice to bereaved parents, we must not
lose sight of the need to prove liability on the facts that are
presented to the court. Assumptions and generalizations
are no substitute for proof. Particularly because, unfortu-
nately, this probably will not be the last case brought by a
victim of international terrorism, it is crucial that we be
as clear as we can in fleshing out the statutory require-
ments and that we do not rush to judgment. Because I
do not agree with the majority’s articulation and applica-
tion of some of the governing legal standards, and I find
too many central facts to be in dispute, I am still of the
view that this case needs to be remanded for further
proceedings.
I begin, however, by underscoring that I agree with the
en banc majority’s analysis on a number of points. First,
throughout the proceedings before this court, we have
unanimously rejected the district court’s decision to give
collateral estoppel effect to the findings in the case that
was litigated in the District of Columbia, Holy Land Found.
for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57 (D.D.C.
2002), affirmed, 333 F.3d 156 (D.C. Cir. 2003) (“HLF v.
Ashcroft”). See Boim v. Holy Land Foundation for Relief and
Dev., 511 F.3d 707, 720-33 (7th Cir. 2007) (“Boim II”). We all
agree that it was error to grant summary judgment in
favor of the plaintiffs against the Holy Land Foundation
for Relief and Development (“HLF”), and that further
proceedings are required. Second, under the new analysis
Nos. 05-1815, 05-1816, 05-1821, 05-1822 73
that the en banc majority has undertaken, which uses “a
chain of explicit statutory incorporations by reference,”
ante, at 6, it was error to grant summary judgment in
favor of the plaintiffs against Muhammad Salah. Again, we
all agree that there are problems with Salah’s part of the
case. The en banc majority is reversing the finding of
liability outright because Salah could not have rendered
material support to Hamas between the effective date of
18 U.S.C. § 2339A, September 13, 1994, and the date of
David Boim’s murder, May 13, 1996, because he was in
Israeli custody between January 1993 and November 1997.
Ante, at 9. In fact, the Boim II panel majority took a less
absolute approach. It found that the district court erred in
concluding that Salah’s liability could be established
only by showing that (1) he knew of Hamas’s terrorist
activities, (2) he desired to help those activities succeed,
and (3) through his participation in the Hamas conspiracy,
acts of co-conspirators sufficed to show that he engaged
in some act of helping to bring about Boim’s murder.
Rather than reversing outright, as the en banc majority has
done, the Boim II panel majority would have reversed the
summary judgment in the plaintiffs’ favor and
remanded to give plaintiffs the opportunity to identify
“evidence that would permit a reasonable factfinder to
find that Salah’s actions on behalf of Hamas in some way
caused or contributed to David Boim’s death.” Boim II,
511 F.3d at 748.
I am persuaded by the en banc majority’s statutory
analysis that the correct result is reversal of the finding
against Salah, rather than a remand for further proceed-
ings. Its careful exegesis of the way that the governing
74 Nos. 05-1815, 05-1816, 05-1821, 05-1822
statutes in this area work together demonstrates why the
furnishing of material assistance is a ground for liability
under 18 U.S.C. § 2333. I thus do not dissent from the
en banc court’s decision that the judgment against Salah
must be reversed.
It is the en banc majority’s analysis of the cases against
the Quranic Literacy Institute (“QLI”) and the American
Muslim Society (“AMS”) (along with the Islamic Associa-
tion of Palestine) that I find problematic. I continue to
believe that the decisions in Boim I and Boim II correctly
found that Congress intended, in passing 18 U.S.C. § 2333,
to create an intentional tort, that it meant to “extend civil
liability for acts of international terrorism to the full
reaches of traditional tort law,” Boim I, 291 F.3d at 1010,
that nothing in Central Bank of Denver, N.A. v. First Interstate
Bank of Denver, N.A., 511 U.S. 164 (1994), suggests that
Congress lacks the power to do so when it wishes, and
finally that § 2333 does impose secondary liability on
those who aid and abet acts of terrorism. The en banc
majority expresses doubts about this holding, although
in the end it neither adopts it nor rejects it. Instead, it
turns to “an alternative and more promising ground for
bringing donors to terrorist organizations within the
grasp of section 2333.” Ante, at 6.
Working through a chain of statutes—from § 2333(a)
(treble damages action for person injured by an act of
international terrorism, to § 2331(1) (definition of inter-
national terrorism), to § 2339A (providing material
support for something that violates a federal criminal law
is itself a crime), to § 2332 (criminalizing the killing of any
Nos. 05-1815, 05-1816, 05-1821, 05-1822 75
American citizen outside the United States)—the en banc
majority concludes that there is primary liability under
§ 2333(a) for someone who donates money “to a terrorist
group that targets Americans outside the United States.”
Ante, at 8. The en banc majority then establishes
several criteria for the claim it has recognized: (1) it is the
fact of contributing to a terrorist organization, not the
amount of the contribution, that is the key to liability,
ante, at 9; and (2) there is a knowledge requirement, to the
effect that the donor-defendant must have known that
the money would be used “in preparation for or in
carrying out the killing or attempted killing of, conspiring
to kill, or inflicting bodily injury on, an American citizen
abroad.” Ante, at 10. At that point, however, the en banc
majority announces that its theory does not establish
primary liability after all—instead, a claim based on
material support “has the character of secondary liability.
Through a chain of incorporations by reference, Congress
has expressly imposed liability on a class of aiders and
abettors.” Id.
I would have thought that this was exactly the con-
clusion that the Boim I panel reached. By labeling its theory
as one of primary liability, the en banc majority is appar-
ently trying to reap the advantages of both kinds of
theories. It acknowledges that in order to prove a primary
liability case, the plaintiffs would need to establish “the
ordinary tort requirements relating to fault, state of mind,
causation, and foreseeability.” Ante, at 10. But, it says,
those requirements do not apply here, because “function-
ally the primary violator is an aider and abettor or other
secondary actor.” Ante, at 11.
76 Nos. 05-1815, 05-1816, 05-1821, 05-1822
I believe that the following is a fair summary of the
formal requirements that the en banc majority has an-
nounced for proving a case under § 2333:
1. Act requirement: the defendant must have pro-
vided material assistance, in the form of money or
other acts, directly or indirectly, to an organiza-
tion that commits terrorist acts.
2. State of mind requirement: the defendant must
either know that the donee organization (or the
ultimate recipient of the assistance) engages in
such acts, or the defendant must be deliberately
indifferent to whether or not it does so.
3. Causation: there is no requirement of showing
classic “but-for” causation, nor, apparently, is there
even a requirement of showing that the defen-
dant’s action would have been sufficient to
support the primary actor’s unlawful activities or
any limitation on remoteness of liability.
There is little to criticize in the first of these criteria, as an
abstract matter. The second may also pass muster, again as
an abstract matter. For both of these, my problem with the
en banc majority’s opinion lies more in the way that they
are applied to these facts, as I explain further below, than
in their formal scope. With respect to the third require-
ment, there is both a theoretical problem and a problem
with the application, and so I begin with that.
The en banc majority asserts that its position on causa-
tion is supported by a number of cases that it discusses.
Those cases, however, do not go as far as the en banc
Nos. 05-1815, 05-1816, 05-1821, 05-1822 77
majority claims, nor am I familiar with anything else in
the law of torts that does so. It is important here to be
precise once again about areas of agreement and areas of
disagreement. The en banc majority is quite right to point
out that literal “but-for” causation cannot be shown in
certain cases, and in those cases, the courts have accepted
substitutes for the “but-for” showing. Thus, in the case
where there are two independent acts, and either one
alone would have brought about the injury, a defendant
who was responsible for one of those acts cannot defeat
liability by pointing out that the other one would have
been enough to create the harm by itself. That is the
principle illustrated by Kingston v. Chicago & N.W. Ry. Co.,
211 N.W. 913 (Wis. 1927), discussed in our decision in
Maxwell v. KPMG LLP, 520 F.3d 713, 716 (7th Cir. 2008). It
is also the principle endorsed by the most recent draft of
the American Law Institute’s Restatement (Third) of the
Law of Torts: Liability for Physical and Emotional Harm,
§ 27 (“Restatement (Third) of Torts”), which says “[i]f
multiple acts occur, each of which alone would have
been a factual cause under § 26 of the physical harm at
the same time in the absence of the other act(s), each act
is regarded as a factual cause of the harm.” This is a far cry
from saying that cause need not be proven if there are
multiple sufficient causes; the ALI’s draft acknowledges
simply that some harms may be overdetermined, and in
those cases, cause can be proven by demonstrating that
the defendant’s tortious conduct was sufficient to
produce the harm. Maxwell, cited by the en banc majority,
illustrates this principle as well as anything: “There are
also cases in which a condition that is not necessary, but is
78 Nos. 05-1815, 05-1816, 05-1821, 05-1822
sufficient, is deemed the cause of an injury, as when two
fires join and destroy the plaintiff’s property and each one
would have destroyed it by itself and so was not a neces-
sary condition; yet each of the firemakers (if negligent) is
liable to the plaintiff for having ‘caused’ the injury.” 520
F.3d at 716. The key word here is “sufficient”: the plaintiff
cannot win without showing that the defendant’s act
would have been sufficient to cause the injury, even
though it may be the case that other acts might also
have been sufficient.
The other examples the en banc majority uses fit the rule
articulated in Restatement (Third) § 27. Thus, if there
were two wrongful causes and a third innocent one (two
arsonists plus a lightning strike, for example), any of
which would have caused the injury at issue, the person
responsible for one of the wrongful acts cannot take
refuge in the fact that other sufficient causes were also
present. Or if, as in the classic case of Summers v. Tice, 199
P.2d 1 (Cal. 1948), there are two possible causes, either of
which would have been sufficient to cause the harm (a
bullet from each of two guns, either one of which would
have sufficed to harm the third party), once again
sufficient cause has been proven even if necessary cause
cannot be. Ditto with the en banc majority’s example of
several firms that spill toxic waste that finds its way
into groundwater and damages property. Even if the
damage is slight, that wrongful act is sufficient for liabil-
ity. Any remaining uncertainties can be resolved through
rules on apportionment of damages.
In the end, the en banc majority is reduced to relying on
a case where a roomful of junior high school students
Nos. 05-1815, 05-1816, 05-1821, 05-1822 79
erupted into a melee and a bystander student was seriously
hurt. See Keel v. Hainline, 331 P.2d 397 (Okla. 1958). A closer
look at the facts of that case is useful. Approximately 35
to 40 students were in their music classroom one day,
but because the instructor failed to show up on time, they
were unsupervised for about a half hour. Here is the
court’s description of what unfolded:
During the absence of the instructor, several of the
male students indulged in what they termed “horse
play”. This activity consisted of throwing wooden
blackboard erasers, chalk, cardboard drum covers,
and, in one instance, a “coke” bottle, at each other. It
appears that two or three of the defendants went to
the north end of the class room and the remaining
defendants went to the south end of the room. From
vantage points behind the blackboard on the north
end and the piano on the south end, they threw the
erasers and chalk back and forth at one another. This
activity was carried on for a period of some 30 minutes,
and terminated only when an eraser, thrown by
defendant [Larry] Jennings, struck plaintiff in the eye,
shattering her eye glasses, and resulting in the loss
of the use of such eye.
331 P.2d at 398-99. The defendants to whom the court
refers were six boys—two or three at one end of the room,
the rest at the other end of the room. Robert Keel, the
plaintiff-in-error, was in one of those groups—the facts do
not mention whether Keel was on Jennings’s “team” or the
other one. The court first found that what it characterized
as “the willful and deliberate throwing of wooden black-
80 Nos. 05-1815, 05-1816, 05-1821, 05-1822
board erasers at other persons in a class room containing
35 to 40 students” was wrongful conduct, because it
amounted to an assault and battery. Id. at 399. The intent of
the actors was immaterial. Addressing Keel’s argument
that there was no evidence that he aided or abetted
Jennings in the final throw that injured the plaintiff, the
court said:
It is undisputed that defendant Keel participated in the
wrongful activity engaged in by the other defendants
of throwing wooden blackboard erasers at each other
back and forth across a class room containing 35 to 40
students, although most of the testimony indicates that
defendant Keel’s participation was limited to the
retrieving of such erasers and handing them to other
defendants for further throwing. Keel aided and
abetted the wrongful throwing by procuring and
supplying to the throwers the articles to be thrown.
It is immaterial whether defendant Keel aided, abetted
or encouraged defendant Jennings in throwing the
eraser in such a manner as to injure Burge, or not, since
it is virtually undisputed that defendant Keel aided, abetted
or encouraged the wrongful activity of throwing wooden
erasers at other persons, which resulted in the injury
to Burge.
331 P.2d at 400 (emphasis added). The en banc majority
reads this as a holding that Keel was liable “even though
there was no proven, or even likely, causal connection
between anything he did and the injury.” Ante, at 23. But
that reading entirely ignores the perspective that
the Oklahoma court adopted. Keel and the other five
Nos. 05-1815, 05-1816, 05-1821, 05-1822 81
boys jointly created a dangerous situation in the class-
room. By acting together, they greatly enhanced the risk of
harm to the other students in the room. So viewed, there
is a readily observable causal link between the collective
action of the six boys and the harm the plaintiff suffered.
Whether we call Keel’s contribution “material support” or
something else does not matter—the point here is that the
Oklahoma court did not dispense with the requirement
of proving causation.
So, too, must we insist on proof that QLI’s and AMS’s
actions amounted to at least a sufficient cause of the
terrorist act that killed David Boim, even if, on these facts,
there were multiple such causes. The Boim II panel majority
opinion outlines ways in which this might be done.
I would summarize these approaches to the causation
element as follows: there must be proof (1) that the actual
recipient organization received a non-trivial amount of
money from either QLI or AMS, and (2) that the recipient
was, itself, sufficiently affiliated with Hamas that those
dollars indirectly supported Hamas’s terrorist mission.
Because money is fungible, the combination of the link to
Hamas and the receipt of an amount that would have been
sufficient to finance the shooting at the Beit El bus stop
would be enough to show that the “material assistance” of
giving money caused the terrorist act that took David
Boim’s life. (There is no allegation here that either QLI or
AMS directly funneled money to Hamas; had there been,
this obviously would have sufficed as well.)
Another reason why I find it ill-advised to exempt
plaintiffs suing under § 2333 on a “material assistance”
82 Nos. 05-1815, 05-1816, 05-1821, 05-1822
theory from showing causation is that this approach also
appears to eliminate the need to show what was classically
called “proximate cause.” As the Proposed Final Draft to
the Restatement (Third) of Torts points out, that term is
imprecise at best. See Restatement (Third) of Torts, ch. 6,
Special Note on Proximate Cause. The new Restatement
refers to this concept as “scope of liability,” in recognition
of the fact that “[t]ort law does not impose liability on an
actor for all harm factually caused by the actor’s tortious
conduct.” Id. At some point, the harm is simply too
remote from the original tortious act to justify holding
the actor responsible for it. It may be the case that the
boundaries of liability are wider for intentional torts, see
Restatement (Third) of Torts § 33, but that does not
mean that they are limitless. In part, this reflects the
reality that as the temporal or factual chain between the
tortious act and the harm becomes ever longer, the likeli-
hood of intervening or superseding causes becomes
greater. See generally Restatement (Third) of Torts § 34.
The en banc majority freely concedes that there are no
limits at all to its rule, and that a donor who gave funds
to an organization affiliated with Hamas in 1995 might
still be liable under § 2333 half a century later, in 2045. I
see no warrant for assuming that § 2333, unlike the rest of
tort law, contains no scope-of-liability limitations. I note
as well that such an open-ended rule would be in
serious tension with the general four-year statute of
limitations Congress has passed for civil actions based on
statutes passed after 1990 (like this one). See 28 U.S.C.
§ 1658.
Nos. 05-1815, 05-1816, 05-1821, 05-1822 83
The scope of the causation element is not my only
concern about the en banc majority’s opinion. My other
problem is with its application of the principles that, at a
high level of generality, state the law correctly. As
I noted earlier, the plaintiffs must prove that the defendant
provided material assistance to an organization that
commits terrorist acts. But what does it take to qualify as
such an organization? The Boims did not sue Hamas, nor
does their case rely on the proposition that QLI or AMS
sent money directly to Hamas. We must decide how far
down the chain of affiliates, in this shadowy world, the
statute was designed to reach, and how deeply Hamas
must be embedded in the recipient organization. QLI and
AMS argue strenuously that at worst they sent money
to charitable organizations with some kind of link to
Hamas. Some might have been analogous to wholly owned
subsidiaries; some might have been analogous to joint
ventures; some might have been independent entities that
accepted funding from Hamas as well as other more
reputable organizations. The record throws little light on
these matters, because the district court thought them
irrelevant. As I understand the en banc majority opinion, it
is saying that even if an independent day care center
receives $1 from organization H known to be affiliated
with Hamas, not only the day care center but also anyone
who gave to H is liable for all acts of terrorism by Hamas
operatives from that time forward against any and all
Americans who are outside the United States.
That is a proposition of frightening, and I believe
unwise, breadth. The en banc majority has tried to carve out
humanitarian non-governmental organizations like the
84 Nos. 05-1815, 05-1816, 05-1821, 05-1822
American Red Cross and Doctors Without Borders, which
(fortuitously) may also benefit from a “medical services”
exemption in the statute. But I am not sure that it has
succeeded. Those worthy organizations are not the only
ones committed to nondiscriminatory treatment of all
needy human beings. The United Nations High Commis-
sioner for Refugees sponsors many programs designed to
assist people in war-torn areas. The United Nations Relief
and Works Agency for Palestine Refugees in the Near
East (“UNRWA”) has been in existence since 1950. See
http://www.unhcr.org/partners/PARTNERS/48fdeced20.
html (last visited November 11, 2008). It describes itself as
“the main provider of basic services—education, health,
relief and social services—to over 4.1 million registered
Palestine refugees in the Middle East.” Id. The odds are
strong that some of the agencies that UNRWA helps may
also receive assistance from Hamas. The en banc majority
does not tell us whether, if QLI or AMS also happens to
give money to such an agency, the donor has violated
§ 2333 by doing so.
The en banc majority also slides over the statutory
requirement (derived from its chain of statutory connec-
tions) that the entity providing material assistance must
know that the donee plans to commit terrorist acts against
U.S. citizens. Ante, at 10, 13. All that is necessary, we are
told, is that
a donor [to Hamas—and presumably to another
organization with an adequate link to Hamas, what-
ever that may be] who knew the aims and activities of
the organization [only Hamas? or the affiliated recipi-
Nos. 05-1815, 05-1816, 05-1821, 05-1822 85
ent?]—would know that Hamas was gunning for
Israelis, that Americans are frequent visitors to and
sojourners in Israel, that some Israeli citizens have
U.S. citizenship as well, and that donations to Hamas,
by augmenting Hamas’s resources, would enable
Hamas to kill or wound, or try to kill, or conspire to
kill more people in Israel.
Ante, at 14-15. This is awfully vague. Americans travel, and
are known to travel, to every country on the face of the
globe—they even go to places like Antarctica that are not
even countries. If one could, it would be more realistic
and sound as a legal matter simply to hold that it makes
no difference whether or not the terrorist acts that the
organization commits are directed toward Americans. The
only problem with such a holding—which otherwise
would be a routine application of the doctrine of trans-
ferred intent—is that the statutory basis for a tort action
under § 2333 depends upon a finding that the material
support violated U.S. federal criminal law, and that here
the crime in question is the killing of an American citizen
outside the United States. In my view, given the language
of the statutes that Congress has passed thus far, we are
required to take a more restricted view of § 2333. A statute
focusing on extraterritorial killings of Americans would
still be a strong tool against terrorist activities and organi-
zations that threaten vital U.S. interests. Al Qaeda, for
example, trumpets its intent to target Americans whenever
and wherever it can. If the plaintiffs could show both that
Hamas has done the same thing and further that Hamas’s
intent should be attributed to the donee organization
(recalling once again that neither QLI nor AMS gives
86 Nos. 05-1815, 05-1816, 05-1821, 05-1822
money directly to Hamas), then a § 2333 claim may pro-
ceed; otherwise, it may not. Put differently, I find it
difficult to read § 2333 as creating a claim against an
organization that has, in effect, declared war on the
entirety of civilization.
The Boim II opinion explains the problems with a
finding, on the present record, that Hamas was indeed
responsible for David Boim’s murder. That finding rests
entirely on the affidavit submitted by Dr. Reuven Paz. The
majority accepts that affidavit as adequate, noting only the
uncontroversial point that experts are allowed to rely on
hearsay and other inadmissible evidence. See F ED. R. E VID.
703 (expert may rely on facts or data “reasonably relied
upon by experts in the particular field in forming opinions
or inferences upon the subject”). No one doubts this. The
panel’s point in Boim II was that, at least since Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and
the revision of F ED. R. E VID. 702, there must nevertheless be
a solid foundation for the expert’s opinion. Rule 702 puts
the point this way: the expert may offer an opinion “if
(1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.” It is these
threshold criteria that are at issue. No one is saying that
these requirements cannot be met in this case, or in any
other case involving international terrorism. They just
have not been satisfied yet, and so QLI and AMS should
have won a remand on this basis as well.
For these reasons, I would remand for further proceed-
ings on the claims against QLI and AMS. I concur in the
Nos. 05-1815, 05-1816, 05-1821, 05-1822 87
en banc majority’s opinion insofar as it reverses the judg-
ment against Salah and it remands for further pro-
ceedings on the claims against HLF.
12-3-08