The Cutting Edge

By a 7-to-3 vote on December 3, 2008 the judges of the United States Court of Appeals in Chicago reinstated a $156 million jury verdict granted by a federal district court in favor of Joyce and Stanley Boim, the parents of a 17-year-old American-born student David Boim, who was shot and killed by Hamas terrorists at a bus stop near Jerusalem in May 1996. The judgment was against Muslim organizations based in the United States that had contributed funds to Hamas in the years between 1994 and 1996.

A December 2007 ruling by three judges of the Seventh U.S. Circuit Court of Appeals had vacated the judgment on the grounds that the plaintiffs had not shown sufficient "causation" between the contributed funds and the drive-by shooting of David Boim. The defendants claimed that their contributions to Hamas were intended only to benefit the organization's charitable activities in the Middle East and not to support Hamas' program of terrorism.

In a 39-page ruling written by former Chief Judge Richard Posner, the seven judges reinstated the judgment against the American Muslim Society and the Quranic Literacy Institute on the grounds that "anyone who knowingly contributes to the nonviolent wing of an organization that he knows to engage in terrorism is knowingly contributing to that organization's terrorist activities. And that is the only knowledge that can reasonably be required as a premise for liability."

The Court's majority sent the case back to the trial court for further proceedings regarding the Holy Land Foundation for Relief and Development, which was recently found guilty in a federal criminal trial in Texas. It also reversed the judgment against Muhammad Salah who, although active on behalf of Hamas before his arrest and imprisonment in Israel in 1993, was in prison between 1994 (when a critical federal law was enacted) and May 1996, the date of David Boim's murder, and did not give "material support" to Hamas during that period.

The case was initially filed in May 2000 by attorneys Nathan Lewin and Alyza D. Lewin of Lewin & Lewin LLP, Washington D.C. The appeal was argued on behalf of the Boim family by Nathan Lewin, together with Stephen J. Landes of Wildman Harrold, a Chicago law firm that represented the Boim family in the trial of the case in federal district court before Magistrate Judge Arlander Keys.

The defendants are entitled to seek Supreme Court review of the "en banc" decision of the Seventh Circuit. Three judges of that court (Circuit Judges Rovner, Williams, and Wood) dissented from the ruling and Circuit Judge Posner's opinion.

Nathan Lewin said: "We are gratified that after many years of drawn-out litigation, an overwhelming majority of a highly respected court of appeals, speaking through one of the country's most scholarly judges, has recognized that those who contributed money to Hamas are legally responsible for the murder of David Boim."

This precedent will enable other American victims of terror to recover damages against those in the United States who have funneled money and other assistance to foreign terrorists. Since the Holy Land Foundation was recently convicted of the federal crime of financing terrorism, a judgment against that organization should now be entered by the trial judge in the Boim case without requiring the presentation of substantial evidence of the Holy Land Foundation's guilt."

Attorneys for the accused had argued that the defendants raised money for charitable purposes, not for terrorism. "It's been an ordeal," says Matthew J. Piers, an attorney for Muhammad Salah, the lone individual sued for damages by Joyce and Stanley Boim. "There is no evidence that the defendant did anything that contributed to or caused the tragic death of David Boim," Piers told the court in September 2008 when the case came before the appeals court. The Boims contend that some of the money that Salah and the Muslim organizations gave to Palestinian charities thereby funded terrorism and ultimately paid for their son's murder.

Salah is a U.S. citizen who grew up in a West Bank refugee camp. Now 54 years old, he is finishing a 22-month federal prison sentence for lying on documents in the Boim case. Salah was once employed by the Quranic Institute. He also once spent 4½ years in Israel jails for possessing $90,000 in cash earmarked for the Hamas terrorist organization.

Nathan Lewin, attorney for the Boim family, scoffed at the notion that Islamic charities on the West Bank were anything like the Red Cross, saying many of them are "known fronts for Hamas, known supporters of Hamas," and added, "All that needs to be shown is that it's more likely than not that these defendants knew that the recipient group was a Hamas-related organization," Lewin said.

In arguments for the plaintiffs, Lewin and the Boim family’s legal team wrote that “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 non-terrorist activities does not get you off the liability hook.” The legal team argued that the “fungibility of money” and that the Hamas’s social welfare apparatus actually favored terrorism were factors in the culpability of the accused.

The Holy Land Foundation for Relief and Development is now defunct, having been once the largest U.S.-based Muslim charity. HLF was shut down in both the United States and the European Union following revelations of its connections to Hamas. It is unclear how much, if any, of the money awarded to the Boim family will actually be recovered since the assets of the organizations involved in the case are now frozen.

Martin Barillas is a former diplomat who edits www.speroforum.com.