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