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Sunday, December 30, 2007

Terror victim's suit against Holy Land Foundation tossed

A lawsuit by the parents of David Boim HY"D against the Holy Land Foundation was thrown out on Friday by the United States Court of Appeals for the 7th circuit.

On May 13, 1996, 11th grader David Boim walked out of the Jewish town of Beit El in Samaria with two fellow-students to wait for a bus outside the gates of the town. Three Hamas terrorists drove by and shot and murdered Boim in cold blood. His parents, American citizens who live here in Jerusalem, brought a lawsuit in a Chicago court which eventually resulted in a $156 million judgment against the Holy Land Foundation, the Islamic Association of Palestine and the Quranic Literacy Institute, which had raised money for Hamas in the United States. That award was thrown out on appeal on Friday and the case was remanded to the District Court for a new trial:
The 7th US Circuit Court of Appeals said Friday that the judge in the case had failed to require the parents of 17-year-old David Boim to properly show a link between the boy's death and the fundraising activities of the charities.

Because of that error, it sent the case back for a possible new trial.
Or in the court's words:
On remand, the Boims will have to demonstrate an adequate causal link between the death of David Boim and the actions of HLF, Salah, and AMS. This will require evidence that the conduct of each defendant, be it direct involvement with or support of Hamas’s terrorist activities or indirect support of Hamas or its affiliates, helped bring about the terrorist attack that ended David Boim’s life. A defendant’s conduct need not have been the sole or predominant cause of the attack; on the contrary, consistent with the intent of Congress that liability for terrorism extend the full length of the causal chain, even conduct that indirectly facilitated Hamas’s terrorist activities might render a defendant liable for the death of David Boim. But the plaintiffs must be able to produce some evidence permitting a jury to find that the activities of HLF, Salah, and AMS contributed to the fatal attack on David Boim and were therefore a cause in fact of his death. Absent such proof, those appellants will be entitled to judgment in their favor.
Back to the article:
Nathan Lewin, an attorney for the parents, Stanley and Joyce Boim, said an appeal to the US Supreme Court, the top court in the country, is possible.

"This court of appeals decision is wrong, very wrong," Lewin said. "It amounts to encouragement of financial contributions to terrorist organizations."


All the defendants denied financing terrorism.

In the 2004 trial, a federal court jury had set damages at $52 million. A US magistrate tripled the amount in accord with US anti-terrorism law. It was the first in which jurors awarded damages from US-based charities accused of bankrolling Hamas, Boim attorney Nathan Lewin said at the time.

The couple, who had moved to Jerusalem in 1985, filed the suit under a federal law permitting American victims of terrorism overseas to seek damages against organizations that raise funds for terrorists in the US.

The alleged Hamas fundraiser cited in the suit, Salah, was convicted of obstruction of justice for lying under oath on a questionnaire stemming from the Boims' lawsuit. The jury, however, acquitted Salah of taking part in a racketeering conspiracy aimed at bankrolling Hamas. He was sentenced in July to 21 months in federal prison.
Back in October 2006, the New York Times reported that contributions to Muslim charities had fallen drastically due to law enforcement efforts. In October 2007, the Holy Land Foundation criminal trial in Dallas ended in a mistrial amid accusations of jurors being threatened to vote against conviction, and that mistrial combined with this decision can only help the terrorists' fundraising efforts. At Counterterrorism, Andrew Cochran believes that the 7th circuit has set an impossibly high standard of proof:
During the recent Holy Land Foundation criminal trial in Dallas, which ended in a mistrial, the prosecution presented evidence of financial transfers between several of the defendants in the Boim case:
FBI Agent Lara Burns’ testimony continued Wednesday morning, as prosecutors introduced bank records to expose close financial ties between the Holy Land Foundation (HLF) and HAMAS leader Musa Abu Marzook, (in the news today for denouncing a planned September peace conference between Israelis and Palestinians) as well as the Islamic Association for Palestine (IAP) , United Association for Studies and Research (UASR), and Infocom - all U.S.- based who acted on behalf of HAMAS.

Payments by Marzook to HLF started in 1988 and ended in 1992, a year when Marzook transferred two $100,000 payments to HLF within ten days. Agent Burns testified before the jury that during this time, Marzook was not employed.

Lead prosecutor Jim Jacks introduced evidence showing that Marzook also transferred over a one million dollars to UASR, IAP and Infocom, as well as tens of thousands to the defendants Mohammad El Mezain, Shukri Abu Baker, Ghassan Elashi during this same period.

HLF itself also paid almost $250,000 to IAP between 1989 and 2001, and over $400,000 to Infocom between 1990 and 2001...

Bank records also showed that in a two month period in 1988, HLF transferred over $250,000 to the bank account of Khairy Al Ahga, a Hamas financier in Saudi Arabia.

Those transfers and others were insufficient, according to the Seventh Circuit. Instead, a more direct causal link between the defendants and the murders must be shown, which, in my opinion, is neither possible to establish by a preponderance of the evidence, nor the intent of the Congress. Applying this standard would make it extremely difficult, if not impossible, for terrorism victims to receive compensation from those whose funds made a particular attack possible.
Let's hope that the Supreme Court accepts this case and reverses the Court of Appeals. Otherwise, the terrorists at Hamas and other Islamic organizations are going to have a much easier time raising money.


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