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Tuesday, July 11, 2017
A revived lawsuit filed in Chicago seems aimed not to hinder terrorism but to criminalize Palestine solidarity.John TaggartReuters
Charlotte Silver-10 July 2017
The case of a youth killed more than two decades ago – whose death prompted a tide of anti-terrorism litigation in the US – has returned to court.
In 1996, 17-year-old David Boim was standing at a bus stop in the Israeli settlement Beit El, near Ramallah in the occupied West Bank, when he was shot dead in a drive-by attack.
Eleven years earlier, David’s parents, Stanley and Joyce Boim, had moved to Jerusalem from New York. The whole family maintained dual American-Israeli citizenship.
In 2000, the Boims became the first US citizens to use federal anti-terrorism laws to accuse Islamic charities in the US of being fronts for a designated terrorist group (in this case, Hamas) in order to hold the organizations liable for the murder of their son.
Their civil lawsuit, which resulted in a $156 million award in damages in 2004, also helped the government bankrupt several of the country’s Islamic charities, including the largest such organization at the time, the Holy Land Foundation, and criminally prosecute its leaders.
Now the Boims are suing American Muslims for Palestine, a national advocacy group, and the affiliated Americans for Justice in Palestine Educational Foundation, arguing they are reincarnations of the defunct charities.
The Boims’ first lawsuit stretched over eight years and was full of holes that have yet to be filled. Their new lawsuit, filed last month in Chicago, suggests their goal is not to hinder terrorism, but to criminalize Palestine advocacy groups.
The caseThree days after David Boim was killed at the Israeli settlement, 24-year-old Amjad Hinawi turned himself in to the Palestinian Authority. Hinawi admitted that he was in the car with Khalil Sharif, also 24, when Sharif opened fire on Boim and the others standing at the bus stop, but maintained that he did not know Sharif’s plans.
Just a year after Boim’s slaying, Sharif, a member of Hamas who had evaded the Palestinian Authority’s attempts to find him, carried out a suicide attack in Jerusalem.
In February 1998, Hinawi was convicted by a Palestinian military court for being an accomplice in the slaying of Boim and sentenced to 10 years in prison with hard labor. Hinawi did not complete the prison time, however, because he absconded while on furlough shortly after he was sentenced. In 2005, he was killed by the Israeli military, which claimed he was reviving Hamas’ infrastructure in Nablus.
Hinawi’s conviction was not enough for the Boim family at the time.
In 1997, the Boims met Nathan Lewin, a lawyer who serves on the board of advisors of the Zionist Organization of America’s Center for Law and Justice. Lewin, who has also represented AIPAC and former president Richard Nixon, took on their case without charge and began aggressively lobbying for the US to obtain the extradition of Hinawi to face trial in the US and possibly the death penalty.
In public statements to the press and Congress, Lewin revealed that the FBI and the Justice Department pursued an investigation into Hinawi throughout 1999, with FBI agents traveling to Israel and the occupied Gaza Strip to meet with Palestinian and Israeli officials.
They concluded, however, that there was not enough admissible evidence to try Hinawi in a US court. One US official told Lewin that they couldn’t be certain that Hinawi’s confession hadn’t been coerced.
It was at this point, as Lewin tells the story, that he discovered a recourse for the Boim family in the form of the unused Anti-Terrorism Act. The legislation, passed by Congress in 1992, allows US citizens who are victims of acts the US government defines as terrorism to sue for civil damages in US courts.
“Obviously, there was no purpose in suing Mr. Hinawi, who had no funds,” Lewin told a Senate judiciary committee hearing on fighting the financing of terrorism in 2002.
Lewin and the Boims identified three US charities that they argued provided material support to Hamas.
Government gets on boardIn their lawsuit filed in May 2000, the Boims claimed that the Holy Land Foundation, the Islamic Association for Palestine, activist Muhammad Salah and several other organizations and individuals had acted as a “network of front organizations” for a State Department-designated terror organization, Hamas, which they claimed was responsible for their son’s slaying.
Attorney John D. Shipman argues in a 2008 article for North Carolina Law Review that the Boims’ lawsuit was “the first to articulate a theory of terrorist liability based solely upon the defendants’ knowledge that their funds were being used to conduct acts of international terrorism.”
That liability could be imposed “at any point along the causal chain of terrorism,” according to the theory, no matter how far removed a group’s activities were from the acts of terrorism.
By the next year, the US government was working in tandem with the Boim lawsuit. In early December 2001, nearly three months after the attacks on the World Trade Center and Pentagon, the US government accused the Holy Land Foundation of being a front for Hamas and seized its assets.
The move put the largest Islamic charity in the US out of business and imperiled its ability to hire lawyers.
In 2002, the US government threw its weight behind the Boims’ lawsuit. In a friend of the court brief, the US government urged the Seventh Circuit Court of Appeals to allow the case to go to trial, arguing the Anti-Terrorism Act could be “an effective weapon in the battle against international terrorism.”
“Boim was like a stalking horse to develop evidence to give to the federal government so they could bring criminal charges,” attorney Michael Deutsch told The Electronic Intifada.
Deutsch began representing defendant Muhammad Salah in 2004, when the US government indicted him for running “a US-based terrorist recruiting and financing cell associated with the foreign terrorist organization Hamas.”
During the summer of 2004, the federal government filed two separate lawsuits against defendants in the Boim lawsuit, the Holy Land Foundation and Muhammad Salah and Mousa Abu Marzouk. The government’s case drew heavily on the Boims’ lawsuit. The indictment against Salah and Abu Marzouk cited the Boims’ case. While the indictment against the Holy Land Foundation was sealed, the Boims filed supporting briefs in the case.
In December 2004, a jury awarded the Boims $52 million in damages that was automatically trebled to $156 million according to federal anti-terrorism laws.
Overwhelming offensiveThe overlapping civil and federal cases against these organizations formed an overwhelming offensive, but the claim that the organizations were providing “material support” to Hamas was based on thin evidence, one piece of which was fabricated by the Israeli government.
In a letter to the same 2002 Senate judiciary committee hearing on fighting the financing of terrorism, John W. Boyd, the lawyer for the Holy Land Foundation at the time, rebutted the claims against his client.
According to Boyd, one of the most substantial pieces of evidence was fabricated by the Israeli government. Israel provided a supposed summary of a statement from the Holy Land Foundation’s manager in the West Bank, which attributed to him a confession that some of the foundation’s funds went to Hamas. According to Boyd, a factual transcript of the interview shows that the manager categorically denied that the Holy Land Foundation ever supported Hamas. Boyd stated that the government was aware of the error.
Another piece of evidence that purports to prove the foundation supported Hamas entities was the funding of a hospital in Gaza affiliated with Hamas. But this hospital received funding from USAID, a US government agency, at the same time the Holy Land Foundation was donating to it.
The Holy Land Foundation also gave money to Palestinian children who lost their fathers and were counted as orphans. Four hundred children received $45 per month from the Holy Land Foundation. These children’s fathers were killed for a variety of reasons: according to Boyd, only four fathers died in connection with alleged terrorism. Nine were killed by Hamas or other Palestinian organizations as suspected collaborators. Still, this program was cited as evidence that the Holy Land Foundation supported Hamas.
In 2007, the Seventh Circuit Court of Appeals voided the 2004 verdict that held the Holy Land Foundation and others liable, stating that the Boims had failed to prove that financial contributions to Hamas had played a direct role in the slaying of their son.
“Belief, assumption and speculation are no substitutes for evidence in a court of law … We must resist the temptation to gloss over error, admit spurious evidence and assume facts not adequately proved simply to side with the face of innocence and against the face of terrorism,” Judge Ilana Diamond Rovner wrote.
But the next year an expanded appellate panel reversed that decision.
Reviving the lawsuitIn the eight years between the start and end of the Boims’ case, the US “War on Terror” turned the courts into a front line in the fight against terrorism by supposedly attacking its revenue streams in the US.
“The practical effect of the Boim decision was to open American courtrooms to an entirely new class of litigants by explicitly recognizing a cause of action under the [Anti-Terrorism Act] for ‘aiding and abetting’ terrorism, even in cases where the defendant had no specific knowledge of the actual terrorist activity,” attorney Shipman explained in the North Carolina Law Review.
In the decade after the Boim case, several lawsuits were filed. Many were related to Palestine, targeting the Arab Bank, the Palestinian Authority and the Palestine Liberation Organization for alleged acts of terrorism committed by people or groups loosely affiliated with them.
Palestine, however, was not the only issue being litigated under the various anti-terrorism laws passed in the 1990s.
The decade of litigation culminated in 2010, when the Obama administration took the Humanitarian Law Project, an organization dedicated to peacefully resolving conflicts, to the Supreme Court. Then-Attorney General Eric Holder argued it was illegal for a group to advise a designated terrorist organization – in this case the Kurdistan Workers’ Party (PKK) in Turkey – on how to reject violence and pursue its goals through lawful means.
According to law scholar David Cole, “The [Supreme] Court ruled – for the first time in its history – that speech advocating only lawful, nonviolent activity can be subject to criminal penalty, even where the speakers’ intent is to discourage resort to violence.”
On 12 May of this year, the Boims went back to court in Chicago. Claiming they received a small fraction of the damages they were awarded, the parents are now naming three individuals and American Muslims for Palestine (AMP) as responsible for paying the rest of the money they are owed. An exact amount has not been specified.
The new lawsuit claims that Rafeeq Jaber, Abdelbasset Hamayel and Osama Abu Irshaid established AMP, and a nonprofit funding arm, Americans for Justice in Palestine Educational Foundation (AJP), to replace the three organizations found liable for supporting Hamas in 2004.
“AMP and AJP are alter egos and successors of HLF [the Holy Land Fund], AMS [American Muslim Society] and IAP [Islamic Association for Palestine], and are therefore liable for the unpaid portion of the Boim Judgment,” the complaint argues.
The lawsuit does not purport to have any evidence that AMP or the other named defendants are supporting Hamas. Indeed, AMP says it does not conduct any activities abroad.
Nevertheless, the Boims argue that AMP has the “identical” agenda as its alleged predecessors.
“AMP claims on its website that it is ‘all about educating people about Palestine,’ thus continuing the purported purposes of AMS, IAP and HLF,” the complaint states.
Jaber, Hamayel and Abu Irshaid are named because they all had some role in the previously indicted organizations and now work with AMP. None of them was indicted or named in the previous lawsuit.
AMP was founded in 2006 in Chicago with the “sole purpose” to “educate the American public and media about issues related to Palestine and its rich cultural and historical heritage.” It collaborates with groups around the country, including Jewish Voice for Peace, to organize educational events and actions in support of Palestinian rights and the boycott, divestment and sanctions movement.
“They’re trying to say that this is the same group with a different name, but it’s a different group, different philosophy, goals and people,” Deutsch told The Electronic Intifada.
“It’s a continuing attack on Muslim Palestinians.”
Deutsch, who is not representing AMP but is familiar with the case, said that “the whole impetus behind the Boim case was to destroy charitable groups that were helping those suffering under Israeli occupation.
“This is just a continuation of this. They’re going after this group that is successful and active.”
The Boims’ lawyer, Stephen Landes, said allowing AMP to operate “makes a mockery” of federal anti-terrorism laws.
American Muslims for Palestine declined to give a comment for this article.
The Boim case is being revived just as the Trump administration says it will prioritize fighting what it calls terrorism in the US and abroad. How the court handles the resurrection of this precedent-setting lawsuit could usher in a new wave of phony terrorism cases targeting Palestinian activism.
Charlotte Silver is Associate Editor for The Electronic Intifada.