TERRORISM : International Law Update

Detainees at U.S. military prison in Afghanistan challenge their imprisonment by filing habeas corpus petitions in federal court; U.S. Court of Appeals for D.C. Circuit dismisses the petitions because habeas does not apply to enemy combatants at Bagram Air Force Base under the Boumediene factors

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Detainees at U.S. military prison in Afghanistan challenge their imprisonment by filing habeas corpus petitions in federal court; U.S. Court of Appeals for D.C. Circuit dismisses the petitions because habeas does not apply to enemy combatants at Bagram Air Force Base under the Boumediene factors

Three of the “unlawful enemy combatant” detainees at the Bagram Air Force Base in Afghanistan filed habeas corpus petitions in the District of Columbia federal court. Fadi Al‑Maqaleh is a Yemeni citizen who claims to have been captured outside of Afghanistan. Redha Al‑Najar is Tunisian citizen allegedly captured in Pakistan, and Amin Al‑Bakri is a Yemeni citizen allegedly captured in Thailand (Petitioners).

The respondents include the U.S. Secretary of Defense, the U.S. Department of Defense, and others (jointly “the government”). The court denied the government’s motion to dismiss based on Section 7(a) of the Military Commissions Act of 2006, Pub.L. No. 109‑366, 120 Stat. 2600 (2006) (MCA), but certified the habeas cases for interlocutory appeal. The U.S. Court of Appeals for the District of Columbia Circuit holds that the district court lacked jurisdiction to consider the habeas corpus petitions and orders the lower court to dismiss the petitions.

The U.S. Supreme Court held in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that the Detainee Treatment Act of 2005, Pub.L. No. 109‑148, 119 Stat. 2739 (2005) (DTA), did not deprive federal courts of jurisdiction over the habeas cases from Guantanamo detainees that were pending when the DTA was enacted. In response to Hamdan, Congress passed the MCA which deprives courts of jurisdiction over habeas cases brought by “enemy combatants.” In Boumediene v. Bush, 476 F.3d 981 (D.C. Cir 2007), the Court upheld the constitutionality of the statute. The Supreme Court, however, reversed. Boumediene v. Bush, 553 U.S. 723 ¼ (2008).

The Supreme Court in Boumediene pointed out that there are at least three relevant factors in such cases: “The first of the enumerated factors is ‘the citizenship and status of the detainee and the adequacy of the process through which that status determination was made.’ Citizenship is, of course, an important factor in determining the constitutional rights of persons before the court. It is well established that there are ‘constitutional decisions of [the Supreme] Court expressly according differing protection to aliens than to citizens.” … However, clearly the alien citizenship of the petitioners in this case does not weigh against their claim to protection of the right of habeas corpus under the Suspension Clause [i.e. habeas shall not be suspended unless there is rebellion or invasion]. So far as citizenship is concerned, they differ in no material respect from the petitioners at Guantanamo who prevailed in Boumediene. As to status, the petitioners before us are held as enemy aliens. … This question is governed by Boumediene and the status of the petitioners before us again is the same as the Guantanamo detainees, so this factor supports their argument for the extension of the availability of the writ.”

The second relevant factor is the adequacy of the process through which that status determination was made. These Petitioners are in a stronger position for the availability of the writ than were either the Eisentrager [Johnson v. Eisentrager, 339 U.S. 763 ¼ (1950)] or Boumediene petitioners. … Unlike the Boumediene petitioners or those before us, ‘[t]he Eisentrager petitioners were charged by a bill of particulars that made detailed factual allegations against them.’ … The Eisentrager detainees were ‘entitled to representation by counsel, allowed to introduce evidence on their own behalf, and permitted to cross‑examine the prosecution’s witnesses’ in an adversarial proceeding. … The status of the Boumediene petitioners was determined by Combatant Status Review Tribunals (CSRTs) affording far less protection. …”

“The status of the Bagram detainees is determined not by a CSRT but by an ‘Unlawful Enemy Combatant Review Board’ (UECRB). As the district court correctly noted, proceedings before the UECRB afford even less protection to the rights of detainees in the determination of status than was the case with the CSRT. … Therefore, as the district court noted, ‘while the important adequacy of process factor strongly supported the extension of the Suspension Clause and habeas rights in Boumediene, it even more strongly favors petitioners here.’ … Therefore, examining only the first of the Supreme Court’s three enumerated factors, Petitioners have made a strong argument that the right to habeas relief and the Suspension Clause apply in Bagram as in Guantanamo.

“However, we do not stop with the first factor. The second factor, ‘the nature of the sites where apprehension and then detention took place,’ weighs heavily in favor of the United States. Like all petitioners in both Eisentrager and Boumediene, the Petitioners here were apprehended abroad. While this in itself would appear to weigh against the extension of the writ, it obviously would not be sufficient, otherwise Boumediene would not have been decided as it was. However, the nature of the place where the detention takes place weighs more strongly in favor of the position argued by the United States and against the extension of habeas jurisdiction than was the case in either Boumediene or Eisentrager.”

“In the first place, while de facto sovereignty is not determinative, for the reasons discussed above, the very fact that it was the subject of much discussion in Boumediene makes it obvious that it is not without relevance. … In Bagram, while the United States has options as to duration of the lease agreement, there is no indication of any intent to occupy the base with permanence, nor is there hostility on the part of the ‘host’ country. … While it is certainly realistic to assert that the United States has de facto sovereignty over Guantanamo, the same simply is not true with respect to Bagram. Though the site of detention analysis weighs in favor of the United States and against the Petitioners, it is not determinative.”

“But we hold that the third factor, that is ‘the practical obstacles inherent in resolving the prisoner’s entitlement to the writ,’ particularly when considered along with the second factor, weighs overwhelmingly in favor of the position of the United States. It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war. … As the Supreme Court recognized in Boumediene, even though the active hostilities in the European theater had ‘c[o]me to an end,’ at the time of the Eisentrager decision, many of the problems of a theater of war remained …”

“In ruling for the extension of the writ to Guantanamo, the Supreme Court expressly noted that ‘[s]imilar threats are not apparent here.’ … In the case before us, similar, if not greater, threats are indeed apparent. The United States asserts, and Petitioners cannot credibly dispute, that all of the attributes of a facility exposed to the vagaries of war are present in Bagram. The Supreme Court expressly stated in Boumediene that at Guantanamo, ‘[w]hile obligated to abide by the terms of the lease [from Cuba], the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be ‘impractical or anomalous’ would have more weight.’ … We therefore conclude that under both Eisentrager and Boumediene, the writ does not extend to the Bagram confinement in an active theater of war in a territory under neither the de facto nor de jure sovereignty of the United States and within the territory of another de jure sovereign.”

“We are supported in this conclusion by the rationale of Eisentrager, which was not only not overruled, but reinforced by the language and reasoning just referenced from Boumediene. ¼[W]e set forth more fully now concerns expressed by the Supreme Court in reaching its decision in Eisentrager: ‘Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.’ Eisentrager, supra at 779. Those factors are more relevant to the situation at Bagram … We cannot, consistent with Eisentrager as elucidated by Boumediene, hold that the right to the writ of habeas corpus and the constitutional protections of the Suspension Clause extend to Bagram detention facility in Afghanistan, and we therefore must reverse the decision of the district court denying the motion of the United States to dismiss the petitions.” [Slip op. 19‑25].

Citation: Maqaleh v. Gates, No. 09‑5265 (D.C. Cir. May 21, 2010); The Washington Post, January 8, 2010, page A13.

Filed in: 2010 International Law Update, Issue 5

Upon remand from United States Supreme Court after Boumediene decision, District of Columbia Circuit reinstates Rasul opinion about former Guantanamo detainees, but on more limited basis, resulting in dismissal of the case

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TERRORISM

Upon remand from United States Supreme Court after Boumediene decision, District of Columbia Circuit reinstates Rasul opinion about former Guantanamo detainees, but on more limited basis, resulting in dismissal of the case

Four British citizens claim that U.S. forces had been illegally detaining them at the U.S. Naval Base at Guantanamo Bay from 2002 until their release in 2004. Their original complaint in federal court contained seven counts: Counts 1, 2 and 3 involved the Alien Tort Claims Act, 28 U.S.C. § 1350 [ATCA] and international law. Count 4 involved the Geneva Conventions [see Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (setting forth rights of prisoners of war); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 973 U.N.T.S. 336 (setting forth rights of civilians during time of war)]. Counts 5 and 6 alleged violations based directly upon the Fifth and Sixth Amendments of the Constitution see Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Count 7 involved the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb.

The District of Columbia Circuit eventually confirmed the district court’s dismissal of Counts 1 to 3 for lack of jurisdiction; Counts 5 and 6 on the merits; and Count 7 because the Plaintiffs were not among the protected persons for whom RFRA created a private right of action to remedy government burdens on the exercise of religion.

The U.S. Supreme Court vacated the opinion of the U.S. Court of Appeals for the District of Columbia Circuit in Rasul v. Myers, 512 F.3d 644 (D.C. Cir. 2008) (Rasul I), and remanded for further consideration in light of Boumediene v. Bush, 553 U.S. ___, 28 S. Ct. 2229, 78 U.S.L.W. 4391, 4408 (2008).

“The main question in Boumediene was whether a provision in the Military Commissions Act, Pub.L. No. 109‑366, 120 Stat. 2600 (2006) (codified in part at 28 U.S.C. § 2241 & note) (MRA), depriving federal courts of habeas corpus jurisdiction over petitions filed by Guantanamo detainees, violated the clause of the Constitution governing suspension of the writ, ART. 1, § 9, cl. 2. [[128 S.Ct. at 2237]]. Holding that the Suspension Clause extended to Guantanamo, the Court struck down the jurisdiction‑stripping provision of the MRA as an unconstitutional suspension of the writ. Id. The Court acknowledged that it had never before determined that the Constitution protected aliens detained abroad, id. at 2262, and explicitly confined its constitutional holding ‘only’ to the extraterritorial reach of the Suspension Clause, id. at 2275.”

“The Court stressed that its decision ‘does not address the content of the law that governs petitioners’ detention.’ Id. at 2277 … With those words, the Court in Boumediene disclaimed any intention to disturb existing law governing the extraterritorial reach of any constitutional provisions, other than the Suspension Clause. See, e.g., Johnson v. Eisentrager, 339 U.S. 763 (1950) (holding that aliens detained on a U.S. military base outside sovereign U.S. territory have no due process rights) … ; see also Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C. Cir. 2009) (holding that alien detainees at Guantanamo cannot invoke the Due Process Clause).” [529].

The District of Columbia Circuit, in a per curiam opinion, reinstates its prior opinion, but on a narrower basis. The Court concludes that there is nothing in Boumediene that would affect its rulings on Counts 1 to 4. Plaintiffs argue, however, that Boumediene does affect Counts 5 to 7 (Bivens, and RFRA). Counts 5 and 6 raise questions as to whether aliens outside the sovereign territory of the U.S. enjoy due process rights. The Court disagrees with the Plaintiffs’ arguments on this issue.

“Discounting the precedents we have just described, Plaintiffs say their position follows from the century‑old Insular Cases. A series of Supreme Court decisions from De Lima v. Bidwell, 182 U.S. 1 (1901), to Balzac v. Porto Rico, 258 U.S. 298 (1922), extended ‘fundamental personal rights’ to inhabitants of the ‘unincorporated’ U.S. territories, such as Puerto Rico, Guam and the Philippines. See generally Dorr v. United States, 195 U.S. 138 (1904).”

“The United States maintained complete sovereignty over these territories, … and Congress governed the territories pursuant to its Art. IV, § 3, power to regulate ‘Territory or other Property belonging to the United States.’ [United States v. Verdugo‑Urquidez, 494 U.S. 259, 268 (holding that the Fourth Amendment does not protect nonresident aliens against unreasonable searches or seizures conducted outside sovereign U.S. territory); Reid v. Covert, 354 U.S. 1, 13 (1957) (plurality opinion)] …”

“Neither factor applies to Guantanamo. The Insular Cases therefore could not have ‘clearly established’ that constitutional rights extend to aliens held at Guantanamo. In short, there was no authority for – and ample authority against – Plaintiffs’ asserted rights at the time of the alleged misconduct. The Defendants are therefore entitled to qualified immunity against Plaintiffs’ Bivens claims.” [532]

Only Count 7 invoking RFRA remains. “Our vacated opinion held, as a matter of statutory interpretation, that Plaintiffs were not protected ‘person[s]’ within the meaning of RFRA, 42 U.S.C. § 2000bb‑1(a). Boumediene could not possibly have altered – retroactively – the meaning of RFRA. We will summarize our analysis in Rasul I.”

“In enacting RFRA, Congress intended to incorporate the standard governing free exercise claims that prevailed before the Supreme Court’s 1990 decision in Employment Division v. Smith, 494 U.S. 872 (1990). See City of Boerne v. Flores, 521 U.S. 507, 515 (1997). The aim was to restore what, in Congress’s view, is the free exercise right the Constitution guaranteed – in both substance and scope. We therefore held that the term ‘person’ as used in RFRA should be read consistently with similar language in constitutional provisions, as interpreted by the Supreme Court at the time Congress enacted RFRA. [Rasul v. Myers, 512 F.3d 644, 670‑72 (D.C. Cir. 2008) (Rasul I)].”

“Congress legislated against the background of precedent establishing that nonresident aliens were not among the ‘person[s]’ protected by the Fifth Amendment, Eisentrager, supra at 783 and were not among ‘the people’ protected by the Fourth Amendment, Verdugo‑Urquidez, supra at 269. … Reading RFRA in line with these precedents, we held that plaintiffs are not protected ‘person[s]’ under this statute. Rasul I, supra at 672. We reinstate that judgment today.” [532‑3]

The Court of Appeals therefore affirms the district court’s dismissal of plaintiffs’ Counts 1, 2, 3, 4, 5 and 6, and reverses the district court’s denial of defendants’ motion to dismiss Count 7.

Citation: Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009).

Filed in: 2009 International Law Update, Issue 6

In suit on behalf of American citizens killed or injured by bombings in Sudan of U.S. Embassies, D.C. Circuit holds that state sponsor of terrorism exception to FSIA is not unconstitutional delegation of Congressional Power, where it delegates to Secretary of State power to label country as such

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In suit on behalf of American citizens killed or injured by bombings in Sudan of U.S. Embassies, D.C. Circuit holds that state sponsor of terrorism exception to FSIA is not unconstitutional delegation of Congressional Power, where it delegates to Secretary of State power to label country as such

On August 7, 1998, al Qaeda agents bombed U.S. embassies in Nairobi, Kenya and Dar es Salaam, Tanzania. Certain victims of the bombings and their families (Plaintiffs) sued the Republic of Sudan and the Interior Ministry for the Republic of Sudan (Defendants) in the District of Columbia federal court. It alleged that the Defendants rendered material support for the bombings. Plaintiffs assert jurisdiction under the exception for state sponsors of terrorism, 28 U.S.C. Section 1605(a)(7) in the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. Sections 1602″�11 (FSIA).

Defendant moved to dismiss the claim on the grounds that the state sponsor of terrorism exception is an unconstitutional delegation of congresses power to define the jurisdiction of the lower courts and that the complaint fails to allege sufficient facts. The district court denied Defendants motion. Defendant then filed an interlocutory appeal. The U.S. Court of Appeals for the District of Columbia Circuit affirms the ruling and remands the case to the district court for further proceedings.

Here, Defendant asserts that the courts of the U.S. lack jurisdiction because Defendant (as a foreign state) enjoys sovereign immunity from suit. Congress adopted the doctrine in 28 U.S.C. Section 1604 which provides that “a foreign state shall be immune from the jurisdiction of the courts of the U.S. and of the States except as provided in sections 1605 to 1607.”�

Plaintiffs argue (and the district court concluded) that the district court had jurisdiction under 28 U.S.C. Section 1605(a)(7), which provides that “[a] foreign state shall not be immune from the jurisdiction of courts of the U.S. or of the States in any case . . . 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 . . . 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, or agency . . . .”�

This exception to foreign sovereign immunity, however, applies only where the U.S. Secretary of State has designated the foreign state as a “state sponsor of terrorism.”� The Secretary of State makes such determination. The jurisdiction of the court under this statute depends on the Secretary’s designation. Here, Sudan creatively argues that giving such power to the Secretary of State (an official of the Executive Branch) is an unconstitutional statutory delegation of congressional authority to the Executive. It violates the separation of powers embodied in the Constitution. The Court disagrees.

“In the state sponsor of terrorism exception, Congress did not empower the Executive to create a statute like definition or delineation of an area of jurisdiction within which the Article III courts might exercise judicial authority over otherwise immune foreign sovereign states. Rather, Congress delineated the area of immunity and the exception to the immunity, delegating to the Executive only the authority to make a factual finding upon which the legislatively enacted statute and the judicially exercised jurisdiction would partially turn.”� [Slip Op. 5 9].

The Court also notes that Section 1605(a)(7) is not the only component of the FSIA that predicates the Court’s jurisdiction, in part, upon an Executive factfinding. The FSIA in its entirety depends upon the President’s decision to recognize an entity as a foreign nation because the FSIA only applies to recognized nations. Sudan does not dispute this delegation of factfinding authority. It is well settled that the recognition of a foreign state is exclusively a function of the Executive.

The Secretary of State may label a country a state sponsor of terrorism if the government of such country has repeatedly provided support for acts of international terrorism. Plaintiff argues that this delegation is not specific enough. It does not define “repeatedly,”� “support,”� or “acts of international terrorism,”� or require Congress’ approval. No further definition of these terms is necessary. Also, a related statute requiring the Secretary of State to prepare a detailed assessment of state sponsors of terrorism defines the terms “terrorism”� and “international terrorism.”� 22 U.S.C. Section 2656f(d)(1), (2).

The statutory context of Section 1605(a)(7), together with the Executive Branch’s inherent constitutional authority in the area of foreign affairs, provides more than enough guidance to the Secretary of State in making a finding of fact upon which the operation of Section 1605(a)(7) partially depends. Therefore, the Court opines that Section 1605(a)(7) does not include an unconstitutional delegation of authority to the Executive Branch.

Defendant further argues that Plaintiffs failed to plead the jurisdictional causation requirement. In particular, Plaintiffs failed to plead sufficient facts to “reasonably support a finding”� that Defendant’s material support of al Qaeda in the early 1990s caused the embassy bombings in Kenya and Tanzania in 1998.”�

“Before we consider Respondents’ allegations, however, we must address [Defendant's] contention that heightened specificity is required of Respondents’ pleading because causation is a jurisdictional requirement. But the FSIA directs that “�[a]s to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances. . . .’ 28 U.S.C. Section 1606 …”�

“In support of their claim that [Defendant's] “�material support’ of al Qaeda was a cause of the embassy bombings, appellees allege that Sudan “�entered into an arrangement with al Qaeda and Hezbollah under which those organizations received shelter and protection from interference while carrying out planning and training of various persons for terrorist attacks, including the attacks of August 7, 1998.’”�

“Although “�Plaintiffs’ allegations are somewhat imprecise as to the temporal proximity of Sudan’s actions to, and their causal connection with, the’ terrorist act and “�do not chart a direct and unbroken factual line between Sudan’s actions’ and the terrorist act, this “�imprecision is not fatal for purposes of jurisdictional causation so long as the allegations, and the reasonable inferences drawn therefrom, demonstrate a reasonable connection’ between the foreign state’s actions and the terrorist act.”� [Slip Op. 15 20]

Citation: Owens v. Republic of Sudan, 531 F.3d 884 (D.C. Cir. 2008).

Filed in: 2008 International Law Update, Issue7

Seventh Circuit reverses summary judgment in a civil case against three Defendants accused of donating to foreign terrorist groups that had allegedly been involved in murdering U.S. citizen. While donating money to a foreign terrorist group can give rise to a finding of liability in a civil context, Plaintiffs must produce evidence of a causal connection that shows the conduct of the Defendants helped bring about the terrorist attack that resulted in the underlying tort

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Seventh Circuit reverses summary judgment in a civil case against three Defendants accused of donating to foreign terrorist groups that had allegedly been involved in murdering U.S. citizen. While donating money to a foreign terrorist group can give rise to a finding of liability in a civil context, Plaintiffs must produce evidence of a causal connection that shows the conduct of the Defendants helped bring about the terrorist attack that resulted in the underlying tort

In 1996, Palestinian militants shot and killed David Boim, a 17 year old dual citizen of Israel and the U.S., while he was walking to a bus stop in the West Bank. Someone identified his attackers as Amjad Hinawi and Tawfiq Al Sharif, both members of the military wing of Hamas. Pursuant to 8 U.S.C. Section 1189, the U.S. government had listed Hamas in 1997 as a “terrorist organization.” The statute defines “terrorist activity” to include assassinating any person by firearm as well as conspiring to do so. The statute also comprises giving “material support” to anyone who intends, or is known, to carry out terrorist attacks, such as by furnishing funds, weapons, or training.

Plaintiffs Joyce and Stanley Boim, the victim’s parents, sued the Quranic Literacy Institute (“QLI”) and the Holy Land Foundation for Relief and Development (“HLF”), alleging that these organizations are the main U.S. fronts for Hamas. In addition, they named Mohammed Abdul Hamid Khalil Salah and the American Muslim Society (“AMS”) as defendants, and sued all four under Section 2333, which grants U.S. nationals injured by acts of international terrorism the right to sue for treble damages in federal court.

The Plaintiff’s theory was that in promoting, raising money for, and otherwise working on behalf of Hamas, the defendants materially supported the terrorists responsible for the murder of their son. The district court found three of the defendants liable on summary judgment and another was found liable at jury trial. Treble damages of $156 million were awarded.

In a previous hearing on interlocutory review ["Boim I”], three of the Defendants moved to dismiss the Plaintiff’s complaint for failure to state a claim against them, contending that section 2333 does not support civil causes of action for aiding and abetting acts of international terrorism. On review the Seventh Circuit affirmed the district court’s denial. The court concluded that: (1) section 2333 “reflects an intent by Congress to allow a U.S. national injured by reason of international terrorism to recover from anyone along the causal chain of terrorism and that liability is not limited to those who commit the violent act that causes injury. (2) Knowingly and intentionally providing material support, such as financial support, to terrorist organizations and activities would also constitute an act of international terrorism for purposes of section 2333. (3) “Merely giving money to an organization engaged in terrorism, without more, would constitute an act of international terrorism sufficient to render the donor liable under section 2333.” And (4) Aiding and abetting an act of international terrorism would also support liability under section 2333.

Following the interlocutory review, “the district court went on to conclude that the undisputed facts were sufficient to render [ALS, Salah, and HLF] liable for having aided and abetted Hamas. The court did not render any finding as to whether the Defendants had aided a particular wrongful act or series of acts that had a causal connection to David Boim’s death The district court understood [the Court's] opinion in Boim I to say that AMS could be liable to the Boim’s so long as it was aware of Hamas’s illegal activities, it wished to help those activities succeed, and it engaged in some act of assistance. Thus, without saying so, the court was relying on [the Court of Appeal's] articulation of the aiding and abetting theory of liability as the governing standard. The court found that each of these elements had been met.” At trial, the jury found in favor of the Plaintiffs, holding QLI liable. This appeal ensued.

The U.S. Court of Appeals for the Seventh Circuit reverses. In particular, the Court reverses the lower court’s finding of summary judgment against HLF. The district erred in granting collateral estoppel effect to the D.C. Circuit’s ruling that HLF funded Hamas’s terrorist activities. In addition, summary judgment was also improper against all three Defendants for a separate error in the district court’s decision.

In reversing the district court’s summary judgment against the three defendants, the Court Appeals stresses the limit of their previous holding and that there continued to exist a necessity of a finding of causation in fact in order for Plaintiffs to prevail. “Boim I did not relieve Plaintiffs of the burden of showing causation in fact The theory of liability that the Boims advanced in support of their complaint in the prior appeal assumed that they would be able to demonstrate causation in fact.” [Slip op. 32 33] In the interlocutory appeal, the Court did not consider whether the plaintiffs could obtain relief without establishing that the defendants’ actions were a cause in fact of David Boim’s death. Instead, the question addressed involved the doctrine of proximate cause and specifically its requirement that the injury complained of by the plaintiff have been foreseeable to the defendant. By saying that David Boim’s death must have been a type of harm that was foreseeable to the defendants, and that the Plaintiffs were obligated to prove this, the Court of Appeals was not holding that the plaintiffs were relieved of the obligation to establish that the Defendants’ actions were a factual cause of his death.

“Nothing in Boim I demands that the plaintiffs establish a direct link between the defendants’ donations (or other conduct) and David Boim’s murder that they funded in particular the terrorists who killed David Boim, for example in view of the fact that money is fungible and the victims of terrorism are often killed or injured at random, as he was. In that respect, the district court was no doubt correct when it said that the Boims need not link the defendants specifically to the attack on David Boim. A factfinder reasonably could conclude those who provide money and other general support to a terrorist organization are as essential in bringing about the organization’s terrorist acts as those who plan and carry out those acts. For that reason, [the court rejected Defendant's] suggestion that a $10,000 donation made by a defendant to Hamas or its affiliate with the requisite knowledge and intent that the money will support terrorism could not be deemed a cause of a subsequent terrorist act absent proof that the donor envisioned that particular act. But the plaintiffs still must offer some proof that permits a finding by a preponderance of the evidence that the defendants’ conduct caused terrorist activity that included the shooting of David.” [Slip op. 38]

“[A] defendant’s conduct need not be the sole circumstance responsible for a terrorist act in order to qualify as a cause in fact; it is enough that it be a cause of the act and the resulting harm But without some evidence of a causal link between a defendant’s conduct and Boim’s murder, proof that a defendant supported, aided and abetted, or conspired with Hamas (or an intermediary like HLF) will not suffice to render that defendant liable to the Boims.” [Slip op. 39]

The Court stresses that its decision does not rule out the possibility that relatively modest financial contributions to terrorists or other minor acts of support could be sufficient to render the donor liable for the injuries subsequently inflicted by terrorists. However, some type of causal link between the defendants’ conduct and the death of David Boim must be shown, regardless of what theory of liability the plaintiffs rely upon. By itself, a showing that defendants had knowledge of the terrorist activities of the groups they donated to and desired to help the groups in those acts will not suffice. On remand, if Plaintiffs are unable to identify evidence sufficient to permit a reasonable inference that Defendants’ conduct was a cause in fact of David Boim’s murder, then the Defendants will be entitled to judgment in their favor. If the court concludes that there is a material dispute of fact as to the causal link between Defendants’ conduct and the murder of David Boim, then Defendants will be entitled to a jury trial on that question.

Additionally, because of the reversal of the summary judgment against three of the defendants, the verdict against the fourth defendant, QLI, was also necessarily vacated as the district court had erred in deeming that QLI was bound by the finding of summary judgment against the others. Based on this, the Plaintiffs at trial had made opening and closing statements that stated “the terrorist group Hamas was responsible for the murder.” The Court finds that the error may ultimately prove harmless. If the Boims move for summary judgment on this issue and the district court, on consideration of the evidence, concludes that there is no material dispute of fact as to Hamas’s culpability, then the court properly may enter summary judgment in favor of the Boims on that issue.

Citation: Boim v. Holy Land Foundation for Relief and Development, No. 05 1815 (7th Cir. December 28, 2007), 2007 U.S. App. LEXIS 29864 (12/28/07).

Filed in: 2007 International Law Update, Issue12

Changes made to the Antiterrorism and Effective Death Penalty Act cured some, but not all, of previous defects the Ninth Circuit found in the statute; although amendments that changed the scienter required under AEDPA satisfy constitutional requirements, some terms continue to render provisions of it void on vagueness grounds

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Changes made to the Antiterrorism and Effective Death Penalty Act cured some, but not all, of previous defects the Ninth Circuit found in the statute; although amendments that changed the scienter required under AEDPA satisfy constitutional requirements, some terms continue to render provisions of it void on vagueness grounds

In the following case, six organizations and some individuals seek to support two organizations that have been labeled “terrorist.” They challenge the constitutionality of sections 302 and 303 of the Antiterrorism and Effective Death Penalty Act and its 2004 amendment, the Intelligence Reform and Terrorism Prevention Act.

Section 302(a) of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) authorizes the secretary of state to designate overseas groups as foreign terrorist organizations (“FTOs”). Other provisions of the statute provide criminalize conduct that aids these groups in any of their activities, including the nonviolent and humanitarian services they provide. In 1997, then Secretary of State Madeline Albright designated to the Kurdistan Worker’s Party (the PKK) and the Liberation Tigers of Tamil Eelam (the LTTE) as FTOs for their terrorist activities carried out in Turkey and Sri Lanka.

The Plaintiffs have brought forward two previous suits challenging this same statute, seeking as they do now, to be permitted to provide aid to both the PKK and the LTTE. See Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000), cert. denied, 532 U.S. 904 (2001); see also Humanitarian Law Project v. United States Dep’t of Justice, 352 F.3d 382 (9th Cir. 2003), vacated, 393 F.3d 902 (9th Cir. 2004). Prior to the groups’ designation as FTOs in 1997, Plaintiff had furnished support to them for their lawful activities, but withdrew from such activities for fear of criminal prosecution. In their first case, Plaintiffs challenged AEDPA as being unconstitutional for 1) violating their First and their Fifth Amendment rights to freedom of association and due process because the statue imposed criminal penalty for their association with the designated organizations without requiring the government to prove that Plaintiffs had the specific intent to further the designated organizations’ unlawful goals; 2) violating their First Amendment right to association by prohibiting them from making political contributions to the designated organizations; and (3) violating their First and Fifth Amendment rights because it gave the Secretary of State unfettered licensing power to designate a group as a foreign terrorist organization. [¶ 24] The district court found for the plaintiffs on only the second challenge, rejecting the rest.

Following the first case, “Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (“USA PATRIOT Act”). The USA PATRIOT Act amended AEDPA’s definition of ‘material support or resources’ to include the prohibition against providing ‘expert advice or assistance’ to a designated foreign terrorist organization. See 18 U.S.C. § 2339A(b) and § 2339B(g)(4).” [¶ 26]

A second case was filed, and the court once again held on appeal holding that the terms “training” and “personnel” were void for vagueness. See Humanitarian Law Project v. United States Dep’t of Justice, 352 F.3d 382 (9th Cir. 2003) vacated, 393 F.3d 902 (9th Cir. 2004). A majority of the panel also read into the statute a mens rea requirement holding that, “to sustain a conviction under § 2339B, the government must prove beyond a reasonable doubt that the donor had knowledge that the organization was designated by the Secretary as a foreign terrorist organization or that the donor had knowledge of the organization’s unlawful activities that caused it to be so designated.” Id. at 403.

Finally, three days after the second case was heard, Congress amended AEDPA by passing the Intelligence Reform and Terrorism Prevention Act (“IRTPA”). “In enacting IRTPA, Congress amended the definition of ‘material support or resources’ to include an additional ban on providing ‘service.’ Congress defined for the first time the terms ‘training’ and ‘expert advice or assistance,’ and clarified the prohibition against providing ‘personnel’ to designated organizations.” [¶ 35]

To determine the effect of the IRTPA, the previous judgments in the Humanitarian Law Project cases were vacated and remanded to the district court. The district court consolidated the two cases on the Plaintiff’s challenge of the terms “personnel” and “training” and the challenge of the phrase “expert advice and assistance,” and also heard Plaintiff’s additional challenge to the added term “service.”

Once again, “the district court held that the terms ‘training’ and ‘service’ are unconstitutionally vague. With respect to the term ‘expert advice or assistance,’ the district court held that the ‘other specialized knowledge’ part of the definition is void for vagueness, but that the ‘scientific’ and ‘technical’ knowledge part of the definition was not vague. The district court also held that the newly added definition of ‘personnel’ cured the vagueness of that term. The district court rejected the rest of Plaintiffs’ challenges and granted partial summary judgment for the government.”

The U.S. Court of Appeals for the Ninth Circuit affirms that decision.

The Court of Appeals upholds all of the district court’s findings. First, the Court points out that because the material support provision of AEDPA requires that to find liability a defendant must have been acting with “knowledge,” it satisfies the requirement of personal guilt and eliminates any due process concerns. Second, it holds that AEDPA’s “training,” “expert advice or assistance,” and “service” provisions remain impermissibly vague because they “implicate, and potentially chill, Plaintiffs’ protected expressive activities and impose criminal sanctions without sufficiently defining the prohibited conduct for ordinary people to understand.” [¶¶ 74, 78]

Third, the Court finds that the amended version of AEDPA’s “personnel” provision was not constitutionally vague, because it no longer criminalizes pure speech protected by the First Amendment. And fourth, the terms “training,” “personnel,” “expert advice or assistance” and “service” are not unconstitutional for overbreadth. [¶ 92]

First, post IRTPA, to convict a person for providing “material support or resources” to a designated foreign terrorist organization, the government must prove that the donor defendant “ha[d] knowledge that the organization is a designated terrorist organization, that the organization has engaged or engages in terrorist activity, or that the organization has engaged or engages in terrorism.” 18 U.S.C. § 2339B(a). [¶ 47]

This change did not satisfy the Plaintiffs, who on remand urged the court to find the statute invalid so long as the mens rea requirement was anything less than a specific intent to further the terrorist activities of a designated FTO. The Court rejects their argument, and holds that the amended version of section 2339B comports with the Fifth Amendment’s requirement of “personal guilt,” because although unless Congress expressly communicates its intent to dispense with a mens rea requirement and create strict criminal liability, the notion of ‘personal guilt’ requires some culpable intent before criminal liability attaches,” as amended, the challenged AEDPA provision “complied with the conventional requirement for criminal conduct—awareness of some wrongdoing.” [¶ 52]

Plaintiff’s challenge of the statute that relied on precedent from vicarious criminal liability cases also fails, as the Court determines that there is no liability for the criminal acts of a group a donor has given material support to, but only liability for the illegal act of giving to the donee organizations. “In sum, because [AEDPA] does not impose ‘vicarious criminal liability,’ due process is satisfied without proof of specific intent to further the organization’s illegal goals.” [¶ 58]

Second, the Due Process Clause of the Fifth Amendment requires that statutes clearly delineate the conduct they proscribe. AEDPA section 2339B(a), as amended by IRTPA in December 2004, now criminalizes the act of knowingly providing “material support or resources” to a designated foreign terrorist organization. Plaintiffs argued that the amended definitions are impermissibly vague because the statute fails to notify a person of ordinary intelligence as to what conduct constitutes “material support or resources.” The terms in the definition of “material support or resources” that Plaintiffs specifically challenged are “training,” “expert advice or assistance,” “service,” and “personnel.” The district court ruled for the Plaintiffs on the first three terms, and the Court of Appeals agrees.

Statutes are invalidated on vagueness grounds for three reasons: “(1) to avoid punishing people for behavior that they could not have known was illegal; (2) to avoid subjective enforcement of laws based on ‘arbitrary and discriminatory enforcement’ by government officers; and (3) to avoid any chilling effect on the exercise of First Amendment freedoms.” Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998). Although the term “training” was amended by Congress, it remained vague as “limiting the definition of the term ‘training’ to the ‘imparting of skills’ does not cure unconstitutional vagueness because, so defined, the term ‘training’ could still be read to encompass speech and advocacy protected by the First Amendment.” [¶ 73]

Similarly, because the ‘other specialized knowledge’ portion of the ban on providing ‘expert advice or assistance’ continues to cover constitutionally protected advocacy, the Court of Appeals holds that it, too, was void for vagueness. [¶ 80] Finally, proscribing “service” was vague because each of the other challenged provisions could be construed as a provision of “service.” [¶ 84]

Third, “IRTPA added a limitation to the ban on providing ‘personnel.’ 18 U.S.C. § 2339B(h). Section 2339B(h) clarifies that section 2339B(a) criminalizes providing ‘personnel’ to a foreign terrorist organization only where a person, alone or with others, ‘[work]s under that terrorist organization’s direction or control or . . . organize[s], manage[s], supervise[s], or otherwise direct[s] the operation of that organization.’ Section 2339B(h) also states that the ban on ‘personnel’ does not criminalize the conduct of ‘[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives.’ Id. As amended by IRTPA, AEDPA’s prohibition on providing ‘personnel’ is not vague because the ban no longer ‘blurs the line between protected expression and unprotected conduct.’” [¶¶ 88–89]

Fourth, because AEDPA section 2339B is not aimed at expressive conduct and because it does not cover a substantial amount of protected speech, the Court holds that the prohibition against providing “material support or resources” to a foreign terrorist organization is not facially overbroad. A statute is facially overbroad when its application to protected speech is “substantial, not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications.” Virginia v. Hicks, 539 U.S. 113, 119–20 (2003). As section 2339B(a)’s ban on provision of “material support or resources” to designated foreign terrorist organizations “undoubtedly has many legitimate applications,” the statute “can legitimately be applied to criminalize facilitation of terrorism in the form of providing foreign terrorist organizations with income, weapons, or expertise in constructing explosive devices.” [¶ 95]

Additionally, the Court of Appeals affirms the validity of the licensing scheme added by the IRTPA.

Citation: Humanitarian Law Project v. Mukasey, No. 05 56753 (9th Cir., December 10, 2007).

Filed in: 2007 International Law Update, Issue11