Tuesday, November 30, 2021

A 16-year-old terror financing case brought by American victims of Hamas terrorism,“Weiss v. National Westminster Bank PLC,” has been petitioned to be heard by the Supreme Court. The court is expected to indicate whether they will hear the case by February 2022. If it is heard, it will be the most far-reaching civil anti-terrorism case since the 9/11 terror attacks.

At issue is whether a person who knowingly transfers substantial funds to a designated foreign terrorist organizations aids and abets that organization’s terrorist acts for purposes of civil liability under the Justice Against Sponsors of Terrorism Act.

According to Osen, LLC, the Manhattan and Hackensack, New Jersey-based law firm which brought the case, last week, 10 U.S. senators, including Sens. Robert Menendez (D-NJ), Charles E. Schumer (D-NY) and Kirsten Gillibrand (D-NY), and 10 Jewish organizations joined friend-of-the-court (amicus curiae) briefs in support of the plaintiffs’ petition.

The brief on behalf of the Jewish organizations was spearheaded by Justin C. Danilewitz of Saul Ewing Arnstein & Lehr LLP. Joining the Orthodox Union and the Anti-Defamation League on the brief were the American Association of Jewish Lawyers and Jurists, The Lawfare Project, StandWithUs, Zachor Legal Institute, Hadassah, Jerusalem Institute of Justice, Israeli-American Civic Action Network and Agudath Israel of America.

“This is a very important case on many levels,” said Dina Gielchinsky, counsel at Osen, LLC. “The U.S. government has long recognized that terrorist organizations don’t maintain legitimate financial firewalls between the funds they raise for civil or purportedly charitable activities, and those ultimately used to support terrorism. However, the federal courts of appeal have not taken a uniform approach to this issue, and the Supreme Court hasn’t yet clarified the scope of civil liability, so this case may determine if there’s a significant loophole in the law for ‘charitable’ donations to terrorist groups like Hamas.”

The suit, which was filed in 2005, comprises claims by the estates of American citizens who were killed and American citizens who were injured (and their family members) in terrorist attacks committed by Hamas in Israel between December 2001 and January 2004. The defendant is a British bank called National Westminster Bank, or “NatWest.” The plaintiffs alleged that NatWest held accounts for Interpal, a U.K.-based “charity” later designated as a Specially Designated Global Terrorist by the U.S. government; in fact, the U.S. Treasury Department found that “[r]eporting indicates that Interpal is the fundraising coordinator of HAMAS.”

According to the suit, NatWest knowingly transferred millions of dollars to Hamas-controlled entities in the Palestinian Territories on Interpal’s behalf during the deadly wave of suicide bombings and other terrorist attacks perpetrated by Hamas and other Palestinian terrorist groups against Israeli civilians commonly referred to as the Second Intifada (2000-2004).

The case was heard in two separate appeals to the United States Court of Appeals for the Second Circuit. The first time, in 2014, the Court of Appeals held that there was sufficient evidence from which a jury could conclude that “NatWest had knowledge that, or exhibited deliberate indifference to whether, Interpal provided material support to a terrorist organization.” But seven years later, in a decision this past April, the same court affirmed dismissal of the case because the Hamas institutions that NatWest sent millions of dollars to performed some charitable work, had not specifically “funded terrorist attacks or recruited persons to carry out such attacks,” and “Interpal did not indicate to NatWest that the transfers were for any terroristic purpose.”

Following that decision, the plaintiffs’ lawyers filed their petition for certiorari with the Supreme Court.

The brief filed on behalf of the 10 U.S. senators noted that the decision “marks the latest in an unfortunate tug-of-war between Congress and the lower courts, which have repeatedly refused to give Congress’s anti-terrorism statutes their plain, intended meaning.

“Congress has enacted overwhelmingly bipartisan legislation three times over the past five years—not a period known for political harmony—to correct judicial interpretations of the ATA that contravene Congress’s intent and improperly shut courthouse doors to terrorism victims. Enough is enough,” the senators’ letter stated.

The brief filed by the Orthodox Union, ADL, and other Jewish organizations notes that “Hamas’ terrorist attacks were foreseeable results of financing any part of Hamas’ activities” and that “Hamas uses civilian infrastructure as a cover for its violent acts. It plans military operations from mosques, and it uses medical transports as a cover to smuggle terrorists.”

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