In my post of September 15 titled Seven Reasons Why Protecting 7th Amendment Should Be Republican & Tea Party Priority, I noted that, “the 7th Amendment has been an important tool for the pursuit of terrorist financing, and civil lawsuits have resulted in some important judgments. The family of David Boim, an American killed by Hamas terrorists in Israel, successfully won a $156 million judgment against the Dallas-based Holy Land Foundation for its role as the biggest Hamas fundraiser in the U.S… A former official of the NSC under Presidents Clinton and Bush testifed to Congress that, ‘civil litigation can substantially enhance the financial consequences that such entities face’ (referring specifically to terrorist financiers).” The actual and alleged financiers know this, which is why they’re pulling out all the stops to keep the victims of their attacks from pursuing justice in U.S. courts.
An incorporated charity identified by the U.S. as a terrorist financier is now opposing a civil suit filed in federal court by trying to assert that U.S. courts lack jurisdiction over it, simply by reason that it is a corporation and not an individual. If the attempt is successful, it will gut an important component of civil anti-terrorism penalties. Individuals who wish to raise funds in the U.S. to fund terrorist attacks overseas might only have to incorporate in order to avoid civil suits in U.S. courts by the terrorists’ non-American victims.
First, some background. In October 2009, Sri Lankan family members of those killed and injured in bombings committed by the Liberation Tigers of Tamil Eelam (LTTE, a.k.a. “Tamil Tigers”), filed a lawsuit in federal court, alleging that founders of a group called the “Tamil Rehabilitation Organization” provided millions of dollars in funds used for LTTE terrorist attacks in Sri Lanka. The complaint was filed under the Alien Tort Statute of 1789 (“ATS”), which grants non-U.S. citizens access to the U.S. courts to seek justice for violations of “the law of nations,” regardless of where the violations occur.
The Tamil Rehabilitation Organization (TRO) was designated by the Treasury Department on November 15, 2007, for serving as the funding and procurement network in the U.S. for the LTTE, which has been on the official list of Foreign Terrorist Organizations since 1997. In the 2007 designation, the Treasury Department noted, “In the United States, TRO has raised funds on behalf of the LTTE through a network of individual representatives. According to sources within the organization, TRO is the preferred conduit of funds from the United States to the LTTE in Sri Lanka. TRO also has facilitated LTTE procurement operations in the United States. Those operations included the purchase of munitions, equipment, communication devices, and other technology for the LTTE.”
And the Tamil Tigers were a terribly deadly terrorist group at that time, as also noted in the 2007 TRO designation. “The LTTE is a terrorist group that has waged a violent secessionist campaign for over two decades to secure a separate state for Tamil-majority regions in Sri Lanka’s North and East. The conflict between the LTTE and Sri Lankan military forces has claimed over 60,000 lives and displaced hundreds of thousands of Sri Lankan citizens.”
Here’s the issue raised last month by TRO that threatens civil suits by non-Americans against terrorist financiers. On November 23, TRO’s attorneys filed a Motion to Dismiss the lawsuit. In a Memorandum filed with the notice, TRO’s attorneys asserted that the 2nd Circuit Court of Appeals had ruled in Kiobel, et al., v. Royal Dutch Petroleum, et al., that “the ATS does not confer subject matter jurisdiction over corporate defendants, because such liability is not a ‘specific, universal, and obligatory norm of international law.'” TRO’s attorneys thus claim that the 2nd Circuit decision immunizes TRO from any liability for funding the Tamil Tigers’ terrorist attacks, solely because it is a corporation.
Think about this outcome of the Kiobel decision and a potential dismissal of the lawsuit against TRO: Hamas could consider resuming fundraising in the U.S., through an incorporated “charity,” for attacks against Israelis overseas, knowing that the Israeli victims could not pursue justice in the U.S. and penalize Hamas’ fundraisers here. And it would be accomplished solely through judicial decision and without any input by Congress.
Not all federal courts agree with the 2d Circuit decision in Kiobel that immunized corporations from liability under the ATS. The 11th Circuit and 9th Circuit Courts of Appeals held in other cases that ATS claims may be brought against corporations, thus setting up a possible Supreme Court case over the conflicting appellate decisions. But the Supreme Court has already refused to enable American 9-11 victims to hold Saudi financiers liable for funding Al Qaeda, so it could foreeably close the courthouse door to foreign terrorism victims, even in cases in which the funding was raised in the U.S.
Congress need not wait for the Supreme Court to possibly immunize terrorists from raising funds in the U.S. by using incorporated charities. Congress could and should act to enable those foreign victims to hold the terrorist financiers liable for their fundraising in the U.S.