An American Warning Radio

As the crisis between India and Pakistan is drawing the attention of the international community and the diplomatic efforts of the United States, public opinion has shown an increased interest in the Jihadi agenda in India. In this regard the Counter Terrorism community is focusing on analyzing the long term strategic agenda of the Terror forces involved in the attack. Today's panel discussion in Congress at the invitation of the Counter Terrorism Foundation opened several perspectives in projecting the next stage of the conflict. The minutes of this briefing will be useful to the growing debate about Post Mumbai. Following is a short piece published initially by Fox News.com today, raising some of the issues I discussed at the panel in Congress this morning.

Almost unnoticed in the chaos created by recent terrorist events is the nuclear agreement signed between Russia and Venezuela signed when Russian president Medvedev visited Caracas last week. His visit coincided with the arrival of Russian naval ships for joint operations with the Venezuelan navy.

The ships, in their first post-Cold War venture into Latin America, included the Peter the Great, the flagship missile cruiser of the Russian navy, and several other vessels.

Under the accord, Russia would help Venezuela build a nuclear energy plant. Joint gas projects were also approved. Military co-operation is also high on the agenda of Mr Medvedev's talks with Venezuelan President Hugo Chavez.

None of this would be alarming if Chavez were not a known sponsor of violent and radical movements across the hemisphere, from the FARC in Colombia to the worst elements (and a small minority of the overall parties) of the Sandinistas in Nicaragua and the FMLN in El Salvador.

His closest allies, such as Iran and North Korea, are rogue nations who have repeatedly lied and failed to abide by international nuclear agreements.

Having already spent $4.4 billion on Russian weapons in the past three years, and despite a sharp downturn in oil revenues, Chavez wants to go nuclear.

The reason he gives is electrical production as the prime peacetime use of the energy. But this raises several important questions. My full blog is here.

Last December I used this space to express concern that the 2-1 decision handed down by a Seventh Circuit Court of Appeals three-judge panel in the Boim case represented a serious setback to victims of terrorism seeking to hold accountable those who provide material support to the terrorists that harm them. This decision has now been substantially altered, on appeal, by a second Seventh Circuit panel ruling.

The earlier decision had erected significant and complex impediments to establishing liability in victims-of- terrorism cases (see my previous blog). It held, inter alia, that victim-of-terrorism plaintiffs had to establish a clear causal link between the funding of the terrorists and the terrorist act itself. This new decision does away with that barrier and makes it clear that contributions knowingly made to organizations that engage in terrorist activities may be sufficient to establish liability in such cases.

The latest Seventh Circuit Opinion circumvents the complexities of the earlier decision by abandoning the earlier panel’s reliance on the legal doctrine of “aiding and abetting,” as a basis for “secondary” liability under Section 2333 of the Anti-Terrorism Act of 1996. Rather, the Court now follows a more direct line of reasoning: (1) Section 2331 defines “international terrorism” as including “activities that . . . involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States,” that “appear to be intended . . . to intimidate or coerce a civilian population” or “affect the conduct of a government by . . . assassination,” and that “transcend national boundaries in terms of the means by which they are accomplished” or “the persons they appear intended to intimidate or coerce.” and (2) knowingly donating to a terrorist group that targets Americans outside the United States falls within the terms of this definition.

“Giving money to Hamas,” the court reasons, “like giving a loaded gun to a child (which also is not a violent act), is an ‘act dangerous to human life.’ And it violates a federal criminal statute enacted in 1994 and thus before the murder of David Boim—18 U.S.C. § 2339A(a), which provides that “whoever provides material support or resources . . ., knowing or intending that they are to be used in preparation for, or in carrying out, a violation of [18 U.S.C. § 2332],” shall be guilty of a federal crime.”

The court also reasons that this outcome, reaching to those that fund terrorist organizations, was clearly intended by Congress and that it makes sense as good counterterrorism policy. “Damages are a less effective remedy against terrorists and their organizations than against their financial angels. Terrorist organizations have been sued under section 2333 …but to collect a damages judgment against such an organization, let alone a judgment against the terrorists themselves (if they can even be identified and thus sued), is … well-nigh impossible. These are foreign organizations and individuals, operating abroad and often covertly, and they are often impecunious as well. So difficult is it to obtain monetary relief against covert foreign organizations like these that Congress has taken to passing legislation authorizing the payment of judgments against them from U.S. Treasury funds….But that can have no deterrent or incapacitative effect, whereas suits against financiers of terrorism can cut the terrorists’ lifeline.”

With these principles, the rest of the case for liability is straightforward:

“We know that Hamas kills Israeli Jews; and Boim was an Israeli citizen, Jewish, living in Israel, and therefore a natural target for Hamas. But we must consider the knowledge that the donor to a terrorist organization must be shown to possess in order to be liable under section 2333 and the Proof required to link the donor’s act to the injury sustained by the victim….A knowing donor to Hamas—that is, a donor who knew the aims and activities of the organization—would know that Hamas was gunning for Israelis …., that Americans are frequent visitors to and sojourners in Israel, that many U.S. citizens live in Israel…, and that donations to Hamas, by augmenting Hamas’s resources, would enable Hamas to kill or wound, or try to kill, or conspire to kill more people in Israel. And given such foreseeable consequences, such donations would “appear to be intended . . . to intimidate or coerce a civilian population” or to “affect the conduct of a government by . . . assassination,” as required by section 2331(1) in order to distinguish terrorist acts from other violent crimes, though it is not a state-of-mind requirement; it is a matter of external appearance rather than subjective intent, which is internal to the intender.”

In answer to the argument that it cannot be shown that the Defendents actually intended to cause harm as their contributions were made with societal or humanitarian objectives in mind the court responded

“But if you give money to an organization that you know to be engaged in terrorism, the fact that you earmark it for the organization’s nonterrorist activities does not get you off the liability hook….The reasons are twofold. The first is the fungibility of money. If Hamas budgets $2 million for terrorism and $2 million for social services and receives a donation of $100,000 for those services, there is nothing to prevent its using that money for them while at the same time taking $100,000 out of its social services “account” and depositing it in its terrorism ‘account’….Second, Hamas’s social welfare activities reinforce its terrorist activities both directly by providing economic assistance to the families of killed, wounded, and captured Hamas fighters and making it more costly for them to defect (they would lose the material benefits that Hamas provides them), and indirectly by enhancing Hamas’s popularity among the Palestinian population and providing funds for indoctrinating schoolchildren."

Not intending to be misunderstood when it comes to legitimate humanitarian assistance, the court clarified that there were obviously certain exceptions concerning charitable donations, even if they were to end up in the hands of Hamas.

“ One is the easy case of a donation to an Islamic charity by an individual who does not know (and is not reckless, in the sense of strongly suspecting the truth but not caring about it) that the charity gives money to Hamas or some other terrorist organization.

The other case is that of medical (or other innocent) assistance by nongovernmental organizations such as the Red Cross and Doctors Without Borders that provide such assistance without regard to the circumstances giving rise to the need for it.”

It has been over 12 years since the Boim murder by Hamas terrorists, yet this case is still weaving its way through the courts. Perhaps its greatest importance now will be in setting straight the guidelines for future victims of terrorism litigation. There likely will be more Boim-type cases moving through the courts for some time to come and seeking to hold those that indoctrinate, recruit, arm, sustain, supply and finance terrorists accountable.

A Final Note: The court recognized that it could not avoid the fact that the District Court findings concerning HolyLand Foundation were based, in large measure, on an erroneous determination of collateral estoppel re an earlier District Court ruling upholding an administrative determination against Holyland, and that they, therefore were still entitled to “their day in court” in this case. With respect to Defendant Muhammed Saleh the district court judgment of liability was reversed as he was in an Israel prison at the time of the Boim murder and his alleged collection of funds for Hamas post-dated the Boim murder. All the other defendants remain liable for the $156 million judgment against them.

A federal appeals court in Chicago today upheld a $156 million judgment against several Palestinian charities accused of funding Hamas. A full history of the history of the Boim case, covered extensively on this blog, is available here.

In an earlier appeal the original judgment against the defendants was overruled based on the Seventh Circuit’s disturbing finding -- now reversed -- that “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.”

This latest opinion (87-page Acrobat file) found that “Anyone who knowingly contributes to the nonviolent wing of an organization that he knows to engage in terrorism is knowingly contributing to the organization’s terrorist activities.”

In the case of Hamas, the court ruled, “A knowing donor to Hamas—that is, a donor who knew the aims and activities of the organization—would know that Hamas was gunning for Israelis.”

Well-planned deadly terrorist attacks such as the one in Mumbai last week against targets scouted out in advance are not conducted on the spur of the moment at a cost of mere pennies. The large amounts of ammunition and the advance planning by the terrorists who attacked 10 targets within a short time period is a reminder that terrorist attacks often need funding and other material support for their deadly activities.

Too often, though, as seen in the recent trial of the Holy Land Foundation for providing support to Hamas, lawyers try to downplay or even attack laws designed to curb the backing provided by those supporters who may not actually pull the trigger but provide the funds, weapons or other essentials for conducting a major attack.

It may seem a long way from Mumbai where terrorists killed at least 173 persons including six Americans and 13 other foreigners, to the Dallas, Texas trial where on Nov. 24, the Holy Land Foundation and five former leaders were found guilty of channeling $12.4 million to Hamas-affiliated committees and groups since 1995. That January, an executive order made it illegal to provide material support to a dozen foreign terrorist organizations including Hamas. But although there is known link between Mumbia and Hamas, there is a common threat—material support they receive from supporters..

President Clinton’s January, 2005 executive order designed to curb money flows to 12 groups (10 Arab and two Jewish) that threatened the use of violence against the Middle East process was followed up by more detailed legislation that Congress eventually enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996. (Public Law No. 104-132, 110 Stat.)

A material support provision, 18 U.S.C. 2339B, makes it a criminal offense for American citizens or residents to knowingly provide funds or other forms of material support that the Secretary of State, in consultation with the Attorney General and Secretary of Treasury, designated as a foreign terrorist organization. The legislation covers such forms of support as funding, weapons, and training as well as the provision of financial services and has been used in dozens of cases.

The 44 designated groups include the Lashkar-e Tayyiba (LeT) (Army of the Righteous). Some Indian and other intelligence specialists believe the group was behind the complex attacks on two major hotels, the railway station and popular café where Indians and foreigners were mowed down, as well as the Jewish center, where a young rabbi and his wife were among those murdered. In all six Jews were killed.
"While all the information is not in yet, it does appear at this point that the attackers had connections to Lashkar-e-Taiba," a U.S. counterterrorism official was quoted as saying today by Reuters

While much of the support from LET appears to come from within Pakistan, it also reportedly raises funds from Pakistanis living in the United Kingdom and Europe even though it is also classified as a terrorist group by the U.K., the European Union and Australia.

Hamas receives funding from Iran and also has raised funds in the United States and other countries through so-called “charities.” It was after a lengthy second trial that the Holy Land Foundation was found guilty of 108 counts, including money laundering as well as providing material support for a designated terrorist group, Hamas. The trial was well covered by my colleagues in previous postings on this blog including one just filed by Matt Levitt.

The issue of material support is important and deserves to be addressed further in view of the context of the Mumbai attack in which terrorists also received a considerable amount of support for the weapons and advanced planning, including infiltration and scouting of the hotels and the Chabad Jewish Center which visitors have said is normally hard to find on narrow side street. According to one report attributed to the surviving terrorist, the site was scouted out a year in advance.

Supporters of the Holy Land Foundation and Hamas often contend that the funding goes for schools and clinics and other charitable activities, even though at least 500 persons have been killed in suicide and other attacks by Hamas which opposes Israeli’s right to exist and has thwarted the Palestinian Authority’s officially stated efforts to reach a peaceful settlement with Israel.

A recent Congressional Quarterly article quoted Hina Shamsi, an attorney for the American Civil Liberties Union’s National Security Project, as saying that federal law doesn’t require the purpose of the material support be illegal, thus it criminalizes guilt by association and in some cases the government’s application of the law violates the free-speech and due-process rights of the She was quoted as saying that the law could be improved by including a requirement that it was the specific intent of the accused to provide support for terrorism.

Congress, however, made its intent clear in the “FINDINGS and PURPOSE” Sec. 301 (7) of the Antiterrorism and Effective Penalty Act of 1996. This section stated that “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contributions to such an organization facilitate that conduct.” In effect, Congress was stating that money is fungible and even if the money is intended for legitimate charitable purposes, it frees up funds that could be used to support terrorist activities. Some terrorist organizations such as HAMAS, and Hezbollah and others in Egypt use funds for both weapons schools and medical clinics that attract supporters and potential terrorist operatives.

Actually, when Justice and State Department officials (I was one of them) drafted the original 1996 administration bill they included a licensing provision allowing donors to contribute to specific charitable activities such as medical supplies and other humanitarian assistance provided that the organizations provided documentation that the contribution actually was being used for those purposes.

This attempt to accommodate humanitarian concerns ultimately was dropped however during discussions between State and Justice Department officials and the Senate Judiciary Committee staff. A key staffer who worked for Republican Senator Spencer Abraham of Michigan, a state with a large Arab-American population rejected the provision. She said that the recipient “charity” organizations would not stand for opening their books to inspection. Thus the proposed exceptions for humanitarian assistance went by the wayside because of opposition from a Senate staffer who apparently was sympathetic to those who wanted to contribute to Hamas.

In short, those who are inclined to go along with the arguments that it is ok to provide funding or other support for terrorist groups, even if they do not actually throw the grenades or pull the trigger need look no further than Mumbai for a reminder of the deadly consequences.

Over the past few weeks, Hamas's international financial support network suffered a series of setbacks, most notably the U.S. federal court conviction of the Holy Land Foundation for Relief and Development (HLF) and five of its leaders on charges of providing material support to Hamas. Despite these convictions and the broad sanctions in place against Hamas, however, the group remains capable of raising substantial funds, through both traditional and innovative means.

On November 24, a Dallas jury convicted the HLF of all counts in a major terrorist finance case. According to the Justice Department, "HLF intentionally hid its financial support for Hamas behind the guise of charitable donations" amounting to approximately $12.4 million "provided in support to Hamas and its goal of creating an Islamic Palestinian state by eliminating the State of Israel through violent jihad."

Just two weeks before the HLF verdict on November 12, the Treasury Department designated the Union of Good (Etelaf al-Khair, also known as the Charity Coalition), a Saudi-based umbrella organization that began as a fundraising drive and developed into an institution working with more than fifty Islamic foundations worldwide, as a "specially designated global terrorist entity" (SDGT). According to the Palestinian Preventive Security in the Gaza Strip, "The Union [of Good] is considered -- with regard to material support -- one of the biggest Hamas supporters." Noting its ties to Hamas, Israel outlawed the organization in February 2002. According to Treasury, Hamas leaders created the Union of Good in 2002, stating that it "facilitates the transfer of tens of millions of dollars a year to Hamas-managed associations." The Union "acts as a broker for Hamas by facilitating financial transfers between a web of charitable organizations . . . and Hamas-controlled organizations in the West Bank and Gaza."

The SDGT designation appears to already have had an impact on Hamas financing. A few days after Treasury's decision, the British bank Lloyds TSB instructed the Birmingham-based Islamic Bank of Britain to cease dealings with Interpal, a UK-based charity previously designated as a Hamas-financing entity by the U.S. government and highlighted as a central player in the Union of Good's web of Hamas-associated charities.

Despite the recent successes in efforts to disrupt Hamas's financing, the group is still able to raise substantial funds. As the governing party in Gaza, Hamas has access to new sources of funding, including taxes and customs fees.

The full article is available here.

The NEFA Foundation has released a new report that I have written titled “Inside As-Sahaab: The Story of Ali al-Bahlul and the Evolution of Al-Qaida’s Propaganda.” The report is based upon previously unseen evidence presented during the recent Guantanamo Bay military commissions trial of Yemeni national Ali Hamza Ahmad Suliman al-Bahlul. In November 2008, a military jury convicted al-Bahlul of conspiracy, solicitation, and providing material support to terrorism. During questioning conducted by FBI and NCIS agents, Al-Bahlul admitted that he had been “personally appointed” by Usama Bin Laden to take charge of As-Sahaab, allegedly writing the final “martyrdom” wills of 9/11 hijackers and producing one of Al-Qaida’s most enduring terrorist propaganda films, “The Destruction of the U.S.S. Cole” (otherwise known as “State of the Ummah”). The report also analyzes the significance of another exhibit submitted by prosecutors in their case against Mr. al-Bahlul - the rough-cut recorded “martyrdom” will of 9/11 hijacker Ziad Jarrah. As I described in the report, “this revealing video footage seems to suggest that the theatrical ‘martyrdom’ wills of Al-Qaida suicide operatives are much more carefully scripted and deliberately orchestrated than the As-Sahaab Media Foundation would otherwise wish to acknowledge.”

The report can be downloaded from the NEFA Foundation website.