HOLY LAND FOUNDATION

On May 13, 1996, 17-year-old David Boim, an American, was standing at a bus stop in the West Bank with fellow yeshiva students when two Palestinian terrorists drove by in a car, shot him in the head, and killed him.

One of Boim's two killers lost his life in September 1997, in the course of a suicide attack perpetrated by Hamas in Jerusalem that killed 5 civilians and injured 192. In February 1998, the other killer confessed to murdering Boim and a Palestinian Authority court sentenced him to ten years in prison at hard labor.

On May 12, 2000, David’s parents filed a civil suit in the US District Court for the Northern District of Chicago alleging that his killers had been Hamas gunmen and naming as defendants Muhammad Salah plus three organizations: the Holy Land Foundation for Relief and Development, the American Muslim Society, and the Quranic Literacy Institute. The complaint accused the defendants of having provided financial support to Hamas before David Boim’s death and by doing so of having violated 18 U.S.C. § 2333(a), which provides that “any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.”

Section 2331(1)’s definition of international terrorism includes not only violent acts but also “acts dangerous to human life that are a violation of the criminal laws of the United States.” Giving money to Hamas, like giving a loaded gun to a child (which also is not a violent act), is an “act dangerous to human life.”

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. So we go to 18 U.S.C. § 2332 and discover that it criminalizes the killing (whether classified as a donation to a terrorist group that targets Americans outside the United States may violate section 2333. Which makes good sense as a counterterrorism measure. Damages are a less effective remedy against terrorists and their organizations than against their financial angels. Terrorist organizations have been sued, 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. But that can have no deterrent or incapacitative effect, whereas suits against financiers of terrorism can cut the terrorists’ lifeline.

To give money to an organization that commits terrorist acts is not intentional misconduct unless one either knows that the organization engages in such acts or is deliberately indifferent to whether it does or not, meaning that one knows there is a substantial probability that the organization engages in terrorism but one does not care.

So it would not be enough to impose liability on a donor for violating section 2333, even if there were no state-of mind requirements in sections 2339A and 2332, that the average person or a reasonable person would realize that the organization he was supporting was a terrorist organization, if the actual defendant did not realize it. That would just be negligence. But if you give a loaded gun to a child, you know you are creating a substantial risk of injury and therefore your doing so is reckless and if the child shoots someone you will be liable to the victim.