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Taking Terrorism to Court

Terrorism costs money by Sheryl Katz Elias

One of the biggest quandaries of war is how to defeat the enemy without
sacrificing your soul.

How do you defeat an enemy that keeps raising the bar in terms of
viciousness, packing bombs with nails to maximize pain and injury and then strapping
them to youngsters so they can evade detection; videotaping executions and
distributing them on the internet; and constructing diabolical torture chambers
that could compete with the worst horror movies imaginable?

The answer to this quandary is coming from a most unlikely source ? lawyers
– those pesky, aggressive practitioners who consistently appear at the
bottom in surveys on public trust, who have been reviled since the days of
Shakespeare (“The first thing we do, Let’s kill all the lawyers.” King Henry VI),
and who are, well, overly litigious. Yet, it is this pool of unlikely heroes
who may have the answer for stopping terrorists in their tracks. Their plan:
to bankrupt terrorists and put them out of business, because that is what
terrorism has become — big business.

Sending Kassam missiles over borders; recruiting, training and arming
suicide bombers; commandeering large commercial flights; organizing sleeper cells
in cities and towns around the world and exploding trains in Madrid costs
money. Terrorism in the year 2005 is not about a lone individual jumping on a
plane with a semi-automatic rifle. It is about carrying out planned attacks
with a network of participants aimed at transforming governments and
societies. And thanks to lawyers from around the United States and elsewhere,
terrorists are finding it harder to fund these types of activities.

The victories thus far have been impressive and the battle in the courts
appears to have only just begun. This past summer, Senior United States
District Judge, Ronald R. Lagueux, sitting in a United States District Rhode
Island, entered a default judgment against the Palestinian Authority (PA) and the
Palestinian Liberation Organization (PLO), awarding a judgment of $116
million against each entity. By doing so, the Judge rejected the defendants’ claims
of sovereign immunity, finding that neither the PA or the PLO, “nor the
entity called Palestine” represents a foreign State.

The case before Judge Lagueux arose from June 9, 1996 murder of Yaron and
Efrat* Ungar, who were shot dead while driving home from a wedding on a road
near Beit Shemesh, Israel. Two Hamas terrorists opened fire on their car. The
Ungar’s nine-month-old son, Yishai, who was strapped in a car seat in the
backseat, survived, although his car seat was riddled with bullets. Efrat was
pregnant with her third child. The Ungar’s two-year-old son, Dvir, was not
in the car at the time.

After the default was entered, the defendants attempted to argue that the
ultimate burden of the court’s damage award would be “borne by an impoverished
and oppressed Palestinian people who currently suffer from a continuing
humanitarian crisis.” The judge in the Ungar case rejected this argument out of
hand. On a procedural level, he noted that by deciding not to participate in
the case, the defendants waived a hearing on damages. Substantively, the
court held:

The PA and PLO, and not an impoverished and oppressed Palestinian people,
are responsible for and must bear the ultimate burden of providing
compensation, which this Court fully acknowledges will never return to the Plaintiffs
the relationships and lives that existed prior to June 9, 1996. The court
hopes that in keeping with the ATA’s (Anti-Terrorism Act of 1990) purpose to
deter acts of international terrorism, its judgment will interrupt or at least
imperil the flow of terrorism’s lifeblood, money and thus, prevent the PA
and the PLO from funding future terrorist acts such as the one that resulted in
the Ungars’ horrific deaths.

Less than a month before the Ungars were murdered in 1996, 17-year-old
David Boim was killed by two Palestinian terrorists who drove by and shot him in
the head while he was standing at a bus stop in the West Bank with a group
of fellow yeshiva students. Like the Ungar’s case, the murder of David Boim
made its way to the United States court system, brought by his parents,
American citizens who had moved to Israel in 1985. The case was initiated under
the 1996 United States law deeming it illegal for Americans to send money to
terrorist groups, even if the money is ostensibly earmarked for humanitarian
aid.

Last December, a jury in a United States District Court in Chicago
deliberated just one day before awarding David Boim’s parents $52 million in
damages. U.S. Magistrate Judge Arlander Keys then turned around and tripled the
jury’s award. The Boim lawsuit named the triggermen who killed the David Boim,
an alleged Hamas fundraiser and money-launderer in the US and “a network of
front organizations” in the US, who allegedly funneled assets to Hamas.

The Boim lawsuit was the first such case to be brought against United
States-based institutions. Before the case went to the jury, Magistrate Keys had
already rendered a decision finding the Texas-based Holy Land Foundation, one
of the country’s largest Islamic charities, and another charity, the Islamic
Association for Palestine, liable for damages in Boim’s death on the basis
that they knowingly funded Hamas. (Following the attacks of September 11th,
the United States government had frozen Holy Land’s assets.)

Subsequently, the jury in the Boim case also found the Quaranic Literacy
Institute, an organization based in Oak Lawn, Illinois that translates Muslim
texts, and Mohammad Salah, a Palestinian living in Bridgeview, Illinois,
responsible for damages in the Boim murder. In 1998, the FBI seized $1.4 million
in assets from Salah.

And the war on terrorism continues…in American courtrooms. David
Strachman, the Rhode Island attorney in the Ungar case is currently representing a
number of other terror victims, including a victim from the “bat mitzvah
bombing” in Hadera and victims from the bombing of the pizza shop in Karnei
Shomron.

Meanwhile two mega-lawsuits have been filed by a group of American law
firms, including the South Carolina law firm, Motley Rice, known in the past for
its lawsuits against the manufacturers of asbestos and Firestone Tires, and
its part in the $350 billion award against the tobacco industry. One lawsuit
has been filed in the United States District Court in Brooklyn on behalf of
more than 700 survivors and family members of those killed or maimed by
terrorism in Israel. The first 31 pages of the 149-page complaint are dedicated
to the names of the plaintiffs, victims of terror and their families. Another
22 pages of the complaint are devoted to a chronology of the terror attacks
for which the plaintiffs seek damages against the Arab Bank PLC, the sole
defendant in the lawsuit.

The complaint opens in a style more familiar to a political analysis than a
legal filing:

?For the better part of the last decade, groups of Palestinian militants in
the West Bank and Gaza Strip have acted with a united purpose to eradicate
the State of Israel through a campaign of terror, genocide and crime against
humanity.?

It then proceeds to outline the Arab Bank’s role in this destructive scheme.
According to the allegations in the complaint, the Arab bank solicited,
collected, transmitted, disbursed and provided the financial resources that
allowed Hamas, the Palestinian Islamic Jihad (PIJ), the Al-Aqsa Martyrs’ Brigade
(AAMB), and the Popular Front for the Liberation of Palestine (PFLP) to
conduct suicide bombings and other murderous attacks.

In addition to maintaining accounts at its bank for well-known terrorist
front groups and individuals who support their causes, the complaint alleges
that the Arab Bank also empowered Hamas, the PIJ, the AAMB and the PFLP by
providing instructions to the general public on how to qualify and collect money
and by serving as the “paymaster” for terrorists. The bank also maintained
numerous accounts to provide funds for the families of the ?martyrs? of the
above terrorist organizations, according to the allegations.

Many of these actions came to light on April 2002, when the Israeli Defense
Forces found and made public paperwork documenting transactions supporting
terrorism during a raid on Arafat’s Ramallah compound. Among the documents
recovered was an invoice from the AAMB, billing the Palestinian Authority for
items such as electrical and chemical components for 30 bombs. It stated, “We
need about 5-9 bombs a week for our cells in various areas.” According to
the complaint, the invoice was approved by the PA.

Motley Rice is also one of a number of law firms involved in the
multi-district lawsuit, currently pending in the Southern District of New York filed on
behalf of the families of those who perished on September 11th. The
September 11th lawsuit names as defendants individuals, banks and charities which
allegedly financed al-Qaeda’s terrorist pursuits.

While there have been intermediate courtroom victories in this war on
terror, ultimate victory will depend on the development of cutting-edge law and
the results of state-of- the-art and exhaustive investigation involving
corporate and diplomatic intelligence. Before the battle in the courtroom ends,
vast resources will be expended and huge numbers of lawyers’ hours invested.
Nathan Lewin, the acclaimed Washington attorney, estimated in testimony before
Congress that more than one million legal manpower hours were spent on the
Boim case.

In this bloodless war against terror, the lawyers’ weapons of choice are
words and paper, and before the lawsuits seeking to bankrupt terrorist
organizations finish their respective journeys through the American legal system,
thousands upon thousands of pieces of paper will pass through the courts, each
documenting a life, some family’s pain or some financial misdeed.

One of the most enduring memories of 9/11 is the imagery of thousands upon
thousands of sheets of paper, bits and pieces, sailing through the air from
the burning buildings of the World Trade Center, photos, telephone messages,
legal memos and lunch menus, each of them documenting life. Viewed in a more
ethereal, less legalistic, sense, it is almost as if now, in the form of the
reams of court documents filed on behalf of Yaron and Efrat Ungar, David
Boim and all the other victims of terror in Israel, as well as all those who
died on September 11th, the floating papers have reconvened…to seek justice.

* Efrat was a graduate of the EMUNAH College of Arts and Technology.

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