John Doe vs. Al Qaeda

Just recently a court awarded $156 million to the parents of a 17-year-old man who was killed by Hamas. The lawyer for the parents hailed the award as precedent for other victims of terrorism.The events leading up to the suit were sketched in a report in the New York Times. David Boim was “shot and killed by members of Hamas while he waited at a bus stop.” Though it was not included in the Times article, the lawyer for the parents confirmed that Boim was attending yeshiva in the Jewish settlement of Beit El on the West Bank and was waiting for the bus to take him back to his parents’ home in Jerusalem. Boim’s parents have lived in Israel for 20 years.Following the death of their son, the parents returned to Chicago to file suit against three Islamic charities and an individual, accusing each of raising money for Hamas.The statute under which the suit was filed – the Antiterrorism Act of 1990 – provides that anyone who is injured by terrorism can sue those entities which provide material support to the terrorists. The statute was a response to the execution of Leon Klinghoffer, an invalid who was murdered by terrorists. They seized the cruise ship on which he was vacationing and threw him overboard. When it became clear that the civil suit brought by Klinghoffer’s family was only cognizable under the law of admiralty, Congress enacted the Antiterrorism Act of 1990 to give those who were injured or killed on land the right to sue.While there is no question that the award in Chicago, with its accompanying publicity, will encourage further civil suits under the Antiterrorism Act of 1990, there are real issues as to the viability of such actions. A close reading of the Antiterrorism Act strongly suggests that the suit filed by the Boims should have been thrown out.To begin with, there is the act itself, which states that no action shall be maintained “for injury or loss by reason of an act of war.” The statute defines an act of war as not only armed conflict “between two or more nations” but also “armed conflict between military forces of any origin.” Moreover, there is Supreme Court precedent to the effect that the phrase “by reason of” means any injury that is foreseeable.The logic of the argument is straightforward: Hamas trains and deploys a military force in the West Bank in response to the occupation of that area by the Israeli army and Israeli settlers, who claim the land as their own; this conflict resulted in the death of David Boim – a death that was clearly foreseeable; and, therefore, the organizations that support Hamas are immune from suit. According to the attorney for the Boims, the attorneys for the charities neglected to raise this argument.That Hamas maintains a military force was inadvertently established by the Boims themselves: So as to prove that Hamas had killed their son and to establish defendants’ knowledge that Hamas was training soldiers, the parents introduced expert testimony that Hamas operated military camps through out the world; that Hamas provided extensive training in combat, the use of firearms, and construction and detonation of bombs; that in some cases Hamas sent its personnel for further military training in Syria. In an earlier ruling in the same case, the federal court of appeals for Chicago observed that the “military branch [of Hamas] receives orders and material support from the political branch” and that Hamas maintains military “control centers” throughout the world (including America) which “arrange for the purchase of weapons and for the recruitment and training of military personnel.”Congress would do well to close this loophole, which would allow terrorists, such as Hamas and Al Qaeda, to escape civil liability under the Antiterrorism Act of 1990. Given pending suits and suits to be filed shortly, the sooner Congress does so the better.But the problem set forth above is not the end of the difficulties that the relatives of victims will encounter in bringing their suits. One critic of the Chicago award has commented that while the Antiterrorism Act was intended to protect people who are on cruise ships or who were going to their offices in downtown New York, it was not meant to protect those who willingly enter into areas of longstanding armed conflict – such as the West Bank. Those individuals may be said to have assumed the risk of being killed or injured. The suit brought by the parents was thus an abuse of the statute. The analogy would be to a war correspondent in Iraq bringing suit for injuries sustained in that conflict.The parents of the child in Chicago, the parents who were awarded $156 million, might respond to this by noting that their son was not old enough to be fully aware of the danger involved. He was, after all, just a youth who was sent to a yeshiva in a settlement on the West Bank. The parents would be right. In the case of their son, responsibility lies elsewhere – sadly, closer to home.Mr. Rips, who was a law clerk to Justice Brennan, practiced law in New York. His book, “The Face of a Naked Lady: An Omaha Family Mystery,” will be published in the spring of 2005 by Houghton Mifflin.

John Doe vs. Al Qaeda

John Doe vs. Al Qaeda

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