MONTREAL —After years of litigation, U.S. attorney Nathan Lewin has proven in court that local charities funding the so-called humanitarian arms of Arab terrorist groups can be held civilly liable for criminal acts by members of those groups.
In a landmark case, Washington-based Lewin won a $156 million (US) lawsuit against two U.S.-based charities on behalf of the parents of a teenager killed in a shooting on the West Bank. Although none of that money has been collected, Lewin said the case has shown that there is a remedy in American law for citizens who are harmed by the actions of such groups as Hamas, as in this instance.
Lewin was the guest speaker at a Shabbaton, held at Chabad of Westmount, as part of the Irwin Beutel Lecture series.
Lewin, an observant Jew who has been called the Jewish Clarence Darrow, has a long history of defending civil liberties, especially religious freedom, and has argued 27 cases before the U.S. Supreme Court over his 50-year career.
On May 1, 1996, American-born yeshiva student David Boim, who had made aliyah with his parents, was killed in a drive-by shooting in Beit El on the West Bank as he stood at a bus stop.
The shooter and driver were arrested by the Palestinian Authority, one man escaped and died in a suicide bombing in Jerusalem in 1997. The second confessed and was sentenced to 10 years in prison. He testified that he had been sent by Hamas to carry out the attack.
Lewin said there are witnesses that said he was back on the street within a couple of months.
The parents, Joyce and Stanley Boim, turned to Lewin to see if U.S. law could deliver justice.
Although tort law was not Lewin’s field, he took them on as clients. He found a 1994 federal statute that said any U.S. national that is the victim of international terrorism may sue in a U.S. District Court for treble the damages a jury awards, plus lawyers’ fees.
“But there was a big gap in the law; it didn’t say whom you could sue,” he said. Hamas was not an option because U.S. law says only sovereign governments can be held civilly liable.
Lewin developed the argument that those who “aid and abetted” the crime, namely those who financed it, should be held accountable.
He zeroed in on the U.S.-registered Holy Land Foundation (HLF), the leading Muslim philanthropy in the country, and the Quranic Literacy Institute (QLI).
Lewin gathered evidence that HLF was sending money to Hamas, supposedly only for relief work but actually going into the organization’s general treasury. He found QLI had already been linked to Mohammad Salah, a Palestininian living in the United States who had accused of running money between the United States and Hamas.
“My partners said I was insane if I thought I could sue these organizations…They said they will spend a lot of money to fight it, and how am I going to prove they are involved in terrorism,” Lewin recalled. Lewin subsequently left his longtime firm and went into partnership with his daughter, Alyza, who backed him.
In May 2000, one day before the statute of limitations contained in the 1994 law expired, Lewin filed suit in District Court in Chicago against HLF, QLI and Salah. He chose Chicago because that is where over $1 million destined for Hamas was seized from Salah by U.S. authorities
The judge insisted that the parties reach an out-of-court settlement and a conference was held in November 2000. Lewin demanded $200 million and KLI said it would publish in its magazine a statement condemning violence against all victims in the Middle East conflict, while Salah told the Boims their son died because of what Israel had done to the Palestinians. No settlement was reached.
They went to litigation, and HLF, represented by the major New York firm Akin Gump, immediately filed for dismissal. The court of appeal ruled there was “aiding and abetting” and the case could proceed.
The date was set some months later for Sept. 25, 2001. When that turned out to be just a couple of weeks after 9/11, the case suddenly took on far greater significance.
The government backed Lewin’s position “100 per cent”, he said, and in December President George W. Bush ordered the seizure of HLF’s assets because of its funding of a terrorist organization, an amount of $8 million.
In mid-2002 the 7th District Court of Chicago ruled in favour of Lewin’s clients. The case went to trial to determine the amount of damages. A jury awarded $52 million which, when trebled, came to $156 million.
HLF and QLI appealed, and more than two years later the court of appeal ruled 2-to-1 that Lewin’s clients had not established that the two charities’ support of Hamas had caused the death of their son.
Lewin requested a rehearing by all active court of appeals judges of the 7th U.S. Circuit Court of Appeals in Chicago, 10 in all. They re-instated the $156 million in damages in a 7-3 decision.
However, they absolved Salah from having to pay because he was in an Israeli jail for his Hamas activities at the time the U.S. statute on which the case was argued was enacted and therefore the law didn’t apply to him. He was still in prison when Boim was killed.
Salah is currently completing a 21-month sentence for lying in connection with the Boims’ suit.
Lewin appealed to the Supreme Court on this point, and in October that request was denied.
Although the Boims have not received a cent yet, Lewin said they are “at the head of the line” when HLF’s $8 million in seized assets are eventually divided up.
In the meantime, Lewin is claiming victory because the HLF says it is bankrupt and has essentially been shut down.
“I am proud to say I can take a bit of the credit,” he said.
Moreover, Lewin believes the case will also provide at least “some measure of deterrence” if those supporting terrorist groups know they could be dragged through court for years and possibly made liable for huge settlements.
The case has already been cited several hundred times as a precedent in the trillion-dollar lawsuits connected to 9/11, he added.
“I was accused of hating Muslims. But this is not part of an anti-Muslim campaign,” Lewin affirmed.