Boim, Stanley v. Holy Land Foundation

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 05-1815, 05-1816, 05-1821 & 05-1822

STANLEY BOIM, individually and as

administrator of the ESTATE OF

DAVID BOIM, deceased, and

JOYCE BOIM,

Plaintiffs-Appellees,

v.

HOLY LAND FOUNDATION FOR

RELIEF AND DEVELOPMENT, et al.,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 2905—Arlander Keys, Magistrate Judge.

____________

ARGUED NOVEMBER 30, 2005—DECIDED DECEMBER 28, 2007

____________

Before ROVNER, WOOD, and EVANS, Circuit Judges.

ROVNER, Circuit Judge. This lawsuit has its origins in

the murder of David Boim more than ten years ago. David,

a citizen of both Israel and the United States, was living

with his parents in Israel when he was gunned down while

waiting for a bus in the West Bank outside of Jerusalem.

He was apparently shot at random by gunmen believed to

be acting on behalf of the terrorist organization Hamas.

2 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

Section 2333 of the United States Criminal Code grants

U.S. nationals injured by acts of international terrorism

the right to sue for treble damages in federal court. David’s

parents, Stanley and Joyce Boim, on behalf of themselves

and David’s estate, filed suit under this statute against

not only the two men believed to have shot David, but an

array of individuals and organizations in the United

States with alleged connections to Hamas. Broadly speak-

ing, the Boims’ theory as to the latter group of defendants

was that in promoting, raising money for, and otherwise

working on behalf of Hamas, these defendants had helped

to fund, train, and arm the terrorists who had killed their

son. In Boim v. Quranic Literacy Inst., 291 F.3d 1000 (7th

Cir. 2002) (“Boim I”), we sustained the viability of the

Boims’ complaint, concluding that liability under section

2333 attached not only to the persons who committed

terrorist acts, but to all those individuals and organiza-

tions along the causal chain of terrorism.

On remand, the district court found appellants Muham-

mad Abdul Hamid Khalil Salah (“Salah”), Holy Land

Foundation for Relief and Development (“HLF”), and

American Muslim Society (“AMS”) liable to the Boims on

summary judgment. Boim v. Quranic Literacy Inst., 340

F. Supp. 2d 885 (N.D. Ill. 2004). At the conclusion of a

trial, a jury concluded that appellant Quranic Literacy

Institute (“QLI”) also was liable. The jury awarded dam-

ages of $52 million, which the district court trebled to

$156 million. Salah, HLF, AMS, and QLI all appeal.1

Salah, HLF, and AMS contend that the criteria em-

ployed by the district court for imposing liability were

1

The district court deemed a number of other defendants jointly

and several liable for the judgment. No other defendants have

appealed, however, and their liability consequently is not

before us.

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 3

incomplete or incorrect and that the evidence adduced

below did not suffice to impose liability. QLI complains

of the district court’s refusal to continue the trial date

after the court’s summary judgment rulings left it as the

sole defendant facing a trial on liability; it also contends

that the district court erred in sua sponte entering par-

tial summary judgment against QLI as to one aspect of

liability.

We reverse the entry of partial summary judgment as

to liability against defendants HLF, AMS, and Salah. As

to HLF, we conclude that the district court erred in giving

collateral estoppel effect to the District of Columbia

Circuit’s finding that HLF funds the terrorist activities

of Hamas. As to AMS and Salah, we conclude that the

district court erroneously relieved the Boims of the bur-

den of showing that these defendants’ actions were a

cause in fact of David Boim’s death. As to QLI, we conclude

that the district court erred in sua sponte and without

prior notice applying its summary judgment determination

against the other defendants that Hamas was responsible

for the murder of David Boim, to QLI, against whom the

Boims did not seek summary judgment. However, the

district court did not abuse its discretion when it denied

QLI’s request to continue the trial date.

In light of the errors in the summary judgment rulings

below, we vacate the judgments entered against these

four appellants and remand for further proceedings. On

remand, the Boims will have to demonstrate an adequate

causal link between the death of David Boim and the

actions of HLF, Salah, and AMS. This will require evi-

dence that the conduct of each defendant, be it direct

involvement with or support of Hamas’s terrorist activi-

ties or indirect support of Hamas or its affiliates, helped

bring about the terrorist attack that ended David Boim’s

life. A defendant’s conduct need not have been the sole

4 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

or predominant cause of the attack; on the contrary, con-

sistent with the intent of Congress that liability for

terrorism extend the full length of the causal chain, even

conduct that indirectly facilitated Hamas’s terrorist

activities might render a defendant liable for the death of

David Boim. But the plaintiffs must be able to produce

some evidence permitting a jury to find that the activi-

ties of HLF, Salah, and AMS contributed to the fatal

attack on David Boim and were therefore a cause in fact

of his death. Absent such proof, those appellants will be

entitled to judgment in their favor. As to QLI, which has

not challenged the liability standard employed by the

district court, the remand will be limited to the question

of whether Hamas was responsible for the murder of

David Boim. QLI will be given the opportunity (of which it

was deprived by the district court’s sua sponte sum-

mary judgment ruling) to attempt to demonstrate that

there exists a dispute of material fact on this point.

I.

A.

The Boims moved to Israel from the United States

in 1985 to pursue a more spiritual life. David was fifth of

the Boim’s seven children. In 1996, David was finishing

his third year of high school and preparing to apply for

college. He was an intelligent and determined student

who dreamed of becoming a doctor. His classmates knew

him as a warm, outgoing young man. “His trademark

was his hug and his smile,” recalled Yechiel Gellman, a

friend and classmate. His mother described him as a

peacemaker.

David studied in a yeshiva near Beit-El, a small West

Bank village north of Jerusalem. By 3:30 p.m. on May 13,

1996, the school day had concluded. David and several of

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 5

his classmates had gathered at a bus stop on a busy road

between Jerusalem and Nablus. It was a hot, early-

summer afternoon, and the boys were telling jokes and

sharing stories as they awaited the bus that would carry

them to Jerusalem, where they were taking a class to

prepare them for their college entrance examinations.

Shortly before 4:00 p.m., a car pulled off the road and

stopped ten feet away from the assemblage of people at

the bus stop; one or more of the car’s occupants then

opened fire. Gellman estimated that a total of thirty

shots were fired; he could hear the bullets shrieking past

his head. “[To] this day, I don’t understand how I survived

the shooting.” He heard his friend Yair cry out, and he

turned to see both Yair and David fall to the ground. David

had been shot in the head. A passing dentist stopped and

tried to revive him. He was subsequently evacuated by

ambulance to a local hospital and then transferred to a

second hospital for surgery. He died shortly after he was

taken into the operating room. He was buried in Jerusalem

that same evening after a service attended by his class-

mates and thousands of other mourners. “Part of me was

taken away” the day he died, Joyce Boim would later

testify. David was seventeen years old.

B.

The murder of David Boim was later attributed to two

individuals: Amjad Hinawi and Khalil Tawfiq Al-Sharif.

Both were apprehended by the Palestinian Authority

in 1997 and then released pending trial. Al-Sharif killed

himself in a suicide bombing at a shopping mall in Jerusa-

lem later that same year. Hinawi was tried by a Palestin-

ian Authority tribunal and convicted of participating in

a terrorist attack and being an accomplice to Boim’s

murder. He was sentenced to ten years of hard labor.

6 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

Both Al-Sharif and Hinawi were believed to be mem-

bers of the terrorist or “military” wing of Hamas.2,3 Hamas

is an organization that was founded in 1987 as an out-

growth of the Muslim Brotherhood in Egypt. Its name is

derived from an acronym for “Harakat al-Muqawama al-

Islamiyya,” which in English means the “Islamic Resis-

tance Movement.” Its charter, written in 1988, calls for

the obliteration of the State of Israel and the establish-

ment of an Islamic republic in the area now comprising

Israel, the West Bank, and the Gaza Strip. Soon after

its founding, Hamas began to engage in terrorist attacks

on both civilian and military targets. It was officially

designated a terrorist organization by the United States

Department of the Treasury’s Office of Foreign Assets

Control (“OFAC”) on January 24, 1995. That designation

made it illegal for a United States citizen or entity to

engage in any transactions or dealings involving the

property or interests of Hamas without license to do

so. Hamas was subsequently deemed a foreign terrorist

organization by the United States Secretary of State on

October 8, 1997, a designation that made it illegal for

2

The parties and the witnesses below have referred to the

terrorist wing of Hamas as its “military” wing. We shall do the

same, withholding judgment as to whether use of the term

“military” is appropriate in reference to terrorist activities.

3

We say “believed to be” because not all of the defendants have

conceded that Al-Sharif and Hinawi were members of Hamas

and that they murdered David Boim in furtherance of Hamas-

sponsored terrorism. Although AMS/IAP concedes the point, one

defendant’s concession cannot bind another. Similarly, although

a default judgment was entered against Hinwai, his default

cannot bind the other defendants, as we discuss infra at 84. As

we further discuss, there is an array of problems with the

evidence that the Boims have offered in order to establish that

Al-Sharif and Hinawi were members of Hamas and that Hamas

was responsible for David’s murder. See infra at 84-88.

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 7

anyone within the United States or subject to its juris-

diction to provide material support or resources to Hamas.

In addition to its military wing, Hamas has a political

wing that advocates on behalf of the Palestinian people.

Hamas also operates a network of social institutions

known as Da’wa which provide medical care, schooling,

and other services to Palestinians living in and around

the Gaza Strip and the West Bank. Hamas’s charitable

endeavors have helped it to achieve a position of influ-

ence among the Palestinian people. That influence was

evident in the 2006 election of Hamas candidates to

governing positions within the Palestinian Authority.

See Zahren v. Gonzales, 487 F.3d 1039, 1040 (7th Cir.

2007).

C.

Pursuant to section 2333, Joyce and Stanley Boim sued

a variety of individuals and organizations for their son’s

death. Joyce Boim would later testify that their aim was

to keep “even one nickel” from Hamas that might be

used for further terrorist acts like the murder of her son.

In addition to Hinawi and Al-Sharif, to whom the murder

of David Boim was directly attributed, the Boims’ amended

complaint named as defendants a variety of individuals

and organizations with ties to Hamas. Among them are

the four appellants:

1. Salah is a naturalized United States citizen who

allegedly has served as the U.S.-based leader of Hamas’s

military wing. Salah was arrested at a Gaza checkpoint

in January 1993 by Israeli military authorities and was

subsequently charged with being an active member of,

holding office in, and performing services for an illicit

organization (Hamas), engaging in activity against the

public order and undermining regional security, and

8 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

providing shelter to terrorists. Salah ultimately pleaded

guilty to these offenses and was incarcerated in Israel

until his release in or around November 1997. In 1995,

while he was incarcerated in Israel, the U.S. Treasury

Department’s OFAC added Salah to the government’s

list of specially designated terrorists. After he was released

by the Israeli military authorities, Salah returned to the

United States. In 2004, a grand jury in the North-

ern District of Illinois indicted Salah and others for:

conspiring (beginning in 1988) to conduct and participate

in the affairs of an enterprise (Hamas) through a pattern

of criminal acts (including murder, kidnaping, hostage

taking, money laundering, obstruction of justice, and

forgery) in violation of the Racketeer Influenced and

Corrupt Organizations Act, 18 U.S.C. § 1962(d) (“RICO”);

knowingly providing and attempting to provide material

support and resources to a foreign terrorist organization

(Hamas) in violation of 18 U.S.C. § 2339B; and endeavor-

ing to obstruct justice by giving false and misleading

verified answers to interrogatories posed by the Boims

in the instant civil litigation, in violation of 18 U.S.C.

§ 1503. The government dropped the material support

charge shortly before trial. In February of this year,

following a three-month trial, a jury acquitted Salah of

the RICO conspiracy charge and convicted him of the

obstruction charge. On July 11, 2007, the district court

sentenced Salah to a prison term of twenty-one months

on that charge.

2. HLF is an organization incorporated in the United

States that the U.S. government has determined pro-

vided financial support to Hamas; it was effectively shut

down by the government on that basis in 2001. HLF was

incorporated as the Occupied Land Fund in California in

1989. It changed its name to HLF and relocated to Texas

in 1992. It is a not-for-profit organization which pur-

ported to fund humanitarian relief for Palestinian people

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 9

in the West Bank, Gaza, and beyond. At one time, HLF

described itself as the largest Muslim charity in the United

States. As discussed in greater detail below, the govern-

ment named HLF a specially designated terrorist organiza-

tion and froze its assets in 2001 based on evidence that it

supplied funds to Hamas and/or organizations affiliated

with Hamas. In 2004, the government indicted HLF and

seven of its principals for, inter alia, providing and con-

spiring to provide material support and resources to a

foreign terrorist organization (Hamas) in violation of

18 U.S.C. § 2339B(a)(1). The indictment alleges that HLF

channeled substantial financial support to Hamas

through ostensibly charitable committees and organiza-

tions affiliated with Hamas. A two-month trial in the

Northern District of Texas recently ended in a mistrial

after the jury was unable to reach a verdict as to most

of the charges, including those against HLF.

3. AMS is a now-defunct organization incorporated in

the United States which did business as the Islamic

Association of Palestine (IAP). Over time there have been

multiple AMS/IAP entities at the local and national

levels. The Boims’ theory is that they all constituted a

single entity, a proposition with which the district court

agreed. 340 F. Supp. 2d at 906-08. We shall refer to this

entity as AMS/IAP. AMS/IAP allegedly provided finan-

cial support to Hamas through HLF. IAP, which was

headquartered in Chicago, described itself as a not-for-

profit, grass-roots organization dedicated to advancing

a just, comprehensive, and eternal solution to the cause

of the Palestine people through political, social, and

educational efforts. The U.S. government considers IAP

to have acted as a front for Hamas in the U.S. by, for

example, reprinting Hamas communiqués in its period-

ical publications.

4. QLI is another U.S. organization that allegedly

raised and laundered money for Hamas. QLI is an Illinois

10 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

not-for-profit organization that was incorporated in 1990

and has operated in the Chicago area since that time.

Ostensibly, its central endeavor was to undertake an

authoritative translation into English of the principal

texts of Islam. Salah worked for QLI beginning in the late

1980s or early 1990s and until 1993, when he was ar-

rested in Israel. According to the plaintiffs, QLI aided

Hamas and Salah in two ways: it gave cover to Salah by

providing him with apparently legitimate employment

while he was actually working on Hamas’s behalf, and it

helped to raise money for and funnel money to Hamas.

D.

Section 2333(a) permits U.S. nationals who have been

injured “by reason of an act of international terrorism” to

sue for their injuries in federal court and to recover treble

damages. “International terrorism” is in turn defined to

include conduct that (a) “involve[s] violent acts or acts

dangerous to human life that are a violation of the crimi-

nal laws of the United States or of any State, or that

would be a criminal violation if committed within the

jurisdiction of the United States or of any State”; (b)

appears intended “to intimidate or coerce a civilian popu-

lation,” to influence government policy through intimida-

tion or coercion, or to affect the conduct of government by

means of mass destruction, assassination, or kidnaping;

and (c) occurs primarily outside of the United States or

transcends national boundaries. 18 U.S.C. § 2331(1). It is

both a fair inference—and undisputed—that the murder of

David Boim constitutes an act of international terrorism as

so defined and that Stanley and Joyce Boim (and of course

David, represented in this suit by his father as

the administrator of his estate) were injured thereby. It

is equally plain that the individuals who themselves

killed David—purportedly Hinawi and Al-Sharif—would

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 11

be liable to the Boims under section 2333; and, indeed, a

default judgment was entered against Hinawi below. (The

Boims sued Al-Sharif ’s estate, but after they were unsuc-

cessful in attempting service, the estate was dismissed

from the suit.) We may also assume that Hamas, upon

proof that Hinawi and Al-Sharif committed the murder

at its behest or with its support, likewise would be liable

to the Boims, although Hamas has not been named a

defendant in this suit. But what has been vigorously

disputed from the inception of this litigation is whether

and under what circumstances persons and groups who

allegedly have provided money and other support to

Hamas (directly and indirectly) may also be liable for

David’s murder.

Salah, HLF, AMS, and QLI all moved to dismiss the

Boims’ complaint for failure to state a claim against them,

and in Boim I, we affirmed the district court’s decision

not to do so. We concluded that section 2333 reflects an

intent by Congress to allow a U.S. national injured by

reason of international terrorism to recover from anyone

along the causal chain of terrorism and that liability is

not limited to those who commit the violent act that

causes injury. 291 F.3d at 1010-11. Thus, to the extent

that a third party had provided money or other support

to a terrorist who engaged in a terrorist act, that party

potentially could be held liable for the resulting injury

along with the terrorist himself. See id.

However, in response to the first of three questions

the district court had certified for interlocutory review,

we did reject the proposition that merely giving money to

an organization engaged in terrorism, without more,

would constitute an act of international terrorism suffi-

cient to render the donor liable under section 2333. Id.

at 1011.

12 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

To say that funding simpliciter constitutes an act of

terrorism is to give the statute an almost unlimited

reach. Any act which turns out to facilitate terrorism,

however remote that act may be from actual violence

and regardless of the actor’s intent, could be construed

to “involve” terrorism. Without also requiring the

plaintiffs to show knowledge of and intent to further

the payee’s violent criminal acts, such a broad defini-

tion might also lead to constitutional infirmities by

punishing mere association with groups that engage

in terrorism . . . .

Id. So merely giving money to Hamas or a Hamas-affili-

ated entity would not by itself suffice to establish civil

liability under section 2333 for terrorist acts committed by

the agents of Hamas. Id. The Boims would have to show

that the donor was aware of Hamas’s terrorist activities

and intended to further those activities, id., and also that

the murder of David Boim “was a reasonably foresee-

able result of making the donation,” id. at 1012.

We went on to conclude, in answer to the second ques-

tion certified by the district court, that knowingly and

intentionally providing material support, including but

not limited to financial support, to terrorist organiza-

tions and activities—conduct that is now separately

forbidden by the U.S. Criminal Code, see 18 U.S.C.

§§ 2339A and 2339B—would also constitute an act of

international terrorism for purposes of section 2333. Boim

I, 291 F.3d at 1014-15. Section 2339A makes it a crime to

provide material support or resources knowing or in-

tending that they be used in the commission of specified

violent acts, while section 2339B makes it a crime to

knowingly provide material support or resources to an

organization that the United States has designated a

foreign terrorist organization pursuant to 8 U.S.C.

§ 1189(a). Thus, those injured by reason of the knowing

and intentional financing of terrorist organizations and

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 13

activities as proscribed by these two statutory provi-

sions would be entitled to recover under section 2333,

provided that causation can be shown as in traditional tort

law. 291 F.3d at 1015. Financial support need not be

substantial in order to qualify as material support; “even

small donations made knowingly and intentionally in

support of terrorism may meet the standard for civil

liability under section 2333.” Id.4

Finally, we answered the last of the certified questions

by holding that aiding and abetting an act of interna-

tional terrorism would also support liability under sec-

tion 2333. “The statute would have little effect if liability

were limited to those who pull the trigger or plant the

bomb because such persons are unlikely to have assets,

much less assets in the United States, and would not be

deterred by the statute.” Id. at 1021. Thus, those who

knowingly and intentionally aid terrorist acts by provid-

ing funds or other support to those who commit the acts

could be held liable under the statute, consistent with

“Congress’ clearly expressed intent to cut off the flow of

money to terrorists at every point along the causal chain

of violence.” Id. To establish a defendant’s liability for

aiding and abetting the terrorist acts of an organization

like Hamas, the plaintiff would have to show that the

defendant knew of Hamas’s illegal activities, that the

defendant desired to help those activities succeed, and

4

As we made clear elsewhere in our opinion, we were citing

sections 2339A and 2339B and the conduct they criminalize

solely to illustrate the types of activity that might qualify as acts

of international terrorism for purposes of section 2333; we

were not suggesting that the Boims would have to establish

a violation of either of these two criminal statutes in order to

prevail under section 2333. Indeed, section 2339B was not

enacted until 1996, and Hamas was not designated a foreign

terrorist organization to which section 2339B prohibits finan-

cial support until 1997, after David Boim was murdered.

14 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

that the defendant engaged in some act of helping the

illegal conduct. Id. at 1023; see also id. at 1021.

We rejected the contention of HLF and QLI that holding

them liable under section 2333 might contravene the

First Amendment by penalizing them for mere associa-

tion with Hamas. Although section 2333 on its face

requires more than mere association with a terrorist

organization as a predicate to liability, 291 F.3d at 1022,

the defendants suggested that they were exposed to

liability simply for providing money to Hamas even if

their intent was to fund its ostensibly legitimate, hu-

manitarian activities, id. However, we found the premise

of this argument to be mistaken insofar as plaintiffs

were seeking to hold HLF and QLI liable on the theory

that they had aided and abetted David Boim’s murder

based on their alleged financial ties to Hamas. In outlin-

ing the elements of aiding and abetting liability, we said

that plaintiffs must prove that the defendant knew of

Hamas’s illegal activities, desired to help those illegal

activities succeed, and engaged in some act of helping

those activities. Id. at 1023. If all of this were shown,

then imposing liability would be consonant with the

principles articulated in NAACP v. Claiborne Hardware

Co., 458 U.S. 886, 920, 102 S. Ct. 3409, 3429 (1982), which

held that “[f ]or liability to be imposed by reason of associa-

tion alone, it is necessary to establish that the group it-

self possessed unlawful goals and that the individual held

a specific intent to further those illegal aims.” We ex-

plained:

The Boims are not seeking to hold HLF and QLI liable

for their mere association with Hamas, nor are they

seeking to hold the defendants liable for contributing

money for humanitarian efforts. Rather, they are

seeking to hold them liable for aiding and abetting

murder by supplying the money to buy the weapons,

train the shooters, and compensate the families of the

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 15

murderers. That Hamas may engage in legitimate

advocacy or humanitarian efforts is irrelevant for First

Amendment purposes if HLF and QLI knew about

Hamas’ illegal operations and intended to help Hamas

accomplish those illegal goals when they contributed

money to the organization.

291 F.3d at 1024. In sum, plaintiffs could not prevail on

an aiding and abetting theory without proving that the

defendants’ intent was to help Hamas succeed in its

terrorist aims.5

Having concluded that the Boims’ complaint asserted

viable claims against these defendants, we affirmed

the district court’s decision not to dismiss the complaint.

While the appeal was pending, the defendants had con-

sented to final disposition before Magistrate Judge

Arlander Keys, the designated magistrate. In the wake

of this court’s decision in Boim I, the Boims amended

their complaint to include allegations that the defend-

ants had engaged in a conspiracy to promote Hamas and

to raise money in the United States for Hamas’s terrorist

activities. R. 203 ¶¶ 36, 55, 56. Discovery concluded in

April 2004, and shortly thereafter the parties filed cross-

motions for summary judgment.

In November 2004, Magistrate Judge Keys ruled on the

motions for summary judgment. He denied the motions of

defendants Salah, HLF, AMS/IAP, and QLI, and granted

the Boims’ motion for partial summary judgment against

defendants Salah, HLF, and AMS/IAP, deeming them

liable to the Boims for damages that were to be determined

subsequently at trial. 340 F. Supp. 2d 885.

The court found HLF liable based on two key determina-

tions. First, the court granted collateral estoppel effect to

5

We went on to reject another First Amendment challenge

focused on section 2339B. Our holding in that regard is dis-

cussed infra at 38-41 n.8.

16 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

the District of Columbia Circuit’s determination—in

litigation challenging the Treasury Department’s finding

that HLF constituted a specially designated terrorist

organization—that HLF funded Hamas and, indeed, that

the proof of this funding was incontrovertible. 340 F. Supp.

2d at 903-06; see Holy Land Found. for Relief & Dev. v.

Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003). Second,

looking at the summary judgment record in this case, the

court found there to be no dispute that Hamas was respon-

sible for the murder of David Boim. 340 F. Supp. 2d at 899.

The court proceeded to find AMS/IAP liable to the Boims.

The Boims’ theory was that AMS/IAP had supported

Hamas by paying for Hamas leaders to come to the

United States in order to attend and speak at confer-

ences, helping to distribute pro-Hamas literature and

propaganda, and using that literature and propaganda to

solicit donations for Hamas’s cause, and on the basis of

this support was liable for David Boim’s murder, which

AMS/IAP conceded was committed at Hamas’s behest.

The district court understood our opinion in Boim I to

say that AMS/IAP could be liable to the Boims so long

as it was aware of Hamas’s illegal activities, it wished

to help those activities succeed, and it engaged in some

act of assistance. 340 F. Supp. 2d at 906. Thus, without

saying so, the court was relying on our articulation of the

aiding and abetting theory of liability as the governing

standard.

The court found that each of these elements had been

met. With respect to the first requirement, the court

discerned no dispute that AMS/IAP had knowledge of

Hamas’s illegal activity. Id. As for intent, the court

observed at the outset that there was one AMS/IAP

organization manifested in multiple incarnations, so as

the court considered whether IAP and AMS desired to

help Hamas’s terrorist activities succeed and engaged in

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 17

some act of assistance, it was fair to attribute the acts of

the various IAP entities to one another; the court thus

rejected the efforts of IAP and AMS to attribute responsi-

bility for various acts to different IAP entities. Id. at 906-

08. Having made that threshold determination, the court

proceeded to find that there was an “abundance” of

evidence indicating that IAP and AMS desired to and did

support Hamas. Id. at 908. Specifically, the record indi-

cated that AMS/IAP had participated in a 1993 meeting

in Philadelphia with Hamas members and Hamas sym-

pathizers at which various ways to support Hamas were

discussed, engaged in fundraising for HLF (which in

turn funneled money to Hamas), published and distrib-

uted pro-Hamas documents, and held conferences at

which Hamas terrorist speakers were featured. Id. at 908-

13. Although IAP and AMS had submitted a declaration

of Rafeeq Jaber (who had been president of AMS since

1993, and who had been president of the national IAP

organization from 1996 to 1998 and from 1999 onward)

in which Jaber denied that AMS/IAP had given any aid

to Hamas’s terrorist activities and had any intent to do

so, the court rejected these denials as conclusory and self-

serving. Id. at 913.

In sum, the court concluded that the undisputed facts

were sufficient to render AMS/IAP liable to the Boims

for having aided and abetted Hamas. The court did not

render any finding as to whether AMS/IAP had aided a

particular wrongful act or series of acts that had a causal

connection to David Boim’s death. See id.

Turning to Salah, the court found the undisputed facts

sufficient to establish his deliberate support of Hamas’s

terrorist activity. Again the court cited our discussing of

aiding and abetting liability in Boim I as the source of

the governing standard. 340 F. Supp. 2d at 913. The

court cited a variety of evidence indicating that Salah had

provided support to Hamas, including Salah’s guilty plea

18 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

in an Israeli military court to being an active member of

Hamas, holding office in Hamas, and performing services

for Hamas, as well as an August 21, 1995 statement de-

tailing Salah’s involvement with Hamas that Salah

had written while in Israeli custody to other detainees

whom he believed to be Palestinian prisoners.6 Al-

though Salah had raised questions about the voluntari-

ness of his plea, the district court found there to be “an

abundance of evidence” corroborating both his plea and

the 1995 statement. 340 F. Supp. 2d at 920. That evidence

included bank records and a memorandum prepared by

FBI counterterrorism expert Dale L. Watson (which among

other things detailed Salah’s role in Hamas and his

involvement with many individuals known to the Ameri-

can and Israeli governments as Hamas terrorists). Id. at

920-22; see infra at 24. Beyond challenging the admissi-

bility of some of the evidence documenting his ties to

Hamas, Salah had not rebutted that evidence, the court

noted. Id. at 922. Additionally, when deposed by the

Boims and again in response to many of the averments

of the Boims’ statement of undisputed facts, Salah had

invoked the Fifth Amendment and refused to answer the

questions put to him regarding his involvement with

Hamas. Id. at 922-23. That invocation gave rise to a

negative inference that, had Salah answered, he would

have incriminated himself. Id. at 923. Based on this

record, the court concluded that the Boims had established

all three elements of aiding and abetting liability as to

6

In that statement, Salah had detailed his relationship with

Mousa Abu Marzook, who was the acknowledged leader of

Hamas’s political wing and who had admitted raising money for

Hamas; described various meetings that he had with Marzook;

indicated that he distributed hundreds of thousands of dollars

in Gaza and the West Bank per Marzook’s instructions; and

stated that he had helped to train certain Hamas recruits. 340

F. Supp. 2d at 920, 921; id. at 918.

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 19

Salah and that no factual questions remained for a jury

to resolve as to those elements. Id.

The court rejected Salah’s contention that he was no

longer involved with Hamas following his January 1993

arrest in Israel and that, consequently, the Boims could

establish no link between his activities in support of

Hamas and David Boim’s death in 1996. The court found

that proof of such a link was not required. Id.

The Seventh Circuit did not say that, to impose liabil-

ity under § 2333, the Boims have to link Mr. Salah or

any of the other defendants specifically to the attack

that killed David Boim; rather, the court held that to

impose liability for aiding and abetting—that is,

providing material support to—a terrorist organiza-

tion, the Boims need only show that the defendants

knew of Hamas’ illegal activities, that they desired to

help those activities succeed, and that they engaged in

some act of helping. Boim, 291 F.3d at 1028. The

evidence shows that all three are true with respect

to Mr. Salah, and no reasonable jury could find other-

wise.

340 F. Supp. 2d at 923.7 In any case, the court added,

under established civil conspiracy principles, Salah could

be liable for acts committed in furtherance of a conspiracy

7

The district court’s articulation of what the Boims were

obligated to prove appears to conflate two distinct theories of

liability that we discussed in Boim I: providing material sup-

port to terrorist activity or to a terrorist organization, see 18

U.S.C. §§ 2339A and 2339B, 340 F. Supp. 2d at 1012-16, and

aiding or abetting an act of international terrorism, id. at 1016-

1021 & 1023. Certainly, one could aid and abet a terrorist act

by providing material support to those who commit the act, but

the type of assistance an aider and abettor might provide is

not limited to assistance that qualifies as material support for

purposes of sections 2339A or 2339B. See § 2339A(b)(1) (defining

“material support”).

20 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

even after his withdrawal, providing he had not repu-

diated the goals of the conspiracy. Id. Moreover, even if

the Boims were unable to show that Salah had given

material support to Hamas, under conspiracy principles

he could still be liable for David Boim’s murder so long

as it was a reasonably foreseeable result of “the conspir-

acy that was Hamas.” Id. at 924.

The Boims did not seek summary judgment against

QLI and the district court denied QLI’s motion for sum-

mary judgment, which left QLI as the sole defendant

facing trial on the subject of liability. Trial had previously

been set for December 1, 2004, a date which was just

three weeks off when the district court ruled on the

motions for summary judgment. Following the summary

judgment ruling, QLI moved to continue the trial date.

Magistrate Judge Keys orally denied that request on or

about November 24, 2004. QLI’s counsel immediately

asked the court to allow an interlocutory appeal, and

anticipating correctly that the district court would deny

that request, R. 657, counsel also sought leave to with-

draw from representing QLI on the ground that he be-

lieved he could not competently represent QLI at a trial

beginning on December 1, a request that the court like-

wise denied, R. 658.

One week in advance of trial, the district court issued an

opinion resolving certain motions in limine and other

evidentiary matters. Sua sponte and without prior notice,

the court noted that it had already determined on sum-

mary judgment vis-à-vis the other defendants that

Hamas was responsible for David Boim’s murder and

signaled that this determination would limit what evidence

the Boims would need to present in order to establish

QLI’s liability. R. 659 at 9; see also R. 688, Mem. Op. at 9.

Subsequently, in its opening instructions to the jury, the

court would state that “[t]he terrorist group Hamas was

responsible for the murder.” R. 814-1 at 107. When he

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 21

addressed QLI’s liability in both his opening statement

and closing argument to the jury, the Boims’ counsel would

expressly rely on that finding in laying out the Boims’ case

against QLI. Id. at 126 (“As the Judge has already told

you, he has concluded . . . that Hamas is responsible for

David’s murder.”); R. 814-4 at 503 (“The Court has already

ruled that the international terrorist organization Hamas

killed David Boim.”).

The trial began with jury selection as scheduled on

December 1. On that date, QLI filed a notice of attendance

but non-participation in the trial. R. 663. The notice

indicated that QLI had decided not to participate in the

trial because although it had a meritorious defense to

the complaint, QLI did not believe its counsel could

effectively defend QLI without additional time and its

counsel was unwilling to present an ineffective defense. In

a colloquy with QLI’s corporate secretary prior to start of

trial, Magistrate Judge Keys confirmed that it was QLI’s

wish not to participate in the trial. R. 814-2 at 158-164.

The trial thereafter commenced, and although QLI’s

representative and counsel were present, its counsel did

not participate in jury selection, did not give an opening

statement, did not cross-examine plaintiff ’s witnesses

or present witnesses for QLI, and did not make closing

argument. The case was submitted to the jury on Decem-

ber 7, and the jury returned its verdict the following day.

The jury found in favor of the Boims and against QLI on

liability. It awarded damages of $52 million against all

four defendants (QLI, HLF, IAP/AMS, and Salah). Those

damages were subsequently trebled as provided in sec-

tion 2333(a).

22 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

II.

Holy Land Foundation

A. Collateral Estoppel Based on DC Litigation Over

IEEPA Designation

In litigation challenging the government’s 2001 decision

to name HLF a specially designated terrorist organiza-

tion, the District of Columbia Circuit found that HLF

had funded the terrorist activities of Hamas. As we have

noted, the district court in this case gave that finding

collateral estoppel effect and relied on that finding to

hold HLF liable to the Boims on summary judgment. HLF

contends that it was inappropriate for the court to grant

the D.C. Circuit’s finding collateral estoppel effect in the

instant litigation. For the reasons that follow, we agree.

1. Proceedings in the District of Columbia Circuit

a. Summary of IEEPA designation

The International Emergency Economic Powers Act, 50

U.S.C. § 1701 et seq. (“IEEPA”), empowers the President

of the United States to declare a national emergency “to

deal with any unusual and extraordinary threat, which

has its source in whole or substantial part outside the

United States, to the national security, foreign policy, or

economy of the United States.” § 1701(a). Once the Presi-

dent declares such an emergency, he may “investigate,

block during the pendency of an investigation, regulate,

direct and compel, nullify, void, prevent or prohibit, any

acquisition, holding, withholding, use, transfer, with-

drawal, transportation, importation or exportation of, or

dealing in, or exercising any right, power, or privilege

with respect to, or transactions involving, any property

in which any foreign country or a national thereof has

any interest by any person, or with respect to any prop-

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 23

erty, subject to the jurisdiction of the United States.” This

statutory provision “is designed to give the President

means to control assets that could be used by enemy

aliens.” Global Relief Found. v. O’Neill, 315 F.3d 748, 753

(7th Cir. 2002).

On January 23, 1995, President Clinton issued Execu-

tive Order 12947 declaring such an emergency, finding

that “grave acts of violence committed by foreign terrorists

that disrupt the Middle East peace process” amounted

to an “unusual and extraordinary threat to the national

security, foreign policy, and economy of the United

States[.]” § 1702(a)(1)(B). This order froze all assets of

those terrorist organizations and persons, referred to in

regulatory parlance as “Specially Designated Terrorists”

(SDTs), identified in the order. Hamas, commonly known

as the Islamic Resistance Movement, is among those

designated organizations. The order also authorized the

Secretary of the Treasury to designate additional SDTs

found to be “owned or controlled by, or to act for or on

behalf of ” Hamas or any other entity designated in the

order.

On September 23, 2001, following the September 11

terrorist attacks by al-Qaeda, President Bush issued

Executive Order 13224 declaring a national emergency

arising from “grave acts of terrorism . . . and the con-

tinuing and immediate threat of further attacks on United

States nationals or the United States.” That order blocked

all property or interests in property held by designated

terrorist organizations who are referred to as “specially

designated global terrorists” (SDGTs). Hamas subse-

quently was designated as one of the SDGTs subject to

that order. The order further authorizes the designation

of additional SDGTs whose assets are subject to blocking

because they are “owned or controlled by” or “act for or on

behalf of ” SDGTs or “assist in, sponsor, or provide . . .

support for,” or are “otherwise associated” with them.

24 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

On November 5, 2001, Dale L. Watson, the Assistant

Director of the FBI’s Counterterrorism Division, issued

an “action memorandum” (hereinafter, the “Watson Memo-

randum”) to the director of the Treasury Department’s

OFAC recommending that HLF be designated an SDT

based on its ties to and activities on behalf of Hamas.

FBI investigations of HAMAS activities in the United

States have revealed that [HLF] is the primary fund-

raising entity for HAMAS and that a significant

portion of the funds raised by [HLF] are clearly being

used by the HAMAS organization. The information

provided in this document confirms that [HLF] is

acting for or on behalf of HAMAS. Further, senior

members of [HLF] support HAMAS ideology and

activities. These HAMAS activities interfere with the

Middle East peace process and pose a threat to the

national security, foreign policy, or economy of the

United States. As such, [HLF] should be considered

by OFAC for SDT designation as a HAMAS entity,

subject to the prohibitions of the IEEPA statute.

R. 265-1 Ex. 12 at 49.

The Director of the OFAC accepted Watson’s recommen-

dation, and on December 4, 2001, the Secretary of Trea-

sury issued a finding that HLF “acts for or on behalf

of ” Hamas. Pursuant to that finding, and without prior

notice to HLF, HLF was designated an SDT under Execu-

tive Order 12947 and an SDGT under Executive Order

13224. OFAC in turn issued a “Blocking Notice” freezing

all of HLF’s funds, accounts, and real property in the

United States. Pursuant to that notice, all transactions

involving property in which HLF holds an interest are

prohibited without specific authorization from the OFAC.

On March 8, 2002, HLF filed suit in the United States

District Court for the District of Columbia challenging

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 25

its designation as an SDT and SDGT and the blocking of

its assets. The following month, the Treasury Depart-

ment notified HLF and the district court that it was

reopening the administrative record underlying the

designation and considering whether to re-designate

HLF as an SDGT based on additional evidence linking

HLF to Hamas. HLF was given thirty-one days to respond

to this notice. HLF did respond and in support of its

response submitted evidence in support of the conten-

tion that it was not involved with Hamas.

On May 31, 2002, HLF was redesignated as both an SDT

and SDGT based on the evidentiary record underlying

the first designation in December 2001 plus additional

classified and unclassified information and a second

evidentiary memorandum from the FBI to the OFAC.

b. HLF’s lawsuit challenging blocking order

HLF’s suit in the District Court for the District of

Columbia contended that the designation and blocking

order was contrary to the Administrative Procedure

Act (“APA”), the Due Process and Takings Clauses of the

Fifth Amendment, the Fourth Amendment, HLF’s First

Amendment rights to freedom of speech and association,

and the Religious Freedom Restoration Act. Ultimately,

the district court granted summary judgment in favor of

the government on the APA claim and dismissed all

but one of the remaining claims set forth in HLF’s com-

plaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

Holy Land Found. for Relief & Dev. v. Ashcroft, 219

F. Supp. 2d 57 (D.D.C. 2002).

Upon review confined to the administrative record, the

district court held that the OFAC’s action in designating

HLF an SDT and SDGT and blocking HLF’s assets was

not arbitrary or capricious and was therefore consistent

26 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

with the APA. See 5 U.S.C. § 706(2)(A). The court observed

that the administrative record provided substantial

support for the OFAC’s determination that HLF acts for

or on behalf of Hamas. Specifically, the record revealed

that: (a) HLF had financial connections to Hamas dating

back to 1988 (including raising funds for and providing

financial support to Hamas, and financing U.S. fund-

raising trips by Hamas leaders); (b) HLF leaders had

been actively involved in various meetings with Hamas

leaders (including a three-day meeting in 1993 in Phila-

delphia, monitored and recorded by the FBI, which five

senior Hamas officials and three senior HLF leaders

attended, and a 1994 meeting in Oxford, Mississippi

between a co-founder of HLF and a senior Hamas leader

concerning a fundraising dispute); (c) HLF had funded

charitable organizations controlled by Hamas (specifically,

between 1992 and 1999, HLF had contributed approxi-

mately $1.4 million to eight Hamas-controlled charity or

“zakat” committees, and between 1992 and 2001, HLF had

given approximately $5 million to seven other Hamas-

controlled charitable organizations, including a hospital

in Gaza); (d) HLF had provided financial support to

family members of Hamas “martyrs” (a term the court

construed as referring to persons who were killed carrying

out suicide bombings or other terrorist acts on behalf of

Hamas) and prisoners, and, indeed, among needy fam-

ilies eligible for its support, Hamas particularly sought

out applications from the families of “martyrs” and may

have favored them with higher payments; (e) HLF’s

Jerusalem office had acted on behalf of Hamas and was

shut down by the Israeli government in 1995 after the

Israelis concluded that HLF was channeling funds to the

families of Hamas activists; and following his arrest in

1997, the former head of that office revealed that al-

though HLF provided aid to the needy, it also channeled

some money to Hamas; and (f ) eight unidentified FBI

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 27

informants had reported instances in which HLF leaders

stated that HLF funds and supports Hamas. 219 F. Supp.

2d at 69-73. The district court concluded that this evid-

ence gave the OFAC a rational basis for concluding that

HLF acts for or on behalf of Hamas. Id. at 74. The court

observed that its role was not to second-guess the OFAC on

its credibility determinations or on issues implicating the

foreign policy expertise of the Executive Branch; the

court’s sole task was to determine whether the agency

had a reasonable basis for its action. Id. at 75.

With one immaterial exception (relating to one aspect of

HLF’s Fourth Amendment claim), the court concluded

that HLF’s complaint otherwise failed to state a claim on

which relief could be granted. Among the claims dis-

missed was a First Amendment challenge which alleged

that the government, by blocking HLF’s assets and

preventing it from making humanitarian contributions,

was violating HLF’s rights of free speech and free associa-

tion. It is the resolution of this First Amendment chal-

lenge that underlies the collateral estoppel determination

made by the district court in the instant case.

The D.C. district court concluded that the blocking order

did not unduly interfere with HLF’s freedom of associa-

tion. The court first noted that neither the blocking

order, the two Executive Orders pursuant to which HLF

had been designated, nor the IEEPA precluded HLF from

holding membership in Hamas or endorsing its views, so

HLF’s rights of association were not implicated. 219

F. Supp. 2d at 81. All that HLF was forbidden from doing

was giving money to Hamas, “ ‘and there is no constitu-

tional right to facilitate terrorism.’ ” Id. (quoting Humani-

tarian Law Project v. Reno, 205 F.3d 1130, 1133 (9th Cir.

2000)). The court rejected HLF’s contention that the

First Amendment required proof that HLF specifically

intended to further Hamas’s illegal activities before its

assets could be frozen. That requirement, set forth in

28 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

NAACP v. Claiborne Hardware Co., supra, 458 U.S. at 920,

102 S. Ct. at 3429, was inapposite, as the government

had not deemed HLF guilty of wrongdoing based simply

on its association with Hamas. 219 F. Supp. 2d at 81. The

court held that, in any case, it would be unworkable to

engraft such an intent requirement on the government’s

ability to designate and block the assets of individuals

and organizations that act on behalf of known terrorist

organizations, as an organization like HLF, regardless of

its intent, cannot control whether the recipient of its

aid will use that support in furtherance of terrorist activi-

ties. Id. (citing Humanitarian Law Project, 205 F.3d

at 1133).

The court further held that the blocking order did not

violate HLF’s freedom of speech. To the extent the block-

ing order interfered with HLF’s free speech rights by

preventing it from making humanitarian contributions,

the intrusion was justified by the government’s com-

pelling interest in battling terrorism. The court noted

that humanitarian contributions have both speech and

non-speech elements; for that reason, the blocking order

was subject to intermediate scrutiny. Id. at 81-82 n.37.

Applying the four-part test set forth in United States v.

O’Brien, 391 U.S. 367, 376-77, 88 S. Ct. 1673, 1678-79

(1968), the court concluded that the governmental inter-

est in regulating the non-speech aspect of contributions

was sufficiently important to justify the incidental limita-

tions on HLF’s First Amendment rights. The court noted

that Presidents Clinton and Bush had the power under

the IEEPA to issue the Executive Orders declaring na-

tional emergencies, and both the IEEPA and the two

Executive Orders authorized the designation and block-

ing order against HLF. The Executive Orders and the

blocking order furthered the important and substantial

governmental interest in combating terrorism by under-

mining its financial base. Moreover, that governmental

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 29

interest in combating terrorism was unrelated to sup-

pressing speech. Although blocking the assets of a desig-

nated organization resulted in an incidental restriction on

the organization’s freedom of speech, that restriction was

no greater than necessary to further the government’s

interest. “Money is fungible,” the court observed, and the

government has no more narrow means of ensuring that

contributions made to a terrorist organization for legiti-

mate humanitarian purposes are in fact used for those

purposes. Id. at 82; see also id. at 71 n.20 (noting that

the “charitable component” of Hamas “is an effective way

for Hamas to maintain its influence with the public,

indoctrinate children and recruit suicide bombers” and

consequently, one cannot draw a clear line between

Hamas’s legitimate and illegitimate activities). For

these reasons, the court held that the blocking order

did not impermissibly restrict HLF’s First Amendment

rights.

On appeal, the District of Columbia Circuit affirmed the

entry of summary judgment against HLF on the APA

claim. The appellate court held that the actions of the

Treasury Department’s OFAC were properly reviewed

pursuant to the arbitrary and capricious standard, and

the decision to designate HLF an SDT and SDGT was

“based on ample evidence in a massive administrative

record.” 333 F.3d at 162. That a significant portion of that

evidence amounted to hearsay was not problematic: “it is

clear that the government may decide to designate an

agency based on a broad range of evidence, including

intelligence data and hearsay declarations.” Id. (citing

Nat’l Council of Resistance of Iran v. Dep’t of State, 251

F.3d 192, 196 (D.C. Cir. 2001)).

With respect to HLF’s First Amendment claims, the

court found that the district court had erred in disposing

of these claims pursuant to Rule 12(b)(6). The underlying

premise of the district court’s rationale for dismissing

30 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

these claims was that there is no constitutional right

to facilitate terrorism. However, HLF’s amended com-

plaint alleged that HLF had no knowing affiliation with

Hamas or any other terrorist organization and did not fund

terrorist activity. So in order to reach the outcome it did,

the district court first had to find, contrary to the allega-

tions of the complaint, that HLF in fact did fund terrorism.

The district court could not make such a finding without

either applying an improperly heightened pleading stan-

dard or expanding the scope of Rule 12(b)(6) review. The

district court apparently had considered the evidence in

the administrative record in disposing of the First Amend-

ment claims, but it did so without notifying the parties

that it was converting the motion to dismiss into a motion

for summary judgment by looking to matters outside of the

complaint and without granting HLF an opportunity to

present additional material pertinent to a summary

judgment motion as contemplated by Rule 12(b). In this

respect, the court had abused its discretion. 333 F.3d

at 164-65.

Despite the procedural irregularity, the court con-

cluded that HLF had not been prejudiced by the denial of

an opportunity to present evidence. Echoing the district

court, the appellate court observed that there is no con-

stitutional right to fund terrorism. Id. The court had before

it the full administrative record, which included both

the classified and unclassified evidence that the OFAC

had taken into consideration in designating and re-desig-

nating HLF an SDT and SDGT. The court was satisfied

that the record not only supported the notion that HLF

funded terrorism, but ruled out the possibility that HLF

could prove otherwise:

The ample record evidence (particularly taking into

account the classified information presented to the

court in camera) establishing HLF’s role in the fund-

ing of Hamas and of its terrorist activities is incon-

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 31

trovertible. While not in accordance with proper

procedures, HLF has had every opportunity to come

forward with some showing that the evidence is false

or even that its ties to Hamas had been severed. HLF’s

presentations at the administrative stage did not

reach this goal, even when HLF was given an addi-

tional thirty-one days to respond to its redesignation

and to the new evidence in April of 2002. Even follow-

ing the district court’s judgment, while HLF at-

tempted to supplement the record on appeal, the

supplementary material could not have defeated the

proposition established by the record evidence that

Holy Land was a funder of the terrorist organization

Hamas. Perhaps the supplemental evidence offered,

while properly rejected from the administrative re-

view claim, should have been admitted for the unan-

nounced summary judgment proceeding we now

review. But it would have made no difference.

Id. at 165-66. The Court clarified that in the ordinary case,

it would not necessarily deem harmless a district court’s

decision to dismiss a case based on evidence outside of

the pleadings simply because the losing party was

unable to show what contrary evidence it would have

produced had it been given the opportunity to do so; for

in a general case, only the opportunity for discovery (which

HLF had not been given) might have enabled the party

to produce such evidence. Id. at 166.

However, this is not a general case. This is a specific

case involving sensitive issues of national security

and foreign policy. In addition to the classified evi-

dence that we have reviewed, all evidence from the

government that is unclassified and otherwise discov-

erable is in the record before us, as is the evidence

HLF produced in an effort to create a genuine factual

dispute. Despite the district court’s failure to follow

the proper procedures, HLF had every opportunity

32 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

and incentive to produce the evidence sufficient to

rebut the ample evidence supporting the necessary

conclusion that it was a funder of Hamas but could not

do so. . . . Again, we hold as other courts have that

there is no First Amendment right nor any other

constitutional right to support terrorists, and that

the record supports no conclusion that the designation

or blocking violated any constitutional right of the

HLF. See, e.g., Humanitarian Law Project, 205 F.3d

at 1133.

333 F.3d at 166.

It was the District of Columbia Circuit’s resolution of

HLF’s First Amendment challenges to the blocking

order that formed the springboard for the district court’s

invocation of collateral estoppel here. In particular, the

district court relied upon the D.C. Circuit’s finding that the

“ample record evidence” before that court, including the

classified evidence submitted in camera, proved

“incontrovertibl[y]” that HLF funded Hamas and its

terrorist activities. 340 F. Supp. 2d at 903 (quoting

Ashcroft, 333 F.3d at 165-66; see supra at 15-16). That

language led the district court to conclude that HLF’s

provision of material support to Hamas was actually

litigated in the prior action and was essential to the D.C.

Circuit’s decision to sustain the dismissal of HLF’s First

Amendment claims. Id. The district court was also satis-

fied that HLF had been given a full and fair opportunity

to litigate the subject of its financial support of Hamas

in the prior litigation. It was immaterial that the litiga-

tion in the District of Columbia entailed judicial review of

an administrative determination. Id. at 904. Each of the

arguments that HLF had raised in opposition to the

Boims’ attempt to impose civil liability on the organiza-

tion had been raised and rejected in resolving HLF’s

contention that the designation and blocking order

impermissibly infringed on its First Amendment rights.

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 33

Id. HLF offered the court no insight as to what evidence

might have been lacking in the record before the Dis-

trict and Circuit Courts in the District of Columbia. Id. at

904-05. HLF had of course been represented in that

proceeding and had been given a full opportunity to

present its position. Id. at 905.

The district court acknowledged that the D.C. Circuit,

in deeming HLF’s role in funding terrorism incontrovert-

ible, had in part relied on classified evidence presented to

that court in camera. Id. No one other than the govern-

ment and the D.C. Circuit knew what that evidence was.

Id. However, in the district court’s view, the secrecy

shrouding that evidence “d[id] not vitiate the potential

conclusive effect of the D.C. Circuit’s judgment.” Id. There

was nothing to suggest that either the trial or the ap-

pellate courts in the prior litigation had acted as a rub-

ber stamp in rejecting HLF’s challenge to the designa-

tion and blocking order. Id. at 905-06.

2. Criteria for Non-mutual Offensive Collateral

Estoppel

The doctrine of collateral estoppel is employed under

appropriate circumstances to prevent a party from re-

litigating an issue that has already been fully litigated

in another action. E.g., United States v. Mendoza, 464

U.S. 154, 158, 104 S. Ct. 568, 571 (1984). Here, the Boims

invoked collateral estoppel offensively, relying on the D.C.

Circuit’s finding that HLF funded Hamas’s terrorist

activities as conclusive for purposes of their own case

against HLF, and non-mutually, in the sense that the

Boims were not a party to the litigation in the D.C. Circuit.

See id. at 159 n.4, 104 S. Ct. at 571 n.4; Harrell v. U.S.

Postal Serv., 445 F.3d 913, 921 (7th Cir.), cert. denied, 127

S. Ct. 845 (2006). There are four principal criteria

that must be met to support the application of non-mutual

34 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

offensive collateral estoppel: (1) the issue sought to be

precluded from further litigation must be the same issue

that was decided in the prior action; (2) that issue must

have actually been litigated in the prior action; (3) the

determination of that issue must have been essential to

the final judgment in the prior action; and (4) the party

against whom estoppel is invoked must have been fully

represented in the prior action. E.g., Chicago Truck

Drivers, Helpers & Warehouse Union (Indep.) Pension

Fund v. Century Motor Freight, Inc., 125 F.3d 526, 530 (7th

Cir. 1997). Collateral estoppel is, however, an equitable

doctrine. Evans v. Katalinic, 445 F.3d 953, 956 (7th Cir.

2006); Jones v. City of Alton, Ill., 757 F.2d 878, 885 (7th

Cir. 1985). Therefore, even if the criteria are satisfied, it

remains within the court’s discretion not to allow offensive

use of the doctrine when the court is convinced that it

would be unfair to preclude a party from re-litigating an

issue. See Parklane Hosiery Co. v. Shore, 439 U.S. 322,

331, 99 S. Ct. 645, 651-52 (1979) (district courts

enjoy broad discretion whether to invoke offensive collat-

eral estoppel and should not do so where it would be

unfair); see also Sornberger v. City of Knoxville, Ill., 434

F.3d 1006, 1023 (7th Cir. 2006) (applying Illinois law)

(even if the technical requirements for offensive collat-

eral estoppel are met, the doctrine must not be applied

unless it is clear that no unfairness would result to

estopped party); Ross-Berger Cos. v. Equitable Life Assur.

Soc. of U.S., 872 F.2d 1331, 1338 (7th Cir. 1989) (applying

Illinois law); Jones, 757 F.2d at 885. The doctrine

should not be invoked when there is reason to doubt

the quality, extensiveness, or fairness of the procedures

followed in the prior litigation or when the party against

whom estoppel is sought otherwise did not have the bene-

fit of a full and fair opportunity to litigate the issue in

the prior proceeding. Kremer v. Chem. Constr. Corp., 456

U.S. 461, 480-81, 102 S. Ct. 1883, 1897 (1982) (collecting

cases).

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 35

3. Analysis

Applying these criteria, we come to a different conclu-

sion than the district court did as to the propriety of

invoking the collateral estoppel doctrine. Although we

review a district court’s decision to apply collateral

estoppel for abuse of discretion, Harrell v. U.S. Postal

Serv., 445 F.3d at 921 (citing Parklane Hosiery Co., 439

U.S. at 331, 99 S. Ct. at 651), the question of whether the

issues presented in the two suits are identical is a legal

question as to which our review is de novo, Adair v.

Sherman, 230 F.3d 890, 893 (7th Cir. 2000). We con-

clude that the question presented in the Ashcroft litiga-

tion in the District of Columbia Circuit was not the same

as the question posed in the Boims’ case against HLF.

Consequently, the threshold criterion for offensive non-

mutual collateral estoppel cannot be satisfied, and the

district court necessarily abused its discretion in collater-

ally estopping HLF from contesting the proposition that

it knowingly and intentionally provided material support

to Hamas by funding its terrorist activities.

The requirement that the issue resolved in the prior

action must be the same as the one presented in the

instant proceeding is an exacting criterion. Similarity

does not suffice; the issue in the current case must be the

precise and identical issue that was decided in the prior

action. Am. Nat’l Bank & Trust Co. of Chicago v. Regional

Transp. Auth., 125 F.3d 420, 430 (7th Cir. 1997) (applying

Illinois law); see also Parklane Hosiery Co., 439 U.S. at

326, 99 S. Ct. at 649; Smith v. SEC, 129 F.3d 356, 362 (6th

Cir. 1997) (en banc); Prymer v. Ogden, 29 F.3d 1208, 1212

(7th Cir. 1994); Crot v. Byrne, 957 F.2d 394, 396 (7th Cir.

1992); Levesque v. Brennan, 864 F.2d 515, 519 (7th Cir.

1988).

For purposes of context, we point out that the first and

principal issue in the District of Columbia litigation was

36 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

the propriety of the Treasury Department’s decision to

designate HLF an SDT and SDGT and to block its assets.

As is typical in cases involving administrative decision-

making, HLF’s challenge to the designation did not

trigger a de novo examination of the evidence before the

Treasury Department. Rather, both the district and

appellate courts confined themselves to determining

whether the Treasury Department’s decision was arbi-

trary and capricious and whether the designation and

blocking order was inconsistent with HLF’s statutory or

constitutional rights. It was for that reason that the bulk

of the litigation was resolved without discovery and

without the usual kinds of factfinding procedures that

are normally followed in civil litigation involving dis-

puted facts. In this fundamental respect, the setting of

the District of Columbia litigation was different from the

instant case. The former entailed deferential review of an

administrative determination, whereas the Boim’s com-

plaint in this case calls for straight-on determination of

whether HLF funded or otherwise supported Hamas’s

terrorist activities and, if so, whether there was a causal

relationship between that support and David Boim’s

murder.

Against that backdrop, the sole potential for substan-

tive overlap between the District of Columbia litigation

and the instant case lies in the First Amendment chal-

lenges that HLF raised in the former litigation, as the

parties and the district court have recognized. Only as to

those claims was there a de novo judicial assessment of

HLF’s links to terrorism, and that assessment took place

at the appellate level. Recall that the district court in

Ashcroft had dismissed these claims on the pleadings,

reasoning that there is no constitutional right to provide

funding to a terrorist organization and thereby facilitate

terrorism. 219 F. Supp. 2d at 81, 82. Although the D.C.

Circuit agreed with this principle, it held that in order

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 37

to dispose of HLF’s First Amendment challenge on this

basis, it was necessary for the court to find that HLF

actually does fund Hamas’s terrorist activities. The

appellate court then proceeded to make that finding.

Looking to the record evidence, and in particular the

classified evidence, underlying the Treasury Department’s

designation decision, the D.C. Circuit found it “incontro-

vertible” that HLF funded terrorism by funding Hamas.

333 F.3d at 165.

The D.C. Circuit’s finding that HLF funded Hamas’s

terrorist activities was not, however, a finding that HLF

engaged in an act of international terrorism within the

meaning of section 2333 or that it aided and abetted such

an act. In particular, the D.C. Circuit did not mention, let

alone embrace, our holding in Boim I that funding

simpliciter of an organization that engages in terrorism

would be inadequate to establish section 2333 liability

but rather that the financial support must be given with

knowledge and intent to further terrorism. 291 F.3d at

1011-12, 1021-24. We took our cue on that point from the

Supreme Court’s decision in Claiborne Hardware, which

conditions the civil liability of an organization for the

violent acts of one of its members on proof that the organi-

zation had the specific intent to further the aims of the

wrongdoer. See 458 U.S. at 919-20, 102 S. Ct. at 3428-29.

Imposing liability solely on the basis of an organization’s

association with a wrongdoer would interfere with the

organization’s First Amendment freedom of association,

the Court concluded, id. at 920, 102 S. Ct. at 3429. The

D.C. Circuit’s decision in Ashcroft did not mention

Claiborne Hardware, either. Notably, however, the dis-

trict court’s decision in Ashcroft had discussed Claiborne

Hardware, and it had expressly rejected HLF’s reliance

on that precedent as a basis for challenging the designa-

tion and blocking orders. 219 F. Supp. 2d at 80-81. The

lower court reasoned that the blocking order did not

38 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

impose “guilt by association” in the way that the tort

judgment against the NAACP at issue in Claiborne

Hardware had; the order simply acted to prevent HLF

from providing further funding to a terrorist organiza-

tion, which it had no constitutional right to do in any

event. Id. “Because the Government in this case has not

imposed guilt by association, the Claiborne Hardware

specific intent requirement is not applicable.” Id. at 81. As

we have noted, the district court added that it might

be counterproductive to condition the issuance of a block-

ing order on proof that the donor knows and intends that

its contributions be used in furtherance of terrorism:

[I]mposing a “specific intent” requirement on the

Government’s authority to issue blocking orders would

substantially undermine the purpose of the economic

sanctions programs. Regardless of HLF’s intent, it

can not effectively control whether support given to

Hamas is used to promote that organization’s unlawful

activities. Humanitarian Law Project, 205 F.3d at

1133 (First Amendment does not require the govern-

ment to demonstrate a specific intent to aid an organi-

zation’s illegal aims because “[m]aterial support given

to a terrorist organization can be used to promote the

organization’s unlawful activities, regardless of donor

intent”).

219 F. Supp. 2d at 81.8 The district court’s rationale in this

8

This court employed similar reasoning in Boim I when it

rejected a First Amendment challenge aimed specifically at

section 2339B as a predicate to civil liability under section 2333.

As noted above, we held that providing material support to a

foreign terrorist organization, conduct that is rendered a crime

by section 2339B, could serve as the predicate for a civil suit

under section 2333. 291 F.3d at 1014-15; see supra at 12-13 &

n. 4. Section 2339B(a) on its face does not require proof that the

provider of material support intended for that support to fur-

(continued...)

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 39

(...continued)

ther the terrorist activities of the organization; the provider need

only have knowledge that the organization has been designated

a foreign terrorist organization. See Humanitarian Law Project

v. Mukasey, Nos. 05-56753, 05-56846, 2007 WL 4293310, at *6-*7

(9th Cir. Dec. 10, 2007); United States v. Hammoud, 381 F.3d

316, 328 (4th Cir. 2004) (en banc), vacated on other grounds, 543

U.S. 1097, 125 S. Ct. 1051 (2005), reinstated in relevant part on

remand, 405 F.3d 1034 (4th Cir. 2005) (en banc); but see United

States v. Al-Arian, 329 F. Supp. 2d 1294 (M.D. Fla. 2004)

(construing section 2339B to require that provider of material

support have specific intent to further terrorist organization’s

illegal activities in order to avoid constitutional difficulty of

imposing guilt by association). The absence of an intent require-

ment in section 2339B prompted the defendants to argue in Boim

I that insofar as the Boims were attempting to hold them civilly

liable on the theory that they had violated section 2339B by

providing material support to Hamas, the imposition of civil

liability would interfere with the defendants’ First Amendment

rights. The defendants contended that the First Amendment

protected their right to give money to Hamas and its affiliates

so long as their intent was to support the charitable work of

those groups rather than terrorist activities. Thus, in the defen-

dants’ view, the government could not proscribe donations

made to Hamas without the intent to further its terrorist

activities, nor could the plaintiffs seek to impose civil liability

for a violation of section 2339B without proof of such an intent.

We rejected this argument. We emphasized at the outset that

the validity of section 2339B was not before us. The defendants

were not being prosecuted for a violation of section 2339B;

rather, the criminal statute was only relevant insofar as the

Boims were seeking to impose civil liability on the basis of

conduct that is proscribed by section 2339B. 291 F.3d at 1025.

With that qualification in mind, we proceeded to say that the

First Amendment does not prevent the government from

outlawing the donation of money and other support to foreign

terrorist organizations regardless of the intent of the donor. The

Supreme Court had concluded in Buckley v. Valeo, 424 U.S. 1, 25,

96 S. Ct. 612, 638 (1976), that impingement on the rights of

(continued...)

40 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

(...continued)

association and speech may be justified if the government

shows that a sufficiently important interest is at stake and

employs means to further that interest which are closely enough

tailored as to avoid unnecessary curtailment of associational

liberties. We reasoned that the government’s interest in pre-

venting terrorism is “paramount.” 291 F.3d at 1027 (citing

Humanitarian Law Project v. Reno, 205 F.3d 1130, 1135 (9th Cir.

2000)). Consistent with that vital interest, the government

could permissibly try to cut off the provision of money and other

support to terrorist organizations by making such donations

illegal, even if they are made with innocent intent. For the same

reason, donors could be held civilly liable for the harm resulting

from such proscribed donations. “A section 2333 suit founded on

conduct violating section 2339B does not punish membership in

a designated terrorist organization, or penalize the expression of

views held by these organizations. Rather, such a suit is aimed

at prohibiting the funding of violent acts that these organiza-

tions wish to carry out.” Id. (citing Humanitarian Law Project,

205 F.3d at 1135). We further concluded that section 2333

liability premised on conduct violating section 2339B is closely

enough tailored to survive First Amendment scrutiny. It is not

practical to proscribe only donations made with intent to fur-

ther such illegal activities; terrorist organizations are able to

use funds for illegal activities regardless of intent of the donor.

Consequently, all donations to terrorist organizations may be

proscribed. We pointed out that in order to be designated a

foreign terrorist organization, that organization must engage

in terrorist activity that threatens the security of the U.S. or its

nationals. These requirements are stringent. In short, Congress

did not purport to criminalize membership in a terrorist organi-

zation or espousing the organization’s views; rather, it only

proscribed funding a group that the government had officially

designated a foreign terrorist organization. Liability was thus

sufficiently circumscribed to serve the government’s interest

in ceasing the flow of money to terrorist organizations without

unduly interfering with associational rights. Id. at 1027.

We should point out that in this case, as a practical matter,

civil liability under section 2333 could not be premised on a

(continued...)

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 41

regard suggests rather strongly that the question pre-

sented in Ashcroft as to HLF’s support of Hamas is not

identical to the issue presented here. The D.C. Circuit’s

silence on this point is in turn significant: If the appellate

court meant to overrule the district court and require

proof that HLF had the specific intent to further Hamas’s

terrorist activities, one would have expected the court to

say so, particularly when that court was expressly urged

to impose an intent requirement. See 2003 WL 25586053,

at *28-32 (appellate brief of HLF).

One might be tempted to say that when the D.C. Circuit

found that HLF funded Hamas, it necessarily found that

HLF did so with knowledge that Hamas perpetrates

terrorist acts and with the intent to support such acts.

After all, Hamas’s role in terrorism has never been a

secret, and the Ashcroft district court’s summary of the

(...continued)

violation of section 2339B. David Boim was killed in 1996. Hamas

was not designated a foreign terrorist organization pursuant to

8 U.S.C. § 1189(a) until the following year. 291 F.3d at 1016.

Thus, donations of money and other support to Hamas made

before David Boim’s murder, because they pre-dated Hamas’s

designation as a foreign terrorist organization, did not violate

the criminal proscription of section 2339B. To that extent, the

premise of this particular First Amendment challenge was

hypothetical, and our discussion of the challenge was unneces-

sary to our holdings in Boim I.

Section 2339B aside, a defendant’s provision of material

support to Hamas nonetheless might still amount to an act of

international terrorism for purposes of section 2333 and there-

fore support civil liability to the Boims in this case. But without

the crutch of section 2339B to lean on, the plaintiffs would have

to meet the other elements discussed elsewhere in Boim I,

including in particular a showing that the defendant pro-

vided material support to Hamas with the intent to further the

terrorist activities of the organization. See Boim I, 291 F.3d

at 1014-15.

42 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

evidence underlying the blocking order indicates that HLF

had longstanding and extensive ties to Hamas at multiple

levels. See supra at 26-27; 219 F. Supp. 2d at 69-73.

However, a further review and comparison of the district

and appellate court opinions in Ashcroft reveals the

difficulty of reading into the D.C. Circuit’s decision the

findings of knowledge and intent needed to impose civil

liability under section 2333. The evidence that the dis-

trict court relied upon to sustain the Treasury Depart-

ment’s determination that HLF had acted for or on behalf

of Hamas was a mixed bag in this respect. Some of that

evidence suggested that HLF not only was aware of

Hamas’s terrorist activities but meant to aid such activi-

ties. The district court noted, for example, that HLF

particularly sought to provide financial aid to the fam-

ilies of Hamas “martyrs”—i.e., suicide bombers and

others who die carrying out terrorist attacks. 219 F.

Supp. 2d at 71-72. One could readily infer from such

evidence that HLF was using the guise of charity to

further terrorism. However, other evidence cited by the

district court included support of Hamas’s humanitarian

activities that potentially would be protected under Boim I.

For example, the court noted that HLF had provided

millions of dollars in funding to charitable organizations

(including a hospital in Gaza) controlled by Hamas. Id. at

70-71. Did HLF know that these charities were controlled

by Hamas? The district court’s opinion does not say. Did

HLF intend that the money given to these charities be

funneled to Hamas’s terrorist arm? The opinion does not

say. The district judge did observe that Hamas’s charitable

activities helped cultivate public support for Hamas and to

recruit terrorists. Id. at 71 n.20. But nowhere in the

district court’s decision is there a finding that HLF funded

Hamas charities with this understanding (i.e., knowledge)

and purpose. On the contrary, the district court could not

have been more clear in saying that proof of such an intent

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 43

was not necessary, even in order to overcome HLF’s First

Amendment objections to the blocking order. Id. at 81. In

that court’s view, any support that HLF gave to Hamas

and its affiliates, even support that HLF intended be used

for humanitarian purposes, supplied justification for the

blocking order. For its part, the D.C. Circuit did not even

discuss the nature of the evidence that it relied upon in

concluding that HLF funded Hamas. All we know is that

the evidence before the appellate court, including in

particular the classified evidence that the government

tendered to that court in camera, convinced the court that

HLF funded Hamas and therefore funded terrorism.

Because the court did not purport to adopt any require-

ment of knowledge and intent, we cannot know whether

the court, in determining that HLF funded terrorism,

relied on evidence showing that HLF knowingly and

deliberately funded terrorist activities or rather relied, as

the district court did in part, on evidence indicating that

HLF provided more generalized support to Hamas, includ-

ing financial support for Hamas-controlled charities. The

court’s opinion quite simply is opaque in that regard. In

the absence of any discussion of knowledge and intent,

the only plausible conclusion is that the D.C. Circuit did

not believe that proof of HLF’s knowledge and intent in

funding Hamas was necessary; so far as it appears,

funding simpliciter was enough in that court’s view to

overcome HLF’s First Amendment challenge to the block-

ing order. This, of course, would not suffice to meet

the standard for civil liability that we articulated in

Boim I.

Therefore, although there undoubtedly is some factual

overlap between the Ashcroft litigation and this case, the

questions posed by the two suits are distinct. In Ashcroft,

the issue posed by HLF’s First Amendment challenge to

the blocking order was whether it funded (directly or

indirectly) Hamas’s terrorist activities. Here, the ques-

44 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

tion is whether HLF funded Hamas’s terrorism know-

ingly—for example, realizing that it was giving money to

charities controlled by Hamas, and that donations to

such charities either would be diverted to terrorist ends

or would free up other funds for terrorist activity—and

intentionally. Furthermore, the litigation in the D.C.

Circuit directly concerned the government’s ability to

further the national security and conduct the foreign

policy of the United States by stopping the flow of funds

from organizations in the United States to terrorist

entities abroad by freezing those assets before they can

leave this country. Nothing that this court, the district

judge, or a jury might say in this case would affect HLF’s

designation as an SDT or SDGT or confine the govern-

ment’s ability to rely on that designation in the future. The

validity of the designation is not at stake here. Instead,

this suit looks backward to determine whether HLF

knowingly and intentionally supported Hamas’s terrorist

activities in a way that had some causal connection with

David’s murder, which occurred before HLF was even

designated an SDT and SDGT. The subject matter of both

suits (HLF’s ties to Hamas) certainly is the same, and

both suits have in common the goal of depriving terrorists

of funds that they might use to commit further atrocities,

but the means to that end, and the legal rules and proce-

dures that govern them, differ in important respects.

Because the questions presented by the Ashcroft litiga-

tion and this suit are not identical, HLF cannot be collater-

ally estopped from litigating here whether it knowingly

provided financial (or other) support to Hamas with the

intent to further Hamas’s terrorist activities. We need not

consider whether any of the other prerequisites to offen-

sive nonmutual collateral estoppel are satisfied, as all of

them must be met in order for the doctrine to apply.

Nonetheless, we conclude our analysis with a few observa-

tions about the fullness and fairness of the opportunity

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 45

that HLF was given in the Ashcroft litigation to challenge

the proposition that it provided financing to Hamas and

its terrorist activities.

First, HLF had only a limited opportunity in the Ashcroft

litigation to contest its involvement with Hamas. As the

Ashcroft opinion itself makes clear, the D.C. Circuit’s

conclusion that the links between HLF and Hamas

were “incontrovertible” was based in particular on the

classified evidence that the government had tendered to

the court. 333 F.3d at 165. Because that evidence was

submitted to the court in camera and ex parte, HLF never

had the opportunity to see, let alone respond to, that

evidence. (We ourselves have no idea what that evidence

was or what specifically it revealed.) The D.C. Circuit

recognized that in a more typical civil case, HLF likely

would have been entitled to the opportunity that it

was denied in Ashcroft to conduct discovery in order to

assemble evidence that might have helped controvert

the notion that it was funding terrorist activity. 333 F.3d

at 166. But the court emphasized that Ashcroft was not a

general case, but rather a case “involving sensitive

issues of national security and foreign policy.” Id. This

case, by contrast, is a civil dispute between private liti-

gants. The government is not a party to this action,

and although its decisions to designate Hamas a terrorist

organization and to block the assets of HLF based on its

ties to Hamas are certainly relevant, we are not review-

ing these decisions. Instead, we are focused on whether

the Boims have shown that HLF took actions that con-

tributed in some way to David’s murder. The case is

important, to be sure, not only to the parties, but also to

others who have been injured by terrorism and to the

individuals and organizations whose ties to terrorist

organizations may render them liable to those so injured.

But, in contrast to Ashcroft, this case does not implicate

national security or foreign policy concerns to a degree that

46 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

would justify the circumvention of normal discovery and

factfinding procedures. See Parklane Hosiery, 439 U.S. at

330-31 & n.15, 99 S. Ct. at 651 & n.15 (noting that it may

be unfair to apply offensive collateral estoppel where

second action affords defendant procedural opportunities

that were unavailable in first action and that could readily

produce a different result).

Second, the administrative determination at issue in

Ashcroft—that HLF funds Hamas, and otherwise acts

for and on behalf of Hamas—was not rendered by a neutral

arbiter in an adversarial context but rather was an ex

parte finding by a government agency. Although the

Ashcroft litigation provided HLF with judicial review of

that determination (and although HLF was given the

opportunity to tender evidence to the OFAC contesting

its affiliation with Hamas at the re-designation stage),

it could not and did not grant HLF the opportunity that

it was not afforded in the first instance—a fully

adversarial hearing before a neutral and independent

decisionmaker in which HLF would be permitted to

confront the government’s evidence, cross-examine its

witnesses, and present testimony and other evidence of

its own, and at the conclusion of which the decision-

maker would make credibility assessments and other

findings of fact.9 True, the D.C. Circuit was convinced that

HLF could not have controverted the government’s evi-

dence. 333 F.3d at 165-66. But that conclusion, like the

OFAC’s own administrative decision that HLF acted for or

on behalf of Hamas, was based in significant part on

classified evidence to which HLF had no access and could

not refute. We accept as the D.C. Circuit did that ex parte

determinations based on a wholly or partially classified

9

HLF did have the opportunity, at the redesignation stage, to

tender evidence to the OFAC. However, this was no substitute

for an adversarial hearing at which witnesses could be exam-

ined and cross-examined.

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 47

evidentiary record are appropriate for prophylactic mea-

sures that implicate matters of foreign policy and national

security. Id. at 166. But we do not believe it appropriate

to grant collateral estoppel effect to such determinations

in a civil action between private parties, when foreign

policy and national security concerns are not implicated

to the degree they are in a lawsuit directly challenging

governmental action.

Congress, when it enacted section 2333, no doubt meant

to further particular national security and foreign policy

interests by allowing those injured by acts of interna-

tional terrorism to seek recompense in federal court. But

it gave no sign that it meant to abandon the rules, rights,

and procedures that have long governed civil litigation.

Nothing in either the IEEPA or section 2333, for example,

suggests that when a person or organization is found to

act “for or on behalf of ” a terrorist entity like Hamas

based on its links with that entity, that finding shall be

conclusive as to what that person or organization knew

and intended when it affiliated with the terrorist. Absent

further legislative action, it is not our place to deprive HLF

of its right to contest the notion that it knowingly

and intentionally supported Hamas’s terrorist activities

using the same tools and procedures that are made

available to other civil litigants.

For all of these reasons, we conclude that the district

erred in granting collateral estoppel effect to the D.C.

Circuit’s finding that HLF funded Hamas’s terrorist

activities. This alone requires the reversal of the district

court’s determination on summary judgment that HLF is

liable for David Boim’s murder. As we proceed to discuss

below with respect to defendants AMS and Salah, the

district court mistakenly believed that an organization or

individual that contributed money or other support to

Hamas with the intent to support its terrorist activities

could be liable to the Boims even in the absence of proof

48 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

that the money or support given to Hamas was a cause

in fact of David’s death, so long as the murder of David

was foreseeable to the donor individual or organization.

This misunderstanding of our opinion in Boim I requires

the reversal of the partial summary judgments deem-

ing AMS and Salah liable to the Boims. It constitutes a

second basis for reversing the entry of partial summary

judgment against HLF, as there has been no finding that

HLF’s financial support of Hamas was a cause in fact

of David Boim’s death.

III.

American Muslim Society

A. Summary judgment as to liability against AMS/IAP

1. District Court’s analysis

Relying on Boim I, the district court stated that in order

for AMS/IAP to be liable to the Boims, it must have

(a) known about Hamas’s illegal activities, (b) desired to

help those activities succeed, and (c) engaged in some act

of helping. 340 F. Supp. 2d at 906. These are the ele-

ments we identified as necessary to render a defendant

liable for aiding and abetting an act of international

terrorism committed by or on behalf of Hamas. 291 F.3d

at 1023. In the court’s view, the undisputed facts estab-

lished each of these three elements. We gave a brief

overview of the court’s findings earlier; now we recount

them in a bit more detail.

As to the first element, AMS/IAP conceded that Hamas,

in addition to using political means in furtherance of its

goal of establishing an Islamic Palestinian state in the

Middle East, also employed violence, including acts of

terrorism, in pursuit of that end. 340 F. Supp. 2d at 906.

AMS/IAP also conceded that Hamas was responsible for

David Boim’s murder. Id.

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 49

As to whether AMS/IAP had desired to aid Hamas

and engaged in some act of assistance to Hamas, the

court first rejected the notion that the IAP entities in-

volved in the acts identified by the Boims were distinct

from those named as defendants in this case. “[T]he

record shows that at all times relevant to this action,

there was a national organization serving as the Islamic

Association for Palestine, and that IAP Texas and AMS

either formally served as that organization, or were so

intertwined and involved with that organization as to

make any formal distinction meaningless. The defend-

ants cannot now hide behind their ambiguous and amor-

phous corporate design.” 340 F. Supp. 2d at 908.10

The court proceeded to find abundant evidence that

AMS/IAP desired to help Hamas’s illegal activities

succeed11 and engaged in acts of assistance.

10

AMS appeals the district court’s finding on this point, but in

view of our decision to reverse the summary judgment ruling

against AMS on other grounds, we need not reach that issue

here.

11

The district court at times referred to the need for proof that

AMS desired to help Hamas’s activities—as opposed to its illegal

activities—succeed. See, e.g., 340 F. Supp. 2d at 908 (“Turning to

the question of whether IAP and AMS desired to help Hamas’

activities succeed, and in fact, engaged in some act of helping

those activities succeed, . . . .”). Particularly where an organiza-

tion like Hamas may engage in legal as well as illegal activities,

one must take care to distinguish between the two and determine

that the putative aider and abettor intended for the organiza-

tion’s illegal activities to succeed. See Boim I, 291 F.3d at 1023,

1024-25. If the evidence were to show that the humanitarian

undertakings of an organization like Hamas in some way

facilitate its terrorist activities, then those who support such

humanitarian activities potentially could be held liable for

supporting terrorism. However, consistent with the Supreme

(continued...)

50 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

First, representatives of AMS/IAP had participated in

the October 1993 Philadelphia meeting, which Hamas

officials and representatives of HLS had also attended.

See supra at 26. The Watson memorandum noted that

the recurring theme of the discussions captured by

FBI surveillance was how entities affiliated with and

working for Hamas should operate in light of the Oslo

Accord, in which Yassir Arafat and Yitzhak Rabin had

recognized—on behalf of Palestinians and Israelis—the

right of each to exist and had committed to negotiate a

permanent settlement and means to improved relations.

According to Agent Watson, participants in the Philadel-

phia meeting universally condemned the Accord and

discussed ways in which they might undermine the

Accord and continue to support Hamas inside what they

referred to as the “Occupied Territories.” 340 F. Supp. 2d

at 908-09.

Second, IAP and AMS (and others within IAP umbrella)

had contributed money to HLF and routinely and con-

sistently encouraged others to donate to HLF and other-

wise assisted HLF’s fundraising. Id. at 910. HLF, of

course, had links to Hamas that had led the OFAC to

conclude that it acted “for or on behalf of ” Hamas. Taken

in the context of other evidence, “this is strong evidence

that IAP was supporting Hamas, consistent with the

FBI surveillance reports.” Id.

Third, IAP and AMS had published and distributed pro-

Hamas documents, including the Hamas charter and, more

recently, documents that included an editorial by Khalid

Amyreh advocating “martyrdom” operations, meeting

11

(...continued)

Court’s decision in Claiborne, liability would be conditioned

on proof that the individual knew and intended that his sup-

port for the humanitarian activities of the organization ulti-

mately would also aid its terrorist activities. Id. at 1023.

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 51

death with death, and killing Jews. IAP had paid Amyreh

for his materials, but denied that it necessarily published

the editorial because it shared his views. Id. at 910-11.

Fourth, when individuals with ties to Hamas were

arrested and/or charged with supporting terrorism, IAP

and AMS sought to rally public support for them. Follow-

ing Salah’s arrest in Israel, for example, IAP National

and AMS held a number of events to garner public support

for his release. When Abu Marzook, whom AMS/IAP

official Rafeeq Jaber knew to be the head of Hamas’s

political bureau, was arrested in New York, IAP National

published documents to garner support for him. Similarly,

IAP National and AMS generated and distributed docu-

ments soliciting support for HLF after its assets were

seized by the OFAC. The district court recognized that

these activities were not against the law, “[b]ut all of this

does tend to evidence a desire on the part of IAP to help

Hamas succeed.” 340 F. Supp. 2d at 911. See note 11,

supra.

Fifth, IAP had held annual conferences, invited pro-

Hamas speakers to participate in these gatherings, and

paid their travel expenses. An IAP conference in 1989 had

featured a veiled Hamas terrorist as a guest speaker. A

1996 IAP conference had featured the leader of Muslim

Brotherhood of Syria along with the wife of Marzook, who

by that time had been in federal custody in the United

States for more than a year and a half. An excerpt from

Steven Emerson’s book, American Jihad, The Terrorists

Living Among Us, identified other instances in which

Hamas leaders and supporters had spoken at IAP con-

ferences, including four occasions on which such individu-

als called for jihad, urged the audience to take up arms

against Israel, spoke in support of martyrdom operations,

and advocated support for the families of martyrs. Jaber

admitted that each of these identified speakers had in

52 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

fact spoken, but said he could not remember whether

they made the statements Emerson attributed to them.12

The district court believed that this was sufficient to

show that IAP and AMS had the intent to aid Hamas’s

terrorist activities and in fact engaged in some acts of

assistance. 340 F. Supp. 2d at 912-13. The record con-

vinced the court that “if IAP never outrightly cheered on

Hamas’s terrorist activities, it has come quite close[;]

[c]ertainly IAP has never condemned Hamas’ tactics.” Id.

at 912. Although Jaber averred that IAP took no position

on whether suicide bombings, for example, were right or

wrong, the record revealed that IAP had, in fact, praised

Hamas’s terrorist activities, albeit “somewhat subtly.”

Jaber admitted, for example, that IAP had published

articles and editorials characterizing suicide bombers

as martyrs and freedom fighters; Jaber simply said that

IAP took no position on those characterizations. Id. The

court accepted the notion that opposition to Israel does not

equate with support for Hamas. Id. at 912-13. But express-

ing opposition by way of suicide bombings and other

terrorist attacks like the shooting of David Boim appeared

to the court to be “precisely what Hamas is about.” Id. at

913. Pursuant to Boim I, those who help to fund, directly

or indirectly, Hamas’s terrorist activities are liable to the

same extent as those who commit the terrorist acts. Id.

Jaber’s declaration, which asserted that neither IAP nor

AMS supported terrorist activities, engaged in helping,

12

There may well have been a hearsay problem with relying on

Emerson’s book as proof of what these speakers said at the IAP

conferences. See, e.g., Am. Nat’l Fire Ins. Co. v. Rose Acre Farms,

Inc., 107 F.3d 451, 456 (7th Cir. 1997). What the speakers

themselves said would be admissible for their state of mind, but

as proof that the speakers actually made these statements,

Emerson’s book, which itself is, of course, an out-of-court

statement, would constitute hearsay. See Schindler v. Seiler, 474

F.3d 1008, 1011 (7th Cir. 2007).

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 53

or intentionally or knowingly gave money to support

such acts, struck the court as conclusory and self-serving.

Id.13 Moreover, Jaber’s affidavit did nothing to refute

the evidence that IAP provided material support to

Hamas during years that he was not a member and

president of IAP. Id.

What is strikingly absent from the district court’s

analysis is any consideration of a causal link between the

assistance that the court found AMS/IAP to have given

Hamas and the murder of David Boim. The court made no

finding as to the existence of such a link, nor did it ac-

knowledge that causation was a necessary element of the

Boims’ case. See id. at 912-13.

Indeed, in its subsequent discussion of Salah’s liability,

the court appears to have said that no such causal link was

required:

13

Of course, the fact that Jaber’s affidavit was self-serving was

not a reason to disregard it. Most affidavits are. See Payne v.

Pauley, 337 F.3d 767, 772-73 (7th Cir. 2003). It does, however, go

to the weight of the evidence, which would be for the factfinder

to assess. Ascertaining a party’s state of mind typically requires

credibility assessments that cannot be made on summary

judgment. See, e.g., Ashman v. Barrows, 438 F.3d 781, 784 (7th

Cir. 2006) (citing, inter alia, McGreal v. Ostrov, 368 F.3d 657, 677

(7th Cir. 2004)). Thus, where the party seeking summary

judgment presents circumstantial or indirect evidence that is

consistent with the requisite knowledge or intent, but is also

subject to other interpretations, a general denial by the party

whose mental state is at issue will normally suffice to establish

a dispute of fact for the factfinder to resolve at trial. See, e.g.,

United States v. Cleckler, 270 F.3d 1331, 1335-36 (11th Cir. 2001)

(per curiam). Only in the face of direct evidence that a party

knew or intended a particular thing (e.g., a party’s prior admis-

sion) will a bare, general denial of knowledge or intent be

insufficient to create a dispute of material fact in the face of

direct evidence that the party knew or intended a particular

thing. See Lorillard Tobacco v. A & E Oil, Inc., 503 F.3d 588, 594

(7th Cir. 2007).

54 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

The Seventh Circuit did not say that, to impose liabil-

ity under § 2333, the Boims have to link Mr. Salah or

any of the other defendants specifically to the attack

that killed David Boim; rather, the court held that, to

impose liability for aiding and abetting—that is,

providing material support to[14]—a terrorist organiza-

tion, the Boims need only show that the defendants

knew of Hamas’ illegal activities, that they desired to

help those activities succeed, and that they engaged in

some act of helping. Boim, 291 F.3d at 1028. The

evidence shows that all three are true with respect to

Mr. Salah and no reasonable jury could find otherwise.

340 F. Supp. 2d at 923. The court added that Salah would

be liable under civil conspiracy principles for acts in

furtherance of a conspiracy to fund Hamas, even if those

acts were committed after he ceased being an active

participant (assuming that he did not withdraw from the

conspiracy and disavow its aim). Thus, even if plaintiffs

could not establish that Salah provided material sup-

port to Hamas (which, in the court’s view, they had

shown, though it did not expand on this point), Salah could

still be liable to the Boims if their son’s death was a

reasonably foreseeable consequence “of the conspiracy

that was Hamas.” Id. at 924.15

14

[Footnote added by this court] Although providing material

support to a terrorist organization would be one way to aid and

abet that organization’s terrorist activities, one could aid and

abet the organization’s terrorist acts in other ways as well.

Lending material support to terrorist activity or a terrorist

organization is actually a theory of liability that is separate and

distinct from aiding and abetting an act of international terror-

ism, as our opinion in Boim I makes clear. Compare section II(B)

of Boim I, 291 F.3d at 1012-16 (discussing material support),

with section II(C), id. at 1016-21 (discussing aiding and abetting).

15

We note that the court did not discuss what proof there was

that Hamas constituted a conspiracy, what the aims and scope

(continued...)

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 55

The Boims defend the district court’s silence as to

causation (and in Salah’s case, the court’s apparent

rejection of the need for proof of cause in fact) on the

ground that our opinion in Boim I did not require it. In

their view, all that need be shown is that it was fore-

seeable to the defendants that their support of Hamas

might result in someone’s death. This constitutes a

profound misreading of our decision in Boim I.

Contrary to the district court’s apparent impression,

this court’s opinion in Boim I did not relieve plaintiffs of

the burden of showing causation in fact. As we discuss

below, the theory of liability that the Boims advanced in

support of their complaint in the prior appeal assumed

that they would be able to demonstrate causation in

fact. Consequently, we were not called upon to discuss,

and there was no need for us to consider, whether the

plaintiffs could obtain relief without establishing that

the defendants’ actions were a cause in fact of David

Boim’s death. Our focus instead was on the doctrine of

proximate cause and specifically its requirement (some-

times referred to as the concept of legal cause) that the

injury complained of by the plaintiff have been foresee-

able to the defendant. Boim I, 291 F.3d at 1012 (“Foresee-

ability is the cornerstone of proximate cause, and in

tort law, a defendant will be held liable only for those

injuries that might have been reasonably anticipated as a

natural consequence of the defendant’s actions.”) (citing

Suzik v. Sea-Land Corp., 89 F.3d 345, 348 (7th Cir. 1996),

and RESTATEMENT (SECOND) OF TORTS (hereinafter

“RESTATEMENT (SECOND)”) §§ 440-47). See RESTATEMENT

(THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM (Proposed

Final Draft No. 1) (hereinafter “RESTATEMENT (THIRD)”)

§ 29; Dan B. Dobbs, THE LAW OF TORTS § 182, at 447-48

15

(...continued)

of the conspiracy were, when it was formed, when Salah joined

it, and so forth.

56 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

(2000) (distinguishing proximate cause from cause in fact);

W. Page Keeton, PROSSER & KEETON ON THE LAW OF

TORTS § 42 (5th ed. 1984). But by saying that David Boim’s

death must have been a type of harm that was foresee-

able to the defendants, and that the plaintiffs were

obligated to prove this, we in no way implied that the

plaintiffs were relieved of the obligation to establish that

the defendants’ actions were a factual cause of his death.

On the contrary, there are multiple references in Boim I to

the necessity of causation in fact. At the risk of repeating

ourselves, we now undertake yet another review of our

prior decision, this time with a focus on what we said (or

what we assumed) on the subject of cause in fact.

We began our analysis in Boim I by noting that

18 U.S.C. § 2333(a) grants any U.S. national “injured . . .

by reason of an act of international terrorism” the right

to sue for his injury. 291 F.3d at 1008 (emphasis added);

see also id. at 1010, 1011. “International terrorism” is

in turn defined to include “activities that . . . involve

violent acts or acts dangerous to human life that are a

violation of the criminal laws of the United States or of

any State, or that would be a criminal violation if com-

mitted within the jurisdiction of the United States or of

any State.” 18 U.S.C. § 2331(1)(A).

We observed that the legislative history of the statute

reveals an intent to codify general common law tort

principles and to extend civil liability for acts of interna-

tional terrorism to the full reaches of traditional tort

law. 291 F.3d at 1010. We added that the statute itself

reflects all of the elements of a traditional tort: a breach of

duty (committing an act of international terrorism), an

injury to the person, etc. of another, and causation (in-

jured “by reason of ”). Id. (emphasis added).

What the statute does not do is identify the class of

defendants who may be held liable, and this was the

question that we proceeded to answer. We stated that

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 57

the statute was clearly meant to reach not only those

individuals who themselves commit the violent act that

directly causes the injury (291 F.3d at 1011), but rather

extends to “anyone along the causal chain of terrorism,”

id. (emphasis added). We added, however, that funding

a terrorist organization by itself would not be enough to

place someone in this causal chain. Id. at 1011-12. To say

that funding alone sufficed would give the statute an

almost unlimited reach. Id. at 1012. Rather, in addition

to establishing funding (or some other act of supporting

terrorism), the plaintiff would have to establish the

defendant acted with knowledge of the terrorist activity

and the intent to support that activity. Id. Moreover, the

statute bestows the right to sue on a person injured “by

reason of ” an act of international terrorism, and that

language, we said, requires a showing of proximate

causation, which in turn requires proof that the injury

was foreseeable to the defendant. Id. at 1011-12. “In the

very least, the plaintiffs must be able to show that

murder was a reasonably foreseeable result of making a

donation.” Id. at 1012 (emphasis added).

We made the same point in discussing why proof that a

defendant had provided material support or resources

to terrorists, in violation of 18 U.S.C. §§ 2339A and 2339B,

would be one route to relief under section 2333. We

reasoned that if a defendant’s conduct meets the stand-

ard for criminal liability under either of these provisions,

that conduct would constitute an act of international

terrorism for purposes of civil liability under section 2333,

so long as the defendant’s knowledge and intent were

also shown. 291 F.3d at 1014-15. We added that support

or resources provided need not be substantial or consider-

able, notwithstanding the use of the term “material” in

both of the criminal provisions. The statute defines what

constitutes material support or resources, so the term

“material” “relates to the type of aid provided rather than

58 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

whether it is substantial or considerable.” Id. at 1015. So

even small donations made knowingly and intentionally

in support of terrorism might suffice to render the donor

liable. Id. However, we again noted that for purposes of

civil liability, section 2333 requires that one be injured “by

reason of ” an act of international terrorism. Id. Because

Congress intended to import traditional tort principles,

we added, “causation may be demonstrated as it would

be in traditional tort law.” Id.

And we again made this point in recognizing that aiding

and abetting an act of international terrorism would

support a civil suit under section 2333. The plaintiffs

theorized that aiding and abetting a violent act is itself

an act of international terrorism. We agreed, recognizing

that Congress meant to extend section 2333 liability

beyond those directly perpetrating acts of terrorism. The

fact that section 2331 defined international terrorism to

include acts that “involve” violent or life-endangering

acts itself suggested a broad sweep. 291 F.3d at 1020. Sec-

tion 2333, we again emphasized, reflects a congressional

intent to incorporate traditional tort principles. Id. Activity

that “involves” violent acts would certainly cover conduct

that aids and abet violent acts. Id. So although the statute

did not expressly authorize this theory of liability, we

believed it was appropriate to extend liability to those who

aid and abet acts of international terrorism. Id. at 1020-21.

Cause in fact also figured into our rejection of the

assertion by HLF and QLI that it would be incompatible

with the First Amendment to hold them liable to the

Boims on the basis of money that they raised and donated

to Hamas and its intermediaries for humanitarian pur-

poses. We emphasized that the defendants could be

liable to the Boims if, for example, they had aided and

abetted David Boim’s murder by taking some step that

aided Hamas’s terrorism while knowing of its terrorist

activities and desiring to help those activities succeed. 291

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 59

F.3d at 1023. Thus, the Boims theorized that HLF and QLI

were front organizations that raised money ostensibly

for legitimate humanitarian purposes but then funneled

that money to Hamas, knowing and intending that

Hamas would use the funds to arm and train terrorists,

including the men who killed David Boim. We deemed

this theory compatible with the First Amendment in that

it did not seek to hold defendants liable for mere associa-

tion with Hamas or for giving money to aid its human-

itarian efforts. Id. at 1024-25.

Thus, implicit if not explicit throughout Boim I’s

analysis is the notion that there must be a causal link

between the defendant’s actions and the plaintiff ’s

injury. This is evident in our observations that section

2333 gives anyone “injured by reason of ” terrorist activity

the right to sue, that liability was meant to extend all

along the chain of causation, and that Congress meant to

incorporate traditional tort principles. See 291 F.3d at

1010, 1011, 1015, 1021. But to the extent our opinion in

Boim I leaves any doubt on this score—owing perhaps to

the fact that the Boims’ theories at that time presup-

posed a causal link between the defendants’ acts and the

murder of David Boim—we now reiterate that recovery

under section 2333 is conditioned on proof of causation

in fact.

We return to our point of embarkation in Boim I: the

language of the statute. The statute grants a right to sue

to anyone injured “by reason of ” an act of international

terrorism. 18 U.S.C. § 2333(a). That language itself

suggests that there must be some causal link between the

particular act of international terrorism that the defendant

is alleged to have committed (or aided and abetted) and

the injury suffered by the plaintiff. Indeed, we specifically

recognized in Boim I that this language meant causation.

291 F.3d at 1010.

60 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

Boim I noted repeatedly that Congress when it enacted

section 2333 intended to embrace traditional tort princi-

ples, id. at 1010, 1015, 1020, and cause in fact is a re-

quirement for all torts. The Restatement makes the point

unequivocally:

Tortious conduct must be a factual cause of physical

harm for liability to be imposed. Conduct is a factual

cause of harm when the harm would not have occurred

absent the conduct. . . .

RESTATEMENT (THIRD) § 26 (“Factual Cause”); RESTATE-

MENT (SECOND) § 9 comment b (“[i]n order that a particular

act or omission may be the legal cause of an invasion of

another’s interest, the act or omission must [inter alia] be

a substantial factor in bringing about the harm . . .”);

id. § 431 comment a (in order for actor’s conduct to be

considered legal cause of another’s harm, it is necessary

although not sufficient that “the harm would not have

occurred had the actor not been negligent”); see also § 430

comment e (noting that causation principles for negligence

apply to intentional torts as well); cf. Associated Gen.

Contractors of Calif., Inc. v. Calif. State Council of Carpen-

ters, 459 U.S. 519, 547-48, 103 S. Ct. 897, 913 (1983)

(Marshall, J., dissenting) (“Although many legal battles

have been fought over the extent of tort liability for

remote consequences of negligent conduct, it has always

been assumed that the victim of an intentional tort can

recover from the tortfeasor if he proves that the tortious

conduct was a cause-in-fact of his injuries.”) (emphasis

in original). This is often referred to as but-for causation.

RESTATEMENT (THIRD) § 26 comment b. One must ask

what would have occurred if the actor had not engaged in

the tortious conduct. Id. comment e.

The foreseeability component of proximate cause (or

legal cause), which we discussed in Boim I, is not a

replacement for or an alternative to cause in fact, but

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 61

rather confines an actor’s responsibility to injuries that

were both factually caused by his tortious conduct and

were the type of injuries that he foreseeably risked by his

conduct. RESTATEMENT (THIRD) § 29; Dobbs, § 180 at 443-

45. Put another way, factual causation is a necessary

but not a sufficient basis for liability. RESTATEMENT

(SECOND) § 431 comment a; see Carris v. Marriott Int’l,

Inc., 466 F.3d 558, 560 (7th Cir. 2006) (“ ‘but for’ causa-

tion . . . is never enough for liability”); Sementilli v.

Trinidad Corp., 155 F.3d 1130, 1139 (9th Cir. 1998) (T.G.

Nelson, J., specially concurring) (court does not reach

foreseeability if cause in fact has not been shown). The

foreseeability requirement thus serves to limit rather

than expand the set of tortfeasors who may be liable for

the plaintiff ’s injury. Dobbs § 180 at 443; see, e.g., Holmes

v. Securities Investor Protection Corp., 503 U.S. 258, 267-

68, 112 S. Ct. 1311, 1317-18 (1992). In short, a tortfeasor

cannot be held liable for any injury that his acts

foreseeably might have caused without there also being

proof that his conduct did cause that injury.

Neither the aiding and abetting theory of liability, which

we endorsed in Boim I, nor civil conspiracy, which the

Boims pursued in their amended complaint on remand,

obviates the need for a showing of cause in fact. Neither

is an independent tort; each is simply a vehicle for spread-

ing liability for a tortious act committed by another. E.g.,

Hefferman v. Bass, 467 F.3d 596, 600-001 (7th Cir. 2006);

see RESTATEMENT (SECOND) § 876 comment b; Dobbs § 340

at 936-38; PROSSER & KEETON § 46 at 322-24. So although

the Boims might prevail by showing that a defendant aided

and abetted someone else (e.g., HLF) in providing material

support or resources to Hamas for its terrorist activi-

ties—for example, by hosting a fundraiser for HLF,

knowing and intending that the funds raised would be

funneled to Hamas to support terrorism—there still

must be proof that the provision of material support or

62 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

resources was in some way a cause of David Boim’s death.

It is not enough to show simply that a defendant generally

aided and abetted HLF or even Hamas as organizations;

there must be proof that the defendant aided and abetted

them in the commission of tortious acts that have some

demonstrable link with David Boim’s death. The same

is true of conspiracy. The mere agreement to engage in

illegal activity is not enough to impose civil liability on the

conspirator; rather, one must have conspired with some-

one who committed a tort. See Beck v. Prupis, 529 U.S.

494, 501-04, 120 S. Ct. 1608, 1614-15 (2000); see also, e.g.,

Adcock v. Brakegate, Ltd., 645 N.E.2d 888, 894 (Ill. 1994),

abrogation on other grounds recognized by Burgess v. Abex

Corp. ex rel. Pneumo Abex Corp., 725 N.E.2d 792, 795 (Ill.

App. Ct. 2000). In that sense, civil liability for engaging

in a conspiracy is distinct from criminal liability. 645

N.E.2d at 894. Thus, for purposes of liability under sec-

tion 2333, a plaintiff must show that the defendant aided

and abetted, or conspired with others to commit, an act

of international terrorism that resulted in injury to the

plaintiff.

There are any number of ways in which the plaintiffs

might be able to establish causation in fact. One way, of

course, would be to establish a direct causal link between

the defendants’ acts and the murder of David Boim. The

plaintiffs posited such a link in Boim I, theorizing that

the defendants had channeled funds into a central pool of

money that was used to train terrorists, buy their weap-

ons, and so forth—and that the terrorists who killed

David Boim had been trained and armed using those

funds. See Burnett v. Al Baraka Invest. & Dev. Corp., 274

F. Supp. 2d 86, 107 (D.D.C. 2003) (“It must be acknowl-

edged that the complaint in Boim was quite specific in its

allegation of a causal link . . . .”). There might be alter-

native and less direct routes to proving causation as well.

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 63

Nothing in Boim I demands that the plaintiffs estab-

lish a direct link between the defendants’ donations (or

other conduct) and David Boim’s murder—that they

funded in particular the terrorists who killed David Boim,

for example—in view of the fact that money is fungible

and the victims of terrorism are often killed or injured at

random, as he was. In that respect, the district court was

no doubt correct when it said that the Boims need not

link the defendants specifically to the attack on David

Boim. 340 F. Supp. 2d at 923. A factfinder reasonably

could conclude those who provide money and other gen-

eral support to a terrorist organization are as essential

in bringing about the organization’s terrorist acts as

those who plan and carry out those acts. See Boim I, 291

F.3d at 1021. For that reason, we reject AMS’s sugges-

tion (AMS Reply Br. at 6) that a $10,000 donation made

by a defendant to Hamas or its affiliate with the requi-

site knowledge and intent that the money will support

terrorism could not be deemed a cause of a subsequent

terrorist act absent proof that the donor envisioned that

particular act. But the plaintiffs still must offer some

proof that permits a finding by a preponderance of the

evidence that the defendants’ conduct caused terrorist

activity that included the shooting of David. For example,

the Boims have pointed out that in his August 1995

statement, Salah wrote that in the early 1990s, he had

helped to test and train terrorists, funneled money to

Hamas for the purchase of weapons, and had coordinated

with other Hamas leaders in rebuilding Hamas’s infra-

structure and command. R. 265-2 Ex. 15 at 1783-95; see

340 F. Supp. 2d at 920. If one were to credit Salah’s

statement, one reasonably might conclude that any

number of terrorist acts subsequently committed by

Hamas (and the resulting injuries) were in part caused by

Salah’s actions, even if Salah had no role in planning

and executing a particular terrorist act. Similarly, if an

64 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

individual or organization established a funding net-

work in the United States designed to provide ongoing

financial support for Hamas’s terrorist activities, a

factfinder might reasonably infer that the act of establish-

ing that network was a cause of ensuing acts of Hamas

terrorism, even if no line could be drawn linking a particu-

lar dollar raised to a particular terrorist act. As these

hypotheticals suggest, the nature and significance of a

defendant’s action along with its chronological relation-

ship to the terrorist act that injured the plaintiff would

be important considerations in assessing whether the

defendant caused the plaintiff ’s injury. Terrorist acts that

follow within a reasonable time the donations and other

support provided by a defendant to the perpetrators of

those acts could be deemed to have been caused by those

acts; and the more significant the support provided by a

defendant, the more readily one might infer that sup-

port was a cause of later terrorist acts.

We add that a defendant’s conduct need not be the sole

circumstance responsible for a terrorist act in order to

qualify as a cause in fact; it is enough that it be a cause

of the act and the resulting harm. RESTATEMENT (THIRD)

§ 26 comment c; see also id. comment l; RESTATEMENT

(SECOND) § 430 comments d, e. Proof that HLF was

funding Hamas’s terrorist activities at the time of David

Boim’s murder, and that another defendant was in turn

funneling donations to HLF with the knowledge and

intent that those funds be used to support Hamas’s ter-

rorism, might support an inference that the actions of both

HLF and that defendant were causes of the murder.

Alternatively, if the plaintiffs were able to show that by

providing funding to Hamas’s other activities, including

the hospitals, schools, and other charitable missions that

it sponsors, a donor frees up Hamas resources for, or

otherwise makes possible, Hamas’s terrorist activities,

then proof that the defendants provided support to Hamas

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 65

ostensibly for its humanitarian activities, but with the

knowledge and intent that Hamas be able to conduct

terrorism also, might support the inference that the

defendants were a cause of terrorist activity of the kind

that resulted in David Boim’s death. But without some

evidence of a causal link between a defendant’s conduct

and Boim’s murder, proof that a defendant supported,

aided and abetted, or conspired with Hamas (or an inter-

mediary like HLF) will not suffice to render that defend-

ant liable to the Boims.

Permitting liability to be imposed on a defendant based

solely on proof that the death of David Boim was a fore-

seeable result of the defendant’s conduct, without proof

that the conduct actually was a cause of the death, would

give section 2333 a far broader sweep than traditional

tort principles would allow. The actual use to which the

funds and other support that the defendants allegedly

provided to Hamas and its intermediaries was put would

be irrelevant. This would transform the doctrine of proxi-

mate causation from a principle that limits tort liability

into one that expands liability, essentially rendering a

defendant who intended to aid Hamas’s terrorist activities

strictly liable for all foreseeable injuries even if that

defendant’s aid actually did nothing to enable the terror-

ism and the injuries it inflicted. Cf. Associated Gen.

Contractors of Calif., supra, 459 U.S. at 537, 103 S. Ct. at

908 (majority opinion) (allegation of defendant’s intent

to cause harm insufficient to establish plaintiff ’s right to

recover for alleged antitrust violation) (citing Blue Shield

of Va. v. McCready, 457 U.S. 465, 479, 102 S. Ct. 2540,

2548 (1982)); see RESTATEMENT (SECOND) § 435A comment

a (“even where the tortfeasor intends a specific result

which follows, there must be a causal connection between

his action and the result”).

None of this should be understood to rule out the

possibility that relatively modest financial contributions

66 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

to terrorists or other minor acts of support would be

sufficient to render the donor liable for the injuries

subsequently inflicted by terrorists. See Boim I, 291 F.3d

at 1015. As we have noted, but-for causation does not

demand a showing that the defendant’s conduct was

the sole cause of the plaintiff ’s injury; the conduct need

only be one of the causes. RESTATEMENT (THIRD) § 26

comments c and l; RESTATEMENT (SECOND) § 430 comments

d and e. Nor must the plaintiff show that the defendant’s

conduct was the predominant or primary cause of the

injury. RESTATEMENT (THIRD) § 26 comments j and l. A

plaintiff might well be unable to show that a terrorist

organization such as Hamas depended on a particular

donor to support its terrorism, for example, or that one

act of terrorism owed its existence to a specific donation.

But a careful showing that many small donations col-

lectively resulted in a cache of funds that in turn enabled

a series of terrorist acts would permit a factfinder rea-

sonably to infer a causal connection between the contribu-

tion made by a single donor and one of the terrorist acts

made possible by that donor and others like him, even if

a single donation would not by itself have been enough to

cause that terrorist act. See RESTATEMENT (THIRD) § 26

comments c, i.

The viability of any of the potential theories of causation

in fact we have discussed would of course turn on the

evidence presented. We are necessarily speaking in a

vacuum at this juncture, given that the district court

made no finding as to causation in fact and the Boims have

not attempted to show causation in fact here. A more

definitive assessment of what evidence will suffice to

support a finding of cause in fact must await the presenta-

tion of that evidence. It is enough for us now to reiterate

that Congress meant for liability to extend the full length

of the causal chain of terrorism.

We do not believe our requirement that causation in

fact be shown is inconsistent with the D.C. Circuit’s

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 67

opinion in Kilburn v. Socialist People’s Libyan Arab

Jamahiriya, 376 F.3d 1123 (D.C. Cir. 2004), on which the

Boims rely. Kilburn did eschew what the D.C. Circuit

thought would be a stringent requirement of but-for

causation, but it did so solely for purposes of establishing

jurisdiction under the Foreign Sovereign Immunities Act,

28 U.S.C. § 1605(a)(7) (“FSIA”). Kilburn expressly left

open the possibility that but-for causation might be

necessary for purposes of liability. And as we shall dis-

cuss below, we believe a more expansive view of causation

in fact addresses the concerns that Kilburn voiced about

but-for causation.

Kilburn was a suit against Libya (among other defen-

dants) for the kidnaping and murder of an American

citizen, Kilburn, who had been working in Beirut. The

complaint alleged that the terrorist group Hizbollah had

abducted Kilburn and sought ransom for his return. While

the U.S. was attempting to negotiate his release, the

Libyan government made it known that it wanted to

procure an American hostage whom it would murder in

retaliation for recent U.S. airstrikes on Libyan soil.

Thereafter, a terrorist group sponsored and directed by

Libya allegedly purchased Kilburn from Hizbollah, tor-

tured him, and ultimately killed him. By the terms of

the FSIA, foreign states are immune from suit in U.S.

courts unless one of the statutory exceptions applies. 28

U.S.C. § 1604. One such exception authorizes a suit for

damages against a foreign state “for personal injury or

death that was caused by an act of torture, extrajudicial

killing, aircraft sabotage, hostage taking, or the provision

of material support or resources (as defined in section

2339A of title 18) for such an act if such act or provision of

material support is engaged in by an official, employee,

agent of such foreign state while acting within the scope of

his or her office, employment, or agency . . . .” § 1605(a)(7)

(emphasis supplied). The D.C. Circuit agreed that the

68 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

“caused by” language of this provision demanded proof of

a causal link between the foreign state’s acts and the

victim’s injuries, 376 F.3d at 1128, but it rejected Libya’s

contention that but-for causation must be shown, id. at

1128-29. The court recognized that depending on what

one understands but-for causation to mean, it can either

be a restrictive or an expansive standard for liability. Id.

at 1127 n.2. The court understood Libya to be arguing

in favor of a highly restrictive understanding of but-for

causation, and the court was concerned that a demanding

causation standard might inappropriately render state

sponsors of terrorism immune from suit. In particular, the

court believed that where multiple foreign states were

providing general support to a terrorist organization, it

would be difficult to show that any one of them was

literally the sine qua non cause of the injuries inflicted by

that organization’s terrorist acts—with the result that

all of the sponsoring states might be rendered immune

from suit. Id. at 1129. Relying on the Supreme Court’s

decision in Jerome B. Grubart, Inc. v. Great Lakes Dredge

& Dock Co., 513 U.S. 527, 536-38, 115 S. Ct. 1043, 1049-51

(1995), which construed identical language in a federal

admiralty statute, the D.C. Circuit held a showing that

a foreign state’s conduct proximately caused the plain-

tiff ’s injuries was sufficient for purposes of jurisdiction

under the FSIA. 376 F.3d at 1128.

However, the D.C. Circuit was quick to clarify that its

holding was limited to what was necessary in order to

assert jurisdiction over a foreign state and did not ad-

dress what proof would be necessary in order to impose

liability on that state.

[W]e underline that the only issue before us here is

jurisdictional causation, because § 1605(a)(7) is solely

a jurisdictional provision. Cicippio-Puleo [v. Islamic

Republic of Iran], 353 F.3d [1024] at 1032 [(D.C. Cir.

2004)]. To succeed in the end, the plaintiff must go

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 69

beyond jurisdiction and provide proof satisfying a

substantive cause of action. Id. The plaintiff has

alleged a number of sources that could provide a

cause of action, including state, federal, foreign, and

international law. Whatever the ultimate source may

be, it will no doubt carry with it—as a matter of

substantive law—its own rules of causation. Of these,

there are a large variety. See Prosser & Keeton at 266-

68, 273. Any concerns about reaching too far to charge

foreign states with the attenuated impact of their

financial activities are better addressed as questions of

substantive law. . . .

376 F.3d at 1129 (emphasis in original). See also Rux v.

Republic of Sudan, 461 F.3d 461, 472-73 (4th Cir. 2006),

cert. denied, 127 S. Ct. 1325 (2007).

Moreover, in requiring a showing of proximate cause

alone, Kilburn did not purport to relieve the plaintiff of

showing that the defendant’s conduct actually caused his

or her injury. On the contrary, the Kilburn court, quoting

approvingly from the PROSSER & KEETON treatise, ac-

knowledged that a showing of proximate cause requires

there to be “ ‘some reasonable connection between the act

of omission of the defendant and the damage which the

plaintiff has suffered.’ ” 376 F.3d at 1128, quoting PROSSER

& KEETON at 263. See also Owens v. Republic of Sudan,

412 F. Supp. 2d 99, 111-12 (D.D.C. 2006) (construing

Kilburn to require a showing of cause in fact).

The Supreme Court’s decision in Grubart, on which the

Kilburn court relied, likewise makes clear that proximate

cause entails proof of an actual factual nexus between the

defendant’s acts and the plaintiff ’s injury. Grubart arose

from a 1992 flood in Chicago’s Loop commercial district,

which briefly brought the city’s downtown to a standstill

and caused millions of dollars in losses to area businesses.

The flood occurred after a dredging company replacing

pilings in the Chicago River accidentally drove one or

70 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

more of the new pilings too deep into the riverbed and

weakened an old freight tunnel that ran below the river;

when the tunnel collapsed months later, river water

flooded the entire tunnel system and, along with it,

basements throughout the business district. In the face of

multiple lawsuits, the dredging company, invoking admi-

ralty jurisdiction, filed suit in federal court seeking to

limit its liability to the value of the tugboat and two

barges it had been using to replace the pilings. See Lim-

itation of Vessel Owner’s Liability Act, 46 U.S.C. § 181,

et seq. The existence of admiralty jurisdiction turned in

part on whether the relevant injury had been “caused by a

vessel on navigable water.” 46 U.S.C. App. § 740 (emphasis

supplied) (since recodified at 46 U.S.C. § 30101). Because

the pilings whose installation had resulted in the tunnel

collapse had been placed in the riverbed using a crane

perched upon a barge in the Chicago River, the Court had

no difficulty concluding that the barge had caused the

complained-of injuries. 513 U.S. at 534-35, 115 S. Ct. at

1049. Indeed, the question before the Court in Grubart

was not whether the dredging company’s barge had actu-

ally caused the flood, but rather whether the resulting

injuries were too remote from the barge and navigable

waters to support admiralty jurisdiction. The respondents

in Grubart (who, not surprisingly, were contesting the

dredging company’s resort to admiralty in an effort to

limit its liability) contended that damages must occur

closely in both space and time to a vessel’s tortious activ-

ity in order to permit a vessel owner to invoke admiralty

jurisdiction and that cause in fact was not enough. It

was this argument that the Supreme Court rejected:

The demerits of this argument lie not only in its want

of textual support for its nonremoteness rule, but in

its disregard of a less stringent but familiar proximity

condition tied to the language of the statute. The Act

uses the phrase “caused by,” which more than one

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 71

Court of Appeals has read as requiring what tort law

has traditionally called “proximate causation.” This

classic tort notion normally eliminates the bizarre,

and its use should obviate not only the complication

but even the need for further temporal or spatial

limitations. . . .

Id. at 536, 115 S. Ct. at 1049-50 (citations omitted).

Finally, we note that the facts alleged in Kilburn

and similar cases would readily permit a factfinder to

find but-for causation as we have framed it. As we have

discussed, a defendant’s conduct need not be the sole or

even primary cause of the plaintiff ’s injury in order to be

considered a cause in fact of that injury. Ante at 64-66.

Rather, it is sufficient if the defendant’s conduct is one

of the causes of the injury. In Kilburn, such a link could

readily be inferred from the facts alleged: Libyan agents

in Lebanon let it be known that Libya was interested in

purchasing an American hostage, and thereafter a hostage

was procured from Hizbollah and killed by a terrorist

group allegedly supported and directed by the Libyan

government. 376 F.3d at 1129-30. Similarly in Rux, it

was alleged that Sudan had aided and abetted the Octo-

ber 2000 al-Qaeda attack on the U.S.S. Cole (which took

the lives of seventeen sailors) by, inter alia, allowing al-

Qaeda to use Sudan’s diplomatic pouch to ship explosives,

allowing al-Qaeda operatives to enter Sudan and train

terrorists there, and allowing the shipment of explosives

from Sudan to Yemen, where the bombing took place. 461

F.3d at 473-74. Although, as the Fourth Circuit recog-

nized, the allegations did not make clear how closely in

time Sudan’s alleged acts occurred in relation to the

bombing and did not otherwise “chart a direct and unbro-

ken factual line between Sudan’s actions and the bomb-

ing,” id. at 474, they nonetheless reasonably supported

an inference that Sudan’s support helped bring about the

bombings. See also Owens, 412 F. Supp. 2d at 102-03, 113-

72 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

14 (finding jurisdiction under FSIA’s exception for state-

sponsored terrorism) (Sudan allegedly supplied shelter,

security, financial support, and business opportunities to

both al-Qaeda and Hizbollah during planning of August

1998 bombings of U.S. embassies in Nairobi and Dar es

Salaam); Weinstein v. Islamic Republic of Iran, 184

F. Supp. 2d 13, 19-22 (D.D.C. 2002) (concluding on entry of

default judgment under FSIA that Iran was a but-for cause

of suicide bombing perpetrated by Hamas, where, inter

alia, Iran had provided substantial funding to Hamas and

Iranian military instructors had trained Hamas terrorists

in use of explosives); Mousa v. Islamic Republic of Iran,

238 F. Supp. 2d 1, 11 (D.D.C. 2001) (finding that Iran’s

provision of “massive material and technical support” to

Hamas, including financial aid and use of Iranian military

instructors to train Hamas terrorists in use of explosives,

firearms, and grenades, supported entry of default judg-

ment against Iran under FSIA for suicide bombing perpe-

trated by Hamas); Eisenfeld v. Islamic Republic of Iran,

172 F. Supp. 2d 1, 8 (D.D.C. 2000) (same).

In sum, Kilburn does not support the proposition that

a defendant can be held liable under section 2333 absent

proof that its conduct was a cause in fact of the plaintiff ’s

injury. At most, Kilburn counsels against a rigid and

unduly narrow view of factual causation. Our own under-

standing of causation, we believe, is not so narrow and

unyielding. It is sufficiently flexible to account for the

reality that a terrorist act may have many causes with-

out abandoning the longstanding tort requirement that

an act have some factual nexus with the plaintiff ’s injury

before it may be deemed a basis for liability.

As we have noted, the district court, in granting sum-

mary judgment in favor of the plaintiffs and against

AMS/IAP on the question of liability, made no finding of

cause in fact. Instead, citing criteria we set out for

aiding and abetting, the court assumed that the Boims

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 73

need only show that AMP/IAP knew of Hamas’s illegal

activities, desired to help those activities succeed, and

engaged in some act of assisting Hamas. 340 F. Supp. 2d

at 906, 916; see also id. at 923. The plaintiffs have identi-

fied no proof of causation, contending that aiding and

abetting and conspiracy theories of liability do not re-

quire such proof. That notion, as we have set forth above,

is mistaken. Some type of causal link between the defen-

dants’ conduct and the death of David Boim must be

shown, regardless of what theory of liability the plaintiffs

rely upon.

The district court therefore erred in resolving liability

in favor of the Boims and against AM/IAP on summary

judgment. Absent a record that revealed no dispute of

material fact as to whether AMS/IAP’s actions in sup-

port of Hamas in some way caused David Boim’s death, the

Boims were not entitled to summary judgment on liability.

The most appropriate step at this juncture is to remand

this case to the district court for reconsideration. We are

aware that AMS/IAP filed a cross-motion for summary

judgment based in part on the lack of proof that its alleged

conduct was a cause in fact of David Boim’s death. How-

ever, because the district court shared the plaintiffs’

misapprehension as to the necessity of such proof, we

believe the district court should revisit this question on

remand. Our remand order is without prejudice to

AMS/IAP (or for that matter, HLF or Salah) renewing

its motion for summary judgment on this element of the

plaintiffs’ case. If the Boims are unable to identify evidence

sufficient to permit a reasonable inference that AMS/IAP’s

conduct was a cause in fact of David Boim’s murder, then

AMS/IAP will be entitled to judgment in its favor. If the

court concludes that there is a material dispute of fact as

to the causal link between AMS/IAP’s conduct and the

murder of David Boim, then AMS/IAP will be entitled to a

jury trial on that question.

74 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

We note that neither AMS/IAP nor any of the other

appellants has challenged the amount of damages that

the jury awarded to the Boims. Therefore, if the district

court on remand concludes that the undisputed facts

establish a causal link between a defendant’s conduct

and David Boim’s murder, the court may reinstate the

judgment as to that defendant. If the court finds that the

evidence necessitates a trial as to cause in fact as to any

defendant, then the judgment may be reinstated against

any defendant whose conduct the jury determines to be

a cause in fact of David’s death.

IV.

Mohammad Salah

The partial summary judgment entered against Salah is

flawed for the same reasons that we have discussed as to

AMS/IAP. Although there was a separate set of facts

regarding Salah’s links to Hamas (which Salah does not

contest for purposes of this appeal), the district court

relied on the same incomplete recitation of what would

be necessary to establish a defendant’s liability as an

aider and abettor. The court stated that Salah would be

liable for David Boim’s death so long as he knew of

Hamas’s terrorist activities, desired to help those activ-

ities succeed, and engaged in some act of helping. 340

F. Supp. 2d at 923. The court did not insist on any proof

of cause in fact or make any finding that Salah’s actions

in support of Hamas, and/or his participation in the

undefined “conspiracy that was Hamas,” id. at 924, had

any causal nexus with David Boim’s murder. See id.

at 923.

The court’s statement that Boim I did not require a link

to David Boim’s death in particular, id., was correct

insofar as a direct link between Salah’s actions and the

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 75

killing of David Boim need not be shown. We have men-

tioned above ways in which indirect causation might be

proven. But Boim I certainly did not relieve the plain-

tiffs of establishing some form of causal link between a

defendant’s actions and David Boim’s murder.

Salah was in Israeli custody in 1996 at the time of David

Boim’s murder and the plaintiffs have identified no

evidence that he gave any sort of meaningful support to

Hamas after January 1993 (when he was arrested), some

forty months prior to the murder. The district court

relied on conspiracy principles to say that Salah could be

liable for acts post-dating his active involvement in the

Hamas conspiracy so long as he did not renounce Hamas

and withdraw from the conspiracy prior to David’s killing.

Id. at 923-24.

There are at least two problems with this rationale.

First, as we have discussed above, proof that Salah

conspired with others in support of Hamas’s terrorist

aims and activities does not render Salah per se liable

for all those injured by Hamas terrorists. Adcock v.

Brakegate, supra, 645 N.E.2d at 894. Second, the plaintiffs’

theory that Salah was a member of a Hamas-related

conspiracy is not adequately supported. The Boims did not

cite this theory as a possible basis for summary judg-

ment against Salah until they filed their consolidated

memorandum in opposition to Salah’s motion for sum-

mary judgment and in reply in support of their own motion

for summary judgment. R. 352 at 12-14. Even at that

juncture, the Boims did little beyond briefly mentioning

civil conspiracy principles; they did nothing to flesh out

what the conspiracy was, when Salah joined it, who it

was he conspired with, and so forth. See id. For its part,

the district court simply pronounced Hamas a conspir-

acy without any discussion of the evidence that would

support that pronouncement. 340 F. Supp. 2d at 924.

Merely mouthing the word “conspiracy” is not enough to

76 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

render a defendant liable for the acts of a third party, and

certainly not on summary judgment.

So the partial summary judgment against Salah on

liability must also be reversed. The evidentiary record

before the district court must be re-examined on remand.

Unless the plaintiffs can identify evidence that would

permit a reasonable factfinder to find that Salah’s ac-

tions on behalf of Hamas in some way caused or contrib-

uted to David Boim’s death, Salah will be entitled to

summary judgment.

V.

Quranic Literacy Institute

As we mentioned in our summary of the proceedings

on remand from Boim I, the Boims did not seek to resolve

QLI’s liability on summary judgment. Consequently, once

the district court had entered partial summary judgment

against HLF, AMS/IAP, and Salah, QLI was the sole

defendant facing trial on liability. After QLI’s requests

to postpone the trial were denied, QLI elected to attend

but not participate in the trial, doing nothing to challenge

the plaintiffs’ evidence or to present any evidence of its

own.

QLI contends that the district court abused its discre-

tion in refusing to extend the trial date, but we reject

the notion that the trial court was obligated to give QLI

more time following the summary judgment ruling. The

trial court’s ruling on a continuance request is one that we

review for abuse of discretion. Research Sys. Corp. v.

IPSOS Publicite, 276 F.3d 914, 919 (7th Cir. 2002). We

will reverse the denial of such a request only when we are

convinced the court below acted unreasonably. Id. (citing

N. Ind. Pub. Serv. Co. v. Carbon County Coal Co., 799

F.2d 265, 269 (7th Cir. 1986)). As we noted in Daniel J.

Hartwig Assocs., Inc. v. Kanner, 913 F.2d 1213, 1222-23

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 77

(7th Cir. 1990), the rare instances in which we have

found the refusal of a continuance to constitute an abuse

of discretion typically have involved an unexpected devel-

opment to which counsel could not be expected to adjust

without additional time. This was not such a situation.

Although the district court did not resolve the summary

judgment motions until three weeks before the trial was

to commence, the court had set the trial date some five

months earlier. Consequently, all of the parties, includ-

ing QLI, had ample time to prepare for trial, and each

of them was obliged to do so on the assumption that

summary judgment would be denied. It is true that QLI

suddenly found itself alone at the defense table, but this

scenario was neither unforeseeable nor even unusual: pre-

trial rulings, settlements, and guilty pleas frequently

cause co-defendants to drop out of a case at the last

minute. Counsel for any defendant in a multi-defendant

case, criminal or civil, must anticipate the possibility

that his client may be the only defendant left when the

trial date arrives and plan accordingly. Moreover, if an

unexpected turn of events has deprived counsel of a

reasonable opportunity to prepare for trial, he must make

an appropriate record of how the lack of additional time

has concretely harmed his client. See, e.g., United States v.

Rinaldi, 461 F.3d 922, 928-29 (7th Cir. 2006) (defendant

challenging the denial of continuance must demonstrate

prejudice), cert. denied, 2007 WL 2383418 (U.S. Dec. 3,

2007). Generic complaints of surprise and unfairness

will not suffice in this regard.

Although we find no abuse of discretion in the district

court’s decision to proceed with the trial as scheduled, we

conclude that the court did err in another respect that

requires us to vacate the judgment against QLI and to

remand for further proceedings. As we have noted above,

in advance of the trial and without any prior warning to

QLI, the court deemed QLI bound by the court’s finding

on summary judgment against the other defendants that

78 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

Hamas was responsible for David Boim’s murder. See

R. 659, Mem. Op. at 8. Consistent with that determination,

the court advised the jury in its opening instructions that

“[t]he terrorist group Hamas was responsible for the

murder,” R. 814-1 at 107, and the Boims’ counsel relied on

that finding in his opening and closing statements, id.

at 126; R. 814-4 at 503.

Although a district court is not precluded from sua

sponte granting summary judgment against a party, we

have repeatedly warned that the court may not do so

without first giving that party notice and the opportunity

to respond. See Pourghoraishi v. Flying J, Inc., 449 F.3d

751, 765 (7th Cir. 2006) (coll. cases). QLI was deprived

of that opportunity.

For that reason, we vacate the judgment against QLI

pending further proceedings in the district court. It is

possible that the court’s error as to QLI may prove to

have been harmless, but that is a matter to be sorted out

on remand. Our decision to vacate the judgment against

QLI is without prejudice to the Boims seeking sum-

mary judgment on the question of Hamas’s responsibility

for David Boim’s murder, provided that QLI is given the

opportunity to respond of which it was deprived in the

first instance. If the Boims do move for summary judg-

ment on this issue and the district court, on consideration

of the evidence marshaled by the parties, concludes that

there is no material dispute of fact as to Hamas’s culp-

ability for David Boim’s murder, then the court properly

may enter summary judgment in favor of the Boims on

that issue. Given that QLI has otherwise shown no other

defect in the trial or resulting verdict and damages

award against it, the district court at that point should

reinstate the judgment in favor of the Boims and against

QLI. If, on the other hand, the court finds there to be a

material dispute of fact as to Hamas’s responsibility

for the murder, then QLI will be entitled to a trial limited

Nos. 05-1815, 05-1816, 05-1821 & 05-1822 79

to that issue alone. A jury finding that Hamas was respon-

sible for David Boim’s death would, again, call for rein-

statement of the judgment against QLI. A jury finding

to the contrary would, of course, compel the entry of

judgment in favor of QLI.

VI.

We must briefly address the matter of a fees order

entered against the defendants and/or their lawyers. When

the Boims filed this lawsuit, the defendants not only

moved to dismiss the complaint, but they also sought

sanctions pursuant to Federal Rule of Civil Procedure 11.

In a single sentence at the conclusion of its opinion

denying the motions to dismiss and for sanctions, the

district judge awarded the plaintiffs the fees and costs they

had incurred in responding to the defendants’ Rule 11

motions. Boim v. Quranic Literacy Inst., 127 F. Supp. 2d

1002, 1021 (N.D. Ill. 2001). However, the court did not

explain the basis for the fee award nor did it specify

who, as between the defendants and their lawyers, was

to pay the Boims their fees and costs. When the magistrate

judge later ascertained, on review of the Boims’ fee

petition, the amount to which they were entitled, he

clarified that the court had awarded the Boims their

fees and expenses pursuant to Rule 11(c)(1)(A), which

provides that “[i]f warranted, the court may award to the

party prevailing on the [Rule 11] motion the reasonable

expenses and attorney’s fees incurred in presenting or

opposing the motion.” R. 184, Mem. Op. at 8. The magis-

trate judge also held that the defendants and their at-

torneys were to bear joint and several liability for the

award. Id. at 20. But the rationale for both the award

and the decision to make the defendants as well as their

lawyers responsible for paying it remained somewhat

murky. The magistrate judge rejected the suggestion

80 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

that the defendants’ attorneys alone should be liable,

reasoning that the Boims had been awarded their fees

and costs as the parties who prevailed on the Rule 11

motion rather than as a sanction against the defendants

(and/or their lawyers) for filing a groundless Rule 11

motion. R. 184, Mem. Op. at 5-6, 20. Elsewhere in the

same opinion, however, the magistrate judge stated that

the decision to award the Boims the fees and expenses they

had incurred in successfully opposing the defendants’ Rule

11 motion “is specifically tailored to redress the wrongful

conduct and is specifically authorized by Rule 11.” Id. at 15

(emphasis added).

On this record, the award of fees and expenses was

defective, as the Boims all but concede. See Boim Br. at 59.

None of the court’s opinions and orders on this subject

make clear on what ground the district court believed

that the award of fees and expenses was warranted nor

why, in light of that rationale, the defendants and their

counsel were to be jointly and severally liable for the

award. To the extent this was meant to be a fee-shifting

award to the prevailing parties, it is not clear why liability

was imposed on the defendants’ atto

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