# Boim, Stanley v. Holy Land Foundation

> Court of Appeals for the Seventh Circuit · December 28, 2007

URL: https://www.frixlaw.com/law-library/cases/3001299

## Case

- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** December 28, 2007
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Rovner
- **Nature of suit:** civil
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3001299

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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 gene

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3001299. Public record. Not legal advice.