Amicus Curiae Brief — Twitter, Inc., Petitioner v. Mehier Taamneh, et al.

No. 21-1496

IN THE

TWITTER, INC.,

v.

Petitioner,

MEHIER TAAMNEH, ET AL.

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE RETIRED UNITED STATES

GENERALS WHO SERVED IN IRAQ AND AFGHANISTAN,

IN SUPPORT OF RESPONDENTS

GLENN A. DANAS

Counsel of Record

LAUREN E. ANDERSON

RYAN J. CLARKSON

CLARKSON LAW FIRM, P.C.

22525 Pacific Coast Highway

Malibu, CA 90265

Telephone: (213) 788-4050

gdanas@clarksonlawfirm.com

January 18, 2023

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................................ii

INTEREST OF THE AMICI CURIAE ...............................................1

INTRODUCTION AND SUMMARY OF ARGUMENT ...............2

FACTUAL BACKGROUND .............................................................. 10

A. The formation of Al Qaeda in Iraq and its

subsequent metamorphosis into the Islamic

State..................................................................................... 10

B. ISIS Has Expanded and Raised Funds Through

Both Intrinsically Criminal Means and

“Ordinary” Business ...................................................... 17

ARGUMENT ........................................................................................ 20

I. 18 U.S.C. Section 2333(d)(2) Reaches Substantial

Assistance in the Form of Material Support to Ei-ther the

Act of International Terrorism or the FTO that Committed

It ............................................................................................................. 20

II. Conduct that Appears “Neutral Standing Alone” Can Aid

and Abet Acts of International Terrorism. ............................. 25

III. Defendants’ Knowing Allowance of ISIS’s Use of Their

Services Constituted Substantial Assis-tance Given Their

Amount and Kind, and the Horrific Nature of the Acts They

Assisted................................................................................................ 28

CONCLUSION ..................................................................................... 31

APPENDIX TABLE OF CONTENTS ............................................ 1a

ii

TABLE OF AUTHORITIES

Boim v. Holy Land Found. For Relief & Dev.,

(7th Cir. Aug. 21, 2008, No. 05-1815)

2008 WL 3993242 .......................................................... 24

Boim v. Quranic Literacy Inst. & Holy Land Found. For

Relief & Dev.,

(7th Cir. Nov. 14, 2001, No. 01-1969)

2001 WL 34108081 .................................................. 8, 23

Foley v. Syrian Arab Republic,

(D.D.C. 2008) 249 F. Supp. 3d 186.............................. 13

Gates v. Syrian Arab Republic,

(D.C. Cir. 2011) 646 F.3d 1 ....................................12, 29

Halberstam v. Welch,

(D.C. Cir. 1983) 705 F.2d 472 .......................... 6, 23-30

Holder v. Humanitarian L. Project,

(2010) 561 U.S. 1.................................................................5

Other Authorities

18 U.S.C. §§ 2339A-C..........................................................................5

Col. Joel D. Rayburn, et al., THE U.S. ARMY IN THE IRAQ WAR,

(2019) U.S. Army War College Press,

Vols.1 and 2 ........................................................................ 10

Heather Marie Vitale and James M. Keagle, A Time to Tweet,

as Well as a Time to Kill: ISIS’s Projection of Power

in Iraq and Syria, Defense Horizons

(2014) NAT’L DEFENSE UNIV. 1 ..........................................4

iii

Tom Keatinge, How the Islamic State Sustains Itself: The

Importance of the War Economy in Syria and Iraq,

(2014) NAT’L DEFENSE UNIV. 1 ....................................... 18

Yeganeh Torbati, Islamic State Yearly Oil Revenue Halved to

$250 million: U.S. Official,

(2016) REUTERS .................................................................. 18

1

INTEREST OF AMICI CURIAE 1

The undersigned amici curiae (“Amici”) served in the

United States military in various leadership capacities in

Iraq and Afghanistan between 2003 and 2017. During that

time, Amici witnessed the rise of al Qaeda in Iraq (“AQI”)

and its later transformation into the Islamic State of Iraq

and Syria—better known by its acronym ISIS. 2 Accordingly, Amici have an interest in this case and its effect on the

United States’ continued ability to effectively combat foreign terrorist organizations.

Amici’s experiences confronting radical Islamist terrorist groups in Iraq, Syria, and Afghanistan provide insights

into the practical global antiterrorism issues raised by this

appeal. Amici submit this brief to urge the Court to consider

the pragmatic implications of narrowing liability under the

counterterrorism statutes at issue. Following decades of

combat and surveillance, the United States military and its

intelligence agencies understand that the most effective

way to prevent terrorist attacks by groups such as AQI and

ISIS is to weaken or destroy the terrorist organizations that

commit those attacks. Twitter, Google, and Facebook (“Defendants”) attempt to escape liability by construing the

Anti-Terrorism Act (“ATA”), 18 U.S.C. §2333, and associated statutes narrowly, to inculpate only those who knowingly assist specific acts of violence, for example by providing a weapon or bomb. This ignores the practical reality of

1 Amici certify that no party or party’s counsel authored this brief in

whole or in part and that no person other than Amici or their counsel

made a monetary contribution to its preparation or submission.

2 ISIS is referred to by varied names, such as ISIL (Islamic State of Iraq

and the Levant) or simply the Islamic State (“IS”). This brief will refer

to it as “ISIS.”

2

effective counterterrorism measures, which demand liability against those, such as Defendants, who provide substantial support to terrorist organizations and their agents. A

contrary finding would undermine the interests of Amici,

and substantially curtail the ability of 18 U.S.C. §2333 to

serve its intended purpose and combat gruesome acts of

terror. 3

INTRODUCTION AND SUMMARY OF ARGUMENT

Amici’s experience confronting ISIS (and its predecessor, AQI) makes clear that the most effective way to prevent

terrorist attacks is to weaken or destroy the terrorist organizations that commit those attacks. During the occupation of Iraq, Coalition Forces (the multinational task force

in Iraq, led by the U.S.) were forced to confront an almost

unimaginable level of violence spawned by AQI under the

leadership of Abu Musab al-Zarqawi and his disciples. This

violence included kidnappings and shootings; deploying

car bombs, truck bombs, roadside improvised explosive

devices (IEDs); and suicide bombings. Over the course of

eight years, Coalition Forces made thousands of arrests and

killed hundreds of terrorists, including Zarqawi himself.

But while implementing various measures to reduce casualties from terrorist attacks was important (e.g., improving

the design of U.S. armored vehicles, reinforcing checkpoints, interdicting terrorists before they reached their tar-

3 Amici take no position on the question of whether Section 230 of

the Communications Decency Act should continue to shield social media companies and other internet providers from liability for the consequences of third-party content and they take no position on the ultimate merits of the scienter allegations set forth in the operative

Taamneh complaint.

3

gets), targeting the leadership and starving sources of support was always the most critical objective in the effort to

defeat the organization.

ISIS was exceptional among terrorist groups in seizing

considerable territory and forming a new proto-state—not

just subverting an existing government, as Hamas did in the

Gaza Strip and Hezbollah has done in Lebanon—but conquering territory across two countries, temporarily erasing

the border between them, and establishing a purported Islamic “Caliphate” (a political-religious state referencing the

medieval era). The organization’s support initially came in

the form of assistance from state sponsors of terrorism, donations from wealthy individuals sympathetic to its

agenda, and localized criminal activity. But terrorist organizations like AQI/ISIS are not static; to survive, they evolve,

adapt, and innovate. Once ISIS firmly controlled territory,

it generated revenue from diverse sources including taxes

and extortion, income from oil sales, looting banks, museums and archeological sites, and a variety of both overtly

criminal enterprises like kidnapping and ransom as well as

more ordinary commercial activities ranging from agriculture to mining.

As detailed below, AQI also exhibited early signs of sophistication in adapting new technologies, and by the time

it morphed into ISIS, social media played a central role

in making it, at least for several years, the most successful and most vicious terrorist group in modern history.

For example, unlike most Islamist terrorist groups, ISIS

recruited not just local sympathizers from the region, but

more than 10,000 disaffected individuals from across the

globe, an issue many countries are still dealing with as

some of these volunteers now return home. That massive

4

recruitment effort, carried out to a significant degree

through the Defendants’ social media platforms, is one key

to ISIS’s initial success.

ISIS’s social media savvy—and the powerful tools Defendants provided to it—was unquestionably a key to ISIS’s

success. In 2014, the Department of Defense’s National Defense University explained that ISIS had at that time shown

considerable strength thanks to that savvy:

ISIS, however, has projected the most power

and shown the most innovation with technology and media. It demonstrates a masterful understanding of effective propaganda

and social media use, producing a multidimensional global campaign across multiple

platforms. ISIS has used these platforms to

exhibit intimidation, networking, recruitment, justice, and justification. 4

As noted above, foreign terrorist organizations

(“FTOs”) like ISIS, and its progenitor, AQI, were (and remain) complex and evolving organizations and their tactics

and strategy adapt over time both on the battlefield and in

cyberspace, evading simple or neat categorization.

There is no doubt that certain individuals and entities

provide active support to terrorist organizations because

they share those organizations’ ideology or political objectives. However, as set forth below, many individuals and

commercial entities – including banks and corporations –

have provided material support to ISIS for profit: because

4 Heather Marie Vitale and James M. Keagle, A Time to Tweet, as Well

as a Time to Kill: ISIS’s Projection of Power in Iraq and Syria, Defense

Horizons, NAT’L DEFENSE UNIV. 1 (Oct. 2014).

5

they believed ISIS’s bloody terrorism was an insufficient

reason to cease engaging with them if doing so would adversely affect their profits or business model.

Congress criminalized such conduct – irrespective of a

defendant’s motive – because it empirically determined

that violence is a “wholly foreseeable” consequence of any

assistance to an FTO. Holder v. Humanitarian L. Project, 561

U.S. 1, 36 (2010). And in choosing Halberstam v. Welch, 705

F.2d 472 (D.C. Cir. 1983), as the “framework” for liability

under 18 U.S.C. § 2333(d)(2), Justice Against Sponsors of

Terrorism Act (“JASTA”), Pub. L. No. 114-222, 130 Stat 852

(2016), §2(a)(5), Congress deliberately targeted aiders and

abettors engaged in acts that might appear “neutral standing alone,” but were undertaken with awareness that they

would assist FTOs like ISIS. Halberstam, 705 F.2d at 488. In

light of their firsthand experience with the operations, infrastructure, and support systems of AQI and ISIS, Amici

dispute Defendants’ arguments concerning the proper

reading of JASTA.

Anticipating how terrorist organizations actually work,

Congress created a flexible and open-ended civil remedy

for assisting them, noting that: “The substance of such an

action is not defined by the statute, because the fact patterns giving rise to such suits will be as varied and numerous as those found in the law of torts.” S. Rep. No. 102-342,

at 5 (1992). From 1994 to 2002, Congress created complementary criminal liability for secondary actors by adopting

multiple ATA sections that penalize the provision of material support for terrorism. See 18 U.S.C. §§ 2339A-C. The

civil liability created in the ATA supplements the criminal

liability through the efforts of private attorneys general.

6

Congress then went even further, enacting JASTA in

2016 to establish an express cause of action against defendants who “aid and abet” terrorists or conspire with

them. In adopting JASTA, Congress emphasized that: “[t]he

purpose of this Act is to provide civil litigants with the

broadest possible basis, consistent with the Constitution of

the United States, to seek relief against persons, entities,

and foreign countries, wherever acting and wherever they

may be found, that have provided material support, directly or indirectly, to foreign organizations or persons that

engage in terrorist activities against the United States.”

JASTA § 2(b) (emphasis added).

Defendants, however, argue that they cannot be liable

under an aiding and abetting theory for ISIS’s attack on the

Reina nightclub because the statute requires that they

knowingly assist the specific act of international terrorism

that injured the Plaintiffs, rather than the terrorist organization that committed the attack. Petitioner, for example,

asserts that Plaintiffs were required to plausibly plead that

its assistance to ISIS was motivated to cause terrorism or

directly connected to the Reina nightclub attack. See Twitter Br. 21.

Defendants’ reading of JASTA is mistaken. It is not only

contrary to the statutory text, the principles guiding liability set forth in Halberstam, and JASTA’s legislative history,

but it would render the statute toothless since the aidersand-abettors who assist specific terrorist attacks are almost invariably terrorists themselves or closely related to

them. In Amici’s experience, a civil statute that reaches only

the conduct of fellow terror cell members or individuals

who assist in the last stages of an attack would be effectively meaningless. Even the donors to AQI and ISIS who

supported them for ideological or political reasons were

rarely if ever privy to the planned commission of specific

7

attacks. Indeed, except for certain commercial technologies, it would be highly unusual if a specific attack could be

traced to such support, as forensic units with which Amici

worked in the battlespace could attest. 5

Take the Reina nightclub attack itself. It was perpetrated by an Uzbek national named Abdulkadir Masharipov

who had visited an al Qaeda training camp in Afghanistan

in 2010, later joined ISIS, and was directed by an ISIS leader

in Syria to move to a city in Turkey with his family and

await further instructions. Those instructions came on

Christmas Day in 2016 when an ISIS handler he knew as

“Abu Shuhada” (“Father of Martyrs”) instructed him to

launch an attack on New Year’s Eve in Istanbul. Abu

Shuhada, Masharipov said, was responsible for Islamic

State operations in Turkey. 6 According to Defendants, civil

liability would extend only to “Abu Shuhada” and the members of the Turkish ISIS cell that knew in advance about the

attacks and assisted Masharipov. Construing the statute in

this way would render it a dead letter, essentially mocking

American victims of terrorism with a meaningless remedy

they can pursue only against members of terror cells in foreign countries. The U.S. government was clearly correct

(and sadly prescient considering Defendants’ arguments

5 Furthermore, of the thousands of attacks perpetrated by AQI/ISIS

since 2004, even among those terrorist cells members the U.S. intelligence community knows to have directly assisted specific attacks,

there are almost none who are even subject to personal jurisdiction in

a U.S. court, let alone have reachable assets amenable to a civil judgment.

6 Ahmet S. Yayla, The Reina Nightclub Attack and the Islamic state

Threat to Turkey, Combatting Terrorism Center, https://ctc.westpoint.edu/wp-content/uploads/2017/03/CTC-Sentinel_Vol10Iss328.pdf.

8

here) when it told the Court of Appeals for the Seventh Circuit in 2001 that a “restrictive reading of the statute would

mean that Congress created a largely hollow remedy if it

merely allows suits against terrorists who pull the trigger

or plant the bomb.” U.S. Amicus Br., Boim v. Quranic Literacy Inst. & Holy Land Found. for Relief & Dev., No. 01-1969,

et al., 2001 WL 34108081, at *18. (7th Cir. Nov. 14, 2001).

Defendants also argue that they cannot be liable for

ISIS’s attack on the Reina nightclub because any knowing

assistance they provided to ISIS was a “routine commercial

activity.” Twitter Br. 49. But here, Plaintiffs allege that Defendants’ awareness of their role in ISIS’s illegal activities

need not be inferred from their unusual assistance to it;

their awareness is evident from the fact that “both the U.S.

government and the public at large have urged Defendants

to stop providing [their] services to terrorists.” J.A. 88, 90;

see also J.A. 88-91 (reciting media coverage of and government reactions to Petitioner’s services to ISIS). In addition,

Plaintiffs allege that in response to specific complaints

about ISIS’s use of their platforms, Defendants “have at various times determined that ISIS’s use of [their] [s]ervices

did not violate Defendants’ policies,” and “permitted ISISaffiliated accounts to remain active, or removed only a portion of the content posted on an ISIS-related account.” J.A.

134-135; see also J.A. 137 (describing how Google placed an

age restriction for viewing terrorist videos). Amici have observed numerous examples of significant assistance rendered to AQI/ISIS in both unusual and “routine” ways. Both

forms of assistance helped facilitate countless acts of terrorism. Accordingly, to the extent that all other requirements of JASTA are met, Defendants’ knowledge that they

were assisting specific ISIS accounts and users should satisfy the statute’s state of mind requirement.

9

Defendants also argue that “[a]ny provider of widely

available goods or services—be it financial services providers, oil companies, pharmaceutical companies, commercial

airline companies, and more—that is aware that terrorists

can exploit its goods or services to their own unlawful ends

is at risk under the Ninth Circuit’s approach.” Google/Facebook Br. 19. But this grossly overstates matters. Awareness

that terrorists can exploit a defendant’s goods or services

does not give rise to Section 2333(d)(2) liability; awareness by a defendant that it is actually assisting terrorists by

providing certain goods or services does give rise to such

liability. The fact that Defendants’ social media platforms

are widely available to billions of people around the world

may make those services both qualitatively and quantitatively different from goods or services provided on an individual basis, but the scope and ease of access to Defendants’ platforms does not foreclose liability as a matter of

law; it merely suggests that additional facts may be necessary to establish Defendants’ state of mind that may not be

necessary in other contexts.

Finally, the two most important factors determining the

substantiality of assistance – nature of the act assisted, and

amount and kind of assistance – clearly point to the substantiality of the assistance here. The seriousness of the

consequences of the acts assisted is undisputed. From our

experience in the battlespace, Amici are also in full agreement with the Ninth Circuit’s determination that the services Defendants provided “were central to ISIS’s growth

and expansion, and that this assistance was provided over

many years.” Pet. App. 65a.

The service members who protect our nation abroad

are the greatest assets that our country possesses in the

world-wide effort to counter terrorism. It has been Amici’s

10

great honor to lead them in Iraq, Afghanistan, and elsewhere. ISIS and other foreign terrorist organizations

threaten the safety of those service members and greatly

endanger the military and political objectives that the

United States has spent many years and billions of dollars

to accomplish.

Amici therefore write to urge the Court to find that neither the law nor sound public policy should immunize any

individual, corporation, or association that knowingly provides substantial assistance to a designated FTO or its

agents, regardless of whether that assistance is “ordinary”

or “routine.”

FACTUAL BACKGROUND

A. The formation of al Qaeda in Iraq and its subsequent metamorphosis into the Islamic State

A detailed history of AQI and ISIS is well beyond the

scope of this brief, but the evolution of these terrorist organizations will hopefully provide the Court with some

useful context regarding the underlying factual issues in

this case: namely, the structure and growth trajectory of

the FTO at issue; the brutality and complexity of the attacks

executed by the same; and finally, the vital role of Defendants’ services in facilitating AQI and ISIS’s growth and campaign of terror. 7

AQI began as an offshoot of Ansar al-Islam, an affiliate

of al-Qaeda that operated in a small corner of Sulaymani7 Unless otherwise indicated, the following history is adopted from the

official U.S. Army history of the Iraq war: Col. Joel D. Rayburn, et al., THE

U.S. ARMY IN THE IRAQ WAR, Vols. 1 and 2 (U.S. Army War College Press,

Jan. 2019) (“Rayburn”).

11

yah Province in Iraq prior to the overthrow of Saddam Hussein’s regime. After the Taliban was temporarily expelled

from Afghanistan by U.S. forces in late 2001, Ansar al-Islam

harbored several al-Qaeda operatives, including Abu Musab al-Zarqawi, a fanatical Jordanian Salafist 8 who had

served under al-Qaeda in Afghanistan, but had declined to

swear fealty to al-Qaeda’s senior leadership.

Zarqawi established his own terrorist group, Tawhid

wal-Jihad (“Monotheism and Holy War”), and started to

network among militants throughout the region. Following

the American invasion of Iraq in March 2003, he developed

a strategy to undermine Coalition Forces in Iraq. The invasion created an opportunity for Zarqawi because it effectively shifted power from the minority Sunni population,

privileged by Saddam Hussein, to the majority Shi’a population. Zarqawi was “virulently anti-Shi’a and, like some of

the Sunni tribes, viewed Iraq’s Shi’a as the chief threat to

Sunni power in Iraq and the wider region.” 9

Zarqawi’s strategy was to launch mass casualty attacks

against Coalition Forces, the nascent Iraqi government, and

Iraq’s Shi’a population, in order to incite a civil war between the Sunni and Shi’a communities. He created training camps and began absorbing many of the foreign fighters brought into Iraq by Saddam Hussein to fend off the

American-led invasion.

Under Zarqawi’s command, Tawhid wal-Jihad committed a series of brutal attacks. By 2004, Tawhid wal-Jihad

(soon to morph into AQI) was regularly kidnapping and

8 Salafism is a reactionary movement within Sunni Islam, the largest

branch of Islam.

9 Rayburn, Vol. 1 at 175.

12

brutally murdering international aid workers and reconstruction engineers. In a prominent example, it perpetuated the 2004 kidnapping and videotaped beheading of

American civilian Nicholas Berg. 10 Soon thereafter, AQI

kidnapped American civilian contractors Jack Armstrong

and Jack Hensley, and beheaded them on video as well. See

Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53, 72–74

(D.D.C. 2008), aff’d, 646 F.3d 1 (D.C. Cir. 2011).

For AQI, however, the key was not merely the “unbridled and intentional cruelty,” id. at 74, but also filming

and posting videos of such murders to Arab satellite television networks, and eventually on social media:

Nowhere is the premeditation and callousness of

these acts more evident than in the recording, publication, and distribution of video footage of the torture and murders. The videos of these atrocities

transformed innocent men into mere props in a

propaganda campaign. The videos glorified cruelty

and fanned the flames of hatred, in a fundamental

offense to human dignity.

Id. at 75.

The same court came to similar conclusions about

the 2006 torture and murder of U.S. Army Private First

Class (PFC) Kristian Menchaca by AQI, citing the conclusions of the U.S. Armed Forces Medical Examiner:

10 The murderer in the video was “very probably” Zarqawi himself.

Douglas Jehl, THE STRUGGLE FOR IRAQ: THE BEHEADER; C.I.A. Says

Berg's Killer Was Very Probably Zarqawi, N.Y. TIMES (May 14, 2004),

https://www.nytimes.com/2004/05/14/world/struggle-for-iraq-beheader-cia-says-berg-s-killer-was-very-probably-zarqawi.html.

13

My opinion is that this is definitely torture, but it

wasn’t just—it was total disregard for PFC

Menchaca for his pain and his suffering, but it was

also in a time of social media and placed for the

whole world to see to terrorize an entire nation,

bring incredible pain and suffering to his family,

and go well beyond just total disregard for PFC

Menchaca.

Foley v. Syrian Arab Republic, 249 F. Supp. 3d 186, 198–99

(D.D.C. 2017) (record citations omitted) (emphasis added).

In October 2004, Zarqawi swore allegiance to Osama

Bin Laden, renaming his terrorist group to “Qa’idat al Jihad

fi Bilad ar Rafidain,” or “al-Qaeda in the Land of Two Rivers

(Iraq)”—or, as Coalition Forces called it, “al-Qaeda in Iraq.”

Following extensive negotiations between al-Qaeda and

AQI, Bin Laden named Zarqawi “emir,” or commander, of

all al-Qaeda forces in Iraq. The al-Qaeda name brought

brand recognition, “an important factor in seeking financial

donations and new recruits” and an early step in ISIS’s future propaganda empire played out chiefly on the internet. 11

Under the AQI “brand,” Zarqawi continued his slaughter of Shi’a Iraqis. The attacks were frequent and increasingly complex—on February 22, 2005, AQI terrorists executed 5 nearly simultaneous suicide bomber attacks across

Baghdad. That was followed shortly by the deadliest bombing to date—a suicide car bombing in a Shi’a city that killed

122 Iraqis. The frequency increased. For example, AQI

committed 142 bombings in May 2005—79 of which took

place in just 13 days, including 9 in one day, killing 112. In

June alone, AQI murdered 1,347 Iraqi civilians.

11 Rayburn, Vol. 1 at 394.

14

On June 7, 2006, the U.S. Air Force dropped two 500pound guided bombs on Zarqawi’s safehouse, killing him.

He was soon replaced by a senior al-Qaeda leader from

Egypt named Abu Ayyub al-Masri, who was instructed to

establish an emirate in Iraq—the Islamic State of Iraq

(“ISI”). In October 2006, ISI declared the Iraqi city Ramadi

the capital of its “Caliphate.” Killed by Coalition Forces four

years later, he was succeeded by Abu Bakr al-Baghdadi, the

arch-terrorist who would expand the organization’s reach

into Syria, thus creating ISIS.

At the end of 2011, Coalition Forces departed Iraq,

leaving the Iraqi army responsible for the country’s security. It was not up to the task. Abu Bakr Al-Baghdadi

promptly initiated a campaign to reignite civil war in Iraq

and link it to the burgeoning civil war in Syria. ISI’s socalled “Breaking the Walls” campaign emulated Zarqawi’s

tactics, focusing on waves of relentless Vehicle-Borne Improvised Explosive Devices (“VBIED”) attacks from July

2012 to July 2013. In just the first four months of the campaign, ISIS detonated 137 car bombs, with a daily high of

up to 30 car bombs on July 23, 2012. It also added new tactics to its repertoire, such as orchestrating multiple prison

breaks to free its hardened fighters.

In mid-2013, ISI absorbed elements of the al-Nusra

Front, which at the time was the primary FTO fighting the

Syrian government. The result was ISIS—the Islamic State

of Iraq and Syria. As with its prior iterations, ISIS was more

capable than the Iraqi Security Forces. In early June 2014,

ISIS took Mosul, Iraq’s second largest city, and then pressed

its offensive south—by June 11, it entered Tikrit, taking

control of the city center without firing a shot. Iraqi army

personnel at a nearby base fled in panic, but were soon intercepted by ISIS fighters, who then sorted them by religious sect and executed about 1,700 Shi’a troops, dumping

15

their bodies into mass graves. As shown above, mass murder was not the ultimate end; ISIS once again circulated images of the atrocity on social media. By the end of June, ISIS

had taken Fallujah, and was advancing on the Shi’a shrine

city of Samarra.

ISIS, largely unopposed, evolved: “Having won an

equally stunning military victory against the [Iraqi Army],

ISIS followed up with a stunning political and religious

coup. On June 29, the group declared that it had reinstituted the worldwide Caliphate and that its leader, Abu Bakr

al-Baghdadi, would henceforth rule as Caliph Ibrahim.” 12

ISIS also learned to export its terrorist violence around the

world. Within two years after establishing the Caliphate, it

had “conducted or inspired more than 140 terrorist attacks

in 29 countries other than Iraq and Syria, where its carnage

has taken a much deadlier toll. Those attacks have killed at

least 2,043 people and injured thousands more.” 13

As this short history shows, and as further explained

below, ISIS’s social media expertise was central to its ability to create a “Caliphate” and recruit terrorists for attacks

around the world. Indeed, the Coalition Forces in Iraq had

engaged in this new battle space for years. During a sixmonth period in 2007, for example, American forces captured and destroyed eight AQI media labs and recovered a

12 Id. at 596.

13 Tim Lister, et al., ISIS goes global: 143 attacks in 29 countries have

killed 2,043, CNN.com (Feb. 12, 2018) (noting that “[t]he most recent

update [to the article was] published on July 25, 2016”),

https://www.cnn.com/2015/12/17/world/mapping-isis-attacksaround-the-world/index.html. See also Karen Yourish et al., How Many

People Have Been Killed in ISIS Attacks Around the World, N.Y. TIMES (updated

July

16,

2016),

https://www.nytimes.com/interactive/2016/03/25/world/map-isis-attacks-around-the-world.html.

16

total of 23 terabytes of material that had not yet been uploaded to the web. 14 Thus, from the beginning, “AQI/ISI

recognized that while the military side of the war effort was

essential, the ability to justify its actions to the people of

Iraq was crucial.” 15 Indeed, ISIS’s famed “attention to production quality started with AQI/ISI’s efforts.” 16

By 2014, ISI’s “organizational charts convey[ed] a sense

of bureaucracy and organization that rival[ed] that of a

multinational corporation or government agency, not a

group of backwoods fighters.” 17 Its “Ministry of Media” operated both an Arabic language distribution agency (alI’Tisam) and an agency focused on media in English and

other languages (al-Hayat). But ISIS’s strength was amplifying its message through its network of supporters. For

example, one study found that, “at one point, pro-Islamic

State supporters on Twitter posted an estimated 133,442

messages on social media every day.” 18

According to U.S. government information, as of December 31, 2014, at least 19,000 foreign fighters from

more than 90 countries left their home countries to travel

to Syria and Iraq to join ISIS. 19

14 Cori E. Dauber, YouTube War: Fighting in a World of Cameras in

Every Cell Phone and Photoshop on Every Computer, U.S. Army War

College 19 (Nov. 1, 2009).

15 Daniel Milon, Communication Breakdown: Unraveling the Islamic

State’s Media Efforts, Combating Terrorism Center at West Point 1 (Oct.

2016), n. 24, at 3.

16 Id. at 4.

17 Id. at 12.

18 Id. at 19.

19 See FATF Report, Financing of the Terrorist Organization Islamic

State in Iraq and the Levant (ISIL), February 2015, https://www.fatf-

17

Many of those foreign fighters were funneled into individual VBIED cells in Iraq that operated without direct

guidance from ISIS but remained answerable to the organization’s chain of command. Thus, destroying one ISIS cell

or even the command-and-control functions between cells

did not destroy the organization’s overall lethal capability.

Rather, materially damaging ISIS and its capacity to continue its terrorist operations required a full spectrum effort

directed at the organization as a whole. Our nation’s counterterrorism efforts therefore did not rely solely on identifying then killing or capturing the operatives directly responsible for specific attacks. Our efforts also targeted the

organization and its infrastructure, a strategy that became

increasingly important when it proved impossible to trace

specific attacks to particular nodes within the organization’s network, as often was the case.

B. ISIS Has Expanded and Raised Funds Through

Both Intrinsically Criminal Means and “Ordinary” Business

Terrorism is a deceptively expensive business; running

a proto-state, even a rogue one, is even more so. For ISIS,

administering territory meant providing basic necessities

to the local population as well as paying its fighters an estimated average of $350-500 per month. With perhaps

30,000 fighters deployed at ISIS’s height, simply paying its

cadres cost approximately $15 million a month in payroll

alone.

gafi.org/media/fatf/documents/reports/Financing-of-the-terroristorganisation-ISIL.pdf.

18

ISIS raised money in a number of ways. From its considerable territory, ISIS tapped revenue streams unavailable

to many other terrorist groups. Some of those methods

were overtly illegal (and profoundly evil), such as selling

women and children—largely kidnapped from Iraq’s

Yazidi Christian communities—as sex slaves. It also kidnapped civilians for ransom, sold drugs, robbed banks, and

looted antiquities from museums and archaeological sites,

stealing and selling off Iraq’s and Syria’s cultural heritage.

But ISIS also engaged in ostensibly routine commercial

activities. For example, after the fall of Mosul in 2014, with

much of Western and Northern Iraq under its control, ISIS

accessed the international financial system through Iraqi

bank branches within its territory. For approximately a

year, ISIS participated in the Iraqi Central Bank’s currency

auctions, providing it access to U.S. dollars in cash. 20 ISIS

also controlled bank branches in Syria that remained operational while it controlled that territory. Between June and

September 2014, ISIS also captured key oil fields and refineries in northeastern Syria and northern Iraq and controlled key roads and other centers of commerce. 21 Its oil

revenues were once estimated to have reached $250 million per year. 22 It also raised funds from conducting ordinary business such as running fish farms and selling used

20 Eventually, the Central Bank of Iraq (CBI) halted the distribution of

government salary payments in ISIS territory and blocked bank

branches and currency exchange houses in ISIS-controlled territory

from accessing its currency auctions. See CONG. RES. SERV., COUNTERTERISSUES: ISLAMIC STATE FINANCING (Mar. 2, 2017),

RORISM

https://apps.dtic.mil/sti/pdfs/AD1171863.pdf.

21 Tom Keatinge, How the Islamic State Sustains Itself: The Importance

of the War Economy in Syria and Iraq, RUSI Analysis (Aug. 29, 2014).

22 Yeganeh Torbati, Islamic State Yearly Oil Revenue Halved to $250

million: U.S. Official, REUTERS (May 11, 2016).

19

cars. 23 The UN Food and Agriculture Organization estimates that at one time ISIS controlled over 40 percent of

Iraq’s wheat cultivating land and took control of multiple

government-operated wheat silos in the most fertile areas

in Iraq. 24

ISIS also excelled in fundraising online, principally

through social media. In 2014, for example, then-U.S. Under

Secretary for Terrorism and Financial Intelligence David

Cohen explained:

Constraining this flow of funds is particularly challenging in an era when social media allows anyone

with an Internet connection to set himself up as an

international terrorist financier…. Innovations in

traditional modes of terrorist fundraising, particularly through the use of social media, will continue

to pose new challenges. As we have seen in the context of Syria, fundraisers can now use social media

handles instead of face-to-face solicitations, and

sympathetic donors can bypass a risky rendezvous

in favor of a simple remote hashtag search. 25

23 Colin P. Clarke, et al., Financial Futures of the Islamic State of Iraq

and

the

Levant,

RAND

Corp.

(2017),

https://apps.dtic.mil/sti/pdfs/AD1084730.pdf.

24 See FAFTF REPORT, FINANCING OF THE TERRORIST ORGANIZATION ISLAMIC

STATE IN IRAQ AND THE LEVANT (ISIL) 15 (Feb. 2015), https://www.fatfgafi.org/media/fatf/documents/reports/Financing-of-the-terroristorganisation-ISIL.pdf (citing UN Food and Agriculture Organization

(2014)).

25 Press Release, U.S. Treasury Dep’t, Remarks of Under Secretary for

Terrorism and Financial Intelligence David Cohen before the Center for

a New American Security on ‘Confronting New Threats in Terrorist Financing (Mar. 4, 2014).

20

Plaintiffs have plausibly alleged how ISIS used Defendants’ platforms for this purpose. See J.A. 79-81. Even now,

with ISIS’s “Caliphate” destroyed, it remains active around

the world and continues to raise funds and recruit adherents through social media platforms.

ARGUMENT

I. 18 U.S.C. Section 2333(d)(2) Reaches Substantial

Assistance in the Form of Material Support to Either

the Act of International Terrorism or the FTO that

Committed It.

The counterterrorism statues at issue render Defendants liable for the material support they knowingly provided (and are providing) to ISIS through their social media

platforms. While 18 U.S.C. Section 2333(a) is defined by

civil tort principles, the subsequent enactments of 18 U.S.C.

§§ 2339A and 2339B reinforce the conclusion that Section

2333(d) cannot properly be limited to those who personally commit acts of international terrorism or knowingly

assist a specific attack. Indeed, such a construction would

sharply curtail U.S. counterterrorism efforts.

The anti-terrorism policies embodied in Section 2339B

in particular reflect a holistic legislative scheme involving

claims arising out of material support, “directly or indirectly, to foreign organizations or persons that engage in

terrorist activities against the United States.” JASTA § 2(b).

Thus, in order to carry out the important Congressional

purpose of deterring terrorism—reflected in both the civil

provisions of Sections 2333(a) and (d) and the criminal

provisions set forth in Sections 2339A and 2339B—tort liability under Section 2333(d)(2) reaches actors such as Defendants who knowingly provide substantial assistance to

terrorist organizations or their agents. As discussed above,

21

targeting ISIS at the organizational level is key to hampering its efforts. ISIS is uniquely agile and has weaponized Defendants’ services to post and popularize its brutal attacks.

If, as Defendants contend, liability were only to extend to

the immediate actions surrounding an isolated event, the

statute would become purely ornamental. After all, specific

attacks are generally only known to a small cell of undefinable people. Accordingly, to achieve its stated counterterrorism purpose, JASTA must be construed broadly and attach liability to anyone knowingly providing material support to terrorist organizations.

Indeed, in enacting the ATA’s multiple statutory provisions, Congress banned a broad array of material support

because, as Amici well know, the risk is too great that any

such support will ultimately further the terrorist groups’

violent activities, regardless of an aider-and abettor’s intent.

The key language within Section 2333(d)(2) states:

[L]iability may be asserted as to any person

who aids and abets, by knowingly providing

substantial assistance, or who conspires

with the person who committed such an act

of international terrorism.

The text is relatively straightforward, but Defendants

creatively argue that it should be read to, at a minimum,

add the word “to,” as well as a comma, to give the statute

its proper meaning:

[L]iability may be asserted as to any person

who aids and abets, by knowingly providing

substantial assistance [to], or who conspires

with the person who committed[,] such an

act of international terrorism.

22

According to Defendants, the extra word and punctuation are necessarily implied because the phrase “the

person” is the object of “conspires with,” not “aids and

abets.” See Facebook/Google Br. 24-25. But such a modification would result in applying very different liability theories to aiding and abetting, on the one hand, and conspiracy, on the other. Reading the text as Defendants urge

would mean that acts of terrorism must be the object (not

just the foreseeable consequence) of an aider-and-abettor’s knowing assistance, but acts of terrorism need not be

the object of a co-conspirator’s participation in unlawful

agreement. This suggests that Congress deliberately set a

different standard for JASTA aiding-and-abetting liability

than for conspiracy. In fact, neither form of secondary liability requires the wrongful act causing plaintiff’s injury to

be the object of the secondary tortfeasor’s tortious or illegal conduct. In Amici’s experience, this interpretation is required to effectuate the statute’s purpose. If the intent is to

meaningfully deter assistance to FTOs and their agents, it

is not enough to outlaw direct assistance to a singular act

of terrorism. Given ISIS’s brutal record of terrorism, which

includes kidnappings, pillaging, mass rape, beheadings,

bombings, enslaving and genocide, the provision of any

material support which facilitates their continued existence must be thwarted.

Indeed, any alleged ambiguity in the text is resolved by

the express purpose of the statute: to provide the broadest

possible basis for relief “against persons, [and] entities …

that have provided material support, directly or indirectly,

to foreign organizations or persons that engage in terrorist

activities against the United States,” not just support to the

acts or activities themselves, as Defendants would have it.

JASTA §2(b) (emphasis added). See also JASTA, §2(a)(6)

23

(“Persons, entities, or countries that knowingly or recklessly contribute material support or resources, directly or

indirectly, to persons or organizations that pose a significant risk of committing acts of terrorism … should reasonably anticipate being brought to court in the United States to

answer for such activities.”) (emphasis added). As Amici

well know, this organization-based approach is the only

way to meaningfully combat these complex and everchanging terrorist groups.

Apart from the improper and unnecessary textual gymnastics, Defendants’ preferred statutory construction also

runs contrary to the framework established in Halberstam,

which, as Petitioner acknowledges, is controlling. Twitter

Br. 3. Defendants’ material assistance to ISIS as an organization renders them liable, and nothing in JASTA or in Halberstam curtails liability in the way Defendants suggest.

The statutory text uses the words “knowingly providing

substantial assistance” – the same language used in Halberstam: “the defendant must knowingly and substantially

assist the principal violation.” 705 F.2d at 477. However,

the Government now argues that “Section 2333(d)’s

‘knowing’ requirement modifies the defendant’s own substantial assistance to the commission of a terrorist act that

injured the plaintiff.” U.S. Amicus Br. 18 (emphasis in original). But this is erroneous — as the Department of Justice

itself explained in Boim:

[T]he “principal violation” language in Halberstam does not refer to the direct, specific

cause of injury … because in Halberstam itself

the defendant was found liable to the family of

a murder victim when her assistance to the

murderer consisted of helping him to launder

24

the proceeds of his ongoing series of burglaries; the defendant was not present when the

murder occurred, and knew nothing about it.

U.S. Amicus Br., Boim, No. 05-1815, et al., 2008 WL

3993242, at *18 n.3 (7th Cir. Aug. 21, 2008) (citing 705 F.2d

at 488) (emphasis added).

Indeed, in Halberstam the “act assisted [was] here a

long-running burglary enterprise”—not a murder. 705

F.2d at 488. Similarly, there was no suggestion in that case

that the defendant provided her post-burglary services to

the particular crime that resulted in the murder. Indeed, it

was sufficient that she provided substantial assistance to

a series of crimes committed by her boyfriend – knowing

that “he was involved in some type of personal property

crime at night—whether as a fence, burglar, or armed robber made no difference.” Id.; see also id. at 484-85. Nor was

her assistance even “overwhelming as to any given burglary in the five-year life of this criminal operation,” much

less the burglary that ended in murder. Id. at 488. The court

even noted that “the aiding-abetting action may also be

more distant in time and location and still be substantial

enough to create liability.” Id. at 482. In this case, over the

course of several years, Defendants opened their platforms

to ISIS and its agents to freely advertise, recruit, fundraise,

and publicize violent crimes against humanity. Accordingly, as in Halberstam, here, Defendants’ aiding and abetting liability attaches due to their substantial assistance to

the criminal enterprise.

Based on the plain language of the statute, the express statutory purpose, and the controlling findings in

Halberstam, the most plausible and consistent reading of

the relevant statutory text is that a defendant may be sec-

25

ondarily liable under the ATA where he (1) knowingly provides substantial assistance to the “person” (as defined by

§2333(d)(1)) who committed the act of international terrorism that injured the plaintiff or (2) conspires with the

“person” who commits the act of international terrorism

that injured the plaintiff. This is also the construction of the

text that corresponds to the real-life terrorism challenge

Amici faced on the ground: not only from the operatives

who actually conducted the attacks (often impossible to locate or killed in the attacks), but from the organization that

recruited, trained, financed, and/or equipped them, and

therefore also from the infrastructure that supported them.

However, this does not create the “slippery slope” of unintended (and unwarranted) liability that Defendants caution. See, e.g., Twitter Br. at 2 (suggesting that Defendants’

liability would expose “humanitarian organizations to staggering terrorism liability”). On the contrary, liability for

adding-and-abetting is limited to injuries from attacks that

were a reasonably foreseeable risk of the tortious or illegal

acts a defendant assisted, and conspiracy liability is limited

to injuries caused by acts performed pursuant to or in furtherance of the conspiracy. See Halberstam, 705 F.2d at

481.

II. Conduct that Appears “Neutral Standing Alone”

Can Aid and Abet Acts of International Terrorism.

Defendants also argue that because they offer mere “ordinary services,” they cannot be liable for a terrorist organization’s use thereof. Defendants are mistaken. In Halberstam, the defendant was found liable for “a natural and

foreseeable consequence of the activity” she helped the

principal tortfeasor undertake, even though she had no

knowledge of those consequences (indeed, neither did her

burglar boyfriend—the resulting murder was unplanned).

See 705 F.2d at 488. In that case, Hamilton, who assisted

26

what she claimed was her boyfriend’s antiques business,

did not know about the murder—or even the burglary:

It was not necessary that Hamilton knew specifically

that Welch was committing burglaries. Rather,

when she assisted him, it was enough that she knew

he was involved in some type of personal property

crime at night—whether as a fence, burglar, or

armed robber made no difference—because violence and killing is a foreseeable risk in any of these

enterprises.

Id.

Hamilton provided bookkeeping and banking services

for her boyfriend, which “acts were neutral standing

alone.” Id. However, the court reasoned that Hamilton’s

knowledge of her boyfriend’s “criminal doings” could be inferred from the fact that she knew “something illegal was

afoot.” Id. at 486. Thus, even though Hamilton could not

have had foreknowledge of an unplanned murder (let alone

an intent to commit murder), she “had a general awareness

of her role in a continuing criminal enterprise.” Id. at 488.

Petitioner claims that this case involves Defendants “accused of merely failing to prevent misuse of … widely available, ordinary services” and that in contrast, the defendant

in Halberstam “was a classic aider-abettor whose

knowledge was evident from having closely participated in

the principal wrong”—she provided “services in an unusual way under unusual circumstances.” Twitter Br. 39

(quoting Halberstam, 705 F.2d at 487). But this ignores the

court’s reasoning. Notably, the Halberstam court described

the defendant as “passive but compliant” and, accordingly,

“a willing partner in [the] criminal activities.” 705 F.2d at

474. The same can be said of Defendants here.

27

All other things being equal, services rendered “in an

unusual way under unusual circumstances” provide a

stronger inference of “general awareness” than those that

appear routine. But if a defendant is aware of its role in illegal activities, the fact that the assistance is “neutral standing alone” becomes irrelevant.

Amici have witnessed this firsthand. For example, secondary tortfeasors who knowingly facilitated ISIS’s participation in Iraqi Central Bank currency auctions, its funds

transfers through ISIS-controlled bank branches in Syria or

those who knowingly helped it sell the wheat it confiscated

from Iraqi storage silos are no less civilly liable than those

who smuggled oil or engaged in other more “unusual” activities. If they acted with awareness that they were assisting ISIS, their conduct is definitionally illegal under Section

2339B and therefore satisfies Section 2333(d)(2)’s scienter requirement. And this makes sense—otherwise aidersand-abettors who knowingly facilitate the funding, growth,

and proliferation of a gruesome terrorist organization face

no meaningful disincentives to doing so.

As applied here, the complaint plausibly alleges that Defendants were aware of their platforms’ use as breeding

grounds for terrorist activities, as evidenced by countless

warnings from the United States government, The New

York Times, The Wall Street Journal, the BBC, and others. See

J.A. at 88-90 [FAC]. Regardless of Defendants’ subjective intent, no matter the “ordinary” nature of the service, following the reasoning in Halberstam, Defendants are liable for

the reasonably foreseeable results of their substantial assistance to ISIS. See Halberstam, 705 F.2d at 482 (finding,

in the context of vicarious liability, “the contributing activity itself need not be so obviously nefarious as cheering a

beating or prodding someone to drive recklessly.”) Were

the Court to hold otherwise, Amici fear that countless aider-

28

and-abettors of terrorism will escape liability because the

services they rendered to FTOs were “ordinary,” even if it

played a substantial role in promoting terrorism.

III.

Defendants’ Knowing Allowance of ISIS’s Use of

Their Services Constituted Substantial Assistance Given Their Amount and Kind, and the

Horrific Nature of the Acts They Assisted.

Finally, Defendants cannot meaningfully refute that

their platforms provided “substantial assistance” to ISIS

and its predecessor, AQI. Halberstam delineated six factors

that govern the substantiality analysis: (i) the nature of the

act assisted, (ii) the amount and kind of assistance, (iii) the

defendant’s presence at the time of the tort, (iv) the defendant’s relationship to the tortious actor, (v) the defendant’s

state of mind, and (vi) the duration of assistance. 705 F.2d

at 483-84. Of these, the first and second are the most important, and the factors with which Amici have firsthand

experience.

In assessing whether assistance was “substantial,” the

first factor courts look to is the nature of the act assisted.

Id. Here, the “acts assisted” include the global dissemination of ISIS’s propaganda, facilitating recruitment, allowing

fundraising campaigns, and showcasing content depicting

torture and murder. As difficult as it may be to consider

even one, an example suffices. Soon after kidnapping and

then videorecording the beheading of Nicholas Berg, AQI

kidnapped American civilian contractors Jack Armstrong

and Jack Hensley, and videotaped their beheadings as well.

The murders were brutal—the District Court for the District of Columbia described evidence that “each man was

alive when his captors began to saw upon his neck with a

29

sharp-bladed, but relatively short tool,” and the men likely

remained conscious for “several minutes,” because “[t]he

cutting began on the right side of each man’s neck and continued, around the back of the neck without severing the

spinal cord, until it reached the left carotid artery” and the

victims lost consciousness. Gates, 580 F. Supp. 2d at 73–74.

These early forays into mass media barbarism would further evolve over time and become a feature of AQI and later

ISIS’s propaganda and recruiting. See, e.g., J.A. 50-52. The

nature of the acts assisted, (in just one example,) widely

disseminating contents and imagery of kidnappings and

beheadings in furtherance of a recognized foreign terrorist

organization, could not be more severe.

As to the second factor in the substantiality analysis, the

amount and kind of assistance, the Court of Appeal was undoubtedly correct in crediting Plaintiffs’ plausible allegations that “defendants provided services that were central

to ISIS’s growth and expansion, and that this assistance was

provided over many years,” Pet. App. 65a. As described

above, ISIS’s reign of terror would not have been possible,

not in kind nor in scope, absent Defendants’ social media

platforms. Moreover, “a defendant’s responsibility for the

same amount of assistance increases with … the seriousness of the foreseeable consequences.” Halberstam, 705

F.2d at 484. As AQI and then ISIS grew to understand the

almost unlimited potential for growth associated with use

of the internet, their use of social media, including and especially Defendants’ platforms, steadily increased.

By 2011, AQI/ISIS transitioned away from satellite television networks like Al Jazeera to an emphasis on social

media which, among other things, freed them to spread

their content independently.

30

What made ISIS’s social media strategy so effective was

the same thing that makes the Defendants’ willingness to

permit ISIS’s use of their services so dangerous: the capacity to spread the message in the open without needing intermediaries.

As the Department of Defense explained:

ISIS’s handle on the dissemination of information

and propaganda is perhaps its greatest strength, and

strongest contribution to its growth in power. The

group has embraced social media as a weapon of

war, using it to spread official messages, recruit,

fundraise, and network. Its campaigns have the benefit of being widespread and multidimensional,

bearing a massive effect. 26

Here, ISIS’s “widespread” “dissemination” of propaganda, indeed, utilized as a “weapon of war,” came thanks

to Defendants’ social media platforms. Defendants’ facilitation of a multi-year online terrorist campaign is certainly

substantial enough to warrant liability under the Halberstam factors.

26 Vitale and Keagle, supra at 6.

31

CONCLUSION

This Court should not depart from the purpose, intent,

and plain language of JASTA to suit Defendants’ interests.

Based on the military experience of Amici, which includes

direct and prolonged exposure to the horrors of ISIS and

other FTOs, JASTA should apply broadly to anyone who

knowingly aids and abets a terrorist organization, not

solely to those who aid and abet a specific act of terrorism.

Otherwise, the statute cannot achieve its intended purpose

in combatting those who support FTOs. Accordingly, this

Court should affirm the decision of the Court of Appeals.

Respectfully submitted,

Glenn A. Danas

CLARKSON LAW FIRM, P.C.

22525 Pacific Coast Highway

Malibu, CA 90265

Telephone: (213) 788-4050

Facsimile: (213) 788-4070

gdanas@clarksonlawfirm.com

Counsel for Amici Curiae

General John Campbell, Ret.;

General James D. Thurman,

Ret.;

Lieutenant General James O.

Barclay III, Ret.;

Lieutenant General Jeff

Buchanan, Ret.;

Lieutenant General Michael L.

Oates, Ret.;

32

Lieutenant General James

Terry, Ret.;

Major General Jeffrey J.

Schloesser, Ret.;

Major General Jefforey A. Smith,

Ret.;

Brigadier General Scott E.

Brower, Ret.;

Brigadier General William H.

Forrester, Ret.

January 18, 2023

APPENDIX

1a

APPENDIX TABLE OF CONTENTS

BIOGRAPHIES OF AMICI ................................................................2a

2a

APPENDIX: BIOGRAPHIES OF AMICI

General James D. Thurman, Retired. General

Thurman retired from the United States Army in

2013 after more than 38 years of service. He was

Commander of US Forces Korea from 2011 to 2013

and Commander, US Army Forces Command 2010

to 2011. He served as the Army G3/5/7 from 2007

to 2010. He commanded 4th Infantry Division at Fort

Hood, Texas and Baghdad, Iraq from 2004 until January 2007. During that period, he deployed the Division to Iraq and in 2006 assumed Command of Multi

Division Baghdad with responsibility for all coalition

operations in Baghdad. He was also the Director of Operations for the Coalition Land Component Command

for Operation Iraqi Freedom in 2003.

Lieutenant General James 0. Barclay III,

Retired. General Barclay retired from the United

States Army in 2016 after 36 years of service. He

served as an Assistant Division Commander (Maneuver), 42nd Infantry Division and as Executive Officer

to the Commander, Multi-National Force - Iraq during Operation Iraqi Freedom. He later served as Vice

Chief of Staff G-8, U.S. Army.

Lieutenant General Jeff Buchanan, Retired. General Buchanan retired from the United States Army in

2019 after 37 years of service. In 2003-2004 He served

as the Director of Operations (C3), Coalition Military

Assistance Training Team in Iraq from 2003-2004. Between 2004 and 2006, he commanded the 2nd Brigade,

3a

75th Division (TSB) and deployed a second time to Iraq

to serve as an advisor to the Iraqi Special Police Commando Division. From 2007 through 2009, he served

as Deputy Commanding General for the 10th Mountain Division including a deployment to Iraq as the

Multi-National Division- South. Following an assignment as the G-3/5/7 for the United States Army Reserve Command, he returned to Iraq for his fourth

tour there as the Director of Strategic Effects (J9),

U.S. Forces Iraq, from July 2010 to December 2011.

He later served as the Resolute Support DCOS-Operations/Deputy Commander (Operations) for US

Forces-Afghanistan in 2015-2016.

Lieutenant General Michael L. Oates, Retired.

General Oates retired from the United States Army

in 2011 after 32 years of service. From November

2003 through March 2004, he served as Chief of

Staff to the Deputy Administrator and Chief Operating Officer, Coalition Provisional Authority

("CPA") in Baghdad. From June 2004 to February

2007, he served as Deputy Commanding General

(Operations), 101st Airborne Division at Fort Campbell, Kentucky and Operation Iraqi Freedom, Iraq. He

assumed command of the 10th Mountain Division in

April 2007, and in June 2008 he assumed command

of Multi-National Division Center/South, Operation

Iraqi Freedom, Iraq. From December 2009 through

April 2011, he served as the Director of the Joint

Improvised Explosive Device Defeat Organization

(JIEDDO).

Lieutenant General James Terry, Retired. General

Terry retired from the United States Army in 2015

4a

after more than 37 years of service. From 2013 to

2015, he served as the Commander of United States

Army Central. From 2014 to 2015, he concurrently

served as the First Commander of Combined Joint

Task Force – Operation Inherent Resolve in Iraq

and Syria. From 2012 to 2013, he Commanded

V Corps, U.S. Army and was the last V Corps

Commander. He deployed V Corps to Afghanistan

where the ISAF Joint Command (IJC) was formed

around it. From 2009 to 2011, he commanded the 10th

Mountain Division and Fort Drum, New York. He deployed the 10th Mountain Division Headquarters to

Kandahar, Afghanistan where he served as the

CTF-10, Regional Command South, Commander.

From 2004 to 2007, he served as the Deputy Division Commander for Operations, 10th Mountain Division, Fort Drum, N.Y. In 2006, he deployed with the

10th Mountain Division to Regional Command East,

Afghanistan, where he served as the Deputy Commander for Operations, Combined Joint Task Force76. From 2003 to 2004, he served as the Coalition

Forces Land Forces Component, Operations Officer

- Operation Iraqi Freedom.

Major General Brian Winski, Retired. General

Winski retired in 2021 from the United States Army

after 37 years of service. He was an infantry battalion

executive officer in the 101st Airborne Division during

the invasion of Iraq in 2003, and later served as an infantry battalion commander in the 101st Airborne Division in Iraq and Fort Campbell KY from 2004 to

2007, the 101st Airborne Division operations officer/CJTF J3 in Afghanistan from August 2008 to

5a

July 2009, and brigade commander in the 1st Cavalry

Division in Mosul, Iraq from July 2009 to December

2011. He later served as the Commanding General,

101st Airborne Division (Air Assault) from 2020 to

2021.

Brigadier General Scott E. Brower, Retired. General Brower retired in 2018 from the United States

Army after 29 years of service. His served in U.S.

Army Special Forces in a variety of command roles

throughout his career including three leadership roles

in the Green Berets. From 2004 to 2006, General

Brower was assigned to United States Special Operations Command, Tampa, Florida, where he served as

the Executive Officer to Director, Center for Special

Operations and as the CENTCOM Unconventional

Warfare/Preparation of the Environment Desk Officer.

Subsequently, he again served as the Group Executive

Officer, followed by assignment as the J3 (Operations)

for Combined Joint Special Operations Task Force –

Arabian Peninsula. He also served as the Chief of Staff

for the United States Army Special Operations Command, at Fort Bragg, from August 2013 to July 2014,

followed by a deployment to Islamabad Pakistan,

where he served as the Deputy for Operations, Office

of Defense Representative – Pakistan.

Brigadier General William H. Forrester, Retired. General Forrester retired in 2009 from the

United States Army after 32 years of service. He commanded the 159th Combat Aviation Brigade of the

101st Airborne Division in 2001 and was Commander during the invasion of Iraq in March 2003.

He was the Deputy Commander of the 2nd Infantry

6a

Division in South Korea (2005-2006) and Commanding General of the Army Combat Readiness/Safety

Center 2006 - 2008.