Amicus Curiae Brief — Tzvi Weiss, et al., Petitioners v. National Westminster Bank, PLC
Supreme Court briefOct 8, 2021
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No. 21-381
In the Supreme Court of the United States
__________________
TZVI WEISS, ET AL.,
Petitioners,
v.
NATIONAL WESTMINSTER BANK PLC,
Respondent.
__________________
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Second Circuit
__________________
BRIEF ON BEHALF OF JEWISH ORGANIZATIONS
AND ALLIES, AS AMICI CURIAE,
IN SUPPORT OF PETITIONERS
__________________
MORDECHAI BISER
AGUDATH ISRAEL OF AMERICA
42 Broadway, 14th Floor
New York, NY 10004
ABBA COHEN
AGUDATH ISRAEL OF AMERICA
1730 Rhode Island Avenue NW
Suite 1004
Washington, DC 20036
ARTHUR R. TRALDI
ROBERT GARSON
ALYSSA N. GRZESH
AMERICAN ASSOCIATION OF
JEWISH LAWYERS AND JURISTS
888 17th Street NW, Suite 400
Washington, D.C. 20006
JUSTIN C. DANILEWITZ
Counsel of Record
A. MAYER KOHN
SAUL EWING ARNSTEIN & LEHR LLP
Centre Square West
1500 Market Street, 38th Floor
Philadelphia, PA 19102
(215) 972 1977
justin.danilewitz@saul.com
CHRISTIE R. MCGUINNESS
SAUL EWING ARNSTEIN & LEHR LLP
1270 Avenue of the Americas
Suite 2005
New York, NY 10020
Counsel for Amici Curiae
Additional Amici Curiae Inside Cover
STEVEN M. FREEMAN
ANTI-DEFAMATION LEAGUE
605 Third Avenue
New York, NY 10158
DILLON L. HOSIER,
CHAIRMAN AND CEO
ISRAELI-AMERICAN CIVIC
ACTION NETWORK
325 North Maple Drive. #1614
Beverly Hills, CA 90213
GERARD FILITTI
THE LAWFARE PROJECT
633 Third Avenue, 21st Floor
New York, NY 10017
NATHAN J. DIAMENT
UNION OF ORTHODOX JEWISH
CONGREGATIONS OF AMERICA
1730 Rhode Island Avenue, NW
Suite 509
Washington DC 20036
RHODA SMOLOW, PRESIDENT
NAOMI ADLER, CEO
HADASSAH
40 Wall Street
New York, NY 10005
FLAVIA SEVALD, CEO
JERUSALEM INSTITUTE OF JUSTICE
P.O. Box 2708
Jerusalem, Israel 9102602
JONATHAN M. ROTTER
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite
2100
Los Angeles, California 90067
Counsel for StandWithUs
MARC GREENDORFER
ZACHOR LEGAL INSTITUTE
P.O. Box 6774
Bozeman, MT 59771
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . 1
Agudath Israel of America . . . . . . . . . . . . . . . . . . 2
American Association of Jewish Lawyers and
Jurists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Anti-Defamation League. . . . . . . . . . . . . . . . 3
Hadassah. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Israeli-American Civic Action Network. . . . . . . . 3
Jerusalem Institute of Justice . . . . . . . . . . . . . . . 4
The Lawfare Project . . . . . . . . . . . . . . . . . . . . . . . 4
StandWithUs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Union of Orthodox Jewish Congregations of
America . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Zachor Legal Institute . . . . . . . . . . . . . . . . . . . . . 5
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 9
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
I. The Second Circuit’s Decision Conflicts With
The D.C. Circuit’s Civil Aiding And Abetting
Standard As Incorporated By Congress In
JASTA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ii
A. The Second Circuit Departed from the D.C.
Circuit’s “General Awareness” Requirement
for Aiding and Abetting Liability . . . . . . . . . 12
B. At The Time, Hamas was (and Remains) a
Known FTO, and Used Charities Like
Interpal to Evade Terror Funding
Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . 15
C. NatWest’s General Awareness of Interpal’s
Connections to Hamas is Plain from the
Record Below and Clearly Satisfied
Halberstam . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1. NatWest’s
constructive
“general
awareness” of the Interpal-Hamas
connection, and its willful blindness to
that nexus, is apparent from publicly
available contemporaneous resources. . . . . 18
2. NatWest’s actual “general awareness” of
the Interpal-Hamas connection is
documented in NatWest’s compliance files
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
II. The Second Circuit’s Decision Conflicts With
The Common Sense Recognition—By This Court
And The Seventh Circuit—That Terrorist
Violence Is A Foreseeable Result Of Any
Material Support To An FTO . . . . . . . . . . . . . . . 24
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
iii
TABLE OF AUTHORITIES
PAGE(S)
CASES
Boim v. Holy Land Foundation for Relief &
Development, 549 F.3d 685
(7th Cir. 2008) (en banc) . . . . . . . . . . 10, 14, 26, 27
Halberstam v. Welch,
705 F.2d 472 (D.C. Cir. 1983). . . . . . . . . . . passim
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010). . . . . . . . . . . . . . . . . . . . . passim
Kaplan v. Lebanese Canadian Bank, SAL,
999 F.3d 842 (2d Cir. 2021) . . . . . . . . . . . . . . . . 13
Strauss v. Crédit Lyonnais, S.A.,
842 F. App’x 701 (2d Cir. 2021) . . . . . . . . . . . . . . 9
Weiss v. National Westminster Bank PLC,
768 F.3d 202 (2d Cir. 2014) . . . . . . . . . . . . . . . . 23
Weiss v. National Westminster Bank PLC,
278 F. Supp. 3d 636 (E.D.N.Y. 2017) . . . . . . . . . 23
Weiss v. National Westminster Bank, PLC,
381 F. Supp. 3d 223 (E.D.N.Y. 2019) . . . . . . . 8, 14
Weiss v. National Westminster Bank, PLC,
993 F.3d 144 (2d Cir. 2021) . . . . . . . . . . . . passim
STATUTES, LEGISLATION, RULES, AND ORDERS
18 U.S.C. 2333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
iv
Executive Order 12947—Prohibiting Transactions
With Terrorists Who Threaten To Disrupt the
Middle East Peace Process, 60 Fed. Reg. 5079
(Jan. 25, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Justice Against Sponsors Of Terrorism Act, Pub. L.
No. 114-222, 130 Stat. 852 (2016) . . . . . . . passim
SUP. CT. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SUP. CT. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
OTHER AUTHORITIES
Adrian Lee & Michael Evans, MI5 Traces Network
of Hamas Funding, THE TIMES (Mar. 11, 1996) . . 18
Al-Aqsa TV (Hamas/Gaza), Fathi Hammad Hamas
Political Bureau, MEMRI (July 12, 2019) . . . . . . . 8
Al-Aqsa TV (Hamas/Gaza), Hamas Political Bureau
Member and Former Minister of the Interior
Fathi Hammad, MEMRI (May 7, 2021). . . . . . . . . 8
Al-Jazeera Network (Qatar), Hamas Celebration in
Honor of its Members Killed in Recent
Fighting—Speech of Son of Jamal Al-Zabeda,
MEMRI (May 24, 2021) . . . . . . . . . . . . . . . . . . . . . 8
Dennis M. Lormel, Chief Financial Crimes Sections,
Federal Bureau of Investigations, Speech before
House Committee on Financial Services (Oct. 3,
2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Hamas Charter (1988) . . . . . . . . . . . . . . . . . . . . . . 7, 8
v
Israeli Missions Around the World, Terrorist
Misuse of Medical Services to Further Terrorist
Activity (MFA Library August 26, 2002) . . . . . . 16
John Kifner, Roots of Terror: A special report: Alms
and Arms: Tactics in a Holy War, N.Y. TIMES
(Mar. 15, 1996) . . . . . . . . . . . . . . . . . . . . . . . 19, 25
Julian Borger, Close Trust, Israel Pleads: Britain is
Being Asked to Clamp Down on Palestinian
Fundraisers, THE GUARDIAN (Aug. 7, 1997) . . . 19
Julian Ozanne & Clay Harris, Palestinian charity
in UK under attack, FINANCIAL TIMES (Mar. 13,
1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Majeda El-Batsch, Parents Fear Their Children
Could Take on Suicide Missions (Agence FrancePresse July 8, 2003) . . . . . . . . . . . . . . . . . . . . . . 16
Matthew Levitt, Hamas: Politics, Charity, and
Terrorism in the Service of Jihad (Yale
University Press 2006) . . . . . . . . . . . . . . . . . 16, 25
Press Release, U.S. Dep’t of Treasury, U.S.
Designates Five Charities Funding Hamas and
Six Senior Hamas Leaders as Terrorist Entities
(Aug. 23, 2003) . . . . . . . . . . . . . . . . . . 7, 10, 16, 17
Stewart Tendler & Christopher Walker, MI5 Study
‘Charity Cash Link to Hamas’, THE TIMES (Mar.
6, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
U.S. Dep’t of State Bureau of Counterterrorism,
Designated Foreign Terrorist Organizations. . . . . 11
vi
Water Rodgers, Hamas admits to fatal Israeli bus
bombings, CNN.COM (Feb. 25, 1996). . . . . . . . . . 19
vii
Dedicated to the memory of the many innocent men,
women, and children whose lives were prematurely
taken at the hands of Hamas terrorists.
יהי זכרם ברוך
לעולם ועד
May their memories be forever blessed.
. ָ֙שׁבֶ ר בִּ גְ בוּלָ ֑יִ וְ קָ ָ֚ראת יְ שׁוּﬠָה
֖ ֶ ֽל ֹא־יִ שָּׁ ֨ ַמע ֚עוֹד חָ מָ ס֙ בְּ אַ ְר ֔ ֵצ שֹׁ֥ ד ו
ה.וּשׁﬠ ַ ָ֖ריִ ְתּהִ ָ ֽלּה
ְ ִֽחוֹמֹ ֔ ַתי
יח:ישעיהו ס
Violence [in Hebrew, hamas] shall no longer be heard
in your land, neither robbery nor destruction within your
borders, and you shall call salvation your walls and your
gates praise [in Hebrew, Tehilla].
Isaiah 60:18
1
INTEREST OF AMICI CURIAE1
Amici reflect a broad spectrum of American Jewish
organizations and their allies, whose members include
American victims of Hamas terrorist attacks in Israel
and the families of those victims. Though the missions
of Amici vary and their views on some issues may
differ, they are united in their shared interest in
ensuring that all victims of international terrorism are
compensated to the fullest extent allowed by the
secondary liability provision of the Justice Against
Sponsors Of Terrorism Act (JASTA). See JASTA, Pub.
L. No. 114-222, § 2, 130 Stat. 852 (2016) (noting
purpose of JASTA “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”).
While no financial compensation can ever make
terrorism victims or their loved ones whole, JASTA’s
secondary liability provision offers one of very few
avenues to hold accountable both terrorist
organizations and their aiders and abettors, and to
deter their future illegal conduct.
1
No counsel for any party either (a) authored this brief in whole or
in part or (b) made a monetary contribution intended to fund the
preparation or submission of the brief. See SUP. CT. R. 37.6. All
parties received timely notice and have consented to the filing of
this brief.
2
Agudath Israel of America (Agudath Israel).
Agudath Israel, founded in 1922, is a national
grassroots Orthodox Jewish organization. Among its
other functions and activities, Agudath Israel
articulates and advances the position of the Orthodox
Jewish community on a broad range of legal issues
affecting religious rights and religious liberty. Agudath
Israel regularly intervenes at all levels of government,
including through the submission of or participation in
amicus curiae briefs, to advocate and protect the
interests of the Orthodox Jewish community
throughout the United States, and in other countries as
well.
Agudath Israel has a strong interest in
safeguarding the authority of United States courts to
hold responsible the primary actors who commit acts of
international terrorism against American citizens, as
well as those secondarily liable for aiding and abetting
terrorism.
American Association of Jewish Lawyers and
Jurists (AAJLJ). The AAJLJ, an affiliate of the
International Association of Jewish Lawyers and
Jurists, is an association of lawyers and jurists open to
all members of the profession regardless of religion.
The AAJLJ’s mission includes representing the human
rights interests of the American Jewish community on
legal issues implicating the interests of that
community. The AAJLJ seeks legal remedies to
achieve justice for the victims of terrorism through its
participation in legal cases in the United States and
abroad. The AAJLJ’s mission statement, “Justice,
Justice Shall You Pursue” (Deuteronomy 16:20)
compels support for the Petitioners in this case, who
3
deserve an opportunity to seek Justice under American
law.
The Anti-Defamation League (ADL). ADL is a
501(c)(3) not-for-profit anti-hate organization founded
in 1913 “to stop the defamation of the Jewish people
and to secure justice and fair treatment to all.” As part
of its mission, ADL has for decades been at the
forefront of analyzing and reporting on the actions of
extremist and terrorist groups domestically and
internationally. Such groups pose a threat to the
physical safety and security of Americans and others
throughout the world, and it is ADL’s belief that this
threat can be addressed in a manner that respects the
basic civil rights and liberties that allow a diverse
society to flourish. ADL previously offered the Court
its expertise on issues relevant to this case in Holder v.
Humanitarian Law Project, 561 U.S. 1 (2010), and is
pleased to do so again.
Hadassah. Hadassah, The Women’s Zionist
Organization of America, Inc. is the largest Jewish
women’s organization in the United States. Hadassah
brings women together to effect change on such critical
issues as ensuring Israel’s security, combating
antisemitism, and promoting women’s health. Through
Hadassah’s two Jerusalem hospitals, Hadassah
delivers exemplary patient care and supports worldrenowned medical research. Hadassah supports strong
and decisive action to root out international terrorism
and its support structure.
Israeli-American Civic Action Network (ICAN).
ICAN is dedicated to empowering Israeli immigrants
and American allies to create change for a better
4
America, a more secure Israel, and a stronger U.S.Israel alliance through advocacy, education, and civic
action.
Jerusalem Institute of Justice (JIJ). JIJ, along
with its U.S. affiliate, is a legal and research institute
dedicated to cultivating and defending human rights,
the rule of law and democracy. JIJ works in the
international legal arena to fight antisemitism and
present charges against perpetrators of heinous crimes
against humanity to tribunals and governmental bodies
around the globe. This includes JIJ’s complaint
against Hamas Leader Ismail Haniyeh, presented to
the International Criminal Court.
JIJ strongly
supports holding terrorist organizations like Hamas,
and Hamas’ supporters, accountable for their violations
of human rights.
The Lawfare Project (Lawfare). Lawfare is a
non-profit legal think tank and litigation fund based in
New York City focusing on matters of civil and human
rights, discrimination, antisemitism, and counterterrorism. Lawfare has a strong interest in securing
justice for victims of acts of international terrorism,
and in combatting antisemitism funded through the
same channels that finance acts of international
terrorism.
StandWithUs. StandWithUs is an international,
nonprofit Israel education organization founded in
2001. StandWithUs is dedicated to educating people of
all ages about Israel and combating the extremism and
antisemitism that often distort Israel-related issues.
As a United States-based organization with staff and
volunteers who live in Israel and regularly travel
5
throughout the world where they may be targets of
terrorism, StandWithUs has a strong interest in
preserving the ability to pursue such financers of
terrorism in United States courts.
Union of Orthodox Jewish Congregations of
America (the OU). The OU is the nation’s largest
Orthodox Jewish synagogue organization, representing
nearly 1000 congregations across the nation. The OU,
through its OU Advocacy Center, has participated in
many cases before courts across the nation that
implicate important matters of concern to the Orthodox
Jewish community. Through amicus curiae briefs, the
Orthodox Union seeks to inform courts of the
perspective of the Orthodox Jewish community and the
impact a ruling in a given case will have. The OU is
especially concerned about the devastating impact that
foreign terrorist organizations and those who fund
them have on the OU’s constituents and American
citizens around the world. The OU is committed to
ensuring that terrorists and their supporters are
brought to justice.
Zachor Legal Institute (Zachor). Zachor is a
501(c)(3) non-profit legal advocacy organization
focusing on eliminating discrimination. Among Zachor’s
areas of focus is confronting discriminatory boycotts
promoted by the Boycott, Divestment and Sanction
(“BDS”) movement. BDS has deep and extensive ties to
designated foreign terrorist organizations, including
Hamas and the Popular Front for the Liberation of
Palestine and has infiltrated a number of organizations
to spread a discriminatory agenda aimed at Jews and
companies that do business with and in Israel. Zachor’s
6
interest is in ending all forms of support to foreign
terrorist organizations, and in holding their supporters
accountable under law.
7
[T]he Islamic Resistance Movement [Hamas]
aspires to realize the promise of Allah, no matter
how long it takes. The Prophet, Allah’s prayer
and peace be upon him, says: “The hour of
judgment shall not come until the Muslims fight
the Jews and kill them, so that the Jews hide
behind trees and stones, and each tree and stone
will say: ‘Oh Muslim, oh servant of Allah, there
is a Jew behind me, come and kill him,’ except
for the Gharqad tree, for it is the tree of the
Jews.” (Recorded in the Hadith collections of
Bukhari and Muslim).2
*
*
*
Interpal, headquartered in the UK, has been a
principal charity utilized to hide the flow of
money to HAMAS. Reporting indicates it is the
conduit through which money flows to HAMAS
from other charities * * * * Reporting also
indicates that Interpal is the fundraising
coordinator of HAMAS, a coordination point for
other HAMAS-affiliated charities.3
2
Hamas Charter art. 7, para. 4 (1988), https://www.memri.org/
reports/covenant-islamic-resistance-movement-%E2%80%93hamas.
3
Press Release, U.S. Dep’t of Treasury, U.S. Designates Five
Charities Funding Hamas and Six Senior Hamas Leaders as
Terrorist Entities (Aug. 23, 2003), https://www.treasury.gov/presscenter/press-releases/Pages/js672.aspx.
8
INTRODUCTION
The raison d’etre of the Palestinian Islamic
Resistance Movement, known by its acronym “Hamas,”
is—as explicitly stated in Hamas’ Charter of 1988,4 and
oft repeated by its leadership—the murder of Jews and
4
The terrorist attacks at issue took place in Israel between
December 1, 2001, and September 24, 2004. Weiss v. Nat’l
Westminster Bank, PLC, 993 F.3d 144, 151 (2d Cir. 2021); Weiss v.
Nat’l Westminster Bank, PLC, 381 F. Supp. 3d 223, 227 (E.D.N.Y.
2019). Accordingly, the operative Hamas Charter during the
relevant time period is the 1988 version. Later attempts to soften
the original, more explicit exhortations to murder Jews, including
by more recently seeking to distinguish between “Jews” and
“Zionists” as the targets of Hamas terror, are hard to take
seriously, given the statements of Hamas leaders. See, e.g., AlJazeera Network (Qatar), Hamas Celebration in Honor of its
Members Killed in Recent Fighting—Speech of Son of Jamal AlZabeda, MEMRI (May 24, 2021), https://www.memri.org/tv/hamascelebration-skulls-body-parts-children-with-guns (“We will pave
the path of liberation with your [Jewish] body parts, and turn your
[Jewish] skulls into stairs that will lead us to the Al-Aqsa Mosque
and all the plundered villages and cities.”); Al-Aqsa TV
(Hamas/Gaza), Hamas Political Bureau Member and Former
Minister of the Interior Fathi Hammad, MEMRI (May 7, 2021),
https://www.memri.org/tv/snr-hamas-official-fathi-hammad-urgespeople-jerusalem-cut-off-heads-jews-knives-day-reckoningmoment-destruction (“People of Jerusalem, we want you to cut off
the heads of the Jews with knives. With your hand, cut their
artery from here. A knife costs five shekels. Buy a knife, sharpen
it, put it there, and just cut off [their heads]. It costs just five
shekels. With those five shekels, you will humiliate the Jewish
state.”); Al-Aqsa TV (Hamas/Gaza), Fathi Hammad Hamas
Political Bureau, MEMRI (July 12, 2019),
https://www.memri.org/tv/hamas-political-bureau-fathi-hammadexplosive-belts-knives-slaughter-kill-jews-all-over-world-israel-oneweek-ultimatum (“We must attack every Jew on planet earth—we
must slaughter them and kill them with Allah’s help.”).
9
the violent expulsion of Jews from their biblical
ancestral homeland, the Land of Israel. Petitioners
and their loved ones were injured or killed in Hamas’
pursuit of its goals.
And Respondent National
Westminster Bank PLC (NatWest) knowingly aided
and abetted those goals, through its facilitation of
financial transactions for Interpal, knowing of
Interpal’s connections to Hamas, and the foreseeable
consequences of those financial transactions.
SUMMARY OF THE ARGUMENT
Certiorari review is warranted because the Second
Circuit’s opinion below5 conflicts with the decisions of
other courts of appeals, conflicts with a decision of this
Court, and “decided an important question of federal
law that has not been, but should be, settled by this
Court.” SUP. CT. R. 10(a), (c). The resulting conflict
creates confusion regarding the scope of secondary
“aiding and abetting” liability under JASTA. This
Court’s clarification is essential.
Weiss v. National Westminster Bank, PLC, 993 F.3d
144 (2d Cir. 2021) (Weiss III) conflicts irreconcilably
with the opinions of two courts of appeals and a
decision of this Court: (1) Weiss III conflicts with the
D.C. Circuit’s decision in Halberstam v. Welch, 705
F.2d 472 (D.C. Cir. 1983), and its conception of
5
Although this brief is in support of the petition for certiorari in
Weiss v. National Westminster Bank, PLC, 993 F.3d 144 (2d Cir.
2021), Amici respectfully request that the Court consider it in
support of the Petitioners in the companion case Strauss v. Crédit
Lyonnais, S.A., 842 F. App’x 701 (2d Cir. 2021) as well, also on
petition for writ of certiorari. See Docket No. 21-382.
10
foreseeability, which established the very elements for
civil aiding and abetting liability upon which Congress
explicitly relied in drafting JASTA’s secondary liability
provision; and (2) Weiss III conflicts with the widely
accepted understanding of the fungibility of ostensibly
charitable financing to terrorist groups, as articulated
in this Court’s decision in Holder v. Humanitarian Law
Project, 561 U.S. 1 (2010) (HLP) and the Seventh
Circuit’s decision in Boim v. Holy Land Foundation for
Relief & Development, 549 F.3d 685 (7th Cir. 2008) (en
banc). As this conflicting case law reveals, Petitioners
should have been permitted to amend their complaint
to assert that Hamas’ terrorist attacks were foreseeable
results of financing any part of Hamas’ activities.
In sum, the important federal question warranting
review is whether a financial institution’s knowing
facilitation of financial transactions with a
counterparty the bank knows to be affiliated with a
foreign terrorist organization is insufficient as a matter
of law to permit a jury to even consider whether the
bank’s conduct could render it secondarily liable under
JASTA.
Here, NatWest facilitated financial
transactions to a purportedly charitable organization
(Interpal) that the U.S. Department of the Treasury
had designated a Specially Designated Global Terrorist
(SDGT),6 knowing of the ostensibly charitable
organization’s reported ties to a U.S. State Department
designated Foreign Terrorist Organization (FTO),
6
Interpal was designated a SDGT on August 22, 2003. See A1032–36; Press Release, U.S. Dep’t of Treasury, U.S. Designates
Five Charities Funding Hamas and Six Senior Hamas Leaders as
Terrorist Entities (Aug. 23, 2003) (Interpal Designation).
11
Hamas.7 Nonetheless, the Second Circuit concluded,
as a matter of law, that Petitioners would not be
permitted to amend their complaint to allege that
NatWest was “generally aware” of its role and
substantially assisted the FTO’s terrorist activities.
The Second Circuit ignored the evidence of NatWest’s
general awareness of Interpal’s role in unlawfully
financing Hamas and prior court decisions finding the
same. As a result, no jury will ever be able to decide
whether the evidence of NatWest’s knowledge of
Interpal’s terror connections was sufficient to satisfy
the element of “general awareness” under JASTA’s
secondary liability provision. If permitted to stand,
Weiss III will create uncertainty as to whether JASTA
plaintiffs must satisfy Halberstam—as Congress
explicitly intended—or some different, higher standard
of proof. This Court’s review and clarification is
therefore essential.
7
By Executive Order 12947 of January 25, 1995, Hamas was
designated a Specially Designated Terrorist (SDT). See A-941;
Executive Order 12947—Prohibiting Transactions With Terrorists
Who Threaten To Disrupt the Middle East Peace Process, 60 Fed.
Reg. 5079 (Jan. 25, 1995), https://www.hsdl.org/?view&did=456954.
On October 8, 1997, the United States Secretary of State
designated Hamas a FTO, a designation that has remained in
place ever since. See A-941; U.S. Dep’t of State Bureau of
Counterterrorism, Designated Foreign Terrorist Organizations,
https://www.state.gov/foreign-terrorist-organizations/.
12
ARGUMENT
I. The Second Circuit’s Decision Conflicts With
The D.C. Circuit’s Civil Aiding And Abetting
Standard As Incorporated By Congress In
JASTA
The Second Circuit held that amendment to assert
a JASTA aiding and abetting claim would be futile
because even assuming NatWest was knowingly
providing material support for terrorism, the “plaintiffs
could not show that NatWest was knowingly providing
substantial assistance to Hamas, or that NatWest was
generally aware that it was playing a role in Hamas’s
acts of terrorism.” Weiss III, 993 F.3d at 167. This
standard is inconsistent with Halberstam.
A. The Second Circuit Departed from the D.C.
Circuit’s “General Awareness”
Requirement for Aiding and Abetting
Liability
JASTA created a private cause of action for civil
damages arising from secondary or “aiding and
abetting” liability “arising from an act of international
terrorism.” 18 U.S.C. 2333(d)(2). Specifically, JASTA
established that secondary liability exists when (1) a
designated FTO (i.e., the principal) commits, plans, or
authorizes an act of international terrorism, and (2) the
defendant aids and abets the principal by knowingly
providing substantial assistance to the principal who
committed the act of international terrorism. Ibid.
Such assistance can incur liability whether given
“directly or indirectly.” See JASTA § 2(b); see also
13
Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d
842, 856 (2d Cir. 2021).
Significantly, in enacting JASTA, Congress
explicitly incorporated by reference the civil elements
for aiding and abetting liability set forth in
Halberstam. JASTA § 2(a)(5). In Halberstam, the D.C.
Circuit held that:
[a]iding-abetting includes the following
elements: (1) the party whom the defendant aids
must perform a wrongful act that causes an
injury; (2) the defendant must be generally
aware of his role as part of an overall
illegal or tortious activity at the time that
he provides the assistance; (3) the defendant
must knowingly and substantially assist the
principal violation.
Halberstam, 705 F.2d at 477 (emphasis added). The
second and third elements—namely, “general
awareness” and “substantial assistance”—are
particularly relevant here.
To satisfy the “general awareness” element,
Halberstam did not require that defendant Linda
Hamilton specifically intend to commit the ultimate
criminal act—i.e., murder—or even that she know the
principal was going to murder the victim. She was
civilly liable because she contributed to and benefited
from what she was generally aware was illegal activity,
and under the circumstances violence and killing were
foreseeable risks of that activity. Id. at 488.
Properly read, Halberstam should have led the
Second Circuit to an inescapable common sense
14
conclusion: NatWest was “generally aware” of its role
in funding Hamas’ terrorist activities because of its
facilitation of transfers for Interpal—a known Hamas
intermediary—from which NatWest benefited, and the
results of which were plainly foreseeable. As in
Halberstam, it would “def[y] credulity” to suggest that
NatWest did not know “that something illegal was
afoot.” See Halberstam, 705 F.2d at 486. Indeed,
NatWest’s summary judgment motion asked the court
to presume that Petitioners could prove that NatWest
had knowingly provided material support to an FTO.
See Weiss v. Nat’l Westminster Bank PLC, 381 F. Supp.
3d 223, 231 (E.D.N.Y. 2019). Given the view of this
Court (in HLP) and the Seventh Circuit (in Boim), see
infra, that any assistance to any wing of an FTO
foreseeably facilitates the FTO’s terrorist activity,
violence and killing, NatWest’s concession is
dispositive. Under Halberstam, NatWest’s concession
means it was “generally aware” that it was involved in
an illegal activity, and under HLP and Boim the
terrorist attacks on Petitioners and their loved ones
were foreseeable results of that activity. Nothing more
was required for liability to attach.
Nonetheless, the Second Circuit noted Interpal and
other Hamas-affiliated charities provided some
charitable services and “did not indicate to NatWest
that the transfers were for any terroristic purpose.”
Weiss III, 993 F.3d at 166. It thus held no reasonable
jury could find NatWest was generally aware of its role
in “terrorist activities.” Id. at 165–167. In doing so,
the Second Circuit effectively required victims of
terrorism to meet a higher standard than other aiding
and abetting plaintiffs: showing not just that JASTA
15
defendants were “generally aware” of their role in
unlawful activities (such as material support) that
foreseeably led to violence, but that they were generally
aware of their role in the violent act itself. There is no
basis in JASTA for this additional burden.
Finally, the “substantial assistance” NatWest
provided Hamas, indirectly through Interpal, cannot be
denied. Financing is the lifeblood of terrorist activity.
See Dennis M. Lormel, Chief Financial Crimes
Sections, Federal Bureau of Investigations, Speech
before House Committee on Financial Services,
(October 3, 2001), https://archives.fbi.gov/archives/
news/testimony/cutting-off-the-financial-lifeblood-ofthe-terrorists (“Identifying, tracking and dismantling
the financial structure supporting terrorist groups is
critical to successfully dismantling the organizations
and preventing future terrorist attacks.”). And just as
Hamilton provided “invaluable service to the enterprise
as banker, bookkeeper, recordkeeper, and secretary,”
Halberstam, 705 F.2d at 487, NatWest’s financial
services were essential to Hamas and Interpal,
particularly given the strict sanctions regime that
limits the access of such designated FTOs and SDGTs
to sources of capital.
B. At The Time, Hamas was (and Remains) a
Known FTO, and Used Charities Like
Interpal to Evade Terror Funding
Restrictions
Throughout the period when Petitioners and their
loved ones were attacked, Hamas was a U.S.- and
European Union-designated terrorist organization.
Matthew Levitt, Hamas: Politics, Charity, and
16
Terrorism in the Service of Jihad, 50–51 (Yale
University Press 2006). To further its genocidal goal of
murdering Israel’s Jewish inhabitants, and replacing
the Jewish State with an Islamist state, Hamas has
committed countless acts of violence against civilian
targets. Id. at 12. Its members have detonated bombs
on public buses, and in restaurants, markets, and
universities; fired rockets indiscriminately into Israeli
cities; and otherwise killed, maimed, and terrorized
people going about their daily lives—including
Petitioners and their loved ones. Id. at 12–13.
Hamas “openly admits that there is no
distinguishing the political and military wings of
Hamas.” Interpal Designation. Hamas uses civilian
infrastructure as a cover for its violent acts. It plans
military operations from mosques, and it uses medical
transports as a cover to smuggle terrorists. Levitt at
101, 137 (citing Majeda El-Batsch, Parents Fear Their
Children Could Take on Suicide Missions (Agence
France-Presse July 8, 2003); Israeli Missions Around
the World, Terrorist Misuse of Medical Services to
Further Terrorist Activity (MFA Library August 26,
2002)).
Hamas incentivizes terrorists by providing them
with financial support, including paying rewards to the
families of suicide bombers or those imprisoned for
terrorist attacks. Id. at 59. These rewards include an
initial payment that may amount to more than a year’s
worth of average salary, as well as an ongoing monthly
allowance. Ibid.
Hamas also uses a network of ostensibly social and
religious organizations to facilitate terrorism in other
17
ways. Among other things, the organizations raise
money to fund terrorist operations, launder and
transfer funds to terrorists, recruit and hide militants,
and provide administrative support to terrorist cells.
Id. at 52. As the Department of the Treasury Interpal
Designation concluded, “charitable donations to nongovernmental organizations are co-mingled, moved
between charities in ways that hide the money trail,
and then often diverted or siphoned to support
terrorism.” Interpal Designation.
C. NatWest’s General Awareness of Interpal’s
Connections to Hamas is Plain from the
Record Below and Clearly Satisfied
Halberstam
Evidence of Interpal’s ties to Hamas—and
NatWest’s awareness of this connection—was
extensively documented both in the public domain and
within NatWest’s own compliance files even prior to
Interpal’s designation as an SDGT. This evidence was
sufficient to demonstrate to a jury that NatWest was at
the very least “generally aware” of Interpal’s
connection to Hamas, as well as of NatWest’s overall
role in Interpal’s and Hamas’ illegal conduct.
18
1. NatWest’s
constructive
“general
awareness” of the Interpal-Hamas
connection, and its willful blindness to
that nexus, is apparent from publicly
available contemporaneous resources
As Petitioners pleaded below, ties between Interpal
and Hamas were well-documented in the public record
well before the terrorist attacks at issue. Thus, they
were readily discoverable by any bank compliance
official who had taken the time to conduct a simple
media search. These reports—including in papers
published in the United Kingdom—showed that:
• As early as 1996, an article in The Times noted that
“[p]olice sources believe up to Pounds 1 million a
year is being raised by the Palestinians Relief and
Development Fund, also known as Interpal.” A1202. The article noted that “[t]he information
collected * * * also raises questions over alleged
links between the charity * * * and a number of
Palestinian refugees described as former Hamas
militants living in London” and quoted “a senior
Israeli army officer who has studied the group” and
observed that “[w]ithout the support and activity of
[Hamas’] civilian wing, the military wing could not
exist.” Ibid.8
8
Stewart Tendler & Christopher Walker, MI5 Study ‘Charity Cash
Link to Hamas’, THE TIMES, Mar. 6, 1996; see also Adrian Lee &
Michael Evans, MI5 Traces Network of Hamas Funding, THE
TIMES, Mar. 11, 1996 (“MI5 has uncovered a network of
organisations in Britain raising funds for Palestinian causes which
19
• During this same time, while Hamas suicide bus
bombings were widely reported in the media,9 a
New York Times article noted that “Israeli officials
say that among the key Hamas fund-raising
operations are the Holy Land Foundation of
Richardson, Texas and the London-based Palestine
and Lebanon Relief Fund, known, for its telex
address, as Interpal.” A-1208–14. 10
• After a brief freeze of Interpal’s bank accounts in
the United Kingdom in March 1996, following
public reporting of British intelligence’s
investigation of links between Interpal and Hamas,
and “after a two-month inquiry, the Charity
Commission gave [Interpal] a clean bill of health in
May 1996.” A-1226.11 Israeli intelligence criticized
could be providing a vital lifeline to Hamas, the Islamic Resistance
Movement, whose attacks with suicide bombers have killed nearly
60 Israelis in the past two weeks.”).
9
See Water Rodgers, Hamas admits to fatal Israeli bus
bombings, CNN.COM, Feb. 25, 1996, http://www.cnn.com/WORLD/
9602/israel_explosion/02-25/pm/.
10
John Kifner, Roots of Terror: A special report: Alms and Arms:
Tactics in a Holy War, N.Y. TIMES, Mar. 15, 1996.
11
Julian Borger, Close Trust, Israel Pleads: Britain is Being Asked
to Clamp Down on Palestinian Fundraisers, THE GUARDIAN, Aug.
7, 1997 (“Israel last year accused Interpal, or the Palestinian Relief
and Development Fund, of having links with Hamas. Interpal’s
British accounts were frozen, but after a two-month inquiry, the
Charity Commission gave it a clean bill of health in May 1996.”).
20
the investigation as superficial. Ibid.12 Meanwhile,
Ibraham Hewitt, an Interpal trustee, did not deny
that funds collected by Interpal—even after the
Charity Commission’s inquiry—were delivered to
Hamas affiliates; he merely distinguished between
Hamas wings: “Mr Hewitt said it was possible that
some of Interpal’s beneficiaries in the Palestinian
territories had been established by Hamas, but
argued that Hamas runs a social welfare and
religious network separate from its military wing,
Izz el-Deen al-Qassam. ‘It’s like the difference
between Sinn Fein and the IRA,’ Mr Hewitt said.”
A-1226–27.
• The Government of Israel publicly declared Interpal
an “unlawful organization” in 1997, and a “terrorist
organization” in 1998. A-692.
• Finally, the United States Department of State
designated Interpal an SDGT on August 22, 2003,
following a Jerusalem bus bombing killing 13,
including three-year-old Tehilla Nathansen, who
was sitting on the lap of her mother, Petitioner
Chana Nathansen, at the time of the bombing. See
A-981, 1032–37.
Thus, long before the attacks against Petitioners
and their loved ones, publicly available sources were
sufficient to put NatWest on notice of Interpal’s
12
Significantly, the Charity Commission explained that where
Interpal’s funds ultimately arrived, including whether they were
“going to supporters of Hamas and in particular the families of
suicide bombers was not of direct concern so long as the funds were
being applied within the objects of the charity.” A-202.
21
connection to Hamas and thus render it generally
aware of its indirect role in financing Hamas via
Interpal.
2. NatWest’s actual “general awareness” of
the Interpal-Hamas connection is
documented in NatWest’s compliance
files
Had the Second Circuit allowed Petitioners to
amend their complaint to assert a claim for secondary
liability, a jury could have evaluated NatWest’s
“general awareness” not only through public
information readily available to NatWest, but also from
information in NatWest’s possession at the time:
• NatWest began noting terrorism concerns regarding
the accounts of Interpal and its predecessor/alias
the Palestine & Lebanon Relief Fund (PLRF) in
May 1990 when it created a suspicious activity
report (SAR) in its internal database. See A-942. In
March 1992, NatWest made a report to the
predecessor of the U.K. National Criminal
Intelligence Service (NCIS) under the U.K. MoneyLaundering Prevention of Terrorism Act. Ibid.
• In March 1996, the Financial Times reported on
Israeli intelligence that Interpal “raised money
exclusively for Hamas institutions and directly
provided support to families of Hamas guerillas and
suicide bombers.” A-1054.13 And, when Interpal’s
Chairman, Abdul Rahman Daya, was asked
13
Julian Ozanne & Clay Harris, Palestinian charity in UK under
attack, FINANCIAL TIMES, Mar. 13, 1996.
22
whether any of 36 of Interpal’s charities were tied
to Hamas, Daya said, “Maybe.” Ibid. A copy of this
article was attached to an internal NatWest money
laundering report. See A-1048–54.
• Between 1999 and 2001, Interpal’s transactions
doubled twice. NatWest suspected parties to these
transactions were involved in terror financing. See
A-951–52 ¶¶ 41–42.
• On September 27, 2001, Mike Hoseason, the
manager of Royal Bank of Scotland’s14 Operations
Group Security & Fraud, delivered to British law
enforcement what appeared to be a South African
intelligence report identifying several Interpal
account names and numbers, as well as identifying
information for Interpal counterparties that were in
NatWest records. See A-954 ¶ 50; A-1064, A1171–1200. That report states: “HAMAS through
INTERPAL operate on an international basis
through a global network of AL-AQSA structures
(HAMAS = INTERPAL = AL-AQSA).” See A1189–90. Hoseason delivered the document to the
UK’s National Criminal Intelligence Service, and
entered a report in NatWest’s compliance system,
red-flagging Interpal for its terrorist financing risk.
See A-651–52 ¶ 36, A-1345–56.
• NatWest’s Relationship Manager (RM) for Interpal,
Interpal’s primary contact at the bank, was
contacted about Interpal five times by the Bank’s
money laundering unit, which she considered
14
NatWest merged with the Royal Bank of Scotland. See A-948–49
¶ 31; A-1105.
23
“irregular” and more than she had been contacted
regarding any other customer she could recall. See
A-953 ¶ 45.
• Shortly after the September 11, 2001 terrorist
attacks, Jihad Qundil, Interpal’s Secretary, told the
RM that Interpal was receiving more money
specifically because of the attacks. Qundil told the
RM donations to Interpal were increasing “because
of terrorism,” which the RM thought was “logical.”
A-953 ¶ 49.
• NatWest employees noted “suspected terrorist
funding,” A-963 ¶ 82; “vulnerability to terrorist
funding,” A-964 ¶ 85; and “[t]he concern is obviously
terrorist funding,” A-966 ¶ 90.
In sum, there is little wonder previous courts in this
case found (and NatWest, for purposes of this
submission, conceded) that the evidence creates a
triable issue as to NatWest’s knowing material support
of Hamas. See Weiss v. Nat’l Westminster Bank PLC,
278 F. Supp. 3d 636, 644 (E.D.N.Y. 2017) (concluding
that “a reasonable jury could find that the 13 Charities
[to which Interpal funds were sent] are Hamas alter
egos”); Weiss v. Nat’l Westminster Bank PLC, 768 F.3d
202, 205, 211 (2d Cir. 2014) (concluding that, for
purposes of material support statute, “Plaintiffs have
presented sufficient evidence to create a triable issue of
fact as to whether NatWest fulfilled § 2339B(a)(1)’s
scienter requirement”—i.e., “that NatWest had
knowledge that, or exhibited deliberate indifference to
whether, Interpal provided material support to a
terrorist organization”).
24
II. The Second Circuit’s Decision Conflicts With
The Common Sense Recognition—By This
Court And The Seventh Circuit—That
Terrorist Violence Is A Foreseeable Result Of
Any Material Support To An FTO
The Second Circuit seems to have given
disproportionate weight to Petitioners’ expert
witnesses’ acknowledgement that “the charities to
which NatWest transferred funds as instructed by
Interpal performed charitable work”; that
(unsurprisingly) “Interpal did not indicate to NatWest
that the transfers were for any terroristic purpose”;
and that “plaintiffs proffered no evidence that the
charities funded terrorist attacks or recruited persons
to carry out such attacks.” Weiss III, 993 F.3d at
165–167.
Based on this evidence, the Second Circuit
concluded that no reasonable jury could find that
NatWest was “generally aware” of its indirect role in
Hamas’ terror financing. This, respectfully, reflects a
startling naïveté, and is inconsistent with the holdings
of this Court and the Seventh Circuit in related
contexts.
As this Court has recognized:
Money is fungible, and “[w]hen foreign terrorist
organizations that have a dual structure raise
funds, they highlight the civilian and
humanitarian ends to which such moneys could
be put.” But “there is reason to believe that
foreign terrorist organizations do not maintain
legitimate financial firewalls between those
25
funds raised for civil, nonviolent activities, and
those ultimately used to support violent,
terrorist operations.” Thus, “[f]unds raised
ostensibly for charitable purposes have in the
past been redirected by some terrorist groups to
fund the purchase of arms and explosives.”
HLP, 561 U.S. at 31. Thus, Interpal’s engagement in
some charitable works could never cure its funding of
terror-related activities.
In HLP, quoting Petitioners’ expert in this
litigation, Dr. Matthew Levitt, this Court noted:
“[I]investigators have revealed how terrorist groups
systematically conceal their activities behind
charitable, social, and political fronts.” Id. at 30
(quoting Levitt 2–3).
Indeed, it was publicly reported as early as 1996
that Hamas did just that:
Most of Hamas’s estimated $70 million annual
budget goes to support a network of hundreds of
mosques, schools, orphanages, clinics and
hospitals that permeates virtually every village,
town and refugee camp on the West Bank and
Gaza Strip. But these social services provide
both a cover and a recruiting ground for young
terrorists.
One of the important uses of
charitable donations to Hamas is to provide
lifetime annuities to the families of suicide
bombers.15
15
Kifner, supra n.10.
26
The Seventh Circuit, in an en banc opinion, has
drawn the same logical inference: “If Hamas budgets
$2 million for terrorism and $2 million for social
services and receives a donation of $100,000 for those
services, there is nothing to prevent its using that
money for them while at the same time taking
$100,000 out of its social services ‘account’ and
depositing it in its terrorism ‘account.’” Ibid.; see also
HLP, 561 U.S. at 30 (“‘Material support’ is a valuable
resource by definition. Such support frees up other
resources within the organization that may be put to
violent ends. It also importantly helps lend legitimacy
to foreign terrorist groups—legitimacy that makes it
easier for those groups to persist, to recruit members,
and to raise funds—all of which facilitate more
terrorist attacks.”). Consequently, “if you give money
to an organization that you know to be engaged in
terrorism, the fact that you earmark it for the
organization’s nonterrorist activities does not get you
off the liability hook.” Boim, 549 F.3d at 698.
Moreover, even without such financial sleight of
hand, “charitable” donations serve a terrorist
organization’s violent ends:
Hamas’s social welfare activities reinforce its
terrorist activities both directly by providing
economic assistance to the families of killed,
wounded, and captured Hamas fighters and
making it more costly for them to defect (they
would lose the material benefits that Hamas
provides them), and indirectly by enhancing
Hamas’s popularity among the Palestinian
27
population and providing
indoctrinating schoolchildren.
funds
for
Boim, 549 F.3d at 698.
As this Court has similarly noted, even “[m]aterial
support meant to ‘promot[e] peaceable, lawful
conduct,’ can further terrorism by foreign groups in
multiple ways.” HLP, 561 U.S. at 30 (emphasis added);
id. at 7 (noting Congress’ finding, in enacting material
support statute, that FTOs “are so tainted by their
criminal conduct that any contribution to such an
organization facilitates that conduct” (emphasis
added)). Thus, even seemingly peaceful material
support “facilitate[s] terrorist acts,” “bolster[s] terrorist
activities,” and “makes [terrorist] attacks more likely
to occur.” Id. at 30–36. This Court found this was true
even of training “on how to use humanitarian and
international law to peacefully resolve disputes,” id. at
36, specifically because it was “wholly foreseeable” that
FTOs would use these skills “as part of a broader
strategy to promote terrorism.” Id. at 36-37.
28
CONCLUSION
For the above reasons, the petition for certiorari
should be granted.
Respectfully submitted,
JUSTIN C. DANILEWITZ
Counsel of Record
A. MAYER KOHN
SAUL EWING ARNSTEIN & LEHR LLP
Centre Square West
1500 Market Street, 38th Floor
Philadelphia, PA 19102
(215) 972-1977
justin.danilewitz@saul.com
CHRISTIE R. MCGUINNESS
SAUL EWING ARNSTEIN & LEHR LLP
1270 Avenue of the Americas
Suite 2005
New York NY 10020
Counsel for Amici Curiae
OCTOBER 8, 2021
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