A number of Jewish organizations have submitted a friend-of-the-court brief this week asking for the U.S. Supreme Court to review a case involving a British bank accused of helping fund Hamas terrorist in activity in Israel during the Second Intifada.
The brief was submitted in the case of Weiss v. National Westminster Bank, representing 200 Americans victims of Hamas terrorism during the intifada that lasted from September 2000 to February 2005.
The brief, which was filed by Justin Danilewitz of the Philadelphia-based Saul Ewing Arnstein & Lehr LLP, was joined by 10 Jewish organizations, including the Lawfare Project, Agudath Israel of America, the Union of Orthodox Jewish Congregations of America, Anti-Defamation League, American Association of Jewish Lawyers and Jurists, StandWithUs, Zachor Legal Institute, Jerusalem Institute of Justice and the Israeli-American Civic Action Network.
It calls into question an April decision by the United States Court of Appeals for the Second Circuit that dismissed the case, claiming that Interpal had carried out some charitable work; that the money channeled through National Westminster Bank (NatWest) was not specifically for terrorist attacks or to recruit terrorists to carry out attacks; and that Interpal did not indicate to NatWest that the transfers for terrorist purposes.
This decision led the plaintiffs to appeal to the Supreme Court to clarify how courts should apply liability under the Anti-Terrorist Act (ATA), passed by Congress in 2001 and the Justice Against Sponsors of Terrorism Act (JASTA), passed in 2016 to strengthen the ATA and which imposes civil liability on anybody who “aids and abets” an act of international terrorism.
“The Supreme Court has previously underscored that terrorist organizations don’t maintain legitimate financial firewalls between the funds they raise for civil, nonviolent activities and those ultimately used to support violent, terrorist operations, but the federal courts of appeal have not taken a uniform approach to this issue, and the Supreme Court hasn’t yet clarified the scope of civil liability,” said Gary Osen, managing partner of Osen LLC, which represents one of the plaintiffs, in a news release on Thursday.
The circuit court’s decision went against its own previous ruling in 2014, which held that there was sufficient evidence from which a jury can conclude that “NatWest had knowledge that, or exhibited deliberate indifference to whether Interpal provided material support to a terrorist organization.”
‘Letting decision stand would create loophole in laws’
The lawsuit against NatWest was first filed in 2005 under the Anti-Terrorism Act, made up of claims from estates and family members of American citizens who were killed or injured in terrorist attacks by Hamas. The plaintiffs alleged that NatWest held accounts for Interpal—a United Kingdom-based organization that describes itself as a charity, but was later designated as a Specially Designated Global Terrorist organization by the U.S. government.
The U.S. Treasury Department has previously called Interpal a fundraising organization of Hamas.
From December 2001 to January 2004, according to the plaintiffs, NatWest was accused of transferring millions of dollars to Hamas-controlled entities on behalf of Interpal during the Second Intifada, which saw waves of suicide and other terrorist attacks on Israeli civilians by Hamas and other Palestinian terrorist organizations.
“We are confident that the Supreme Court will hear this case and reverse the Second Circuit. As the Supreme Court has already recognized, terrorist organizations are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct,” wrote Garad Filitti, senior counsel at the Lawfare Project in an email. “Letting this decision stand would create a significant loophole in anti-terrorism laws, allowing terrorist organizations to raise money simply by creating nominally ‘charitable’ arms.”
Another friend-of-the-court brief supporting a Supreme Court review of the case was submitted on Oct. 8 by 10 U.S. senators, including Senate Majority Leader Chuck Schumer (D-N.Y.), Kirsten Gillibrand (D-N.Y.), Bob Menendez (D-N.J.), Joni Ernst (R-Iowa), Sheldon Whitehouse (D-R.I.), Marco Rubio (R-Fla.), Rob Portman (R-Ohio), Richard Blumenthal (D-Conn.), James Inhofe (R-Okla.) and Benjamin Cardin (D-Md.).