Over 200 victims of terror and their families are having their day in the United States Supreme Court after the Court agreed to hear the case of Tzvi Weiss, et al., v. National Westminster Bank PLC, which involves financial services provided to terrorists and whether a bank could be sued for aiding and abetting terrorists. On Monday, the Supreme Court invited United States Solicitor General Elizabeth B. Prelogar to submit the government’s position in this case.
According to plaintiffs’ expert, Dr. Matthew Levitt, Royal Bank of Scotland’s Westminster Bank transferred significant funds to the London-based Palestine Relief & Development Fund (“Interpal”) which, in turn, wired the money to 13 charities serving as Hamas fronts. This transfer funded, he said, “weapons smuggling, reconnaissance, and acts of terror from suicide bombings to rocket fire” during the Intifada in the early 2000’s.
The question under review is whether the bank knowingly transferred substantial funds that aided and abetted terrorist acts and is therefore subject to civil liability under Justice Against Sponsors of Terrorism Act (JASTA).
National Westminster Bank processed 457 wire transfers for Interpal between 1996 and 2003. In 1997, the United States designated Hamas as a Foreign Terrorist Organization. In 2003, the U.S. designated Interpal as a Specially Designated Global Terrorist (“SDGT”) after reports found that Interpal was a major Hamas fundraiser. The plaintiffs alleged that Westminster National Bank knew that such funds were going to Hamas. The bank claims it only had one office in the United States at the time and is no longer operating in this country. Furthermore, the bank argues that it did not engage in terrorist activities or with terroristic intent, the elements needed to prevail on a JASTA claim. A number of Jewish organizations and law professors have filed briefs in support of plaintiffs, stating their position that the government has set the bar too high for bringing claims under JASTA.
Among the plaintiffs are then-18 year old Tzvi Weiss, a Brooklyn-native who was severely injured after a terrorist detonated a suicide vest on a No. 2 Egged bus which had left the Kotel on the evening of August 19, 2003 and was passing 39 Shmuel HaNavi Street. Twenty-three people were killed and over 130 wounded in that attack for which Hamas claimed responsibility. The plaintiffs assert that its responsibility for this and other attacks was substantiated by rulings of Israel’s military court which led to the conviction of Hamas terrorists.
On October 8, 2021, a brief on behalf of Jewish organizations was filed in support of the plaintiffs’ petition to have the Supreme Court hear the case. Agudath Israel of America, the Orthodox Union, Hadassah, the Lawfare Project, the American Association of Jewish Lawyers and Jurists, and the Anti-Defamation League, amongst others, joined in the brief.
According to the Jewish organizations, the enabling of terror by National Westminster Bank’s banking activities cannot be denied. Additionally, as plaintiffs have noted, the charities that served as cover for Hamas used social services to garner support for the terrorist organization and its activities with the Palestinian populace. As the Jewish organizations emphasized, Hamas itself does not distinguish between its military and political wings; furthermore, Hamas has generously compensated the families of terrorists. Additionally, the organizations assert that National Westminster Bank knew or should have known about Interpal’s well-documented support of terrorism before providing banking services to Interpal because of news articles going as far back as 1996, Israeli media reports, and the bank’s own compliance records. “In sum,” stated the their brief, “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.”
The plaintiffs originally brought their suit on September 29, 2005 in the Eastern District of New York. The aiding and abetting claim was dismissed, but the plaintiffs were allowed to move forward with their remaining claims. The Weiss case was then consolidated with a similar case, Appelbaum v. National Westminster Bank PLC. The federal court granted summary judgment on plaintiffs’ Anti-Terrorism Act (ATA) claim because the bank didn’t have the proper knowledge of unlawful activity to be liable under the ATA. The Court had found that no reasonable jury could find defendant had knowingly aided and abetted terror.
According to the bank, “Tzvi Weiss’s injuries are tragic, but plaintiffs have no legal basis to attribute responsibility for these injuries to NatWest, a British bank whose British customer Interpal … has been found by the British government not to be affiliated with Hamas.” The British government pulled Interpal’s charity accreditations for a month in 2003 but then reinstated them.
The Second Circuit Court of Appeals reversed the bank’s summary judgment motion and told the Eastern District to issue a decision on the other defenses the bank had raised. On March 31, 2016, the Eastern District Court ruled that New York had jurisdiction over defendant. This was despite the Supreme Court’s ruling two years earlier in Daimler AG v. Bauman, where the Court found that a corporation could not be sued in a state for injuries allegedly caused by conduct of a branch of the corporation in another country.
Over the next year, plaintiffs added claims arising out of the Ben Yehuda Street bombing, the Part Junction Bus #32A Bombing on June 18, 2002, and the March 7, 2002 suicide attack on Atzmona. The Eastern District granted defendant’s summary judgment in part and denied in part based on the admissibility of evidence surrounding Hamas’s responsibility for these attacks and whether or not Westminster National Bank knew that 13 charities were actually alter egos of Hamas. However, the Eastern District Court allowed plaintiffs to go forward with their remaining claims.
In light of the Second Circuit’s February 9, 2018 decision in Linde. V. Arab Bank, PLC, (remanding a case because a bank’s secondary liability for three suicide bombings in Israel could not be proven as a matter of law, and that this theory would have to be proven at retrial), the Eastern District allowed National Westminster to argue a narrow motion for summary judgment addressing the Linde case only.
On March 31, 2019, the Eastern District Court dismissed the case, granting defendant’s summary judgment motion and denied plaintiffs’ motion to amend their complaint to add JASTA claims. On April 7 of this year, the Second Circuit Court of Appeals affirmed the District Court’s judgment. The plaintiffs then filed a Writ of Certiorari on September 3 in order to have their case heard by the Supreme Court.
The Solicitor General brings cases before the Supreme Court on behalf of the United States. If the government does not want to defend a law against legal challenges, a non-party can step in and argue the United States’ position. In the current case, the plaintiffs have asked the Solicitor General to weigh in because the Executive Branch enforces sanctions against terrorist entities. Additionally, the Anti-Terrorism Act (JASTA’s predecessor) supported civil liability. However, the bank argues that there is no need for the government to step in as the government has already “expressed its opposition to imposing civil liability for terrorism-related injuries on foreign defendants who merely provided routine banking services to charities with alleged terrorist ties, where (as here) there is no demonstrated connection between such banking services and any terrorist activities.”
The plaintiffs warn that any loophole in JASTA will allow for the funding of terrorists through middlemen. International banks can freely supply financial services to international terrorists. “Applying JASTA consistently with its broad scope is essential to curbing bank participation in this misconduct, and to providing redress to victims. Moreover, Congress has already enacted the ‘broadest possible’ statute … The legislature having spoken clearly, it falls to this court to ensure that lower courts follow Congress’ directive.” Therefore, the plaintiffs are asking the Court not to narrow the scope of civil liability under JASTA.
It is unclear if the Solicitor General will accept the Court’s invitation. The Solicitor General’s Office did not respond to requests for comment. A ruling in this case is expected in June.
