How Lawyers Can Help Fight Terrorism
I am an injury lawyer. I file lawsuits for three reasons: (1) to get just compensation for my clients; (2) to get answers about what caused the injury or death to the clients; and (3) to prevent the same thing from happening again to someone else. This past year I met someone who uses the legal system in the United States to accomplish these same goals in the area of preventing terrorism. Her name is Nitsana Darshan-Leitner of the Shurat HaDin Israel Law Center. This is her story and the story of her organization—Shurat HaDin Israel Law Center—and how I signed up and started helping her in the fight against terrorism.
Nitasana Darshan-Leitner and the Shurat HaDin Israel Law Center
I first met Nitsana this past spring at Congregation Rodfei Shalom. She told me a fascinating story of how the Israel Law Center used the legal process to prevent terrorism. Hamas—which is listed by the United States as a terrorist organization—was attempting to receive illegal arms from flotillas of ships leaving from Greece, Turkey, France, Ireland, and Cyprus and arriving in the Gaza Strip. The Israel Law Center took three specific steps to prevent terrorism in this instance.
First, it sent letters to the owners of the ships in the flotillas and their insurance carriers, stating that the shipment of arms was illegal and demanding that the illegal shipments of arms be stopped. The insurance carriers responded by informing the ship owners that there would be no insurance coverage for damage to ships engaged in illegal conduct. With no insurance coverage, the ship owners refused to make their ships available for the illegal shipments of arms by the flotillas.
The second action was to warn Inmarsat, a satellite communications provider based in the United States, that under United States law, they were open to charges of aiding and abetting terrorism if they provided services to the Gaza-bound ships. Inmarsat is the main provider of maritime communication services, a crucial tool which enables vessels to reach their destinations. After sending a warning letter to Inmarsat for aiding and abetting a terror organization, Shurat HaDin commenced a civil action against Inmarsat in Florida State Court on behalf of Michelle Fendel, a resident of the Southern Israeli town of Sderot. Among other things, the lawsuit sought a permanent injunction against Inmarsat, which would require it to cease provision of all services to any flotilla ship on the grounds that the provision of such services constituted aiding and abetting terrorism in violation of United States law.
The third action was an ongoing civil lawsuit against fourteen ships set to participate in this flotilla. Shurat HaDin filed a lawsuit in New York Federal Court to seize the ships used in the flotilla. The lawsuit was filed on behalf of Dr. Alan Bauer, an American citizen who was seriously injured in a Palestinian terror attack in March 2002. The lawsuit contended that the ships were outfitted with arms purchased by funds unlawfully raised in the United States, and that furnishing funds and arms to be used for hostilities against a United States ally violates a rarely used “informant” statute that allows a plaintiff/informant to seize such property (18 U.S.C. § 962).
On July 5, 2011, after the self-imposed flotilla deadline expired, international campaigners began to return home, citing various bureaucratic issues, including lack of insurance, and blaming Shurat HaDin for their difficulties. Demand letters and lawsuits—typical legal devices used by litigators—had stopped the flow of illegal arms into the hands of a terrorist organization. The power of these traditional litigation devices in the area of fighting terrorism intrigued me, so I looked into the Israel Law Center further—and I found out about the fascinating case of Sokolow v. Palestine Liberation Organization, 1:04-cv-00397-GBD-RLE (S.D. N.Y. 2004).
Sokolow was filed in Manhattan federal court under the United States Antiterrorism Act on behalf of citizens of the United States who were injured or killed in six terrorist attacks in Israel more than a decade ago. These attacks were supported by the Palestinian Authority and the Palestine Liberation Organization. Sokolow was prosecuted and tried to a federal jury by Kent Yalowitz of Arnold & Porter, LLP and by Nitsana Darshan-Leitner of the Israel Law Center. In February 2015, the federal jury in that case found the Palestinian Authority and the Palestine Liberation Organization liable for supporting the terrorist attacks and ordered them to pay $218.5 million to the American victims and their families. The verdict was automatically tripled under the United States Antiterrorism Act, amounting to a $655 million final judgment.
Shurat HaDin—The Israel Law Center’s Activist Lawyers Training Seminar 2015
This summer, the Israel Law Center held its first ever Activist Lawyer’s Training Seminar in Jerusalem. I decided I had to attend that seminar—primarily because Kent Yalowitz was going to be there to tell all about the Sokolow trial. Anyone who can try a case to a jury and get a $600 million-plus judgment is worth listening to.
In addition to Kent Yalowitz, the seminar included a stellar lineup of experts in the areas of international law, terrorism law, and the laws of war, including Harvard Law Professor Alan
Dershowitz, Canadian MP Irwin Cotler, former Israeli Supreme Court Justice Gabriel Bach (the Chief Investigator and a State Prosecutor in the Adolf Eichmann trial in 1962 in Israel), and Israeli peace negotiator and international law expert Daniel Reisner.
Seventy attorneys from across the globe—including two from Texas—came together at this conference to use their legal skills, experience, knowledge, and passion to help safeguard the United States, our ally Israel, and the world’s Judeo-Christian community—and indeed the Islamic community itself—from radical Islamic terrorism.
We were trained in the process of confronting terrorism in the courtroom. We learned about suing terrorist organizations and the companies and financial institutions that help them collect and move money intended to be spent on terrorist operations. Specifically, by tracking assets and bank accounts of terror groups and legally restricting their funds, Shurat HaDin-Israel Law Center and the lawyers who work with it hope to economically destroy Middle Eastern Islamic hate groups. We lawyers who attended the seminar were trained to send demand letters, file legal actions, and draft and promote legislation—all in an effort to safeguard world Jewry, Christianity, and moderate Muslims from terrorist attacks.
In addition to learning about the terror victim litigation to bankrupt terrorist organizations, training sessions, lectures, and hands-on workshops were designed to provide skills and strategies for litigating against the Boycott-Divest-Sanctions (BDS) movement—an anti-Israel, de-legitimization campaign—as well as advocating on behalf of the Jewish State of Israel, defending Israeli Defense Forces (IDF) officers from war crimes allegations, and confronting anti-Semitism in local communities.
We took field trips to destinations that are inaccessible to the general public, such as military courts, Israeli security agencies, IDF bases, and Lebanese and Syrian border crossings. Additionally, we met with senior Israeli officials, judges and prominent international attorneys and discussed the activities of the Iranian supported terrorist group Hezbollah in Lebanon. We were also offered cutting-edge social media training sessions designed to advocate for Israel and against terrorism. Additional conference topics included Article 49 of the Geneva Convention, the laws of war, and war crimes committed by Hamas in the Gaza strip, such as indiscriminately targeting Israeli citizens with rockets.
Here is what I and the other attendees learned from the keynote speakers at the seminar, and what I learned that other activist lawyers and I can do to help bankrupt terrorist organizations and prevent acts of terrorism in Israel, the United States, and around the world:
Harvard Professor Alan Dershowitz was one of the keynote speakers at the conference. His topic was the international rule of law. He began with the three sources of international law: (1) treaties; (2) customary law, including laws from previous international tribunals; and (3) scholarship in the area of international law. From there, he discussed the two basic international law principles for which he wanted to advocate: (1) no bills of attainder in international law; and (2) the principle of worst-first.
A bill of attainder is a legislative act declaring a specific person or group of persons guilty of some crime retrospectively and punishing them without a trial. International laws cannot be bills of attainder. Rather, they must be laws of general application that apply prospectively and do not name specific countries or people but, instead, are generally applicable to all people and countries. For example, if there is to be an international law preventing the firing of rockets into civilian areas with no military value, this law must be applicable to everyone. The law should not name a specific country that has done this in the past and seek to punish that country alone.
Once generally applicable international rules of law are agreed upon—in treaty form, as customary law, or through scholarship—then they must be applied to the worst actors first. This is critical. Let’s say that the following international laws of general application are agreed to: (1) no firing of rockets into predominantly civilian areas without military justification; (2) no jailing of journalists for reporting in ways that anger a government but that do not divulge any military or state secrets; (3) no discrimination in terms of voting rights against minority populations in a country; and (4) no detention longer than three days for suspects without bringing formal charges in a court of competent jurisdiction. Then, these laws must be applied to the worst actors first, such as China, Russia, Iran, North Korea, and so on.
Professor Dershowitz pointed out that many people and groups—and most especially the United Nations—want to apply international laws only as against Israel and not the worst actors first, which he considered to be a form of anti-Semitism. The key approach is comparative assessment. Demand of others what they demand of Israel. If a good set of international laws of general application—not bills of attainder—are applied to the worst first, that will be a big improvement in the area of international law and will make for a much more peaceful and law-abiding world. When international laws of general application are not applied to the worst first—such as when the United Nations focuses only on Israel and not Iran, ISIS, Lebanon, Jordan, Iraq, or Syria—you should ask yourself why the international laws are being applied selectively as against one nation only, and not the worst first, and then you should speak out against this practice.
Daniel Reisner made one of the key points of the conference in his presentation: modern wars are fought on the battlefield of media and public opinion. That is where we as lawyers have a lot of power. We can write content—for media and for social media sites such as LinkedIn, Facebook, and Twitter. Additionally, we know how to talk and advocate, so we can learn about and become expert in the areas of international law, terrorism law, and the laws of war. Then, we can make ourselves available to speak as subject-matter experts.
In 2000, in the United States, an effort was launched against Israel—the BDS movement, which is an acronym for boycott, divest, and sanction. The idea is to de-legitimize the State of Israel and challenge its right to exist. The plan was to analogize Israel to the apartheid State of South Africa. If Israel annexed Judea-Samaria/the West Bank into Israel and then did not allow Arabs there the right to vote, this would make Israel like apartheid South Africa. However, the exact opposite occurs in Israel. The Arab population—Arab citizens who stayed in place in Israel in 1948 and thereafter—along with their families, have the full right to vote, and indeed all rights of citizenship. The BDS movement focuses only on Israel, not Russia, China, Iran, or North Korea, and then it sets up false analogies to try and hurt our ally Israel. Indeed, the BDS movement has hurt Israel. The Bill Gates foundation, for example, has cut ties with Israel, and many cultural and educational groups have boycotted the country due to the BDS movement. Further, General Electric just signed a labor agreement with a union in the United States who supports the BDS movement—the United Electrical, Radio, and Machine Workers Union.
The press. Social media. Interviews. Lawyers getting out in the public and telling the truth about what is and what is not apartheid. These are the ways to help put a stop to the BDS movement and the damage it is doing. Another avenue is to make it a crime to advocate for illegal boycotts against any autonomous countries. Lawyers can help draft such legislation and present it to their state legislatures to prevent groups from calling for illegal boycotts and for implementing illegal boycotts.
Kent Yalowitz and Sokolow
Sokolow v. PLO was brought under the United States Anti-Terrorism Act, 18 U.S.C. §§ 2331-2339D (“ATA”). Section 2333 of the ATA provides as follows: “(a) Action and Jurisdiction. Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.”
In Sokolow v. PLO, the Palestinian Authority (PA) and the Palestine Liberation Organization (PLO) took the position that the terrorists who had killed American citizens on Israeli soil were rogue actors—actors who acted ultra vires of the authority they held in their positions with the PA and PLO. The six separate terrorist acts at issue occurred between 2002 and 2004 in Israel. Thirty-three people died, and more than 450 were injured overall in these terrorist acts.
Through discovery in the litigation of the case, Kent Yalowitz and Nitsana Darshan-Leitner were able to collect evidence that the PA and PLO not only employed many of the terrorists in the PA and PLO security forces, but even after the terrorist attacks, the PA and PLO continued paying salaries to the terrorists and their families. In fact, special bonuses were awarded for having committed the terrorist acts. Kent and Nitsana argued to the jury that rewarding employees with a continuation of their salaries and special bonuses is not the way organizations treat employees and agents who commit ultra vires acts. The PA and the PLO also verbally congratulated the terrorists and their families for the success of the terrorist acts both at the time and afterwards, so as to make it clear that the PA and PLO were ratifying the terrorist acts. This process of ratifying the terrorist acts at the time and afterwards with words and deeds—and especially the payment of the salaries and special bonuses—along with the heinous nature of the terrorist acts and the deaths they caused, led the jury to render a substantial verdict against the PA and PLO.
During final arguments, Kent and Nitsana played excerpts of depositions of family members of the victims who testified about how their loved ones suffered and died in the attacks and how much they miss them today. The family members whose testimony was played at the closing arguments were all physically in the courtroom to show the jury how important the case was to them. The combination of terrorists committing terrorist acts, ratification of them by the authorities, and the death and suffering of the victims motivated the jury to award a $218.5-million verdict. This amount was tripled under the ATA, such that the final judgment was in excess of $600 million.
After the judgment, plaintiffs asked for a supersedeas bond in the amount of $30 million per month until the appeal is decided; however, the Obama administration, the Department of Justice, and the State Department stepped in and requested a $10 million supersedeas bond immediately and $1 million per month until the appeal is decided. Kent Yalowitz—in response to the supersedeas bond issue—told the court and the press: “The Palestinian Authority pays jailed and former terrorists $65 million per year, but claims it is ‘too poor’ to pay its judgment to the victims of those very same terrorists.” The court honored the Department of Justice and State Department’s request and made the bond requirement $10 million immediately and $1 million per month until the appeal is decided. As a result of the actions of the Department of Justice, the plaintiffs—who are victims of terrorism—will have a more difficult time attempting to collect the judgment against the PA and PLO for their support of terrorist acts. Hopefully, in the future, the Department of Justice and State Department will not intervene in this same way to undercut the purposes of the ATA.
We are fortunate in the United States to have a law such as the Anti-Terrorism Act, which makes it possible: (1) for the families of victims to be compensated and to get answers; and (2) to bankrupt groups that support terrorism through monetary awards, thereby helping to prevent more terrorist acts from happening. The ATA will no doubt be used much more in the future. For example, it looks like Iran might soon be receiving $100 billion or more as a result of the nuclear deal and can use these funds to increase its support of terrorism. Also, groups like ISIS are likely to continue engaging in terrorist acts that injure or kill American citizens. Collection after a final judgment will always be an issue, but with deep pockets such as Iran—and provided the Department of Justice and State Department do not step in—it should be possible in many cases to recover compensation for terror victims.
Path Forward—My Commitment to Helping Fight Terrorism
The foregoing experiences have taught me that we, as lawyers, can all help fight terrorism by: (1) signing up to recruit other litigators to help in terrorism-related lawsuits; (2) helping draft legislation and presenting it to state legislatures; (3) supporting the Israel Law Center and other groups fighting terrorism with financial donations; and (4) participating in social media to stand up against terrorism.
I have committed myself to make efforts in each of the above areas to help make our world a safer place, free from terrorism. I encourage other lawyers to be activists and fight against international terrorism as well, by using the same skills you use every day as attorneys advocating on behalf of your clients.