United States District Court, N.D. Illinois, Eastern Division
November 10, 2004.
STANLEY BOIM, Individually and as Administrator of the Estate of DAVID BOIM, deceased, and JOYCE BOIM, Plaintiffs,
QURANIC LITERACY INSTITUTE, HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, ISLAMIC ASSOCIATION FOR PALESTINE, AMERICAN MUSLIM SOCIETY, AMERICAN MIDDLE EASTERN LEAGUE FOR PALESTINE, UNITED ASSOCIATION FOR STUDIES AND RESEARCH, MOHAMMED ABDUL HAMID KHALIL SALAH, MOUSA MOHAMMED ABU MARZOOK, AMJAD HINAWI, and THE ESTATE OF KHALIL TAWFIQ AL-SHARIF, Defendants.
The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This case arises out of the murder of David Boim, a
seventeen-year-old American citizen who was killed in a Hamas
terrorist attack in the West Bank. David's parents sued two men
who were directly involved in the murder, as well as several
U.S.-based individuals and organizations they claim helped to
support Hamas, for violation of 18 U.S.C. § 2333. The case is
before the Court on motions for summary judgment. A. Factual Background
1. Procedural History of Boim v. OLI, et al.
On May 13, 1996, David Boim, a citizen of both the United
States and Israel who was living in Israel with his parents, both
United States nationals, was shot in the head while waiting for a
bus in the West Bank. David's father, Stanley Boim, testified at
his deposition that, shortly after the attack, "it became public
knowledge as reported in the media that Hamas was behind it."
Transcript of Deposition of Stanley Boim, p. 14. The official
document reporting David's death indicated that David had died
from a "Gunshot Wound; a victim of a terrorist attack as stated
in Israeli death certificate issued by the Ministry of Interior
at Jerusalem on June 3, 1996." See Report of the Death of an
American Citizen Abroad (attached as Exhibit 2 to Plaintiffs'
(HLF) Rule 56.1 Statement). And a 1997 article from the Jerusalem
Post indicates that one of the men wanted for his involvement in
the attack, "Khalil Ibrahim Tawfik Sharif," who went on to kill
himself in a 1997 suicide bomb attack on a Jerusalem pedestrian
mall, was a Hamas activist. See "3rd Ben-Yehuda Bomber
Identified," Jerusalem Post, October 30, 1997 (attached as
Exhibit 11 to Plaintiffs' Rule 56.1 Statement in support of its motion against HLF).*fn1 Another of the
attackers, Amjad Hinawi, confessed to participating in the
attack; he was charged by the Palestinian Authority with
participating in a terrorist act and as an accomplice in the
killing of David Boim. Despite his confession, Mr. Hinawi pled
not guilty, but was tried and convicted on both counts, and
sentenced to ten years of hard labor. See Notes of United
States Foreign Service Officer Abdelnour Zaibeck, a
representative from the Consulate General of the United States,
who attended Mr. Hinawi's court proceedings (attached as Exhibit
6 to Plaintiffs' (HLF) Rule 56.1 Statement); Report of Sentence
of Amjad Mu`hamad Rashid Al`hinawi (attached as Exhibit 10 to
Plaintiffs' (HLF) Rule 56.1 Statement).
On May 12, 2000, David's parents, Stanley and Joyce Boim, sued
Mr. Hinawi and the estate of Khalil Tawfiq Al-Sharif, who had by
that time blown himself up in the suicide bombing. They also sued
Mousa Mohammed Abu Marzook, who allegedly served for many years
as the admitted leader of Hamas' political wing in the United
States, and Mohammed Abdul Hamid Khalil Salah, who allegedly
served as the United States-based leader of Hamas' military
branch. See Complaint, ¶¶ 11-12. The Boims also named as
defendants the Quranic Literacy Institute ("QLI"), the Holy Land Foundation for Relief and Development ("HLF"), the Islamic
Association for Palestine ("IAP"), the American Muslim Society
(d/b/a the Islamic Association for Palestine in Chicago) ("AMS"),
and the American Middle Eastern League for Palestine ("AMELP")
all entities that, according to the complaint, directly or
indirectly raise and launder money for Hamas and finance Hamas'
terrorist activities. See Complaint, ¶¶ 5, 6, 7, 8, 9. Finally,
the Boims sued the United Association for Studies and Research
("UASR"), which allegedly serves as Hamas' political command
center in the United States. Id., ¶ 10.
In each case, the Boims sought to hold the defendants civilly
liable under the Antiterrorism Act of 1990 (the "Antiterrorism
Act"), 18 U.S.C. § 2300 et seq. (West 2004). The Antiterrorism
Act provides, in pertinent part:
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 . . .
recover threefold the damages he or she sustains
and the cost of the suit, including attorney's fees.
18 U.S.C. § 2333. The Boims alleged that defendants Hinawi and
Al-Sharif were directly involved in David's murder, and that the
remaining defendants provided material support to Hamas. See
Complaint, ¶ 54. They requested compensatory damages in the
amount of $100,000,000 and punitive damages in the amount of
$100,000,000, plus fees and costs. The Boims further requested that, in accordance with the Antiterrorism Act, their damages be
trebled, and they sought an injunction preventing defendants from
raising any additional money for Hamas. Id., ¶¶ 56, 58.
Defendants QLI, HLF, Salah, IAP, AMS, and AMELP all moved to
dismiss the Boims' complaint, arguing that the Boims' claim
really sought to impose "aiding and abetting" liability, and that
such liability was precluded under § 2333. In an opinion issued
January 10, 2001, the district judge disagreed, and denied the
motions, holding that § 2333 permitted a cause of action based on
the theory that the "defendants aided and abetted international
terrorism." See Boim v. Quranic Literacy Institute,
127 F. Supp. 2d 1002, 1018 (N.D. Ill. 2001). The next month, following a
request by QLI, the district court certified three questions for
(1) does funding, simpliciter, of an international
terrorist organization constitute an act of terrorism
under 18 U.S.C. § 2331?;
(2) does 18 U.S.C. § 2333 incorporate the definitions
of international terrorism found in
18 U.S.C. §§ 2339A and 2339B?; and
(3) does a civil cause of action lie under
18 U.S.C. § 2331 and § 2333 for aiding and abetting
See Boim v. Quarnic Literacy Institute, et al., No. 00 C 2905
(N.D. Ill. Minute Order entered February 22, 2001).
Before the appeal was heard, the parties consented to proceed
before a United States Magistrate Judge, and the case was reassigned to this Court on April 13, 2001. The Seventh Circuit
set the appeal for argument on September 25, 2001, and issued its
decision on June 5, 2002. The court first held that the Boims may
succeed in their claims against the organizational defendants by
proving that they "provided material support to terrorist
organizations." Boim v. Quranic Literacy Institute, et al.,
291 F.3d 1000, 1016 (7th Cir. 2002). On the question of whether
18 U.S.C. § 2333 is broad enough to cover the conduct of persons
who, like the organizational defendants, did not themselves
commit the violent acts complained of, the court held, after
noting that the interpretation of § 2333 was a matter of first
impression, that "aiding and abetting liability is both
appropriate and called for by the language, structure and
legislative history of section 2333," because "[t]he only way to
imperil the flow of money and discourage the financing of
terrorist acts is to impose liability on those who knowingly and
intentionally supply the funds to the persons who commit the
violent acts." Id. at 1021.
The court held that this did not, as the defendants argued,
amount to imposing "guilt by association" in violation of the
First Amendment: "[t]hat Hamas may also engage in legitimate
advocacy or humanitarian efforts is irrelevant for First
Amendment purposes if HLF and QLI knew about Hamas' illegal
operations, and intended to help Hamas accomplish those illegal
goals when they contributed money to the organization." Id. at 1024 (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 932
(1982); Scales v. United States, 367 U.S. 203, 229 (1961);
Noto v. United States, 367 U.S. 290, 298 (1961); Healy v.
James, 408 U.S. 169, 186 (1972); National Organization for
Women, Inc. v. Scheidler, 267 F.3d 687, 703 (7th Cir. 2001)).
The court also rejected defendants' argument that liability could
not be imposed under § 2333 if, as contended, the defendants
provided support to Hamas with the sole intent of contributing to
the organization's humanitarian and charitable programs, rather
than its military or terrorist factions: "[t]errorist
organizations use funds for illegal activities regardless of the
intent of the donor, and Congress thus was compelled to attach
liability to all donations to foreign terrorist organizations."
Id. at 1027.
In short, the Seventh Circuit answered the certified questions
funding, simpliciter, of a foreign terrorist
organization is not sufficient to constitute an act
of terrorism under 18 U.S.C. § 2331. However, funding
that meets the definition of aiding and abetting an
act of terrorism does create liability under sections
2331 and 2333. Conduct that would give rise to
criminal liability under section 2339B is conduct
that "involves" violent acts or acts dangerous to
human life, and therefore may meet the definition of
international terrorism as that term is used in
section 2333. Finally, . . . civil liability for
funding a foreign terrorist organization does not
offend the First Amendment so long as the plaintiffs
are able to prove that the defendants knew about the
organization's illegal activity, desired to help that
activity succeed and engaged in some act of helping.
Id. at 1028. Following the Seventh Circuit's ruling, the Boims moved for
default judgment against Mr. Hinawi and against UASR. This Court
granted both motions; the former for failing to answer the
Complaint despite proper service, and the latter for failing to
comply with discovery. The Boims also moved to sever the case
against Mr. Hinawi and to dismiss the case as to Mr. Marzook and
the estate of Al-Sharif because of an inability to effectuate
service on them. Again, the Court granted both motions.
Additionally, the Court granted the Boims' motion for the entry
of a default judgment against AMELP.
Thereafter, the Boims filed a First Amended Complaint, naming
principally the same defendants, but adding allegations about
each. With respect to HLF, the Boims added that, in December
2001, HLF was named as a "Specially Designated Terrorist" by the
President of the United States, that HLF's assets had been seized
by the Federal Bureau of Investigation, and that the Court of
Appeals for the District of Columbia Circuit had ruled, in Holy
Land Foundation v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003), that
HLF funded Hamas' terrorist activities. See First Amended
Complaint, ¶ 6.
With respect to IAP, the Boims added an allegation about the
structure and organization of the various entities using the
"IAP" name; specifically, that "[t]here has been continuously
since the early 1980's an entity or group of persons and entities operating under the name `Islamic Association for Palestine'
(collectively, `IAP National'). IAP National is an umbrella
organization that encompasses the various organizations
throughout the country which call themselves `IAP,' including
defendants AMELP, AMS, and IAP Texas." Id., ¶ 7. The Boims had
simply referred to "IAP Texas" as "IAP" in their original
The Amended Complaint also references meetings that took place
in 1993 and 1994 between named defendants and Hamas members and
activists, and it alleges that the defendants worked together and
with Mr. Marzook as part of an ongoing conspiracy to promote
Hamas and to raise money in the United States for Hamas'
terrorist operations. Id., ¶¶ 32-33, 36. The Amended Complaint
did not add any new causes of action, however; the Boims still
seek redress for a single cause of action violation of
18 U.S.C. § 2333.
The remaining, non-defaulted defendants Mr. Salah, QLI, HLF,
IAP and AMS all answered the First Amended Complaint (IAP and
AMS filed a joint Answer), and the case proceeded through
discovery. It is now before the Court on motions and
cross-motions for summary judgment.
2. Parallel and Related Proceedings
a. Proceedings relating to Terrorist Designations
On January 23, 1995, President Clinton signed Executive Order 12947, prohibiting transactions with terrorists who
threaten to disrupt the Middle East peace process. See
Executive Order No. 12947, 60 Fed. Reg. 5079 (Jan. 23, 1995).
Annexed to the Order was a relatively short list (with just
twelve entries) of such terrorist organizations (thereafter
referred to as "Specially Designated Terrorists" or "SDTs").
Id., 60 Fed. Reg. at 5081.*fn2 Hamas (also known as the
Islamic Resistance Movement) was one of the organizations on the
list. Id. Executive Order 12947, inter alia, prohibited
donations to designated organizations, directed all agencies of
the United States Government to take all appropriate measures
within their authority to carry out the Order's provisions,
directed the Federal Bureau of Investigation to handle the
investigation of possible violations of the Order, and directed
the FBI to timely notify the Department of the Treasury of any
action taken on such investigations.
To that end, on November 5, 2001, Dale L. Watson, the Assistant Director of the Federal Bureau of Investigation's
Counterterrorism Division, wrote an "action memorandum" to R.
Richard Newcomb, Director of the United States Treasury
Department's Office of Foreign Assets Control ("OFAC"),
concerning HLF. Mr. Watson's memo described some of the history
of Hamas, one of the frontrunner SDTs; it also described the
history of HLF, HLF's organizational structure, and the results
of various surveillance projects capturing and documenting the
relationship between HLF and Hamas. Mr. Watson summed up his memo
by recommending that OFAC add HLF (which he referred to as HLFRD)
to the list of SDTs:
FBI investigations of HAMAS activities in the United
States have revealed that the HLFRD is the primary
fund-raising entity for HAMAS and that a significant
portion of the funds raised by the HLFRD are clearly
being used by the HAMAS organization. The information
provided in this document confirms that the HLFRD is
acting for or on behalf of HAMAS. Further, senior
members of HLFRD support HAMAS ideology and
activities. These HAMAS activities interfere with the
Middle East peace process and pose a threat to the
national security, foreign policy, or economy of the
United States. As such, HLFRD should be considered by
OFAC for SDT designation as a HAMAS entity, subject
to the prohibitions of the [International Emergency
Economic Powers Act].
Watson Memorandum, p. 49 (Bates No. 0108) (attached to the
Declaration of Samuel A. Simon, Jr., at Exhibit 13 of Plaintiffs'
(HLF) Rule 56.1 Statement).
On December 4, 2001, Director Newcomb issued a "Blocking
Notice" to HLF, advising that OFAC had blocked all of HLF's real and personal property, including offices, furnishings, equipment,
and vehicles, as well as all funds and accounts in which HLF has
any interest. See Exhibit 14 to Plaintiffs' (HLF) Rule 56.1
Statement. On March 8, 2002, HLF sued John Ashcroft, the United
States Department of Justice, Paul O'Neill, the United States
Department of the Treasury, Colin Powell and the United States
Department of State in the United States District Court in
Washington D.C., seeking a declaration that the defendants'
designation of HLF as an SDT and the defendants' seizure of HLF's
assets were unlawful; HLF alleged violations of the United States
Constitution, the Religious Freedom Restoration Act ("RFRA"), the
International Emergency Economic Powers Act ("IEEPA"), and the
Administrative Procedures Act ("APA").
HLF lost its challenge of the SDT designation and blocking
order, both in the district court, see Holy Land Foundation v.
Ashcroft, 219 F. Supp. 2d 57 (D.D.C. 2002), and on appeal to the
United States Court of Appeals for the D.C. Circuit, see Holy
Land Foundation v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003)
(hereinafter "Ashcroft"). Of particular import here, the D.C.
Circuit determined that "[t]he ample record evidence
(particularly taking into account the classified information
presented to the court in camera) establishing HLF's role in
the funding of Hamas and of its terrorist activities is
incontrovertible." 333 F.3d at 165. The court noted that HLF "had every opportunity to come forward with some showing that
that evidence is false or even that its ties to Hamas had been
severed," and it failed to do so, even when given additional time
to respond to the evidence weighing in favor of the SDT
designation. Id. at 165-66. Along the same lines, the court
noted that "HLF had every opportunity and incentive to produce
the evidence sufficient to rebut the ample evidence supporting
the necessary conclusion that it was a funder of Hamas but could
not do so." Id. at 166. And, in addressing HLF's RFRA claim,
the court held that "[t]here is no free exercise right to fund
terrorists. The record clearly supports a conclusion that HLF
did." Id. at 167. HLF filed a petition for certiorari to the
United States Supreme Court; that petition was denied. See Holy
Land Foundation for Relief & Development v. Ashcroft,
___ U.S. ___, 124 S.Ct. 1506 (Mar. 1, 2004).
b. Criminal Proceedings
On July 26, 2004, the United States indicted HLF and seven of
its principals (Shukri Abu-Baker, Mohammad El-Mezain, Ghassan
Elashi, Haitham Maghawri, Akram Mishal, Mufid Abdulqader, and
Abdulraham Odeh) for, among other things, conspiring to provide
and providing material support to a foreign terrorist
organization namely, Hamas in violation of
18 U.S.C. § 2339B(a)(1). The case is pending in the United States District
Court in Dallas, Texas. On August 19, 2004, the United States indicted Mr. Salah, as well as Mousa Mohammed Abu Marzook and
Abdelhaleem Hasan Abdelraziq Ashqar, for, among other things,
knowingly providing and attempting to provide material support
and resources to a foreign terrorist organization namely Hamas
in violation of 18 U.S.C. § 2339B. That case is pending in this
Almost immediately after the indictments were handed down, HLF
and Mr. Salah filed separate motions to stay this action pending
resolution of the criminal matters. On September 9, 2004, after
hearing from the parties both in briefs and in extensive oral
arguments, the Court denied those motions. Mr. Salah moved for
reconsideration, and, after hearing additional oral argument from
the parties, the Court denied the motion for reconsideration as
B. Discussion & Analysis
The Boims have filed separate motions for partial summary
judgment on the issue of liability against Mr. Salah and HLF,
both of whom filed their own cross-motions for summary judgment.
Additionally, IAP and AMS filed a joint motion for summary
judgment against the Boims, who filed a cross-motion for summary
judgment against those entities. And QLI moved for summary
judgment in its favor, without prompting a cross-motion from the
Boims. Thus, in all, there are seven summary judgment motions
before the Court; there are also three motions to strike, which the Court will consider in connection with the relevant motions
for summary judgment.
Summary judgment is properly entered when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R. Civ. P.
56(c). The Supreme Court has instructed district courts to act
"with caution" in granting summary judgment; "where there is
reason to believe that the better course would be to proceed to a
full trial," the motion should be denied. Anderson v. Liberty
Lobby, 477 U.S. 242, 255 (1986). At this stage of the
proceedings, the Court makes no credibility determinations and
weighs no evidence; instead, the Court accepts the non-movant's
evidence and draws all justifiable inferences in its favor. Id.
The Boims have sued the defendants for violation of
18 U.S.C. § 2333, which provides, in relevant part, that "[a]ny national of
the United States injured in his or her person . . . by reason of
an act of international terrorism, or his or her estate,
survivors, or heirs, may sue therefor . . . and shall recover
threefold the damages he or she sustains. . . ."
18 U.S.C. § 2333(a). The statute "clearly is meant to reach beyond those
persons who themselves commit the violate act that directly
causes the injury"; indeed, the statute is specifically drafted "to extend liability to all points along the causal chain of
terrorism." Boim, 291 F.3d at 1011, 1020. Conduct that would
give rise to criminal liability under § 2339B(a), would give rise
to civil liability under § 2333. Id. at 1028. And 2339B
provides that "[w]hoever, within the United States or subject to
the jurisdiction of the United States, knowingly provides
material support or resources to a foreign terrorist
organization, or attempts or conspires to do so, shall be fined
under this title or imprisoned not more than 10 years, or both."
18 U.S.C. § 2339B(a)(1).
The Boims have alleged that the defendants conspired to
provide, and provided, material support to Hamas. "Material
support" would include, among other things, money and financial
services, lodging, training, safehouses, and false documentation
or identification. 18 U.S.C. §§ 2339A(b), 2339B(g). To prove that
the defendants provided material support to Hamas in violation of
§ 2333, the Boims would have to show that they knew about Hamas'
illegal activities, that they desired to help those activities
succeed, and that they engaged in some act of helping. Boim,
291 F.3d at 1023. To prove that the defendants conspired to
provide material support to Hamas in violation of § 2333, which
imports general tort law principles, see Boim,
291 F.3d at 1010, 1020, the Boims would have to show that the defendants
"acted in concert to commit an unlawful act . . . the principal
element of which [was] an agreement between the parties `to inflict a wrong
against or injury upon another,' and `an overt act that results
in damages.'" Richardson v. City of Indianapolis, 658 F.2d 494,
500 (7th Cir. 1981) (quoting Hampton v. Hanrahan, 600 F.2d 600,
620-21 (7th Cir. 1979)). The Boims need not show that the
defendants knew about the attack that killed David Boim, or that
they committed any specific acts in furtherance of that attack;
rather, the Boims need only show that the defendants were
involved in an agreement to accomplish an unlawful act and that
the attack that killed David Boim was a reasonably foreseeable
consequence of the conspiracy. See, e.g., Pinkerton v. United
States, 328 U.S. 640, 643 (1946). Nor would the Boims be
required to provide direct evidence of an agreement between the
parties; "[c]ircumstantial evidence may provide adequate proof of
conspiracy." Hoffman-LaRoche, Inc. v. Greenberg, 447 F.2d 872,
875 (7th Cir. 1971).
1. Motions Filed By and Against The Holy Land Foundation
The Boims seek summary judgment against HLF on the issue of
liability only. In their motion, the Boims argue that the
undisputed evidence demonstrates all of the necessary elements of
their claim against this defendant namely, that David Boim was
a United States citizen, that he was killed in a Hamas attack,
and that Holy Land Foundation supported Hamas' terrorist
activities. To support the last point, the Boims rely substantially on the rulings in Holy Land Foundation for Relief
& Development v. Ashcroft, supra. The Boims argue that, based
upon those rulings, HLF is collaterally estopped from denying
that it knowingly provided material support to Hamas. HLF
countered that the evidence is, at best, inconclusive as to all
of these points; in particular, on the last point, HLF argues
that collateral estoppel does not apply under the circumstances
HLF also filed a cross-motion for summary judgment, arguing
that, given the lack of evidence to support the Boims' claim, HLF
is entitled to judgment as a matter of law. Specifically, HLF
argues that the Boims' claim fails because they have offered no
admissible evidence to establish that HLF has ever knowingly
provided material support to Hamas, or that Hamas is responsible
for David Boim's murder.
By way of background, HLF, originally known as the Occupied
Land Fund, was incorporated as a tax-exempt organization in
California on January 11, 1989. See Articles of Incorporation
of the Occupied Land Fund (attached as Exhibit J to Plaintiffs'
(HLF) Rule 56.1 Statement). On September 16, 1991, it changed its
corporate name to The Holy Land Foundation for Relief and
Development and moved to Texas. See Certificate of Amendment of
Articles of Incorporation of the Occupied Land Fund (attached as
Exhibit J to Plaintiffs' (HLF) Rule 56.1 Statement). An HLF
brochure submitted with the Boims' motion for summary judgment indicates that HLF was "established in 1987 and had since grown
to become prominent among relief organizations that serve the
humanitarian needs and promote the well-being of the Palestinian
people in the West Bank, Gaza Strip, and beyond." See Exhibit V
to Plaintiffs' (HLF) Rule 56.1 Statement. The D.C. Circuit noted
that HLF "describes itself as `the largest Muslim charity in the
United States.'" Ashcroft, 333 F.3d at 160.
With respect to HLF's ties to Hamas, the record evidence
(deposition testimony as well as documentary evidence from the
administrative record in the Ashcroft case) shows that, in the
years after the United States designated Hamas as an SDT, HLF
provided significant funding (hundreds of thousands of dollars)
to the following organizations: the Islamic Charity Association
(a.k.a. Islamic Charitable Society in Hebron), Ramallah Zakat
Committee, Jenin Zakat Committee, Nablus Zakat Committee,
Tolkarem Zakat Committee, Orphan Care Association in Bethlehem,
Qalqiliyah Zakat Committee, Hebron Zakat Committee (a.k.a. Hebron
Tithing and Alms Committee), Dar El Salam Hospital, Islamic Aid
Committee (a.k.a. Islamic Relief Agency), Sanabil Association for
Relief and Development, and the Human Appeal
International-Jordan. See Transcript of Deposition of Shukri
Abu-Baker, pp. 170-76; see also AR 1209-15 (attached as Exhibit
4 to Plaintiffs' (IAP/AMS) Rule 56.1 Statement). The evidence
further shows that all of these organizations are either known
fronts for Hamas, known supporters of Hamas, or entities whose funding is known to
benefit the Hamas agenda. See Watson Memorandum, pp. 0087-88,
0091-0105; see also, e.g., AR 0856-63, 1252-61, 1271-78.
The record also contains a report of a statement from Mohamed
Anati, the Executive Director of the Holy Land Foundation,
Jerusalem, the sole agency of HLF in the West Bank and Israel (at
least as of 1994). See Accord between HLF and HLF-Jerusalem
(attached as Exhibit 4 to Plaintiffs' (IAP/AMS) Rule 56.1
Statement, pp. 0759, 0764, 0810). In the statement, Mr. Anati
admits being a Hamas activist, and admits that some of HLF's
money was channeled to Hamas. See AR 1263-1278. The record also
contains documents that appear to show (there are no official
documents) that, in 1997, the Government of Israel's Minister of
Defense declared HLF to be "disallowed" for channeling money to
Hamas. See AR 1335-40.
The Boims also rely upon a videotape from a 1989 IAP conference
that shows, among other things, a veiled speaker who is
identified as a Hamas terrorist and who specifically thanks the
Occupied Land Fund (the entity now known as HLF) for its support.
See Exhibit T to Plaintiffs' (HLF) Rule 56.1 Statement;
Declaration of Reuven Paz, Exhibit A (attached as Exhibit M/A to
Plaintiffs' (HLF) Rule 56.1 Statement). Mr. Abu-Baker admitted
that he attended that conference. See Responses to Requests for
Admission, ¶ 4 (attached as Exhibit U to Plaintiffs' (HLF) Rule 56.1 Statement).
The record also includes brochures and other literature
designed, in whole or in part, to promote Hamas' agenda. These
items routinely included a solicitation to send funds for the
cause to HLF (or the Occupied Land Fund, depending on the
publication date). HLF's representative, however, denies that HLF
took any affirmative steps to have its name and address included
in these documents. See Group Exhibit P to Plaintiffs' (HLF)
Rule 56.1 Statement; Transcript of Deposition of Shukri
Abu-Baker, pp. 105-115.
The record also contains deposition testimony from Mr.
Abu-Baker, who has served as HLF's President and Chief Executive
Officer since 1989. See Answers to Interrogatories, Nos. 2, 5
(attached as Exhibit 21 to Plaintiffs' (HLF) Rule 56.1
Statement); Deposition of Shukri Abu-Baker, p. 10. Mr. Abu-Baker
initially testified as HLF's Rule 30(b) (6) designee; in that
capacity, he testified that HLF frequently received donations
from people who wanted their money to go to the family or
children of a "shaheed" or "martyr," and that HLF made it a
practice to try to accommodate the requests of those donors.
See Abu-Baker Deposition, p. 168. According to the Boims, a
"shaheed" or "martyr" is someone who dies while serving Hamas'
agenda, whether in a suicide bombing or some other terrorist
attack, or at the hands of an Israeli soldier. See, e.g., Exhibit E to Plaintiffs' (HLF) Rule 56.1 Statement (translation
of The Khaled Mishaal Interview, describing terrorist acts as
"martyrdom operations"); Exhibit E to Plaintiffs' Reply
Memorandum, ¶¶ 5d, 5e (and attached exhibits E and F) (Reuven
Paz' translations of Palestinian Authority and Hamas website
publications characterizing Mr. Al-Sharif, one of David Boim's
murderers, who subsequently died in a suicide bombing, as a
"martyr"); Mr. Abu-Baker testified that a broader meaning may be
ascribed to these terms, such that they can refer to anyone who
dies as a result of the Israeli occupation and the Palestinian
uprising. Deposition of Shukri Abu-Baker, pp. 162-63, 167-68. In
either case, it is clear that HLF targeted the families of
martyrs to receive its money.
In his capacity as a 30(b) (6) witness, Mr. Abu-Baker also
testified that, in 1992, HLF received a $210,000 contribution
from Mr. Marzook. See Deposition of Shukri Abu-Baker, pp.
75-76, 79. Mr. Abu-Baker testified that he knows Mr. Marzook, and
that Mr. Marzook is married to the first cousin of Ghassan
Elashi, who served first as HLF's Treasurer and Secretary, and
later as the Chairman of HLF's Board of Directors, see Answers
to Interrogatories, No. 2 (attached as Exhibit 21 to Plaintiffs'
(HLF) Rule 56.1 Statement); HLF's Responses to Requests for
Admission, ¶ 6 (attached as Exhibit C to Plaintiffs' Reply
Memorandum). Mr. Abu-Baker testified that, other than the $210,000 contribution, Mr. Marzook had no relationship or
involvement with HLF. See Transcript of Deposition of Shukri
Abu-Baker, p. 75.
According to the Boims and Mr. Watson Mr. Marzook served
for many years as the head of Hamas' political bureau; he was
designated as an SDT on August 25, 1995. See Complaint, ¶¶ 12,
34; Watson Memorandum, pp. 0073-74 (attached as Exhibit B to
Plaintiffs' (HLF) Rule 56.1 Statement). The Watson Memorandum
details Mr. Marzook's $210,000 contribution, and relies upon it
to link HLF to Hamas. Watson Memorandum, pp. 0074. And the
administrative record upon which Mr. Watson relied contains
copies of checks written by Mr. Marzook and made payable to HLF.
Id., pp. 0684-87.
Some time after Mr. Abu-Baker's 30(b) (6) deposition, the Boims
indicated that they wanted to depose Mr. Abu-Baker in his
individual capacity as a fact witness. Counsel for HLF indicated
that Mr. Abu-Baker would, if deposed, invoke his Fifth Amendment
right and refuse to answer substantive questions. See August
10, 2004 Letter from John Boyd to Richard Hoffman (attached as
Exhibit H to Plaintiffs' Reply). And, in fact, the Boims' counsel
deposed Mr. Abu-Baker on September 28, 2004, and he did, as
expected, refuse to testify pursuant to the Fifth Amendment.
See Transcript of Oral and Videotaped Deposition of Shukri
Abu-Baker, pp. 6-127 (attached as Exhibit A to Plaintiffs'
Supplement to the HLF Summary Judgment Record Based on the Testimony of
Shukri Abu-Baker). Similarly, at his deposition, Mr. Elashi
invoked his Fifth Amendment right, refusing to answer any
substantive question posed on the ground that it might tend to
incriminate him. See Transcript of Deposition of Ghassan
Elashi, pp. 6-91. Because Mr. Abu-Baker and Mr. Elashi chose to
remain silent at their depositions, the Court is entitled to draw
a negative inference that the answers they would have given, had
they answered the questions posed and answered them truthfully,
would have tended to subject them to criminal liability. See,
e.g., In re High Fructose Corn Syrup Antitrust Litigation,
295 F.3d 651, 663 (7th Cir. 2002); Baxter v. Palmigiano,
425 U.S. 308, 318 (1976). This is just one more bit of admissible evidence
against HLF on the question of whether it knew about Hamas'
illegal activities and desired to help those activities succeed.
In contrast to this evidence, the record also contains a July
27, 2004 declaration from HLF's attorney, John Boyd. See
Exhibit A to HLF's Rule 56.1 Statement). Attached to that
declaration is another declaration from Mr. Boyd, this one signed
on June 15, 2002 and prepared in response to the motion for
summary judgment filed by the government in the Ashcroft case.
See Exhibit A/1 to HLF's Rule 56.1 Statement. And attached, in
turn, to Mr. Boyd's 2002 declaration are declarations from Shukri Abu-Baker, then HLF's CEO, Dalell D. Mohmed, an HLF donor and an
Emergency Relief Coordinator for HLF, and Mohammed Abumoharram,
the manager of HLF's Gaza office. See Exhibits A/2, A/3, and
A/4 to HLF's Rule 56.1 Statement. All three declarations testify
to a vast amount of admirable, charitable work done by HLF all
totally unrelated to Hamas and all three declarants adamantly
disavow any ties to Hamas, and any condonation of Hamas'
activities. See Exhibit A/2, §§ 3, 7, 30, 31; Exhibit A/3, §§
2, 5-30, 32, 35-51; Exhibit A/4, §§ 5-7, 12. Ordinarily, these
declarations might be enough to create a genuine issue of fact as
to the connection between Hamas and HLF. See Anderson,
477 U.S. at 255. But see Logan v. Caterpillar, Inc., 246 F.3d 912, 923
(7th Cir. 2001) (self-serving affidavits, if not supported in the
record, will not preclude summary judgment). Thus, resolution of
the Boims' summary judgment motion turns, in no small part, on
whether the Court is bound, under the doctrine of collateral
estoppel or issue preclusion, by the Ashcroft court's ruling that
HLF provided material support to Hamas. See Holy Land Foundation
for Relief & Development v. Ashcroft, supra.
Before turning to the collateral estoppel question, the Court
considers HLF's argument that the Boims have failed to provide
evidence that David Boim was actually killed by Hamas. As HLF
correctly points out, if the Boims have failed to meet this
burden, the Boims' case would fail, without the Court even having to reach the question of whether HLF funded Hamas.
HLF's assertions notwithstanding, the record contains ample
evidence showing that Hamas did, in fact, take responsibility for
the attack that killed David Boim. The evidence in the record
shows that David was murdered in a terrorist attack, not in some
random drive-by shooting. Mr. Hinawi, one of the attackers, was
charged with and convicted of committing a terrorist act, as well
as for his participation in the murder. See Abdelnour Zaibeck's
Notes of Proceedings for Amjad Hinawi (February 10, 12 and 14,
1998) (attached as Exhibit 6 to Plaintiffs' (HLF) Rule 56.1
Statement); Report of Sentence of Amjad Hinawi (February 14,
1998) (attached as Exhibit 10 to Plaintiffs' (HLF) Rule 56.1
Statement). A September 22, 1997 press bulletin issued by the
Government of Israel's Press Office states that Mr. Hinawi is a
member of Hamas, and that the Government of Israel sought Mr.
Hinawi's extradition because of his involvement with the Hamas
attack that killed David. See Press Bulletin of September 22,
1997, p. 2 (attached as Exhibit 9 to Plaintiffs' (HLF) Rule 56.1
Statement). Al-Sharif, who, with Mr. Hinawi, carried out the
attack on David Boim and his friends, is also reported in the
record as being a Hamas activist. See "3rd Ben-Yehuda
Bomber Identified," the Jerusalem Post (October 30, 1997)
(attached as Exhibit 11 to Plaintiffs' (HLF) Rule 56.1
Statement). Mr. Boim testified that, shortly after David's
murder, the media reported that Hamas was taking credit for the attack, and it became public
knowledge that Hamas was behind the attack. Transcript of
Deposition of Stanley Boim, p. 14 (attached as Exhibit 3 to
Plaintiffs' (HLF) Rule 56.1 Statement).
Added to this evidence is the fact that a default judgment has
been entered against Mr. Hinawi, which means, as a practical
matter, that the Court accepts as true the well-pled allegations
in the Complaint about him that is, that he is a Hamas
terrorist and one of two Hamas agents who carried out the attack
on David Boim. See Complaint, ¶¶ 13, 25-28; Dundee Cement Co.
v. Howard Pipe & Concrete Products, Inc., 722 F.2d 1319, 1323
(7th Cir. 1983) ("As a general rule, a `default judgment
establishe[s], as a matter of law, that defendants [are] liable
to plaintiff as to each cause of action alleged in the
complaint.' . . . Upon default, the well-pleaded allegations of a
complaint relating to liability are taken as true.") (quoting
Breuer Electric Mfg. Co. v. Toronado Systems of America, Inc.,
687 F.2d 182, 186 (7th Cir. 1982).
In short, all of the evidence in the record on this issue
points to Hamas as the entity responsible for David's murder.
Even now, HLF has offered no evidence that anyone other than
Hamas was responsible for the attack. Accordingly, the Court
finds that David Boim was murdered by Hamas activists, in a
Hamas-sponsored attack, and that no reasonable jury could find otherwise.
The Court turns now to the collateral estoppel issue and
considers what effect, if any, the D.C. Circuit's rulings in the
Ashcroft case should have on this case. The Boims argue that
HLF is collaterally estopped from relitigating the issue of
whether it knowingly funded Hamas and its terrorist activities.
The Boims assert that HLF has already raised this issue and
lost in the Ashcroft case.
"Under the judicially-developed doctrine of collateral
estoppel, once a court has decided an issue of fact or law
necessary to its judgment, that decision is conclusive in a
subsequent suit based on a different cause of action involving a
party to the prior litigation." United States v. Mendoza,
464 U.S. 154, 158 (1984) (citing Montana v. United States,
440 U.S. 147, 153 (1979)). "Collateral estoppel, like the related doctrine
of res judicata, serves to `relieve parties of the cost and
vexation of multiple lawsuits, conserve judicial resources, and,
by preventing inconsistent decisions, encourage reliance on
adjudication.'" Id. (quoting Allen v. McCurry, 449 U.S. 90,
94 (1980)). At various turns, the Supreme Court has broadened the
scope of the collateral estoppel doctrine, first by abandoning
the mutuality of parties requirement, and then by approving the
"offensive" use of collateral estoppel that is, the use of the
doctrine by a plaintiff seeking to foreclose a defendant from relitigating an issue the defendant previously lost against
another plaintiff. Id. at 158-59 (citing Blonder-Tongue
Laboratories, Inc. v. University of Illinois Foundation,
402 U.S. 313 (1971); Parklane Hosiery Co. v. Shore, 439 U.S. 322
(1979)). See also Wolverine Mutual Insurance v. Vance,
325 F.3d 939, 943 n. 3 (7th Cir. 2003).
Collateral estoppel "may compel a grant of summary judgment as
to the factual issues resolved by [an] earlier judgment." Cook
County v. Lynch, 560 F. Supp. 136, 140 (D.C. Ill. 1982). The
doctrine applies when (1) the issue sought to be precluded is the
same as that involved in the prior action; (2) that issue was
actually litigated; (3) the determination of the issue was
essential to the final judgment; and (4) the party against whom
estoppel is invoked was fully represented in the prior action.
Chicago Truck Drivers, Helpers & Warehouse union (Independent)
Pension Fund v. Century Motor Freight, Inc., 125 F.3d 526 (7th
Cir. 1997). It "does not apply when the party against whom the
earlier decision is asserted did not have a `full and fair
opportunity' to litigate the claim or issue. . . ." Kremer v.
Chemical Construction Corp., 456 U.S. 461, 480-81 (1982) (citing
Allen v. McCurry, 449 U.S., at 95; Montana v. United States,
440 U.S. 147, 153 (1979); Blonder-Tongue Laboratories, Inc. v.
University of Illinois Foundation, 402 U.S. 313, 328-329
(1971)). And "`[r]edetermination of issues is warranted if there
is reason to doubt the quality, extensiveness, or fairness of procedures
followed in prior litigation.'" Id. at 481 (quoting Montana,
440 U.S. at 164 n. 11).
Notably, the Court is not being asked to consider the adequacy
of the process provided HLF in the designation proceedings, to
the extent there were any designation proceedings. The prior
action in question is not the SDT designation, but the
proceedings in the Ashcroft case challenging that designation.
Thus, the question before this Court is whether the decision of
the D.C. Circuit not the underlying decision by OFAC
satisfied the elements set forth above. With regard to those
elements, the parties agree that HLF was fully represented in the
Ashcroft case; they disagree as to whether the remaining
elements have been satisfied. HLF argues that collateral estoppel
cannot apply, because the issues before this Court are different
from those decided in the Ashcroft case, and because the D.C.
courts did not provide HLF with a "full and fair opportunity" to
litigate the question of whether it ever provided support to
In the Ashcroft case, HLF sued the individuals and agencies
responsible for HLF's SDT and SDGT designation, and for the
seizure of HLF's assets. In its complaint, HLF alleged that the
defendants violated HLF's procedural due process rights by
depriving HLF of its property without prior notice and a hearing, and without a prompt post-deprivation hearing, all in violation
of the Fifth Amendment to the United States Constitution (Count
One); that the defendants violated HLF's Fifth Amendment right to
substantive due process (Count Two); that the defendants' seizure
of HLF's assets constituted a taking without just compensation,
in violation of the Fifth Amendment's Takings Clause (Count
Three); that the defendants searched HLF's premises and seized
HLF's assets without a warrant and without probable cause, in
violation of the Fourth Amendment to the United States
Constitution (Count Four); that the defendants' designation of
HLF as an SDT and an SDGT and their seizure of HLF's assets
substantially interfered with HLF's rights to freedom of speech
and freedom of association, as guaranteed by the First Amendment
(Count Five); that the defendants' designation of HLF as an SDT
and an SDGT and their seizure of HLF's assets substantially
burdened HLF's exercise of religion, as well as that of HLF's
employees and donors, in violation of both the First Amendment
and the Religious Freedom Restoration Act (Counts Six and Seven,
respectively); and that the designation and seizure of assets
were done in violation of various sections of the Administrative
Procedures Act (Count Eight). See Holy Land Foundation v.
Ashcroft, et al., No. 02cv00442 (GK) (D.D.C. Complaint filed
March 8, 2002) (attached as Exhibit 15 to Plaintiffs' (HLF) Rule
56.1 Statement). HLF sought a declaratory judgment that the defendants' actions violated HLF's rights as outlined in the
complaint, and an injunction restraining the defendants from
continuing to block HLF's assets, as well as fees and expenses.
On May 31, 2002, the Ashcroft defendants filed a motion
seeking dismissal of Counts One through Seven, and summary
judgment on Count Eight, the Administrative Procedures Act claim.
See HLF v. Ashcroft, et al., No. 02cv00442 (GK) (D.D.C. Motion
filed May 31, 2002) (attached as Exhibit 18 to Plaintiffs' (HLF)
Rule 56.1 Statement). The district court conducted a "lengthy
motions hearing" on HLF's motion for a preliminary injunction and
the defendants' dismissal and summary judgment motions. Based on
the presentations at that hearing, as well as the parties' briefs
and the entire administrative record before it, the court issued
its opinion. See Holy Land Foundation for Relief & Development
v. Ashcroft, et al., 219 F. Supp. 2d 57 (D.D.C. 2002).
As a preliminary matter, the district court determined that the
scope of its review was limited to the administrative record,
primarily because HLF had failed to establish that the record
was, in any way, incomplete and had failed to demonstrate any
bias or bad faith on the part of OFAC in the designation process.
Id. at 65-66. In ruling on the defendants' motion for summary
judgment on HLF's APA claim, the district court determined that
OFAC's decision to designate HLF as an SDT and an SDGT was neither arbitrary nor capricious; rather, the court held, "[t]he
seven volume, 3130 page administrative record in this case
provides substantial support for OFAC's determination that HLF
acts for or on behalf of Hamas." Id. at 69. Specifically, the
court noted, "the administrative record contains ample evidence
that . . . HLF has had financial connections to Hamas since its
creation in 1989; . . . HLF funds Hamas-controlled charitable
organizations; . . . HLF provides financial support to the
orphans and families of Hamas martyrs and prisoners; [and] FBI
informants reliably reported that HLF funds Hamas." Id. at 69.
The court then detailed the evidence in the administrative record
supporting each of these points, concluding that, because OFAC's
determination that HLF acts for or on behalf of Hamas was neither
arbitrary nor capricious, but was supported by substantial
evidence in the administrative record, the defendants had not
violated the APA and were, therefore, entitled to summary
judgment on that claim. Id. at 74-75.
With respect to the defendants' motion to dismiss the RFRA and
constitutional claims, the district court held that HLF had
failed to state a claim under the RFRA, the First Amendment or
the Fifth Amendment. Specifically, the court held that the
defendants' actions had not run afoul of procedural or due
process concerns or the Takings Clause, id. at 76-78, and that
HLF failed to state a claim for violation of any right to free association, free speech, or the free exercise of religion. Id.
at 80-83. The court held, however, that HLF had stated a claim
for violation of its Fourth Amendment rights, most notably by
alleging that the government had entered HLF's offices, searched
HLF's property, and seized HLF's documents and office equipment,
all without a warrant, and without otherwise establishing the
necessary probable cause. Id. at 79-80.
On HLF's preliminary injunction motion, the court held that HLF
had not demonstrated a likelihood of success on any of its
claims, and that the balance of harms and public interest would,
in any case, weigh in favor of denying HLF's motion. Id. at
84-85. Thus, in the end, the district court denied HLF's
preliminary injunction motion, and granted the defendants' motion
to dismiss and for summary judgment as to all but the Fourth
Amendment claim. Id. at 85.
HLF appealed, arguing, among other things, that the district
court erred in refusing to order the administrative record
completed and supplemented, and that the defendants' designation
of HLF as an SDT and an SDGT and the attendant seizure of HLF's
assets were arbitrary and capricious. See Holy Land Foundation
for Relief & Development v. Ashcroft, et al., No. 02-5307 (D.C.
Cir. Brief of Appellant filed January 23, 2003) (attached as
Exhibit 17 to Plaintiffs' (HLF) Rule 56.1 Statement). In
connection with the first argument, HLF claimed that the district court had refused to allow HLF to conduct discovery and refused
to supplement and complete the record with exhibits HLF proffered
that demonstrated the inaccuracy of the record. See Brief of
Appellant, p. 53. In its opinion, issued after oral argument, the
D.C. Circuit first agreed with the district court that the
decision to designate HLF as an SDGT was "based on ample evidence
in a massive administrative record." 333 F.3d at 162. In reaching
this conclusion the court: rejected HLF's attempt to attack the
hearsay evidence in the record, noting that "the government may
decide to designate an entity based on a broad range of evidence,
including intelligence data and hearsay declarations"; and
rejected HLF's attempt to characterize as irrelevant evidence in
the record that pre-dated the 1995 designation of Hamas as a
terrorist organization, noting that HLF presented no plausible
evidence showing that HLF's ties to Hamas had been severed. Id.
The court held that OFAC had reasonably determined that Hamas had
an interest in HLF's property, as the record "provided
substantial evidence to support that conclusion." Id. at 163.
Further, the court held, in the course of the redesignation
proceedings, if not the initial designation proceedings, "HLF was
accorded all the administrative process it was due. . . ." Id.
at 163. Specifically, the court noted, in April 2002, the
Department of the Treasury notified HLF that it was re-opening the administrative record and considering whether to re-designate
HLF as an SDGT on the basis of additional evidence linking HLF
and Hamas; HLF was given thirty-one days to respond; HLF
responded, and Treasury considered its response as well as the
other evidence in deciding whether redesignation was appropriate.
Id. at 164. This was enough, the court held, to satisfy due
process concerns under the circumstances. Id.
The Ashcroft court recognized in its appellate opinion, for
the district court "to reach the outcome that it did [on
defendants' motion to dismiss HLF's First Amendment claims], that
there is no constitutional right to fund terrorism, the district
court first had to find that HLF funds terrorism." Id. at 165.
The D.C. Circuit acknowledged that this was improper in the
context of a motion to dismiss under Rule 12(b) (6), which does
not permit the court to look beyond the complaint and would not
have permitted the court here to consider the administrative
record, as it unquestionably did. Id. at 165. But, the court
held, any error on the part of the district court in this regard
was harmless, because under no circumstances could HLF have come
forward with evidence upon which a reasonable trier of fact could
have found that the SDT and SDGT designation and the blocking
order violated HLF's First or Fifth Amendment rights. Id. at
165. On this point, the D.C. Circuit determined that:
[t]he ample record evidence (particularly taking into
account the classified information presented to the court in camera) establishing HLF's role in the
funding of Hamas and its terrorist activities is
incontrovertible. While not in accordance with proper
procedures, HLF has had every opportunity to come
forward with some showing that that evidence is false
or even that its ties to Hamas had been severed.
HLF's presentations at the administrative stage did
not reach this goal, even when HLF was given an
additional thirty-one days to respond to its
redesignation and to the new evidence in April of
333 F.3d at 165-66.
Based upon the quoted language, this Court is persuaded that
the question of whether HLF provided material support to Hamas
was not only actually litigated in the Ashcroft case, but it
was necessary to the D.C. Circuit's decision to affirm the
district court's dismissal of the bulk of HLF's complaint. In
short, the Court finds that the basic prerequisites for the
application of issue preclusion are satisfied the issue on
which the Boims seek to preclude HLF is the same as that involved
in the prior litigation, the issue was actually litigated, and it
was essential to the final judgment. See Chicago Truck Drivers,
Helpers and Warehouse Union (Independent) Pension Fund v. Century
Motor Freight, Inc. 125 F.3d 526, 530 (7th Cir. 1997).
Turning to the question of whether HLF had a "full and fair
opportunity" to litigate this issue, the Court begins with the
proposition that "judicial affirmance of an administrative
determination is entitled to preclusive effect." Kremer,
456 U.S. at 480 n. 21 (citing CIBA Corp. v. Weinberger,
412 U.S. 640, 644 (1973)). It is of no consequence that the Ashcroft litigation involved the judicial review of an administrative
determination, as opposed to being a case initiated in the
federal courts. Grubb v. Public Utilities Comm'n, 281 U.S. 470,
475-477 (1930). Additionally, the "full and fair opportunity to
litigate requirement is satisfied so long as minimum due process
standards are satisfied." Charles Koen & Associates v. City of
Cairo, 909 F.2d 992, 1000 (7th Cir. 1990). HLF argues that this
was not the case in the D.C. Circuit proceedings, because: HLF
never had a hearing before the agency whose action HLF
challenged; HLF was denied the opportunity to put exculpatory
evidence in the record; HLF was denied the opportunity to call
witnesses to establish its innocence; the court sustained the
agency's decision even though it was based entirely on hearsay;
the court relied on secret evidence; the court granted summary
judgment against HLF sua sponte, without first providing notice
of its intent to do so; and the court struck from the record all
of the evidence HLF tendered.
None of HLF's arguments on this score is new; each was raised
and rejected in the Ashcroft case. The Court similarly
rejects them here. First, based upon the exhibits submitted, it
appears that the administrative record challenged in the
Ashcroft case actually did contain the documents HLF sought to
include. At a hearing on HLF's attempt to obtain evidence outside
the parameters of the administrative record, Judge Kessler, the district judge to whom the Ashcroft case was
assigned, specifically asked the government's attorney whether
the administrative record included HLF's materials, and she
represented that it did:
THE COURT: All right. Then I want to know whether
that record includes any of the materials which I
believe plaintiff says that it submitted to Treasury
in that period between the designation and the
MS. SHAPIRO: Yes, absolutely. In fact one of the
things that was accomplished by doing the
redesignation was the incorporation of all of the
materials that plaintiff submitted with its motion
for a preliminary injunction, and an additional
letter that Mr. Cline wrote to the Treasury
Department making some additional points in addition
to incorporating those documents.
Those are all contained in the administrative record.
I think there may be close to an entire volume
dedicated to their submissions.
See Holy Land Foundation v. Ashcroft, No. 02-442, Transcript of
Motions Hearing Before Judge Kessler, p. 25 (D.D.C. July 18,
2002) (attached as Exhibit 6 to HLF's Rule 56.1 Statement).
Moreover, HLF has never (in the Ashcroft case or in this
Court) offered any insight as to what was lacking in the record
before the federal courts in the Ashcroft case. In its
appellate brief to the D.C. Circuit, HLF attempted to support its
argument that the government's SDT designation was incorrect and
biased with evidence HLF had unearthed showing that (1) the
United States Agency for International Development ("USAID")
issued a 2002 press release boasting that it (USAID) had
contributed food, water and medical supplies to Al Razi Hospital;
and (2) another non-Muslim charity that was in partnership with USAID publicly
acknowledged donating to Al Razi Hospital, as well as at least
three of the same zakat committees that HLF contributed to the
same committees that evidenced, according to the government,
HLF's support of Hamas. See Holy Land Foundation v. Ashcroft,
No. 02-5307, Brief of Appellant at 56, filed January 23, 2003
(D.C. Cir.) (attached as Exhibit 17 to Plaintiffs' (HLF) Rule
56.1 Statement). As the Court sees it, there are two problems
with this evidence: first, contributing to one entity or even a
few entities connected to Hamas is not the same thing as
deliberately targeting Hamas-controlled entities to receive the
vast majority of one's money, which is what the government showed
HLF did. Second, and more importantly, this evidence does nothing
to disprove the evidence showing that HLF provided material
support to Hamas.
Finally, "[d]ue process is not a fixed menu of procedural
rights. How much process is due depends on the circumstances."
Society of Lloyd's v. Ashenden, 233 F.3d 473, 479 (7th Cir.
2000). See also Moyer v. Peabody, 212 U.S. 78, 84-85 (1909)
("what is due process of law depends on circumstances. It varies
with the subject-matter and the necessities of the situation."),
cited in Hamdi v. Rumsfeld, ___ U.S. ___, 124 S.Ct. 2633, 2681
(June 28, 2004) (Thomas, J., dissenting). The Court is persuaded
that, under the circumstances, HLF had a "full and fair opportunity" to litigate its claim that it did not provide
material support to Hamas. In proceedings before the D.C.
Circuit, HLF was represented by counsel, and HLF had the
opportunity to argue and explain its position fully. It is true
that Judge Kessler denied HLF's motion to expand the scope of her
review, and denied HLF the opportunity to depose witnesses
involved in the designation and re-designation proceedings. But
it is equally true that that decision was not made until after
the judge had heard a detailed proffer from HLF's counsel
concerning what information and discovery they sought, and why.
This Court is in no position to second guess the judge's rulings
on the issue. Moreover, the D.C. Circuit did consider the judge's
rulings on the issue, and, in those proceedings, HLF was again
ably represented by counsel, who had a full and fair hearing
before the Court of Appeals.
To the extent the proceedings surrounding HLF's SDT designation
and redesignation failed to measure up (in terms of discovery and
the strict adherence to the rules of evidence) to the standards
one might expect to find in a de novo proceeding in federal
court, that is perhaps excusable; after all, the designation
proceedings were not a de novo proceeding in a federal court.
Rather, HLF's complaints arise and must therefore be viewed
in the context of executive orders, agency action and judicial
review of that action, all involving a volatile and emotional issue (terrorism). This Court does not
know and will likely never know the exact nature of the
"classified information" that was "presented to the [D.C.
Circuit] in camera." See Holy Land Foundation v. Ashcroft,
333 F.3d at 165. But that does not vitiate the potential
preclusive effect of the court's judgment. Indeed, collateral
estoppel or issue preclusion may appropriately be applied based
on default proceedings, where the later court has no evidence
before it, and based on proceedings that are so abbreviated that
they are the functional equivalent of default proceedings. E.g.,
In re Catt, 368 F.3d 789, 791-92 (7th Cir. 2004).
The Court is not insensitive to HLF's contention that some
Muslims and affiliated organizations have experienced certain
hardships in the post-September 11th climate in America. But the
Court's role requires it to focus not on generalities, but on
specifics. And here, HLF has given the Court no reason to
question the D.C. Circuit's judicial independence or integrity.
There is nothing to suggest that the court acted inappropriately
or as a rubber stamp for the Justice Department. On the contrary,
based upon the record, the Court can only conclude that the D.C.
Circuit provided HLF with a full and fair opportunity to present
its side of the case; the court simply chose to reject HLF's side
in favor of the defendants'.
In short, HLF had a full and fair opportunity to be heard on the question of whether it provided material support to Hamas,
the question was actually litigated and decided in the Ashcroft
case, and this Court is bound by the D.C. Circuit's ruling on the
issue. Collateral estoppel applies here, and, as a result, the
Boims are entitled to summary judgment against HLF on liability.
With the D.C. Circuit's ruling, as well as the other evidence in
the record linking Hamas to David Boim's murder and linking HLF
to Hamas, no reasonable jury could find for HLF on the liability
issue. Accordingly, the Court grants the Boims' motion for
summary judgment, and denies HLF's motion for summary judgment.
2. Motions Filed By and Against IAP and AMS
The Islamic Association for Palestine ("IAP") and the American
Muslim Society ("AMS") joined forces, as they did with their
Answer to the Complaint, in their joint motion for summary
judgment. In their motion, they argued that, although the record
might contain some evidence that some of the other defendants
knew about Hamas' terrorist activities and engaged in acts to
help those activities succeed, the record contains no evidence
that this was true of IAP or AMS. The Boims filed a cross-motion
for summary judgment on the issue of liability only, arguing that
IAP and AMS provided material support to Hamas by paying for
Hamas leaders and members to come to the United States to attend
and speak at conferences, by helping to distribute pro-Hamas
literature and propaganda, and by using that literature and propaganda to solicit donations to Hamas' cause.
For IAP and AMS to be liable to the Boims under
18 U.S.C. § 2333, they must have known about Hamas' illegal activities, they
must have desired to help those activities succeed, and they must
have engaged in some act of helping. See Boim v. Quranic
Literacy Institute, et al., 291 F.3d at 1023. Summary judgment
in the defendants' favor is appropriate only if no reasonable
jury could find for the Boims on these points; conversely,
summary judgment in the Boims' favor is appropriate only if no
reasonable jury could find for the defendants on these points.
See Anderson, 477 U.S. at 248.
The first element of the Boims' claim requires a showing that
IAP and AMS knew about Hamas' illegal activity, and, on this
point, the record is clear: IAP and AMS concede that Hamas "has
used political and violent means, including terrorism, to pursue
its goal of establishing an Islamic Palestinian state in Israel,
the West Bank, and Gaza," and they concede that Hamas was
responsible for David Boim's murder. See IAP/AMS' Rule 56.1
Statement, ¶¶ 10-11; IAP/AMS' Response to Plaintiffs' Rule 56.1
Statement, ¶ 5. The remaining two elements that IAP and AMS
desired to help Hamas' illegal activities succeed, and that they
engaged in some act of helping to further that goal require a
bit more discussion.
At the outset, the Court notes that IAP and AMS' arguments on summary judgment, both in their own motion, and in response to
the Boims' motion, effectively boil down to: "that's a different
organization; that's not us." The Court rejects the notion that
the IAP involved in this case is somehow different from the IAP
whose name appears throughout the record. Although the evidence
shows that there were a number of organizations using the IAP
name, the evidence also shows that those organizations were
related whether officially or unofficially.
According to the parties' statements of fact, the IAP named in
the Boims' complaint is a not-for-profit Texas corporation; the
Court will refer to this entity as "IAP Texas" in an attempt to
avoid confusion. AMS, another named defendant, is a
not-for-profit Illinois corporation that serves as the Chicago
Chapter of IAP. According to IAP and AMS, the purpose of both
corporations is "to promote the cause of Palestine in America";
according to the Boims, their purpose is "to promote Hamas and
the Muslim Brotherhood." See IAP/AMS' Rule 56.1 Statement, ¶¶
4-5; Plaintiffs' Response to IAP/AMS' Rule 56.1 Statement, ¶¶
In their complaint, the Boims allege that "[t]here has been
continuously since the early 1980's an entity or group of persons
and entities operating under the name "Islamic Association for
Palestine" (collectively, "IAP National")" and that "IAP National
is an umbrella organization that encompasses the various
organizations throughout the country which call themselves "IAP," including Defendants AMELP, AMS and IAP Texas." See First
Amended Complaint, ¶ 7. Although the defendants dispute this, the
evidence bears this out.
Rafeeq Jaber testified that he has served as President of AMS
from its inception in 1993 to the present; he also served as
President of an entity referred to as "IAP National" from 1996 to
1998, and then again from 1999 to the present. Transcript of
Deposition of Rafeeq Jaber taken April 9, 2003,*fn3 pp.
10-12 (attached as Exhibit 10 to the Appendix of Exhibits to
Plaintiffs' Answer to IAP and AMS' Rule 56.1 Statement). He
testified that he also served as the President of IAP Texas
beginning in 2002. Id., p. 15. Although he testified that IAP
Texas and AMS are two distinct entities, he also testified that
IAP National is sort of an umbrella organization that floats
between IAP Texas and AMS, without any separate corporate
structure; when IAP National is headquartered in Dallas, IAP
Texas serves as the National organization; when IAP National is
headquartered in Chicago, AMS serves as the National
Organization. Id., pp. 13-15. Thus, there is no question that,
during the years when IAP Texas served as the headquarters for IAP National, IAP Texas and IAP National were one and the same;
similarly, when AMS served as the headquarters for IAP National,
AMS and IAP National were one and the same.
Similarly, Omar Ahmad, who served as the President of IAP
National before Mr. Jaber, testified that AMELP, another of the
companies alleged by the Boims to be within IAP's umbrella, did
business for a time as IAP, though apparently without any kind of
corporate formality. See Deposition of Omar Ahmad, pp. 38, 46,
Mr. Jaber testified that, even when IAP National was based in
AMS' Chicago office, IAP Texas continued to be responsible for
certain IAP National projects; IAP Texas published Al-Zaytuna, it
held fundraising events, sold promotional merchandise and it
helped to organize and plan IAP's annual conference. Jaber
Deposition I, pp. 131-32. Mr. Jaber also testified that IAP Texas
created promotional items videotapes, audiotapes, t-shirts,
cups and such and then IAP National and AMS sold them for
profit. Id., pp. 95-96. Mr. Jaber testified that IAP National
and AMS "exchange[d] money" with IAP Texas. Id. at 261. He also
testified that, at times, AMS and IAP National gave money to
AMELP. Jaber Deposition II, pp. 51-52 (attached as Exhibit 5 to
IAP and AMS' Rule 56.1 Statement).
The Boims' characterization of IAP as an umbrella organization
is further supported by Mr. Jaber's testimony that IAP National, the organization that floated between AMS and IAP
Texas, had "chapters" in various other parts of the country,
including Detroit, Wisconsin, New Jersey and California. Jaber
Deposition I, pp. 184-85. According to Mr. Jaber, the chapters,
which were really more like committees, helped to publicize
conferences and other events put on by IAP National, and they
helped to raise money for IAP. Id. at 185-88, 192. In fact, he
testified that, in the years before AMS was officially
incorporated, he was known as the head of IAP's Chicago chapter;
he testified that he formed AMS, in large part, to make more
official or legitimate the activities that he was already doing
for IAP National. Jaber Deposition II, pp. 89-90.
Further solidifying the fact that these organizations are all
related, loosely if not officially, is the fact that they have
acted as one in this lawsuit. As noted, IAP and AMS filed a joint
answer, as well as a joint motion for summary judgment and a
joint response to the Boims' motion. And, according to Mr. Ahmad,
AMS hired Mr. Fennerty to represent it in this lawsuit, and AMELP
just tagged along. Ahmad Deposition, p. 44.
In short, the record shows that at all times relevant to this
action, there was a national organization serving as the Islamic
Association for Palestine, and that IAP Texas and AMS either
formally served as that organization, or were so intertwined and
involved with that organization as to make any formal distinction meaningless. The defendants cannot now hide
behind their ambiguous and amorphous corporate design. The Court
finds that the defendants' "it wasn't us" arguments ring hollow.
Turning to the question of whether IAP and AMS desired to help
Hamas' activities succeed, and, in fact, engaged in some act of
helping those activities succeed, the record contains an
abundance of evidence that both of these propositions is, in
fact, true. First, the Watson Memorandum includes a report of
surveillance tapes that clearly demonstrate a desire on the part
of all in attendance to help Hamas survive and prosper. See AR
1399-1475 (attached as Exhibit 5 to Plaintiffs' (IAP/AMS) Rule
56.1 Statement). The reports detail conversations that were
recorded in October of 1993, during a meeting that took place in
The overarching theme of the discussions taped by the FBI
concerned how the entities affiliated with and working for Hamas
should operate in the United States in light of the Oslo Accord,
more formally known as "the Oslo Declaration of Principles," in
which Yasser Arafat and Yitzhak Rabin recognized, ostensibly on
behalf of Palestinians and Israelis, each other's right to exist
as a people within the borders of Palestine/Israel, and committed
themselves to negotiating a permanent settlement and to improving
relations between the two peoples. The participants in the
Philadelphia meeting, all believed by the FBI to be members or supporters of Hamas, universally condemned the Accord and vowed
to do what they could to ensure its failure. For example,
according to the FBI, Mr. Ashqar asked rhetorically "What shall
we do next?" and answered that "[t]he answer is to adhere to a
strategy that can make the accord fail"; said "we can achieve
that," but "how to achieve our goals is not the subject of this
meeting. The objective is how can we act in the American
theater." Exhibit 5, AR 1419. See also AR 1458 (recap of
meeting's objectives listing, as number one, "[t]he need to make
the peace accord fail.")
The men discussed the best way to support the Movement, which
clearly refers to Hamas, though they tried to be careful about
using the name Hamas, and concluded that the institutions
operating in the United States "should be at the service of the
Movement over there [and that] [t]his should include finance,
information, political and everything." Id., 1431. According to
the FBI report, the men discussed trying to increase awareness
and fundraising efforts by bringing in guests from the occupied
territories to speak at mosques and Islamic centers (AR 1432),
having HLF and IAP join forces (AR 1439), placing appeals for
humanitarian donations in Al-Zeitouna, the Monitor and other
Islamic magazines (AR 1443), among other means. According to the
FBI, a speaker identified as Abdul Rahman LNU (last name unknown)
urged that the group should "concentrate our efforts on supporting Jihad. . . . This can be done, he said, through
concentrating our financial resources on those directly connected
with Jihad, such as [the] injured, the martyrs, their families
and the prisoners." Exhibit 5, AR 1445.
At a closing meeting, the men discussed that "their
institutions, such as the Fund [HLF] and the Union [IAP] were
established in the first place to provide assistance to the
Movement [Hamas] inside the Occupied Territories and they should
not deviate from this objective." Id., AR 1459. Ultimately, the
group concluded that IAP should not change its objectives or
methods dramatically. See id., AR 1461.
According to the FBI, Omar Ahmad attended that meeting. At his
deposition in this case, Mr. Ahmad testified that he could not
recall whether he attended the 1993 meeting in Philadelphia.
Deposition of Omar Ahmad, pp. 221-25. But he testified that it
was not uncommon for him to meet with the men identified in the
surveillance report Abdelhaleem Hassan Ashqar, Akram Karubi,
Mohammed Al-Hanooti, Ismail Elbarasse, Moin Kamal, Mohammed
Shabib, Shukri Abu-Baker, Ghassan Elashi, and Haitham Maghawri.
Id., pp. 241-42. Mr. Ahmad testified that he knew some of these
men back in 1993 namely, Messrs. Ashqar, Karubi, Al-Hanooti,
Elashi, Abu-Baker and Maghawri; he further testified that he did
not know whether Ashqar, Karubi, Al-Hanooti, and Elashi were or
were not members or supporters of Hamas, but that he knew for sure that Abu-Baker and Maghawri were not. Id., pp. 227-235,
237. He testified that both Messrs. Abu-Baker and Maghawri told
him many times that they had nothing to do with Hamas. Id., p.
Mr. Ahmad testified that he served as President of AMELP, but
he could not remember the exact time frame. Ahmad Deposition, p.
8, 30. He also testified, however, that, during the time when he
was President of AMELP, AMELP was doing business as IAP and
sometimes as the IAP Information Office, and he testified that
AMELP did business as IAP, and sometimes as the IAP Information
Office, during the early 1990s. See Ahmad Deposition, p. 38,
46, 76-77. Thus, it is extremely likely that Omar Ahmad was
serving as President of AMELP and IAP in October 1993, when the
Philadelphia meeting took place. This is consistent with the
testimony of Rafeeq Jaber, who testified that he became President
of IAP in 1996, and that Mr. Ahmad preceded him in that position;
he also testified that, when he was working with IAP in the late
1980s and early 1990s, he dealt with the President of IAP, who
was Jasser Bushnaq first and then Omar Ahmad. See Jaber
Deposition I, p. 55-56.
In addition to the documents contained in the Watson
Memorandum, the record contains evidence that IAP and AMS (as
well as the various organizations within the national IAP
umbrella) contributed money, on a number of occasions, to HLF, and that they routinely and consistently encouraged people to
donate money to HLF, and otherwise assisted in HLF's fundraising
endeavors. See, e.g., Jaber Deposition I, pp. 69-76. Mr. Jaber
testified that some of the money IAP and AMS gave to HLF actually
represented donations from individuals who had given the money to
IAP or AMS to give to HLF; Mr. Jaber testified that people
sometimes came to him and asked if he would accept a donation to
AMELP or HLF, he accepted the donation, and then turned around
and wrote a check to AMELP or HLF. Id., pp. 73-74, 76. When
asked why people would give IAP or AMS money on behalf of HLF,
Mr. Jaber testified that he recommended HLF to people wishing to
make donations to the Palestinian cause. Jaber Deposition I, pp.
Mr. Jaber testified that IAP and AMS "encourage[d] people to
donate for [HLF] of course," and "we mention that in our IAP web
page." Id., pp. 201-02. He testified that neither IAP National
nor AMS has ever donated its own money to HLF, but that they
worked to "promote [HLF] in every way we can." Id., pp. 203,
206. Mr. Jaber testified that one way IAP promoted HLF was by
including solicitations for donations to HLF in the press
releases and "action alerts"*fn4 IAP National published.
Id., pp. 206-08. Mr. Jaber testified that IAP National routinely solicited
donations to the Occupied Land Fund and HLF "to support the needy
people in Palestine." Jaber Deposition II, pp. 166-67. Omar Ahmad
similarly testified that IAP advertised for HLF, and encouraged
people to donate to HLF. Ahmad Deposition, pp. 98-100.
Additionally, Mr. Jaber testified that IAP allowed HLF to set
up a booth at its annual conventions to do its own fundraising;
he also testified that the money IAP raised at its 1996
convention all went to HLF. Jaber Deposition I, pp. 253-55.
Mr. Jaber also testified that, long before he officially formed
AMS in 1996, he was actively involved in the business of IAP
through an organization called the Mosque Foundation. See Jaber
Deposition II, pp. 69-70. Mr. Jaber testified that, in connection
with his involvement with the Mosque Foundation, he became known
as the head of IAP's Chicago Chapter in 1991. In that capacity,
in the late 1980s and early 1990s, he worked with IAP to sponsor
annual events celebrating the anniversary of the Intifada. Id.,
pp. 70-76, 80-81. Mr. Jaber testified that the money raised
during these Intifada celebrations all went to HLF (or the
Occupied Land Fund, as it was then known). Id., pp. 77-78.
Although these fundraising and financing activities relate to
HLF, and not Hamas, taken in the context of the findings made above and elsewhere about HLF's established link to Hamas, this
is strong evidence that IAP was supporting Hamas, consistent with
the FBI's surveillance reports.
Beyond fundraising, the record shows that IAP and AMS published
and distributed an abundance of pro-Hamas documents. Mr. Ahmad
testified that IAP published statements and information from
Hamas. Ahmad Deposition, pp. 254-55. Mr. Jaber initially
testified that, at least while he was in charge, neither IAP nor
AMS had ever published Hamas press releases or communiques (he
could not say whether the same was true before he assumed
control). Jaber Deposition I, p. 165. On further questioning,
however, he admitted that the December 1988/January 1989 edition
of Ilafilastine featured IAP's logo and published a Hamas
statement, along with a solicitation for donations to be made to
the Occupied Land Fund (HLF); Mr. Jaber also admitted that IAP's
logo appeared on the publication of Hamas' charter, as did
several IAP addresses. Jaber Deposition II, pp. 175-76. Mr. Jaber
also admitted that IAP had more recently published and
distributed a number of pro-Hamas documents, including an August
30, 2001 editorial written by Khalid Amyreh that advocated
martyrdom operations, meeting death with death, and killing jews.
Jaber Deposition II, pp. 189-90. He testified that IAP paid Mr.
Amyreh for the material he provided, but that IAP did not
necessarily publish the editorial because it shared Mr. Amyreh's views. Id., pp. 190-92.
Additionally, Mr. Jaber testified that, when Mohammed Salah was
arrested in Israel, IAP National and AMS had a number of events
to try and garner public support for his release. Jaber
Deposition I, pp. 212-13. Though, in fairness, he also testified
that he believed the Israeli government was holding Mr. Salah
without justification. Id., p. 214. On the other hand, Mr.
Jaber testified that, in 1997, under his leadership, IAP National
published documents designed to garner public support for Abu
Marzook, who Mr. Jaber knew at the time to be the head of the
political bureau of Hamas. Id. at 227-29. Despite this, Mr.
Jaber testified, AMS and IAP National "got involved in the case"
by printing and distributing information about Mr. Marzook and
his arrest in New York, and by asking people "to write to the
president, to the judge. . . ." Jaber Deposition I, pp. 78-79.
Mr. Jaber testified that IAP National and AMS generated and
distributed documents aimed at rallying support for HLF after
HLF's assets were seized by OFAC. Jaber Deposition II, pp. 98-99.
Of course, publishing documents in support of members of Hamas or
in support of organizations or people known to support Hamas is
not against the law. But all of this does tend to evidence a
desire on the part of IAP to help Hamas succeed.
The record also shows that IAP held annual conferences or
conventions, invited pro-Hamas speakers to present at those conferences or conventions, and paid for their travel expenses.
Omar Ahmad testified that, when he was President of AMELP, doing
business as IAP, IAP's practice with respect to the annual
conferences was to bring in speakers from a variety of groups,
including Hamas. Ahmad Deposition, pp. 122-23. He further
testified that, when IAP brought a speaker from overseas to speak
at a conference, IAP paid that person's travel expenses. Id.,
pp. 101-02. Rafeeq Jaber also testified that IAP National paid
the travel expenses of the speakers it brought in for its
conventions. Jaber Deposition I, p. 269.
The record shows that IAP's 1989 conference featured a veiled
Hamas terrorist. See Plaintiffs' Rule 56.1 Statement, Exhibit
43 (the videotape of the conference); Ahmad Deposition, pp.
196-99 (admitting that the speaker appears to represent Hamas);
Jaber Deposition II, pp. 132-35 (confirming that the tape shows
IAP's 1989 conference and bears IAP's logo). The record shows
that IAP's 1996 conference featured Sheikh Ali al-Bayanouni, who
was the leader of the Muslim Brotherhood*fn5 of Syria, and
"Sister Nadia al-Ashi, the wife of Musa Abu Marzouk,*fn6 the political leader of Hamas who has been in an American prison
for more than a year and a half." See Muslim World Monitor, p.
4 (January 1997) (attached as Exhibit A to Plaintiffs' Reply
At his deposition, Mr. Jaber was shown an excerpt from a book
by Steven Emerson entitled "American Jihad, The Terrorists Living
Among Us"; the excerpt dealt with Hamas and identified various
instances where Hamas leaders or Hamas supporters had appeared
and spoken at IAP conferences. For example, according to Mr.
Emerson, IAP's 1989 Kansas City conference featured a Hamas
commander, as well as Yusef al-Qaradawi, an Egyptian-born
religious scholar based in Qatar; IAP's 1996 Chicago conference
featured Mohammad abu Faris, a Jordanian Islamic leader who,
according to Mr. Emerson, called for jihad in his speech; IAP's
1997 Chicago conference featured Ahmed al-Kufahi, who, according
to Mr. Emerson, urged the audience to take up arms against the
Israeli occupation; IAP's 1999 conference featured Salah Sultan,
who spoke in support of the martyrdom operations; IAP's 2000
conference featured Jamal Said, who, according to Emerson,
advocated providing support for the families of the martyrs and
specifically requested that the attendees donate to that cause.
Jaber Deposition II, pp. 147-159. Mr. Jaber admitted that each of
the people identified had, in fact, given speeches at the various
IAP conferences, but he testified that he could not remember
whether they, in fact, made the statements Mr. Emerson attributed to them. Mr. Jaber made it clear, however, that he is
familiar with Mr. Emerson, and that he considers him to be an
"Arab-basher" and a "liar." Id.
The record makes clear that, if IAP has never outrightly
cheered on Hamas' terrorist activities, it has come awfully
close. Certainly, IAP has never condemned Hamas' tactics. Indeed,
Mr. Jaber testified that IAP takes no position on whether suicide
bombings, also called "martyrdom operations," are right or wrong,
"because we do not judge. I don't believe we are in a position to
judge the people what they do and what they do not do. Because
the one in the field is different than the one sitting in the
chair like me here." Jaber Deposition II, pp. 194-95. The record
shows that IAP actually praises Hamas' terrorist activities,
though it does so somewhat subtly: Mr. Jaber admitted that IAP
National, under his leadership, published articles and editorials
characterizing suicide bombers and those who carried out bombing
operations against Israeli targets as "martyrs" and as "freedom
fighters," though he claimed that IAP took no official position
on the validity of those characterizations. Jaber Deposition II,
The record also contains a declaration from Rashid Khalidi, a
professor of Middle Eastern History and the Director of the
Center for International Studies at the University of Chicago;
Professor Khalidi served as an advisor to the Palestinian delegation to the Palestinian-Israeli peace negotiations of
1991-1993 in Madrid and Washington, D.C. See Declaration of
Rashid Khalidi (attached as Exhibit 6 to IAP and AMS' Rule 56.1
Statement). Professor Khalidi's aim is to make clear that
opposition to the Israeli occupation is not the same as support
for Hamas; the Court did not for one moment equate the two. But
expressing that opposition via suicide bombings and terrorist
attacks such as the one that killed David Boim would seem, to
this Court, to be precisely what Hamas is about. And the Seventh
Circuit has instructed that those who provide material support to
terrorists, who help to fund directly or indirectly Hamas'
terrorist activities are liable, under 18 U.S.C. ¶ 2333 to the
same extent as those who actually commit the terrorist acts.
The Court recognizes that the record contains some statements
that counter the evidence detailed above. For example, in a
declaration submitted in support of IAP and AMS' motion for
summary judgment, Mr. Jaber states that, at least while he was a
member or the President of IAP and AMS, neither organization
supported terrorists or terrorist activities, engaged in helping
terrorist activities succeed, engaged in helping terrorist acts,
or intentionally, knowingly or deliberately gave money to support
terrorist activities. See Declaration of Rafeeq Jaber, ¶¶ 5-8
(attached as Exhibit 4 to IAP and AMS' Rule 56.1 Statement). But
the Seventh Circuit has said that conclusory, self-serving testimony, lacking factual support
in the record, cannot defeat a summary judgment motion. See,
e.g., Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir. 2001);
Patterson v. Chicago Ass'n for Retarded Citizens, 150 F.3d 719,
724 (7th Cir. 1998); Koelsch v. Beltone Elecs. Corp.,
46 F.3d 705, 709 (7th Cir. 1995); Darnell v. Target Stores,
16 F.3d 174, 177 (7th Cir. 1994). More importantly, Mr. Jaber's
declaration does nothing to refute the evidence that IAP provided
material support to Hamas in the years when he was not a member
and was not the President.
Based upon the evidence in the record, the Court is persuaded
that no genuine issues of fact exist, and that no reasonable jury
could, on the record before the Court, find in favor of IAP and
AMS on the question of liability. Accordingly, the Court denies
IAP/AMS' motion for summary judgment, and grants the Boims'
motion for partial summary judgment against these defendants.
3. Motions Filed By and Against Mohammed Salah
The Boims have alleged that Mohammed Salah, a naturalized U.S.
citizen who lives in Illinois, is "the admitted U.S. based
leader of the military branch of Hamas," and is named on the list
of Specially Designated Terrorists. First Amended Complaint, ¶
12. They allege that Mr. Salah was incarcerated in Israel from
January 1993 to November 1997, after pleading guilty to a variety of offenses, including financing a number of Hamas' operatives;
they further allege that, during that period of incarceration,
Mr. Salah admitted that he channeled money for Hamas' operations
and that he recruited, organized and trained terrorist operatives
in Israel. Id. Finally, they allege that Mr. Salah worked with
Abu Marzook to coordinate Hamas' fundraising and money laundering
operations in the United States. Id., ¶ 34.
To hold Mr. Salah liable under 18 U.S.C. § 2333, the Boims must
show that he knew about Hamas' illegal activities, he desired to
help those activities succeed, and he engaged in some act of
helping. See Boim v. Quranic Literacy Institute, et al.,
291 F.3d at 1023. The Boims have moved for summary judgment on
liability against Mr. Salah, arguing first that, because of the
Israeli conviction, Mr. Salah is estopped from denying that he
knew about Hamas' terrorist activities, desired to help them
succeed, and committed acts to help them succeed; alternatively,
the Boims argue that, even without the Israeli conviction, the
evidence in the record shows that Mr. Salah provided material
support to Hamas in violation of 18 U.S.C. § 2333. Mr. Salah
opposed the Boims' motion, arguing that the Israeli conviction
carries no weight in this court, and that, without that
conviction, the Boims have no evidence that he provided any
support to Hamas or that Hamas was even involved in David Boim's
murder. In fact, Mr. Salah filed a cross-motion for summary judgment, arguing that, as a matter of law, the Boims cannot
prevail on their claim against him because the record contains no
admissible evidence linking him to Hamas, and no admissible
evidence linking Hamas to David's murder.
Before turning to the merits of the parties' summary judgment
motions, the Court must address a motion to strike filed by Mr.
Salah. Mr. Salah has moved to strike a number of the exhibits
that Boims have filed in support of their motion for summary
judgment. Mr. Salah argues that Exhibits 7 through 15, 17 through
21, 23 through 26, and 28 are irrelevant, unreliable, or
otherwise inadmissible, and that the Court should not consider
them in ruling upon the Boims' motion for summary judgment. For
purposes of this motion only, the Boims have chosen not to defend
the admissibility of Exhibits 10, 17, 18, 23, 24, 26, and part of
Exhibit 12. Because of this, the Court will not consider these
exhibits in ruling on the Boims' motion for summary judgment
against Mr. Salah. The Court will address in turn below the
At the outset, on summary judgment, the Court may consider any
evidence that would be admissible at trial. See Stinnett v. Iron
Works Gym/Executive Health Spa, 301 F.3d 610, 613 (7th Cir.
2002). At this stage, the evidence need not be admissible in
form, but it must be admissible in content. Id. The question of
admissibility, as well as the decision to grant or deny a motion to strike exhibits as inadmissible, are vested in the district
court judge's sound discretion. See, e.g., Credit General
Insurance Company v. Midwest Indemnity Corp., 916 F.Supp. 766,
771 (N.D. Ill. 1996).
Mr. Salah first asks the Court to strike Exhibit 7, which the
parties have referred to as the "Hinawi conviction," though it is
really just the English translation of the notes U.S. Foreign
Service Officer Abdelnour Zaibeck made while observing Hinawi's
trial. Mr. Salah argues that the document is inadmissable because
(1) it is inauthentic, (2) it violates Federal Rule of Evidence
1002, (3) it constitutes hearsay and double-hearsay, (4) the
Boims have not complied with Federal Rule of Evidence 604
regarding interpretation and translation of this document, and
(5) it would not otherwise be admissible at trial. The Court has
not relied on this exhibit in connection with the motions
involving Mr. Salah, and will therefore grant Mr. Salah's motion
to strike it.
Mr. Salah next moves to strike Exhibits 8 and 9, which are
described, respectively, as a copy of a Palestinian Authority
website regarding Al-Sharif, one of the perpetrators of the
attack that killed David Boim, and printed material from Hamas
websites. Mr. Salah contends that exhibits 8 and 9 are
inadmissible for many of the same reasons raised in connection
with Exhibit 7 hearsay, proper authentication, and compliance with Rule 604; they also argue that the websites are irrelevant,
and that admitting them would confuse the jury. Like Exhibit 7,
these exhibits have played no role in the Court's consideration
of the motions involving Mr. Salah, and the Court will therefore
grant Mr. Salah's motion to strike them.
Mr. Salah next seeks to strike Exhibit 11, which is a
transcript, in English, of an interview of Khaled Mishaal, who
was actively involved in the creation and growth of Hamas and
served as the head of Hamas' political bureau; the interview was
conducted by Ghassan Charbel for Al-Hayat and published in seven
parts in December 2003. Mr. Salah contends that Exhibit 11 is
inadmissible because it (1) has not been authenticated pursuant
to Federal Rule of Evidence 902, (2) constitutes hearsay, and (3)
presents expert testimony without having qualified the witness as
an expert. Mr. Salah also claims that the source of Exhibit 11 is
unknown. Mr. Salah's authenticity challenge would clearly fail;
the interview was published by Al-Hayat, a well known Arabic
language newspaper, see Declaration of Reuven Paz, ¶ 19, and
under the Federal Rules of Evidence, "extrinsic evidence of
authenticity as a condition precedent to admissibility is not
required with respect to . . . [p]rinted materials purporting to
be newspapers or periodicals." Federal Rule of Evidence 902(6).
Having said this, however, because the Court has not considered
this exhibit in connection with the motions filed by and against Mr. Salah, the Court will grant Mr. Salah's motion to strike it.
Next, Mr. Salah asks the Court to strike Exhibit 12, which
consists of the declaration from Samuel A. Simon, Jr., the FBI
agent charged with responding to the Boims' subpoena for
documents relating to the Watson Memorandum, as well as the
corresponding documents that were part of the administrative
record in the Ashcroft case. For purpose of this motion only,
the Boims have stated that they do not contest the admissibility
of any of the documents, except for Agent Watson's memorandum,
and so the Court will limit its discussion to that specific
document and will not consider the remaining documents.
Mr. Salah contends that the Watson Memorandum is inadmissible
hearsay. To the extent this is true, the Watson Memorandum
clearly falls under the public record exception to hearsay, and
is therefore admissible. See, e.g., U.S. v. Sutton,
337 F.3d 792, 797 (7th Cir. 2003) (citing Beech Aircraft Corp. v.
Rainey, 488 U.S. 153, 158, 170 (1988) (opinions contained in an
investigative report of an airplane crash covered by public
record exception to hearsay)). Federal Rule of Evidence 803(8)
provides a hearsay exception for public reports setting forth
"matters observed pursuant to duty imposed by law as to which
matters there was a duty report. . . ." In his affidavit
accompanying the Watson Memorandum, Agent Simon authenticated the
report as having been part of the administrative record in the Ashcroft case. Mr. Salah does not challenge that the report was
prepared by FBI representatives in the course of the FBI's
regularly conducted activities. Nor does he challenge the fact
that the report summarizes an investigation performed by the FBI
in accordance with its legal duty regarding the affiliation of
Mr. Salah, among others, with Hamas.
Mr. Salah next seeks to strike Exhibits 14 and 15, which are
described, respectively, as an August 21, 1995 handwritten
statement of Mr. Salah, and an English translation thereof. Mr.
Salah argues that these exhibits should be stricken because the
Boims failed to authenticate the documents in accordance with
Rule 604, and because the Boims failed to comply with Rule 604's
translation requirements. The Court disagrees on both counts.
Federal Rule of Evidence 901 states that "[t]he requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent
claims." Here, because Mr. Salah produced the documents during
discovery, the Boims asked Mr. Salah questions to authenticate
both exhibits at his deposition. See Deposition of Mohammad
Salah, pp. 73-76. Mr. Salah invoked his Fifth Amendment rights
and refused to answer any questions regarding the documents.
Because he refused to answer questions that would either
authenticate the documents or deny their authenticity, this Court refuses to allow him to now claim that the Boims have failed to
meet their burden to authenticate.
Moreover, the Seventh Circuit has held that the opponent of the
evidence bears the burden of showing that a genuine issue of
authenticity exists. Cf. Tyson v. Jones & Laughlin Steel Co.,
958 F.2d 756, 761 (7th Cir. 1992). Mr. Salah has failed to make
such a showing here. His brief merely claims that the Boims
failed to meet their burden because they offered "no evidence
that Salah actually made the statement in question." Salah's
Motion to Strike, p. 11. As previously stated, the Boims made
efforts to authenticate the documents. They specifically asked
Mr. Salah if he personally hand-wrote the document in question,
when he wrote the document, and why he wrote the document. Mr.
Salah's refusal to answer the question or deny that he wrote the
documents gives rise to the inference that the documents are
Perhaps more significant is the fact that Mr. Salah himself
produced the translation during discovery. Indeed, the Boims
specifically asked Mr. Salah at his deposition if Exhibit 15 was
an accurate translation and if it was a document that he produced
during discovery. See Salah Deposition, pp. 73-77. Again, Mr.
Salah's refusal to answer any questions regarding the
translation's accuracy gives rise to the inference that it is
accurate. Additionally, Dr. Paz, the Boims' expert, authenticated the
translation. Rule 604 of the Federal Rules of Evidence states
"[a]n interpreter is subject to the provisions of these rules
relating to qualification as an expert and the administration of
an oath or affirmation to make a true translation." In his
declaration, Dr. Paz affirmed that the translation of Mr. Salah's
statement was "true and correct." Paz Declaration, ¶ 26. For all
of these reasons, the Court denies the motion to strike Exhibits
14 and 15.
Mr. Salah next asks the Court to strike Exhibits 13, 19, 20,
21, 25, and 28 all purported bank documents on the grounds
that they have not been properly authenticated and constitute
inadmissible hearsay, pursuant to Rules 901 and 802, and 801,
respectively. Initially, the Court notes that authentication
"does not erect a particularly high hurdle" to admissibility.
United States v. Dhinsa, 243 F.3d 635, 658-59 (2d Cir. 2001)
(citing Fed.R. Evid. 901). Rule 901 provides that "[t]he
requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its
proponent claims." Fed.R. Evid. 901(a). The party offering the
evidence is not required "to rule out all possibilities
inconsistent with authenticity, or to prove beyond any doubt that
the evidence is what it purports to be." United States v. Pluta 176 F.3d 43, 49 (2d Cir. 1999) (internal citation and quotation
marks omitted). The proponent satisfies Rule 901 "if sufficient
proof has been introduced so that a reasonable juror could find
in favor of authenticity or identification." Id.
The checks that the Boims rely upon easily clear the Rule 901
hurdle. "Commercial paper, signatures thereon, and documents
relating thereto to the extent provided by general commercial
law" are self-authenticating and do not require extrinsic
evidence of authenticity. Ament v. Townsend, No. 98 C 1918,
1998 WL 299806, at *4 (N.D. Ill. May 29, 1998) (citing
Fed.R.Evid. 902(9)). Nor do the checks fall victim to Mr. Salah's
hearsay challenge. See Kepner-Tregoe, Inc. v. Leadership
Software, Inc., 12 F.3d 527, 540 (5th Cir. 1994) ("`signed
instruments such as wills, contracts and promissory notes are
writings that have independent legal significance and are
nonhearsay.'") (quotations omitted.)
The Boims have also sufficiently established the authenticity
of Mr. Salah's checking account statements and wire transfer
receipts from LaSalle Talman Bank. LaSalle Bank Corporation
authenticated many of the checking account statements. See
Szewczyk Dec. ¶¶ 7-8, 11-12 (attached as Exhibit 2 to Plaintiffs'
Response to Mr. Salah's Motion to Strike); Fed.R. Evid. 803(6).
With regard to the remaining checking account statements and wire
transfer receipts, the Court notes that all of these documents were produced by Mr. Salah in response to the
Boims' discovery request seeking "all bank statements, all
cancelled checks, all statements from instruments" etc. While
Rule 902 does not identify evidence produced in discovery as
self-authenticating at least when the evidence has not been
produced pursuant to a subpoena Mr. Salah refused to either
acknowledge or disavow these exhibits at his deposition. Instead,
Mr. Salah remained silent, invoking his Fifth Amendment right not
to incriminate himself. The Court is free to draw from Mr.
Salah's silence inferences adverse to Mr. Salah's interests,
especially in light of the other evidence authenticating the
records. Under the circumstances presented here, the Court
concludes that Mr. Salah's production and subsequent silence are
sufficient to authenticate the documents in question.
Finally, Mr. Salah's checking account statements and wire
transfer receipts do not constitute hearsay. The Boims have
introduced evidence tending to establish that these records were
prepared in the regular course of a regularly conducted business
activity. See Fed.R. Evid. 803(6); see also Szewczyk Dec. ¶¶
4, 7-8, 11-17). As the Tenth Circuit explained, "[b]ank records
are particularly suitable for admission under Rule 803(6) in
light of the fastidious nature of record keeping in financial
institutions, which is often required by governmental
regulation." United States v. Johnson, 971 F.2d 562, 572
(10th Cir. 1992). Accordingly, Mr. Salah's motion to strike the bank
records included in Exhibits 13, 19, 20, 21, 25 and 28 is denied.
Turning to the merits of the parties' summary judgment motions,
the Court quickly denies Mr. Salah's motion. His assertions to
the contrary notwithstanding, the default judgment against
Hinawi, together with the Report of Hinawi's Sentence, would be
enough to establish, at a minimum, an issue of fact as to whether
Hamas was responsible for David Boim's murder. Moreover, as the
Court will explain below, the evidence establishes that Mr. Salah
provided material support to Hamas.
Initially, although Mr. Salah has declined to admit that Hamas
uses violence and acts of terrorism to further its goals, he does
not dispute that Hamas has been designated as an SDT, an SDGT,
and an FTO; nor does he dispute that Mousa Abu Marzook, who
served at various times as the leader of Hamas' political wing,
has been designated as an SDT, or that he himself has been
designated as an SDT. See Plaintiffs' (Salah) Rule 56.1
Statement, ¶¶ 17-19, 22, 27, and Mr. Salah's responses thereto.
It is undisputed that, on January 25, 1993, Mr. Salah was
arrested by the Israeli military authorities; he was prosecuted
in an Israeli military court in 1995 for "membership and activity
in an illegal organization [Hamas]," "holding office in an
illegal organization [Hamas]," "performance of services for an
illegal organization [Hamas]," "activity against public order," and "giving shelter." See Report of Court Proceedings in Court
File #4221/93 (attached as Exhibit 31 to Plaintiffs' (Salah) Rule
56.1 Statement); Plaintiffs' (Salah) Rule 56.1 Statement, ¶ 69,
and Mr. Salah's response thereto. Mr. Salah pled guilty to these
charges, he was convicted based upon his plea, and he was
sentenced to eight years imprisonment, with five years to be
served from the date of his arrest, and the remaining three years
to be suspended and served only if Mr. Salah committed additional
offenses within five yeas of his release from prison. See
Report of Court Proceedings in Court File #4221/93 (attached as
Exhibit 31 to Plaintiffs' (Salah) Rule 56.1 Statement).
The record shows that, while Mr. Salah was in custody in
Israel, he was interviewed a number of times by the Israeli
Secret Service, and, during the course of those interviews, he
made statements that are, to put it mildly, vastly against his
interest. The transcripts of those interviews, along with their
English-language translations were submitted by the Boims in
support of their motion for summary judgment against Mr. Salah,
see Plaintiffs' (Salah) Rule 56.1 Statement, Exhibit 17; in
light of the parties' arguments (or lack thereof) on Mr. Salah's
motion to strike, the Court has not considered these statements.
But the record also includes another statement from Mr. Salah
while he was in Israeli custody, a statement written in his own
hand and addressed, not to the Secret Service, but to other individuals who were being held in the same detention center as
Mr. Salah; the record also includes the English-language
translation of this statement. See Plaintiffs' (Salah) Rule 56.1
Statement, Exhibits 14 and 15. In this statement, Mr. Salah
details his involvement with Hamas, his relationship with Mr.
Marzook, and the specifics of his activities in Israel and the
Occupied Territories during his January 1993 trip and during
prior trips. See id. In particular, in this statement, Mr.
Salah writes that he made the 1993 trip at the request of Mr.
Marzook, and that the purpose of the trip was to revive and
organize Hamas' military operations in the wake of the December
1992 deportation of 400 Hamas members. See Exhibit 15, pp. 5-6.
In fact, the statement reveals that Mr. Salah attempted to
accomplish and accomplished this goal. As the Court will explain
in more detail below, the statement shows that Mr. Salah
distributed money to Hamas' operatives for the express purpose of
carrying out terrorist activities. By way of example, the
statement shows that Mr. Salah met with Salah Arouri, a Hamas
activist, and that he provided Mr. Arouri with money to buy
weapons to be used in terrorist operations. See id., p. 8-9.
The statement describes various meetings with Hamas' operatives,
all geared, specifically or generally, to Hamas' military
operations. See id., pp. 6-23. It also includes an assessment
of how his detention might, and might not, impact Hamas' operations. Id., pp. 49-52.
The Boims first argue that, because of the Israeli conviction,
Mr. Salah is estopped from denying that he provided material
support to Hamas. And, at first blush, the conviction would seem
to establish that Mr. Salah, in fact, provided money to men whom
he knew to be Hamas operatives, with the intent that the money
would be used to finance and otherwise further Hamas' terrorist
activities conduct that would clearly subject him to liability
under § 2333. See Boim, 291 F.3d at 1023. But, Mr. Salah
argues, the confession he gave while in custody in Israel, and
the resulting conviction, were procured by torture, the product
of coercion and duress. As such, he argues, they are entitled to
no weight in this Court.
The question of what impact, if any, the Israeli confession and
conviction should have in this Court has turned into a mini trial
within a trial: the Boims have offered a declaration from Emanuel
Gross, a law professor and licensed Israeli attorney who has
served as a military attorney, a military judge and the President
of an Israeli military tribunal, who opines that Mr. Salah's
conviction "met generally accepted standards of fairness." See
Declaration of Emanuel Gross, ¶ 12. For his part, Mr. Salah
submitted a declaration from Avigdor Feldman, the Israeli
attorney who represented him throughout the Israeli military
proceedings and who both parties agree is "one of the most distinguished and prominent civil rights attorneys in
Israel." See Plaintiffs' (Salah) Rule 56.1 Statement, ¶ 77, and
Mr. Salah's response thereto. According to Mr. Feldman, Israeli
military courts do not comport with accepted principles of
fairness generally, and Mr. Salah's case was no exception; Mr.
Feldman opined that Mr. Salah's conviction is not worthy of full
faith and credit under the laws of the United States. See
Declaration of Avigdor Feldman, ¶¶ 4-32.
Despite his declaration, at his deposition, Mr. Feldman
acknowledged that, even in the Israeli military court
proceedings, defendants get full discovery, except for matters
that are "put under a privilege of secrecy"; they have access to
pre-trial discovery, an opportunity to confront and cross-examine
witnesses who testify against them; they are notified of the
charges against them, they receive notice of hearings and have
the opportunity to present evidence in their favor, they have
access to counsel, and they have the right to appeal. See
Deposition of Avigdor Feldman, pp. 13-14, 22-24. Mr. Feldman also
testified, consistent with Mr. Gross, that, even in the military
courts, a conviction may not be based exclusively on a
defendant's confession; rather, there must be some corroborating
evidence to support the conviction. See id., p. 23; Declaration
of Emanuel Gross, ¶ 17(c); Plaintiffs' (Salah) Rule 56.1
Statement, ¶ 84, and Mr. Salah's response thereto. Mr. Feldman testified that he recalled Mr. Salah telling him that he had been
subjected to certain conduct that might be interpreted as
torture. Feldman Deposition, p. 29. He, not surprisingly,
testified that he did not witness any misconduct or torture,
id., pp. 30, 33, 36; and he testified that, each time he saw
Mr. Salah, Mr. Salah appeared to be fine physically, he had no
bruises or other physical signs of abuse. Id., pp. 45-46.
To be sure, the record contains evidence that arguably counsels
against affording full faith and credit to Mr. Salah's conviction
in the Israeli military court. For example, the record includes
an unclassified State Department cable, dated March 4, 1993 and
written to the Israeli Minister of Foreign Affairs in connection
with the United States Embassy's attempts to monitor Mr. Salah's
treatment; the cable states that the Embassy "remains troubled by
allegations of mistreatment of these three Americans and we have
asked for an investigation into these allegations." Exhibit 2 to
Mr. Salah's Appendix of Exhibits in Response to Plaintiffs'
Motion for Summary Judgment. More specifically, the cable states
that Mr. Salah reported being confined in a cell known as "the
refrigerator," that he reported being threatened with beatings
for failure to sign a Hebrew language statement, he reported
being forced to stand naked and threatened with beatings if he
failed to sign a statement. Id.
On the flip side, the record also includes State Department cables in which Mr. Salah is reported to be "relaxed and in good
physical condition" and that he "reports no mistreatment." Id.
But, at the end of the day, none of the evidence that gives the
Court pause on the full faith and credit question goes to the
statement Mr. Salah wrote on August 21, 1995; rather, the issue
comes up in the context of statements Mr. Salah allegedly made to
the Secret Service. Mr. Salah has never claimed that the August
21, 1995 statement was the product of torture, coercion or
duress. Rather, the record shows that that statement was written
by Mr. Salah for people he believed were other Palestinian
prisoners; people who were, for all intents and purposes, on his
Perhaps more importantly, the record contains an abundance of
evidence to corroborate much of what Mr. Salah wrote in his
statement. For example, in his statement, Mr. Salah details his
relationship with Mousa Abu Marzook, the admitted leader of
Hamas' political wing, who has himself admitted to raising money
for Hamas. See In re Extradition of Marzook, 924 F.Supp. 565,
579 (S.D.N.Y. 1996). Mr. Salah describes various meetings he had
with Mr. Marzook, and he states that, in connection with his 1993 trip to the Occupied Territories, Mr. Marzook told him to
allocate funds as follows: "Ramallah: 100,000; Nablus: 130,000;
Hebron: 100,000; Gaza: Military (Activity): 300,000; The Rest:
According to the Military and General Requirements." See
Translation of August 21, 1995 Statement, p. 13 (attached as
Exhibit 15 to Plaintiffs' (Salah) Rule 56.1 Statement). Thus, Mr.
Salah's total expected allocation would have been in excess of
$630,000 (depending on the "Military and General Requirements" in
the non-delineated regions). In fact, the bank records show that,
shortly before Mr. Salah left on his trip, he received wire
transfers and other deposits from Mr. Marzook or from people
associated with Mr. Marzook that totaled almost a million
Specifically, the record includes wire transfer reports showing
that large amounts of money flowed from Ismail Elbarasse, a Hamas
activist, to Mr. Salah: two reports show incoming transfers of
$300,000 each, and another shows an incoming transfer of
$135,000. See Plaintiffs' (Salah) Rule 56.1 Statement, Exhibit
13. According to the reports, the money was wired to an account
controlled by Mr. Salah, account number 022034532. Id. Bank
statements from that account, held jointly by Mr. Salah and his
wife, in fact reflect a $300,000 deposit on December 29, 1992, a
$135,000 deposit on January 20, 1993, and a $300,000 deposit on
January 25, 1993. Id. The record also includes an incoming wire transfer showing that
Nasser Alkhatib transferred money to Mr. Salah in January 1993.
Specifically, the record shows that Mr. Alkhatib transferred
$50,000 to Mr. Salah on January 21, 1993. See Exhibit 28. Mr.
Salah's bank statement confirms that his account did, in fact,
receive a $50,000 credit on that date. See Exhibit 13. The bank
records also show that Mr. Alkhatib wired money to Mr. Salah's
wife, Azita Salah; on January 21, 1993, he transferred $30,000 to
her, and, on January 22, 1993 he transferred $170,000 to her;
according to the bank's transfer reports, both transfers were
deposited into a joint account that Mrs. Salah shared with her
husband, account number 239328806. See Exhibit 28. A summary of
that account confirms that, on January 22, 1993, the account had
two "credit memos," one for $30,000, and one for $170,000. Id.
The Boims have alleged that Mr. Alkhatib is a Hamas activist who
served as Mr. Marzook's personal secretary and made financial
transactions on his behalf, before leaving the country in 1993;
this is supported by information contained in the Watson
Memorandum. See Watson Memorandum, p. 15*fn8 (in which
Agent Watson reports that, "[d]uring an FBI interview . . . on
March 15, 1994," Nasser Alkhatib advised that "he worked for
Marzook and conducted various bank transactions for Marzook").
The bank records further corroborate Mr. Salah's statement as
to how he allocated the money he brought with him when he
traveled on Mr. Marzook's instructions. For example, Mr. Salah's
bank records show that, on September 3, 1992, while he was in
Israel, Mr. Salah wrote ten $5,000 checks that were made out to
cash and drawn on his LaSalle Talman account; the checks were
cleared through the central branch of an Israeli bank in Tel Aviv
five days later. See Plaintiffs' (Salah) Rule 56.1 Statement,
Exhibits 19-20. Mr. Salah's bank records also show that, on
January 28, 1993, shortly after Mr. Salah was arrested, the bank
posted three $10,000 checks he had written, presumably shortly
before that date. See Exhibits 13, 20.
Additionally, in his August 21, 1995 statement, Mr. Salah
claims that he helped to train two new Hamas recruits, Sharif
Alwan and Rizzak Salah. See Statement, p. 4. This statement is
corroborated by a bank record showing that, on September 29,
1992, Mr. Salah wrote a $3,000 check to Ghada Sherif for,
according to the memo line on the check, "tickets syria." See
Plaintiffs' Rule (Salah) 56.1 Statement, Exhibit 21.
Even on seemingly inconsequential matters, the statement is
corroborated in the record. For example, Mr. Salah's statement
notes that, some time in late 1991 or early 1992, certain
activities for Palestine, though expected to continue, did not proceed because, among other reasons, "I was busy building my
house." See Translation of August 21, 1995 Statement, p. 5
(attached as Exhibit 15 to Plaintiffs' (Salah) Rule 56.1
Statement). The record shows that, in fact, Mr. Salah was
building a new house at the end of 1991. See Declaration of
Ahmad Zaki Hammad, ¶ 9 (in which Mr. Hammad states that he lent
Mr. Salah money to pay contractors who were building his new
house) (attached as Exhibit B to QLI's Supplemental Appendix in
Support of its Motion for Summary Judgment); Exhibit 41 to
Plaintiffs' (QLI) Rule 56.1 Statement (showing that Mr. Hammad
wrote the check in October 1991). See also Deposition of
Mohammed Salah, p. 6-7 (where Mr. Salah testifies that he has
lived in the home for eleven years, since "`92 almost").
In addition to Mr. Salah's statement, the record includes the
Watson Memorandum, which details Mr. Salah's role with Hamas and
his involvement with many men known by the governments of both
the United States and Israel to be Hamas terrorists. See Watson
Memorandum (Exhibit 12 to Plaintiffs' (Salah) Rule 56.1
Statement). With respect to the flow of money to Mr. Salah, the
Watson Memorandum states that, in 1992 and January 1993, Messrs.
Marzook and Elbarasse were providing funds to Mr. Salah, who was
arrested in Israel on January 25, 1993 for supporting Hamas
terrorist activities. See Watson Memorandum, p. 15.
Specifically, Agent Watson states that "[r]ecords verified that Marzook deposited a total of $23,410.00 into Salah's U.S. bank
account during the time period of May 20, 1990 to November 29,
1992"; that "Elbarasse deposited a total of $740,000.00 in
Salah's account during the time period of August 8, 1992 to
January 25, 1993; and Nasser Alkhatib deposited a total of
$251,000.00 into Salah's account during the time period of August
21, 1992 to January 22, 1993." Id., pp. 15-16. With respect to
Mr. Salah's Israeli arrest, Agent Watson notes that, at the time
of his arrest, Mr. Salah had $97,000 in cash in his possession,
after having admitted to already disbursing approximately
$140,000 to individuals identified by the GOI [Government of
Israel] as members of Hamas. Id., p. 15.
It is important to note that, although Mr. Salah has challenged
the admissibility of some of the evidence against him, he has not
rebutted any of this evidence. In fact, he has chosen to remain
silent in the face of the evidence demonstrating his ties to
Hamas and his efforts on behalf of Hamas' terrorist activities,
which brings the Court to the next point.
Added to the evidence detailed above is the fact that Mr. Salah
has invoked the rights afforded him by the Fifth Amendment to the
United States Constitution, both in response to deposition
questions and in response to many of the Boims' statements of
undisputed fact; his wife similarly invoked her Fifth Amendment
rights at her deposition. By way of example, Mr. Salah declined to answer the following questions based upon his rights as
protected by the Fifth Amendment: (1) "are you now or have you
ever been a member of Hamas," see Deposition of Mohammed Salah,
p. 78; (2) "[i]n fact it's true, sir, that you are now and have
been a member of Hamas," id.; (3) "[i]t's correct, sir, that
you played a role in the activities of Hamas," id.; (4) "[i]t's
correct, sir, isn't it, that Abu Marzook instructed you to travel
to Israel in January 1993 to see what could be done to reorganize
Hamas after the  deportations; isn't that correct, sir,"
id., p. 90; (5) "[a]nd it's correct, sir, that when you went to
Israel, the West Bank and Gaza in 1992 and 1993, you knew at the
time Hamas was involved in perpetrating violent acts in that part
of the world; isn't that correct, sir," id., p. 95; (6) "[y]ou
learned, sir, that Hamas took credit for murdering David Boim;
isn't that correct, sir," id., p. 98; (7) "[i]t's correct, sir,
that you, yourself, provided organizational and financial
assistance to persons you knew or suspected were members of
Hamas; isn't that correct, sir," id., p. 100; and (8) "you are
the U.S. based military leader of Hamas; isn't that correct,
sir," id., p. 172. He also invoked his Fifth Amendment rights
in response to many of the Boims' Rule 56.1 statements of fact.
Specifically, Mr. Salah "relie[d] upon his privilege against
self-incrimination as to the contention that $735,000 was
transferred by someone identified as Ismail Elbarasse to LaSalle Talman account number 02-203453-2 which was held in the name of
Muhammad Salah and Azita Salah," Mr. Salah's Response to
Plaintiffs' (Salah) Rule 56.1 Statement, ¶ 24; he "relie[d] upon
his privilege against self-incrimination as to the statement that
the funds were to be used by Salah to fund Hamas military
operations," id., ¶ 25; he relied upon his privilege against
self-incrimination as to the statements about the ten $5,000
checks he wrote to cash from Israel in September 1992, see id.,
¶ 42; he relied upon his privilege against self-incrimination as
to the statements about his dealings with Rihbe Abdel Rahman, the
unlicensed Israeli money changer, see id., ¶ 59-61; he relied
upon his privilege against self-incrimination as to the
statements about the wire transfers coming into his account from
Marzook and Alkhatib, see id., ¶ 62; and he relied upon his
privilege against self-incrimination as to the statement that, at
the time of his arrest in Israel, he had $97,400 in his
possession, see id., ¶ 64.
Although silence alone would not support the entry of summary
judgment, it does give rise to a negative inference that Mr.
Salah and his wife would have incriminated themselves, had they
answered the questions posed. See, e.g., In re High Fructose
Corn Syrup Antitrust Litigation, 295 F.3d 651, 663 (7th Cir.
2002); Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). And that
inference, when taken together with the evidence of Mr. Salah's
involvement with Hamas, is enough to establish liability on Mr. Salah's part under 18 U.S.C. § 2333. Based on the evidence in the
record, including the negative inference that is permissibly
drawn from Mr. Salah's decision to invoke his Fifth Amendment
rights, a reasonable jury could reach but one conclusion: Mr.
Salah knew about Hamas' illegal activities, he wanted those
activities to succeed, and he engaged in numerous acts to help
ensure that they did.
Mr. Salah makes a couple of arguments relating to the
conspiracy allegations in the Boims' complaint, which bear
consideration. First, Mr. Salah argues that the Boims' claim must
fail because they cannot establish that he was, in any way,
connected to Hamas after January 1993, when he was arrested in
Israel; indeed, he argues, he was in an Israeli prison when David
Boim was killed. But this is of no moment. The Seventh Circuit
did not say that, to impose liability under § 2333, the Boims
have to link Mr. Salah or any of the other defendants
specifically to the attack that killed David Boim; rather, the
court held that, to impose liability for aiding and abetting
that is, providing material support to a terrorist
organization, the Boims need only show that the defendants knew
of Hamas' illegal activities, that they desired to help those
activities succeed, and that they engaged in some act of helping.
Boim, 291 F.3d at 1028. The evidence shows that all three are
true with respect to Mr. Salah, and no reasonable jury could find
otherwise. Moreover, under principles of civil conspiracy law, which is subsumed in § 2333,
Mr. Salah would be liable for acts committed in furtherance of
the conspiracy to fund Hamas, even if those acts were committed
after he ceased being an active participant. See United States
v. Patel, 879 F.2d 292, 294 (7th Cir. 1989) ("the law will not
let you wash your hands of a dangerous scheme that you have set
in motion and that can continue to operate and cause great harm
without your continued participation"; "for withdrawal to limit a
conspirator's liability `mere cessation of activity is not enough
. . .; there must also be affirmative action, either the making
of a clean breast to the authorities, or communication of the
abandonment in a manner calculated to reach co-conspirators. And
the burden of withdrawal lies on the defendant.'") (quoting
United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964)).
Had Mr. Salah disavowed his involvement with Hamas, or somehow
repudiated his involvement with Hamas' military operations, he
might be able to escape liability for acts committed in
furtherance of Hamas' agenda after that repudiation. But the
record contains no evidence that Mr. Salah ever did so.
Second, and relatedly, Mr. Salah argues that the Boims' claim
against him must fail because the record contains no evidence
linking him to the men who shot David Boim. And, to support that
proposition, Mr. Salah cites Ungar v. The Islamic Republic of
Iran, 211 F. Supp. 2d 91 (D.D.C. 2002), which, as Mr. Salah admits, did not involve § 2333. For purposes of this
case, the Court is bound by the Seventh Circuit's decision, which
holds that liability under § 2333 extends broadly to encompass
traditional tort and criminal liability concepts. See Boim,
291 F.3d at 1020. Thus, even if the Boims could not establish that
Mr. Salah provided material support to Hamas a hypothetical,
given the conclusion above that they could, and did the Boims
could still impose liability on Mr. Salah if they could show that
David's death was a reasonably foreseeable consequence of the
conspiracy that was Hamas, see Pinkerton, 328 U.S. at 643,
which would seem almost a given on the record before the Court.
4. Motions Filed By and Against Quranic Literacy Institute
The Boims have alleged that the Quranic Literacy Institute, an
Illinois not-for-profit corporation that translates and publishes
sacred Islamic texts, is really engaged in the business of
raising and laundering money for Hamas. See First Amended
Complaint, ¶ 5. Tangentially, the Boims allege that QLI provided
an aura of legitimacy to Mr. Salah by purporting to employ him as
a computer analyst, effectively permitting him to continue to act
on behalf of Hamas without raising suspicion; the Boims allege
that QLI helped to conceal Mr. Salah's role as Hamas' military
commander and served as the vehicle through which he channeled
hundreds of thousands of dollars to Hamas operatives. See First
Amended Complaint, ¶¶ 5, 44. As with the other defendants, to prevail on their claim against
QLI, the Boims would have to show that QLI provided material
support to Hamas, or that it attempted or conspired to provide
material support to Hamas. 18 U.S.C. § 2333. QLI has moved for
summary judgment, arguing that the Boims cannot possibly prevail
because (1) no money attributable to QLI ever went to Hamas; (2)
QLI employed Mr. Salah legitimately, though on a volunteer basis;
and (3) QLI had no knowledge that Mr. Salah may have been engaged
in unlawful activities elsewhere. The Boims did not file a
summary judgment motion with respect to QLI; in fact, they argue
that summary judgment is inappropriate because genuine issues of
fact exist as to whether QLI helped to conceal Mr. Salah's
illegal activities, whether QLI gave cash to Mr. Salah to
distribute to Hamas agents, and whether QLI raised and laundered
money for Hamas through a real estate transaction involving
property in Woodridge, Illinois.
Before turning to the merits of QLI's motion for summary
judgment, the Court must consider the parties' motions to strike
certain exhibits submitted with the parties' motion papers. In
support of its motion for summary judgment, QLI submitted
declarations from its three founders, Amer Haleem, who serves as
QLI's Secretary, Ahmad Zaki Hammad, who serves as QLI's
President, and Ibrahim Abusharif, who served as QLI's Treasurer
from 1990 to 1998. The Boims have asked the Court to strike these declarations because, in the Boims' view, they are not
based on personal knowledge. The Boims also ask the Court to
strike Mr. Hammad's declaration because they never had a chance
to depose him. On this latter argument, the Court will deny the
motion; the Boims never issued a notice for Mr. Hammad's
deposition, and, at least based on the documentary evidence
submitted, defendants' counsel never told the Boims that Mr.
Hammad would not be produced for deposition (rather, counsel
reported only that Mr. Hammad was out of the country and had been
for quite some time, which was apparently true).
Turning to the question of personal knowledge, as the Boims
correctly point out, affidavits submitted in support of summary
judgment must be made based on personal knowledge. See Payne v.
Pauley, 337 F.3d 767, 772 (7th Cir. 2003); Fed.R. Civ. P.
56(e); Fed.R. Evid. 602. Although "personal knowledge" may
include reasonable inferences, those inferences must be
"substantiated by specific facts," and they must be "grounded in
observation or other first-hand personal experience." Drake v.
Minnesota Mining & Manufacturing Co., 134 F.3d 878, 887 (7th
Cir. 1998) (citing Davis v. City of Chicago, 841 F.2d 186, 189
(7th Cir. 1988)); Payne, 337 F.3d at 772 (citing Visser v.
Packer Engineering Associates, 924 F.2d 655, 659 (7th Cir. 1991)
(en banc)). The Court finds that the declarations of Mr.
Haleem, Mr. Abusharif and Mr. Hammad generally pass muster under
these standards, despite the fact that they do not explicitly state that the
representations made therein are based upon personal knowledge.
For example, although the Boims argue that paragraphs 2, 3, 5,
and 7 of Mr. Haleem's declaration are not based on personal
knowledge, the statements made therein do appear to be based on
Mr. Haleem's first-hand knowledge; according to his declaration,
Mr. Haleem was one of the founders of QLI and the Quran Project,
and he served and serves as QLI's Secretary; as such, he would
seem to have been in a position to know why the founders formed
the organization (¶¶ 2-3, 5) and what the focus of the project
was (¶ 7). The same would be true with respect to Mr. Abusharif:
as the Treasurer of QLI, and as an active volunteer with both QLI
and the Quran Project, Mr. Abusharif would seem to have
first-hand knowledge of why QLI and the Quran Project were
started, and what went on at the business. Similarly, the Court
may infer that Mr. Haleem, as a founding member of QLI, as the
Secretary of QLI, and as one of the three people who were most
active in QLI and the Quran Project, would have had personal
knowledge about what he and the other volunteers were doing for
QLI, as well as about how QLI's activities were financed; the
same is true of Mr. Abusharif. Mr. Haleem would also appear to
have personal knowledge of Mr. Salah's employment status with QLI
and the employment verification letter, as well as about the
transactions and investments QLI decided to pursue. Indeed, Mr.
Haleem states in his declaration that he was directly involved in both the
employment verification letter and the Woodridge transaction. And
it is certainly no great leap to infer that Mr. Abusharif, who
served as Treasurer of QLI, has first-hand knowledge of how and
why QLI was funded.
There is, however, nothing in any of the declarations that
would allow the Court to infer that any of these men would have
had personal knowledge about what Mr. Salah did when he was not
doing work for QLI or the Quran Project. Accordingly, from Mr.
Haleem's declaration, the Court will strike paragraph 21 and
those portions of paragraph 22 dealing with activities other than
those done for QLI and the Quran Project; from Mr. Abusharif's
declaration, the Court will strike paragraphs 18, 22, 23, 24, and
those portions of paragraph 19 dealing with Mr. Salah's non-QLI
activities; and, from Mr. Hammad's declaration, the Court will
strike paragraph 10 and the first sentence of paragraph 9.
The Boims also ask the Court to strike portions of the three
declarations based on relevance. Even if the Court were to agree
that the statements about the formation and background of QLI are
irrelevant to the question of liability, the Court will not
strike them on this basis; just as the statements in the Boims'
submissions about Hamas' history give context to the allegations
in the Boims' claims, the statements about QLI's history give
context to QLI's defenses to those claims. Next, the Court turns to QLI's motion to strike, which covers
certain paragraphs in FBI Agent Robert Wright's affidavit, as
well as the statement made by Mohammed Salah while he was in
Israeli custody; QLI also asks the Court to disregard, for
purposes of its motion, the fact that Mohammed Salah and his wife
invoked their Fifth Amendment rights in response to questions
asked of them at their depositions. The Court has addressed Mr.
Salah's statement, as well as the consequences of his decision to
invoke the Fifth Amendment, in the context of the motions for
summary judgment filed by and against Mr. Salah. Neither of these
pieces of evidence is direct evidence of QLI's liability, though
of course Mr. Salah's involvement with Hamas is a necessary
predicate to holding QLI liable for trying to cover up those
activities. But instructions about how the evidence against Mr.
Salah should weigh against QLI can be addressed at the final
pre-trial conference and at trial, as can instructions about
adverse inferences to be drawn from Mr. Salah's and Mrs. Salah's
invocation of the Fifth Amendment. For purpose of resolving QLI's
motion for summary judgment, the Court has not relied upon Mr.
Salah's statement or his and his wife's decision to refuse to
answer deposition questions.
As for the June 8, 1998 affidavit of FBI Agent Wright, QLI
seeks to strike paragraphs 8, 22, 24, 27, 31 and 50, and the
Boims have indicated that they do not oppose the motion with respect to paragraphs 8, 24, 27 and 31, leaving only paragraphs
22 and 50 in dispute. Paragraph 22 of Agent Wright's affidavit
bank records show that on each of October 29, 30 and
31, 1991, Salah received a $6,000 check, ($18,000 in
total), executed by Ahmad Zaki Hameed, the President
of QLI. The checks were not drawn on QLI bank
accounts, but rather from Zaki's personal bank
Wright Affidavit, ¶ 22 (attached as Exhibit 26 to Plaintiff's
(QLI) Rule 56.1 Statement). Paragraph 50 states:
Salah has related to Israeli authorities that he
arrived in Jerusalem on January 14, 1993 for the
purpose of meeting other Hamas operatives to
coordinate, among other things, a terrorist attack
against Israeli [sic]. Salah further related that on
January 19, 1993, subsequent to his initial round of
meetings with various Hamas operatives, some of whom
Salah met with pursuant to Abu Marzook's
instructions, he placed an international call from
Israel to his wife Azita in Chicago and instructed
her to wire $200,000.00 from their joint LaSalle Bank
account to First Chicago Bank of Ravenswood account
number 678006002654-4 held in the name of Rihbe Abdel
Rahman. According to Salah, Rahman was an unlicensed
money changer. Bank records reviewed by the FBI
indicate that Azita Salah carried out her husband's
instructions on the same day. According to Salah the
$200,000.00 was then transferred from Abdel Rahman
account to the Middle East.
Id., ¶ 50. QLI argues that these statements should be stricken
because they refer to bank documents that were not attached and
therefore violate both the best evidence and the hearsay rules.
In response, the Boims argue that the testimony about the
$200,000 transfer and about the October 29 $6,000 check is proper
because the bank documents evidencing those transactions are, in
fact, a part of the record; they further argue that the testimony about the remaining two $6,000 checks is appropriate because
records documenting those transactions have all been lost or
destroyed or are otherwise unavailable. For purposes of this
motion, the Court need not decide whether Agent Wright's
testimony is proper; as the Court will explain, even without this
evidence, the Boims have offered enough evidence to get to a
The Court turns now to the merits of QLI's summary judgment
motion. As indicated above, the record contains declarations from
QLI's founders, Amer Haleem, who serves as QLI's Secretary, Ahmad
Zaki Hammad, who serves as QLI's President, and Ibrahim
Abusharif, who served as QLI's Treasurer from 1990 to 1998.
According to Mr. Haleem and Mr. Abusharif, QLI was formed out of
a desire "to provide their fellow English-speaking Muslims with a
better and deeper understanding of their faith" and "to give
Americans, in general, and readers of English worldwide a first
hand knowledge of Islam from its principal sources." Declaration
of Amer Haleem, ¶ 2 (attached as Exhibit 2 to QLI's Rule 56.1
Statement); Declaration of Ibrahim Abusharif, ¶ 2 (attached as
Exhibit 4 to QLI's Rule 56.1 Statement). Mr. Haleem and Mr.
Abusharif have represented that QLI's major undertaking and
central purpose is "the Quran Project," "an entirely new
translation of the Quran, based on a careful and scholarly review
and analysis of every single word of the more than 6200 verses in that book and the spiritual, legal, and historical contexts of
their revelation, followed by a painstaking process of
communicating this analysis in proper and befitting English that
is both relevant to the modern reader and literary in merit,
idiom, and impact." Abusharif Declaration, ¶ 6. See also Haleem
Declaration, ¶ 7; QLI's Rule 56.1 Statement, ¶ 10. The Boims
allege that, regardless of the truth of these statements, QLI
also knowingly provided, conspired to provide and aided and
abetted others in providing material support to Hamas. See
Plaintiffs' Response to QLI's Rule 56.1 Statement, ¶ 10.
The Boims have alleged that QLI gave Mr. Salah a job and a
monthly stipend, both of which allowed him to pursue his Hamas
activities without arousing suspicion. QLI has attempted to show
that this is fantasy; according to QLI, the reality was that QLI
sought and received help from Mohammed Salah, on a volunteer
basis, with respect to various administrative and
computer-related tasks. To compensate Mr. Salah for that help,
and to allow him to pursue this noble work, as well as the
considerable volunteer work he was doing in the local Muslim
community, QLI helped to arrange monthly stipend payments from a
benefactor. Although QLI has attempted to provide an innocuous
explanation for each of the Boims' allegations, the record
evidence is such that a jury should be permitted to decide
whether those explanations are true. The record shows that Mr. Salah, in fact, worked for QLI
beginning in the late 1980s or early 1990s, and continuing
through 1993. See QLI's Rule 56.1 Statement, ¶¶ 19, 28; Hammad
Declaration, ¶ 8; Muhammad Salah's Answers to Plaintiffs' First
Set of Interrogatories, No. 2 (attached as Exhibit 22 to
Plaintiffs' (QLI) Rule 56.1 Statement). QLI contends, however,
that Mr. Salah worked for QLI on a volunteer basis, not as an
employee. See QLI's Rule 56.1 Statement, ¶ 29, Haleem
Declaration, ¶ 23; Hammad Declaration, ¶ 8, Abusharif
Declaration, ¶ 20. Nevertheless, QLI admits that its President,
Mr. Hammad, arranged for Mr. Salah (as well as Mr. Haleem and Mr.
Abusharif) to receive a monthly payment of $3,000 from Yassin
Kadi, who QLI characterizes as a "Saudi Arabian
philanthropist."*fn9 Brief in Support of Summary Judgment,
p. 9. See also Haleem Declaration, ¶¶ 16, 20, 23; Abusharif
Declaration, ¶¶ 15, 17. In their declarations, Mr. Haleem and Mr.
Abusharif both state that Mr. Hammad, who knew Yassin Kadi when
he was at a Chicago architecture firm in the 1970s, asked Mr.
Kadi to support Mr. Haleem, Mr. Abusharif and Mohammed Salah, the
three individuals who were most active in volunteering their time
and skills to the Quran Project and QLI. Haleem Declaration, ¶¶
14, 16; Abusharif Declaration, ¶¶ 12, 15, 17. They further state
that, with respect to Mr. Salah, the money was meant to compensate him, not only for
his work with QLI and the Quran Project, but also for all of his
work in the local Muslim community.*fn10 Haleem Declaration,
¶ 23; Abusharif Declaration, ¶ 20. According to Mr. Hammad
whose testimony about the whole Kadi arrangement is surprisingly
sparse, given that Mr. Haleem and Mr. Abusharif say that he was
the driving force behind the arrangement and the point person for
Mr. Kadi Mr. Kadi "provided support for Amer Haleem, Abraham
Abusharif, and Muhammad Salah to enable them to pursue their good
works in the Muslim community in the Chicago area, including, but
not limited to, their otherwise uncompensated activities with the
Quran Project and then with the Quranic Literacy Institute."
Hammad Declaration, ¶ 6. Interestingly, Mr. Hammad admits nothing
about his role in setting up the "benefactor" arrangement. And no
one explains why Mr. Hammad received no money, despite everyone's
apparent agreement that Mr. Hammad was the head of the project,
the head of QLI and the person doing the bulk of the labor with
respect to the translation and scholarly research. See Haleem
Declaration, ¶ 19; Abusharif Declaration, ¶ 16. By the
declarants' own admissions, Mr. Haleem and Mr. Abusharif served as assistants to Mr. Hammad, and Mr. Salah served what was
essentially an office manager role, yet each received $3,000 per
month, while Mr. Hammad received nothing.
Adding to the troubling nature of the financial arrangements
between Mr. Kadi and QLI, QLI seems to be deliberately vague
about how Mr. Kadi's payments were made. Mr. Haleem and Mr.
Abusharif both state that the funds never entered an account of
QLI. See Haleem Declaration, ¶ 20; Abusharif Declaration, ¶ 17.
But none of the declarants seems to want to specify where the
money went. Mr. Haleem states that the money "was transmitted
from an account controlled by Mr. Kadi in Europe to an account of
one of the three recipients." Haleem Declaration, ¶ 20. In fact,
according to Mr. Abusharif's deposition testimony, the money from
Mr. Kadi was deposited into an account controlled by Mr. Salah
who was, by all accounts, less involved than Messrs. Haleem and
Abusharif in QLI and who had, by all accounts, the lowest level
of responsibility among the men involved in QLI. See Deposition
of Abraham Abusharif, pp. 43-44 (attached as Exhibit 39 to
Plaintiffs' (QLI) Rule 56.1 Statement). According to Mr.
Abusharif, Mr. Salah then distributed the money to himself, Mr.
Abusharif and Mr. Haleem. Id. This would seem to be
particularly odd, given that Mr. Abusharif, not Mr. Salah, was
the Treasurer of QLI.
Perhaps most damaging to QLI, the record contains evidence demonstrating that, not only has Mr. Salah been designated as an
SDGT, but Mr. Kadi, QLI's admitted "benefactor" was, effective
October 12, 2001, officially named by the United States
government as an SDGT. See Department of the Treasury, Office
of Foreign Assets Control, Additional Designations of
Terrorism-Related Blocked Persons, 66 Fed. Reg. 54404 (Oct. 26,
2001) (amending OFAC's list of individuals and organizations
designated as SDGTs to include, among others, "Shaykh Yassin
Abdullah Kadi"). QLI admits that Mr. Kadi was, in fact,
designated as an SDGT, but they contend that that fact is largely
irrelevant, given that the SDGT designation had not been made
when Mr. Kadi provided support to QLI's principals, indeed, did
not take place for another decade after Mr. Kadi provided that
support. This is true. But even if Mr. Kadi had not been
officially designated an SDGT at the time, a jury could
reasonably find that the activities that ultimately led to that
designation were, in fact, going on in 1991 and 1992 indeed,
that is the very basis for the Boims' allegations about the way
in which QLI's "volunteers" were paid. It may very well be that
QLI's principals simply have very bad luck in that the people
they find to support (financially or otherwise) their endeavors
just happen to turn up on the government's list of people who
support (financially or otherwise) terrorist organizations. But,
then again, it may be that QLI hooked up with Mr. Kadi and Mr. Salah by design, because of a common desire to further terrorist
activities, as the Boims allege. It is not for the Court to weigh
the evidence or to decide whose side the evidence favors; that
task belongs to the jury. See Anderson, 477 U.S. at 249 ("at
the summary judgment stage the judge's function is not himself to
weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial").
Adding to the intrigue is a letter dated September 4, 1991 and
written by Amer Haleem on letterhead bearing the Quran Project
name; the letter states that "Mohammad Salah has been employed
with THE QURAN PROJECT since January 1, 1991 as a Computer
Analyst at a salary of $36,000 per year." See Exhibit 37 to
Plaintiffs' (QLI) Rule 56.1 Statement. QLI and Mr. Haleem have
explained that this letter was written when QLI was considering
making Mr. Salah an employee and considering making that decision
retroactive to allow QLI to pay Mr. Salah's social security
taxes. See Haleem Declaration, ¶ 24. To prove his point, Mr.
Haleem states that Mr. Salah requested the letter to support his
application for an apartment in Justice, Illinois, that Mr. Salah
in fact rented that apartment, and that he (Mr. Haleem) actually
visited Mr. Salah at that apartment. Id., ¶¶ 24-25. Mr.
Haleem's explanation about the letter may, in fact, be true. But
the letter could just as easily be viewed by a reasonable jury as evidence that QLI was attempting to help Mr.
Salah appear to be legitimate by making it appear that he was a
regular employee, earning a regular salary, when, in fact, the
set-up was altogether different. Indeed, the $36,000 figure
suggests that, their assertions about the purpose of Mr. Kadi's
support notwithstanding, the monthly payments were for Mr.
Salah's QLI activities and not for anything else he did in the
Muslim community. And the fact that Mr. Salah actually rented the
apartment in Justice could be viewed, by a reasonable jury, not
as evidence that the letter served an innocuous purpose, but as
evidence that QLI's efforts to make Mr. Salah appear legitimate
In addition to the evidence about QLI's alleged attempt to
provide cover for Mr. Salah, the Boims have offered evidence from
which a reasonable jury could find that QLI laundered money for
Mr. Salah, and possibly for Hamas. For example, QLI admits that
it asked Mr. Kadi for money to invest in a real estate
transaction, and that, pursuant to that request, Mr. Kadi gave
QLI $820,000. See Haleem Declaration, ¶¶ 27-28; Hammad
Declaration, ¶ 7; Abusharif Declaration, ¶¶ 25-26. According to
QLI, this amount was not a grant or a gift, but an interest-free
loan. See Haleem Declaration, ¶ 27; Hammad Declaration, ¶ 7;
Abusharif Declaration, ¶ 25.
According to QLI, on July 22, 1991, Dr. Tamar Al-Rifai, a medical doctor with experience as a real estate developer,
purchased a piece of property in Woodridge, Illinois with Mr.
Kadi's $820,000, and the land was immediately transferred into a
land trust for the benefit of QLI. See Haleem Declaration, ¶¶
29-32; Abusharif Declaration, ¶¶ 26-28; Deposition of Tamer
Al-Rifai, pp. 30, 32-33, 39-40 (attached as Exhibit 20 to QLI's
Rule 56.1 Statement). The record shows that, in June 1994, the
Woodridge property was sold for $970,000, and the money was
deposited into QLI's account. See Haleem Declaration, ¶¶ 36-37;
Abusharif Declaration, ¶¶ 31-32. Closing documents from the sale
of the Woodridge property show that QLI received a check in the
amount of $988,500 on June 30, 1994. See Exhibit 52 to
Plaintiffs' (QLI) Rule 56.1 Statement. There is no evidence in
the record to suggest that QLI ever repaid Mr. Kadi's "loan"; in
fact, Mr. Haleem testified that it did not. See Deposition of
Amer Haleem, pp. 121-22 (attached as Exhibit 38 to Plaintiffs'
(QLI) Rule 56.1 Statement).
Additionally, the record shows that, under the original terms
of the Woodridge deal, Mr. Al-Rifai was required to make two
rental payments to QLI; one in the amount of $150,000 on July 22,
1991 and one in the amount of $14,000 three months later. See
Lease & Sale Agreement dated July 22, 1991 and executed by Mr.
Hammad on behalf of QLI and Mr. Al-Rifai on behalf of Golden
Marble Inc. (attached as Exhibit 46 to Plaintiffs' (QLI) Rule 56.1 Statement); Al-Rifai Deposition, pp. 54-55; Affidavit of FBI
Agent Robert Wright, ¶ 29. A subsequent Lease and Sale Agreement,
executed after Mr. Al-Rifai's first round of checks bounced,
provided for the rental payments to be made on January 15, 1992
and January 30, 1992; the amounts remained the same. See Lease
and Sale Agreement dated January 23, 1992 and executed by Mr.
Hammad on behalf of QLI and Mr. Al-Rifai on behalf of Golden
Marble Inc. (attached as Exhibit 18 to QLI's Rule 56.1
Statement). Ultimately, on September 11, 1991, Mr. Al-Rifai and
Golden Marble paid QLI $22,000; on September 12, 1991, they paid
QLI $88,000. See Exhibit 48 to Plaintiffs' (QLI) Rule 56.1
Statement; QLI's Response to Plaintiffs' Rule 56.1 Statement, ¶¶
137-138. QLI did not cash these checks until March 11, 1992.
See QLI's Response to Plaintiffs' Rule 56.1 Statement, ¶ 140.
QLI claims that the checks were deposited into a QLI account, and
it cites the deposition testimony of Mr. Abusharif to support
that claim. But, in fact, Mr. Abusharif, who testified that he
deposited the checks immediately, appears to have been referring
to the first set of checks from Mr. Al-Rifai, the set that
bounced, when he said he deposited them into the QLI account; in
fact he admitted that his testimony was based on general practice
and some vague memory, rather than a specific recollection that
he deposited the checks into QLI's account. See Abusharif
Deposition, pp. 104-05. The record does, however, contain copies of the checks, which appear to show an endorsement from the North
American Muslim Trust, a "co-op fund" held for the Quran Project,
as well as a bank statement from that fund showing a $110,000
deposit made on March 11, 1992. See Exhibit 2 to QLI's Response
to Plaintiffs' Rule 56.1 Statement. But, in any event, the record
shows that, within five days of Mr. Hammad endorsing the second
round of Al-Rifai checks (which totaled $110,000), Mohammad Salah
received the first of three wire transfers, totaling $107,000,
from a Swiss bank. See QLI's Response to Plaintiffs' Rule 56.1
Statement, ¶¶ 143-144. It is possible that a jury may conclude
that the closeness in both amount and time between the two
groups of checks is pure coincidence. But it is also possible, in
light of the other evidence in the record, that a jury might
reasonably conclude that the transfers were connected, evidencing
an intent on QLI's part to funnel money to Mr. Salah, and to do
And there is more. According to QLI, it pushed Mr. Al-Rifai to
sell the property in 1994 because Mr. Al-Rifai had missed rental
payments due on the agreement, and because QLI had lost
confidence in Mr. Al-Rifai's ability to make future payments.
See Haleem Declaration, ¶¶ 34-36; Abusharif Declaration, ¶¶
29-31. And, given that Mr. Al-Rifai's first checks bounced, that
would seem to be a reasonable reaction on QLI's part. But the
Boims have offered evidence that QLI pressured Mr. Al-Rifai to
sell when it did because it wanted to provide support, through Mr.
Salah, to the Hamas activists and operatives who had been
deported by the Israeli government to Lebanon. First, the record
shows that QLI started to pressure Mr. Al-Rifai to sell the
property in December 1992, which was right after the government
of Israel deported 400 people suspected of being members of
Hamas. See, e.g., Affidavit of Robert Wright, ¶ 39 (noting that
on December 17, 1992, the GOI deported approximately 400
suspected Hamas members). Additionally, Mr. Al-Rifai told FBI
Agent Wright, in 1998, that, when Mr. Hammad started pressuring
him to liquidate the Woodridge investment, he told him that the
money was needed immediately for "a mission above all else."
See Wright Affidavit, ¶ 44; see also Al-Rifai Deposition, pp.
59, 65-67 (in which Mr. Al-Rifai testified that the people with
whom he was dealing at QLI began to pressure him to sell the
property in December 1992, and that, in pressuring him to sell,
Mr. Hammad told him that what he was working on was "above all
else."). It is possible, as QLI suggests, that Mr. Hammad simply
meant that his work of translating the Quran was all important.
But it is also possible, given the timing, that a jury could
reasonably find that Mr. Hammad wanted to sell the property to
liquidate money for the purpose of providing support to Hamas'
deported members and their families.
Based on the record before it, the Court finds that the Boims have offered enough evidence to get to a jury on their
claim that QLI provided cover for Mohammed Salah's involvement
with Hamas and that QLI helped to funnel money to Hamas.
Accordingly, QLI's motion for summary judgment is denied.
For the reasons explained above, the Court grants the Boims'
motion for partial summary judgment against HLF [#297], grants
the Boims' motion for partial summary judgment against IAP and
AMS [#304], and grants the Boims motion for partial summary
judgment against Mr. Salah [#263]. The Court denies the motions
for summary judgment filed by HLF [#308], Mr. Salah [#293], QLI
[#271], and IAP and AMS [#266]. Further, the motions to strike
filed by Mr. Salah [#295], QLI [#330], and the Boims [#305] are
granted in part and denied in part, as explained in this Opinion.
The case will proceed to trial on the matters remaining at
issue on December 1, 2004 in Courtroom 1903. The trial will
involve both liability and damages as to defendant QLI, and
damages alone as to defendants HLF, IAP and AMS, and Mr. Salah.