Boim v. Holy Land; OSI fellowship; forthcoming scholarship

1. Boim v. Holy Land Foundation for Relief & Development (7th Cir. Dec. 3, 2008) (en banc)

Available at: http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=05-1815_083.pdf

The Boim litigation arises out of the murder by Hamas of David Boim, a dual Israeli-American citizen, near Jerusalem in 1996.  Boim’s family brought suit against Muhammad Salah and a series of organizations, arguing that they raised money for Hamas and thereby were subject to civil liability under 18 USC 2333.

The en banc 7th Circuit, in an opinion by Judge Posner, holds confirms this theory of liability.  Among other things, the opinion holds that:

1. Section 2333 liability encompasses acts of “international terrorism,” defined in 18 USC 2331 to include “acts dangerous to human life.”  “Giving money to Hamas,” the court writes,”like giving a loaded gun to a child (which also is not a violent act), as an ‘act dangerous to human life.’”  Indeed, giving money to Hamas violates 18 USC 2339A if the donor knows or intends the donation will be used in preparation for or in carrying out a violation of any of a number of predicate offenses, including 18 USC 2332 (which prohibits the killing of US citizens abroad).  “By this chain of incorporations by reference (section 2333(a) to section 2331(1) to section 2339A to section 2332), we see that a donation to a terrorist group that targets Americans outside the United States may violate section 2333. Which makes good sense as a counterterrorism measure. Damages are a less effective remedy against terrorists and their organizations than against their financial angels.”

2. Section 2333 liability requires proof that the defendants knew that Hamas engaged in violence.  “So if you give a person rocks who has told you he would like to kill drivers by dropping them on cars from an overpass, and he succeeds against the odds in killing someone by this means, you are guilty of providing material support to a murderer, or equivalently of aiding and abetting–for remember that when the primary violator of a statute is someone who provides assistance to another he is functionally an aider and abettor. The mental element required to fix liability on a donor to Hamas is therefore present if the donor knows the character of that organization.

3. As to causation: “[C]onsider an organization solely involved in committing terrorist acts and a hundred people all of whom know the character of the organization and each of whom contributes $1,000 to it, for a total of $100,000. The organization has additional resources from other, unknown contributors of $200,000 and it uses its total resources of $300,000 to recruit, train, equip, and deploy terrorists who commit a variety of terrorist acts one of which kills an American citizen. His estate brings a suit under section 2333 against one of the knowing contributors of $1,000. The tort principles that we have reviewed would make the defendant jointly and severally liable with all those other contributors. The fact that the death could not be traced to any of the contributors … and that some of them may have been ignorant of the mission of the organization (and therefore not liable under a statute requiring proof of intentional or reckless misconduct) would be irrelevant. The knowing contributors as a whole would have significantly enhanced the risk of terrorist acts and thus the probability that the plaintiff’s decedent would be a victim, and this would be true even if Hamas had incurred a cost of more than $1,000 to kill the American, so that no defendant’s contribution was a sufficient condition of his death.”

4. Judge Posner went on to explain why it would not matter if a defendant sought to limit its donations to a “wing” of Hamas engaged in non-violent activity: “This case is only a little more difficult because Hamas is (and was at the time of David Boim’s death) engaged not only in terrorism but also in providing health, educational, and other social welfare services. The defendants other than Salah directed their support exclusively to those services. But if you give money to an organization that you know to be engaged in terrorism, the fact that you earmark it for the organization’s nonterrorist activities does not get you off the liability hook, as we noted in a related context in Hussain v. Mukasey, 518 F.3d 534, 538-39 (7th Cir.2008); see also Singh-Kaur v. Ashcroft, 385 F.3d 293, 301 (3d Cir.2004). The reasons are twofold. The first is the fungibility of money. If Hamas budgets $2 million for terrorism and $2 million for social services and receives a donation of $100,000 for those services, there is nothing to prevent its using that money for them while at the same time taking $100,000 out of its social services “account” and depositing it in its terrorism “account.” Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123, 1130 (D.C.Cir.2004).  Second, Hamas’s social welfare activities reinforce its terrorist activities both directly by providing economic assistance to the families of killed, wounded, and captured Hamas fighters and making it more costly for them to defect (they would lose the material benefits that Hamas provides them), and indirectly by enhancing Hamas’s popularity among the Palestinian population and providing funds for indoctrinating schoolchildren. See, e.g., Justin Magouirk, “The Nefarious Helping Hand: Anti-Corruption Campaigns, Social Service Provision, and Terrorism,” 20 Terrorism & Political Violence 356 (2008); Eli Berman & David D. Laitin, “Religion, Terrorism, and Public Goods: Testing the Club Model” 7-10 (National Bureau of Econ. Research Working Paper No. 13725, 2008). Anyone who knowingly contributes to the nonviolent wing of an organization that he knows to engage in terrorism is knowingly contributing to the organization’s terrorist activities. And that is the only knowledge that can reasonably be required as a premise for liability. To require proof that the donor intended that his contribution be used for terrorism–to make a benign intent a defense–would as a practical matter eliminate donor liability except in cases in which the donor was foolish enough to admit his true intent.”

2. Fellowship announcement

From the Open Society Institute:

> We would like to alert you to a new Open Society Institute (OSI)

> fellowship to support scholars, journalists, activists, policy experts

> and others to work on projects that inspire public debate and shape

> policy.

>

> The Open Society Fellowship is open to individuals from around the

> world and focuses on four areas: National Security and the Open

> Society; Citizenship, Membership and Marginalization; Strategies and

> Tools for Advocacy and Citizen Engagement; and Understanding

> Authoritarianism. We will also support a limited number of fellows

> whose projects fall outside these areas but are germane to OSI’s mission.

> <>  Fellows’ projects may include

> books, articles, online media, and efforts to seed new campaigns and

> organizations.

>

> Proposals are reviewed on a rolling basis and there are no application

> deadlines. The fellowship does not fund programs of study or

> dissertation research. More details are available at

>

> http://www.soros.org/initiatives/fellowship.

3. Forthcoming Scholarship

“The Story of United States v. United States District Court (Keith): The Surveillance Power”

PRESIDENTIAL POWER STORIES, Christopher H. Schroeder & Curtis A. Bradley, eds., Foundation Press, 2008
Columbia Public Law Research Paper No. 08-189

TREVOR W. MORRISON, Columbia University – Columbia Law School
Email: twm25@cornell.edu

This chapter, prepared for Presidential Power Stories (edited by Christopher Schroeder and Curtis Bradley), tells the story of United States v. United States District Court for the Eastern District of Michigan, better known as the Keith case. Keith is the Supreme Court’s first and still most important statement on the extent to which the President, acting in the interests of national security, may authorize the warrantless wiretapping or other electronic surveillance of persons within the United States. The case began as a criminal prosecution of members of the radical White Panther Party for the bombing of a CIA office in Ann Arbor, Michigan. It took a turn when the government disclosed before trial that one of the defendants had been overheard on a warrantless federal wiretap of domestic organizations that the Attorney General deemed threats to national security. This put the legality of the wiretap in issue. In what the New York Times called a stunning legal setback for the government, the Court concluded that Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillance may be conducted solely within the discretion of the Executive Branch. Thus, the Court held, a judicial warrant must issue before the government may engage in wiretapping or other electronic surveillance of domestic threats to national security. But the Court also limited its holding to cases involving the domestic aspects of national security, and express[ed] no opinion as to [the surveillance of the] activities of foreign powers or their agents. Both in what it said and what it did not say, Keith has exerted great influence upon the judicial, legislative, and executive approaches to these issues in the years since, including on Congress’s passage in 1978 of the Foreign Intelligence Surveillance Act, or FISA. As of this writing, it is still the case that the Supreme Court has never upheld warrantless wiretapping within the United States, for any purpose.

“A Skeptical View of Deference to the Executive in Times of Crisis”

Israel Law Review, Forthcoming
Minnesota Legal Studies Research Paper No. 43

FIONNUALA D. NI AOLAIN, University of Minnesota Law School, University of Ulster – Transitional Justice Institute
Email: niaol002@umn.edu
OREN GROSS, University of Minnesota Law School
Email: gross084@umn.edu

In times of crisis there is an unmistakable tendency to augment and extend the powers of the Executive branch in many jurisdictions. This centralizing tendency has been exhibited in numerous legal systems and through varied kinds of crisis. More recently, similar trends have been much in evidence in the United States, and a corresponding academic discourse defending and extolling the virtues of such augmentation has emerged. This article takes as its starting point a doubtful view of the virtues of such argumentation and its ultimate policy benefits. We assert that there are substantial dangers to the centralization of crisis powers in times of emergency. These tendencies hold particular perils for the democratic state. Moreover, the rush to create or cement decision and review making hierarchies can be antithetical to the broader project of utilizing the strengths of rule of law based societies to respond to the challenges posed by violent actors. The purported benefits of excluding, or at best sidelining, the courts from review of executive actions of crisis regulation are particularly ill-conceived. Such proposals consistently fail to engage with the importance of across-the-board institutional legal engagement with state action in times of crisis. The success and value of such engagement cannot be measured from the crisis vantage point. Rather it requires an assessment beyond the moment of exception, factoring in a return to normalcy and the impact on law and legal institutions in the post-crisis phase. We assert that scholars advocating for exclusive executive supremacy in times of crisis fail to measure the harms that may be caused by inept or illegal state action, not only as experienced by individual victims but to the broader project of discouraging and dissuading the resort to group based violence.

“Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities”

Israel Law Review, Vol. 41, pp. 331-357, 2008
Hebrew University International Law Research Paper No. 20-08

TRISTAN FERRARO, affiliation not provided to SSRN

A review of the different occupation situations evidences that these situations are characterized by a poor record of compliance with the law of occupation. The international humanitarian law (IHL) conventional enforcement mechanisms have not been activated and compliance with the law has almost exclusively relied upon judicial processes. However, since enforcement of IHL through adjudication operates mainly under the principles of criminal individual responsibility, this course of action has been of little relevance for occupation law insofar as the latter contains only few provisions the violations of which amount to graves breaches of IHL or other serious violations thereof. Disrespect for occupation law barely gives rise to criminal proceedings and therefore excessive focus on the latter procedures constitutes an impediment to the effective enforcement of this corpus juris. In addition, actual IHL mechanisms designed to induce compliance with occupation law do not allow for the appropriate control of the administrative and legislative acts of the occupant. In light of the contemporary forms of occupation and the tendency to broadly interpret the powers conferred on the occupant by IHL, administrative and legislative acts of the occupant should not be left without legal review. The present Article investigates the role and legal entitlement of different domestic courts in this respect after having previously examined the obstacles to exercise of jurisdiction by domestic courts with regard to the measures undertaken by the occupant within the framework of Article 43 of The Hague Regulations of 1907. The author argues that, despite their usefulness, domestic courts do not actually provide an appropriate course of action for legal review of the administrative and legislative measures promulgated by the occupying power

“The Legal, Military and Political Consequences of the Coalition of the Willing Approach to UN Military Enforcement Action”

Journal of Conflict & Security Law, Vol. 12, Issue 2, pp. 295-330, 2007

GARY WILSON, affiliation not provided to SSRN

The UN Charter envisaged a centralised system of collective security in which the UN Security Council would have readily available forces of its own for the purpose of taking military enforcement action under its own authority and control. These forces were never created and the Security Council has had to rely heavily upon authorising willing coalitions of states to take action on its behalf. Although such an approach to military enforcement action is legally permissible, it gives rise to a series of consequences of a legal, military and political nature that call into question the extent to which it provides the Council with an effective means of exercising its primary responsibility for the maintenance of international peace and security. This article considers these consequences of the coalition of the willing approach to military enforcement action, and seeks to show that its utility will vary from one situation to another. Although difficulties can arise from operations being subjected to insufficient levels of ultimate legal oversight by the Security Council, or through military operational problems, the limitations of the coalition of the willing as an effective tool of the Council are likely to lie primarily in the political sphere.

“The Definition of Non-International Armed Conflict in the Rome Statute of the International Criminal Court: An Analysis of the Threshold of Application Contained in Article 8(2)(f)”

Journal of Conflict and Security Law, Vol. 12, Issue 3, pp. 419-445, 2007

ANTHONY CULLEN, affiliation not provided to SSRN

This article puts forward an argument for a particular approach to the interpretation of the definition of non-international armed conflict in the Rome Statute of the International Criminal Court. Focusing on the meaning of Article 8(2)(f), it is contended that this provision possesses a threshold of an application equivalent to that of Article 3 common to the four Geneva Conventions of 1949. In supporting this position, the first half of the article analyses the travaux preparatoires of the Rome Statute. Here relevant clauses relating to non-international armed conflict are analysed in order to highlight the threshold of application intended by their drafters. Following on from the travaux preparatoires of the Rome Statute, the second half of the article puts forward an interpretation of the threshold contained in Article 8(2)(f) as one applicable to all situations of non-international armed conflict subject to the court’s jurisdiction. Drawing, among other things, on the conventional usage of the term armed conflict not of an international character and the customary status of non-international armed conflict provisions in the Rome Statute, an argument is advanced for an understanding of the threshold contained in Article 8(2)(f) as the one identical to that of common Article 3.

“Designing Transparency: The 9/11 Commission and Institutional Form”

Washington and Lee Law Review, Vol. 65, No. 4, 2008
University of Florida Levin College of Law Research Paper No. 2008-07

MARK FENSTER, University of Florida – Fredric G. Levin College of Law
Email: fenster@law.ufl.edu

Surpassing the low expectations established by previous investigatory commissions and overcoming the political and legal obstacles created by the Bush administration’s opposition to its creation, the 9/11 Commission accomplished what appeared to be the impossible: an authoritative investigation, a widely-read final report, and direct influence on significant legislation. At a time when legal scholars have committed themselves to the study of innovative institutional design, the formal legal innovations and administrative operations of the 9/11 Commission warrant close examination to consider whether and how it can serve as a model for similar institutions in the future. This Article argues that the 9/11 Commission indeed offers an important model for encouraging or forcing the executive branch to disclose information about an especially significant and controversial past event or future decision. As such, it suggests that Congress or the President consider establishing such commissions when information held by the executive branch can help the public to hold the state accountable for past actions or decide whether to support important, irreversible decisions the state must imminently make. The 9/11 Commission demonstrates that transparency can be better achieved in a time of crisis through institutional design than through constitutional common law and statute. The Article is less sanguine, however, about the 9/11 Commission as a model for policy formation. With limited accountability and relative independence from the political branches, an ad hoc, independent institution can make errors or misjudgments that can in turn have undue influence over the legislative process. Congress or the President should therefore limit the legal authority granted to investigative advisory commissions established during times of crisis so that political actors can fully deliberate over their prescriptions.

“Former Presidents and Executive Privilege”

LAURENT SACHAROFF, Temple University Beasley School of Law
Email: lsacharoff@yahoo.com

May a new President review the executive privilege assertions of a previous President and, if appropriate, overturn them? This question has received little scholarly attention but has become important as a new President Barack Obama is poised to take over the White House after eight years of aggressive assertions of executive privilege by President George W. Bush. I argue that a new President may review previous assertions of executive privilege and should disclose the previously withheld information if to do so would be in the public interest. This follows because executive privilege is not personal to any individual President but rather may only be asserted in the public interest. In addition, executive privilege arises from a President’s Article II powers; when a new President arrives, she enjoys plenary Article II powers, including the right to assert or waive executive privilege. I conclude that a new President not only can but should review previous assertions of executive privilege vigorously as a check that supplements the checks and balances of Congress, especially since as a practical matter Congress cannot peer behind the curtain to determine whether a particular President has abused the privilege to hide evidence of wrongdoing in his administration.

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