Can 297 victims of Hamas terrorist attacks in the Second Intifada find justice in a New York court?
BROOKLYN, New York — The Israeli-Palestinian conflict has found a new playing field: a Brooklyn courthouse.
Opening arguments on the morning of Aug. 14 before Judge Brian Cogan and a packed courtroom were rife with objections from both sides. Lawyers for the plaintiffs argued that Jordan-based Arab Bank was the "paymaster" for Hamas’s military wing, that it provided "the fuel" for Hamas’s activities during the Second Intifada, and that it helped "incentivize" suicide bombers. The defense said that, on the contrary, Arab Bank followed the U.S. government’s procedures for screening against terrorists; any payments made to Hamas were made in error.
Although Israel has declared Arab Bank free of the suspicion of terrorism, and even though U.S. President Barack Obama’s administration has called the bank an asset to counterterrorism efforts, a group of American lawyers and 297 plaintiffs have pursued the bank for 10 years through endless litigation, finally landing them in court this month. While similar trials have taken place internationally, such as the suit against the perpetrators of the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland, this is the first time such a case has come to the United States.
The case currently being heard in the U.S. District Court for the Eastern District of New York is a landmark. Never before has a civil suit been brought under the auspices of the Anti-Terrorism Act, a law passed in 1990 that enables victims of terrorist attacks that take place outside the United States to pursue justice in U.S. courts.
The 297 plaintiffs in Linde v. Arab Bank are U.S. citizens and foreign nationals who were injured or lost family members to terrorist attacks from 2000 to 2004 in Israel and the Palestinian territories. The defendant is Arab Bank, which is based in Amman, Jordan. It has more than 600 branches in 30 countries and — according to the plaintiffs — processed payments to Hamas during the deadly Second Intifada. These payments, which ranged from $5,300 to the family of a suicide bomber to $1,300 for an injury, totaled $35 million, according to the plaintiffs’ lawyers.
The trial, which is expected to last four to six weeks, will establish liability only. If the plaintiffs win, it will be followed by a separate trial with a new jury to determine damages.
The case originally included thousands of other plaintiffs who were not U.S. citizens. That the long-awaited trial should begin now hovers between the ordained and the absurd: Jury selection began on Aug. 11 — along with the shaky cease-fire between Israeli forces and Hamas in Gaza. Opening arguments began on Aug. 14, just days before the belligerents went back to firing rockets at one another.
In the courthouse in downtown Brooklyn, arguments flew back and forth, with lawyers filling the benches on either side of the courtroom. Opening arguments veered dangerously from the judge’s orders.
When a lawyer for the plaintiffs said that Arab Bank "consciously disregarded" what was going on in front of it, Arab Bank’s lawyers objected, and the plaintiffs’ lawyers were instructed by Judge Cogan to stick to the facts. When Arab Bank’s lawyer told jurors that there is no evidence that "a single penny was spent on terror," the plaintiffs’ lawyers’ objection was sustained.
It will be up to the jury to decide what Arab Bank knew and when. Did the bank’s staff members know that they were allowing funds to be paid out to suicide bombers’ families from the Saudi Committee for the Support of Intifada Al Quds, a charity established in 2000 by the Saudi government to help Palestinians? Or were they simply involved in routine banking and following all of the United States’ regulations for doing so?
From the opening arguments, it became clear that the entire Israeli-Palestinian conflict, from military occupation to Islamist ideology to terrorist tactics, will be hashed out in the courtroom. According to Gary Osen, chief attorney for the plaintiffs, the jury — three men and eight women — had been picked for their lack of predisposition on the subjects. It quickly became obvious why: Each side will present its own version of the Israeli-Palestinian conflict. Preconceived notions would certainly have gotten in the way.
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The plaintiffs’ lawyers allege that Arab Bank knowingly allowed the Saudi Committee to transfer $35 million to known terrorists and their families as payments for suicide bombings and compensation for injuries and imprisonment during the 2000-2005 period known as the Second Intifada, thereby facilitating terrorist activities and, in particular, those suffered by the plaintiffs. The plaintiffs’ case argues that Arab Bank used its Manhattan branch for laundering these funds. "Millions of dollars flowed right down the middle of Madison Avenue," said Tab Turner, a lawyer for the plaintiffs.
Arab Bank’s lawyers argued that not only did Arab Bank not knowingly make payments to Hamas, but the bank did not make payments to terrorists at all, at least not to individuals whom the U.S. government considered terrorists.
Banks are regulated by the State Department and the Treasury Department, whose Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions against a list of 10,000 individuals and groups. Every one of Arab Bank’s transactions runs through software designed to flag known terrorists and stop the flow of money into U.S.-sanctioned groups.
"It’s the government who decides who the terrorists are," argued Shand Stephens, Arab Bank’s lawyer. "That’s not a decision that’s made by private companies."
Of 97 individuals whom the plaintiffs accuse of receiving funds through Arab Bank, only three were on the OFAC list. Two were not flagged because of a glitch in the system –the chronic misspelling of Arabic names. The third — Osama Hamdan, a prominent member of Hamas who was designated a terrorist by the United States in 2003 — did receive funds from the bank, but it was the result of human error, according to Stephens: Four transactions were processed into his bank account, with the word "Hamas" appearing on the wire transfers, for a total of $730. "It was a mistake," Stephens said.
According to Stephens, the Saudi Committee, which the plaintiffs allege was funding Hamas’s terrorist activities, is actually a humanitarian organization that has never been designated on any national or international list as a terrorist organization, and it is devoted to supporting Palestinians impoverished by the conflict.
The plaintiffs’ lawyers portrayed suicide bombers as victims of Hamas’s ideology and Arab Bank money. "They literally brainwash these kids," argued Turner. He described a terrorist attack in March 2001 in which two Bible students were killed. But the suicide bomber, Fadi Attallah Yusuf Amer, was "also a student," Turner said. Furthermore, the lawyers claimed that the Second Intifada was religiously motivated. "Evidence will show that this is a jihad," said Mark Werbner, one of the lawyers for the plaintiffs. "They are on a holy war," he said, to kill infidels.
Yet in order to explain the motive behind the bank’s funding of terrorism, Werbner turned from the religious back to the national. He referenced a 2001 Arab Bank calendar as proof of the bank’s "ideology." The calendar, which was printed by the bank and distributed to branches, according to lawyers for the plaintiffs, referenced the "destroyed villages of Palestine," proving that Arab Bank "considered Israel the enemy." In 1930, the Arab Bank’s founders were, according to Werbner, "committed to establishing a state where Israel was."
Arab Bank’s lawyers had a very different take. Stephens opened by decrying the "horrific acts of violence" represented by the 24 terrorist attacks. He then called up a map of Israel and Palestine, and he explained the 1967 war, which began the Israeli occupation of the West Bank and Gaza.
Stephens described the spirit of hopefulness after the Oslo Accords that brought one man — Shukri Bishara, a banker who is now the Palestinian finance minister — from Paris back to his home in the West Bank, where he opened 22 branches of Arab Bank across the West Bank and Gaza with the aim of improving the Palestinian economy. In this capacity, Stephens argued, Arab Bank allowed charities to make payments in Gaza and the West Bank. "Martyr doesn’t mean terrorist or suicide bomber," he said, departing from the opposing counsel’s claim. "It means someone who is dead."
A similar case, Gill v. Arab Bank, was thrown out by the same U.S. District Court in 2012 for failing to prove that Arab Bank had "proximately caused" the plaintiffs’ injury. "Hamas is not the defendant," wrote Judge Jack Weinstein in his decision at the time.
But the lawyers for the plaintiffs in Linde v. Arab Bank will have a much easier time arguing their case. In 2010, Arab Bank didn’t disclose some of the information requested by the plaintiffs’ lawyers in discovery, specifically foreign account data, claiming foreign law in 11 countries where the bank operates prohibited the bank from sharing the data. A magistrate judge at the time ruled that the bank’s failure to disclose this information handicapped the plaintiffs’ case. As a result, Arab Bank was punished, or "sanctioned," for its "recalcitrance."
The sanctions, which were enhanced by Judge Nina Gershon and upheld by Judge Cogan, included instructions to the jury that it "may, but is not required to, infer" among other things, that Arab Bank "knowingly and purposefully" provided financial services to terrorists. In other words, abiding by foreign secrecy laws has turned into effective guilt.
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Not only will the jury be allowed to "infer" Arab Bank’s guilt, jurors will also be kept in the dark about what some might consider very relevant information: For example, the fact that Israel doesn’t consider Arab Bank an entity that funded terrorists. The Israel Defense Forces (IDF) cleared Arab Bank of all involvement in terrorism in 2009 after gathering intelligence during a raid on the Ramallah branch in 2004. The IDF sent a letter to the bank to this effect, but Judge Cogan has excluded it from evidence, writing that he did not wish to permit a "mini-trial concerning the IDF’s actions."
The IDF is not the only relevant body that doesn’t see Arab Bank as a funder of terrorists. U.S. Solicitor General Donald Verrilli Jr. called Arab Bank "a constructive partner with the United States in working to prevent terrorist financing" in a 2013 brief to the Supreme Court. Verrilli worried about the effects of punishment, or "sanctions," against the bank, and the effect a judgment against the bank in Linde v. Arab Bank could have "on United States foreign-relations interests and the stability of the region." He was not exaggerating. In a brief, a lawyer representing Jordan, who confirmed the secrecy laws, called the sanctions against Arab Bank "a serious affront to Jordan’s sovereignty."
The lawyers for the plaintiffs are not too impressed with this reasoning. For Osen, the lead attorney for the plaintiffs, the U.S. government would do better looking to civil court than to Arab Bank for assistance in counterterrorism, if only because the government’s limited resources mean that it can’t locate and designate every single terrorist.
"Midlevel bomb-makers don’t ever really get designated," Osen said after court. Furthermore, "politically, it can be sensitive for the U.S. government to take on certain targets, not because of lack of evidence but because of political consideration." Osen said that only one Saudi charity has ever been designated by the U.S. government and that’s not for lack of evidence. "I would submit to you that there’s more than one that the United States has credible evidence has supported terrorism. That’s a practical political consideration." But it’s not one that private litigants must take into consideration.
Six days into the trial, the cease-fire between Hamas and Israel in Gaza was broken. The two sides are back to battling it out with rockets and airstrikes. Meanwhile, Linde v. Arab Bank takes a uniquely American approach to counterterrorism, with the plaintiffs’ lawyers seeking retribution for victims from the deep pockets of a Jordanian bank. Whether or not they will find justice is a different matter.