Boim vs AMP – Using the Courts to Silence the Palestinian Voice.  By Miko Peled

 

The case of David Boim (“The Boim Case”) is a glaring example of the ongoing attempts to use the courts to suppress the Palestinian voice in America. A case that began in May 2000 and by 2008 seemed to have been put to rest, it has recently been resuscitated in a frivolous lawsuit targeting American Muslims for Palestine, AMP, and some of its officers.

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In May of 2000 Stanley and Joyce Boim filed a civil law suit against Holy Land Foundation for Relief and Development or HLF, and several other Muslim organizations demanding damages. Their son, David Boim (17), was a student in a fundamentalist-religious Jewish-Zionist high school, or Yeshiva, in the Settlement of Beit-El, in the heart of the Palestinian West Bank.  On May 13, 1996 while he was sitting at a bus stop outside the settlement, two Palestinians, Khalil Al-Sharif and Amjad Hinawi drove by and shot him to death. In a strange confluence of events, while researching this information, I learned that Al-Sharif participated and died in a suicide attack in Jerusalem on September 4, 1997, the attack in which my niece Smadar Elhanan, 13, was killed.  Now, in the current lawsuit it is being claimed that American Muslims for Palestine, AMP and its officers are “alter-egos” of HLF and therefore should pay the Boim family the $156 million judgment which was awarded them “against individuals and organizations who financed the murder of their son.”

To place this case in context, it should be stated at the outset that to do justice to the Palestinian cause, a major paradigm shift needs to take place. We must come to terms with the fact that Palestinian resistance to Israel is legitimate and should not be mischaracterized as terrorism.  Attempts to discredit the Palestinian struggle in all its forms and conflate it with terrorism have been successful to a point that even charity to Palestinians is being labeled “material support for terrorism.”  This mischaracterization that is at the very heart of the attitudes towards Palestine and the Palestinian plight, and it is at the very heart of this case.

Perhaps the most frivolous of all the anti-Palestinian policies and actions taken by the governments of Israel, the US, the UK and other European countries are those targeting charity organizations.  New laws and practices that criminalize charity to Palestinians and conflate it with material support for terrorism are sweeping all over the world like a plague. Even though no evidence exists to support the claims of “material support to terrorist organizations,” this has not stopped banks from closing legitimate accounts, governments imposing severe sanctions, and even the imprisonment of people involved in charity to Palestinians.  Clearly closing charities targets the weak and deprives the ones most in need of relief. The poor, orphans, former prisoners – many of whom cannot work due to permanent injuries sustained during interrogations, and the families of prisoners are left dry and without financial support.

In my soon to be published book “Injustice, The Story of the Holy Land Foundation Five,” (available for pre-order here) I describe how the Holy Land Foundation, once the largest Muslim charity organization in the US was wrongly shut down and five innocent American Muslims of Palestinian heritage known as the HLF-5 ended up serving long sentences in federal prison. The HLF-5 were accused of providing material support to a designated terrorist organization and even though the case was built on hearsay and no evidence was produced linking them to any terrorist organization they were convicted. The government won using fear, prejudice and politics not evidence.

Allegations of material support for Hamas are a theme that connects many of the accusations against Muslim organizations that deal with Palestine. In the case of the Holy Land Foundation, the accusation was providing material support and even though no such support was provided, the allegations stuck and five innocent men were convicted. The resurgence of the David Boim case (“the Boim Case”) is one example of the intensifying witch hunt against Palestinian and particularly Muslim organizations. The case seemed to have been put to rest after HLF was closed down and the HLF-5 were convicted and imprisoned in 2008, but it has recently been resuscitated in the following frivolous lawsuit:

Plaintiffs Stanley Boim, individually and as administrator of the estate of David Boim, deceased, and Joyce Boim (together, “Plaintiffs”), for their claim against defendants American Muslims for Palestine (“AMP”), Americans for Justice in Palestine Educational Foundation (“AJP”), Rafeeq Jaber, Abdelbasset Hamayel, and Osama Abu Irshaid (collectively, “Defendants”), allege and state as follows:

INTRODUCTION

1. In 1996, Stanley and Joyce Boim’s son David was murdered by two agents of the international terrorist organization Hamas. The Boims initiated a lawsuit in this Court four years later, in 2000 (the “Boim Action”). In 2004, plaintiffs were awarded a $156 million judgment against individuals and organizations who financed the murder of their son (the “Boim Judgment”), and that judgment was affirmed in 2008.

The “Boim Defendants” were organizations that worked in tandem to support Hamas in the United States: the Holy Land Foundation for Relief and Development (“HLF”), the American Muslim Society (“AMS”), and AMS’s alter egos operating under the name Islamic Association for Palestine (“IAP”). When time came to pay the Boim Judgment, AMS and IAP claimed to be out of business with few assets as a result of the burden of the Boim Judgment and associated litigation costs. HLF had ceased operations, and its assets had been seized by the United States. HLF and several of its leaders were subsequently convicted of terrorist activity. Seemingly, the Boim Action brought an end to these organizations. But that was not the case.

1. In fact, these Boim Defendants are in business today in this District through their alter egos and successors, Defendants AMP and AJP. AMP and AJP were established by the former leaders of HLF, AMS and IAP—including Defendants Rafeeq Jaber, Abdelbasset Hamayel and Osama Abu Irshaid (together, the “Individual Defendants”)—in order to continue the same enterprise and agenda, while avoiding the burden of the Boim Judgment and the ignominy of having been found liable for aiding and abetting the murder of an American teenager. AMP and AJP continue to be run by former leaders of HLF, AMS and IAP, including the Individual Defendants; until August 2016 they were headquartered on the same street, and they are now located nearby; and they continue the same enterprise, mission and activities. On information and belief, they have also received assets and funds from HLF, AMS, and IAP.
2. AMP and AJP are alter egos and successors of HLF, AMS and IAP, and are therefore liable for the unpaid portion of the Boim Judgment. Likewise, the Individual Defendants are alter egos of HLF, AMS and IAP. They participated in the direction and control of those entities in 1996, and they continue to direct and control the successor entities, AMP and AJP, today. Having been unable to collect more than a small fraction of the Boim Judgment from the named Boim Defendants, Plaintiffs should be permitted to recover from the Boim Defendants’ alter egos and successors, i.e. the Defendants herein.

1. The purpose of this action is to request that the Court (i) enter a declaratory judgment determining that AMP and AJP are the alter egos and/or successors of one or more of the Boim Defendants (including AMS, IAP and HLF); (ii) enter a declaratory judgment determining that the Individual Defendants are alter egos of one or more of the Boim Defendants (including AMS, IAP and HLF), and that they engaged in the conduct that gave rise to liability in the Boim Judgment; (iii) enter a declaratory judgment determining that each of Defendants is liable for the unsatisfied portion of the Boim Judgment; (iv) enter money judgments against each of the Defendants, jointly and severally, for this unpaid liability; and (v) issue a preliminary and permanent injunction preventing AMP, AJP and the Individual Defendants from dissipating funds in their possession or in the possession of unknown third parties that rightfully belong to the Boims.

The general allegation is that Stanley and Joyce Boim’s seventeen-year old son David was murdered by Hamas terrorists at a bus stop in Israel in 1996.  However three things should be pointed out:

1. David Boim was in the settlement of Beit –El in the heart of the West Bank, an area that the US does not recognize as being part of Israel but rather part of the Occupied Palestinian Territories.
2. At no point was any connection made, in a US court of law, between the shooters that killed David Boim and Hamas.
3. No connection was ever proven between the actions of HLF and the death of David Boim.

How the Boim family lawyers were able connect HLF to the killing of their son is to most people a mystery.  In order to unfold this mystery we must follow a trail of laws that were passed to make law suits such as this one possible. In 1992 Congress passed US Code 2333, a law says that any national of the United States injured by an act of international terrorism may sue and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees. It further allows US citizens to sue any person or organization that is suspected of funding a terrorist group.

Then, in 1996, congress passed US Code 2339B.  This law says that, “Whoever 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 20 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.” It also adds, “To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization.”

And so, even though no proof was ever found – much less provided – that HLF was funding Hamas, or that Hamas was involved in the killing of David Boim, these laws allowed the parents of David Boim to sue HLF based on hearsay.  The case ended up on appeal and attorney John Boyd argued the case for HLF. Boyd pointed out to the court that there is no evidence in the record that the death of David Boim had anything to do with anything the HLF had ever done.

One of the judges who heard the appeal was the esteemed judge Richard Posner, of the United States Court of Appeals for the Seventh Circuit in Chicago.  During the hearing, Boyd told me Judge Posner said the following: “I think it’s pretty well-known that if you give money to the charitable arm of a terrorist organization that it frees up money to buy guns and bombs.” Boyd responded by asking Judge Posner if he would take judicial notice that for the purpose of this case, if HLF gives money to charity that there is causation for the death of Daniel Boim?”

(For those of us who are not lawyers, a judge can take “judicial notice” of something that everyone knows to be true and that doesn’t require proof.)

“Judge Posner said nothing,” Boyd told me, “he just spun in his chair and turned his back to the court.”

I pressed John Boyd on whether it was ever made clear that Hamas was responsible for David Boim’s death because I could not see anywhere that it was determined to be the case.  John Boyd replied clearly: “No! this was never determined.”  The Boims obtained judgments by default, ie., without a trial on that issue, that issue was never addressed.

It has never been proven that Hamas, HLF or AMP had anything to do with the killing of David Boim, and it has never been proven that HLF or AMP or the other organizations and individuals mentioned in this lawsuit had provided material support to Hamas – It was all hearsay.

Now we must get to the central question:  This lawsuit claims that AMP is somehow the “alter ego” of HLF which allegedly provided material support to Hamas.  But did HLF actually provide material support to Hamas? This was never proven, ever. The US government claimed that the local charity organizations in Palestine, known as Zakat committees, with which HLF was working, were somehow part of Hamas.  But this too was never proven. The international community believed they were not, the US Consul General to Jerusalem Ed Abington who testified at the trial believed they were not, and no US agency had ever listed them or any of their board members on any known terrorist list. Even USAID, a US government agency had worked with the Zakat committees but none of that was enough to save the HLF-5.

Another problematic issue that was raised in the HLF trial has to do with the way in which terrorists and terrorist organizations are designated by the US government. During the HLF trial, the prosecution called on John Robert McBrien to testify. Mr. McBrien was an associate director of OFAC, which is the Office of Foreign Assets Control at the Department of the Treasury. John Cline, one of the attorneys for HLF, questioned him and determined that “The Secretary of the Treasury delegated the authority to designate persons (as terrorists, MP) under that provision to OFAC,” which again, is the Office of Foreign Assets Control.  Cline then determined and McBrien confirmed that “what is required for a designation is a reasonable belief. It is not, for example, proof beyond reasonable doubt. It is not proof by a preponderance of evidence, like you have in court.”  Mr. McBrien replied: “That is correct.”

“When OFAC is making a designation under this provision,” Cline concluded, “we don’t have to abide by any particular rules of evidence.” McBrien once again replied in the affirmative.

So there is no real burden of proof needed and it is not clear how a designation actually takes place.  Another serious question that came up in the HLF trial was the following: If indeed they are part of a terrorist financing network, why had Zakat committees never been designated as terrorist organizations? The government argued that there was no need to designate them separately because they were components of Hamas.  John Cline demonstrated that this argument does not hold water. He showed clearly that in fact “OFAC designated a whole slew of component entities.” But never the Zakat committees or their board members.

All this shows that the entire case is built on prejudice and false information.  It has not been proven that Hamas had anything to do with the killing of David Boim, it has not been proven that HLF or AMP or the other organizations and individuals mentioned in this lawsuit had provided material support to Hamas. Clearly, neither HLF, AMP or the individuals named in this lawsuit are in any way liable or responsible for the death of David Boim. The very method by which organizations are designated as “terrorists” is flawed and, one can argue, targets Muslim organizations that deal with Palestine.

Palestinians are fighting for their freedom, their independence and for their very lives. We would all do well to support them politically and when appropriate contribute to the organizations that further their cause. We must insist that Palestinian liberation organizations, resistance and charity organizations, educational and other learning institutions not be treated as terrorists or supporters of terrorism and we must join Palestinians in their struggle for justice. We would all do well to call for the release of the HLF-5 and demand that they be exonerated and that the Boim lawsuit be thrown out of court.

Miko Peled is a human rights activist. He is the author of “The General’s Son, Journey of an Israeli in Palestine” and the forthcoming book, “Injustice, The Story of the Holy Land Foundation Five” expected to be available in the fall on 2017. To book Miko Peled for a lecture, please click here.