This article appears also in The Occidental Quarterly 15, no.1 (Spring, 2015), 3–14.
It is a formidable challenge to criticize anti-terrorism measures without seeming callous, naïve, or cynical. On the one hand, the use of indiscriminate violence to achieve political or religious aims should be condemned and the victims of such acts treated with compassion. On the other hand, we must live in the real world. In that world, there are persons and groups whose professed sympathy for victims of terrorism is imbued with, one might even say masks, a large dose of narrow self-interest — a self-interest that, put in action, dangerously skews the enactment, interpretation, and enforcement of such laws.
Take, for example, the United States’ Anti-Terrorism Act, 18 U.S.C. 2333 (the “ATA”), and the uses made of it by what one might call the Jewish Ethnocentric Network (“JEN”). The ATA may have had commendable, albeit limited, purposes at its creation, but over the last decade it has undergone a radical transformation, to the point that it is now a potent weapon to advance JEN causes at the expense of larger American interests.
The ATA is one of many American federal laws aimed at deterring “terrorism.” The impetus behind its enactment stemmed from two terrorist act events in the 1980s: the hijacking and murder committed by members of the Palestinian Liberation Organization on the Achille Lauro cruise ship in 1985, which included the murder of Leon Klinghoffer, an elderly Jewish man in a wheelchair who was thrown into the sea; and the bombing above Lockerbie, Scotland, of Pan Am Flight 270 in 1988, killing 270. The victims of these terrorist acts, bringing suit against the persons and organizations that perpetrated, or allegedly perpetrated, them, encountered jurisdictional and procedural hurdles. They therefore lobbied Congress, and against this background Senator Charles Grassley reintroduced the ATA in 1992. The Act, now codified at 18 U.S.C. 2333, provides:
Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism . . . may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains . . .
“International terrorism” is defined in 18 U.S.C. 2331 as activities that:
(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;
(B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.
A notable aspect of this statute is that, on its face at least, it provides only for primary liability, i.e., liability for the person who committed the terrorist act, but not for secondary liability, i.e., liability for those who aided, abetted, or otherwise provided support for the primary actor. This aspect is critical, for few terrorists have the resources to pay substantial judgments. Accordingly, it is not surprising that Senator Grassley and others among the ATA’s initial proponents regarded it as having limited scope and as largely symbolic.
As one would expect given its limited reach, the ATA was rarely invoked in the first decade after its passage; indeed, not a single published opinion prior to 2002 even mentioned it. This changed radically, however, as a result of the Seventh Circuit Court of Appeals’ opinions (there are three of them) in theBoim v. Holy Land Foundation for Relief and Development, et al. case.
In 1996, David Boim, a Jewish teenager living in Israel who was both an Israeli and an American citizen, was shot to death by two men at a bus stop near Jerusalem. His parents filed suit in federal court in the United States in 2000, alleging that the killers had been members of Hamas. The suit named as defendants, among others, the Holy Land Foundation for Relief and Development, the American Muslim Society, and the Quranic Literacy Institute. Boim’s parents argued that, although these defendants had not committed the killing, they were nonetheless liable under the ATA because they allegedly had contributed funds to Hamas — in other words, that they were secondarily liable.
The Seventh Circuit panel (Judge Rovner wrote the majority opinion) was sympathetic to the Boims but struggled to find legal grounds on which to support the secondary liability the Boims sought. In the first appeal, 291 F.3d 1000 (7th Cir. 2002) (an interlocutory appeal prior to trial taken by the defendants from the trial court’s denial of their motion to dismiss), the Seventh Circuit concluded, in a lengthy opinion, that the defendants could be held liable on an aiding and abetting theory borrowed from traditional tort law. The case then resumed in the trial court, which granted summary judgment on liability to the Boims as to three of the defendants and sent issues regarding both liability and damages as to one defendant to a jury. The jury rendered a verdict of $52 million against all defendants, which was trebled, in accordance with the statute, to $156 million.
The defendants appealed again. Several Jewish organizations, including the Anti-Defamation League, filed amicus curiae briefs in support of the Boims and a broad reading of the ATA. In this appeal (511 F.3d 707 (7th Cir. 2007)), Judge Rovner again writing for the majority upheld the holding of secondary liability based on an aiding and abetting theory that the court had set forth in the earlier appeal. Defendants then requested a hearing en banc (of all the judges in the Seventh Circuit), which was granted. Again, numerous Jewish organizations, including the ADL, the Jewish Institute for National Security Affairs, and the Jewish Community Relations Council of the Jewish United Fund of Metropolitan Chicago, filed amicus briefs supporting the Boims and an expansive reading of the ATA. In this third appellate decision (549 F.3d 685 (7th Cir. 2008)), Judge Posner for the en banc majority rejected the earlier panels’ reliance on an aiding and abetting theory for secondary liability, finding no support for it in the text or legislative history of the statute, but approved a different secondary liability theory: that Section 18 U.S.C. 2333 (the ATA section) incorporated by reference two criminal statutes, namely Sections 18 U.S.C. 2339A and 2339B.
The en banc court’s holding that Section 2333 incorporates Sections 2339A and 2339B is odd in many respects, not least the timing of the enactment of these various laws. Section 2339A, enacted in 1994, provides criminal penalties for those who provide “material support or resources” with the knowledge or intention that the support is to be used “in preparation for, or in carrying out” any of over two dozen violent crimes. Section 2339B, enacted in 1996 shortly after the Oklahoma City bombing, provides criminal penalties of up to 15 years imprisonment plus substantial fines for whoever “knowingly provides material support or resources to a foreign terrorist organization,” as “terrorist organization” is defined under Section 219 of the Immigration and Nationality Act. Neither Section 2339A nor Section 2339B makes any reference to Section 2333. Of more relevance to the Seventh Circuit’s incorporation by reference theory, nothing in the text or legislative history of Section 2333 suggests that in 1992, when the ATA was enacted, Congress intended to incorporate by reference statutes, such as Sections 2339A and 2339B, that did not then exist and would not be enacted until years later. The Seventh Circuit reached this logic-challenged result only by a contorted interpretation of the term “international terrorism” as it is used in the ATA.
The Seventh Circuit’s approval of secondary liability under the ATA — first on an aiding and abetting theory and then on an incorporation by reference of the criminal material support statutes theory — opened the floodgates for the use of the ATA in civil litigation. Since the first Boim decision in 2002, there have been well over a hundred published decisions involving the ATA, and the number promises to get even larger. The following lists several general traits of this wave of ATA cases.
First, most of the cases, like Boim itself, involve Jewish plaintiffs (often Israeli as well as Jewish). A review of the published decisions annotated to Section 2333 in the United States Code Annotated shows that approximately 70% of the annotated cases involved Jewish plaintiffs. Examples include Rothstein v. UBS AG, 798 F.3d 82 (2d Cir. 2013); Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50 (2d Cir. 2012); Kaplan v. Central Bank of the Islamic Republic of Iran, 2014 WL 3610784 (D.D.C. July 23, 2014); Wultz v. Islamic Republic of Iran, 864 F.Supp.2d 24 (D.D.C. 2012); Abecassis v. Wyatt, 785 F.Supp.2d 614 (S.D. Tex. 2011); Gill v. Arab Bank, PLC, 893 F.Supp2d 474 (E.D.N.Y. 2012); andWeiss v. National Westminster Bank PLC, 936 F.Supp.2d 100 (E.D.N.Y. 2013). Cases such as In re Chiquita Brands International, Inc., 690 F.Supp.2d 1296 (S.D.Fla. 2010), which involve neither Jewish plaintiffs nor defendants that are avowed enemies of Israel, seem almost anomalous in this context.
Second, the interpretation of the ATA to encompass secondary liability, particularly on a “material support” theory, has brought within the statute’s scope a wide array of defendants, including banks, e.g., Rothstein v. UBS AGand Gill v. Arab Bank, charities and educational organizations, e.g., Boim, businesses such as oil and gas companies, e.g., Abecassis, and media, e.g.,Kaplan v. Al Jazeera, 2011 WL 2314783 (S.D.N.Y June 7, 2011). Many of these entities were attractive as defendants because of their deep pockets. The ATA lawsuits also, however, served the purpose of discouraging banks, businesses, donors, media, and others from having transactions with the alleged terrorist organizations, even though the banks, businesses, donors, et alia, may have had only tenuous connections to any alleged terrorist aims or actions — as, for example, where banks engaged only in purely commercial, arms’ length transactions or donors earmarked their donations exclusively for humanitarian purposes.,
Third, if an ATA claim survives the initial motion to dismiss, discovery — i.e., the pre-trial phase in civil litigation in which a party can obtain evidence from the opposing party by means of discovery devices such as requests for production of documents, requests for answers to interrogatories, and depositions — often gives the plaintiffs an enormous tactical advantage. Many ATA defendants, especially banks and charities, have extraordinary confidentiality concerns that can easily be compromised or violated by the invasive discovery devices available in civil litigation. In the Linde v. Arab Bankcase, for example, the bank was caught on the horns of a dilemma: on the one hand, the district court supported the plaintiffs’ demands that the bank turn over its banking records to the plaintiffs in discovery; on the other hand, three foreign banking authorities threatened the bank with legal action for violating national bank secrecy laws if the banks did so. When the bank refused to produce the documents, the district court sanctioned the bank by permitting the jury to infer from the nondisclosure that the bank had knowingly provided services to a designated foreign terrorist organization.
Fourth, if an ATA claim survives all pre-trial motions and goes to a jury, the risks of a huge plaintiffs’ verdict are very great, particularly in light of the ATA’s treble damages provision. To put it mildly, juries do not like terrorists, or persons they have been convinced are terrorists, and they are generally not well-disposed toward foreign banks or Islamic charities. As mentioned, the plaintiffs in the Boim case received an award of $156 million after trebling. The plaintiffs in Ungar v. Palestinian Liberation Organization received a damages award of approximately $116 million. The plaintiffs in Calderon-Cardona v. Bank of New York Mellon, HSBC, 770 F.3d 993 (2d Cir. 2014), received compensatory damages of $78 million and punitive damages of $300 million. Other examples of outsized awards could be provided.
Finally, even as defendants’ exposure under ATA claims widens, their defenses are being narrowed. Many nations have heretofore been able to invoke absolute immunity from ATA (and other) claims in accordance with the Foreign Sovereign Immunities Act, but that will change if Senator Charles Schumer succeeds in convincing Congress to pass his Justice Against Sponsors of Terrorism Act (“JASTA”). JASTA, indeed, would not only remove sovereign immunity as a defense to ATA claims, but would expressly incorporate secondary liability into the ATA, just in case some courts decline to follow theBoim decision as a matter of precedent. Moreover, JASTA seems designed to weaken the requirement, which many courts have read into the statute, of a substantial causal link between the plaintiff’s injuries and the defendant’s alleged actions. The act broadly states that its purpose
is to provide civil litigants with the fullest possible basis, consistent with the Constitution, to seek relief against persons, entities and foreign states, wherever acting and wherever they may be found, which have provided material support or resources, directly or indirectly, to foreign organizations that engage in terrorist activities.
Impelled by Senator Schumer’s aggressive sponsorship, JASTA passed the Senate in December 2014 and now awaits passage in the House. Schumer has fulsomely proclaimed that his motives for sponsoring this act are sympathy for victims of terrorism and revulsion of those who support the terrorists, and he can be found posing ostentatiously in many photographs with victims of the 9/11 attacks in support of the act. Given, however, that Schumer believes he is on a mission from God to be Israel’s guardian in the Senate and, it seems, has never publicly criticized Israel, one can be forgiven the suspicion that he is fully aware that JASTA, if it passes, will disproportionately benefit Jewish victims of allegedly terrorist acts.
Connecting the dots above, a diagram emerges of the ATA as a powerful weapon in the arsenal of JEN’s pro-Israel and anti-terrorism campaigns. Therealpolitik import of the diagram, indeed, is so self-evident that even elements within the JEN in moments of candor acknowledge it. An August 2014 article in Reuters by Alison Frankel, which describes Israel’s “sudden about-face” — one could also say “doublecross” — in its support of the ATA claims brought by the parents of Daniel Wultz, an American/Israeli teenager killed by a Jihad bombing in Tel Aviv in 2007, provides an informative example. The lawsuit alleges that Hamas was using Bank of China accounts to launder money and names the Bank of China as a defendant. Initially, the Israeli government supported the lawsuit; indeed, according to the plaintiffs, the Israeli government supplied the specific information about Bank of China transactions that is the backbone of their case. Later, however, Israel’s economic ties to China became an issue, particularly in light of Prime Minister Netanyahu’s planned state visit to Beijing. The Israeli government then refused to cooperate with the plaintiffs, who felt betrayed. Frankel writes:
The victims’ lawyers claim that the suits against Bank of China would never have been filed had Israel not promised to support the litigation — that, in fact, Israel considered U.S. litigation under the U.S. Anti-Terrorism Act an indispensable element of its national security campaign to choke off terror financing. …
Filings in the litigation . . . amplify the record on Israel’s initial support for the Bank of China litigation and its more recent decision to handicap the cases. The filings detail Israel’s novel tactic of using U.S. litigation to advance its national security objectives: After Israeli diplomacy couldn’t convince the Chinese to shut down suspicious accounts, Israeli operatives, according to the plaintiffs’ briefs, fed hard-won intelligence about alleged Bank of China terrorist accounts to private lawyers, with the express intention of prompting American victims to sue the bank. High-ranking Israeli officials personally assured some of the victims’ families that private U.S. litigation was in Israel’s national security interest. Yet when the country’s strategy changed, Israel walked away from the litigation.
Frankel further notes how a “U.S. congresswoman hand-delivered [a letter from the plaintiffs] to [Natanjahu],” trying, unsuccessfully, to persuade the Israeli government to keep its initial commitment.
This article validates several conclusions. First, the Israeli government, unsurprisingly, views US litigation under the ATA as “an indispensable element” of its national security campaigns. Obviously, the Israeli government’s involvement includes supporting ATA claims by American or Israeli Jews; but it is a fair inference that this involvement goes well beyond mere support — that the Israeli government actively instigates and promotes such lawsuits, unless it concludes that its national security objectives counsel otherwise.
Second, the Israeli government, despite its Schumer-like protestations of sympathy for victims of terror attacks, will turn against such victims if the government considers other objectives, such as good economic relations with China, more important. If Israel will withdraw its support even for Jewish victims, one can easily imagine how little weight Israel gives to non-Jewish interests, such as those of the American people who have opened their judicial processes to them, with regard to ATA claims.
Finally, it is readily apparent that the uses JEN makes of ATA suits encompasses a multi-focal approach, involving not only the American judicial system but Congress, which enacts anti-terrorism laws and whose individual congresspersons advocate on behalf of Jewish ATA plaintiffs, and the Executive branch, which enforces these laws and also promulgates politicized lists of countries and organizations that sponsor or engage in terrorism.
So why should we care?
We should care if, as American citizens, we object to a foreign country, such as Israel, using our judicial resources as a tool in that country’s national security arsenal. ATA lawsuits are often complex; even if the cases are resolved pre-trial, much judicial time and effort must be expended addressing them, especially if appeals are involved. The Boim case, for example, went up on appeal three times. Moreover, ATA claims that survive pretrial motions invariably involve trials that last weeks or even months. Further, if the plaintiffs receive a favorable judgment, American judicial resources must be deployed to address the difficult issues that arise in enforcement of the judgment. These burdens on our judicial system arise in the context of present heavy caseloads and tight budgets for our courts, particularly the federal courts.
We should care if we believe that our foreign policy should be conducted, at least primarily, by our executive branch, as our Constitution requires, and not by private parties bringing lawsuits under the ATA. ATA claims, if successful, can result in huge judgments against the defendants. If those judgments are against a country — and if Schumer is able to get JASTA passed, countries will lose their sovereign immunity defense in ATA cases — those judgments could well impede the Executive Branch’s ability to give aid, negotiate treaties, or otherwise develop relationships and resolve differences with the country. And many, if not most, of the countries which have found or will find themselves defendants in ATA actions are, uncoincidentally, enemies of Israel.
We should care if we believe there are many innocent victims of violence and oppression in the Middle East, who deserve food, education, and a chance to live in peace. Cutting off humanitarian aid to such persons simply because the aid is provided by an organization that has been designated by our government as a terrorist organization, which has been a general effect of ATA litigation (see Note 7 above), is objectionable on several levels, including: the objectivity and fairness of our government’s designation of organizations as terrorist is subject to legitimate criticism; punishing persons for accepting humanitarian aid from a “terrorist organization” when the persons are not even members or supporters of that organization savors of reprisal punishment, a violation of the Geneva Convention; and cutting off humanitarian aid in this way fails to address that poverty, ignorance, and despair can create conditions favorable to the recruitment of persons to terrorist organizations.
We should also care if we believe that the depiction of the “sinned by/sinned against” ratio between Israel and its enemies is badly skewed in Israel’s favor by critical elements of our society, including our Congress, much of our news media, powerful activist organizations like the ADL, and the moguls who dominate our entertainment industries. ATA litigation, as it has developed in the last decade or so, replicates that imbalance in the judicial realm. Reading the ATA cases, one learns much of the wrongs done to Jewish persons such as David Boim or David Wultz, and one finds several such cases in which large judgments have been rendered against the perpetrators. But one searches in vain for a single instance in ATA or similar cases in which Israel has been held accountable for its wrongs — for its illegal settlements, its reprisal destruction of Palestinian homes, its use of excessive force, its killing of Rachel Corrie, an unarmed peace activist (by a bulldozer paid for by American funds), its shelling of a United Nations compound, and many others. This disparity should offend anyone with a sense of right and wrong, a patriotic love of the nobler aspects of the American character, and a concern that America, having allowed JEN to sow the wind for its self-serving purposes, will reap the whirlwind of hatred and retribution.
Kyle J. Bristow is an attorney licensed to practice law in Michigan and Ohio, and he hasfiled two amicus curiae briefs on behalf of the Traditionalist Youth Network, LLC: Brief of Traditionalist Youth Network, LLC, as Amici Supporting the Appellants, DeBoer v. Snyder, __ F.3d __ (6thCir. 2014) (No. 14-1341) (Arguing that same-sex marriage is not a right) and Brief of Traditionalist Youth Network, LLC, as Amici Supporting the Appellants, Kolbe v. O’Malley, __ F.3d __ (4thCir. 2015) (No. 14-1945) (Arguing that a ban on military-style weapons is unconstitutional). His website can be viewed at www.KyleBristow.com.
 This acronym, admittedly, is awkward, but one needs a term broad enough to encompass Jewish special pleaders such as the ADL and elements of the Israeli government, yet narrow enough to exclude Jewish persons and groups who oppose the excesses of Zionism and Jewish ethnocentrism.
 There is, for example, the Animal Enterprise Terrorism Act, 18 U.S.C. 43, undoubtedly passed at the behest of the pharmaceutical industry, which characterizes as terrorists and provides criminal penalties for those who “damag[e] or interfer[e] with the operations of an animal enterprise.”
 For a summary of ATA’s legislative history, see Geoffrey Sant, “So Banks Are Terrorists Now? The Misuse of the Civil Suit Provision of the Anti-Terrorism Act,” 45 Arizona State Law Journal, 533, 544-46 (2013).
 Section 2339A was rarely used as a predicate for a criminal prosecution prior to the 9/11 attacks.
 See Sam Adelsberg, Freya Pitts, Sirine Shebaya, “The Chilling Effect of the “Material Support” Law on Humanitarian Aid: Causes, Consequences, and Proposed Reforms,” Harvard National Security Journal 4, no. 2 (2013), 282; see also Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (interpreting Section 2339B and holding that the federal government may prohibit non-violent material support to terrorist organizations, including humanitarian aid and legal services and advice — such as advocating non-violent change — without violating the free speech clause of the First Amendment.
 The ADL and the Jewish Institute for National Security Affairs submittedamicus curiae briefs in the Humanitarian Law Project case in favor of the government’s right under Section 2339B to prohibit non-violent support, such as food, medical assistance, and educational materials directed to alleviating poverty, to groups designated by the government as terrorist organizations, even if those organizations have distinct arms dedicated to humanitarian purposes and peaceful change. Organizations such as the Carter Center and Human Rights Watch filed amicus briefs opposing the government’s right to prohibit such non-violent support.
Linde v. Arab Bank, 706 F.3d 92, 95, 98 (2d Cir. 2013).
 M.J. Rosenberg, Blog, Huffington Post, posted July 2, 2010, “Schumer: I’m On a Mission from God (to Be Israel’s Guardian in Senate).”
 Steve Clemons, Blog, Washingtonnote.com, posted April 22, 2010, “Has Chuck Schumer EVER Criticized Israel or its Leadership in the Way He Just Unloaded on Obama?”
 Alison Frankel, Reuters, August 11, 2014, “Israel’s Conflicted Role in Bank of China Finance Case.”
 The arbitrary and political nature of the State Department’s designations of certain nations as sponsoring terrorism and of certain organizations as foreign terrorist organizations merits another critical article.
 In Ahmad v. Christian Friends of Israel Communities, et al. 2014 WL 1796322 (S.D.N.Y May 5, 2014), the plaintiffs, thirteen men and women who live in the West Bank, two of them American citizens, filed a complaint under the ATA, alleging, inter alia, that they had been subjected to stoning, firebombings, shootings, beatings, and destruction of property by Israeli citizens who have built settlements in the West Bank in violation of international law. The defendants included many organizations, both Christian and Jewish, who provided financial support to the settlers. The court granted the defendants’ motion to dismiss, holding that it was not “plausible” that the defendants provided the support knowing, or recklessly indifferent to the possibility, that the funds would be used in support of the violent acts. The plaintiffs, accordingly, were not allowed to conduct discovery on these issues.
In Doe I v. State of Israel, 400 F.Supp.2d 86 (D.D.C. 2005), a group of Palestinians, most of them American citizens, brought suit against Israel, several Israeli leaders and setters, and the settlers’ American supporters, alleging, inter alia, genocide and war crimes. The court dismissed the suit on grounds of Israel’s sovereign immunity, among other grounds.
 In Corrie v. Caterpillar, Inc., 403 F.Supp2d 1019 (W.D. Wash. 2005), aff’d, 503 F3d 974 (9th Cir. 2007), the family of Rachel Corrie, an American citizen who was killed in the Gaza Strip in 2003 when she was run over by an Israeli Defense Force bulldozer manufactured by Caterpiller, Inc., brought suit against Caterpillar. Corrie, an unarmed young women, was killed while she was protesting Israel’s destruction of Palestinian homes. It emerged in the litigation that the United States had paid for Israel’s purchase of the bulldozer that killed Corrie. The trial court dismissed the suit on numerous grounds, including the political question doctrine and the act of state doctrine (the “Act of State doctrine . . . precludes United States courts from judging the validity of a foreign sovereign’s official acts”), and the Ninth Circuit Court of Appeals affirmed. The Corrie family later brought suit in Israel. That suit was also dismissed, after a trial that Rachel Corrie’s parents have characterized as unfair.
 In Belhas v. Ya’alon, 515 F3d 1279 (D.D.C. 2008), relatives of civilians who died when an Israeli shell hit a U.N. compound in Lebanon, brought suit for war crimes. The district court dismissed the complaint on grounds of lack of subject matter jurisdiction and the D.C. Court of Appeals affirmed.