Supreme Court divided over terrorism financing

The Supreme Court divided Wednesday over holding an Arab bank liable for terrorist attacks committed during the Second Intifada. © Susan Walsh, AP The Supreme Court divided Wednesday over holding an Arab bank liable for terrorist attacks committed during the Second Intifada.

WASHINGTON — Some 6,000 foreign victims of Middle East terrorism asked a skeptical Supreme Court Wednesday to hold a foreign bank liable for financing a reign of terror under an obscure law passed by the first U.S. Congress in 1789.  


Some justices questioned whether corporations can be liable at all under the Alien Tort Statute. Others wondered whether the terrorist attacks had a sufficient connection to the United States. Still others worried about causing friction with international allies.


What got precious little attention were the terrorist acts themselves — more than 150 suicide bombings and other attacks in Israel and the Palestinian Territories from 1996 to 2005 tied to the Second Intifada.


The victims, including people injured in the attacks and relatives of those who were killed, claim that Jordan-based Arab Bank used a New York branch to help finance terrorists from Hamas and other groups and funnel martyr's payments to suicide bombers' families. 


"Our view is that terror is a long chain of evil," said Yossi Zur, an Israeli who lost his 16-year-old son Asaf when a bomb exploded on the bus taking him home from school. Seventeen people were killed in that attack, including nine students, and more than 50 others wounded.


"Financing terrorism is the most important link in the chain, because without money there wouldn't be any terrorism," Zur said from his home in Haifa. "Everything that terrorists are involved in needs money."


The bank, which operates in nearly 30 countries, contends that it is not responsible for attacks on "foreign plaintiffs seeking relief against a foreign defendant for injuries caused by foreign actors on foreign soil." The U.S. connection, it said in legal briefs, is limited to "ministerial dollar-clearing."


The U.S. Court of Appeals for the 2nd Circuit, based in New York, ruled that the 1789 statute cannot be used against corporations. The Supreme Court's conservative justices seemed to agree on that point while the liberal justices disagreed, but it appeared a compromise might send the case back to the appeals court to be decided based on its ties to the United States. 


That's how the high court avoided a definitive ruling on corporate liability in 2013, when it decided that Nigerian citizens could not use the 1789 statute to hold foreign oil companies responsible for human rights violations overseas. 


That solution was endorsed by the Justice Department in legal papers and during Wednesday's oral argument. While it does not side with Arab Bank against any potential corporate liability, assistant solicitor general Brian Fletcher said, the case "has been a source of international friction."


"If this important issue isn't resolved quickly, there may be more international friction," he said.


The Alien Tort Statute gives U.S. courts jurisdiction over crimes committed overseas "in violation of the law of nations or a treaty of the United States." 


The victims in Wednesday's case say Arab Bank "knowingly and intentionally distributed millions of dollars to terrorists and their families as compensation for ... terrorist attacks." They cite nearly 300 fund transfers through its New York branch.


American victims of 22 terrorist attacks won a jury verdict in 2014 under a different law not available to foreign citizens. That case remains on appeal. 


Wednesday's oral argument had several justices "looking back to 1789," in Justice Neil Gorsuch's words, to decipher what the First Congress intended. Gorsuch said lawmakers at the time meant for the statute to be directed at American defendants.


Chief Justice John Roberts said the law was passed to avoid "foreign entanglements," not add to them. Ruling in favor of the victims, Justice Samuel Alito said, could lead to more lawsuits "that do raise foreign relations concerns."


Speaking by telephone from Israel, however, Zur said the issue should be resolved on an international basis because terrorism, once centered in Israel, has gone global. 


"You can see that it's something that needs to be taken care of," he said. "Financing terrorism is as bad as pulling the trigger or exploding the bomb."


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