What Anti-Terrorism Act Cases Can Teach Alien Tort Statute Litigants About Proving Aiding and Abetting Claims

By Brad Goldstein, J.D. The George Washington University Law School, 2014

Two recent Anti-Terrorism Act (ATA) cases from the Second Circuit may help inform Alien Tort Statute (ATS) litigants about how to prove their corporate aiding and abetting claims for human rights abuses committed abroad.  In September 2014, a New York jury found Arab Bank guilty of 24 separate offenses, including aiding and abetting terrorism for knowingly allowing tens of millions of dollars in payments to flow through accounts to the families of Hamas terrorists in in the case of Linde v. Arab Bank, 269 F.R.D. 186 (E.D.N.Y. 2010).  In another case, Weiss v. National Westminster Bank, PLC, 768 F.3d 202 (2d Cir. 2014) (NatWest), the Court of Appeals of the Second Circuit held that under the ATA plaintiffs need only show that the bank had knowledge that, or exhibited deliberate indifference to whether, it maintained bank accounts that transferred funds to the Palestine Relief & Development Fund (a.k.a. Interpal). 

ATA allows U.S. nationals who are victims of terrorist attacks abroad to sue for damages in U.S. court.

ATA is a federal private right of action for U.S. nationals who are the victims, or the victim’s surviving heirs, of terrorism.  The statute criminalizes dangerous or violent acts that violate U.S. law, if the act is intended to 1) intimidate or coerce a civilian population, 2) influence government policy through intimidation or coercion; or 3) affect the conduct of a government by mass destruction, assassination or kidnapping.  Unlike the ATS, one distinct advantage of the ATA is that it is designed to apply to conduct that occurs extraterritorially, thus it does not have to meet Kiobel’s requirement that the relevant conduct sufficiently touch and concern U.S. territory.  Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013).

Corporations can be held liable for supporting terrorist activities under both ATA and ATS.

Corporate aiding and abetting liability is common to both ATA and ATS cases.  Often in corporate liability cases, corporations are not directly responsible for committing atrocities, but provide financial and material assistance to armed groups known to commit grave human rights abuses.  Since the Ninth Circuit’s Unocal decision in 2002, courts have held that corporations can be liable for aiding and abetting human rights abuses under the ATS. Doe v. Unocal, 395 F.3d 932 (9th Cir. 2002). The courts have recognized claims of corporate aiding and abetting the commission of war crimes, crimes against humanity, and genocide.  However, proving the mental state required for an aiding and abetting claim in some circumstances can be difficult, particularly in the Second Circuit, which requires ATS claimants to prove that the corporation acted with the intent to commit the underlying offenses (versus other federal circuits which simply require a showing that the defendant had knowledge that these crimes would occur).

The jury in Linde found Arab Bank liable for aiding and abetting terrorist attacks.

In Linde, the U.S. victims and families of victims of Hamas terrorist attacks in Israel brought suit against Arab Bank for housing accounts of Hamas-affiliated charities, which used Arab Bank accounts to provide “martyr benefits” to terrorists’ families.  Linde was the first civil trial against a bank under the ATA.  Plaintiffs brought eight claims, including aiding and abetting murder, serious bodily injury, conspiracy to commit murder and attempted murder.  Arab Bank claimed it checked all the transactions at issue and did not find any recipients matching U.S. government blacklists. 

Discovery sanctions imposed on Arab Bank played a major factor in the outcome of the case.  Arab Bank refused to disclose documents with certain account information, arguing disclosure would violate foreign bank secrecy laws in Jordan and Palestine.  Nonetheless, the judge approved a jury instruction allowing the jury to infer the withheld documents and testimony would have demonstrated the defendants acted with a culpable state of mind. In the court’s opinion, the plaintiffs offered sufficient evidence to show the non-disclosed documents contained repeated transfers by the Bank to terrorists, terrorist organizations, or their fronts, or on their behalf.  The jury instruction was designed to help restore the evidentiary balance between the plaintiff’s difficult burden to prove knowledge and intent when the defendant refuses to turn over crucial documents.  At the end of the trial, the jury found Arab Bank liable for aiding 24 Hamas terrorist attacks over the course of a four-year period.

NatWest held that the plaintiffs must show the defendant either knew or was indifferent to whether a Palestinian bank solicited funds to support Hamas.

The recent NatWest decision expounded on the mens rea requirement for aiding and abetting in ATA cases in the Second Circuit.  In that case, approximately 200 U.S. nationals (or their estates or surviving heirs) appealed the dismissal of their ATA claims regarding Hamas terrorist attacks launched in Israel.  The Second Circuit reversed, holding the statute only required the plaintiffs to show NatWest had knowledge, or acted with deliberate indifference to whether a Palestinian bank solicited funds to support Hamas.  The court focused on certain evidence showing culpable knowledge, including that NatWest was aware the Office of Foreign Asset Controls designated Interpal as a financier of terror.  In addition, executives in NatWest’s Group Enterprise Risk (the group responsible for terrorism related oversight) sent email communications stating they were aware that they held accounts of persons connected to Hamas, and NatWest knew of payments to organizations suspect of being connected with terrorism.

ATS plaintiffs can look to ATA cases for methods of proving culpability of corporate defendants. 

Although the Second Circuit’s mens rea requirement is more demanding than many other circuits, these ATA cases indicate that some judges are sensitive to the difficulty in proving intent when corporations refuse to hand over potentially incriminating documents in discovery.  Plaintiffs in ATS and ATA cases that are facing similar problems with corporations eluding discovery requests can look to these cases for guidance in finding alternative methods of proving intent in aiding and abetting claims.