OpinionIsrael at War

Did American taxpayers finance Hamas’s massacre of Jews?

American courts must stop stonewalling and hold pro-terrorist “charities” accountable.

U.S. Supreme Court building. Photo by Brandon Bourdages/Shutterstock.
U.S. Supreme Court building. Photo by Brandon Bourdages/Shutterstock.
Nathan Lewin
Nathan Lewin
Nathan Lewin is a Washington, D.C., attorney with a Supreme Court practice who has taught at leading national law schools including Harvard, Columbia, Georgetown and the University of Chicago.

There is now little doubt that Iran planned and financed Hamas’s mass murder and kidnapping of Jewish civilians on Oct. 7. Whether the billions of dollars released to Iran by the Biden administration helped finance the massacre is still a subject of dispute in the United States.

No one seems to be paying attention, however, to whether there is yet another source of financing on which Hamas relies for its terrorist activities: Tax-deductible contributions made by American benefactors.

A startling decision by a federal court of appeals in Washington, D.C., stifled an effort by three American families living in southern Israel to employ routine judicial discovery processes to ferret out evidence that tax-deductible money contributed to an organization that calls itself the “U.S. Campaign for Palestinian Rights and Education for a Just Peace in the Middle East” is circuitously funneled to Hamas. The organization boasts that it sends money to the “Palestinian National and Islamic Forces” and to the “Boycott National Committee.” These are foreign entities whose members include five U.S.-proscribed Foreign Terrorist Organizations, including Hamas. They are also the coordinating bodies for the anti-Israel BDS movement

The Goodman, Rosenfeld and Vaknin families include U.S. citizens who reside in southern Israel in an area called the Gaza Envelope. Incendiary balloons and kites designed to burn down Israeli homes and forests began being launched in March 2018 across the border from Gaza. By November of the following year, there had been more than 600 such launches during “Great Return Marches” in Gaza that were sponsored and supported by Hamas.

In 2019, alleging that the destructive kites and balloons are criminal instrumentalities of international terror under federal law (18 U.S.C. 2333), the American families sued the above-mentioned pro-Palestinian organization that solicits tax-deductible contributions in the United States and acknowledged sending the collected funds to the foreign entities that include Hamas and other Foreign Terrorist Organizations. The plaintiffs filed a detailed 271-paragraph complaint that specified the defendant’s promotion of the “Great Return Marches” and described, in 25 paragraphs, Hamas’s involvement and likely control of the “Marches.”

The Israeli case was assigned to District Judge Richard Leon, who had previously dismissed an anti-terrorism complaint filed by the families of Americans who were killed and injured in Iraq by Hezbollah-controlled terrorists. The victims’ families had sued leading international pharmaceutical firms (including Pfizer), claiming that the companies had paid bribes to the Iraqi Ministry of Health, which was controlled by Hezbollah. They alleged that these payments were a prohibited form of assistance to Hezbollah’s international terrorism, thereby entitling the victims of Hezbollah terrorism to recover millions of dollars from the drug companies. Repeating his reasoning in the Iraq case word-for-word, Judge Leon also dismissed the terrorism claims filed by the Americans living in southern Israel.

Judge Leon’s dismissal of both complaints effectively terminated the lawsuits. Both sets of plaintiffs were denied the opportunity to obtain admissible evidence to support their allegations through the federal-court “discovery” process in which a defendant must disclose documents and give sworn testimony.

Both decisions were appealed. In the Iraq case, a unanimous panel of three judges ruled that Judge Leon’s dismissal was erroneous and that the plaintiffs were entitled to proceed with discovery. The court found “plausible” the complaint’s allegations that Hezbollah’s terrorism was aided and abetted by the drug companies’ bribes to the Iraqi Ministry of Health (allegedly controlled by Hezbollah). By contrast, the Court of Appeals rejected as “conclusory” and not sufficiently “plausible” the allegations of the victims living in Israel. The court’s opinion could have been written by the graduate of the City University of New York Law School who turned her commencement speech into a partisan attack on Israel and a call for support of Palestinian claims.

The appellate judges declared that the detailed allegations of the victims of terror emanating from Gaza charged only “guilt by association” because they did not specify the “nature and extent” of the defendant organization’s donations to the Boycott National Committee, “how the Boycott National Committee spends its funds, or how donations to the Boycott National Committee are funneled to the PNIF or Hamas.” These inadequately detailed subjects are customary subjects of discovery because they can be gleaned only from a defendant’s records or from uncooperative witnesses who have to be subpoenaed.

The appellate court revealed its anti-Israel bias when it exculpated the Boycott National Committee because it “also engages in lawful civil resistance.” Its opinion characterized support for the boycott, divestment and sanctions (BDS) movement that aims to destroy Israel, and is contrary to public policy in many U.S. states as nothing more than “engag[ing] in lawful advocacy.”

When it was issued in May 2023, the appeals court ruling may have appeared minor. It foreclosed a court-ordered damage remedy for the seemingly petty annoyance of fiery kites and balloons that caused property damage but had not resulted in physical injury or death. Now that Hamas has murdered more than 1,400 civilians (including 30 American citizens) and kidnapped as many as 200 hostages (including 13 Americans), the soliciting organization’s role in financing Hamas’s ventures is much more significant.

Has it been funneling tax-deductible contributions solicited from American benefactors to Hamas? If so, American victims of Hamas’ sadistic international terrorism are legally entitled to recover from the organization the triple damages and attorneys’ fees that American anti-terrorism law prescribes. The Supreme Court should permit the plaintiffs in the currently pending case to proceed with the discovery that is routine in federal cases.

The author is the attorney who filed a petition for Supreme Court review of the decision of the D.C. Circuit Court of Appeals in the case of “Keren Kayemeth LeIsrael v. Education for a Just Peace in the Middle East, No. 23-208.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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