Frozen funds used to mount terror defense

WASHINGTON, Feb. 14 (UPI) -- Should the lawyers of groups whose assets have been frozen for alleged terrorist links be allowed to use those assets to mount a defense, or should those groups have to raise "fresh" funds, as do those whose assets have been frozen in connection with drug charges?

The question applies to many groups, but it is thrown into high relief in a civil suit filed on behalf of the family of an American teenager killed on the West Bank. Attorneys on both sides have presented their views on the issue to the Senate Judiciary Committee.

On May 13, 1996, David Boim, 17, was killed in a drive-by shooting by Hamas gunmen near Beit El, north of Jerusalem, as he stood at a bus stop near the school he was attending.

A law enacted in October 1992 enabled victims of terrorism to sue for civil damages. In January 1995, President Clinton issued an executive order providing for the seizure of assets of groups, including Hamas, that threaten to disrupt the Middle East peace process.

The Anti-Terrorism and Effective Death Penalty Act of April 1996 made it illegal for Americans to send money to terrorist groups, even if that money is ostensibly intended to support humanitarian or charitable works.

In May 2000, Washington attorney Nathan Lewin brought suit on behalf of Boim's parents in the U.S. District Court for the Northern District of Illinois. Among the defendants was the Holy Land Foundation for Relief and Development.

On Dec. 4, 2001, President Bush announced that the FBI and the Treasury Department had moved to seize the assets of the HLF, beginning with its offices of Texas, California, New Jersey, and Illinois.

"Money raised by the Holy Land Foundation is used by Hamas to support schools and indoctrinate children to grow up into suicide bombers," the president said in a Rose Garden news conference. "Money raised by the Holy Land Foundation is also used by Hamas to recruit suicide bombers and support their families."

In a phone interview with United Press International, the foundation's Albuquerque, N.M.-based attorney, John Boyd, vigorously denied that his clients or HLF have ever been involved with Hamas.

"Thus far, the plaintiffs in Boim have produced no evidence to suggest that the Holy Land Foundation was in any way responsible for the murder of David Boim, nor have they produced any evidence other than the rankest hearsay that the Holy Land Foundation has ever had any kind of relationship with Hamas, either before or after Hamas was declared a terrorist organization in 1995," Boyd said.

The attorney said the government has never had to prove its case against the HLF, which has never had an opportunity to prove its innocence in court or in a hearing before an impartial administrative law judge. "The government's position is HLF shouldn't have such an opportunity," Boyd said, "and so far, the courts have agreed."

HLF funds are being held by the Treasury Department's Office of Foreign Assets Control, which "licenses" withdrawals for legal defense. Nathan Lewin is concerned that if litigation goes on long enough, nothing will be left for Joyce and Stanley Boim in the event of a favorable judgment. Meanwhile, he and his daughter and law partner, Alyza, have invested about $1 million in attorneys' time without remuneration.

Alyza Lewin sees the issue as one that transcends the Boim case. "This is happening across the board," she told UPI, "whether to victims of Sept. 11, or Hamas, or any of these groups. The president and the government are all talking about frozen assets, as if we're incapacitating the terrorists. But the assets are not really frozen. They're melting -- being depleted by defense counsel. Soon the puddle will have evaporated."

Boyd said, "The Holy Land Foundation has to defend itself. When it is sued, it defends itself with lawyers."

"They have the right to defend themselves," Alyza Lewin responded, "but let them get what they call 'fresh funds.' When they freeze the assets in the drug money cases, the defendants are required to use fresh funds, not the frozen funds, to pay for their defense."

A Drug Enforcement Administration spokeswoman confirmed this as standard procedure.

Nathan Lewin recapped recommendations for new legislation that would apply in these cases that he gave before the Senate Judiciary Committee on Nov. 20. "The law should provide that if a plaintiff is successful in defeating a motion to dismiss, he automatically recovers attorneys' fees and out-of-pocket expenses from the defendants," he said. "Otherwise, well-financed defendants can exhaust a plaintiff's lawyer with preliminary skirmishes."

Further, Lewin said that funds that have been seized by the United States in terrorism-related cases should be made available for the payment of plaintiff's attorneys' fees whenever the plaintiffs have prevailed at the pretrial stages, such as motions to dismiss.

He also said that the statute of limitations, now four years, should be extended to 10 years. "Funders of terrorism frequently operate in secrecy," he said, "and their identity is not known until long after they paid those who commit murder and other forms of violence."

In response to Lewin's testimony, Boyd prepared a statement for entry into the Congressional Record that he forwarded to UPI. In it he set out in detail his case that "there is not now and never has been a connection between HLF and Hamas, and HLF has never provided support to Hamas." He wrote that the Treasury Department's blocking order relied heavily on an Israeli government summary of a statement attributed to HLF's former West Bank manager that misrepresented the manager's "confession" that some of HLF's money goes to Hamas. The administrative record supporting the order, Boyd wrote, "consists almost entirely of hearsay, innuendo, unsupported opinion, and even hundreds of pages of newspaper articles."

On the matter of attorneys' fees, Boyd wrote: "What Mr. Lewin appears to be asking is that the president and his designees be given the authority to seize the assets of an American organization, based on evidence that may run the gamut from reliable to unreliable to outright fabricated, and deprive that organization of the ability to contest the evidence, the designation or the blocking order." Boyd said if Lewin believes he has a case, he should prove it before a jury. If a jury should find HLF legally responsible, "he will likely be able to access HLF's blocked funds, and can be paid from those funds just as any other lawyer would who worked on a contingent-fee basis."

Lewin emphasized that under his proposal, a defendant in a terrorism case who moves to dismiss the complaint would have to pay plaintiff's attorneys' fees for responding to the motion to dismiss only if the motion is denied.

"In our case," Lewin said, "the defendants made a major production of their motions to dismiss and forced us to spend much attorneys' time in responding to them and then in defending the District Court's ruling on appeal. Why shouldn't the defendants -- whose motions to dismiss were found to lack merit -- pay for the cost of lawyers to reply to those unmeritorious claims?

"Why must we wait for a final judgment? In the meantime, rich terrorist defendants wear down the plaintiff's lawyers."