In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

Nos. 05-1815, 05-1816, 05-1821 & 05-1822
STANLEY BOIM, individually and as
administrator of the ESTATE OF
DAVID BOIM, deceased, and
JOYCE BOIM,
                                            Plaintiffs-Appellees,
                                v.

HOLY LAND FOUNDATION FOR
RELIEF AND DEVELOPMENT, et al.,
                                    Defendants-Appellants.
                         ____________
          Appeals from the United States District Court
      for the Northern District of Illinois, Eastern Division.
       No. 00 C 2905—Arlander Keys, Magistrate Judge.
                         ____________
ARGUED NOVEMBER 30, 2005—DECIDED DECEMBER 28, 2007
                   ____________


 Before ROVNER, WOOD, and EVANS, Circuit Judges.
  ROVNER, Circuit Judge. This lawsuit has its origins in
the murder of David Boim more than ten years ago. David,
a citizen of both Israel and the United States, was living
with his parents in Israel when he was gunned down while
waiting for a bus in the West Bank outside of Jerusalem.
He was apparently shot at random by gunmen believed to
be acting on behalf of the terrorist organization Hamas.
2                Nos. 05-1815, 05-1816, 05-1821 & 05-1822

  Section 2333 of the United States Criminal Code grants
U.S. nationals injured by acts of international terrorism
the right to sue for treble damages in federal court. David’s
parents, Stanley and Joyce Boim, on behalf of themselves
and David’s estate, filed suit under this statute against
not only the two men believed to have shot David, but an
array of individuals and organizations in the United
States with alleged connections to Hamas. Broadly speak-
ing, the Boims’ theory as to the latter group of defendants
was that in promoting, raising money for, and otherwise
working on behalf of Hamas, these defendants had helped
to fund, train, and arm the terrorists who had killed their
son. In Boim v. Quranic Literacy Inst., 

(7th
Cir. 2002) (“Boim I”), we sustained the viability of the
Boims’ complaint, concluding that liability under section
2333 attached not only to the persons who committed
terrorist acts, but to all those individuals and organiza-
tions along the causal chain of terrorism.
  On remand, the district court found appellants Muham-
mad Abdul Hamid Khalil Salah (“Salah”), Holy Land
Foundation for Relief and Development (“HLF”), and
American Muslim Society (“AMS”) liable to the Boims on
summary judgment. Boim v. Quranic Literacy Inst., 

(N.D. Ill. 2004). At the conclusion of a
trial, a jury concluded that appellant Quranic Literacy
Institute (“QLI”) also was liable. The jury awarded dam-
ages of $52 million, which the district court trebled to
$156 million. Salah, HLF, AMS, and QLI all appeal.1
  Salah, HLF, and AMS contend that the criteria em-
ployed by the district court for imposing liability were


1
  The district court deemed a number of other defendants jointly
and several liable for the judgment. No other defendants have
appealed, however, and their liability consequently is not
before us.
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  3

incomplete or incorrect and that the evidence adduced
below did not suffice to impose liability. QLI complains
of the district court’s refusal to continue the trial date
after the court’s summary judgment rulings left it as the
sole defendant facing a trial on liability; it also contends
that the district court erred in sua sponte entering par-
tial summary judgment against QLI as to one aspect of
liability.
  We reverse the entry of partial summary judgment as
to liability against defendants HLF, AMS, and Salah. As
to HLF, we conclude that the district court erred in giving
collateral estoppel effect to the District of Columbia
Circuit’s finding that HLF funds the terrorist activities
of Hamas. As to AMS and Salah, we conclude that the
district court erroneously relieved the Boims of the bur-
den of showing that these defendants’ actions were a
cause in fact of David Boim’s death. As to QLI, we conclude
that the district court erred in sua sponte and without
prior notice applying its summary judgment determination
against the other defendants that Hamas was responsible
for the murder of David Boim, to QLI, against whom the
Boims did not seek summary judgment. However, the
district court did not abuse its discretion when it denied
QLI’s request to continue the trial date.
   In light of the errors in the summary judgment rulings
below, we vacate the judgments entered against these
four appellants and remand for further proceedings. On
remand, the Boims will have to demonstrate an adequate
causal link between the death of David Boim and the
actions of HLF, Salah, and AMS. This will require evi-
dence that the conduct of each defendant, be it direct
involvement with or support of Hamas’s terrorist activi-
ties or indirect support of Hamas or its affiliates, helped
bring about the terrorist attack that ended David Boim’s
life. A defendant’s conduct need not have been the sole
4               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

or predominant cause of the attack; on the contrary, con-
sistent with the intent of Congress that liability for
terrorism extend the full length of the causal chain, even
conduct that indirectly facilitated Hamas’s terrorist
activities might render a defendant liable for the death of
David Boim. But the plaintiffs must be able to produce
some evidence permitting a jury to find that the activi-
ties of HLF, Salah, and AMS contributed to the fatal
attack on David Boim and were therefore a cause in fact
of his death. Absent such proof, those appellants will be
entitled to judgment in their favor. As to QLI, which has
not challenged the liability standard employed by the
district court, the remand will be limited to the question
of whether Hamas was responsible for the murder of
David Boim. QLI will be given the opportunity (of which it
was deprived by the district court’s sua sponte sum-
mary judgment ruling) to attempt to demonstrate that
there exists a dispute of material fact on this point.


                            I.
                            A.
  The Boims moved to Israel from the United States
in 1985 to pursue a more spiritual life. David was fifth of
the Boim’s seven children. In 1996, David was finishing
his third year of high school and preparing to apply for
college. He was an intelligent and determined student
who dreamed of becoming a doctor. His classmates knew
him as a warm, outgoing young man. “His trademark
was his hug and his smile,” recalled Yechiel Gellman, a
friend and classmate. His mother described him as a
peacemaker.
  David studied in a yeshiva near Beit-El, a small West
Bank village north of Jerusalem. By 3:30 p.m. on May 13,
1996, the school day had concluded. David and several of
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 5

his classmates had gathered at a bus stop on a busy road
between Jerusalem and Nablus. It was a hot, early-
summer afternoon, and the boys were telling jokes and
sharing stories as they awaited the bus that would carry
them to Jerusalem, where they were taking a class to
prepare them for their college entrance examinations.
Shortly before 4:00 p.m., a car pulled off the road and
stopped ten feet away from the assemblage of people at
the bus stop; one or more of the car’s occupants then
opened fire. Gellman estimated that a total of thirty
shots were fired; he could hear the bullets shrieking past
his head. “[To] this day, I don’t understand how I survived
the shooting.” He heard his friend Yair cry out, and he
turned to see both Yair and David fall to the ground. David
had been shot in the head. A passing dentist stopped and
tried to revive him. He was subsequently evacuated by
ambulance to a local hospital and then transferred to a
second hospital for surgery. He died shortly after he was
taken into the operating room. He was buried in Jerusalem
that same evening after a service attended by his class-
mates and thousands of other mourners. “Part of me was
taken away” the day he died, Joyce Boim would later
testify. David was seventeen years old.


                            B.
  The murder of David Boim was later attributed to two
individuals: Amjad Hinawi and Khalil Tawfiq Al-Sharif.
Both were apprehended by the Palestinian Authority
in 1997 and then released pending trial. Al-Sharif killed
himself in a suicide bombing at a shopping mall in Jerusa-
lem later that same year. Hinawi was tried by a Palestin-
ian Authority tribunal and convicted of participating in
a terrorist attack and being an accomplice to Boim’s
murder. He was sentenced to ten years of hard labor.
6                Nos. 05-1815, 05-1816, 05-1821 & 05-1822

  Both Al-Sharif and Hinawi were believed to be mem-
bers of the terrorist or “military” wing of Hamas.2,3 Hamas
is an organization that was founded in 1987 as an out-
growth of the Muslim Brotherhood in Egypt. Its name is
derived from an acronym for “Harakat al-Muqawama al-
Islamiyya,” which in English means the “Islamic Resis-
tance Movement.” Its charter, written in 1988, calls for
the obliteration of the State of Israel and the establish-
ment of an Islamic republic in the area now comprising
Israel, the West Bank, and the Gaza Strip. Soon after
its founding, Hamas began to engage in terrorist attacks
on both civilian and military targets. It was officially
designated a terrorist organization by the United States
Department of the Treasury’s Office of Foreign Assets
Control (“OFAC”) on January 24, 1995. That designation
made it illegal for a United States citizen or entity to
engage in any transactions or dealings involving the
property or interests of Hamas without license to do
so. Hamas was subsequently deemed a foreign terrorist
organization by the United States Secretary of State on
October 8, 1997, a designation that made it illegal for

2
  The parties and the witnesses below have referred to the
terrorist wing of Hamas as its “military” wing. We shall do the
same, withholding judgment as to whether use of the term
“military” is appropriate in reference to terrorist activities.
3
  We say “believed to be” because not all of the defendants have
conceded that Al-Sharif and Hinawi were members of Hamas
and that they murdered David Boim in furtherance of Hamas-
sponsored terrorism. Although AMS/IAP concedes the point, one
defendant’s concession cannot bind another. Similarly, although
a default judgment was entered against Hinwai, his default
cannot bind the other defendants, as we discuss infra at 84. As
we further discuss, there is an array of problems with the
evidence that the Boims have offered in order to establish that
Al-Sharif and Hinawi were members of Hamas and that Hamas
was responsible for David’s murder. See infra at 84-88.
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 7

anyone within the United States or subject to its juris-
diction to provide material support or resources to Hamas.
  In addition to its military wing, Hamas has a political
wing that advocates on behalf of the Palestinian people.
Hamas also operates a network of social institutions
known as Da’wa which provide medical care, schooling,
and other services to Palestinians living in and around
the Gaza Strip and the West Bank. Hamas’s charitable
endeavors have helped it to achieve a position of influ-
ence among the Palestinian people. That influence was
evident in the 2006 election of Hamas candidates to
governing positions within the Palestinian Authority.
See Zahren v. Gonzales, 

, 1040 (7th Cir.
2007).


                            C.
  Pursuant to section 2333, Joyce and Stanley Boim sued
a variety of individuals and organizations for their son’s
death. Joyce Boim would later testify that their aim was
to keep “even one nickel” from Hamas that might be
used for further terrorist acts like the murder of her son.
In addition to Hinawi and Al-Sharif, to whom the murder
of David Boim was directly attributed, the Boims’ amended
complaint named as defendants a variety of individuals
and organizations with ties to Hamas. Among them are
the four appellants:
  1. Salah is a naturalized United States citizen who
allegedly has served as the U.S.-based leader of Hamas’s
military wing. Salah was arrested at a Gaza checkpoint
in January 1993 by Israeli military authorities and was
subsequently charged with being an active member of,
holding office in, and performing services for an illicit
organization (Hamas), engaging in activity against the
public order and undermining regional security, and
8                Nos. 05-1815, 05-1816, 05-1821 & 05-1822

providing shelter to terrorists. Salah ultimately pleaded
guilty to these offenses and was incarcerated in Israel
until his release in or around November 1997. In 1995,
while he was incarcerated in Israel, the U.S. Treasury
Department’s OFAC added Salah to the government’s
list of specially designated terrorists. After he was released
by the Israeli military authorities, Salah returned to the
United States. In 2004, a grand jury in the North-
ern District of Illinois indicted Salah and others for:
conspiring (beginning in 1988) to conduct and participate
in the affairs of an enterprise (Hamas) through a pattern
of criminal acts (including murder, kidnaping, hostage
taking, money laundering, obstruction of justice, and
forgery) in violation of the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. § 1962(d) (“RICO”);
knowingly providing and attempting to provide material
support and resources to a foreign terrorist organization
(Hamas) in violation of 18 U.S.C. § 2339B; and endeavor-
ing to obstruct justice by giving false and misleading
verified answers to interrogatories posed by the Boims
in the instant civil litigation, in violation of 18 U.S.C.
§ 1503. The government dropped the material support
charge shortly before trial. In February of this year,
following a three-month trial, a jury acquitted Salah of
the RICO conspiracy charge and convicted him of the
obstruction charge. On July 11, 2007, the district court
sentenced Salah to a prison term of twenty-one months
on that charge.
  2. HLF is an organization incorporated in the United
States that the U.S. government has determined pro-
vided financial support to Hamas; it was effectively shut
down by the government on that basis in 2001. HLF was
incorporated as the Occupied Land Fund in California in
1989. It changed its name to HLF and relocated to Texas
in 1992. It is a not-for-profit organization which pur-
ported to fund humanitarian relief for Palestinian people
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  9

in the West Bank, Gaza, and beyond. At one time, HLF
described itself as the largest Muslim charity in the United
States. As discussed in greater detail below, the govern-
ment named HLF a specially designated terrorist organiza-
tion and froze its assets in 2001 based on evidence that it
supplied funds to Hamas and/or organizations affiliated
with Hamas. In 2004, the government indicted HLF and
seven of its principals for, inter alia, providing and con-
spiring to provide material support and resources to a
foreign terrorist organization (Hamas) in violation of
18 U.S.C. § 2339B(a)(1). The indictment alleges that HLF
channeled substantial financial support to Hamas
through ostensibly charitable committees and organiza-
tions affiliated with Hamas. A two-month trial in the
Northern District of Texas recently ended in a mistrial
after the jury was unable to reach a verdict as to most
of the charges, including those against HLF.
  3. AMS is a now-defunct organization incorporated in
the United States which did business as the Islamic
Association of Palestine (IAP). Over time there have been
multiple AMS/IAP entities at the local and national
levels. The Boims’ theory is that they all constituted a
single entity, a proposition with which the district court

. We shall refer to this
entity as AMS/IAP. AMS/IAP allegedly provided finan-
cial support to Hamas through HLF. IAP, which was
headquartered in Chicago, described itself as a not-for-
profit, grass-roots organization dedicated to advancing
a just, comprehensive, and eternal solution to the cause
of the Palestine people through political, social, and
educational efforts. The U.S. government considers IAP
to have acted as a front for Hamas in the U.S. by, for
example, reprinting Hamas communiqués in its period-
ical publications.
  4. QLI is another U.S. organization that allegedly
raised and laundered money for Hamas. QLI is an Illinois
10               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

not-for-profit organization that was incorporated in 1990
and has operated in the Chicago area since that time.
Ostensibly, its central endeavor was to undertake an
authoritative translation into English of the principal
texts of Islam. Salah worked for QLI beginning in the late
1980s or early 1990s and until 1993, when he was ar-
rested in Israel. According to the plaintiffs, QLI aided
Hamas and Salah in two ways: it gave cover to Salah by
providing him with apparently legitimate employment
while he was actually working on Hamas’s behalf, and it
helped to raise money for and funnel money to Hamas.


                            D.
  Section 2333(a) permits U.S. nationals who have been
injured “by reason of an act of international terrorism” to
sue for their injuries in federal court and to recover treble
damages. “International terrorism” is in turn defined to
include conduct that (a) “involve[s] violent acts or acts
dangerous to human life that are a violation of the crimi-
nal 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)
appears intended “to intimidate or coerce a civilian popu-
lation,” to influence government policy through intimida-
tion or coercion, or to affect the conduct of government by
means of mass destruction, assassination, or kidnaping;
and (c) occurs primarily outside of the United States or
transcends national boundaries. 18 U.S.C. § 2331(1). It is
both a fair inference—and undisputed—that the murder of
David Boim constitutes an act of international terrorism as
so defined and that Stanley and Joyce Boim (and of course
David, represented in this suit by his father as
the administrator of his estate) were injured thereby. It
is equally plain that the individuals who themselves
killed David—purportedly Hinawi and Al-Sharif—would
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                11

be liable to the Boims under section 2333; and, indeed, a
default judgment was entered against Hinawi below. (The
Boims sued Al-Sharif ’s estate, but after they were unsuc-
cessful in attempting service, the estate was dismissed
from the suit.) We may also assume that Hamas, upon
proof that Hinawi and Al-Sharif committed the murder
at its behest or with its support, likewise would be liable
to the Boims, although Hamas has not been named a
defendant in this suit. But what has been vigorously
disputed from the inception of this litigation is whether
and under what circumstances persons and groups who
allegedly have provided money and other support to
Hamas (directly and indirectly) may also be liable for
David’s murder.
  Salah, HLF, AMS, and QLI all moved to dismiss the
Boims’ complaint for failure to state a claim against them,
and in Boim I, we affirmed the district court’s decision
not to do so. We concluded that section 2333 reflects an
intent by Congress to allow a U.S. national injured by
reason of international terrorism to recover from anyone
along the causal chain of terrorism and that liability is
not limited to those who commit the violent act that
causes 

. Thus, to the extent
that a third party had provided money or other support
to a terrorist who engaged in a terrorist act, that party
potentially could be held liable for the resulting injury
along with the terrorist himself. See 

response to the first of three questions
the district court had certified for interlocutory review,
we did reject the proposition that merely giving money to
an organization engaged in terrorism, without more,
would constitute an act of international terrorism suffi-
cient to render the donor liable under section 2333. 

12               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

     To say that funding simpliciter constitutes an act of
     terrorism is to give the statute an almost unlimited
     reach. Any act which turns out to facilitate terrorism,
     however remote that act may be from actual violence
     and regardless of the actor’s intent, could be construed
     to “involve” terrorism. Without also requiring the
     plaintiffs to show knowledge of and intent to further
     the payee’s violent criminal acts, such a broad defini-
     tion might also lead to constitutional infirmities by
     punishing mere association with groups that engage
     in terrorism . . . .

giving money to Hamas or a Hamas-affili-
ated entity would not by itself suffice to establish civil
liability under section 2333 for terrorist acts committed by
the agents of Hamas. 

would have to show
that the donor was aware of Hamas’s terrorist activities
and intended to further those activities, 

that
the murder of David Boim “was a reasonably foresee-
able result of making the donation,” 

   We went on to conclude, in answer to the second ques-
tion certified by the district court, that knowingly and
intentionally providing material support, including but
not limited to financial support, to terrorist organiza-
tions and activities—conduct that is now separately
forbidden by the U.S. Criminal Code, see 18 U.S.C.
§§ 2339A and 2339B—would also constitute an act of
international terrorism for purposes of section 2333. Boim

. Section 2339A makes it a crime to
provide material support or resources knowing or in-
tending that they be used in the commission of specified
violent acts, while section 2339B makes it a crime to
knowingly provide material support or resources to an
organization that the United States has designated a
foreign terrorist organization pursuant to 8 U.S.C.
§ 1189(a). Thus, those injured by reason of the knowing
and intentional financing of terrorist organizations and
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                         13

activities as proscribed by these two statutory provi-
sions would be entitled to recover under section 2333,
provided that causation can be shown as in traditional tort

. Financial support need not be
substantial in order to qualify as material support; “even
small donations made knowingly and intentionally in
support of terrorism may meet the standard for civil
liability under section 2333.” Id.4
  Finally, we answered the last of the certified questions
by holding that aiding and abetting an act of interna-
tional terrorism would also support liability under sec-
tion 2333. “The statute would have little effect if liability
were limited to those who pull the trigger or plant the
bomb because such persons are unlikely to have assets,
much less assets in the United States, and would not be
deterred by the statute.” 

Thus, those who
knowingly and intentionally aid terrorist acts by provid-
ing funds or other support to those who commit the acts
could be held liable under the statute, consistent with
“Congress’ clearly expressed intent to cut off the flow of
money to terrorists at every point along the causal chain
of violence.” 

a defendant’s liability for
aiding and abetting the terrorist acts of an organization
like Hamas, the plaintiff would have to show that the
defendant knew of Hamas’s illegal activities, that the
defendant desired to help those activities succeed, and

4
  As we made clear elsewhere in our opinion, we were citing
sections 2339A and 2339B and the conduct they criminalize
solely to illustrate the types of activity that might qualify as acts
of international terrorism for purposes of section 2333; we
were not suggesting that the Boims would have to establish
a violation of either of these two criminal statutes in order to
prevail under section 2333. Indeed, section 2339B was not
enacted until 1996, and Hamas was not designated a foreign
terrorist organization to which section 2339B prohibits finan-
cial support until 1997, after David Boim was murdered.
14               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

that the defendant engaged in some act of helping the
illegal conduct. 

see also 

  We rejected the contention of HLF and QLI that holding
them liable under section 2333 might contravene the
First Amendment by penalizing them for mere associa-
tion with Hamas. Although section 2333 on its face
requires more than mere association with a terrorist
organization as a predicate to 

,
the defendants suggested that they were exposed to
liability simply for providing money to Hamas even if
their intent was to fund its ostensibly legitimate, hu-
manitarian activities, 

found the premise
of this argument to be mistaken insofar as plaintiffs
were seeking to hold HLF and QLI liable on the theory
that they had aided and abetted David Boim’s murder
based on their alleged financial ties to Hamas. In outlin-
ing the elements of aiding and abetting liability, we said
that plaintiffs must prove that the defendant knew of
Hamas’s illegal activities, desired to help those illegal
activities succeed, and engaged in some act of helping
those activities. 

If all of this were shown,
then imposing liability would be consonant with the
principles articulated in NAACP v. Claiborne Hardware
Co., 

, 920, 

, 3429 (1982), which
held that “[f ]or liability to be imposed by reason of associa-
tion alone, it is necessary to establish that the group it-
self possessed unlawful goals and that the individual held
a specific intent to further those illegal aims.” We ex-
plained:
     The Boims are not seeking to hold HLF and QLI liable
     for their mere association with Hamas, nor are they
     seeking to hold the defendants liable for contributing
     money for humanitarian efforts. Rather, they are
     seeking to hold them liable for aiding and abetting
     murder by supplying the money to buy the weapons,
     train the shooters, and compensate the families of the
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  15

    murderers. That Hamas may engage in legitimate
    advocacy or humanitarian efforts is irrelevant for First
    Amendment purposes if HLF and QLI knew about
    Hamas’ illegal operations and intended to help Hamas
    accomplish those illegal goals when they contributed
    money to the 

. In sum, plaintiffs could not prevail on
an aiding and abetting theory without proving that the
defendants’ intent was to help Hamas succeed in its
terrorist aims.5
  Having concluded that the Boims’ complaint asserted
viable claims against these defendants, we affirmed
the district court’s decision not to dismiss the complaint.
While the appeal was pending, the defendants had con-
sented to final disposition before Magistrate Judge
Arlander Keys, the designated magistrate. In the wake
of this court’s decision in Boim I, the Boims amended
their complaint to include allegations that the defend-
ants had engaged in a conspiracy to promote Hamas and
to raise money in the United States for Hamas’s terrorist
activities. R. 203 ¶¶ 36, 55, 56. Discovery concluded in
April 2004, and shortly thereafter the parties filed cross-
motions for summary judgment.
  In November 2004, Magistrate Judge Keys ruled on the
motions for summary judgment. He denied the motions of
defendants Salah, HLF, AMS/IAP, and QLI, and granted
the Boims’ motion for partial summary judgment against
defendants Salah, HLF, and AMS/IAP, deeming them
liable to the Boims for damages that were to be determined
subsequently at trial. 

.
  The court found HLF liable based on two key determina-
tions. First, the court granted collateral estoppel effect to
5
  We went on to reject another First Amendment challenge
focused on section 2339B. Our holding in that regard is dis-
cussed infra at 38-41 n.8.
16              Nos. 05-1815, 05-1816, 05-1821 & 05-1822

the District of Columbia Circuit’s determination—in
litigation challenging the Treasury Department’s finding
that HLF constituted a specially designated terrorist
organization—that HLF funded Hamas and, indeed, that
the proof of this funding was incontrovertible. 

at 903-06; see Holy Land Found. for Relief & Dev. v.
Ashcroft, 

, 165 (D.C. Cir. 2003). Second,
looking at the summary judgment record in this case, the
court found there to be no dispute that Hamas was respon-
sible for the murder of David Boim. 

at 899.
  The court proceeded to find AMS/IAP liable to the Boims.
The Boims’ theory was that AMS/IAP had supported
Hamas by paying for Hamas leaders to come to the
United States in order to attend and speak at confer-
ences, helping to distribute pro-Hamas literature and
propaganda, and using that literature and propaganda to
solicit donations for Hamas’s cause, and on the basis of
this support was liable for David Boim’s murder, which
AMS/IAP conceded was committed at Hamas’s behest.
  The district court understood our opinion in Boim I to
say that AMS/IAP could be liable to the Boims so long
as it was aware of Hamas’s illegal activities, it wished
to help those activities succeed, and it engaged in some
act of assistance. 

at 906. Thus, without
saying so, the court was relying on our articulation of the
aiding and abetting theory of liability as the governing
standard.
  The court found that each of these elements had been
met. With respect to the first requirement, the court
discerned no dispute that AMS/IAP had knowledge of
Hamas’s illegal activity. 

intent, the court
observed at the outset that there was one AMS/IAP
organization manifested in multiple incarnations, so as
the court considered whether IAP and AMS desired to
help Hamas’s terrorist activities succeed and engaged in
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  17

some act of assistance, it was fair to attribute the acts of
the various IAP entities to one another; the court thus
rejected the efforts of IAP and AMS to attribute responsi-
bility for various acts to different IAP entities. 

08. Having made that threshold determination, the court
proceeded to find that there was an “abundance” of
evidence indicating that IAP and AMS desired to and did
support Hamas. 

Specifically, the record indi-
cated that AMS/IAP had participated in a 1993 meeting
in Philadelphia with Hamas members and Hamas sym-
pathizers at which various ways to support Hamas were
discussed, engaged in fundraising for HLF (which in
turn funneled money to Hamas), published and distrib-
uted pro-Hamas documents, and held conferences at
which Hamas terrorist speakers were featured. 

13. Although IAP and AMS had submitted a declaration
of Rafeeq Jaber (who had been president of AMS since
1993, and who had been president of the national IAP
organization from 1996 to 1998 and from 1999 onward)
in which Jaber denied that AMS/IAP had given any aid
to Hamas’s terrorist activities and had any intent to do
so, the court rejected these denials as conclusory and self-
serving. 

  In sum, the court concluded that the undisputed facts
were sufficient to render AMS/IAP liable to the Boims
for having aided and abetted Hamas. The court did not
render any finding as to whether AMS/IAP had aided a
particular wrongful act or series of acts that had a causal
connection to David Boim’s death. See 

Salah, the court found the undisputed facts
sufficient to establish his deliberate support of Hamas’s
terrorist activity. Again the court cited our discussing of
aiding and abetting liability in Boim I as the source of
the governing standard. 

at 913. The
court cited a variety of evidence indicating that Salah had
provided support to Hamas, including Salah’s guilty plea
18               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

in an Israeli military court to being an active member of
Hamas, holding office in Hamas, and performing services
for Hamas, as well as an August 21, 1995 statement de-
tailing Salah’s involvement with Hamas that Salah
had written while in Israeli custody to other detainees
whom he believed to be Palestinian prisoners.6 Al-
though Salah had raised questions about the voluntari-
ness of his plea, the district court found there to be “an
abundance of evidence” corroborating both his plea and
the 1995 statement. 

at 920. That evidence
included bank records and a memorandum prepared by
FBI counterterrorism expert Dale L. Watson (which among
other things detailed Salah’s role in Hamas and his
involvement with many individuals known to the Ameri-
can and Israeli governments as Hamas terrorists). 

see infra at 24. Beyond challenging the admissi-
bility of some of the evidence documenting his ties to
Hamas, Salah had not rebutted that evidence, the court
noted. 

Additionally, when deposed by the
Boims and again in response to many of the averments
of the Boims’ statement of undisputed facts, Salah had
invoked the Fifth Amendment and refused to answer the
questions put to him regarding his involvement with
Hamas. 

That invocation gave rise to a
negative inference that, had Salah answered, he would
have incriminated himself. 

Based on this
record, the court concluded that the Boims had established
all three elements of aiding and abetting liability as to

6
  In that statement, Salah had detailed his relationship with
Mousa Abu Marzook, who was the acknowledged leader of
Hamas’s political wing and who had admitted raising money for
Hamas; described various meetings that he had with Marzook;
indicated that he distributed hundreds of thousands of dollars
in Gaza and the West Bank per Marzook’s instructions; and
stated that he had helped to train certain Hamas recruits. 

at 920, 921; 

Nos. 05-1815, 05-1816, 05-1821 & 05-1822                       19

Salah and that no factual questions remained for a jury
to resolve as to those elements. 

rejected Salah’s contention that he was no
longer involved with Hamas following his January 1993
arrest in Israel and that, consequently, the Boims could
establish no link between his activities in support of
Hamas and David Boim’s death in 1996. The court found
that proof of such a link was not required. 

Circuit did not say that, to impose liabil-
    ity under § 2333, the Boims have to link Mr. Salah or
    any of the other defendants specifically to the attack
    that killed David Boim; rather, the court held that to
    impose liability for aiding and abetting—that is,
    providing material support to—a terrorist organiza-
    tion, the Boims need only show that the defendants
    knew of Hamas’ illegal activities, that they desired to
    help those activities succeed, and that they engaged in
    some act of helping. 

. The
    evidence shows that all three are true with respect
    to Mr. Salah, and no reasonable jury could find other-
    wise.

at 923.7 In any case, the court added,
under established civil conspiracy principles, Salah could
be liable for acts committed in furtherance of a conspiracy
7
   The district court’s articulation of what the Boims were
obligated to prove appears to conflate two distinct theories of
liability that we discussed in Boim I: providing material sup-
port to terrorist activity or to a terrorist organization, see 18
U.S.C. §§ 2339A and 2339B, 

at 1012-16, and
aiding or abetting an act of international terrorism, 

1021 & 1023. Certainly, one could aid and abet a terrorist act
by providing material support to those who commit the act, but
the type of assistance an aider and abettor might provide is
not limited to assistance that qualifies as material support for
purposes of sections 2339A or 2339B. See § 2339A(b)(1) (defining
“material support”).
20               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

even after his withdrawal, providing he had not repu-
diated the goals of the conspiracy. 

if
the Boims were unable to show that Salah had given
material support to Hamas, under conspiracy principles
he could still be liable for David Boim’s murder so long
as it was a reasonably foreseeable result of “the conspir-
acy that was Hamas.” 

   The Boims did not seek summary judgment against
QLI and the district court denied QLI’s motion for sum-
mary judgment, which left QLI as the sole defendant
facing trial on the subject of liability. Trial had previously
been set for December 1, 2004, a date which was just
three weeks off when the district court ruled on the
motions for summary judgment. Following the summary
judgment ruling, QLI moved to continue the trial date.
Magistrate Judge Keys orally denied that request on or
about November 24, 2004. QLI’s counsel immediately
asked the court to allow an interlocutory appeal, and
anticipating correctly that the district court would deny
that request, R. 657, counsel also sought leave to with-
draw from representing QLI on the ground that he be-
lieved he could not competently represent QLI at a trial
beginning on December 1, a request that the court like-
wise denied, R. 658.
  One week in advance of trial, the district court issued an
opinion resolving certain motions in limine and other
evidentiary matters. Sua sponte and without prior notice,
the court noted that it had already determined on sum-
mary judgment vis-à-vis the other defendants that
Hamas was responsible for David Boim’s murder and
signaled that this determination would limit what evidence
the Boims would need to present in order to establish
QLI’s liability. R. 659 at 9; see also R. 688, Mem. Op. at 9.
Subsequently, in its opening instructions to the jury, the
court would state that “[t]he terrorist group Hamas was
responsible for the murder.” R. 814-1 at 107. When he
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 21

addressed QLI’s liability in both his opening statement
and closing argument to the jury, the Boims’ counsel would
expressly rely on that finding in laying out the Boims’ case
against QLI. 

(“As the Judge has already told
you, he has concluded . . . that Hamas is responsible for
David’s murder.”); R. 814-4 at 503 (“The Court has already
ruled that the international terrorist organization Hamas
killed David Boim.”).
  The trial began with jury selection as scheduled on
December 1. On that date, QLI filed a notice of attendance
but non-participation in the trial. R. 663. The notice
indicated that QLI had decided not to participate in the
trial because although it had a meritorious defense to
the complaint, QLI did not believe its counsel could
effectively defend QLI without additional time and its
counsel was unwilling to present an ineffective defense. In
a colloquy with QLI’s corporate secretary prior to start of
trial, Magistrate Judge Keys confirmed that it was QLI’s
wish not to participate in the trial. R. 814-2 at 158-164.
The trial thereafter commenced, and although QLI’s
representative and counsel were present, its counsel did
not participate in jury selection, did not give an opening
statement, did not cross-examine plaintiff ’s witnesses
or present witnesses for QLI, and did not make closing
argument. The case was submitted to the jury on Decem-
ber 7, and the jury returned its verdict the following day.
   The jury found in favor of the Boims and against QLI on
liability. It awarded damages of $52 million against all
four defendants (QLI, HLF, IAP/AMS, and Salah). Those
damages were subsequently trebled as provided in sec-
tion 2333(a).
22              Nos. 05-1815, 05-1816, 05-1821 & 05-1822

                            II.
                  Holy Land Foundation
A. Collateral Estoppel Based on DC Litigation Over
   IEEPA Designation
  In litigation challenging the government’s 2001 decision
to name HLF a specially designated terrorist organiza-
tion, the District of Columbia Circuit found that HLF
had funded the terrorist activities of Hamas. As we have
noted, the district court in this case gave that finding
collateral estoppel effect and relied on that finding to
hold HLF liable to the Boims on summary judgment. HLF
contends that it was inappropriate for the court to grant
the D.C. Circuit’s finding collateral estoppel effect in the
instant litigation. For the reasons that follow, we agree.


  1. Proceedings in the District of Columbia Circuit
      a. Summary of IEEPA designation
  The International Emergency Economic Powers Act, 50
U.S.C. § 1701 et seq. (“IEEPA”), empowers the President
of the United States to declare a national emergency “to
deal with any unusual and extraordinary threat, which
has its source in whole or substantial part outside the
United States, to the national security, foreign policy, or
economy of the United States.” § 1701(a). Once the Presi-
dent declares such an emergency, he may “investigate,
block during the pendency of an investigation, regulate,
direct and compel, nullify, void, prevent or prohibit, any
acquisition, holding, withholding, use, transfer, with-
drawal, transportation, importation or exportation of, or
dealing in, or exercising any right, power, or privilege
with respect to, or transactions involving, any property
in which any foreign country or a national thereof has
any interest by any person, or with respect to any prop-
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  23

erty, subject to the jurisdiction of the United States.” This
statutory provision “is designed to give the President
means to control assets that could be used by enemy
aliens.” Global Relief Found. v. O’Neill, 

, 753
(7th Cir. 2002).
  On January 23, 1995, President Clinton issued Execu-
tive Order 12947 declaring such an emergency, finding
that “grave acts of violence committed by foreign terrorists
that disrupt the Middle East peace process” amounted
to an “unusual and extraordinary threat to the national
security, foreign policy, and economy of the United
States[.]” § 1702(a)(1)(B). This order froze all assets of
those terrorist organizations and persons, referred to in
regulatory parlance as “Specially Designated Terrorists”
(SDTs), identified in the order. Hamas, commonly known
as the Islamic Resistance Movement, is among those
designated organizations. The order also authorized the
Secretary of the Treasury to designate additional SDTs
found to be “owned or controlled by, or to act for or on
behalf of ” Hamas or any other entity designated in the
order.
  On September 23, 2001, following the September 11
terrorist attacks by al-Qaeda, President Bush issued
Executive Order 13224 declaring a national emergency
arising from “grave acts of terrorism . . . and the con-
tinuing and immediate threat of further attacks on United
States nationals or the United States.” That order blocked
all property or interests in property held by designated
terrorist organizations who are referred to as “specially
designated global terrorists” (SDGTs). Hamas subse-
quently was designated as one of the SDGTs subject to
that order. The order further authorizes the designation
of additional SDGTs whose assets are subject to blocking
because they are “owned or controlled by” or “act for or on
behalf of ” SDGTs or “assist in, sponsor, or provide . . .
support for,” or are “otherwise associated” with them.
24               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

  On November 5, 2001, Dale L. Watson, the Assistant
Director of the FBI’s Counterterrorism Division, issued
an “action memorandum” (hereinafter, the “Watson Memo-
randum”) to the director of the Treasury Department’s
OFAC recommending that HLF be designated an SDT
based on its ties to and activities on behalf of Hamas.
     FBI investigations of HAMAS activities in the United
     States have revealed that [HLF] is the primary fund-
     raising entity for HAMAS and that a significant
     portion of the funds raised by [HLF] are clearly being
     used by the HAMAS organization. The information
     provided in this document confirms that [HLF] is
     acting for or on behalf of HAMAS. Further, senior
     members of [HLF] support HAMAS ideology and
     activities. These HAMAS activities interfere with the
     Middle East peace process and pose a threat to the
     national security, foreign policy, or economy of the
     United States. As such, [HLF] should be considered
     by OFAC for SDT designation as a HAMAS entity,
     subject to the prohibitions of the IEEPA statute.
R. 265-1 Ex. 12 at 49.
  The Director of the OFAC accepted Watson’s recommen-
dation, and on December 4, 2001, the Secretary of Trea-
sury issued a finding that HLF “acts for or on behalf
of ” Hamas. Pursuant to that finding, and without prior
notice to HLF, HLF was designated an SDT under Execu-
tive Order 12947 and an SDGT under Executive Order
13224. OFAC in turn issued a “Blocking Notice” freezing
all of HLF’s funds, accounts, and real property in the
United States. Pursuant to that notice, all transactions
involving property in which HLF holds an interest are
prohibited without specific authorization from the OFAC.
 On March 8, 2002, HLF filed suit in the United States
District Court for the District of Columbia challenging
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 25

its designation as an SDT and SDGT and the blocking of
its assets. The following month, the Treasury Depart-
ment notified HLF and the district court that it was
reopening the administrative record underlying the
designation and considering whether to re-designate
HLF as an SDGT based on additional evidence linking
HLF to Hamas. HLF was given thirty-one days to respond
to this notice. HLF did respond and in support of its
response submitted evidence in support of the conten-
tion that it was not involved with Hamas.
  On May 31, 2002, HLF was redesignated as both an SDT
and SDGT based on the evidentiary record underlying
the first designation in December 2001 plus additional
classified and unclassified information and a second
evidentiary memorandum from the FBI to the OFAC.


      b. HLF’s lawsuit challenging blocking order
  HLF’s suit in the District Court for the District of
Columbia contended that the designation and blocking
order was contrary to the Administrative Procedure
Act (“APA”), the Due Process and Takings Clauses of the
Fifth Amendment, the Fourth Amendment, HLF’s First
Amendment rights to freedom of speech and association,
and the Religious Freedom Restoration Act. Ultimately,
the district court granted summary judgment in favor of
the government on the APA claim and dismissed all
but one of the remaining claims set forth in HLF’s com-
plaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
Holy Land Found. for Relief & Dev. v. Ashcroft, 

(D.D.C. 2002).
  Upon review confined to the administrative record, the
district court held that the OFAC’s action in designating
HLF an SDT and SDGT and blocking HLF’s assets was
not arbitrary or capricious and was therefore consistent
26              Nos. 05-1815, 05-1816, 05-1821 & 05-1822

with the APA. See 5 U.S.C. § 706(2)(A). The court observed
that the administrative record provided substantial
support for the OFAC’s determination that HLF acts for
or on behalf of Hamas. Specifically, the record revealed
that: (a) HLF had financial connections to Hamas dating
back to 1988 (including raising funds for and providing
financial support to Hamas, and financing U.S. fund-
raising trips by Hamas leaders); (b) HLF leaders had
been actively involved in various meetings with Hamas
leaders (including a three-day meeting in 1993 in Phila-
delphia, monitored and recorded by the FBI, which five
senior Hamas officials and three senior HLF leaders
attended, and a 1994 meeting in Oxford, Mississippi
between a co-founder of HLF and a senior Hamas leader
concerning a fundraising dispute); (c) HLF had funded
charitable organizations controlled by Hamas (specifically,
between 1992 and 1999, HLF had contributed approxi-
mately $1.4 million to eight Hamas-controlled charity or
“zakat” committees, and between 1992 and 2001, HLF had
given approximately $5 million to seven other Hamas-
controlled charitable organizations, including a hospital
in Gaza); (d) HLF had provided financial support to
family members of Hamas “martyrs” (a term the court
construed as referring to persons who were killed carrying
out suicide bombings or other terrorist acts on behalf of
Hamas) and prisoners, and, indeed, among needy fam-
ilies eligible for its support, Hamas particularly sought
out applications from the families of “martyrs” and may
have favored them with higher payments; (e) HLF’s
Jerusalem office had acted on behalf of Hamas and was
shut down by the Israeli government in 1995 after the
Israelis concluded that HLF was channeling funds to the
families of Hamas activists; and following his arrest in
1997, the former head of that office revealed that al-
though HLF provided aid to the needy, it also channeled
some money to Hamas; and (f ) eight unidentified FBI
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 27

informants had reported instances in which HLF leaders
stated that HLF funds and supports Hamas. 

at 69-73. The district court concluded that this evid-
ence gave the OFAC a rational basis for concluding that
HLF acts for or on behalf of Hamas. 

The court
observed that its role was not to second-guess the OFAC on
its credibility determinations or on issues implicating the
foreign policy expertise of the Executive Branch; the
court’s sole task was to determine whether the agency
had a reasonable basis for its action. 

  With one immaterial exception (relating to one aspect of
HLF’s Fourth Amendment claim), the court concluded
that HLF’s complaint otherwise failed to state a claim on
which relief could be granted. Among the claims dis-
missed was a First Amendment challenge which alleged
that the government, by blocking HLF’s assets and
preventing it from making humanitarian contributions,
was violating HLF’s rights of free speech and free associa-
tion. It is the resolution of this First Amendment chal-
lenge that underlies the collateral estoppel determination
made by the district court in the instant case.
  The D.C. district court concluded that the blocking order
did not unduly interfere with HLF’s freedom of associa-
tion. The court first noted that neither the blocking
order, the two Executive Orders pursuant to which HLF
had been designated, nor the IEEPA precluded HLF from
holding membership in Hamas or endorsing its views, so
HLF’s rights of association were not implicated. 

at 81. All that HLF was forbidden from doing
was giving money to Hamas, “ ‘and there is no constitu-
tional right to facilitate terrorism.’ ” 

tarian Law Project v. Reno, 

, 1133 (9th Cir.
2000)). The court rejected HLF’s contention that the
First Amendment required proof that HLF specifically
intended to further Hamas’s illegal activities before its
assets could be frozen. That requirement, set forth in
28               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

NAACP v. Claiborne Hardware 

, 458 U.S. at 

, was inapposite, as the government
had not deemed HLF guilty of wrongdoing based simply
on its association with Hamas. 

at 81. The
court held that, in any case, it would be unworkable to
engraft such an intent requirement on the government’s
ability to designate and block the assets of individuals
and organizations that act on behalf of known terrorist
organizations, as an organization like HLF, regardless of
its intent, cannot control whether the recipient of its
aid will use that support in furtherance of terrorist activi-
ties. 

Law 

).
  The court further held that the blocking order did not
violate HLF’s freedom of speech. To the extent the block-
ing order interfered with HLF’s free speech rights by
preventing it from making humanitarian contributions,
the intrusion was justified by the government’s com-
pelling interest in battling terrorism. The court noted
that humanitarian contributions have both speech and
non-speech elements; for that reason, the blocking order
was subject to intermediate scrutiny. 

n.37.
Applying the four-part test set forth in United States v.
O’Brien, 

, 376-77, 

, 1678-79
(1968), the court concluded that the governmental inter-
est in regulating the non-speech aspect of contributions
was sufficiently important to justify the incidental limita-
tions on HLF’s First Amendment rights. The court noted
that Presidents Clinton and Bush had the power under
the IEEPA to issue the Executive Orders declaring na-
tional emergencies, and both the IEEPA and the two
Executive Orders authorized the designation and block-
ing order against HLF. The Executive Orders and the
blocking order furthered the important and substantial
governmental interest in combating terrorism by under-
mining its financial base. Moreover, that governmental
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 29

interest in combating terrorism was unrelated to sup-
pressing speech. Although blocking the assets of a desig-
nated organization resulted in an incidental restriction on
the organization’s freedom of speech, that restriction was
no greater than necessary to further the government’s
interest. “Money is fungible,” the court observed, and the
government has no more narrow means of ensuring that
contributions made to a terrorist organization for legiti-
mate humanitarian purposes are in fact used for those
purposes. 

see also 

n.20 (noting that
the “charitable component” of Hamas “is an effective way
for Hamas to maintain its influence with the public,
indoctrinate children and recruit suicide bombers” and
consequently, one cannot draw a clear line between
Hamas’s legitimate and illegitimate activities). For
these reasons, the court held that the blocking order
did not impermissibly restrict HLF’s First Amendment
rights.
  On appeal, the District of Columbia Circuit affirmed the
entry of summary judgment against HLF on the APA
claim. The appellate court held that the actions of the
Treasury Department’s OFAC were properly reviewed
pursuant to the arbitrary and capricious standard, and
the decision to designate HLF an SDT and SDGT was
“based on ample evidence in a massive administrative

. That a significant portion of that
evidence amounted to hearsay was not problematic: “it is
clear that the government may decide to designate an
agency based on a broad range of evidence, including
intelligence data and hearsay declarations.” 

Council of Resistance of Iran v. Dep’t of State, 

, 196 (D.C. Cir. 2001)).
  With respect to HLF’s First Amendment claims, the
court found that the district court had erred in disposing
of these claims pursuant to Rule 12(b)(6). The underlying
premise of the district court’s rationale for dismissing
30               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

these claims was that there is no constitutional right
to facilitate terrorism. However, HLF’s amended com-
plaint alleged that HLF had no knowing affiliation with
Hamas or any other terrorist organization and did not fund
terrorist activity. So in order to reach the outcome it did,
the district court first had to find, contrary to the allega-
tions of the complaint, that HLF in fact did fund terrorism.
The district court could not make such a finding without
either applying an improperly heightened pleading stan-
dard or expanding the scope of Rule 12(b)(6) review. The
district court apparently had considered the evidence in
the administrative record in disposing of the First Amend-
ment claims, but it did so without notifying the parties
that it was converting the motion to dismiss into a motion
for summary judgment by looking to matters outside of the
complaint and without granting HLF an opportunity to
present additional material pertinent to a summary
judgment motion as contemplated by Rule 12(b). In this
respect, the court had abused its 

.
  Despite the procedural irregularity, the court con-
cluded that HLF had not been prejudiced by the denial of
an opportunity to present evidence. Echoing the district
court, the appellate court observed that there is no con-
stitutional right to fund terrorism. 

had before
it the full administrative record, which included both
the classified and unclassified evidence that the OFAC
had taken into consideration in designating and re-desig-
nating HLF an SDT and SDGT. The court was satisfied
that the record not only supported the notion that HLF
funded terrorism, but ruled out the possibility that HLF
could prove otherwise:
     The ample record evidence (particularly taking into
     account the classified information presented to the
     court in camera) establishing HLF’s role in the fund-
     ing of Hamas and of its terrorist activities is incon-
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  31

    trovertible. While not in accordance with proper
    procedures, HLF has had every opportunity to come
    forward with some showing that the evidence is false
    or even that its ties to Hamas had been severed. HLF’s
    presentations at the administrative stage did not
    reach this goal, even when HLF was given an addi-
    tional thirty-one days to respond to its redesignation
    and to the new evidence in April of 2002. Even follow-
    ing the district court’s judgment, while HLF at-
    tempted to supplement the record on appeal, the
    supplementary material could not have defeated the
    proposition established by the record evidence that
    Holy Land was a funder of the terrorist organization
    Hamas. Perhaps the supplemental evidence offered,
    while properly rejected from the administrative re-
    view claim, should have been admitted for the unan-
    nounced summary judgment proceeding we now
    review. But it would have made no difference.

The Court clarified that in the ordinary case,
it would not necessarily deem harmless a district court’s
decision to dismiss a case based on evidence outside of
the pleadings simply because the losing party was
unable to show what contrary evidence it would have
produced had it been given the opportunity to do so; for
in a general case, only the opportunity for discovery (which
HLF had not been given) might have enabled the party
to produce such evidence. 

    However, this is not a general case. This is a specific
    case involving sensitive issues of national security
    and foreign policy. In addition to the classified evi-
    dence that we have reviewed, all evidence from the
    government that is unclassified and otherwise discov-
    erable is in the record before us, as is the evidence
    HLF produced in an effort to create a genuine factual
    dispute. Despite the district court’s failure to follow
    the proper procedures, HLF had every opportunity
32               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

     and incentive to produce the evidence sufficient to
     rebut the ample evidence supporting the necessary
     conclusion that it was a funder of Hamas but could not
     do so. . . . Again, we hold as other courts have that
     there is no First Amendment right nor any other
     constitutional right to support terrorists, and that
     the record supports no conclusion that the designation
     or blocking violated any constitutional right of the
     HLF. See, e.g., Humanitarian Law 

.
333 F.3d at 166.
   It was the District of Columbia Circuit’s resolution of
HLF’s First Amendment challenges to the blocking
order that formed the springboard for the district court’s
invocation of collateral estoppel here. In particular, the
district court relied upon the D.C. Circuit’s finding that the
“ample record evidence” before that court, including the
classified evidence submitted in camera, proved
“incontrovertibl[y]” that HLF funded Hamas and its
terrorist activities. 

at 903 (quoting

; see supra at 15-16). That
language led the district court to conclude that HLF’s
provision of material support to Hamas was actually
litigated in the prior action and was essential to the D.C.
Circuit’s decision to sustain the dismissal of HLF’s First
Amendment claims. 

court was also satis-
fied that HLF had been given a full and fair opportunity
to litigate the subject of its financial support of Hamas
in the prior litigation. It was immaterial that the litiga-
tion in the District of Columbia entailed judicial review of
an administrative determination. 

Each of the
arguments that HLF had raised in opposition to the
Boims’ attempt to impose civil liability on the organiza-
tion had been raised and rejected in resolving HLF’s
contention that the designation and blocking order
impermissibly infringed on its First Amendment rights.
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 33

the court no insight as to what evidence
might have been lacking in the record before the Dis-
trict and Circuit Courts in the District of Columbia. 

HLF had of course been represented in that
proceeding and had been given a full opportunity to
present its position. 

  The district court acknowledged that the D.C. Circuit,
in deeming HLF’s role in funding terrorism incontrovert-
ible, had in part relied on classified evidence presented to
that court in camera. 

other than the govern-
ment and the D.C. Circuit knew what that evidence was.

the district court’s view, the secrecy
shrouding that evidence “d[id] not vitiate the potential
conclusive effect of the D.C. Circuit’s judgment.” 

nothing to suggest that either the trial or the ap-
pellate courts in the prior litigation had acted as a rub-
ber stamp in rejecting HLF’s challenge to the designa-
tion and blocking order. 

  2. Criteria for     Non-mutual     Offensive    Collateral
     Estoppel
   The doctrine of collateral estoppel is employed under
appropriate circumstances to prevent a party from re-
litigating an issue that has already been fully litigated
in another action. E.g., United States v. Mendoza, 

, 158, 

, 571 (1984). Here, the Boims
invoked collateral estoppel offensively, relying on the D.C.
Circuit’s finding that HLF funded Hamas’s terrorist
activities as conclusive for purposes of their own case
against HLF, and non-mutually, in the sense that the
Boims were not a party to the litigation in the D.C. Circuit.
See 

n.4; Harrell v. U.S.
Postal Serv., 

, 921 (7th Cir.), cert. denied, 

(2006). There are four principal criteria
that must be met to support the application of non-mutual
34               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

offensive collateral estoppel: (1) the issue sought to be
precluded from further litigation must be the same issue
that was decided in the prior action; (2) that issue must
have actually been litigated in the prior action; (3) the
determination of that issue must have been essential to
the final judgment in the prior action; and (4) the party
against whom estoppel is invoked must have been fully
represented in the prior action. E.g., Chicago Truck
Drivers, Helpers & Warehouse Union (Indep.) Pension
Fund v. Century Motor Freight, Inc., 

, 530 (7th
Cir. 1997). Collateral estoppel is, however, an equitable
doctrine. Evans v. Katalinic, 

, 956 (7th Cir.
2006); Jones v. City of Alton, Ill., 

, 885 (7th
Cir. 1985). Therefore, even if the criteria are satisfied, it
remains within the court’s discretion not to allow offensive
use of the doctrine when the court is convinced that it
would be unfair to preclude a party from re-litigating an
issue. See Parklane Hosiery Co. v. Shore, 

,
331, 

, 651-52 (1979) (district courts
enjoy broad discretion whether to invoke offensive collat-
eral estoppel and should not do so where it would be
unfair); see also Sornberger v. City of Knoxville, Ill., 

, 1023 (7th Cir. 2006) (applying Illinois law)
(even if the technical requirements for offensive collat-
eral estoppel are met, the doctrine must not be applied
unless it is clear that no unfairness would result to
estopped party); Ross-Berger Cos. v. Equitable Life Assur.
Soc. of U.S., 

, 1338 (7th Cir. 1989) (applying
Illinois law); 

. The doctrine
should not be invoked when there is reason to doubt
the quality, extensiveness, or fairness of the procedures
followed in the prior litigation or when the party against
whom estoppel is sought otherwise did not have the bene-
fit of a full and fair opportunity to litigate the issue in
the prior proceeding. Kremer v. Chem. Constr. Corp., 

, 480-81, 

, 1897 (1982) (collecting
cases).
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 35

  3. Analysis
   Applying these criteria, we come to a different conclu-
sion than the district court did as to the propriety of
invoking the collateral estoppel doctrine. Although we
review a district court’s decision to apply collateral
estoppel for abuse of discretion, Harrell v. U.S. Postal

(citing Parklane Hosiery 

, 99 S. Ct. at 651), the question of whether the
issues presented in the two suits are identical is a legal
question as to which our review is de novo, Adair v.
Sherman, 

, 893 (7th Cir. 2000). We con-
clude that the question presented in the Ashcroft litiga-
tion in the District of Columbia Circuit was not the same
as the question posed in the Boims’ case against HLF.
Consequently, the threshold criterion for offensive non-
mutual collateral estoppel cannot be satisfied, and the
district court necessarily abused its discretion in collater-
ally estopping HLF from contesting the proposition that
it knowingly and intentionally provided material support
to Hamas by funding its terrorist activities.
   The requirement that the issue resolved in the prior
action must be the same as the one presented in the
instant proceeding is an exacting criterion. Similarity
does not suffice; the issue in the current case must be the
precise and identical issue that was decided in the prior
action. Am. Nat’l Bank & Trust Co. of Chicago v. Regional
Transp. Auth., 

, 430 (7th Cir. 1997) (applying
Illinois law); see also Parklane Hosiery 

, 99 S. Ct. at 649; Smith v. SEC, 

, 362 (6th
Cir. 1997) (en banc); Prymer v. Ogden, 

, 1212
(7th Cir. 1994); Crot v. Byrne, 

, 396 (7th Cir.
1992); Levesque v. Brennan, 

, 519 (7th Cir.
1988).
  For purposes of context, we point out that the first and
principal issue in the District of Columbia litigation was
36              Nos. 05-1815, 05-1816, 05-1821 & 05-1822

the propriety of the Treasury Department’s decision to
designate HLF an SDT and SDGT and to block its assets.
As is typical in cases involving administrative decision-
making, HLF’s challenge to the designation did not
trigger a de novo examination of the evidence before the
Treasury Department. Rather, both the district and
appellate courts confined themselves to determining
whether the Treasury Department’s decision was arbi-
trary and capricious and whether the designation and
blocking order was inconsistent with HLF’s statutory or
constitutional rights. It was for that reason that the bulk
of the litigation was resolved without discovery and
without the usual kinds of factfinding procedures that
are normally followed in civil litigation involving dis-
puted facts. In this fundamental respect, the setting of
the District of Columbia litigation was different from the
instant case. The former entailed deferential review of an
administrative determination, whereas the Boim’s com-
plaint in this case calls for straight-on determination of
whether HLF funded or otherwise supported Hamas’s
terrorist activities and, if so, whether there was a causal
relationship between that support and David Boim’s
murder.
  Against that backdrop, the sole potential for substan-
tive overlap between the District of Columbia litigation
and the instant case lies in the First Amendment chal-
lenges that HLF raised in the former litigation, as the
parties and the district court have recognized. Only as to
those claims was there a de novo judicial assessment of
HLF’s links to terrorism, and that assessment took place
at the appellate level. Recall that the district court in
Ashcroft had dismissed these claims on the pleadings,
reasoning that there is no constitutional right to provide
funding to a terrorist organization and thereby facilitate
terrorism. 

at 81, 82. Although the D.C.
Circuit agreed with this principle, it held that in order
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 37

to dispose of HLF’s First Amendment challenge on this
basis, it was necessary for the court to find that HLF
actually does fund Hamas’s terrorist activities. The
appellate court then proceeded to make that finding.
Looking to the record evidence, and in particular the
classified evidence, underlying the Treasury Department’s
designation decision, the D.C. Circuit found it “incontro-
vertible” that HLF funded terrorism by funding 

.
  The D.C. Circuit’s finding that HLF funded Hamas’s
terrorist activities was not, however, a finding that HLF
engaged in an act of international terrorism within the
meaning of section 2333 or that it aided and abetted such
an act. In particular, the D.C. Circuit did not mention, let
alone embrace, our holding in Boim I that funding
simpliciter of an organization that engages in terrorism
would be inadequate to establish section 2333 liability
but rather that the financial support must be given with
knowledge and intent to further 

, 1021-24. We took our cue on that point from the
Supreme Court’s decision in Claiborne Hardware, which
conditions the civil liability of an organization for the
violent acts of one of its members on proof that the organi-
zation had the specific intent to further the aims of the
wrongdoer. 

, 102 S. Ct. at 3428-29.
Imposing liability solely on the basis of an organization’s
association with a wrongdoer would interfere with the
organization’s First Amendment freedom of association,
the Court concluded, id. at 

. The
D.C. Circuit’s decision in Ashcroft did not mention
Claiborne Hardware, either. Notably, however, the dis-
trict court’s decision in Ashcroft had discussed Claiborne
Hardware, and it had expressly rejected HLF’s reliance
on that precedent as a basis for challenging the designa-
tion and blocking orders. 

at 80-81. The
lower court reasoned that the blocking order did not
38                Nos. 05-1815, 05-1816, 05-1821 & 05-1822

impose “guilt by association” in the way that the tort
judgment against the NAACP at issue in Claiborne
Hardware had; the order simply acted to prevent HLF
from providing further funding to a terrorist organiza-
tion, which it had no constitutional right to do in any
event. 

Government in this case has not
imposed guilt by association, the Claiborne Hardware
specific intent requirement is not applicable.” 

As
we have noted, the district court added that it might
be counterproductive to condition the issuance of a block-
ing order on proof that the donor knows and intends that
its contributions be used in furtherance of terrorism:
     [I]mposing a “specific intent” requirement on the
     Government’s authority to issue blocking orders would
     substantially undermine the purpose of the economic
     sanctions programs. Regardless of HLF’s intent, it
     can not effectively control whether support given to
     Hamas is used to promote that organization’s unlawful
     activities. Humanitarian Law 

(First Amendment does not require the govern-
     ment to demonstrate a specific intent to aid an organi-
     zation’s illegal aims because “[m]aterial support given
     to a terrorist organization can be used to promote the
     organization’s unlawful activities, regardless of donor
     intent”).

at 81.8 The district court’s rationale in this

8
  This court employed similar reasoning in Boim I when it
rejected a First Amendment challenge aimed specifically at
section 2339B as a predicate to civil liability under section 2333.
As noted above, we held that providing material support to a
foreign terrorist organization, conduct that is rendered a crime
by section 2339B, could serve as the predicate for a civil suit
under section 

; see supra at 12-13 &
n. 4. Section 2339B(a) on its face does not require proof that the
provider of material support intended for that support to fur-
                                                   (continued...)
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                         39


(...continued)
ther the terrorist activities of the organization; the provider need
only have knowledge that the organization has been designated
a foreign terrorist organization. See Humanitarian Law Project
v. Mukasey, Nos. 05-56753, 05-56846, 

, at *6-*7
(9th Cir. Dec. 10, 2007); United States v. Hammoud, 

, 328 (4th Cir. 2004) (en banc), vacated on other grounds, 

, 

(2005), reinstated in relevant part on
remand, 

(4th Cir. 2005) (en banc); but see United
States v. Al-Arian, 

(M.D. Fla. 2004)
(construing section 2339B to require that provider of material
support have specific intent to further terrorist organization’s
illegal activities in order to avoid constitutional difficulty of
imposing guilt by association). The absence of an intent require-
ment in section 2339B prompted the defendants to argue in Boim
I that insofar as the Boims were attempting to hold them civilly
liable on the theory that they had violated section 2339B by
providing material support to Hamas, the imposition of civil
liability would interfere with the defendants’ First Amendment
rights. The defendants contended that the First Amendment
protected their right to give money to Hamas and its affiliates
so long as their intent was to support the charitable work of
those groups rather than terrorist activities. Thus, in the defen-
dants’ view, the government could not proscribe donations
made to Hamas without the intent to further its terrorist
activities, nor could the plaintiffs seek to impose civil liability
for a violation of section 2339B without proof of such an intent.
  We rejected this argument. We emphasized at the outset that
the validity of section 2339B was not before us. The defendants
were not being prosecuted for a violation of section 2339B;
rather, the criminal statute was only relevant insofar as the
Boims were seeking to impose civil liability on the basis of
conduct that is proscribed by section 

.
With that qualification in mind, we proceeded to say that the
First Amendment does not prevent the government from
outlawing the donation of money and other support to foreign
terrorist organizations regardless of the intent of the donor. The
Supreme Court had concluded in Buckley v. Valeo, 

, 25,

, 638 (1976), that impingement on the rights of
                                                    (continued...)
40                 Nos. 05-1815, 05-1816, 05-1821 & 05-1822


(...continued)
association and speech may be justified if the government
shows that a sufficiently important interest is at stake and
employs means to further that interest which are closely enough
tailored as to avoid unnecessary curtailment of associational
liberties. We reasoned that the government’s interest in pre-
venting terrorism is 

(citing
Humanitarian Law Project v. Reno, 

, 1135 (9th Cir.
2000)). Consistent with that vital interest, the government
could permissibly try to cut off the provision of money and other
support to terrorist organizations by making such donations
illegal, even if they are made with innocent intent. For the same
reason, donors could be held civilly liable for the harm resulting
from such proscribed donations. “A section 2333 suit founded on
conduct violating section 2339B does not punish membership in
a designated terrorist organization, or penalize the expression of
views held by these organizations. Rather, such a suit is aimed
at prohibiting the funding of violent acts that these organiza-
tions wish to carry out.” 

Law 

). We further concluded that section 2333
liability premised on conduct violating section 2339B is closely
enough tailored to survive First Amendment scrutiny. It is not
practical to proscribe only donations made with intent to fur-
ther such illegal activities; terrorist organizations are able to
use funds for illegal activities regardless of intent of the donor.
Consequently, all donations to terrorist organizations may be
proscribed. We pointed out that in order to be designated a
foreign terrorist organization, that organization must engage
in terrorist activity that threatens the security of the U.S. or its
nationals. These requirements are stringent. In short, Congress
did not purport to criminalize membership in a terrorist organi-
zation or espousing the organization’s views; rather, it only
proscribed funding a group that the government had officially
designated a foreign terrorist organization. Liability was thus
sufficiently circumscribed to serve the government’s interest
in ceasing the flow of money to terrorist organizations without
unduly interfering with associational rights. 

  We should point out that in this case, as a practical matter,
civil liability under section 2333 could not be premised on a
                                                    (continued...)
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                        41

regard suggests rather strongly that the question pre-
sented in Ashcroft as to HLF’s support of Hamas is not
identical to the issue presented here. The D.C. Circuit’s
silence on this point is in turn significant: If the appellate
court meant to overrule the district court and require
proof that HLF had the specific intent to further Hamas’s
terrorist activities, one would have expected the court to
say so, particularly when that court was expressly urged
to impose an intent requirement. See 

,
at *28-32 (appellate brief of HLF).
  One might be tempted to say that when the D.C. Circuit
found that HLF funded Hamas, it necessarily found that
HLF did so with knowledge that Hamas perpetrates
terrorist acts and with the intent to support such acts.
After all, Hamas’s role in terrorism has never been a
secret, and the Ashcroft district court’s summary of the

(...continued)
violation of section 2339B. David Boim was killed in 1996. Hamas
was not designated a foreign terrorist organization pursuant to
8 U.S.C. § 1189(a) until the following 

.
Thus, donations of money and other support to Hamas made
before David Boim’s murder, because they pre-dated Hamas’s
designation as a foreign terrorist organization, did not violate
the criminal proscription of section 2339B. To that extent, the
premise of this particular First Amendment challenge was
hypothetical, and our discussion of the challenge was unneces-
sary to our holdings in Boim I.
  Section 2339B aside, a defendant’s provision of material
support to Hamas nonetheless might still amount to an act of
international terrorism for purposes of section 2333 and there-
fore support civil liability to the Boims in this case. But without
the crutch of section 2339B to lean on, the plaintiffs would have
to meet the other elements discussed elsewhere in Boim I,
including in particular a showing that the defendant pro-
vided material support to Hamas with the intent to further the
terrorist activities of the organization. See Boim 

.
42              Nos. 05-1815, 05-1816, 05-1821 & 05-1822

evidence underlying the blocking order indicates that HLF
had longstanding and extensive ties to Hamas at multiple
levels. See supra at 26-27; 

at 69-73.
   However, a further review and comparison of the district
and appellate court opinions in Ashcroft reveals the
difficulty of reading into the D.C. Circuit’s decision the
findings of knowledge and intent needed to impose civil
liability under section 2333. The evidence that the dis-
trict court relied upon to sustain the Treasury Depart-
ment’s determination that HLF had acted for or on behalf
of Hamas was a mixed bag in this respect. Some of that
evidence suggested that HLF not only was aware of
Hamas’s terrorist activities but meant to aid such activi-
ties. The district court noted, for example, that HLF
particularly sought to provide financial aid to the fam-
ilies of Hamas “martyrs”—i.e., suicide bombers and
others who die carrying out terrorist attacks. 219 F.
Supp. 2d at 71-72. One could readily infer from such
evidence that HLF was using the guise of charity to
further terrorism. However, other evidence cited by the
district court included support of Hamas’s humanitarian
activities that potentially would be protected under Boim I.
For example, the court noted that HLF had provided
millions of dollars in funding to charitable organizations
(including a hospital in Gaza) controlled by Hamas. 

Did HLF know that these charities were controlled
by Hamas? The district court’s opinion does not say. Did
HLF intend that the money given to these charities be
funneled to Hamas’s terrorist arm? The opinion does not
say. The district judge did observe that Hamas’s charitable
activities helped cultivate public support for Hamas and to
recruit terrorists. 

n.20. But nowhere in the
district court’s decision is there a finding that HLF funded
Hamas charities with this understanding (i.e., knowledge)
and purpose. On the contrary, the district court could not
have been more clear in saying that proof of such an intent
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  43

was not necessary, even in order to overcome HLF’s First
Amendment objections to the blocking order. 

In
that court’s view, any support that HLF gave to Hamas
and its affiliates, even support that HLF intended be used
for humanitarian purposes, supplied justification for the
blocking order. For its part, the D.C. Circuit did not even
discuss the nature of the evidence that it relied upon in
concluding that HLF funded Hamas. All we know is that
the evidence before the appellate court, including in
particular the classified evidence that the government
tendered to that court in camera, convinced the court that
HLF funded Hamas and therefore funded terrorism.
Because the court did not purport to adopt any require-
ment of knowledge and intent, we cannot know whether
the court, in determining that HLF funded terrorism,
relied on evidence showing that HLF knowingly and
deliberately funded terrorist activities or rather relied, as
the district court did in part, on evidence indicating that
HLF provided more generalized support to Hamas, includ-
ing financial support for Hamas-controlled charities. The
court’s opinion quite simply is opaque in that regard. In
the absence of any discussion of knowledge and intent,
the only plausible conclusion is that the D.C. Circuit did
not believe that proof of HLF’s knowledge and intent in
funding Hamas was necessary; so far as it appears,
funding simpliciter was enough in that court’s view to
overcome HLF’s First Amendment challenge to the block-
ing order. This, of course, would not suffice to meet
the standard for civil liability that we articulated in
Boim I.
  Therefore, although there undoubtedly is some factual
overlap between the Ashcroft litigation and this case, the
questions posed by the two suits are distinct. In Ashcroft,
the issue posed by HLF’s First Amendment challenge to
the blocking order was whether it funded (directly or
indirectly) Hamas’s terrorist activities. Here, the ques-
44               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

tion is whether HLF funded Hamas’s terrorism know-
ingly—for example, realizing that it was giving money to
charities controlled by Hamas, and that donations to
such charities either would be diverted to terrorist ends
or would free up other funds for terrorist activity—and
intentionally. Furthermore, the litigation in the D.C.
Circuit directly concerned the government’s ability to
further the national security and conduct the foreign
policy of the United States by stopping the flow of funds
from organizations in the United States to terrorist
entities abroad by freezing those assets before they can
leave this country. Nothing that this court, the district
judge, or a jury might say in this case would affect HLF’s
designation as an SDT or SDGT or confine the govern-
ment’s ability to rely on that designation in the future. The
validity of the designation is not at stake here. Instead,
this suit looks backward to determine whether HLF
knowingly and intentionally supported Hamas’s terrorist
activities in a way that had some causal connection with
David’s murder, which occurred before HLF was even
designated an SDT and SDGT. The subject matter of both
suits (HLF’s ties to Hamas) certainly is the same, and
both suits have in common the goal of depriving terrorists
of funds that they might use to commit further atrocities,
but the means to that end, and the legal rules and proce-
dures that govern them, differ in important respects.
  Because the questions presented by the Ashcroft litiga-
tion and this suit are not identical, HLF cannot be collater-
ally estopped from litigating here whether it knowingly
provided financial (or other) support to Hamas with the
intent to further Hamas’s terrorist activities. We need not
consider whether any of the other prerequisites to offen-
sive nonmutual collateral estoppel are satisfied, as all of
them must be met in order for the doctrine to apply.
Nonetheless, we conclude our analysis with a few observa-
tions about the fullness and fairness of the opportunity
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 45

that HLF was given in the Ashcroft litigation to challenge
the proposition that it provided financing to Hamas and
its terrorist activities.
   First, HLF had only a limited opportunity in the Ashcroft
litigation to contest its involvement with Hamas. As the
Ashcroft opinion itself makes clear, the D.C. Circuit’s
conclusion that the links between HLF and Hamas
were “incontrovertible” was based in particular on the
classified evidence that the government had tendered to
the 

. Because that evidence was
submitted to the court in camera and ex parte, HLF never
had the opportunity to see, let alone respond to, that
evidence. (We ourselves have no idea what that evidence
was or what specifically it revealed.) The D.C. Circuit
recognized that in a more typical civil case, HLF likely
would have been entitled to the opportunity that it
was denied in Ashcroft to conduct discovery in order to
assemble evidence that might have helped controvert
the notion that it was funding terrorist 

. But the court emphasized that Ashcroft was not a
general case, but rather a case “involving sensitive
issues of national security and foreign policy.” 

by contrast, is a civil dispute between private liti-
gants. The government is not a party to this action,
and although its decisions to designate Hamas a terrorist
organization and to block the assets of HLF based on its
ties to Hamas are certainly relevant, we are not review-
ing these decisions. Instead, we are focused on whether
the Boims have shown that HLF took actions that con-
tributed in some way to David’s murder. The case is
important, to be sure, not only to the parties, but also to
others who have been injured by terrorism and to the
individuals and organizations whose ties to terrorist
organizations may render them liable to those so injured.
But, in contrast to Ashcroft, this case does not implicate
national security or foreign policy concerns to a degree that
46               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

would justify the circumvention of normal discovery and
factfinding procedures. See Parklane 

& 

& n.15 (noting that it may
be unfair to apply offensive collateral estoppel where
second action affords defendant procedural opportunities
that were unavailable in first action and that could readily
produce a different result).
   Second, the administrative determination at issue in
Ashcroft—that HLF funds Hamas, and otherwise acts
for and on behalf of Hamas—was not rendered by a neutral
arbiter in an adversarial context but rather was an ex
parte finding by a government agency. Although the
Ashcroft litigation provided HLF with judicial review of
that determination (and although HLF was given the
opportunity to tender evidence to the OFAC contesting
its affiliation with Hamas at the re-designation stage),
it could not and did not grant HLF the opportunity that
it was not afforded in the first instance—a fully
adversarial hearing before a neutral and independent
decisionmaker in which HLF would be permitted to
confront the government’s evidence, cross-examine its
witnesses, and present testimony and other evidence of
its own, and at the conclusion of which the decision-
maker would make credibility assessments and other
findings of fact.9 True, the D.C. Circuit was convinced that
HLF could not have controverted the government’s evi-

. But that conclusion, like the
OFAC’s own administrative decision that HLF acted for or
on behalf of Hamas, was based in significant part on
classified evidence to which HLF had no access and could
not refute. We accept as the D.C. Circuit did that ex parte
determinations based on a wholly or partially classified
9
  HLF did have the opportunity, at the redesignation stage, to
tender evidence to the OFAC. However, this was no substitute
for an adversarial hearing at which witnesses could be exam-
ined and cross-examined.
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  47

evidentiary record are appropriate for prophylactic mea-
sures that implicate matters of foreign policy and national
security. 

But we do not believe it appropriate
to grant collateral estoppel effect to such determinations
in a civil action between private parties, when foreign
policy and national security concerns are not implicated
to the degree they are in a lawsuit directly challenging
governmental action.
   Congress, when it enacted section 2333, no doubt meant
to further particular national security and foreign policy
interests by allowing those injured by acts of interna-
tional terrorism to seek recompense in federal court. But
it gave no sign that it meant to abandon the rules, rights,
and procedures that have long governed civil litigation.
Nothing in either the IEEPA or section 2333, for example,
suggests that when a person or organization is found to
act “for or on behalf of ” a terrorist entity like Hamas
based on its links with that entity, that finding shall be
conclusive as to what that person or organization knew
and intended when it affiliated with the terrorist. Absent
further legislative action, it is not our place to deprive HLF
of its right to contest the notion that it knowingly
and intentionally supported Hamas’s terrorist activities
using the same tools and procedures that are made
available to other civil litigants.
  For all of these reasons, we conclude that the district
erred in granting collateral estoppel effect to the D.C.
Circuit’s finding that HLF funded Hamas’s terrorist
activities. This alone requires the reversal of the district
court’s determination on summary judgment that HLF is
liable for David Boim’s murder. As we proceed to discuss
below with respect to defendants AMS and Salah, the
district court mistakenly believed that an organization or
individual that contributed money or other support to
Hamas with the intent to support its terrorist activities
could be liable to the Boims even in the absence of proof
48               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

that the money or support given to Hamas was a cause
in fact of David’s death, so long as the murder of David
was foreseeable to the donor individual or organization.
This misunderstanding of our opinion in Boim I requires
the reversal of the partial summary judgments deem-
ing AMS and Salah liable to the Boims. It constitutes a
second basis for reversing the entry of partial summary
judgment against HLF, as there has been no finding that
HLF’s financial support of Hamas was a cause in fact
of David Boim’s death.


                            III.
                American Muslim Society
A. Summary judgment as to liability against AMS/IAP
  1. District Court’s analysis
   Relying on Boim I, the district court stated that in order
for AMS/IAP to be liable to the Boims, it must have
(a) known about Hamas’s illegal activities, (b) desired to
help those activities succeed, and (c) engaged in some act
of helping. 

at 906. These are the ele-
ments we identified as necessary to render a defendant
liable for aiding and abetting an act of international
terrorism committed by or on behalf of 

. In the court’s view, the undisputed facts estab-
lished each of these three elements. We gave a brief
overview of the court’s findings earlier; now we recount
them in a bit more detail.
  As to the first element, AMS/IAP conceded that Hamas,
in addition to using political means in furtherance of its
goal of establishing an Islamic Palestinian state in the
Middle East, also employed violence, including acts of
terrorism, in pursuit of that end. 

at 906.
AMS/IAP also conceded that Hamas was responsible for
David Boim’s murder. 

05-1816, 05-1821 & 05-1822                         49

  As to whether AMS/IAP had desired to aid Hamas
and engaged in some act of assistance to Hamas, the
court first rejected the notion that the IAP entities in-
volved in the acts identified by the Boims were distinct
from those named as defendants in this case. “[T]he
record shows that at all times relevant to this action,
there was a national organization serving as the Islamic
Association for Palestine, and that IAP Texas and AMS
either formally served as that organization, or were so
intertwined and involved with that organization as to
make any formal distinction meaningless. The defend-
ants cannot now hide behind their ambiguous and amor-
phous corporate design.” 

at 908.10
  The court proceeded to find abundant evidence that
AMS/IAP desired to help Hamas’s illegal activities
succeed11 and engaged in acts of assistance.

10
  AMS appeals the district court’s finding on this point, but in
view of our decision to reverse the summary judgment ruling
against AMS on other grounds, we need not reach that issue
here.
11
   The district court at times referred to the need for proof that
AMS desired to help Hamas’s activities—as opposed to its illegal
activities—succeed. See, e.g., 

at 908 (“Turning to
the question of whether IAP and AMS desired to help Hamas’
activities succeed, and in fact, engaged in some act of helping
those activities succeed, . . . .”). Particularly where an organiza-
tion like Hamas may engage in legal as well as illegal activities,
one must take care to distinguish between the two and determine
that the putative aider and abettor intended for the organiza-
tion’s illegal activities to succeed. See Boim 

,
1024-25. If the evidence were to show that the humanitarian
undertakings of an organization like Hamas in some way
facilitate its terrorist activities, then those who support such
humanitarian activities potentially could be held liable for
supporting terrorism. However, consistent with the Supreme
                                                       (continued...)
50               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

  First, representatives of AMS/IAP had participated in
the October 1993 Philadelphia meeting, which Hamas
officials and representatives of HLS had also attended.
See supra at 26. The Watson memorandum noted that
the recurring theme of the discussions captured by
FBI surveillance was how entities affiliated with and
working for Hamas should operate in light of the Oslo
Accord, in which Yassir Arafat and Yitzhak Rabin had
recognized—on behalf of Palestinians and Israelis—the
right of each to exist and had committed to negotiate a
permanent settlement and means to improved relations.
According to Agent Watson, participants in the Philadel-
phia meeting universally condemned the Accord and
discussed ways in which they might undermine the
Accord and continue to support Hamas inside what they
referred to as the “Occupied Territories.” 

at 908-09.
  Second, IAP and AMS (and others within IAP umbrella)
had contributed money to HLF and routinely and con-
sistently encouraged others to donate to HLF and other-
wise assisted HLF’s fundraising. 

HLF, of
course, had links to Hamas that had led the OFAC to
conclude that it acted “for or on behalf of ” Hamas. Taken
in the context of other evidence, “this is strong evidence
that IAP was supporting Hamas, consistent with the
FBI surveillance reports.” 

and AMS had published and distributed pro-
Hamas documents, including the Hamas charter and, more
recently, documents that included an editorial by Khalid
Amyreh advocating “martyrdom” operations, meeting
11
  (...continued)
Court’s decision in Claiborne, liability would be conditioned
on proof that the individual knew and intended that his sup-
port for the humanitarian activities of the organization ulti-
mately would also aid its terrorist activities. 

Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  51

death with death, and killing Jews. IAP had paid Amyreh
for his materials, but denied that it necessarily published
the editorial because it shared his views. 

  Fourth, when individuals with ties to Hamas were
arrested and/or charged with supporting terrorism, IAP
and AMS sought to rally public support for them. Follow-
ing Salah’s arrest in Israel, for example, IAP National
and AMS held a number of events to garner public support
for his release. When Abu Marzook, whom AMS/IAP
official Rafeeq Jaber knew to be the head of Hamas’s
political bureau, was arrested in New York, IAP National
published documents to garner support for him. Similarly,
IAP National and AMS generated and distributed docu-
ments soliciting support for HLF after its assets were
seized by the OFAC. The district court recognized that
these activities were not against the law, “[b]ut all of this
does tend to evidence a desire on the part of IAP to help
Hamas succeed.” 

at 911. See note 

.
  Fifth, IAP had held annual conferences, invited pro-
Hamas speakers to participate in these gatherings, and
paid their travel expenses. An IAP conference in 1989 had
featured a veiled Hamas terrorist as a guest speaker. A
1996 IAP conference had featured the leader of Muslim
Brotherhood of Syria along with the wife of Marzook, who
by that time had been in federal custody in the United
States for more than a year and a half. An excerpt from
Steven Emerson’s book, American Jihad, The Terrorists
Living Among Us, identified other instances in which
Hamas leaders and supporters had spoken at IAP con-
ferences, including four occasions on which such individu-
als called for jihad, urged the audience to take up arms
against Israel, spoke in support of martyrdom operations,
and advocated support for the families of martyrs. Jaber
admitted that each of these identified speakers had in
52                Nos. 05-1815, 05-1816, 05-1821 & 05-1822

fact spoken, but said he could not remember whether
they made the statements Emerson attributed to them.12
  The district court believed that this was sufficient to
show that IAP and AMS had the intent to aid Hamas’s
terrorist activities and in fact engaged in some acts of
assistance. 

at 912-13. The record con-
vinced the court that “if IAP never outrightly cheered on
Hamas’s terrorist activities, it has come quite close[;]
[c]ertainly IAP has never condemned Hamas’ tactics.” 

Although Jaber averred that IAP took no position
on whether suicide bombings, for example, were right or
wrong, the record revealed that IAP had, in fact, praised
Hamas’s terrorist activities, albeit “somewhat subtly.”
Jaber admitted, for example, that IAP had published
articles and editorials characterizing suicide bombers
as martyrs and freedom fighters; Jaber simply said that
IAP took no position on those characterizations. 

accepted the notion that opposition to Israel does not
equate with support for Hamas. 

But express-
ing opposition by way of suicide bombings and other
terrorist attacks like the shooting of David Boim appeared
to the court to be “precisely what Hamas is about.” 

Pursuant to Boim I, those who help to fund, directly
or indirectly, Hamas’s terrorist activities are liable to the
same extent as those who commit the terrorist acts. 

which asserted that neither IAP nor
AMS supported terrorist activities, engaged in helping,

12
  There may well have been a hearsay problem with relying on
Emerson’s book as proof of what these speakers said at the IAP
conferences. See, e.g., Am. Nat’l Fire Ins. Co. v. Rose Acre Farms,
Inc., 

, 456 (7th Cir. 1997). What the speakers
themselves said would be admissible for their state of mind, but
as proof that the speakers actually made these statements,
Emerson’s book, which itself is, of course, an out-of-court
statement, would constitute hearsay. See Schindler v. Seiler, 

, 1011 (7th Cir. 2007).
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                        53

or intentionally or knowingly gave money to support
such acts, struck the court as conclusory and self-serving.
Id.13 Moreover, Jaber’s affidavit did nothing to refute
the evidence that IAP provided material support to
Hamas during years that he was not a member and
president of IAP. 

strikingly absent from the district court’s
analysis is any consideration of a causal link between the
assistance that the court found AMS/IAP to have given
Hamas and the murder of David Boim. The court made no
finding as to the existence of such a link, nor did it ac-
knowledge that causation was a necessary element of the
Boims’ case. See 

  Indeed, in its subsequent discussion of Salah’s liability,
the court appears to have said that no such causal link was
required:
13
  Of course, the fact that Jaber’s affidavit was self-serving was
not a reason to disregard it. Most affidavits are. See Payne v.
Pauley, 

, 772-73 (7th Cir. 2003). It does, however, go
to the weight of the evidence, which would be for the factfinder
to assess. Ascertaining a party’s state of mind typically requires
credibility assessments that cannot be made on summary
judgment. See, e.g., Ashman v. Barrows, 

, 784 (7th
Cir. 2006) (citing, inter alia, McGreal v. Ostrov, 

, 677
(7th Cir. 2004)). Thus, where the party seeking summary
judgment presents circumstantial or indirect evidence that is
consistent with the requisite knowledge or intent, but is also
subject to other interpretations, a general denial by the party
whose mental state is at issue will normally suffice to establish
a dispute of fact for the factfinder to resolve at trial. See, e.g.,
United States v. Cleckler, 

, 1335-36 (11th Cir. 2001)
(per curiam). Only in the face of direct evidence that a party
knew or intended a particular thing (e.g., a party’s prior admis-
sion) will a bare, general denial of knowledge or intent be
insufficient to create a dispute of material fact in the face of
direct evidence that the party knew or intended a particular
thing. See Lorillard Tobacco v. A & E Oil, Inc., 

, 594
(7th Cir. 2007).
54                 Nos. 05-1815, 05-1816, 05-1821 & 05-1822

     The Seventh Circuit did not say that, to impose liabil-
     ity under § 2333, the Boims have to link Mr. Salah or
     any of the other defendants specifically to the attack
     that killed David Boim; rather, the court held that, to
     impose liability for aiding and abetting—that is,
     providing material support to[14]—a terrorist organiza-
     tion, the Boims need only show that the defendants
     knew of Hamas’ illegal activities, that they desired to
     help those activities succeed, and that they engaged in
     some act of helping. 

. The
     evidence shows that all three are true with respect to
     Mr. Salah and no reasonable jury could find otherwise.

at 923. The court added that Salah would
be liable under civil conspiracy principles for acts in
furtherance of a conspiracy to fund Hamas, even if those
acts were committed after he ceased being an active
participant (assuming that he did not withdraw from the
conspiracy and disavow its aim). Thus, even if plaintiffs
could not establish that Salah provided material sup-
port to Hamas (which, in the court’s view, they had
shown, though it did not expand on this point), Salah could
still be liable to the Boims if their son’s death was a
reasonably foreseeable consequence “of the conspiracy
that was Hamas.” 

15
14
  [Footnote added by this court] Although providing material
support to a terrorist organization would be one way to aid and
abet that organization’s terrorist activities, one could aid and
abet the organization’s terrorist acts in other ways as well.
Lending material support to terrorist activity or a terrorist
organization is actually a theory of liability that is separate and
distinct from aiding and abetting an act of international terror-
ism, as our opinion in Boim I makes clear. Compare section II(B)
of Boim 

(discussing material support),
with section II(C), 

21 (discussing aiding and abetting).
15
  We note that the court did not discuss what proof there was
that Hamas constituted a conspiracy, what the aims and scope
                                                (continued...)
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  55

  The Boims defend the district court’s silence as to
causation (and in Salah’s case, the court’s apparent
rejection of the need for proof of cause in fact) on the
ground that our opinion in Boim I did not require it. In
their view, all that need be shown is that it was fore-
seeable to the defendants that their support of Hamas
might result in someone’s death. This constitutes a
profound misreading of our decision in Boim I.
  Contrary to the district court’s apparent impression,
this court’s opinion in Boim I did not relieve plaintiffs of
the burden of showing causation in fact. As we discuss
below, the theory of liability that the Boims advanced in
support of their complaint in the prior appeal assumed
that they would be able to demonstrate causation in
fact. Consequently, we were not called upon to discuss,
and there was no need for us to consider, whether the
plaintiffs could obtain relief without establishing that
the defendants’ actions were a cause in fact of David
Boim’s death. Our focus instead was on the doctrine of
proximate cause and specifically its requirement (some-
times referred to as the concept of legal cause) that the
injury complained of by the plaintiff have been foresee-
able to the defendant. Boim 

(“Foresee-
ability is the cornerstone of proximate cause, and in
tort law, a defendant will be held liable only for those
injuries that might have been reasonably anticipated as a
natural consequence of the defendant’s actions.”) (citing
Suzik v. Sea-Land Corp., 

, 348 (7th Cir. 1996),
and RESTATEMENT (SECOND) OF TORTS (hereinafter
“RESTATEMENT (SECOND)”) §§ 440-47). See RESTATEMENT
(THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM (Proposed
Final Draft No. 1) (hereinafter “RESTATEMENT (THIRD)”)
§ 29; Dan B. Dobbs, THE LAW OF TORTS § 182, at 447-48
15
   (...continued)
of the conspiracy were, when it was formed, when Salah joined
it, and so forth.
56               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

(2000) (distinguishing proximate cause from cause in fact);
W. Page Keeton, PROSSER & KEETON ON THE LAW OF
TORTS § 42 (5th ed. 1984). But by saying that David Boim’s
death must have been a type of harm that was foresee-
able to the defendants, and that the plaintiffs were
obligated to prove this, we in no way implied that the
plaintiffs were relieved of the obligation to establish that
the defendants’ actions were a factual cause of his death.
On the contrary, there are multiple references in Boim I to
the necessity of causation in fact. At the risk of repeating
ourselves, we now undertake yet another review of our
prior decision, this time with a focus on what we said (or
what we assumed) on the subject of cause in fact.
  We began our analysis in Boim I by noting that
18 U.S.C. § 2333(a) grants any U.S. national “injured . . .
by reason of an act of international terrorism” the right
to sue for his 

(emphasis added);
see also 

1011. “International terrorism” is
in turn defined to include “activities that . . . 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 com-
mitted within the jurisdiction of the United States or of
any State.” 18 U.S.C. § 2331(1)(A).
  We observed that the legislative history of the statute
reveals an intent to codify general common law tort
principles and to extend civil liability for acts of interna-
tional terrorism to the full reaches of traditional tort

. We added that the statute itself
reflects all of the elements of a traditional tort: a breach of
duty (committing an act of international terrorism), an
injury to the person, etc. of another, and causation (in-
jured “by reason of ”). 

  What the statute does not do is identify the class of
defendants who may be held liable, and this was the
question that we proceeded to answer. We stated that
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  57

the statute was clearly meant to reach not only those
individuals who themselves commit the violent act that
directly causes the injury (291 F.3d at 1011), but rather
extends to “anyone along the causal chain of terrorism,”

We added, however, that funding
a terrorist organization by itself would not be enough to
place someone in this causal chain. 

To say
that funding alone sufficed would give the statute an
almost unlimited reach. 

Rather, in addition
to establishing funding (or some other act of supporting
terrorism), the plaintiff would have to establish the
defendant acted with knowledge of the terrorist activity
and the intent to support that activity. 

statute bestows the right to sue on a person injured “by
reason of ” an act of international terrorism, and that
language, we said, requires a showing of proximate
causation, which in turn requires proof that the injury
was foreseeable to the defendant. 

“In the
very least, the plaintiffs must be able to show that
murder was a reasonably foreseeable result of making a
donation.” 

(emphasis added).
  We made the same point in discussing why proof that a
defendant had provided material support or resources
to terrorists, in violation of 18 U.S.C. §§ 2339A and 2339B,
would be one route to relief under section 2333. We
reasoned that if a defendant’s conduct meets the stand-
ard for criminal liability under either of these provisions,
that conduct would constitute an act of international
terrorism for purposes of civil liability under section 2333,
so long as the defendant’s knowledge and intent were
also 

. We added that support
or resources provided need not be substantial or consider-
able, notwithstanding the use of the term “material” in
both of the criminal provisions. The statute defines what
constitutes material support or resources, so the term
“material” “relates to the type of aid provided rather than
58               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

whether it is substantial or considerable.” 

So
even small donations made knowingly and intentionally
in support of terrorism might suffice to render the donor
liable. 

again noted that for purposes of
civil liability, section 2333 requires that one be injured “by
reason of ” an act of international terrorism. 

intended to import traditional tort principles,
we added, “causation may be demonstrated as it would
be in traditional tort law.” 

again made this point in recognizing that aiding
and abetting an act of international terrorism would
support a civil suit under section 2333. The plaintiffs
theorized that aiding and abetting a violent act is itself
an act of international terrorism. We agreed, recognizing
that Congress meant to extend section 2333 liability
beyond those directly perpetrating acts of terrorism. The
fact that section 2331 defined international terrorism to
include acts that “involve” violent or life-endangering
acts itself suggested a broad 

. Sec-
tion 2333, we again emphasized, reflects a congressional
intent to incorporate traditional tort principles. 

“involves” violent acts would certainly cover conduct
that aids and abet violent acts. 

the statute
did not expressly authorize this theory of liability, we
believed it was appropriate to extend liability to those who
aid and abet acts of international terrorism. 

  Cause in fact also figured into our rejection of the
assertion by HLF and QLI that it would be incompatible
with the First Amendment to hold them liable to the
Boims on the basis of money that they raised and donated
to Hamas and its intermediaries for humanitarian pur-
poses. We emphasized that the defendants could be
liable to the Boims if, for example, they had aided and
abetted David Boim’s murder by taking some step that
aided Hamas’s terrorism while knowing of its terrorist
activities and desiring to help those activities succeed. 291
Nos. 05-1815, 05-1816, 05-1821 & 

. Thus, the Boims theorized that HLF and QLI
were front organizations that raised money ostensibly
for legitimate humanitarian purposes but then funneled
that money to Hamas, knowing and intending that
Hamas would use the funds to arm and train terrorists,
including the men who killed David Boim. We deemed
this theory compatible with the First Amendment in that
it did not seek to hold defendants liable for mere associa-
tion with Hamas or for giving money to aid its human-
itarian efforts. 

  Thus, implicit if not explicit throughout Boim I’s
analysis is the notion that there must be a causal link
between the defendant’s actions and the plaintiff ’s
injury. This is evident in our observations that section
2333 gives anyone “injured by reason of ” terrorist activity
the right to sue, that liability was meant to extend all
along the chain of causation, and that Congress meant to
incorporate traditional tort principles. 

, 1011, 1015, 1021. But to the extent our opinion in
Boim I leaves any doubt on this score—owing perhaps to
the fact that the Boims’ theories at that time presup-
posed a causal link between the defendants’ acts and the
murder of David Boim—we now reiterate that recovery
under section 2333 is conditioned on proof of causation
in fact.
  We return to our point of embarkation in Boim I: the
language of the statute. The statute grants a right to sue
to anyone injured “by reason of ” an act of international
terrorism. 18 U.S.C. § 2333(a). That language itself
suggests that there must be some causal link between the
particular act of international terrorism that the defendant
is alleged to have committed (or aided and abetted) and
the injury suffered by the plaintiff. Indeed, we specifically
recognized in Boim I that this language meant 

.
60               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

  Boim I noted repeatedly that Congress when it enacted
section 2333 intended to embrace traditional tort princi-
ples, 

1015, 1020, and cause in fact is a re-
quirement for all torts. The Restatement makes the point
unequivocally:
     Tortious conduct must be a factual cause of physical
     harm for liability to be imposed. Conduct is a factual
     cause of harm when the harm would not have occurred
     absent the conduct. . . .
RESTATEMENT (THIRD) § 26 (“Factual Cause”); RESTATE-
MENT (SECOND) § 9 comment b (“[i]n order     that a particular
act or omission may be the legal cause of an invasion of
another’s interest, the act or omission must [inter alia] be
a substantial factor in bringing about the harm . . .”);

comment a (in order for actor’s conduct to be
considered legal cause of another’s harm, it is necessary
although not sufficient that “the harm would not have
occurred had the actor not been negligent”); see also § 430
comment e (noting that causation principles for negligence
apply to intentional torts as well); cf. Associated Gen.
Contractors of Calif., Inc. v. Calif. State Council of Carpen-
ters, 

, 547-48, 

, 913 (1983)
(Marshall, J., dissenting) (“Although many legal battles
have been fought over the extent of tort liability for
remote consequences of negligent conduct, it has always
been assumed that the victim of an intentional tort can
recover from the tortfeasor if he proves that the tortious
conduct was a cause-in-fact of his injuries.”) (emphasis
in original). This is often referred to as but-for causation.
RESTATEMENT (THIRD) § 26 comment b. One must ask
what would have occurred if the actor had not engaged in
the tortious conduct. 

  The foreseeability component of proximate cause (or
legal cause), which we discussed in Boim I, is not a
replacement for or an alternative to cause in fact, but
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  61

rather confines an actor’s responsibility to injuries that
were both factually caused by his tortious conduct and
were the type of injuries that he foreseeably risked by his
conduct. RESTATEMENT (THIRD) § 29; Dobbs, § 180 at 443-
45. Put another way, factual causation is a necessary
but not a sufficient basis for liability. RESTATEMENT
(SECOND) § 431 comment a; see Carris v. Marriott Int’l,
Inc., 

, 560 (7th Cir. 2006) (“ ‘but for’ causa-
tion . . . is never enough for liability”); Sementilli v.
Trinidad Corp., 

, 1139 (9th Cir. 1998) (T.G.
Nelson, J., specially concurring) (court does not reach
foreseeability if cause in fact has not been shown). The
foreseeability requirement thus serves to limit rather
than expand the set of tortfeasors who may be liable for
the plaintiff ’s injury. Dobbs § 180 at 443; see, e.g., Holmes
v. Securities Investor Protection Corp., 

, 267-
68, 

, 1317-18 (1992). In short, a tortfeasor
cannot be held liable for any injury that his acts
foreseeably might have caused without there also being
proof that his conduct did cause that injury.
   Neither the aiding and abetting theory of liability, which
we endorsed in Boim I, nor civil conspiracy, which the
Boims pursued in their amended complaint on remand,
obviates the need for a showing of cause in fact. Neither
is an independent tort; each is simply a vehicle for spread-
ing liability for a tortious act committed by another. E.g.,
Hefferman v. Bass, 

, 600-001 (7th Cir. 2006);
see RESTATEMENT (SECOND) § 876 comment b; Dobbs § 340
at 936-38; PROSSER & KEETON § 46 at 322-24. So although
the Boims might prevail by showing that a defendant aided
and abetted someone else (e.g., HLF) in providing material
support or resources to Hamas for its terrorist activi-
ties—for example, by hosting a fundraiser for HLF,
knowing and intending that the funds raised would be
funneled to Hamas to support terrorism—there still
must be proof that the provision of material support or
62               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

resources was in some way a cause of David Boim’s death.
It is not enough to show simply that a defendant generally
aided and abetted HLF or even Hamas as organizations;
there must be proof that the defendant aided and abetted
them in the commission of tortious acts that have some
demonstrable link with David Boim’s death. The same
is true of conspiracy. The mere agreement to engage in
illegal activity is not enough to impose civil liability on the
conspirator; rather, one must have conspired with some-
one who committed a tort. See Beck v. Prupis, 

, 501-04, 

, 1614-15 (2000); see also, e.g.,
Adcock v. Brakegate, Ltd., 

, 894 (Ill. 1994),
abrogation on other grounds recognized by Burgess v. Abex
Corp. ex rel. Pneumo Abex Corp., 

, 795 (Ill.
App. Ct. 2000). In that sense, civil liability for engaging
in a conspiracy is distinct from criminal 

. Thus, for purposes of liability under sec-
tion 2333, a plaintiff must show that the defendant aided
and abetted, or conspired with others to commit, an act
of international terrorism that resulted in injury to the
plaintiff.
  There are any number of ways in which the plaintiffs
might be able to establish causation in fact. One way, of
course, would be to establish a direct causal link between
the defendants’ acts and the murder of David Boim. The
plaintiffs posited such a link in Boim I, theorizing that
the defendants had channeled funds into a central pool of
money that was used to train terrorists, buy their weap-
ons, and so forth—and that the terrorists who killed
David Boim had been trained and armed using those
funds. See Burnett v. Al Baraka Invest. & Dev. Corp., 

, 107 (D.D.C. 2003) (“It must be acknowl-
edged that the complaint in Boim was quite specific in its
allegation of a causal link . . . .”). There might be alter-
native and less direct routes to proving causation as well.
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                63

   Nothing in Boim I demands that the plaintiffs estab-
lish a direct link between the defendants’ donations (or
other conduct) and David Boim’s murder—that they
funded in particular the terrorists who killed David Boim,
for example—in view of the fact that money is fungible
and the victims of terrorism are often killed or injured at
random, as he was. In that respect, the district court was
no doubt correct when it said that the Boims need not
link the defendants specifically to the attack on David
Boim. 

at 923. A factfinder reasonably
could conclude those who provide money and other gen-
eral support to a terrorist organization are as essential
in bringing about the organization’s terrorist acts as
those who plan and carry out those acts. See Boim 

. For that reason, we reject AMS’s sugges-
tion (AMS Reply Br. at 6) that a $10,000 donation made
by a defendant to Hamas or its affiliate with the requi-
site knowledge and intent that the money will support
terrorism could not be deemed a cause of a subsequent
terrorist act absent proof that the donor envisioned that
particular act. But the plaintiffs still must offer some
proof that permits a finding by a preponderance of the
evidence that the defendants’ conduct caused terrorist
activity that included the shooting of David. For example,
the Boims have pointed out that in his August 1995
statement, Salah wrote that in the early 1990s, he had
helped to test and train terrorists, funneled money to
Hamas for the purchase of weapons, and had coordinated
with other Hamas leaders in rebuilding Hamas’s infra-
structure and command. R. 265-2 Ex. 15 at 1783-95; see

at 920. If one were to credit Salah’s
statement, one reasonably might conclude that any
number of terrorist acts subsequently committed by
Hamas (and the resulting injuries) were in part caused by
Salah’s actions, even if Salah had no role in planning
and executing a particular terrorist act. Similarly, if an
64               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

individual or organization established a funding net-
work in the United States designed to provide ongoing
financial support for Hamas’s terrorist activities, a
factfinder might reasonably infer that the act of establish-
ing that network was a cause of ensuing acts of Hamas
terrorism, even if no line could be drawn linking a particu-
lar dollar raised to a particular terrorist act. As these
hypotheticals suggest, the nature and significance of a
defendant’s action along with its chronological relation-
ship to the terrorist act that injured the plaintiff would
be important considerations in assessing whether the
defendant caused the plaintiff ’s injury. Terrorist acts that
follow within a reasonable time the donations and other
support provided by a defendant to the perpetrators of
those acts could be deemed to have been caused by those
acts; and the more significant the support provided by a
defendant, the more readily one might infer that sup-
port was a cause of later terrorist acts.
  We add that a defendant’s conduct need not be the sole
circumstance responsible for a terrorist act in order to
qualify as a cause in fact; it is enough that it be a cause
of the act and the resulting harm. RESTATEMENT (THIRD)
§ 26 comment c; see also 

RESTATEMENT
(SECOND) § 430 comments d, e. Proof that HLF was
funding Hamas’s terrorist activities at the time of David
Boim’s murder, and that another defendant was in turn
funneling donations to HLF with the knowledge and
intent that those funds be used to support Hamas’s ter-
rorism, might support an inference that the actions of both
HLF and that defendant were causes of the murder.
Alternatively, if the plaintiffs were able to show that by
providing funding to Hamas’s other activities, including
the hospitals, schools, and other charitable missions that
it sponsors, a donor frees up Hamas resources for, or
otherwise makes possible, Hamas’s terrorist activities,
then proof that the defendants provided support to Hamas
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 65

ostensibly for its humanitarian activities, but with the
knowledge and intent that Hamas be able to conduct
terrorism also, might support the inference that the
defendants were a cause of terrorist activity of the kind
that resulted in David Boim’s death. But without some
evidence of a causal link between a defendant’s conduct
and Boim’s murder, proof that a defendant supported,
aided and abetted, or conspired with Hamas (or an inter-
mediary like HLF) will not suffice to render that defend-
ant liable to the Boims.
  Permitting liability to be imposed on a defendant based
solely on proof that the death of David Boim was a fore-
seeable result of the defendant’s conduct, without proof
that the conduct actually was a cause of the death, would
give section 2333 a far broader sweep than traditional
tort principles would allow. The actual use to which the
funds and other support that the defendants allegedly
provided to Hamas and its intermediaries was put would
be irrelevant. This would transform the doctrine of proxi-
mate causation from a principle that limits tort liability
into one that expands liability, essentially rendering a
defendant who intended to aid Hamas’s terrorist activities
strictly liable for all foreseeable injuries even if that
defendant’s aid actually did nothing to enable the terror-
ism and the injuries it inflicted. Cf. Associated Gen.
Contractors of 

, 459 U.S. at 

(majority opinion) (allegation of defendant’s intent
to cause harm insufficient to establish plaintiff ’s right to
recover for alleged antitrust violation) (citing Blue Shield
of Va. v. McCready, 

, 479, 

,
2548 (1982)); see RESTATEMENT (SECOND) § 435A comment
a (“even where the tortfeasor intends a specific result
which follows, there must be a causal connection between
his action and the result”).
  None of this should be understood to rule out the
possibility that relatively modest financial contributions
66               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

to terrorists or other minor acts of support would be
sufficient to render the donor liable for the injuries
subsequently inflicted by terrorists. See Boim 

. As we have noted, but-for causation does not
demand a showing that the defendant’s conduct was
the sole cause of the plaintiff ’s injury; the conduct need
only be one of the causes. RESTATEMENT (THIRD) § 26
comments c and l; RESTATEMENT (SECOND) § 430 comments
d and e. Nor must the plaintiff show that the defendant’s
conduct was the predominant or primary cause of the
injury. RESTATEMENT (THIRD) § 26 comments j and l. A
plaintiff might well be unable to show that a terrorist
organization such as Hamas depended on a particular
donor to support its terrorism, for example, or that one
act of terrorism owed its existence to a specific donation.
But a careful showing that many small donations col-
lectively resulted in a cache of funds that in turn enabled
a series of terrorist acts would permit a factfinder rea-
sonably to infer a causal connection between the contribu-
tion made by a single donor and one of the terrorist acts
made possible by that donor and others like him, even if
a single donation would not by itself have been enough to
cause that terrorist act. See RESTATEMENT (THIRD) § 26
comments c, i.
  The viability of any of the potential theories of causation
in fact we have discussed would of course turn on the
evidence presented. We are necessarily speaking in a
vacuum at this juncture, given that the district court
made no finding as to causation in fact and the Boims have
not attempted to show causation in fact here. A more
definitive assessment of what evidence will suffice to
support a finding of cause in fact must await the presenta-
tion of that evidence. It is enough for us now to reiterate
that Congress meant for liability to extend the full length
of the causal chain of terrorism.
  We do not believe our requirement that causation in
fact be shown is inconsistent with the D.C. Circuit’s
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  67

opinion in Kilburn v. Socialist People’s Libyan Arab
Jamahiriya, 

(D.C. Cir. 2004), on which the
Boims rely. Kilburn did eschew what the D.C. Circuit
thought would be a stringent requirement of but-for
causation, but it did so solely for purposes of establishing
jurisdiction under the Foreign Sovereign Immunities Act,
28 U.S.C. § 1605(a)(7) (“FSIA”). Kilburn expressly left
open the possibility that but-for causation might be
necessary for purposes of liability. And as we shall dis-
cuss below, we believe a more expansive view of causation
in fact addresses the concerns that Kilburn voiced about
but-for causation.
  Kilburn was a suit against Libya (among other defen-
dants) for the kidnaping and murder of an American
citizen, Kilburn, who had been working in Beirut. The
complaint alleged that the terrorist group Hizbollah had
abducted Kilburn and sought ransom for his return. While
the U.S. was attempting to negotiate his release, the
Libyan government made it known that it wanted to
procure an American hostage whom it would murder in
retaliation for recent U.S. airstrikes on Libyan soil.
Thereafter, a terrorist group sponsored and directed by
Libya allegedly purchased Kilburn from Hizbollah, tor-
tured him, and ultimately killed him. By the terms of
the FSIA, foreign states are immune from suit in U.S.
courts unless one of the statutory exceptions applies. 28
U.S.C. § 1604. One such exception authorizes a suit for
damages against a foreign state “for personal injury or
death that was caused by an act of torture, extrajudicial
killing, aircraft sabotage, hostage taking, or the provision
of material support or resources (as defined in section
2339A of title 18) for such an act if such act or provision of
material support is engaged in by an official, employee,
agent of such foreign state while acting within the scope of
his or her office, employment, or agency . . . .” § 1605(a)(7)
(emphasis supplied). The D.C. Circuit agreed that the
68               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

“caused by” language of this provision demanded proof of
a causal link between the foreign state’s acts and the
victim’s 

, but it rejected Libya’s
contention that but-for causation must be shown, 

The court recognized that depending on what
one understands but-for causation to mean, it can either
be a restrictive or an expansive standard for liability. 

n.2. The court understood Libya to be arguing
in favor of a highly restrictive understanding of but-for
causation, and the court was concerned that a demanding
causation standard might inappropriately render state
sponsors of terrorism immune from suit. In particular, the
court believed that where multiple foreign states were
providing general support to a terrorist organization, it
would be difficult to show that any one of them was
literally the sine qua non cause of the injuries inflicted by
that organization’s terrorist acts—with the result that
all of the sponsoring states might be rendered immune
from suit. 

Relying on the Supreme Court’s
decision in Jerome B. Grubart, Inc. v. Great Lakes Dredge
& Dock Co., 

, 536-38, 

, 1049-51
(1995), which construed identical language in a federal
admiralty statute, the D.C. Circuit held a showing that
a foreign state’s conduct proximately caused the plain-
tiff ’s injuries was sufficient for purposes of jurisdiction
under the 

.
   However, the D.C. Circuit was quick to clarify that its
holding was limited to what was necessary in order to
assert jurisdiction over a foreign state and did not ad-
dress what proof would be necessary in order to impose
liability on that state.
     [W]e underline that the only issue before us here is
     jurisdictional causation, because § 1605(a)(7) is solely
     a jurisdictional provision. Cicippio-Puleo [v. Islamic
     Republic of Iran], 353 F.3d [1024] at 1032 [(D.C. Cir.
     2004)]. To succeed in the end, the plaintiff must go
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  69

    beyond jurisdiction and provide proof satisfying a
    substantive cause of action. 

has
    alleged a number of sources that could provide a
    cause of action, including state, federal, foreign, and
    international law. Whatever the ultimate source may
    be, it will no doubt carry with it—as a matter of
    substantive law—its own rules of causation. Of these,
    there are a large variety. See Prosser & Keeton at 266-
    68, 273. Any concerns about reaching too far to charge
    foreign states with the attenuated impact of their
    financial activities are better addressed as questions of
    substantive law. . . 

(emphasis in original). See also Rux v.
Republic of Sudan, 

, 472-73 (4th Cir. 2006),
cert. denied, 

(2007).
  Moreover, in requiring a showing of proximate cause
alone, Kilburn did not purport to relieve the plaintiff of
showing that the defendant’s conduct actually caused his
or her injury. On the contrary, the Kilburn court, quoting
approvingly from the PROSSER & KEETON treatise, ac-
knowledged that a showing of proximate cause requires
there to be “ ‘some reasonable connection between the act
of omission of the defendant and the damage which the
plaintiff has suffered.’ 

, quoting PROSSER
& KEETON at 263. See also Owens v. Republic of Sudan,

, 111-12 (D.D.C. 2006) (construing
Kilburn to require a showing of cause in fact).
  The Supreme Court’s decision in Grubart, on which the
Kilburn court relied, likewise makes clear that proximate
cause entails proof of an actual factual nexus between the
defendant’s acts and the plaintiff ’s injury. Grubart arose
from a 1992 flood in Chicago’s Loop commercial district,
which briefly brought the city’s downtown to a standstill
and caused millions of dollars in losses to area businesses.
The flood occurred after a dredging company replacing
pilings in the Chicago River accidentally drove one or
70               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

more of the new pilings too deep into the riverbed and
weakened an old freight tunnel that ran below the river;
when the tunnel collapsed months later, river water
flooded the entire tunnel system and, along with it,
basements throughout the business district. In the face of
multiple lawsuits, the dredging company, invoking admi-
ralty jurisdiction, filed suit in federal court seeking to
limit its liability to the value of the tugboat and two
barges it had been using to replace the pilings. See Lim-
itation of Vessel Owner’s Liability Act, 46 U.S.C. § 181,
et seq. The existence of admiralty jurisdiction turned in
part on whether the relevant injury had been “caused by a
vessel on navigable water.” 46 U.S.C. App. § 740 (emphasis
supplied) (since recodified at 46 U.S.C. § 30101). Because
the pilings whose installation had resulted in the tunnel
collapse had been placed in the riverbed using a crane
perched upon a barge in the Chicago River, the Court had
no difficulty concluding that the barge had caused the
complained-of 

, 115 S. Ct. at
1049. Indeed, the question before the Court in Grubart
was not whether the dredging company’s barge had actu-
ally caused the flood, but rather whether the resulting
injuries were too remote from the barge and navigable
waters to support admiralty jurisdiction. The respondents
in Grubart (who, not surprisingly, were contesting the
dredging company’s resort to admiralty in an effort to
limit its liability) contended that damages must occur
closely in both space and time to a vessel’s tortious activ-
ity in order to permit a vessel owner to invoke admiralty
jurisdiction and that cause in fact was not enough. It
was this argument that the Supreme Court rejected:
     The demerits of this argument lie not only in its want
     of textual support for its nonremoteness rule, but in
     its disregard of a less stringent but familiar proximity
     condition tied to the language of the statute. The Act
     uses the phrase “caused by,” which more than one
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 71

    Court of Appeals has read as requiring what tort law
    has traditionally called “proximate causation.” This
    classic tort notion normally eliminates the bizarre,
    and its use should obviate not only the complication
    but even the need for further temporal or spatial
    limitations. . . .

115 S. Ct. at 1049-50 (citations omitted).
  Finally, we note that the facts alleged in Kilburn
and similar cases would readily permit a factfinder to
find but-for causation as we have framed it. As we have
discussed, a defendant’s conduct need not be the sole or
even primary cause of the plaintiff ’s injury in order to be
considered a cause in fact of that injury. Ante at 64-66.
Rather, it is sufficient if the defendant’s conduct is one
of the causes of the injury. In Kilburn, such a link could
readily be inferred from the facts alleged: Libyan agents
in Lebanon let it be known that Libya was interested in
purchasing an American hostage, and thereafter a hostage
was procured from Hizbollah and killed by a terrorist
group allegedly supported and directed by the Libyan
government

-30. Similarly in Rux, it
was alleged that Sudan had aided and abetted the Octo-
ber 2000 al-Qaeda attack on the U.S.S. Cole (which took
the lives of seventeen sailors) by, inter alia, allowing al-
Qaeda to use Sudan’s diplomatic pouch to ship explosives,
allowing al-Qaeda operatives to enter Sudan and train
terrorists there, and allowing the shipment of explosives
from Sudan to Yemen, where the bombing took 

. Although, as the Fourth Circuit recog-
nized, the allegations did not make clear how closely in
time Sudan’s alleged acts occurred in relation to the
bombing and did not otherwise “chart a direct and unbro-
ken factual line between Sudan’s actions and the bomb-
ing,” 

they nonetheless reasonably supported
an inference that Sudan’s support helped bring about the
bombings. See also 

, 113-
72               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

14 (finding jurisdiction under FSIA’s exception for state-
sponsored terrorism) (Sudan allegedly supplied shelter,
security, financial support, and business opportunities to
both al-Qaeda and Hizbollah during planning of August
1998 bombings of U.S. embassies in Nairobi and Dar es
Salaam); Weinstein v. Islamic Republic of Iran, 

, 19-22 (D.D.C. 2002) (concluding on entry of
default judgment under FSIA that Iran was a but-for cause
of suicide bombing perpetrated by Hamas, where, inter
alia, Iran had provided substantial funding to Hamas and
Iranian military instructors had trained Hamas terrorists
in use of explosives); Mousa v. Islamic Republic of Iran,

, 11 (D.D.C. 2001) (finding that Iran’s
provision of “massive material and technical support” to
Hamas, including financial aid and use of Iranian military
instructors to train Hamas terrorists in use of explosives,
firearms, and grenades, supported entry of default judg-
ment against Iran under FSIA for suicide bombing perpe-
trated by Hamas); Eisenfeld v. Islamic Republic of Iran,

, 8 (D.D.C. 2000) (same).
  In sum, Kilburn does not support the proposition that
a defendant can be held liable under section 2333 absent
proof that its conduct was a cause in fact of the plaintiff ’s
injury. At most, Kilburn counsels against a rigid and
unduly narrow view of factual causation. Our own under-
standing of causation, we believe, is not so narrow and
unyielding. It is sufficiently flexible to account for the
reality that a terrorist act may have many causes with-
out abandoning the longstanding tort requirement that
an act have some factual nexus with the plaintiff ’s injury
before it may be deemed a basis for liability.
  As we have noted, the district court, in granting sum-
mary judgment in favor of the plaintiffs and against
AMS/IAP on the question of liability, made no finding of
cause in fact. Instead, citing criteria we set out for
aiding and abetting, the court assumed that the Boims
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  73

need only show that AMP/IAP knew of Hamas’s illegal
activities, desired to help those activities succeed, and
engaged in some act of assisting Hamas. 

at 906, 916; see also 

The plaintiffs have identi-
fied no proof of causation, contending that aiding and
abetting and conspiracy theories of liability do not re-
quire such proof. That notion, as we have set forth above,
is mistaken. Some type of causal link between the defen-
dants’ conduct and the death of David Boim must be
shown, regardless of what theory of liability the plaintiffs
rely upon.
  The district court therefore erred in resolving liability
in favor of the Boims and against AM/IAP on summary
judgment. Absent a record that revealed no dispute of
material fact as to whether AMS/IAP’s actions in sup-
port of Hamas in some way caused David Boim’s death, the
Boims were not entitled to summary judgment on liability.
  The most appropriate step at this juncture is to remand
this case to the district court for reconsideration. We are
aware that AMS/IAP filed a cross-motion for summary
judgment based in part on the lack of proof that its alleged
conduct was a cause in fact of David Boim’s death. How-
ever, because the district court shared the plaintiffs’
misapprehension as to the necessity of such proof, we
believe the district court should revisit this question on
remand. Our remand order is without prejudice to
AMS/IAP (or for that matter, HLF or Salah) renewing
its motion for summary judgment on this element of the
plaintiffs’ case. If the Boims are unable to identify evidence
sufficient to permit a reasonable inference that AMS/IAP’s
conduct was a cause in fact of David Boim’s murder, then
AMS/IAP will be entitled to judgment in its favor. If the
court concludes that there is a material dispute of fact as
to the causal link between AMS/IAP’s conduct and the
murder of David Boim, then AMS/IAP will be entitled to a
jury trial on that question.
74              Nos. 05-1815, 05-1816, 05-1821 & 05-1822

  We note that neither AMS/IAP nor any of the other
appellants has challenged the amount of damages that
the jury awarded to the Boims. Therefore, if the district
court on remand concludes that the undisputed facts
establish a causal link between a defendant’s conduct
and David Boim’s murder, the court may reinstate the
judgment as to that defendant. If the court finds that the
evidence necessitates a trial as to cause in fact as to any
defendant, then the judgment may be reinstated against
any defendant whose conduct the jury determines to be
a cause in fact of David’s death.


                           IV.
                   Mohammad Salah
   The partial summary judgment entered against Salah is
flawed for the same reasons that we have discussed as to
AMS/IAP. Although there was a separate set of facts
regarding Salah’s links to Hamas (which Salah does not
contest for purposes of this appeal), the district court
relied on the same incomplete recitation of what would
be necessary to establish a defendant’s liability as an
aider and abettor. The court stated that Salah would be
liable for David Boim’s death so long as he knew of
Hamas’s terrorist activities, desired to help those activ-
ities succeed, and engaged in some act of helping. 

at 923. The court did not insist on any proof
of cause in fact or make any finding that Salah’s actions
in support of Hamas, and/or his participation in the
undefined “conspiracy that was Hamas,” 

had
any causal nexus with David Boim’s murder. See 

  The court’s statement that Boim I did not require a link
to David Boim’s death in particular, 

insofar as a direct link between Salah’s actions and the
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 75

killing of David Boim need not be shown. We have men-
tioned above ways in which indirect causation might be
proven. But Boim I certainly did not relieve the plain-
tiffs of establishing some form of causal link between a
defendant’s actions and David Boim’s murder.
  Salah was in Israeli custody in 1996 at the time of David
Boim’s murder and the plaintiffs have identified no
evidence that he gave any sort of meaningful support to
Hamas after January 1993 (when he was arrested), some
forty months prior to the murder. The district court
relied on conspiracy principles to say that Salah could be
liable for acts post-dating his active involvement in the
Hamas conspiracy so long as he did not renounce Hamas
and withdraw from the conspiracy prior to David’s killing.

  There are at least two problems with this rationale.
First, as we have discussed above, proof that Salah
conspired with others in support of Hamas’s terrorist
aims and activities does not render Salah per se liable
for all those injured by Hamas terrorists. Adcock v.

, 645 N.E.2d at 894. Second, the plaintiffs’
theory that Salah was a member of a Hamas-related
conspiracy is not adequately supported. The Boims did not
cite this theory as a possible basis for summary judg-
ment against Salah until they filed their consolidated
memorandum in opposition to Salah’s motion for sum-
mary judgment and in reply in support of their own motion
for summary judgment. R. 352 at 12-14. Even at that
juncture, the Boims did little beyond briefly mentioning
civil conspiracy principles; they did nothing to flesh out
what the conspiracy was, when Salah joined it, who it
was he conspired with, and so forth. See 

part,
the district court simply pronounced Hamas a conspir-
acy without any discussion of the evidence that would
support that pronouncement. 

at 924.
Merely mouthing the word “conspiracy” is not enough to
76              Nos. 05-1815, 05-1816, 05-1821 & 05-1822

render a defendant liable for the acts of a third party, and
certainly not on summary judgment.
  So the partial summary judgment against Salah on
liability must also be reversed. The evidentiary record
before the district court must be re-examined on remand.
Unless the plaintiffs can identify evidence that would
permit a reasonable factfinder to find that Salah’s ac-
tions on behalf of Hamas in some way caused or contrib-
uted to David Boim’s death, Salah will be entitled to
summary judgment.


                            V.
                Quranic Literacy Institute
  As we mentioned in our summary of the proceedings
on remand from Boim I, the Boims did not seek to resolve
QLI’s liability on summary judgment. Consequently, once
the district court had entered partial summary judgment
against HLF, AMS/IAP, and Salah, QLI was the sole
defendant facing trial on liability. After QLI’s requests
to postpone the trial were denied, QLI elected to attend
but not participate in the trial, doing nothing to challenge
the plaintiffs’ evidence or to present any evidence of its
own.
  QLI contends that the district court abused its discre-
tion in refusing to extend the trial date, but we reject
the notion that the trial court was obligated to give QLI
more time following the summary judgment ruling. The
trial court’s ruling on a continuance request is one that we
review for abuse of discretion. Research Sys. Corp. v.
IPSOS Publicite, 

, 919 (7th Cir. 2002). We
will reverse the denial of such a request only when we are
convinced the court below acted unreasonably. 

Ind. Pub. Serv. Co. v. Carbon County Coal Co., 

, 269 (7th Cir. 1986)). As we noted in Daniel J.
Hartwig Assocs., Inc. v. Kanner, 

, 1222-23
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  77

(7th Cir. 1990), the rare instances in which we have
found the refusal of a continuance to constitute an abuse
of discretion typically have involved an unexpected devel-
opment to which counsel could not be expected to adjust
without additional time. This was not such a situation.
Although the district court did not resolve the summary
judgment motions until three weeks before the trial was
to commence, the court had set the trial date some five
months earlier. Consequently, all of the parties, includ-
ing QLI, had ample time to prepare for trial, and each
of them was obliged to do so on the assumption that
summary judgment would be denied. It is true that QLI
suddenly found itself alone at the defense table, but this
scenario was neither unforeseeable nor even unusual: pre-
trial rulings, settlements, and guilty pleas frequently
cause co-defendants to drop out of a case at the last
minute. Counsel for any defendant in a multi-defendant
case, criminal or civil, must anticipate the possibility
that his client may be the only defendant left when the
trial date arrives and plan accordingly. Moreover, if an
unexpected turn of events has deprived counsel of a
reasonable opportunity to prepare for trial, he must make
an appropriate record of how the lack of additional time
has concretely harmed his client. See, e.g., United States v.
Rinaldi, 

, 928-29 (7th Cir. 2006) (defendant
challenging the denial of continuance must demonstrate
prejudice), cert. denied, 

(U.S. Dec. 3,
2007). Generic complaints of surprise and unfairness
will not suffice in this regard.
  Although we find no abuse of discretion in the district
court’s decision to proceed with the trial as scheduled, we
conclude that the court did err in another respect that
requires us to vacate the judgment against QLI and to
remand for further proceedings. As we have noted above,
in advance of the trial and without any prior warning to
QLI, the court deemed QLI bound by the court’s finding
on summary judgment against the other defendants that
78              Nos. 05-1815, 05-1816, 05-1821 & 05-1822

Hamas was responsible for David Boim’s murder. See
R. 659, Mem. Op. at 8. Consistent with that determination,
the court advised the jury in its opening instructions that
“[t]he terrorist group Hamas was responsible for the
murder,” R. 814-1 at 107, and the Boims’ counsel relied on
that finding in his opening and closing statements, 

R. 814-4 at 503.
  Although a district court is not precluded from sua
sponte granting summary judgment against a party, we
have repeatedly warned that the court may not do so
without first giving that party notice and the opportunity
to respond. See Pourghoraishi v. Flying J, Inc., 

, 765 (7th Cir. 2006) (coll. cases). QLI was deprived
of that opportunity.
   For that reason, we vacate the judgment against QLI
pending further proceedings in the district court. It is
possible that the court’s error as to QLI may prove to
have been harmless, but that is a matter to be sorted out
on remand. Our decision to vacate the judgment against
QLI is without prejudice to the Boims seeking sum-
mary judgment on the question of Hamas’s responsibility
for David Boim’s murder, provided that QLI is given the
opportunity to respond of which it was deprived in the
first instance. If the Boims do move for summary judg-
ment on this issue and the district court, on consideration
of the evidence marshaled by the parties, concludes that
there is no material dispute of fact as to Hamas’s culp-
ability for David Boim’s murder, then the court properly
may enter summary judgment in favor of the Boims on
that issue. Given that QLI has otherwise shown no other
defect in the trial or resulting verdict and damages
award against it, the district court at that point should
reinstate the judgment in favor of the Boims and against
QLI. If, on the other hand, the court finds there to be a
material dispute of fact as to Hamas’s responsibility
for the murder, then QLI will be entitled to a trial limited
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  79

to that issue alone. A jury finding that Hamas was respon-
sible for David Boim’s death would, again, call for rein-
statement of the judgment against QLI. A jury finding
to the contrary would, of course, compel the entry of
judgment in favor of QLI.


                            VI.
  We must briefly address the matter of a fees order
entered against the defendants and/or their lawyers. When
the Boims filed this lawsuit, the defendants not only
moved to dismiss the complaint, but they also sought
sanctions pursuant to Federal Rule of Civil Procedure 11.
In a single sentence at the conclusion of its opinion
denying the motions to dismiss and for sanctions, the
district judge awarded the plaintiffs the fees and costs they
had incurred in responding to the defendants’ Rule 11
motions. Boim v. Quranic Literacy Inst., 

, 1021 (N.D. Ill. 2001). However, the court did not
explain the basis for the fee award nor did it specify
who, as between the defendants and their lawyers, was
to pay the Boims their fees and costs. When the magistrate
judge later ascertained, on review of the Boims’ fee
petition, the amount to which they were entitled, he
clarified that the court had awarded the Boims their
fees and expenses pursuant to Rule 11(c)(1)(A), which
provides that “[i]f warranted, the court may award to the
party prevailing on the [Rule 11] motion the reasonable
expenses and attorney’s fees incurred in presenting or
opposing the motion.” R. 184, Mem. Op. at 8. The magis-
trate judge also held that the defendants and their at-
torneys were to bear joint and several liability for the
award. 

But the rationale for both the award
and the decision to make the defendants as well as their
lawyers responsible for paying it remained somewhat
murky. The magistrate judge rejected the suggestion
80               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

that the defendants’ attorneys alone should be liable,
reasoning that the Boims had been awarded their fees
and costs as the parties who prevailed on the Rule 11
motion rather than as a sanction against the defendants
(and/or their lawyers) for filing a groundless Rule 11
motion. R. 184, Mem. Op. at 5-6, 20. Elsewhere in the
same opinion, however, the magistrate judge stated that
the decision to award the Boims the fees and expenses they
had incurred in successfully opposing the defendants’ Rule
11 motion “is specifically tailored to redress the wrongful
conduct and is specifically authorized by Rule 11.” 

(emphasis added).
  On this record, the award of fees and expenses was
defective, as the Boims all but concede. See Boim Br. at 59.
None of the court’s opinions and orders on this subject
make clear on what ground the district court believed
that the award of fees and expenses was warranted nor
why, in light of that rationale, the defendants and their
counsel were to be jointly and severally liable for the
award. To the extent this was meant to be a fee-shifting
award to the prevailing parties, it is not clear why liability
was imposed on the defendants’ attorneys. On the other
hand, to the extent it was intended to be a sanction for
“wrongful conduct,” it is not clear why the defendants
themselves were also held liable for the award. It may
well be that either rationale would have supported the
district court’s discretionary decision to award the Boims
their fees and costs. However, the reasonable exercise of
the district court’s discretion requires the court to articu-
late why such an award is warranted, why it is the
defendants and/or their attorneys who are liable for the
award, and, to the extent liability is imposed on the
attorneys, who exactly among them is liable. See Katz v.
Household Int’l, Inc., 

, 672-73 (7th Cir. 1994);
Milwaukee Concrete Studios, Ltd. v. Fjeld Mfg. Co., 

, 451 n.18 (7th Cir. 1993). Given the lack of clarity
in the district court’s opinions, the fee award can have
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 81

no effect against any of the defendants or their counsel.
The award of fees and expenses is therefore vacated.


                           VII.
  Before concluding our opinion, we find it necessary to say
a few words about potential hearsay problems presented
by certain aspects of the Boims’ case. In attempting to
establish the defendants’ links to terrorism, the Boims
have relied heavily on out-of-court statements like the
Watson memorandum, the contents of which are offered
for the truth of the matters asserted therein. The district
court relied on these documents in its summary judg-
ment rulings, satisfied that the statements were fully
admissible. Although portions of these statements may be
admissible for limited purposes, the proscription against
hearsay may render at least parts of these statements
inadmissible for their truth. We direct the court on remand
to undertake a careful evaluation of such statements to
ensure that the Federal Rules of Evidence render them
admissible for the purposes cited by the Boims. To aid
in that evaluation, we note the potential problems posed
by certain of the statements on which the Boims have
relied.
  Watson Memorandum. As we have noted, this memo-
randum was prepared by the Assistant Director of the
FBI’s Counterterrorism Division to document his recom-
mendation that HLF be designated a terrorist organiza-
tion by the Treasury Department’s OFAC. The memoran-
dum recounts at length the evidence that led Watson and
his colleagues to conclude that HLF acted for or on behalf
of Hamas. It primarily details the activities of HLF,
naturally, but it also mentions the activities of Salah and
representatives of AMS/IAP and makes a case for the
notion that the activities of all of these defendants fur-
thered the terrorist activities of Hamas. As the Watson
82              Nos. 05-1815, 05-1816, 05-1821 & 05-1822

memorandum set forth the basis for the government’s
decision to designate HLF an SDT, it was part of the
administrative record before the court in the Ashcroft
litigation.
  We may assume, as the district court held, that the
Watson memorandum, insofar as it embodies the results of
the government’s investigation into HLF’s ties to Hamas,
is admissible in this proceeding pursuant to Federal Rule
of Evidence 803(8)(B) as a public report setting forth
“matters observed pursuant to duty imposed by law as to
which matters there was a duty to report.” 

at 915 (citing United States v. Sutton, 

, 797
(7th Cir. 2003), and Beech Aircraft Corp. v. Rainey, 

, 170, 109 Ct. 439, 450 (1988)). The foundation
may leave a bit to be desired, as the Boims, rather than
submitting an affidavit from Watson or any other FBI
employee who participated in the preparation of the
memorandum, submitted an affidavit from another
government agent averring simply that the copy of Wat-
son’s memorandum tendered therewith was an accurate
copy, that it had been prepared in the course of the FBI’s
regularly conducted activities, and that the memoran-
dum was part of the administrative record in Ashcroft. R.
265-1 Ex. 12, Decl. of Samuel A. Simon, Jr. Nothing in the
affidavit describes the circumstances under which Watson
prepared the memorandum, though perhaps the memo-
randum speaks for itself in that regard.
  More troubling, however, is the fact that the Watson
memorandum repeats a number of statements from
informants and other individuals (in some instances
unnamed) who, in contrast to Watson, were under no
official duty to report the matters addressed in their
statements. Rule 803(8) deems a public report admissible
based on the notion that its official author knows what he
is talking about and will state the facts accurately: “[i]n
effect, it is presumed that public officials perform their
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 83

tasks carefully and fairly, without bias or corruption, and
this notion finds support in the scrutiny and risk of
exposure that surround most government functions.” 4
Christopher B. Mueller and Laird C. Kirkpatrick, FEDERAL
EVIDENCE § 8:86, at 770-71 (3d ed. 2007). That presump-
tion does not attach to the statements of third parties
who themselves bear no public duty to report what they
observe. 

at 783-84. Unless such statements have
an independent basis for admission under the Rules, they
must be excluded. See United States v. Patrick, 

, 22 (1st Cir. 2001); United States v. Ortiz, 

,
632 (8th Cir. 1997); United States v. Mackey, 

,
28-29 (1st Cir. 1997); Miller v. Field, 

, 1091
(6th Cir. 1994); Parsons v. Honeywell, Inc., 

,
907 (2d Cir. 1991); United States v. Pazsint, 

,
424-25 (9th Cir. 1983); see generally Fed. R. Evid. 805;
Halloway v. Milwaukee County, 

, 825 (7th Cir.
1999). Accordingly, the district court must evaluate any
and all statements repeated within the Watson memoran-
dum and relied on by the Boims to ensure that each is
properly admissible.
  Websites attributed to Hamas. To show that the murder
of David Boim was the work of Hamas, the Boims sub-
mitted the declaration of Dr. Ruven Paz, a former member
of the Israeli security community who describes himself
as an expert in terrorism and counter-terrorism, Islamic
movements in the Arab and Islamic world, Palestinian
Islamic groups, and Palestinian society and politics. Based
on his review of various exhibits submitted in connection
with this case, his independent research, and his knowl-
edge of how Hamas and other Islamic terror organiza-
tions operate, Paz concluded that Hinawi and Al-Sharif
had murdered David Boim, that Hinawi and Al-Sharif
were members of Hamas at the time they killed Boim, and
that Hamas itself had accepted responsibility for the
murder. R. 352 Ex. C ¶ 3.
84              Nos. 05-1815, 05-1816, 05-1821 & 05-1822

  We note that when it found on summary judgment that
Hamas was responsible for the murder of David Boim, the
district court did not rely on Paz’s declaration. See 

at 899. Instead, the court relied on the follow-
ing: (1) evidence relating to Hinawi’s conviction and
sentence before a Palestinian Authority tribunal for his
complicity in the murder; (2) a 1997 press release issued
by the Government of Israel’s Press Office indicating that
Hinawi was a member of Hamas, that Hamas was re-
sponsible for the attack in which David Boim was killed,
and that Israel was seeking Hinawi’s extradition for his
involvement with the murder; (3) a 1997 Jerusalem Post
news article indicating that Al-Sharif was a Hamas
activist; (4) Stanley Boim’s deposition testimony that, in
the wake of his son’s death, the media reported that
Hamas had taken responsibility for the attack and it
was public knowledge that Hamas was behind the attack;
and (5) a default judgment had been entered against
Hinawi, “which means, as a practical matter, that the
Court accepts as true the well-pled allegations in the
Complaint about him—that is, that he is a Hamas terror-
ist and one of two Hamas agents who carried out the
attack on David Boim.” 

this evidence is prob-
lematic in one way or another. The default judgment
against Hinawi cannot bind the other defendants, who
did not default and consequently have the right to insist
on proof that Hamas, Hinawi, and Al-Sharif were re-
sponsible for the murder. The Mary, 13 U.S. (9 Cranch)
126, 143 (1815) (Marshall, C.J.); Pfanenstiel Architects,
Inc. v. Chouteau Petroleum Co., 

, 432-33 (8th
Cir. 1992); Vale v. Bonnett, 

, 337 (D.C. Cir.
1951); see also United States v. Borchardt, 

,
260 (7th Cir. 1972); Hawkeye-Security Ins. Co. v. Schulte,

, 177 (7th Cir. 1962). The press release,
newspaper article, and Mr. Boim’s recollection of media
reports, all of them offered for their truth, necessarily
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 85

constitute hearsay. Fed. R. Evid. 801(c); e.g., Eisenstadt v.
Centel Corp., 

, 744-45 (7th Cir. 1997); Horta
v. Sullivan, 

, 8-9 (1st Cir. 1993); Leonard v. Dixie
Well Serv. & Supply, Inc., 

, 295 (5th Cir.
1987). The evidence relating to Hinawi’s conviction and
sentence is problematic for the reasons we discuss sepa-
rately below. Infra at 87-88. Recognizing these problems,
the Boims on appeal have instead relied on Paz’s declara-
tion to supply the requisite proof of Hamas’s responsibil-
ity for David Boim’s murder. But Paz’s declaration has
its own problems, which we now discuss.
  In concluding that Al-Sharif was a member of Hamas
and that Hamas had taken responsibility for the murder,
Paz relied heavily on information set forth on certain
websites that he attributed to Hamas. Paz explained that
Hamas publicly acknowledges its terrorist acts and
identifies its “martyrs” as a way to promote itself and to
recruit new members. According to Paz, internet web-
sites are a means by which Hamas disseminates such
information. Paz’s declaration asserts that scholars,
journalists, and law enforcement routinely rely on the
website postings of terrorist organizations for what they
reveal about the activities of those organizations. R. 352
Ex. C ¶ 4(f ). Looking to certain websites whose content
he asserts is controlled by Hamas, Paz found statements
indicating that Hamas had taken responsibility for the
Beit-El attack that took David Boim’s life and that Al-
Sharif was one of the participants in this attack. Paz
repeated these statements in his declaration. 

5(h), 15; see also ¶ 5(d) (Palestinian Authority website).
  Paz’s reliance upon, and his recounting of, internet
website postings demand a certain caution in evaluating
his prospective testimony. Such postings would not be
admissible into evidence for their truth absent proper
authentication, and this would typically require some
86              Nos. 05-1815, 05-1816, 05-1821 & 05-1822

type of proof that the postings were actually made by the
individual or organization to which they are being
attributed—in this case, Hamas—as opposed to others
with access to the website. United States v. Jackson, 

, 638 (7th Cir. 2000); see also Lorraine v. Markel
Am. Ins. Co., 

, 555 (D. Md. 2007). Paz’s
declaration identifies the websites from which he quotes
as ones controlled by Hamas, but it does not describe the
basis for his conclusion, and consequently his declara-
tion does not permit any independent assessment of the
purported links between these sites and Hamas and the
source of the postings that he recounts. Of course, the
rules of evidence do not limit what type of information
an expert may rely upon in reaching his opinion; even if
that information would not otherwise be admissible in a
court proceeding, an expert witness may rely upon it so
long as it is the type of information on which others in
the field reasonably rely. Fed. R. Evid. 703; e.g., Britz v.
Cowan, 

, 1102-03 (7th Cir. 1999); Peabody
Coal Co. v. Director, Office of Workers’ Compensation
Programs, 

, 1128 (7th Cir. 1999). Indeed,
Rule 703 now expressly permits the expert to disclose
such information to the jury, provided the court is satis-
fied that its helpfulness in evaluating the expert’s opinion
substantially outweighs its prejudicial effect. See also
Nachtsheim v. Beech Aircraft Corp., 

, 1270-
71 (7th Cir. 1988). Nonetheless, a judge must take care
that the expert is not being used as a vehicle for circum-
venting the rule against hearsay. In re James Wilson
Assocs., 

, 173 (7th Cir. 1992). Where, as here,
the expert appears to be relying to a great extent on web
postings to establish a particular fact, and where as a
result the factfinder would be unable to evaluate the
soundness of his conclusion without hearing the evid-
ence he relied on, we believe the expert must lay out, in
greater detail than Paz did, the basis for his conclusion
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  87

that these websites are in fact controlled by Hamas
and that the postings he cites can reasonably and reliably
be attributed to Hamas.
  Documents related to Hinawi conviction. Paz’s conclu-
sion that Hinawi was responsible for the murder of David
Boim was based in significant part on two documents
related to Hinawi’s trial and sentencing by a Palestinian
Authority tribunal: (1) a set of notes prepared by a U.S.
foreign service officer who attended Hinawi’s trial in
February 1998, and (2) an Arabic-language document
purporting to be the written verdict reflecting Hinawi’s
conviction and sentence. R. 352 Ex. C ¶¶ 5(b), 5(c). The
foreign service officer’s notes indicate that Hinawi was
tried in open proceedings for participating in a terrorist act
and acting as an accomplice in the killing of David Boim,
that he was afforded counsel by the tribunal, that
he contended in his defense that his friend Al-Sharif
was the gunman and that Al-Sharif exploited his friend-
ship with Hinawi by asking him to drive the car, and that
he was convicted on both charges and sentenced to ten
years. 

Paz’s declaration accepts these docu-
ments as genuine and relies principally on them for the
proposition that Hinawi participated in David Boim’s
murder and was convicted by the Palestinian Authority
tribunal for the same.
  Once again we have concerns about whether the record
as it stands lays an appropriate foundation for these
documents. We can assume that the report of a U.S.
government official who, in the course of his duties,
observed a trial in a foreign tribunal may constitute
proof of what occurred in that proceeding. We also have
no doubt that a properly authenticated, official report of
a judgment issued by a foreign tribunal constitutes
adequate proof of that judgment. The difficulty we have
with Paz’s reliance upon these documents is that they
88               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

have not been properly authenticated. The foreign service
officer’s notes are unsigned and reveal nothing about
the circumstances under which they were prepared. 

Attachment D; see also R. 300 Ex. 6. The document
that we are told is the official verdict is entirely in Arabic,
is not readily evident as an official document, and is
unaccompanied by an English translation. R. 463 Ex. C,
Attachment E. There is a single cover note, on the letter-
head of the U.S. Consulate General in Jerusalem, which
accompanies these documents and explains what they
are. 

R. 300 Ex. 6. But the cover note
itself is unsigned and does not even identify its author.
This is unacceptable. We assume that Paz knows more
about these documents and that he would not have relied
upon them if he had doubts about their authenticity. But
given that Paz relies almost exclusively on these docu-
ments as proof of Hinawi’s complicity in Boim’s murder,
and because a factfinder could not evaluate the sound-
ness of Paz’s conclusion without knowing what these
documents say, an appropriate foundation must be laid
for these documents before the conclusions that Paz has
drawn from these documents may be admitted.
  There are other out-of-court statements that the Boims
have relied upon directly or as the basis for witness
testimony. We recognize that a case of this nature pre-
sents extraordinary challenges for a plaintiff and that
resort to out-of-court statements will be necessary to show
how international terrorist organizations and their accom-
plices operate. However, the Federal Rules of Evidence
continue to govern, and the hearsay issues presented by
such evidence demand careful attention and resolution.


                            VIII.
  Our dissenting colleague parts ways with us in two
respects. He believes that the undisputed facts show
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  89

conclusively that Hamas was responsible for the murder
of David Boim and that, contrary to our impression, the
district court both required proof of and found that the acts
of defendants AMS/IAP and Salah caused David’s death.
  With respect to Hamas’s culpability for the murder, our
point is not that an expert like Dr. Paz is foreclosed from
relying on websites controlled by Hamas and/or Arab-
language documents like Hinawi’s judgment of conviction
for information about who killed David Boim and whether
they did so on Hamas’s behalf. Our point is that when the
plaintiffs rely solely on expert opinion to establish such
facts, as the Boims have on appeal, the expert’s declara-
tion must reveal enough about his sources of information
to permit the court to assess the reliability of his conclu-
sions. For an expert to say simply that a given website
is known to be a Hamas website, for example, such that
the statements found on that website may be attributed
to Hamas, without explaining how or why the site is
known as a Hamas website, does not permit a court to
exercise its gatekeeping function under Federal Rule of
Evidence 702 to ensure that the conclusions the expert has
drawn from that website are sufficiently reliable. See, e.g.,
Naeem v. McKesson Drug. Co., 

, 607-08 (7th
Cir. 2006). We do not doubt that the plaintiffs can fill
in these and the other types of foundational gaps we
have discussed, but unless and until they do, we cannot
sustain the district court’s summary determination that
Hamas was responsible for David Boim’s death simply
because we think it likely to be true. The fact that the
defendants have not offered contrary proof, post at 96, is
beside the point. It is the Boims, not the defendants, who
bear the burden of proof, and the defendants have no
obligation to rebut facts that the plaintiffs have yet to
establish with admissible evidence. See Adickes v. S.H.
Kress & Co., 

, 158, 160, 

, 1609,
1610 (1970); Am. Nurses’ Ass’n v. Ill., 

, 729
(7th Cir. 1986).
90               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

   The notion that the district court both considered and
found causation in fact, post at 98-102, simply cannot be
squared with the record. One may search the district
court’s summary judgment decision from beginning to
end and locate no such finding. Indeed, although our
colleague believes that the court found causation, he cites
no portion of the district court’s opinion making such a
finding. The Boims themselves have not ascribed any
such finding to the district court; they have instead
argued, incorrectly, that cause in fact need not be shown.
It is true, as Judge Evans points out, that the district court
looked for and identified evidence that the defendants had
engaged in some act of helping Hamas. Post at 100. This is
one of the elements of aiding and abetting that we dis-
cussed in Boim 

, 1023. But proof that a
defendant helped Hamas, with knowledge of its terrorist
activities and the intent that those activities succeed, is
not the same thing as proof that the defendant’s aid
actually caused a particular injury. Causation remains a
distinct element of proof that must be satisfied if the
defendant is to be held liable for aiding and abetting
Hamas’s tortious acts. See RESTATEMENT (SECOND) § 876
comment d (“If the encouragement or assistance is a
substantial factor in causing the resulting tort, the one
giving it is himself a tortfeasor and is responsible for the
consequences of the other’s act.”) (emphasis ours), cited in
Montgomery v. Aetna Plywood, Inc., 

, 413 n.6
(7th Cir. 2000). Otherwise, we would be saying that one
who aids Hamas with the requisite knowledge and
intent—whether by donating money to a Hamas-controlled
school or by hosting a Hamas speaker at a conference, see
post at 101—is automatically liable for any and all of
Hamas’s later terrorist acts, regardless of whether the aid
played any role whatsoever in bringing those acts about. It
may be that plaintiffs can demonstrate a causal link
between the defendants’ acts and the murder of David
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  91

Boim, but they have yet to identify such proof and the
district court has yet to consider it.


                             IX.
  The district court’s task at this juncture is to apply the
legal standards that we have discussed here to the parts of
the case in which summary judgment was granted. Our
key point here has been that knowledge, intent, and cause
in fact must be proven, not assumed, with respect to
each defendant.
  Knowledge and intent may seem obvious, given the
public face of a group like Hamas, but as we have ex-
plained, plaintiffs must nevertheless prove, for each
defendant, knowledge and intent that their financial
contributions (or other aid) to Hamas would support—
directly or indirectly—Hamas’s terrorist activities. See
supra at 37-44; Boim 

, 1014-15,
1021-24. An assumption that such proof will be easy is
no substitute for the real thing. As we emphasized in
Boim I, aiding and abetting liability can be imposed, in
ordinary tort cases just as in this one, only when the
alleged aider or abettor knows what it is helping and
intends to help bring about the tortious result. 

21, 1023; see also 

As Boim I went on to ex-
plain, it is proof of knowledge and intent that serves to
distinguish the culpable tortfeasor from a party that is
merely associating with and expressing its support for
Hamas—conduct which, however repugnant, is protected
by the First Amendment. 

However tempt-
ing it might be to skip past these requirements where
a notorious organization like Hamas is concerned, we
cannot do so without setting a precedent that will apply
to an untold number of cases in the future.
 With respect to cause in fact, we began with the statute,
which requires that a plaintiff be “injured . . . by reason of
92               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

an act of international terrorism.” 18 U.S.C. § 2333(a). The
only way to read this is as a requirement of proof of cause
in fact. See supra at 59. Our basic point here has been
that the statute does not demand an outright admission
of responsibility for David Boim’s murder (assuming
that the terrorist act in question is that murder) or specific
tracing of donations to Hamas or to the assassins (assum-
ing that it is enough to show that the defendants aided and
abetted a terrorist organization). Circumstantial evidence
will also suffice. See supra at 63-64, 65-66. So far, however,
that step has been skipped. On remand, the plaintiffs must
demonstrate how (or show that there are no material
issues of fact regarding how) the monetary donations from
the defendant organizations supported the activities that
grew to include the acts of terrorism. One way to do this,
we suggested, would be to show that donations went into
a central pool of funds that provided weapons and training
for Hamas agents. Supra at 62, 63-64. Plaintiffs would
need to show that Hinawi and Al-Sharif were affiliated
with Hamas, but they would not otherwise have to show
that funds from a particular defendant organization made
their way to those two particular Hamas operatives.
Another avenue would be to demonstrate that money from
the defendant organizations went to Hamas for its charita-
ble endeavors, and thereby freed up funds that Hamas
could use for terrorist activities during the time period
when David Boim was killed. Supra at 64-65. These
examples do not exhaust the possibilities. A comparable
showing will, of course, have to be made as to defendant
Salah as well. See supra at 63, 74-76.
  The district court’s error was to assume that only
proximate causation needed to be proven. And it is indeed
necessary in order to ensure that defendants are not held
liable for remote risks of misuse of their funds. It is not,
however a substitute for cause in fact. Supra at 60-61,
65. Proof of cause in fact (which may in the end be
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                93

straightforward) and proof that defendants knew and
intended to further Hamas’s terrorist agenda (which may
be less so) will follow the tort model that we found in
Boim I that Congress intended to 

-
12, 1021-21; supra at 56-59. It will also ensure that
liability under this statute will be imposed only through
procedures that respect the rule of law. Arguments that
proof of knowledge, intent, or cause in fact are too
onerous in the context of terrorism are properly ad-
dressed to Congress, not us; we could not relieve the
plaintiffs of any of these requirements without defying
the manifest intent of Congress to incorporate tradi-
tional tort principles into section 2333.
  Belief, assumption, and speculation are no substitutes
for evidence in a court of law. However the plaintiffs
might establish a line of proof connecting the defendants
with the murder of David Boim, the law demands that they
demonstrate such a nexus before any defendant may be
held liable for David’s death. We must resist the tempta-
tion to gloss over error, admit spurious evidence, and
assume facts not adequately proved simply to side with the
face of innocence and against the face of terrorism. Our
endeavor to adhere to the dictates of law that this great
nation has embodied since its founding must persevere, no
matter how great our desire to hold someone accountable
for the unspeakably evil acts that ended David Boim’s life
and created a lifetime of grief not only for the Boims but
also for every other family scarred by terrorism.


                            X.
  For the foregoing reasons, we VACATE the judgments
entered against defendants-appellants HLF, AMS/IAP,
Salah, and QLI and REMAND for further proceedings
consistent with this opinion. The parties shall bear their
own costs of appeal. Circuit Rule 36 shall apply on remand.
94              Nos. 05-1815, 05-1816, 05-1821 & 05-1822

  EVANS, Circuit Judge, concurring in part and dissenting
in part. My review of this case causes me to conclude,
as did Judge Keys, that the undisputed facts show that
Hamas and its agents were responsible for the murder
of David Boim. Furthermore, I cannot conclude that the
judge failed to require a causal link between the defen-
dants and the terrorist attack. For those reasons, I re-
spectfully dissent, except as to the reversal of the judg-
ment against the Holy Land Foundation. Given that the
reader is probably suffering fatigue at this point, I will
be brief.
  As we made quite clear in Boim I, Congress intended
for liability under § 2333 to attach “not only to the per-
sons who committed terrorist acts, but to all those in-
dividuals and organizations along the causal chain of
terrorism.” That was the basis for our conclusion that,
under the statute, liability attached to those who aided
and abetted terrorist acts.
  But exactly what that means is the problem. As the
majority correctly states, it is “both a fair inference—and
undisputed—that the murder of David Boim constitutes
an act of international terrorism” and that he and his
parents suffered injury. The majority also says that the
individuals who killed him and Hamas (if the murder
was committed “at its behest or with its support”) would
be liable to the Boims. But, the majority says,
     what has been vigorously disputed from the inception
     of this litigation is whether and under what circum-
     stances persons and groups who allegedly have pro-
     vided money and other support to Hamas (directly and
     indirectly) may also be liable for David’s murder.
Clearly, Boim I settles the question of “whether”; the
problem arises on the question “under what circum-
stances.”
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  95

   The majority says that in a “profound misreading” of
Boim I, the district court (and the Boims) said that proof
of cause-in-fact was not necessary but rather that proxi-
mate cause (i.e., foreseeability) was sufficient to estab-
lish liability. I do not agree that the district court failed
to consider causation. I’ll explain in a moment, but first,
a slight detour.
  The immediate cause-in-fact of the injury here was
that two men gunned David down in what can only be
considered a terrorist act. My first departure from the
majority is in its apparent conclusion that the Boims
failed to show that the two gunmen—Al-Sharif and
Hinawi—and Hamas were in fact responsible for the
murder, as AMS and IAP concede. I disagree with the
majority’s rejection of the expert opinion of Dr. Ruven
Paz and the other evidence on which the district court
relied in concluding that Hamas was, in fact, responsible
for a murder it publicly took responsibility for. Dr. Paz is
a former member of the Israeli security community
who is an expert in terrorism in the Arab world and is
fluent in Arabic. In reaching his conclusions, he analyzed
many sources of data, including Web sites controlled by
Hamas and documents related to Hinawi’s trial and
sentencing for Boim’s murder. It seems particularly absurd
for us to reject, as an underpinning for an expert opinion,
what he believes to be the official verdict against Hinawi
in this matter. That it is written in Arabic is not at all
surprising to me. As to the use of Web sites, Dr. Paz
explains that
    Web sites of Islamic movements and terrorist organiza-
    tions have long been accepted as important sources of
    information for scholars in this field, as well as
    for intelligence organizations and the press. The
    terrorist organizations rely on web sites to deliver
    their messages to their adherents and the general
    public. The United States Institute for Peace, a non-
96               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

     partisan federal institution created by Congress, has
     recently published an extensive report on the use of
     the internet by terrorists.
Dr. Paz attaches the report.
  Furthermore, while defendants pick at the evidence the
Boims have presented of Hamas involvement in David’s
murder, no defendant has produced any evidence which
disputes Hamas’s involvement. Looking at the issue
de novo, I conclude—as did the district court—that the
gunmen (Hinawi and Al-Sharif) and Hamas were the
direct cause of the injury to the Boims.
  But QLI argues that the finding that Hamas is respon-
sible cannot be applied to it because it did not have a
chance to litigate the issue. That is nonsense. QLI moved
for summary judgment. In response, the Boims sub-
mitted a statement of facts, in which they produced
evidence that Hamas was responsible for the murder. QLI
could have offered evidence in response. Furthermore, at
trial (when the judge instructed the jury that Hamas
had been found responsible for the murder), QLI, who
declined to participate in the trial because the judge did
not grant a continuance, obviously did not object to the
instruction. Therefore, the issue is waived. QLI cannot
escape its waiver because it refused to participate in
the trial. Such behavior does not relieve one from the
ordinary requirements of litigation.
  I will now return to my main point and what the major-
ity seems most concerned about—that is, what needs to
be proven to establish that in fact the defendants before
us aided the terrorists. The majority refers to this re-
quirement variously as cause-in-fact, direct cause, factual
cause, causal chain, and causal link. No one would seri-
ously dispute that there must be a causal link between
the defendants and the terrorist act. A person or entity
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                  97

knowingly giving money to another terrorist group is not
responsible for a murder committed by agents of Hamas.
  But just what does “causal link” mean in this context,
and how must one prove that the link exists between the
defendants and Hamas? The majority wisely declines to
set up an absurd requirement that the money given to
Hamas by the defendants must be traced directly to, say,
purchasing the gun used in the attack. Money, the major-
ity recognizes, is fungible. At times, though, it seems
that the majority is requiring a pretty clear trail leading
from a defendant to the specific act which caused David’s
death. For instance, the majority says that what “is
strikingly absent from the district court’s analysis is
any consideration of a causal link between the assistance
that the court found AMS/IAP to have given Hamas
and the murder of David Boim.” The majority also says
that “there must be proof that the defendant aided and
abetted [Hamas] in the commission of tortious acts
that have some demonstrable link with David Boim’s
death.” But then there is the statement that “[n]othing
in Boim I demands that the plaintiffs establish a direct
link between the defendants’ donations (or other con-
duct) and David Boim’s murder . . . .”
  The majority’s bottom line, with which I do not disagree,
assuming I read it correctly, seems to be that what must
be shown is that the defendant established a funding
network or provided “general support” for terrorist activi-
ties; if that is established, then the fact finder could infer
that establishing the network was a cause of Hamas
terrorism. That is especially true if the funding was
within a reasonable time of the terrorist act and if it
was significant. In the words of the majority,
    if an individual or organization established a fund-
    ing network in the United States designed to pro-
    vide ongoing financial support for Hamas’s terrorist
98               Nos. 05-1815, 05-1816, 05-1821 & 05-1822

     activities, a factfinder might reasonably infer that the
     act of establishing that network was a cause of ensuing
     acts of Hamas terrorism, even if no line could be
     drawn linking a particular dollar raised to a particular
     terrorist act.
Further,
     Terrorist acts that follow within a reasonable time
     the donations and other support provided by a defen-
     dant to the perpetrators of those acts could be deemed
     to have been caused by those acts; and the more
     significant the support provided by a defendant, the
     more readily one might infer that support was a cause
     of later terrorist acts.
As an aside, two minor points: The reference to signifi-
cance seems strange in light of other statements that
even small contributions are sufficient. And there would
seem to be no problem with timing in this case.
  Where I part company with the majority is that I see
nothing in the explanation of how to show a causal link
that adds in any realistic sense to what Judge Keys
required. I cannot see that he failed to consider whether
there was a causal link. The statement that prompted
the majority to believe that the court appears to have
said that no such causal link was required is the following:
     The Seventh Circuit did not say that, to impose liabil-
     ity under § 2333, the Boims have to link Mr. Salah or
     any of the other defendants specifically to the attack
     that killed David Boim; rather, the court held that, to
     impose liability for aiding and abetting—that is,
     providing material support to—a terrorist organiza-
     tion, the Boims need only show that the defendants
     knew of Hamas’ illegal activities, that they desired to
     help those activities succeed, and that they engaged in
     some act of helping. . . . The evidence shows that all
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                 99

    three are true with respect to Mr. Salah and no rea-
    sonable jury could find otherwise.
Boim v. Quranic Literacy Inst., 

, 923
(N.D. Ill. 2004).
  As I read the first part of this statement, the judge
is saying there is no need for a direct link from Salah’s
activities to the specific attack that killed David Boim. But
how is that different from what the majority says? And
in fact the majority says that what Judge Keys said was
not wrong:
      Nothing in Boim I demands that the plaintiffs
    establish a direct link between the defendants’ dona-
    tions (or other conduct) and David Boim’s mur-
    der—that they funded in particular the terrorists who
    killed David Boim, for example . . . . In that respect,
    the district court was no doubt correct when it said
    that the Boims need not link the defendants specifi-
    cally to the attack on David Boim.
Later, the majority reiterates that the judge was correct
that a “direct link between Salah’s actions and the killing
of David Boim need not be shown.” But, the majority
continues, indirect causation is required and “Boim I
certainly did not relieve the plaintiffs of establishing
some form of causal link between a defendant’s actions
and David Boim’s murder.”
   As to the causal link, it seems to me that there is,
at best, only a semantic difference between what the
majority requires and what Judge Keys spent pages and
pages examining. To reiterate, the majority says that
what is required is, for instance, a funding network
providing financial support of Hamas’s terrorist activ-
ities, or other “general support” from which one can infer
that the network was a cause of the acts of terrorism.
By way of example, the majority said:
100              Nos. 05-1815, 05-1816, 05-1821 & 05-1822

      Proof that HLF was funding Hamas’s terrorist activi-
      ties at the time of Boim’s murder, and that another
      defendant was in turn funneling donations to HLF
      with the knowledge and intent that those funds be
      used to support Hamas’s terrorism, might support
      an inference that the actions of both HLF and that
      defendant were causes of the murder.
Judge Keys said more than once that the Boims needed to
show “that the defendants knew of Hamas’ illegal activi-
ties, that they desired to help those activities succeed, and
that they engaged in some act of helping.” Emphasis
added. 

at 923.1 It seems to me that
engaging in “some act of helping” is the same as provid-
ing funding or other general support to Hamas. It is
precisely “financial support” or “general support” that
Judge Keys was considering as a link between the defen-
dants and Hamas terrorism, which was the cause of David
Boim’s death.
  Our review of decisions on summary judgments is, of
course, de novo. Therefore, a minor error, if there is one,
in Judge Keys’ phrasing is not fatal so long as our review
of the undisputed evidence in the record supports the
judgment. If it doesn’t, the problem is with the evidence.
But in my view, Judge Keys got it right on both the
facts and the law.
  A brief look at some of the evidence on which Judge Keys
relied bears out my conclusion that he was, in effect,
considering whether there was a causal link between a
defendant’s actions and Hamas terrorism and that, in

1
   While commenting on this dissent, my colleagues say that
I believe that “the undisputed facts show conclusively that
Hamas was responsible for the murder of David Boim . . . .” But
“conclusively” is not the issue. The plaintiffs’ burden in this
civil suit was to prove their case by a mere preponderance
of the evidence, and that, I think, they have accomplished.
Nos. 05-1815, 05-1816, 05-1821 & 05-1822                101

fact, the evidence shows a causal link. As to Salah, the
evidence includes that he took a trip to the Occupied Terri-
tories and Israel at the request of Mousa Mohammed Abu
Marzook, the head of military operations for Hamas. The
purpose of the trip was to revive those operations. He
contributed money to Hamas operatives for the purpose of
carrying out terrorist activities. He provided money to a
Hamas operative to buy weapons to be used in terrorist
operations. In a statement he gave while in Israeli
custody, he describes meetings with Hamas operatives
regarding military operations. Salah’s response to the
Boims’ evidence is not to offer facts which dispute it, but
primarily to move to strike the evidence on various
grounds and to contend that his statement was procured
by torture. Judge Keys carefully considered Salah’s
arguments but concluded that the evidence was reliable.
My review of the record convinces me that the standard
the majority has articulated for a causal link has been
met as to Salah.
  AMS/IAP published and distributed pro-Hamas docu-
ments, including one which contained an editorial that
advocated martyrdom operations, meeting death with
death, and killing Jews. In addition, AMS/IAP published
documents designed to garner public support for Marzook.
IAP held annual conferences and invited pro-Hamas
speakers and paid for their travel expenses, even includ-
ing at one conference a veiled Hamas terrorist. There is
a significant amount of evidence which shows that they
contributed money to HLF and that they encouraged
others to donate, knowing the money went to Hamas
and its military activities.
  The latter evidence loses its force, of course, because, in
a part of the majority’s opinion with which I agree, the
grant of summary judgment against HLF has been over-
turned. I agree that the district court erred in granting
collateral estoppel effect to the decision in Holy Land
102             Nos. 05-1815, 05-1816, 05-1821 & 05-1822

Foundation for Relief and Dev. v. Ashcroft, 

(D.C. Cir. 2003). Though if HLF is ultimately found to
be liable, the evidence against AMS/IAP is strengthened
as well. But I believe that, even without the evidence
involving HLF, the Boims have shown AMS/IAP’s “gen-
eral support” for Hamas terrorist activities from which one
can infer their actions were a cause of ensuing acts of
Hamas terrorism.
  AMS and IAP also appeal the finding that they were
intertwined entities to a degree that made any distinc-
tion between them meaningless. My review of the facts on
this point leads me to the same conclusion as the dis-
trict court.
   Accordingly, I respectfully dissent from the court’s
decision as to all defendants except HLF. As to HLF,
I join the majority opinion.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—12-28-07