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Terrorism Torts and the Right to Colonize


Darryl Li (@dcli) is Associate Professor of Anthropology and Associate Member of the Law School at the University of Chicago.

The D.C. Circuit appeals court heard arguments in January in a bizarre case: the Jewish National Fund (JNF) is leading a lawsuit against the U.S. Campaign for Palestinian Rights, a nation-wide coalition of groups advocating for Palestinian liberation, on accusations of supporting terrorism. The stakes for social movements are high: while governmental abuses in the name of fighting terrorism have long attracted criticism, far less attention has been paid to how private actors can also weaponize anti-terrorism law to harass political opponents.

A look at the political economy of terrorism tort litigation shows how this lawsuit is not merely an instance of terrorism laws potentially trampling human rights; it is also an aggressive assertion of a right to colonize, and to do so in peace and quiet.

Smokescreen Without Fire

The dispute stems from a series of brush fires that were set off when Palestinian demonstrators in the Gaza Strip floated Molotov cocktails over the border fence using kites and balloons. Several dual U.S.-Israeli citizens living in the area claim that the “incendiary terror balloons and kites” caused them emotional distress and denied them the “use and enjoyment” of certain “forests and public areas including scenic trails, recreation areas, bicycle trails and public areas and amenities.” No physical injuries are alleged.

In its dubious recasting of the brush fires as “acts of international terrorism,” the lawsuit generates its own legal smokescreen obscuring the larger context of settler colonialism at work. The park lands on which the fires took place are managed by the JNF, which joined the suit and is the named plaintiff. The JNF was founded in 1901 and originally registered as a charity in England with the purpose of acquiring land between the Jordan River and the Mediterranean Sea exclusively for the benefit of Jews. The organization calls itself “the operational arm of Zionism,” owing to the key role it plays in the colonization process that systematically privileges Jews from any part of the world over indigenous Palestinians — even those with Israeli citizenship.

Today, the JNF directly owns 10% of the land under Israeli rule. But it also enjoys special status under Israeli law, controlling nearly half the seats on the state board that manages 73% of the land. This dual character is crucial to the colonization process: as a private body, the JNF’s discrimination in favor of Jews is seen as unobjectionable; yet as a quasi-public entity, its influence on land and housing policy across the whole country is enormous. For these reasons, the U.S. Campaign for Palestinian Rights has, according to the lawsuit, participated in an international “Stop the JNF” campaign – which the JNF portrays as a nefarious conspiracy, and as tortious conduct in itself.

While the JNF works to settle Jews on the land, Palestinians are dispossessed from it: the Gaza Strip itself is a giant act of colonial enclosure, corralling over two million people subjected to economic strangulation. From 2018 to 2019, Palestinians in the Gaza Strip staged weekly mass demonstrations at the border fence confining them to the territory, asserting the right to return to their homes – including to lands within walking distance on the other side of the barbed wire. The kites and balloons in question were an improvised response to sniper fire and tear gas from Israeli soldiers who killed nearly 200 demonstrators and maimed thousands more, often while safely bunkered down hundreds of meters away.

All of the colonial violence described above, of course, is reduced to mere background noise in this litigation, which is focused narrowly on whether liability for the brush fires can be attributed to the U.S. Campaign for Palestinian Rights, a small Washington, D.C.-based non-profit. The lawsuit alleges that the Campaign provides material support to Hamas, which is on the U.S. government’s list of designated terrorist organizations. The argument is a bridge to nowhere at both ends: as the lower court noted in dismissing the case, the “threadbare assertions” of the Campaign’s aid to Hamas are “lacking in any specific factual basis” and the complaint does not even claim that Hamas launched the balloons and kites in the first place (perhaps the most serious accusation, that one of the plaintiff’s homes was damaged by a Hamas rocket, does not mention any connection to the Gaza protests at all). Plaintiffs have since doubled down in their appeal, desperately smearing the Campaign as “the direct and primary benefactor of, and contributor to, Hamas’ international terrorism.”

The bombastic argumentation and weak legal reasoning are very much the point here: A plaintiff like the JNF, with billions of dollars in assets, stands little to gain financially from suing the Campaign but has money to burn when it comes to waging lawfare against Palestinians and their allies. Lawsuits such as these are designed not so much to win as to fester, aiming to generate just enough suspicion to drag the Campaign into discovery and with it, years of financially ruinous litigation.

Contorting Terrorism

Terrorism became a tort under U.S. law with the passage of the 1992 Anti-Terrorism Act (ATA), which authorizes U.S. nationals to file civil suits for acts of “international terrorism” (as defined under federal criminal law) taking place anywhere in the world. Not only does the ATA put federal antiterrorism law with its global jurisdiction at the service of private actors, but Congress crafted the statute to incentivize lawsuits by automatically tripling any monetary damages and forcing losing defendants to pay the winner’s legal costs.

For Congress to create a new federal tort – and with virtually no debate – during a period of growing hostility to tort litigation as an undue hindrance on big business was unusual. But it makes sense when one sees how the ATA was essentially bespoke legislation for the Zionist movement in the United States. The law was drafted with the Palestine Liberation Organization (PLO) in mind (a later statute would authorize suits against foreign sovereigns deemed terrorist sponsors), and the Anti-Defamation League lobbied heavily for its passage. In the first decade of ATA litigation, nearly all cases were brought on behalf of plaintiffs who were dual citizens of Israel and the United States. While the ATA docket has diversified somewhat in recent years – especially since the 2016 Justice Against Sponsors of Terrorism Act expanded the statute to include aiding and abetting liability – Palestine remains one of the top sources of cases and the only one to result in jury verdicts or major cash settlements.

The first major ATA case, Boim, was brought in the early 2000s on behalf of a U.S.-Israeli dual citizen killed outside of a West Bank settlement. The plaintiffs accused several Palestinian American non-profits of providing “material support” to charities in Palestine allegedly controlled by Hamas. The lawsuit proceeded in parallel with a criminal case that led to decades-long jail sentences for the defendants and the shuttering of the largest Muslim charity in the United States at the time. Under the reasoning in Boim, all money is fungible: a dollar given even to an ordinary civilian hospital run by a designated terrorist group theoretically frees up a dollar for violence elsewhere. This logic helped lay the foundation for the extraordinarily broad reading of material support laws that the government has used to jail hundreds of Muslims during the War on Terror and that continues to chill charitable and other forms of activism today.

Although the JNF hopes to resuscitate Boim’s devastating legacy in its lawsuit against the U.S. Campaign for Palestinian Rights, terrorism tort cases overall have had a mixed record. This stems from problems inherent to the ATA itself. Accused terrorists are generally unlikely to have assets that are both substantial enough to make a tort lawsuit worthwhile and at the same time available for seizure by U.S. courts to pay any judgments. Instead, the typical ATA case involves a defendant being sued for aiding and abetting terrorism – in the form of dealings with some third party that is allegedly somehow under terrorists’ control. Such lawsuits invariably get bogged down in protracted, complex, and highly technical disputes over how to connect defendants (often large, wealthy mainstream corporations) to a series of obscure foreign entities.

The doctrinal thickets through which ATA cases are carved out – theories of primary versus secondary liability, proximate cause, scienter, personal jurisdiction, and so on – are symptoms of a deeper structural dynamic. On the one hand, the United States of America is an imperialist hegemon projecting power globally in the service of the circulation and accumulation of capital. On the other hand, this imperialism is organized in most of the world not through formal colonial rule but through neocolonial influence over nominally independent states with their own legal systems. The constant flow of money, people, and goods across borders puts U.S. domestic courts in the bind of constantly having to decide when to assert or disclaim their authority over foreign acts and actors, of which ATA cases typically have many.

Thus, in relation to its original aim of empowering litigation against the PLO, the ATA became a victim of its own success after the PLO surrendered itself to the U.S.-brokered “peace process.” The threat of litigation compelled the PLO to shift most of its U.S.-based assets to the West Bank, making it far more difficult for federal courts to exercise jurisdiction. At the same time, this capital was largely reinvested in boosting the economic fortunes of the Palestinian Authority (PA), an entity that essentially acted as a U.S.-sponsored subcontractor for the Israeli occupation. As terrorism lawsuits piled up against the PLO and PA, the U.S. government was placed in the awkward position of having to intervene against the litigation to shield its new Palestinian clients from potentially massive tort judgments.

The most common targets of ATA litigation, however, have been financial institutions. Here, jurisdiction over defendants has not been a problem: indeed, what these lawsuits seek to leverage is the United States’ centrality to global capital networks, making it a necessary venue for many foreign banks to operate and subject themselves to U.S. law. The first to be sued was Arab Bank, originally founded in Palestine and now the largest private bank in Jordan (as well as in the West Bank); lawsuits against major European financial institutions soon followed and remain a mainstay of the ATA docket. But compared to the PLO or much-maligned Muslim charities, banks are far more sympathetic defendants in the eyes of judges. Here, courts have been careful to resist the broad approach laid out in Boim and to shield banks from any lethal blows by inquiring into requisite levels of knowledge, intent, and so on. Although Arab Bank eventually paid a substantial settlement, its European counterparts have been slowly fighting these lawsuits off; the Supreme Court declined to revisit the dismissal of one such case last year, despite intense lobbying by legislators, former national security bureaucrats, and Zionist organizations. Even the politics of empty grandstanding in the name of fighting terrorism could not be allowed to threaten the interests of capital.

Colonizers Twice Over

Critics have long pointed out how tort law obscures the systemic harms of capitalism by reducing them to mere “accidents” subject to privatized disputes between individuals and firms. The systemic harm obscured by the JNF case – and the significant body of ATA litigation arising out of Palestine – is the particular assemblage of U.S. imperialism and Israeli settler colonialism.

There is, of course, a striking family resemblance between U.S. white supremacy and Jewish supremacy under Zionism: this much is made clear by the client list of the attorney who argued the JNF appeal, Nathan Lewin. A longtime fixture in Zionist legal circles, Lewin was not only the original architect of the Boim litigation, but he also represents Trump ally Mike Lindell (“the MyPillow Guy”) in a lawsuit arising out of attempts to overturn the 2020 U.S. presidential election.

But notwithstanding these parallels, there are important differences. The U.S.-Israel relationship is not one of a colony to its mother country; rather, it is a strategic kinship between two settler colonies, one that is also a global imperialist power and the other its younger cousin. And while Jewish supremacy is often explicitly inscribed in Israeli law, the U.S. filters white supremacy through an ever-thinner façade of colorblindness.

Here we can turn our attention to the other plaintiffs in the JNF case, who are described simply as Americans residing in Israel. This matter-of-fact characterization obscures the very peculiar dual privilege produced by the U.S.-Israel “special relationship.” In Israel, these plaintiffs benefit from a settler colonial regime that systematically privileges them as Jews. But it is their United States citizenship that entitles them to file lawsuits under the ATA, thus triggering potentially global jurisdiction in the courts of an imperialist power. Indeed, the JNF must piggyback on their claims in order to join the case in the first place – effectively acting as a proxy for the government of Israel in dragging overseas political opponents into U.S. courts.

American colonists like the JNF plaintiffs usually appear before Israeli law as Jews first, citizens second; but when they invoke the ATA, they appear before U.S. law as Americans only and as Jews not at all. U.S. imperialism here extends and launders Zionist colonialism rather than merely replicating it.

This dual privilege means that the JNF case goes beyond the typical colonial arrogance of demanding that natives refrain from resisting their dispossession in any manner that may disturb the plaintiffs’ ability to enjoy the fruits of said dispossession. More brazenly, Lewin argued in the D.C. Circuit that because “there are known to be American citizen families living in the area” around the Gaza Strip that their alleged injury as Americans was a foreseeable outcome of the kites and balloons. In other words, defendants should have known that the colonizers in question are not only Israeli, but American as well. Implicit in this argument is a demand for a kind of recognition of the plaintiffs’ status – their manifest destiny, as it were – as colonizers twice over.