March 23, 2021
Charity & Security Network (C&SN) and InterAction filed an amicus curiae “friend of the court” brief in a lawsuit brought under the Anti-Terrorism Act (ATA) that has implications for nonprofit organizations (NPOs) working in proximity to terrorist groups. It raises issues of potential civil liability for multiple degrees of separation from a Foreign Terrorist Organization (FTO) or for use of aid that is stolen. If accepted, this broad theory of liability would severely limit NPOs’ ability to operate life-saving programs and frustrate U.S. foreign policy objectives.
The case, Atchley et al. v. AstraZeneca UK et al., on appeal to the U.S. Court of Appeals for the District of Columbia Circuit, was brought by veterans of the Iraq war and their families (plaintiffs) for injuries and deaths suffered in the war. The defendants are several major pharmaceutical and health sector companies that responded to a U.S. government request to provide lifesaving medicines to the Iraqi Ministry of Health (Ministry) during the war.
The plaintiffs argue that the companies aided and abetted terrorism by doing business with the Ministry when it was supposedly controlled by a Shia militia, Jaysh al-Mahdi, a group that the U.S. government chose not to designate as a terrorist entity. The veterans and families allege that the militia used the Ministry as a front to fund attacks on U.S. troops. Therefore, the plaintiffs argue, the companies should be held liable under the ATA because they gave free goods and discounts to the Ministry when they should have known that it was controlled by forces that were using Ministry resources to commit acts of terrorism. The case was dismissed in the District Court, and the plaintiffs appealed to the D.C. Circuit.
The Anti-Terrorism Act (18 U.S.C. §2333), part of the “material support” statutes, allows U.S. persons to sue for any injury caused by an act of international terrorism committed, planned or authorized by an organization that was designated as a Foreign Terrorist Organization (FTO) under Section 219 of the Immigration and National Act. Any person who knowingly provides substantial assistance to the terrorists, or who conspires with the person who committed the terrorist act, can be liable under the ATA.
To establish liability under the ATA, a plaintiff must prove:
- An act of international terrorist committed by an FTO
- An injury to a U.S. person, or their estate, survivors or heirs
- Conduct that “proximately” caused the injury, or secondary liability if the defendant aided and abetted the acts of terrorism
- Intent – while the ATA is silent on this, the courts have interpreted this to require that the defendant knowingly engages in intentional misconduct or act recklessly or are willfully blind. Courts have found that mere knowledge of terrorist activity is not sufficient to establish liability.
Implications for NPOs
C&SN and InterAction filed the brief to rebut several arguments made by the plaintiffs in the case. If the court were to accept those arguments, the result would be to cripple the important work of NPOs that operate near where terrorist groups are present. To access populations in need, NPOs must interact with local authorities, whoever they may be, on a wide range of matters including security, taxes and customs, and other operational and programming matters, the brief explains.
In their initial pleadings, the plaintiffs sought to substitute a strict liability (known or should have known) standard in place of the mental state requirement imposed by the courts in ATA cases. Plaintiffs, in their lawsuit against the companies, attempt to hold the companies liable under the ATA without alleging they knew that the medical supplies they provided played a role in terrorism or that the companies “shared any terrorist’s state of mind.”
The plaintiffs also stretched the aiding-and-abetting argument to employ third-degree-of-separation reasoning, seeking to impose liability for acts that were several steps removed from the terrorist acts and actors that caused their injuries. Specifically, they argued that the Ministy had ties to Jaysh al-Mahdi (which is not an FTO), which in turn had ties to Hezbollah (which is an FTO). The plaintiff’s chain of causation also attempts to connect the companies’ provision of drugs and medical supplies to the Ministry to the theft of these items from the Ministry and their sale on the black market.
The ATA permits lawsuits against those who knowingly provide substantial assistance, or who conspire with the person who committed the terrorist acts, as long as the acts were planned or authorized by an FTO. However, the plaintiffs’ interpretation of this provision would punish NPOs that engage or partner with governments and organizations to provide critical aid and could expose NPOs to lawsuits “for providing legitimate aid to government and organizations around the world,” the brief states. Under this theory, NPOs could be liable for terrorist acts by providing assistance to a non- sanctioned organization if the aid is later stolen, diverted, or extorted by groups that engage in terrorism.
Finally, plaintiff’s theory of the FTO element of aiding-and-abetting claims would frustrate Congressional intent and U.S. foreign policy objectives. Plaintiffs seek to impose aiding-and-abetting liability on Defendants for terrorist attacks by a group that the U.S. government chose not to designate as an FTO. The brief explains, “As the ATA makes clear, secondary liability will attach only when a defendant aids attacks that are committed, planned, or authorized by an FTO.” However, plaintiffs allege that the companies’ business with the Ministry indirectly aided Jaysh al-Mahdi, a group that has alleged “ties” to the FTO Hezbollah but that the U.S. government has declined to designate as an FTO. “To accept this theory would be to dramatically expand the scope of potential liability for NGOs and frustrate congressional intent and U.S. foreign-policy objectives. The U.S. government’s terrorist designations.”
Amici to the case do not participate in hearings before the court. C&SN will continue to update this post as the case proceeds.