On May 31 a federal court will hear arguments on whether a complaint brought against the Carter Center by the Zionist Advocacy Center (TZAC), which alleges that hosting conflict resolution meetings attended by Hamas and the Popular Front for the Liberation of Palestine (PFLP), both designated as terrorist groups by the U.S., should be dismissed. TZAC alleges that hosting the meetings and serving water, fruit and cookies constitutes illegal material support. The Department of Justice (DOJ) moved to dismiss the case, saying that TZAC’s claims “are without legal basis…” TZAC filed the case under seal in November 2015 using the False Claims Act (FCA), which allows private whistleblowers to seek enforcement of U.S. law. The case was partially unsealed in January 2018. It raises significant questions about how far the Supreme Court’s 2010 ruling in Holder v Humanitarian Law Project (HLP) goes in prohibiting communications and contact with listed groups.
Complaints filed under the FCA are automatically sealed for 60 days in order to protect whistleblowers while the government investigates the claims and decides whether or not they merit further action. As it did in this case, the court can extend the sealed period. FCA allows for triple damages against parties found to have violated the law, with the parties bringing suit eligible to receive up to 30% of that amount. TZAC says the Carter Center received over $30 million from USAID between 2010 and 2015 and should pay $91,716,000, plus costs and “an appropriate award” to TZAC.
TZAC alleges that the Carter Center, a USAID grantee, defrauded the government because in its grant agreement it falsely certified it has not provided material support. The complaint does not allege that USAID funds were used to support the meetings TZAC cites in its complaint. The Free Beacon reported on the case on April 23, 2018, but erroneously said the suit alleged the Carter Center used taxpayer funds to pay for the meetings cited in the complaint.
In another FCA case against a USAID grantee the government took the position that the certification applies to all a grantee’s activities, whether or not they are funded by USAID. In the Carter Center case the government’s motion to dismiss points out that here is no allegation that the Carter Center concealed its activities or failed to meet its obligations under the USAID grants.
1. The Carter Center hosted representatives of various Palestinian political parties, including Hamas and the PFLP, at its facility in Ramallah in May 2015. A picture from the meeting included in the complaint shows water bottles, fruit and cookies at the meeting table. TZAC alleges the meeting constituted prohibited material support because:
2. The Carter Center sponsors “meetings, workshops, round-table discussions and private consultations to promote dialogue and discussions among Palestinian factions (including terrorist organizations) with the aim of promoting electoral consensus and general reconciliation.” TZAC says such meetings are inconsistent with the HLP decision, noting that in May 2011 the Carter Center and its local partner the Arab Thought Forum organized a meeting, which included representatives of Hamas and PFLP, “to assist various Palestinian factions in developing a new electoral code.” TZAC such meetings constitute material support because:
The complaint also lists several such meetings that took place before the Supreme Court’s HLP decision in 2010, a period when the lower courts had found application of the material support prohibition to such activities to be unconstitutionally vague and broad.
In November 2017 TZAC filed a motion to unseal the case and open the hearing on the government’s motion to dismiss to the public. It cited provisions of the FCA that provide for a hearing when the government has moved to dismiss, to enable the party bringing the action (relator) to “ensure that the government has a complete and accurate understanding of the full picture of the case” in making its decision to proceed or not. DOJ could maintain its current position that the case should be dismissed, take over prosecution of the case, or decline to intervene and allow TZAC to prosecute the case.
On Jan. 9 2018 the court granted the motion for a public hearing and unsealed the complaint, motion to dismiss and motion to unseal the case, but leaving other documents filed prior to its order sealed.