On May 31, 2018 the U.S. District Court in Washington, DC granted the Department of Justice’s (DOJ) motion to dismiss a whistleblower lawsuit against the Carter Center. The case, filed by The Zionist Advocacy Center (TZAC), alleged the Carter Center falsely certified it has not provided “material support” to a terrorist group in a grant agreement with USAID. TZAC claimed the Carter Center provided Hamas and the Popular Front for the Liberation of Palestine, both on the US terrorist list, with material support because it hosted a meeting that included both groups and served water, fruit and cookies. TZAC issued a statement saying that while it disagrees with the outcome “there is not much to do about it” and that it will “continue investigating the Carter Center.”
DOJ moved to dismiss the case in November 2017. A hearing set for April 24 was cancelled when TZAC opted to instead meet with DOJ informally in an attempt to change the agency’s position. DOJ filed a notice with the court on May 31 saying it had conducted a “diligent investigation” of the facts and the meeting with TZAC had not changed its position. In the DC Circuit the government has full discretion on whether or not to pursue False Claims Act cases, so the court entered a final and appealable order dismissing the case. The case is one of three known to have been brought against nonprofits by TZAC, which says it has two additional cases pending under seal. While each case has different facts, DOJ’s response in its motion to dismiss is notable for two reasons:
- DOJ said there was no allegation that the meeting at issue was funded by USAID or that the Carter Center failed to fulfill its grant obligations to USAID. It also noted that the Carter Center had not concealed its activities.
- DOJ said while TZAC had a “difference of opinion with the Carter Center about how to resolve conflict in the Middle East” its complaint “does not allege facts addressed to the elements it or the United States must prove to establish violations of the FCA.”
The facts complained of – facilitating a meeting – appear to be outside the government’s view of what peacebuilding activities constitute prohibited material support, according to statements made by DOJ to the Supreme Court in the Humanitarian Law Project case. These statements, from DOJ’s brief and the Solicitor General’s statements in oral argument, indicate that the following are likely to be permissible:
- attend meetings sponsored by FTOs (Solicitor General’s Brief, HLP case, p. 61, Transcript, HLP oral argument in the Supreme Court p. 35-36) and
- engage in discussion with FTO members, as long as they do not provide expert advice or impart a specific skill. (Brief p. 22, Transcript p. 52-53)
- encourage the FTO and its members to renounce violence, (Transcript p. 35-36) engage in peace processes and use international forums to address their concerns.
- incidental logistical activity in support of such meetings, such as arranging chairs and cleaning up, is also not prohibited. (Transcript p. 52-53)
DISCLAIMER: The state of the law on material support remains vague and unsettled, so while these statements indicate DOJ’s position at the time they were made, that position could change without notice.
More background on the Carter Center case is here.