next we'll hear lind versus arab morning your honor please the court for the appellant endeavor to save two minutes for rebuttal the district court committed three fundamental errors that require reversal or at a minimum a new trial first the district court simply refused to instruct the jury on the four statutory elements of international terrorism as defined by eighteen u s c twenty three thirty one one the district court operated under the erroneous assumption that a jury finding of the elements of the least demanding material support provision twenty three thirty nine b if so facto satisfied the statutory elements of international terrorism under twenty three thirty one one that is flatly and demonstrably wrong finding a violation of twenty three thirty nine be satisfied one but only one of the four statutory elements of the definition of international terrorism the jury still needed to be instructed on the other four elements including the apparent intent to terrorize the civilized civilian population or change government policy and the separate element that is an act that is either violent or dangerous to human life and i understand your argument on this i don't understand you to be arguing that no material support conduct could ever satisfy the definition of international terrorism you're just arguing to us that it is not that's not every act of material support that so clearly does so that the jury does not have to be charged that's exactly right your honor and if you want to think of them as you know venn diagrams i mean there is overlap there are some twenty three thirty nine b prosecutions or finding of the elements of that that would constitute a international terrorism under the statutory definition but the overlap is you know it's not complete the two the two diagrams do not overlap with each other and so it is simply erroneous to say as the district court judge did here i don't have to instruct on the statutory elements of twenty three thirty one one because i'm just going to give the jury an instruction on twenty three thirty nine b i think that is just flatly wrong i think that independently of the other errors that i'm happy to talk about as well i think that independently requires a new trial because the jury just wasn't instructed on those critical elements of the definition of international terrorism because it was a civil case we have more flexibility in how this is has it's common everyday meaning that the act violent acts have to be subsumed within the activity set does that suggest that they the activity itself that's international terrorism has to be the violent act construe it differently i do your honor but i think that's to be clear i think all of that is stuff that could have been sorted out in a jury instruction conference if we had the elements of the statutory definition before the court and so i think all of that is i mean i think that you know and i can understand that there might be reasonable grounds for disagreement on this but i think that to make sense of the statutory provision and by that i mean twenty three thirty three that provides this civil liability i think that has to focus on the activities of the defendant that is you know trying that civil liability is attributed against i think that's even more clear now that jasper has been passed and you have twenty three thirty three d because you now do have secondary liability under the statute and i think that if you're trying to still use primary liability which is the theory under which the jury was instructed here it has to be the liability of the defendant and it has to be their actions that satisfy the four elements and i don't think you can sort of slop over to somebody else like hamas for example just by using the word involved but we don't even get to the point of having that debate because the judge was so clear about the idea that twenty three thirty nine b and instructing about that was sufficient i do think if i may transition to the issue of causation i think that's another place where the combination of this court's precedence and now the jasc the statute i think really call into sharp into sharp relief the failure here of the district court to require but for causation and i also think it shows that there is insufficient evidence in this record for proximate conservation if i could start with but for causation i think that you know i read this court's decisions  terrorist attacked and certainly going a long way to saying there has to be but for causation in these cases the court to be sure in both cases was focused on proximate cause ation but the court's reasoning which is essentially that by reason of is not language that came out of the ether but it's language that came from the in i trust laws and it came from rico and it has an understood meaning which is both but for causation and proximate cause nation and then one thing that this court didn't have the benefit of in either of those previous decisions and many of the district courts that have gone the other way on this didn't have the benefit of is the supreme court's decision in burrage which i think is really i think takes away the last bit of clarity and confusion on this because the supreme court and courage makes crystal clear that the default assumption is that a statute that uses causation language requires but for causation you have are saying relies on para line  different kind of analysis of causation in the various specific setting where a wrong has been done and it's virtually impossible to trace in a very specific way wrongdoers act although it's clear that the from the normal rule and it deviated there it's deviation from the normal rule was coupled with a special rule to avoid sort of extreme liability for the defendant which was they got rid of joint several liability at the same time what my friends want is the benefit of the peril on relaxation of causation and then combine it with joint and several liability and combine it with treble damages and there's no precedent for allowing that i think the other thing though is you're b caroline if i have the timeline here right and i think courage makes clear the para line was a deviation from the normal rule and i think bridge underscores that the assumption of the normal rule is that you get but for causation this supreme court this is where i think courage is so helpful because you know where the where the seventh circuit got a little bit off of track here was it pointed to the possibility of independent insufficient causation burrage i think quite correctly says well you know that might be a well established exception to the general rule for but for causation we don't have to decide the issue because we don't have before it in the spring court and courage didn't happen before it independent sufficient cause that's exactly the same here these are not nobody nobody think takes  position that these are sufficient the role of my clients was a sufficient cause to climate one of the problems i have with your argument which depends so heavily on the  parallel of language between rico and clayton act and some of the language in twenty three thirty three is with the expressed congressional intent concerning twenty three thirty three which went out of its way to say that the point of twenty three thirty three was to allow us national who's been injured by an act of terrorism to sue and then went on to say the substance of such an action is not defined by the statute because the fact patterns giving rise to such souse will be as varied and numerous as those found in the law of towards this bill opens the courthouse to or to victims of material support of a financial nature could never be held liable except in the most unimagined circumstances because of the fungibility of dollars so a couple of mean first of all with all due respect you know this isn't something that i came up with entirely on my own i think the reliance of the prior statutes the and i trust laws and the rico statute that's directly from rothstein and i don't understand why the logic of that which the court clearly applied to proximate causation wouldn't also apply to but for causation when the rostering court itself and the in re terrorist attack courts themselves quoted the language from holmes th talked about but for causation but if i could i don't want to just prevent you know i mean that's kind of a tough love answer and i don't want to leave you with just a tough love answer because i think this becomes much work with your teenagers not that well either your hon but i don't have one to talk to my teenagers gesta and i really think the fact that congress has now come in and provided an express cause of action for aiding and abetting when it takes the form of substantial assistance in conspiracy i think that really kind of solves the problem that got the seventh circuit kind of twisted in knots and then very close to the act of terrorism and aiding and abetting liability can be for a non criminal act now we're talking about people who satisfy at least the criminal act prong of the act of international terrorism and it seems to me that that may very well be a difference here that when when you are engaged in an act of international terrorism i know it's debatable whether that's what was here but if you were there's not the concern that you've just identified eliminates primary liability far from that what i'm saying though is the thing that i think is caused concern is that when you're thinking about primary liability you're thinking about the traditional requirements including causation and i think that you know given the by reason of language and given the instruction that comes from ross dean and from in re terror attacks in from burrage i'm left with the almost on a scape will conclusion that causation means both but for an proximate cause ation now i think that is why you don't think they've even satisfied proximate cause ation because he said that you would you would take that position yes i don't think they have here because if you look at you know out of the entirety of this litigation we now on appeal have three attacks there twenty four attackers from those three attacks they have not been able to point to any evidence that any of those twenty four received funds you know the principle evidence they did have access to was the records from the from the saudi fund none of the twenty four attackers had received funds from the saudi phones the closest they could come as to one of the three attacks they had two relatives one relative each for two of the attackers who got transfers from the saudi committee more than two years before the relevant attacks now i think with respect that is insufficient especially when you're trying to put liability on a bank we're not talking even about what that seventh circuit had before it which was the charity yes the defendant but you're getting pretty far away from the primary action when you're going after i'm not saying you can never go after pink but when you are i think you do have to look to the real requirements of proximate cause and i just don't think the evidence here satisfies that i think it you know comparable to the up to the allegations that were before the court in re terrorist attack with respect to and the nine eleven attacks i think here we had a trial to be sure the trial was profoundly affected by the sanctions order which i haven't talked about but they did have some evidence i think judge weinstein had the way that a district court should look at a situation where you have a sanction order but you have evidence i think he had that exactly right which is you know the fact that there's the possibility of an inference even if you're supposed to have an inference you still have to look at the evidence and you still have to make a decision about whether or not that what's actually in the record is sufficient evidence here or there just isn't sufficient evidence of proximate cause for these attacks serial speak for himself but as i understood the argument from the briefs suggest tiriel support for terrorism was satisfied in this case by helping with the finances of hamas in general that's the terrorist organization for which supports provided and the argument is that by doing that by basically acting as a bank for hamas is financial transactions the bank basically let argument is made that there was proximate cause now there may be other arguments as well but tell me why you think that well i think that's just too indirect i also think that it sort of abstracts out from the actual facts that are in the record here which is you know this isn't a situation where you know this financial assistance to hamas was provided in circumstances where this was the only bank that would do transactions for these individuals i mean if they had evidence of that that maybe they'd have a theory as to why they had but for causation but this is a situation where what the defendant is accused of is providing essentially routine banking services to individuals who eventually it turned out were affiliated the bombings because there were banks that were willing to do it that's that's the argument cast a save or plea to the planners i think it is your honor and i guess what i'm saying is that's just too indirect to satisfy proximate cause if you take the general theory and then you can actually trace the payments from the saudi committee to these individual perpetrators the twenty four for the three attacks then maybe that's enough to satisfy approximate i think if you were if you were a messenger who got on a plane from new york to the palace to gaza with you know a suitcase full of money that would be one thing bank transfers the money why is that different well i mean first of all i would think that you would still treat you would still if proximate cause is going to mean what it means in any other context you'd still want to get that messenger and trace that suitcase to particular attacks i also think though that that does sort of you know this is not a situation because you know the thing about the suitcase that makes it more problematic is there you have a mechanism for getting cash that goes outside the banking system and here you have essentially you know allegations and i think the evidence for this out that this was done through the banking system this was not a situation and i can imagine a situation where the allegations or the evidence shows that this is a dirty bank and it's the only bank in the world that would have cleared these transactions but that's not what the evidence here shows why should that policy judgment inform our view about proximate cause and the circumstance well i think it can to a point i mean which is to say i'm not here arguing that material support is not sufficient to satisfy one of the elements of international terrorism it does the crime but wholly independent of satisfying the definition of international terrorism you then have to show causation and when you get to proximate causation the fact that money went to the hamas through individuals who were not on lists at the time of the transaction that i just don't see anything in the material support statute that provides a signal that congress thought that was sufficient for proximate cause and if it were i'm not so sure that in or a terror attack and all raji bank would have been treated the same because i think the allegations there mirror pretty closely what the evidence here showed which is you know if you want to have legitimate banking services in the middle east and this is really i think gets to the dilemma that my clients face and really the united states faces which is why they filed a supportive that referred to the arab bank as a constructive partner in fighting terrorism finance i mean if it becomes the law that if you provide the banking services in the middle east and some of your customers turned out later to be terrorists that that's enough to impose civil liability then what's going to happen is there are going to be no legitimate banking services provided say in the palestine territories just overstatement if you are right on your first point if you are right that for material support to lead to civil liability the jury has to find also on sufficient evidence that the axiom question appeared to be intended to intimidate or coerce to influence government policy by intimidation and coercion etc then you have a requirement of knowledge on the part of the bank that what it is doing is dirty and it doesn't touch other banks who aren't in that position i will i will certainly i think that kaplan you can understand my rhetorical argument about threatening banking legitimate banking in the middle east as essentially subsuming all of the errors which it which my point is if if if if everything that the district court did here was correct which is avoid th precise elements that i agree with you would would limit the statute i basically took your argument to be number one addressed to proximate cause because that's the point you've been on for quite a while now and i don't need to be snide over to criticize it i'm just descriptive that's what you're talking about and there was the characterization characterization of what the bank did as routine banking services which at one level of generality of course is precisely true they took deposits they made dispersement they posted things to lenders and the same could be true of a characterization by somebody dealing in guns or explosives as routine retail services the problem with that is that if that person is doing it in circumstances where you satisfy the material support statute and you otherwise satisfied with comment but you know i do think you know that just underscores the error of not providing those statutory elements because me to take your example i mean you know it's not just the apparent intent to coerce a citizen population which is part of the four factor definition but there's also the idea that the defendant's actions have to be either violent or inherently dangerous dangerous to human looks exactly exactly and i think right there that's that's probably one basis for distinguishing routine gun trafficking services in routine banking services but i'm willing to grant you that you could have a case i don't think it's this one but you could have a case where even the provision of banking services i think what you would have to show frankly and i think this would go both to the element and to the causation part would be i think you would have to show that this was a bank that was willing to process transactions in situations that no one else what and that i mean we do have a situation where the jury may q findings that the bank knew that it was transacting business for hamas and that those transactions substantially supported the terrorist is an important distinction what what what first vote the proximate cause instruction said that they could find liability if they substantially contributed to i don't think that's the same as substantial assistance which i think is the deed it might be a step different a stiffer standard that they substantially contributed to it they would have but in any event i let you make your argument i really don't that's the case i actually think especially read in the context of the instruction substantially contribute i think actually it's problematic language because it's supposed to be causation not contribution which i think is a lesser standard substantial assistance under new under the new jasta provision i think especially since the text told courts to interpret it later the helper stand decision is a much higher standard so i mean but with that clarification i don't think you can find from those two jury findings which of course were profoundly influenced by the sanctions which we think are inappropriate and i'm happy to talk about that separately but even putting the same sanctions to one side for a second i don't think those two findings get you there i think they might they might be consistent with a finding which is to say if you think about the idea that there is some overlap in the venn diagram between material support the finding of material support under twenty three thirty nine b and the definition of international terrorism i think those findings suggest that you know that this is actually material support and therefore it could potentially satisfy the other four standings statutory elements but i don't think those two standing findings alone remotely satisfy the other requirements of the statute i certainly can imagine situations where a banking agency knew that it was giving money to terrorists but nonetheless it didn't satisfy the statutory elements and i could certainly see a jury could rationally find that properly instructed that yes we think there is a violation of twenty three thirty nine b but we don't think those additional statutory elements  here on that element i think we probably are again we didn't get to that point because we refused the right but i'm to the extent you want us to say that these are elements in that they had to be charged i want to make sure i understand what you think had to be charged  if it is indeed a reasonable person who has to be the you know template for this is it as in other contexts where we use reasonable person analysis and omniscient reasonable person do they know all of the facts and circumstances that the bank knew when it to engaged in the transactions i mean i think you know this court could say that it's a reasonable observer reasonably informed you know i think that's probably what i would suggest but i mean you know if the court thinks that the better standard is the reasonable observer who happens to be omniscient i mean you know i could live with that as well again now be united states government's regulatory agencies when they knew what they knew thought that the bank was chargeable with certain violations of law respecting dealing with terrorism how does that play into that other element that you're to be intended element and no i don't i think you're all due respect i think you're overreading the findings that were made that there were some was a settlement so i understand there now it's actually right in my client did not agree to the statement and the government statement was essentially with respect to the handling of  fact list with respect to the new york office but was not a finding that there was some focus facilitation of terrorism or anything like that and the again you know i think it's worth looking at page twenty of the united states is briefed to the supreme court in this case because the united states government's last word latest word fully considering everything that happened with respect to the new york agency office was that arab is a constructive partner in fighting terrorism proceedings that the bank turned over some information that it now says it can't turn over it turned over information in those proceedings that would also be protected by foreign private privacy laws i ask this and it is more on the sanction point because i thought from your brief that you were basically arguing that what we turned them over because there was you know that was more criminal proceeding and so we have there are treaties and we that's why we thought that was appropriate but i didn't understand it to be a criminal proceeding so what am i missing there i think what we tried to convey in our brief and this is consistent with what the united states conveyed to the supreme brief is that the distinction isn't criminal civil it's essentially government proceedings versus private litigation because i think you know the understanding not necessarily as black letter of jordan or or or lebanon or the u k but as a practical understanding that foreign governments are essentially more understanding of cooperation with foreign regulators and a government to government basically arguing that you have any exception under these bank secrecy laws for requests from foreign governments right no no i thought you were lying on the treaty that existed between jordan and the united states that provided for criminal cooperation and saying well you know they had made for requests but we were halfway there you're saying that the bank could draw distinction government versus private even though the bank secrecy laws don't draw that distinction i am suggesting that your honor i'm not suggesting that with the benefit of twenty twenty hindsight if i were counseling the bank in real time that i would have necessarily suggested that they just turn those documents over without checking with their home country regulators but i do think two things are important one is i think that that is is not unusual in this space which is to say i think banks that might be very leery about turning over documents in private litigation are probably quicker to cooperate with foreign regulators and sure they are because they have an economic interest in cooperating with u s regulators because of their branch or whatever unschooled in new york is at risk which is not as proximate a risk  there is a private litigant seeking the documents but at the end of the day what they had was an order of the united states court to turn over the documents the only difference with the potential consequences of them in the nose of the regulatory agencies versus the u s court with respect your honor i don't agree with that and i think that that's exactly the reasoning that the united states government was trying to address in its brief because i think the other big difference is that you essentially have the request for documents they're being filtered through a u s agency that if the process is working right they should be taking into account a variety of concerns including the relationships with another country and the like that precisely required before us court issues in order to produce with this a bank secrecy statute involved on the other side even before you get to sanctions i don't think the analysis is exactly the same your hon but i do think with you know and i mean you know i think the united states government is exactly right on this and i you know i i think it's a very important point which is i think it is a mistake to say that will this bank cooperated with the u s government  therefore it doesn't really take these foreign bank laws seriously and therefore we're going to punish them more severely than if they would have been more withholding visa v the u s government i think that the federal government  is that the executive branch is views are in a preferred position on this issue these are the foreign banks and the judicial branches views i wouldn't i certainly wouldn't put it that way your honor i mean i think that you know there is a there is a way to reconcile that of course which is in the context of the civil litigation the district court could have solicited the views of the united states at that point and then maybe we would have had a better sense of what the executive branch's view is peered i selling its relations i find it curious that the only place the united states has spoken is at the request of the supreme court and where its bottom line was to earn again the grant certiorari review if its view was that it was a serious error that was compromising united states foreign policy maybe they would have thought that was the proper kick time to hear it but certainly now or before the district court i think it's been acknowledged that they've always been aware of the litigation so why should we give that much weight at all when they they don't come in here well i mean i think the reason that you give it w i mean i may have an undue respect for the views of the united states presented to you to the supreme court but i think you give it weight because they did address for thirteen pages the merits of the district court's analysis of the saying sions and i think the proper course after and i think what the united states probably was counting on is that the district court would take that into account and perhaps rejigger the sanctions so they look more like the sanctions that the magistrate judge imposed unless like the sanctions that the district court judge oppose and situation i'm not trying to argue that the bank should get off scot free in this situation but i do think that the fundamental problem when you look at the delta between the magistrate judge is saying sions in the district court judges sanctions is i think with respect the district court judge approached my client as if it were any other recalcitrant party that wasn't turning over the documents because effectively they were lawless and there wasn't really  was a long course of history still of requests complied with repeated requests and she i don't recall whether she sat they found bad faith but this was not a spotless record even before you got to the ultimate refusal you did not back and forth on trying to get these documents and the magistrate judge i think you know make clear that you know there was one initial letter to one foreign government that was pretty but after that that language didn't reappear so the findings on that and again you know if you really want to look at what was done here i mean would've been quicker if my clients that said i hate foreign bankruptcy foreign privacy think privacy laws that's the end of it can't do it let's just move on they actually engaged in some pretty extensive and time consuming efforts including getting a successful appellate decision out of the jordanian judicial system only to have it overturned at the next level by a bank client who thought so much about their bank privacy that they appealed that intermediate appellate court decision to court was wrong and faith well i don't think to be clear i don't think that the district court premised the same order on a finding of bad faith i think the way i would read the opinion is she wasn't going to decide this case on the assumption that the defendants had behaved in the utmost good faith and what you and she said correctly consistent with the precedent that even in a case of the utmost good faith some sanctions can be imposed and so in the process of saying that she was going to impose some sanction she said this isn't even a case where they acted with the utmost good faith i mean i'm not trying to disturb that finding i am saying though that the magistrate judge got this right and the district court judge i do think erred and particularly at the point where there that allowed for there to be an inference not just that there were transactions with individuals affiliated with terrorism but that there was done with knowledge i think that really skewed this in a very fundamental way but the discourse sanctions even went further and this i think was really problematic is that my clients were not allowed to explain to the jury at all why the documents weren't produced wasn't there an opportunity with respect to the saudi comm  counts one or two accounts as to which records it produced to describe the client systems and how the bank operated to know who they were dealing with and so on so in that given opportunity that was adequate for the jury to look more broadly at the banks practices absolutely no there was some effort in response to the saudi committee and to the account of hamdan one count that was turned over to provide some context but what there wasn't in any way an opportunity to do is to provide an explanation why the other documents were not turned and if you want to think about the prejudice all you have to do is look at the plaintiff's closing argument where they kept on talking about the documents that were hidden the hidden documents concealed information and we were not allowed even to say that the reason the documents were not produced was because of the compelling effect of the foreign law now that the jury could still ruled against this if they had that come to the district courts explain in part  that she didn't want to have many trials on foreign law and i mean isn't that correct because we're debating here what would was likely to have been enforced what the scope of the law was what the meaning of prior failure to  sanctions for the disclosures the unpermitted disclosures to u s government that could have been a tangent couldn't well i mean i mean but a necessary tangent for my client to have a fair chance to defend themselves in  circumstances because to allow the plaintiff to go up there in closing and keep on talking about these incriminating hidden documents and not allow us to even say wait a second we had an obligation to not produce those documents that did not turn in any way on whether they were incriminating or not and we would not need to the jury hearing that you turned over documents in other circumstances where you didn't have permission and where they were covered by bank secrecy and then you would have wanted to explain yes but we  that because it was a government request and then there would have been the argument that judge kaplan suggested in response that yeah but that's only because you were afraid they would you know shut you down where is the court didn't have that kind of authority over you  was going back and forth back and forth endlessly why wasn't the district court entitle to decide that that wasn't going to be the way this case proceed i think that if the district court judge wanted to avoid that than perhaps the sanction order imposed by the imposed was not appropriate and that that is what i'm arguing i don't think it's a pure i mean it's that statement used usually you're saying the sanction order that the magistrate said which would have allowed you to say ah but the courts in jordan won't let us do it with the courts in saudi arabia won't let us do it and my point to you is there's a response to that and then there's a counter response and on and on it's not as if your response was nice and clean and it would have gone before the jury and that would have been the end of it i think you could have in theory coupled the magistrate judges sanction order which i think could have avoided getting into a lot of this because it didn't allow an inference of knowledge that the transactions went to the terrorists you know the logical extension of your position is to essentially neuter district judges in foreign bank secrecy act cases with respect to discovery the district judge on your theory is basically limited to oh you know that really wasn't very nice kind of sanctions or alternatively to turn the whole thing into a year long course at the harvard law school on discovery sanctions in cases with international ramifications you're either with i've done enough of these to know well i certainly defer to your experience but i think that the magistrate judge had a way of dealing with this that imposed some sanction for not providing the records judge weinstein had a way of dealing with this that imposed some consequences without getting into this and i do think i mean i defer to you on what district court judges can do but i think there's a way to provide an instruction you know there could have been a and agreed upon instruction about the fact that these documents were turned over pursuant to the privacy laws of these nations and the judge could have said look we're going to fight over this instruction and i don't want to hear you it turned over things in violation of the privacy laws of the nation in other circumstances when i'm in visioning your honor is an opportunity to fight over what that instruction says and then the judge says look whatever the meets in bounds of that whether they include that or not i'm going to give that instruction or not i want to hear another word about this i do not think that but but i have a worse argument your honor i don't think that the dilemma here is that the only way to provide the defendants with a meaningful opportunity to defend themselves is to have many trials i mean i have enough faith in full opportunity to defend themselves with produce the documents with all due respect your honor i think that there has to be a little more sympathy afforded a defendant that is caught between the competing and irreconcilable demands of two sovereigns one of the matter is that the judge below concluded that there was no irreconcilable conflict that your client didn't have meaningful rist if it had simply produce the documents that it had done so before in violation of the local and your honor that's the exact way of thinking about foreign law that this court said was incorrect in re vitamin c litigation in this court was right i mean in both those cases you had a foreign sovereign coming into court and making clear that they took their law very seriously that's what we said that you had to defer to the foreign sovereign foreign we never said anything about the foreign sovereign say when it wouldn't force when it wouldn't enforce the law its construction construction of the law that we said you had to defer to the foreign sovereign as i read the case it said both construction and you don't second guess whether or not they would actually be prosecuted and that's right in the vitamin c decision because the argument there was yeah you know china has this system of chops and all of that but you don't have to go through it lots of people didn't and so it's really not compulsion and as i read this court's decision it said look when when china comes in and says no this is our law and we take it seriously which is exactly what jordan did here it's exactly what the palestine authorities did here i mean that's in the that these are their laws and they take them seriously and they would potentially criminally prosecute i think it puts district courts in a horrible puts if they're going to second guess that especially when there is a third way there is the way the magistrate judge who is closest to this dealt with it which is to say look we're not going to treat this as if you provided everything but we are going to recognize that you're not somebody who's just like rock house a train for no good reason and you're caught between the competing demands of t we've kept you very well but we did have questions to thank you for taking them counsel or may please the court my name is peter raven hanson i represent the police the plaintiffs in this action i'd like to address proximate nation because of the commencement so much time on it but first i think there's an important clarification i want to make the bank has said that it might not survive this appeal the case has settled and the settlement was on terms agreeable to the bank is could you could you pause for just a second just so what effect does our panel's review end up being in half if the court affirms there will be one recovery by the plaintiffs if it disposes of the case in any other way they'll be a different recovery the differences are substantial and related closely to the on liquidated damages in this case so they do present a case in controversy that presupposes there are just two ways that might come out well  the alternatives so a decision for instance that the charge was not put in that the elements should have been charged would not result in a new trial that would result in the parties defaulting to a settlement that's correct  is five sixty eight fed third three eighty three it doesn't discuss jurisdiction it just assumes that other circuits have also dealt with hailo settlement agreements and concluded that so long as the difference in the amount is not arbitrary but has a relationship to the end liquidated damages it does present a true case and controversy you know i may be just misremembering because it's it's decades ago but i seem to be remembering a case in the federal circuit or its predecessor to give you an idea how long this that i was involved in on appeal with it was as i remember it a similar kind of settlement and the federal circuit said no jurisdiction out of here if i'm remembering it accurately i mean the case was technical i'm not familiar want to confess if it's part of the record i didn't look at it to leave the settlement in the record no you don't place with no objection to his bidding it but you do not have this article in the record we may very well ask you to submit that and make that a that the plaintiff's claim activities are too remote to indirect or to attenuated or insufficient so let me give you an example of what mr coleman says is too indirect under that instruction to the jury the record shows that account with their a bank and that he drew in that account to purchase military weapons in support of hamas military activities we have transferred documents that show that he received at least one hundred twenty three thousand dollars in that account fifty four of them in the year before the attack the bank argues that's not enough because we can't show and haven't shown that he drew in the account to purchase the suicide vest that was used in the park hotel bombing all we can show is that he wanted to buy military weapons for they also say that you know we have nothing else that ties into the attack but they've never produced his account records they've never produced the kind of record for any of the twenty four suicide bombers or one hundred forty five amassed operatives that work with them that we've  so that was one of the difficulties to be faced with the but for theory that the bank has advanced in fact on the but for theory if i heard mr clement correctly even if we could show that mr yet had purchased the suicide vest for the park hotel bombing he would say well that's not but for because you could have gotten that money from another bank that can't be the law here and it isn't not in a case where fungible money is the financial service that is being provided as material support to hamas and the applicable law gives me the financial services i understood to be wire transfers and holding money and trant making money available for transfer but not ultimate foreign terrorist organization here hamas they can do so by wire transfers they can do so by holding accounts from which people can draw they can do so by transfer between accounts and they can do so as they did with osama hamdan the bank can actually give the money back to him after knowing that he's a specially designated global target that's refunding from an account that's not like making a contribution it's made it's not a donation or on a certainly we agree with that but it's material support for hamas it's money fungible accounts for any fungible money that is given to bank provided here is a highly unusual one it paid martyrs payments to the families of suicide bombers and others who were injured or captured as prisoners during the second intifada these were paid in cash to non customers in many instances on the basis of sheets that have been prepared by hamas controlled charities that listed the cause of death his martyrdom operation which the bank employee translated as suicide operation now that's not routine banking and in fact that the recipient but didn't you take the position that one of the sources of some of the money was not a customer either i don't believe so i misunderstood i may be incorrect and then you're on about i don't believe so what there was say that because they never produced any accounts for anyone except osama was that if you were taking the position that neither end of the transaction had a customer then i wasn't sure that this was a problem for the bank in terms of bank secrecy but maybe i misunderstood your there were many recipients who held accounts there were also many especially recipients of the martyrs payments who did not which is one of the reasons that we describe this is non routine banking so the proximate cause problem that we face is not really in foreseeability it's not the foreseeability of the risk not withstanding or mr clement said when you pay millions of dollars to hamas in the very period when suicide attacks are spiking and the bank least before the recent amendment of the statute could not be secondary it had to be primary yes so to that extent doesn't it have to be your client's actions that have to satisfy the definition of international terrorism yes under the theory of primary liability is setting aside for a moment which we think provides an alter legal theory here it is our client committed an act of international terrorism but as your honor pointed out the statute doesn't say that that act itself be violent or dangerous to human life although i would argue that giving millions to hamas is it says that it's an activity that involves acts that would be dangerous to human life usually involves means that the violent activity would be a subset of the activities that are international terrorism not the other way around and so i'm not sure how the violent acts or i'm not sure how the bank transfers violent acts help me out i would say they involve acts that are dangerous to human life when they are knowingly given to an organization that is engaged in terrorist activity which is the standard hamas was engaged in terrorist activity in the second intifada virtually daily terrorist attacks including these twenty four admitted acts of international terrorism when you're feeding money to an organization in terrorism it's an activity that involves danger to human life namely the danger that the recipient of the money that has been made and accepted with respect to but of course this was not the bank's money this was money from other people they were transferring contribution to a foreign terrorist organization facilitates terrorist activity that doesn't necessarily mean that it that the activity involves acts dangerous to human life that there's been a lot of courts that have pondered about this when the terrorist activities of the terrorist organization also builds hospitals and does training for advocacy and a host of other things why should  dangerous to human life would argue that if an activity facilitates terrorist activity that it involved the terrorist activity there's not a meaningful distinction in the congress is purpose was to prevent any dollars flowing through to hamas whether they're for martyrs or for social activities and kindergartens or they're directly for terrorist activities because hamas has no accounting mechanism that enables us to distinguish one from the other therefore every dollar is spent to kill  intimidate populations to influence government ordered fact the conduct of government so how does being the bank that gets the money from the donor to the terrorists recipient thirty one defines x mention national terrorism to include any criminal violation of federal or state law so there's a huge range of potential predicate crimes one for example might be eighteen u s c eleven eleven which makes it a crime to murder an american abroad that is planned from the united states suppose the spouse of the murdered victim rings an eighty eight into a terrorism act action against the defendant in such a case there is nothing in the predicate crime that ties it to terrorism so in that case you would have to independently show impair an intent to accomplish one of the terrorist purposes and there are a host of other states almost all the state crime certainly and federal crimes likewise have no terrorist component but twenty five thirty nine b requires the defendant in order to be found guilty of the crime to know that he is providing support for foreign terrorist organization organization in gauged in terrorist activity and in terrorism and when you know that then from an outside observer to see that even though you know that you continue to supply money to the terrorists or the terrorist organization it's at least one apparent intent that you are supporting the activities in the goals of that terrorist organization life food is the same your honor because congress is basically you supply any service other than specific ones medicine etc that are specifically accepted by statute and you aren't you can be liable for having violated criminal laws that involve a violent act and that appear to be intended to intimidate influence or  envision that would not be per se satisfactory here the jury would have to make findings because i'm concerned that what you're basically saying is that congress identified these elements to enable terrorism prosecutions for ordinary street crimes in boca if a taxi cab driver you know robs an american or kills an american we don't mean that you should be prosecuted under this section therefore we require that before prosecution can proceed under twenty t oregon is our first argument is that twenty to thirty nine b violations will always satisfy apparent intent because it's inherently a terrorism crime the knowledge requirement is knowledge that you are applying supplying money to a foreign terrorist or an organization engaged in terrorist activity or engaged in terrorism terrorism terrorism terrorism that is the predicate crime and therefore you shouldn't have to again the stance that the knowledge that the conclude that the activity is appears to be intended to intimidate or influence policy yes that is our argument but the alternative argument is that if there is only a subset of twenty thirty nine b violations for which this is true this case falls within them in this case the bank did not dispute that it had paid two and a half million dollars to eleven u s designated palestinian terrorists and you do not dispute that all of the attacks that injure the plaintiffs were acts of international terrorism that was stipulated before the trial even began in that case if you know that you're supplying money to an organization engaged in terrorist activity when you just have to be careful they are not giving much well i didn't say giving iran they are supplying  or because they are delivering it to the accounts of senior hamas is not the same as they're not donating it they already it's their money and they're choosing to give it absolutely no they're not doing any and they're not contributing their own money but they are supplying it now it was given a careful instruction on knowledge and conscious avoidance and told that it had to find that the support was for hamas in one of the three forms of knowledge the twenty three thirty nine b describes which either knowledge that it was a second intifada constitute an act of international terrorism i think the answer would be yes if you knowingly deliver rockets in the middle of daily terrorist attacks to the prime your terrorist organization and you know that that's what you're doing yes it would appear to be that you were supporting a mouse's effort to transportation it's not routine the minute you know that you're sending rockets to hamas your own as your honor pointed out earlier knowledge is what takes this at a routine bank and it's also what protects routine makes the banks that don't know that they're dealing with hamas and are not consciously avoiding that have no liability and you would say that this is sufficient to create  liability generally with regard to all terrorist acts that occurred during this period in which they were fighting this financial services or would you deal otherwise with the by reason of language and twenty three thirty well they would have to show both causation in fact under the substantial factor version of causation and have to show reasonable foreseeability and they would also have to find of course as the predicate twenty three thirty nine b crime that they're dealing with a foreign terrorist organization hamas had been designated as such since one thousand nine hundred seven not all terrorists in israel you know are designated but their liability is complete once causation is stablished this well that's independent of our discussion of twenty three thirty nine and even with that there has to be both causation in fact as well as proximate cause yes we don't you're saying that it's not but for causing that's correct we're just saying that causation in fact is a requirement that we concede is applicable here but that the background principles of tort law make but for causation just one form of causation in fact and that where there are causes that we can't trace to any one perpetrator then substantial assistance is the alternative background principle caroline used in parallel the supreme court used at war we lax causation standard given very specific circumstances but berridge tends to teach that but for is a as different and more heightened type of causation that has to be proved that absent the activities of the defendant the  causation is ordinarily the causation in fact in you know in an intersection collision it's not an issue but it also said in all three cases that it's not the only background tort principle applicable here and if there are multiple causes that can't be traced in about four cents to the perpetrators then to apply strict but for causation would allow all of them to go free and in that case the tort law had provided an alternative principle and that's what we say this case is the bank says well wait a minute that's only for fires that jointly you know start i mean three causes a fire that you start a fire i think the hypo is not quite accurate so three gas station owners who knowingly so gas to an arsonist is making molotov cocktails in the middle of a riot he then goes and starts a fire with one of them under mr clements theory about four causation all three gas station owners go free nobody is liable because we can trace fungible gas to any one station under the theory the alternative theory that the supreme court is no indorse three times in a row in dictum but a clear dictum if any gas station owner had supplied enough gas then they could be liable causation theory we think the same thing holds true here for dollars and electronic transfers of funds we can't trace mr obvious it's spending money for a suicide vest in the park motel bombing precisely to his arab bank account of a boy we come close if he says he was drawing an account to support hamas military activities but we can say that this would be a substantial factor as were other huge transfers of money hamas during the relevant period in the natural chain of causation you say there is a substantial factor causation that standard was met with regard to all the twenty four events that's correct your honor yes we would argue that merely by providing  generally financial translate well it's not me or your honor i mean the transfers were in the multi million dollars and they peaked in two thousand and one and two thousand and two the period during which most of these attacks took place many of them we can trace by the wire transfer documents to twenty four suicide bombers in one hundred forty five operatives who work with them we know to have done so by reason of conviction and elsewhere we just can't make the last connection for another reason here my g hypothetical maybe you would at least have the gas station receipts we haven't received a single account record from any hamas suicide bomber or any of the hundred forty five operatives the only account records that were ever disclosed with those for osama hamdan and they are telling and they are ones in which i think the jury through its inferences because they show that transfers were made listing the beneficial customers hamas in english and were approved by the deputy manager of operations the account number was used on us as website to raise money and was some of was the leading spokesperson for hamas in lebanon who went to c n n to take hamas credit for the park hotel bombing if that's the only account record we have the jury naturally would say what about the ten other especially or a designated person interest that the bank has admitted having wouldn't the account records for at least some of those ten look like the ones we saw from  inference that the bank i'm sorry that the jury drew and one of the reasons we know that because that gets to the sanctions argument if i understood then the concern they had is  that they would present it to the jury is if they had just dug in their heels and to finally refused to produce the records that they thought the jury should at least have heard about the efforts they get to make to get the records and my question to you is why wouldn't some instruction avoid five weeks of trials but give five sentences to the jury that basically said they were ordered by the court to turn it over there in possession they refused to do so they were invoking a bank law they have they have not always obeyed the bank law in the past in this case they went to the courts and did try to get permission they did not get permission and whatever other keno about the extent of their defiance because that might have been pertinent to what they were trying to hot when your honor first of all inference instruction that we would be that the jury could draw the inference from the that they could they said verdict on the credible evidence have allowed them to draw on adversity for instruction would have been that you were permitted based on the credible evidence that the plaintiffs are produced to infer the following statements and the reason we went looking for that instruction was that we wanted the jury to be able to infer from the home to an account the only one that was produced that the other accounts might contain similar other than the inference we guess we want to dine in france  will be prosecuted or are they also to be told i think we'd be fairly entitle to but they did produce those documents in my elation of their own law and incidentally the documents were mainly from palestine the pa position that if the american red cross wants to provide food to everybody in the palestine territories at the relevant time that it's potentially liable under the same theory that they're offering here which is that's material support material support so facto satisfies all four conditions and that is just crazy and that problem is going to be fixed prospectively because the section d added by jasta provides a good mechanism to separate the sheep from goats and their theory that all you have to do is show material support and that's the end of it is not met for that task judge kaplan it would have to be the shipping company shipping boxes or rockets it could be shipping boxes of bread or boxes of fuel and the same logic that's material support and nothing else would matter and then of course to bring it closer to the analogy to this case if there were a well established protocol for shipping companies to make sure that they weren't providing these kind of things to terrorists and there were less that they were supposed to check them against and they did all that and they checked the lists and they nonetheless delivered some goods to some people who weren't on any list at the time but later turned out to be terrorists that would be enough to impose liability and that's what we're talking about here as to these three bombings the twenty four people were not on any lists until they were dead because they were involved in the terrorist attacks so keep in mind that what we're talking about here is not the knowing provision of funds or financial services to hamas knowing full well that these are hamas people but it's providing financial services to twelve charities none of whom are listed at the time and at the time of the relative events nine of the twelve charities were processing us a id phones i mean so this is really kind of this back and sort of retroactive gotcha that you provided services to people who were on the lists that you were supposed to check in then after the fact they turn out to be terrorists therefore you provided support to hamas in part because of the instructions that the jury was given the adverse instructions they find knowingness and that's supposed to be enough to impose liability that's very problematic to spew other very brief kind of specific points you've heard a lot about this harm done records and the jury heard the very damning testimony that after one hundred account was first opened up in their transactions he wasn't on a list he later was put on the list now that sounds pretty good and then at the point he's put on the list arab bank closes the account so far that sounds pretty good but what they were allowed to tell the jury to make arab bank not look good is that after they knew he was a list of terrorist they gave his money back to him but of course what the jury wasn't allowed to be told by my clients is they only did that because the law of the jurisdiction levanon required them to do that now that obviously is something that puts the fact that the money was returned in a very different light but that was kept from the jury under this general rule the jury can't hear anything about foreign law the last point is you've heard a lot about the saudi murder payments two things just to contextualize that one is this is the same program that collin powell went on meet the press or face the nation and said it was a fine program so this is not something that only arab bank would have gotten volved in processing and that somehow this was obvious from the get that this was hugely problematic this was  nominated i mean we're hearing it is you know pay the martyr's program but how was it denominated by the secretary of state was he at that time yes he was i believe and he was either in office or just left and it was denominators a humanitarian aid program to people in this admittedly war torn area and so that's the way that was understood but the last point i'll leave you with is that's the one place they got the records they got a hundred eighty thousand pages of records and again the twenty four individual  evidence that united states officials described it as an excellent program i don't think we were but i'd have to check that your honor but i guess the one thing i do want to leave you with is the idea that as to the one hundred eighty thousand pages of records where they got all the recipients none of the twenty four individuals involved in these bombings were what if any proof were made specifically with respect to the evidence that you say shouldn't have been kept out i think there were offers of proof that were settlement agreement and second we will ask for letter briefs ten pages double space on why we have jurisdiction whatever in light of whatever the settlement agreement says and  his errors here am i correct that your position in light of this settlement is once we identify one were done because if we were to identify anything which this case would have to be retried were reversed or anything do that i mean if if we would have signed for instance that yes you were entitled to a charge that i that told the jury all the elements of of a terrorist act they were told that here are we done because there's not going others i don't know that you would your honor i was just what i was suggesting is for example i think the fact that you found an instructional the failure to instruct on the four statutory elements wouldn't i don't think in the normal course preclude you from actually needing to consider th again i would just repeat the cabbie at that i i don't think that follows in the sense that if you agreed with us on a new trial issue i don't think that would obviate the normal ability and in fact requirement for you to consider the j mot i think once bothering more than capable of speaking for yourself but as i understand it bothers me his well we don't sit here to provide opinions to fit into some settlement agreement that the parties i have  questions as to whether we should be deciding anything but even if i get over that hurdle i'm not sure i understand why we should go any further in this case if we are example we find instruction her on your first point to resolve the question of whether there was instructional error on the coup was a should whether the evidence was sufficient on a correct instruction whether the sanctions involved in abuse of discretion which we might very well do if there was to be a new trial and i don't mean to belabor the point your honor what i would simply say is i think with respect to the new trial issues once you decide that there is a new trial issue then you then i think it's as a matter of pru court to decide whether it wants to reach other alternative grounds for a new trial and the fact that well and the fact that there isn't is a potential factor i think that you could use i don't think though that that would be a reason not to consider this i think we were not aware of this settlement or the fact that it was going to obviate the need for a new trial in preparing for this argument today so to the extent you could argue that we do have jurisdiction despite the settlement i would ask you to assume it is an assumption we have and we've made no decisions that were so mean that if we identify one error we're done and if you don't agree with that please tell us why of course we may find no error which is another matter altogether but if you don't agree with the fact that in light of the settlement all we have to do is find one error and please tell us why ok ok thank you very much thank you to both sides we kept you a long time but we did want to make sure our questions were answered the other cheek a sun our calendar today or submit it was 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