I am posting this on behalf of the indomitable Aaron Eitan Meyer:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
When this country was still deciding whether to adopt a Constitution, Alexander Hamilton explained how laws should be interpreted under it. “The rules of legal interpretation are rules of common sense, adopted by the courts in the construction of the laws. The true test therefore, of a just application of them, is its conformity to the source from which they are derived."1
Hamilton was writing in 1788, and though his arguments played a crucial role in the ratification of the Constitution, it is fairly obvious that his theory of legal interpretation has not been passed down. Had it been, there is no way that the Seventh Circuit Court of Appeals could have ruled as it did in the recent appellate case of Boim v. Holy Land Foundation.2
In an Opinion marked by legalistic twists and turns, the Court essentially found that affirming the lower court's judgment in favor of the Boims "...would transform the doctrine of proximate causation from a principle that limits tort liability into one that expands liability, essentially rendering a defendant who intended to aid Hamas’ terrorist activities strictly liable for all foreseeable injuries even if that defendant’s aid actually did nothing to enable the terrorism and the injuries it inflicted..."3
Setting aside the fact that the Court was openly antagonistic in its Opinion to the expert witness brought forward by the Boims, the fact that it ignored findings of a District of Columbia Court which had found the Holy Land Foundation liable for terrorist acts by Hamas, and the Court's deliberate dancing around the very nature of Hamas, and its involvement in the terrorist murder of David Boim, one is struck by the sheer ridiculousness of the ultimate holding of the Court.
The problem, as the Court saw it, was that it wouldn't be fitting to hold someone who sought to aid terrorists liable unless it was absolutely proven that there was a direct causal link to the terrorist act in question. To put it more plainly, as far as the Court is concerned, anyone seeking to obtain a judgment against those who've financed the death of a loved one must somehow be able to trace the actual money itself - an impossible task.
The Court later attempted to justify its counterintuitive ruling, after admitting that "...[a] plaintiff might well be unable to show that a terrorist organization such as Hamas depended on a particular donor to support its terrorism..."4 by stating that "...a careful showing that many small donations collectively resulted in a cache of funds that in turn enabled a series of terrorist acts would permit a factfinder reasonably to infer a causal connection..."5
Just how a plaintiff might be able to use classified information to track down such 'small donations, ' much less which 'cache of funds' was used is, of course, left completely unclear. The Court dismissed the bulk of statements in the Watson Memorandum, prepared by the Assistant Director of the FBI’s Counterterrorism Division in order to support the finding of the Holy Land Foundation as a terrorist organization, citing evidentiary rules against hearsay.6
Moreover, the Court misrepresents the nature of the evidentiary rule cited, being R 803(8) of the Federal Rules of Evidence. In all but calling the core of the Watson Memorandum inadmissible hearsay, the Court denied the third-party statements as falling under the exception. However, a reading of the statute in question demonstrates that the Court improperly applied the law of evidence.
Rule 803 is a collection of exceptions to the hearsay rule, which demands that out of court statements that cannot be corroborated during the trial are inadmissible. What R 803 says about third-party information used in a report made by a public official is that it is admissible "...unless the sources of information or other circumstances indicate lack of trustworthiness."7 The Court decided of its own accord, and without any evidence to support its finding, that the sources relied upon in the Watson Memorandum are somehow untrustworthy - completely upending the meaning of the Rule itself. In fact, the District Court was correct, while the Court of Appeals created its own requirements to add to R 803.
Directly contrary to the Court's misrepresentation of the Rule, the Advisory Committee's Note on the section states that the Rule "...assumes admissibility in the first instance, but with ample provision for escape if sufficient negative factors are present."8 Perhaps it is too much to presume that Judges and their law clerks be intimately familiar with the intricate laws of evidence, but when a Court overturns a lower court's holding on the basis of a completely wrong and indeed antithetical misconception of a rule, one must wonder at the Court's motivation and guiding principles.
However, it is not in the area of misunderstanding the Federal Rules of Evidence where the Court engages in its worst hair-splitting. As the Dissent notes, the Court's depiction of the expert witness provided by the Plaintiffs is remarkable. Dr. Reuven Paz, well-known in the field of counter-terrorism, is dismissed as "...a former member of the Israeli security community who describes himself as an expert in terrorism and counter-terrorism, Islamic movements in the Arab and Islamic world, Palestinian Islamic groups, and Palestinian society and politics."9
The first point to note is the fact that the Court felt the need to mention Dr. Paz' experience as being related to Israel. The second, of course, is the fact that the Court has somehow decided, of its own accord, and without any supporting information, that Dr. Paz' expertise is open to question. 'Self-described' indeed. In fact, Dr. Paz has been head of the research department for Israeli General Security Service, among other notable positions, both military and academic. More recently, between the years of 1997-2000, Dr. Paz "...was the academic director of the International Policy Institute for Counter-Terrorism (ICT) at the Interdisciplinary Center in Herzliya, Israel."10
Nor was the Court satisfied with dismissing the qualifications of such an expert witness. The Court decided that the knowledge of Hamas-run websites that Dr. Paz relied upon was also suspect, picking away at his conclusions by intimating that his methodology was suspect, and otherwise insufficient to base expert testimony on. This, even though the Court freely acknowledged that, "...the rules of evidence do not limit what type of information an expert may rely upon in reaching his opinion; even if that information would not otherwise be admissible in a court proceeding, an expert witness may rely upon it so long as it is the type of information on which others in the field reasonably rely."11
Once again, the Court misconstrues the Federal Rules of Evidence, even in its own logic. Essentially, the Court ran an end-run around FRE R 703 by claiming that it was impossible to determine the credibility of Dr. Paz' declaration without analyzing his methodology. Again, in effect, the Court was denying his expertise, though attempting to hide it behind open questioning of the utility of website-based evidence. In actuality, the Court was manifesting disbelief in Dr. Paz' research, rather than actually engaging in analysis of the websites themselves or any other substantive issue.
Nor was the Court done smearing Dr. Paz. He relied on testimony obtained during a Palestinian trial of one of David Boim's murderers, sending over the notes of an American foreign service officer via the U.S. Consulate General in Jerusalem. The Court made much of the fact that the report and accompanying explanatory letter are unsigned, terming it "unacceptable" and assuming that "...that Paz knows more about these documents and that he would not have relied upon them if he had doubts about their authenticity."12
The Court again clearly proceeded from the presumption that any conclusions reached by Dr. Paz must be laid bare to the Court's satisfaction before they could have any utility, stating that "...a factfinder could not evaluate the soundness of Paz’s conclusion without knowing what these documents say."13 By this point, it should come as no surprise to the reader that the Court has once again substituted undocumented supposition for legal doctrine.
Rule 703 states that data normally relied upon by experts in a field "...need not be admissible in evidence in order for the opinion or inference to be admitted." It is only when such information is otherwise inadmissable that the judge must determine the probative value of such information. While Rule 704 states that "[t]he expert may in any event be required to disclose the underlying facts or data on cross-examination" it does not make mention of an appellate court demanding a lower court to raise the matter sua sponte.
It is laughable that the Court concludes the section of its Opinion by stating that "...the Federal Rules of Evidence continue to govern, and the hearsay issues presented by such evidence demand careful attention and resolution."14 Even as the Court continued to nitpick at Dr. Paz in the next section of its Opinion, it perhaps forgot to read the Advisory Committee's Note on R 702,15 which it attempted to use to further justify its contentions in the face of the Dissent.16
As every law student studying evidence knows, the notes of the Advisory Committee are essential to understanding the purpose of the Rules and amendments thereto. It is therefore telling that the Committee made it a point to state in its notes on the 2000 Amendments to the Rule that "[n]othing in this amendment is intended to suggest that experience alone - or experience in conjunction with other knowledge, skill, training or education - may not provide a sufficient foundation for expert testimony."17
Perhaps the Court believed, in it's flawed perception of Dr. Paz' qualifications, that his testimony was somehow based primarily on 'experience.' That would indeed trigger the 'gatekeeping' function of the Court, as the Advisory Committee Note states. However, as has been demonstrated above, to demean Dr. Paz considerable qualifications, training and expertise as mere 'experience' is to deliberately misconstrue the very nature of his testimony - as indeed the Court did.
While the Court's statement regarding the governance of the Federal Rules of Evidence is laughable, the bitter irony of its later statement is tragic. "Belief, assumption, and speculation are no substitutes for evidence in a court of law."18 As it engaged in all three under the guise of the law of evidence, one is left bewildered at how an appellate court could conclude in such a fashion after spending over 80 pages attempting to erect a legal framework over just those three foundations.
The Court remanded the case to the trial court, with its ill-thought directions, and perhaps the lower Court will be able to rule correctly once more, despite the nigh-incomprehensible and circuitous 'logic' employed by the Court of Appeals. Perhaps the case will be heard by the Supreme Court. It is galling to realize that the only Court in the land that could adequately rebuke the Seventh Circuit Court of Appeals is the least-likely to actually hear the case.
In deciding the appeal as it did, the Court has made itself an invaluable aid to proponents of terrorism, both here and abroad. To term it a miscarriage of justice is to overshoot the matter, as it is abundantly clear that the Court cared little for the notion, as little, perhaps, as it cares for clear rules of legal interpretation. It is certain that a clear interpretation could not support the holding in this case.
1. Federalist No. 83
2. Decided December 28, 2007
3. Boim at 65. Howard M. Friedman, Professor of Law Emeritus of the University of Toledo cited this very statement in his encapsulation of the case, in his blog entry Judgment Against Holy Land Foundation and Others Reversed by 7th Circuit, http://religionclause.blogspot.com/2007/12/judgment-against-holy-land-foundation.html
4. Boim at 66
5. Id
6. Id at 81-83
7. FRE R 803(8)(C)
8. 56 FRD 183, 311
9. Boim at 83
10. Indeed, Dr. Paz has testified as an expert witness in 16 recent trials involving terrorism. http://www.theisraelproject.org/atf/cf/%7B84DC5887-741E-4056-8D91-A389164BC94E%7D/MMMBIO.REUVEN%20PAZ.DOC
11. Boim at 86, citing FRE 703
12. Boim at 88
13. Id
14. Id
15. 56 FRD 183, 282
16. Boim at 89
17. 56 FRD 183, 282
18. Boim at 93
Comments