Harpoon
Page 14
The law,4 sponsored originally by Senator Chuck Grassley, a Republican from Iowa and later by Representative Edward Feighan, a Democrat from Ohio’s nineteenth congressional district,5 came as a response to a growing scourge of terrorist attacks that had targeted American citizens and American properties around the world, including the bombings of two United States embassies in Beirut, Lebanon, in 1983 and 1984; the hijacking of a foreign cruise liner, the MS Achille Lauro, by the PLO and the gruesome murder of an elderly New Yorker, Leon Klinghoffer, in his wheelchair; the kidnapping of American citizens in Lebanon; the 1986 hijacking of Pan Am Flight 73 in Karachi, Pakistan; and the December 1988 bombing of Pan Am 103 over Lockerbie, Scotland. The law was to provide a new criminal and civil cause of action in federal law for international terrorism that allowed extraterritorial jurisdiction over terrorist acts abroad against United States nationals. The execution of Klinghoffer and America’s legal impotence to respond because it lacked jurisdiction outside the United States’ borders had outraged congressional leaders.
But a subsection in the act interested Harpoon the most. Subsection 2333(a) covered civil remedy provisions, namely:
Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefore in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.
Lawsuits seeking remedy under the 1992 Anti-Terrorism Act were decided in U.S. federal court, usually in New York or Washington, D.C. The Israeli agents liked to fight their battles on friendly ground. They also knew that the notion of “threefold the damages” could possibly be fatal to an institution that facilitated the deaths and horrific injuries of so many. “A ruling in a U.S. courtroom,” an agent from Harpoon recalled, relaying the sentiment, “could be more lethal than a squadron of Israel Air Force F-16 fighter bombers.”6 In the years following the September 11, 2001, attacks, the number of lawsuits filed under the U.S. Anti-Terrorism Act and similar laws have more than tripled compared to the fifty cases the decade before.7
Certain criteria had to be met in order to initiate third-party legal action, however. There had to be victims of Palestinian terror who were killed or wounded in attacks that could be linked directly to the banks. The victims had to be American citizens, of course. They had to be interested in suing in court and reliving the death of a loved one, or their own harrowing encounter with suicidal terror. And, of course, the plan needed lawyers, preferably Israeli attorneys, with enough knowledge of terrorism and the American legal system to successfully sue.
There was one attorney who had already started some work in this realm, going after state sponsors of terror and bringing suits against the terror organizations in the Israeli and American courts. She and her colleagues had won large judgments and posted liens on terror money. Dagan wanted to better understand what was happening in lawsuits being filed against Israel’s enemies and suggested Uri make a call.
Nitsana Darshan-Leitner didn’t hear the phone ringing one summer morning in 2004. Construction crews were using dynamite and heavy earth-moving equipment to rip apart the 471 Road that connected Highway 40 to Highway 4, and residents of Kiryat Ono, a quiet Tel Aviv suburb of quaint homes and lush rows of eucalyptus trees, who hadn’t escaped the inconvenience were forced to shut their windows to keep the suffocating dust out.
Nitsana maintained an office in a two-story house in Kiryat Ono that could accommodate her growing practice dedicated to assisting the victims of terrorism and placing the spotlight on the nations—Syria, the Islamic Republic of Iran, and North Korea—that openly supported the Palestinian terrorist factions killing Israeli civilians. The daughter of an Iranian-born school teacher and a dressmaker, Nitsana became interested in legal remedies to the terrorism issue while completing her legal studies at Bar-Ilan University, and attended the trials of Palestinians charged with terrorism offenses in military courts in the West Bank to not only observe the procedures but to learn more about the victims.
Her first action, mounted in 1994 while she was still in university, was to petition the Israeli Supreme Court to deny Muhammad Zaidan entry into the newly formed PA through Israel’s borders. Zaidan was, in fact, Mahmoud Abu Abbas, the commander of the Palestine Liberation Front and the man who ordered the seizure of the cruise ship MS Achille Lauro in 1985 and the murder of Jewish-American Leon Klinghoffer. Nitsana and some classmates brought the suit but they selected her to present the case before the magistrates, she would later tell the Israeli daily Ma’ariv, hoping that the judges, old-timers without much tolerance for antics in their courtrooms, wouldn’t yell at a young woman and hit her with a fine for court costs.8
Nitsana envisioned using the courtroom as an alternative weapon to the battlefield in the fight against terrorism. Crowded and uncomfortable, Nitsana’s law offices looked more like a frat house than a legal nerve center. It hardly seemed like the setting for a group of lawyers that an arm of Israeli intelligence would turn to. The white walls were decorated with framed portraits of courtroom scenes and legal images. A cigar-store Indian figure rested near a doorway; an antique Victrola sat on a shelf. Rock posters were hung in the staff office, and a carpet of papers and files, in both English and Hebrew, were strewn about the floor. Interns from the United States slept in the office. Attorney Roy Kochavi virtually chained himself to his desk, working on cases against the Palestinian Authority and the PLO around the clock.
The men and women who had worked COGAT before and after the intifada knew who the lawyers were. Nitsana was a frequent spectator in the Israeli courtrooms and often petitioned the military authorities for copies of case files. She had started her activism with an array of terrorism cases, including those filed in U.S. federal court, on behalf of Americans killed or wounded in terrorist attacks seeking damages as well as to shine the spotlight on the state sponsors. As she tried desperately to sustain her practice doing criminal, real estate, and collections work, the terror victim litigation began to absorb much of her time.
When Nitsana finally heard the phone ringing amid the earth movers and the blasts of dynamite detonations, she wondered if the person on the other end was a possible client or maybe even a bill collector. Instead, it was a baritone voice who spoke in a curt cadence laced with authority. The voice belonged to a man in charge, someone from the security services, which was used to issuing orders. She recognized the voice. “The man on the other end of the call asked me to come see him at an office near Tel Aviv, to meet with some government officials,” Nitsana recalled. “I was told not to discuss the appointment with anyone. I was ordered not to record the meeting, or the address, in my diary. Come to an official meeting, the invitation went, but remember the meeting doesn’t exist.” This was not the first time she had met with agents from the intelligence branches. Periodically over the past few years, she and her associates had been called to casual meetings with Harpoon representatives at different locales to discuss her legal work against the terrorist organizations and rogue regimes. The updates seemed to Nitsana to be a curiosity for them. This time, however, the caller sounded more cryptic, more serious. The call was official.
There was always a risk, of course, in involving outsiders. And, both Dagan and Uri knew, the interests of an attorney, even one with a greater social agenda, might not necessarily coincide with the intelligence branches’ agenda or even the long-term strategic outlook of the State of Israel. “We had known about Nitsana and we wanted to speak with someone who understood terrorism and the law,” Uri remembered. “And of all the attorneys out there who did this sort of thing, we felt comfortable working with someone imaginative whose long-term philosophy was similar to our own.”9
Several intelligence officials were also present at the meeting Nitsana attended. They chose to remain anonymous. The discussions lacked the usual familiarity that Israelis used
in meetings with one another, even inside the security establishment. Nitsana was asked to explain the murky world of lawsuits. The spies were on a fishing expedition, curious students trying to absorb as much as they could at one meeting in a secretive location in Tel Aviv. How did the U.S. courts work? How would the families of the victims be involved? What type of expert witnesses would be needed in courtroom testimony? Would anyone from the intelligence community—indeed, from Harpoon itself—need to testify in open court? Dagan’s grand vision wasn’t one that was new to the Israelis, but it was one that would be, in most parts, outside their realm of control. The last thing that Dagan wanted was for Harpoon to become the center of attention in a courtroom where the press, outside the security protocols of the State of Israel, could print methods of intelligence gathering. Still, the Harpoon representatives were intrigued.
The first meeting inevitably resulted in a second sit-down. Less formal gatherings soon followed, always with Dagan’s representatives. The initial tension around the appointments lessened. Nitsana was asked to meet the men in cafés and restaurants. The spies always came early to the meetings, and they always came in pairs; out of habit, they tended to prefer back tables so that a wall was to their backs. The conversations were also held in low voices, so that nearby tables or waitresses couldn’t eavesdrop. No one ever ordered any food—only coffee or soft drinks. The intelligence branches were never known to spend lavishly. The men were always glancing past Nitsana’s shoulders, hoping that prying eyes were not focused on them.
At first, the intelligence specialists scoffed at a judicial battlefield option. One of the men, a hulking Shin Bet official who had obviously made his career in the field fighting terrorists in the most dangerous precincts of the West Bank, thought that the whole idea was pure bullshit. When, in one of the meetings with Nitsana, they discussed how Iran moved money through Lebanese banks for Hezbollah and other groups, the Shin Bet agent leaped up from the other side of the table and yelled, “So what are you going to do, ruin Hezbollah’s FICO score?”
But that was exactly what Meir Dagan hoped the lawyers would do. He wanted to wreak havoc inside the terrorists’ financial world. Dagan advised Uri to empower the legal option. There were other attorneys in Israel and the United States who were also looking into the possibility of lawsuits, but Dagan believed the effort needed to be focused and sharp, like a dagger, and not a free-for-all of litigious bodies fighting an ineffective fight and possibly fighting with one another.
In late 2002 as the bloody intifada violence continued, the Israeli lawyers were determined to respond to the challenge and focus their energies solely on cases that helped the terror victims to fight back. As more and more bombs exploded, more and more families were calling the law office asking to be represented in lawsuits. The government was also pressing how important the cases were and encouraging the lawyers to file more of them. But the families could not afford to pay the costs involved with the litigation. Somehow a better structure had to be created so that all these additional cases could be filed and resourced.
Nitsana, along with attorney Mordechai Haller, a brilliant young legal strategist, and her husband, Aviel, who she met at Bar-Ilan University Law School, assisted in organizing a framework to help the terror victims in their legal struggle. They modeled it on a U.S. organization, the Southern Poverty Law Center, and its use of legal remedies in the fight against racism. The Southern Poverty Law Center, created in 1971 in Montgomery, Alabama, was a nonprofit legal organization that targeted racial intolerance and specifically racist groups such as the Ku Klux Klan and neo-Nazi movements in the United States with great success. Their Israeli version of this project would be called Shurat HaDin, Hebrew for the “letter of the law.” Shurat HaDin’s main goal would be to support litigation against those who perpetrated terrorism targeting Israel and the world Jewish community. A committed legal front would be opened in the battle. The first tactical discussions between Harpoon and Shurat HaDin were generally with Uri and Shai. The two men had become a tandem inside the ranks of Harpoon. The pair was entrusted by Dagan to use their unique skill sets to accomplish whatever tasks needed to be done. They were appointed to be Shurat HaDin’s liaison. Forensic accountants and in-house legal advisors, some completely fluent with the intelligence gleaned from Green Lantern, were also included in the mix. The accountants and lawyers didn’t introduce themselves at the meetings. They were nameless experts who looked so benign that it would be impossible to ever mistake them for talents working for Israel’s famed espionage service. Other individuals, more of the anonymous intelligence specialists, were brought around for introductions so that they could one day be summoned to serve as expert witnesses.
Harpoon never instructed the newly launched law center to sue any specific financial target. Shurat HaDin wasn’t working on behalf of any government agency. That would have been inappropriate. But there were always suggestions, though; useful hints that were offered. “Harpoon never directed us,” Nitsana recalled, “but rather they explained situations and threats and dangers that Israel and the Jewish community were facing and there was a challenge to be creative in thinking up solutions or tactics. We were able to draw our own conclusions.”
For the lawsuits to work, Dagan knew, Uri and Shai would have to work in coordination with Shurat HaDin on the facts and details, some of which would provide irrefutable evidence linking targets to specific attacks. Security officers in the Shin Bet and A’man waged a furious campaign to stop Dagan from releasing information to those who were not “eyes only” worthy. But he wielded the same persuasive sledgehammer used when he commanded the undercover unit in Gaza and wanted things done his way. “There was no point in challenging him,” Uri remembered. “He was always right.”10
The first cases that were brought were pursuant to a special exemption to the Foreign Sovereign Immunities Act, which allowed terror-sponsoring regimes, such as Iran, Syria, Sudan, Libya, Iraq, North Korea, Algeria, and Cuba, to be sued in American federal courts for liability in attacks perpetrated by the terrorist groups they supported. Each time that Hamas or the PIJ carried out a terrorist attack and killed an American citizen, a lawsuit would be filed by the attorneys against Iran and Syria, which provided material support to the Islamic terrorist groups. The support could be weapons, training, safe haven, and especially financial backing. The plaintiffs argued that the outlaw regimes were vicariously liable for the extremist violence they supported. Most of these suits were filed in the district courts in Washington, D.C.
Next were the cases against the terror organization themselves along with the entities that supported them. Civil actions against Hamas, the PIJ, the PLO, and the Palestinian Authority were commenced in the district courts in New York and in Jerusalem. The suits being brought were filed under the Anti-Terrorism Act and Israeli tort law. International terrorism experts, former intelligence officials, and retired military officers were hired to prove legal liability. Medical doctors, psychiatrists, accountants, economists, and videographers were retained to establish the emotional and physical damages as well as the economic losses inflicted upon the victims and their families. Translators specializing in Arabic, Persian, and Hebrew were employed to decipher the foreign-language documents and materials, and allow the lawyers and judges to understand them and utilize them as evidence in court. Depositions were held both in Israel and across the United States. Some were held in Europe as well. Many lawyers traveled back and forth between the Middle East and the United States, sometimes several times a month.
One of the earliest cases that was brought was on behalf of Aaron Ellis. Ellis belonged to a community known as the “Black Hebrews.” They were followers of Benjamin Carter, a former Chicago bus driver who went by the name Ben Ami Ben-Israel after he immigrated to Israel from the United States in 1970 with a short stopover in Liberia. Declaring themselves to be the true Israelite people, the forty-eight families arrived on tourist visas and then refused to leave, insisting that under Israel�
�s “law of return” they, like all other Hebrews, had a right to citizenship. The group moved to the then most-neglected region of the country, the Southern Negev Desert, and set up camp in the city of Dimona. The Israeli government, sensitive to public opinion in the United States, decided not to create an international spectacle by deporting the African American families. Aaron Ellis was the first child born to the community in the Negev.
Blessed with musical talent, he pursued a career in singing, often being employed at Israeli weddings and celebrations all across the country. On the evening of January 17, 2002, he was onstage with his band in the Armon David Hall in the town of Hadera, performing before 180 guests, mostly recent arrivals from the former Soviet Union, at a Bat Mitzvah celebration.
Unknown to the revelers at the hall, a Palestinian from the al-Aqsa Martyrs Brigade, Abed Hassouna, had infiltrated into Israel that night. Armed with an automatic weapon, he opened fire on guests leaving the celebration and then killed the guard at the door of the hall. Once inside, he began to spray the crowd with gunfire. As the chaos erupted, Aaron Ellis attempted to shield another performer by pushing her to the ground and covering her with his own body. He was hit several times and bled to death on the floor. By his actions he managed to save the life of his band mate. Five others were killed in the attack and thirty-five were wounded.
As the intifada violence continued, and more and more lives were lost, the victims and families began to seek out the Israeli lawyers, asking that they represent them in legal actions. In short order the young attorneys were overwhelmed with all the cases being brought to them. Their meager resources and work space were proving way too inadequate. Shurat HaDin moved into a new office in Ramat Gan, just across the highway from Tel Aviv. The Victrola was gone, as were the rock posters and files on the floor. Additional staff was hired.