Harpoon

by Nitsana Darshan-Leitner

  What bound the terrorist incidents together was the fact that they were all perpetrated, organized, outfitted, assisted, encouraged, rewarded, and financed by employees of the Palestinian Authority and the PLO. Some of the attackers, and those that supported them, were salaried members of Arafat’s security forces. Some were policemen, others were PLO officials, and some were members of Arafat’s notorious Praetorian guard, Force 17. Many of the terrorists acted on behalf of the al-Aqsa Martyrs Brigade, an armed militia of the PLO’s Fatah Movement. The Palestinian Authority sought to distance itself publicly from the al-Aqsa Martyrs Brigades, but in fact, they were funded and directed by Yasir Arafat himself. In June 2004, then Palestinian President Ahmed Qureia openly stated this: “We have clearly declared that the Aqsa Martyrs Brigades are part of Fatah. We are committed to them and Fatah bears full responsibility for the group.” Shortly afterward, he added, “The al-Aqsa Martyrs Brigades, military wing of the Fatah movement will not be dissolved and Fatah will never relinquish its military wing.”6

  According to the plaintiffs’ arguments, the attackers were on the payroll of the Palestinian Authority and the PLO. The defendants provided the terrorists with training, weapons, explosives, funding, and safe houses. When an attacker was arrested and imprisoned by Israel, he continued to receive his monthly salary in the Israeli jail. If the terrorist was killed in the course of carrying out an attack, his family would receive “martyr payments” from the Palestinian Authority. Moreover, those who sat in prison for lengthy sentences would be promoted in rank every two years, along with an increase in pay. The families also alleged that the Palestinians indoctrinated their security services to carry out violence against Israelis and Jews, labeling the struggle as a holy war. They glorified the martyrs—the suicide bombers who targeted Israeli civilians. Town squares and sports events were named after dead terrorists, and Palestinian television ceaselessly broadcast programs praising the terrorist groups and those who were killed fighting against Israel. Accordingly, the lawsuit charged that the PA and the PLO were vicariously liable for the attacks perpetrated by their employees with their encouragement, and inducement, and in the course of their duties. Moreover, they were liable for aiding and abetting terrorism under the Anti-Terrorism Act.

  In response to the terror victims’ suit the defendants filed a motion to dismiss, contending, among other matters, that they were a sovereign state and, thus, were protected by immunity from lawsuits. They also argued that the court lacked personal jurisdiction, as the PA and the PLO were not present in the United States. Finally, they raised the defense that the alleged terrorist attacks were legitimate “acts of war” that could not be adjudicated by a court.

  In 2008, the district court handed down its decision rejecting the PA and the PLO’s arguments, and the Sokolow case progressed into discovery and depositions. The defendants utilized every opportunity to stall the proceedings and every trick to oppose the plaintiffs’ demand for documents and evidence. The Palestinians’ steely reluctance to cooperate with the discovery process was driven by a hidden secret: The Palestinian security services maintained extensive files on every terrorist who was convicted of perpetrating attacks against Israel. The records provided personal profiles of each individual, including his family background, his rank, his attitude toward the “armed struggle” against Israel, the length of his sentence, and most important, the details of each and every payment made to him by the PA and the PLO.

  Once the records found their way to the plaintiffs’ lawyers’ hands, they understood their significance and magnitude, and that they had a powerful case to present to a jury. They were ready to take the Sokolow case to trial.

  The publicity spread like wildfire as cases like LCB, Arab Bank, and Sokolow were filed and the newer cases against the state sponsors, various Palestinian organizations, and banks were launched. The personal injury bar sprang to life and began to file anti-terrorism cases against all sorts of financial defendants. Suddenly the same law firms that had once declined the Israeli lawyers’ invitation to become involved in terrorism cases, because they were too speculative and they feared judgments would be uncollectible, began filing lawsuits against every conceivable sovereign target. Actions were filed against Iran, Libya, Syria, Algeria, Sudan, and North Korea alleging they were providing material support for terrorism. The proceedings against the rogue regimes moved relatively quickly.

  Many of these outlaw states ignored the lawsuits, since they do not recognize the United States or its courts’ authority over them, and so wound up with multi-million-dollar judgments against them on default. Others, such as Syria, the PLO, and the Palestinian Authority, hired Ramsey Clark, who served as United States attorney general during the Johnson administration, as their attorney. Clark, son of former Supreme Court Justice Tom Clark, had become the patron saint of revolutionary causes, opposing the war on terror, and representing such scoundrels as Charles Taylor, Slobodan Milošević, Saddam Hussein, and Lyndon LaRouche. Clark took the position in each terror case that the defendants were entitled to sovereign immunity. The courts ruled against him every time, but even after losing the issue on appeal he quixotically insisted on his immunity arguments and refused to defend the cases on the facts and merits. The inevitable result was large judgments against his clients.

  Other law firms focused on the banks and filed suits against financial institutions they believed were providing services and transferring funds for the terrorist groups. Cases were filed against banks such as UBS, Crédit Lyonnais, National Westminster Bank, Commerzbank, HSBC, Barclays, Credit Suisse Group, HSBC Holdings, Royal Bank of Scotland Group, Fransabank SAL, Banque Libanaise Pour le Commerce, Bank of Beirut, Bank Libano-Française SAL, Middle East Africa Bank, and Standard Chartered, as well as Iranian banks and some financial institutions in Asia.

  Additionally, Nitsana and her colleagues continued to bring actions against the Palestinian Authority, the PLO, Hamas, the PIJ, and Hezbollah. These cases, pursued under the Anti-Terrorism Act, were frequently defended by defense firms and took many years to litigate.

  Once a suit was initiated by one lawyer, several other law firms could be counted to pile on, filing their own copycat suits. A terror victim’s litigation bar began to emerge, with law offices specializing in this type of practice. On the opposing side, certain law firms began to carve out a niche representing banks and other defendants accused of aiding and abetting terrorism. Once a financial institution was named in a suit, they ran to these large white-shoe firms to defend them. The billing amounts on the cases by defense counsel quickly rose to astronomical heights; indeed, in some cases the litigation costs were large enough to concern the institution’s management and shareholders. The suits became a cash cow and an important source of income for certain law firms at a time when the U.S. economy was slipping toward recession.

  Providing financial services to terrorist organizations proved to be outrageously expensive for banks. A Shurat HaDin lawyer joked with one of these defense attorneys about the amount of hours they were racking up in the endless motions practice, “You are in the same business as we are, bankrupting the bad guys through litigation.” When law review articles about the cases and decisions were published, when law schools began to teach courses on terrorist victim litigation, and as conferences dedicated to terrorist victim litigation were organized, the attorneys knew they had arrived. Some enterprising former Israeli intelligence officers even got into the act, setting up consulting firms that specialized in advising banks and companies in best practices and how to avoid expensive terror victim litigation.

  However, obtaining a favorable court decision was only half the story: The multi-million-dollar judgments were worth nothing if they could not be satisfied. Scofflaws like Iran and the terrorist organizations could not be expected to pay up. The plaintiffs now had to embark on the often even more difficult and cash-consuming task of trying to track down the hidden assets of the defendants. Little property and even fewer bank accounts we
re titled in the names of the outlaw states or terrorist defendants. The lawyers were left with the near-impossible job of working for years with investigators to track down property, filing liens and turnover proceedings around the world. And they were put in the uncomfortable position of having to compete with other victims of terrorism for the limited assets that could be found. As the Seventh Circuit Court of Appeals observed in one case, “Victims of terror can find themselves pitted in a cruel race against each other—a race to attach any available assets to satisfy the judgments. The terms of the race are essentially winner take all.”

  Sometimes information was slipped to the lawyers from friendly intelligence services or whistleblowers. It was grueling work and was a time sink that could snowball and tie up all the lawyers’ working days and nights. The same defendants who defaulted on judgments, including the Iranian regime, a fake entity that called itself the Palestinian Pension Fund for the State Administrative Employees in the Gaza Strip (but was really just a slush fund created by Yasir Arafat), and others hired some of America’s top law firms in an effort to stave off collection proceedings and prevent their assets from being seized—from skyscrapers in Manhattan to Persian artifact collections in a Chicago museum, to Iranian oil accounts in Italian banks, and to impounded vessels in Mexico. Attorney Robert Tolchin noted: “You have to have boundless creativity and resilience to smoke out the money on the terror cases. These are the most loathsome defendants in the world, and sometimes you have to muster the grit to pursue them down long holes for many years.”

  As the case continued, the terror victims became emboldened. They were no longer victims—the judgments against those who had devastated their lives gave these men and women a sense of purpose and the means by which they could fight back. It gave the families a sense of mission and a degree of closure.

  Perhaps more important than the measure of justice and compensation the cases could provide to the families of the victims was that the shock waves to the banking system continued to impact as news of the suits spread. Sometimes the fear was enough. As one Harpoon member recalled, “We went to Deutsche Bank, which was administering Iranian accounts at the time, and we presented our case about the connections to terrorism and asked them to shut them down. The bank refused and we left. They were making too much money from the Iranian business. When we returned to Germany to meet again a month or so later we told them ‘We were in New York recently and we spoke to some lawyers there. They told us they are planning on suing your bank for aiding terrorism. They have all these clients lined up. We have nothing to do with them, but it looks like it’s going to be very bad, very expensive for the bank.’ A short while later all the Iranian accounts were magically shut down.”7

  Harpoon had learned how to leverage the lawsuits against the financiers of terror.

  PART III

  LEGACY

  CHAPTER SEVENTEEN

  We Cannot Confirm or Deny

  Where no counsel is, the people fall, but in the multitude of counselors there is safety.

  —Proverbs 11:14 (the Mossad motto)

  Many in the Israeli intelligence community breathed enthusiastic sighs of relief when Prime Minister Sharon appointed Meir Dagan to serve as the tenth director of the Institute for Intelligence and Special Operations, the formal name for the Mossad. Dagan had a reputation for decisive action and as a straight shooter. Neither his views, nor his decisions, were ever influenced by political consideration. His reputation as a field officer was impeccable and defined by courage and innovation. Dagan was never reckless, though. His decisiveness was calculated by an indefinable analytical mind that measured risk and objective. The men and women he dispatched overseas to perform the most sensitive of missions knew that the director would never send them into harm’s way unless the operation was absolutely essential to Israeli security and that the odds that everyone would come back to Israel safely were high.

  Decisive measures—direct action—were calling cards of Dagan’s view of Israel’s deterrence. The State of Israel does not, as a matter of strict policy, ever admit or deny any role in the assassination of its enemies, but during Dagan’s tenure as Mossad director, many of Israel’s enemies ended up dead—often by spectacular means—far from Israel’s borders. The first was Ghalib Awali, a Hezbollah commander who was killed by a mysterious car bomb in south Beirut in July 2004; Awali, it was later alleged, was murdered by agents, former Lebanese military officers, recruited by the Mossad.1 Ezzedine Sobhi Sheikh Khalil, a Hamas military commander who was living and working out of the Syrian capital, was killed on September 26, 2004, when his white Pajero SUV disappeared into a fireball on an upscale street in Damascus.2 Israel had vowed to avenge two Hamas suicide bombings in the southern Israeli city of Beersheba on August 31 that killed sixteen civilians, but Israel did not publicly take credit for Khalil’s explosive end. “We have no knowledge of this incident,” a spokesman for Prime Minister Sharon explained. But he added, “Our longstanding policy has been that no terrorist will have any sanctuary and any immunity. They’re in a very risky business, they live in a rough neighborhood, and they should not be surprised when what they plan for others befalls them.”3

  Other assassinations followed. Mahmoud al-Majzoub, a PIJ commander, was obliterated by a bomb planted in his car in the city of Sidon, in southern Lebanon, on May 26, 2006. One of the most dramatic was the February 12, 2008, killing of Hezbollah military and global special operations commander Imad Mughniyeh in Damascus. Mughniyeh had topped the most-wanted list in many countries. The United States wanted his head for the suicide bombing of two embassies in Beirut as well as the murders of 241 U.S. servicemen in the destruction of the Marine barracks. The Hezbollah commander also kidnapped U.S. citizens in Lebanon, and he had abducted and murdered William Buckley, the CIA chief of station in Beirut, in 1984. Israel had also placed Mughniyeh it its crosshairs. He was responsible for countless Hezbollah operations against Israeli forces in Lebanon and for the suicide bombings of the Israeli embassy and a Jewish cultural center in Buenos Aires, Argentina. Moreover, the terrorist was one of the coordinators of Iranian and Hezbollah material support to both Hamas and the PIJ. Mughniyeh had a lot of innocent blood on his hands; up until 9/11 he was responsible for the deaths of more Americans than any other terrorist.

  Imad Mughniyeh met his demise when a powerful explosive charge tore his head apart as he sat inside his Mitsubishi Pajero. The bomb had been planted inside the driver’s-side headrest. Although no one in Washington or Jerusalem was sad to see Mughniyeh go, there were no public admissions of responsibility. It was later reported that the assassination was a joint operation between the CIA and the Mossad.4

  Whether or not the State of Israel accepted responsibility for the string of unsolved deaths involving terror chieftains, a sense of dynamic swagger was returned to Israel, and it was all attributed to Dagan. “He was one of the best directors, if not the best one, Mossad has had in our sixty years or so of existence… Meir restored Mossad’s reputation and brought the organization to new levels,” Ilan Mizrahi, the former number two at the Mossad, stated. It was a remarkable admission.

  The intelligence services always had an interest in targets who posed clear and present threats to the safety of Israeli citizens, either at home or overseas. Equal vigilance was invested with those who posed a threat to the Jewish state and who also had blood on their hands—men who had killed and were planning to kill again. These individuals, their identities maintained in closely guarded file folders, occupied significant blocks of times at the weekly operational meetings held at the various services. The files consisted of biographical material, last known photographs, details on their locations, and other highly classified tidbits of data that were worth recording on paper, or inside a computer. Some terrorist targets of the highest value appeared in multiple files safeguarded in numerous headquarters throughout the country. This select list of names was discussed by the soldier spies at A’man, and the names were also discussed by th
e Shin Bet and various units inside the Israel National Police. Of course, these archterrorists received special attention at Mossad headquarters. The fate of these men and the talk of their whereabouts topped the agenda at the Harpoon roundtable, as well.

  These names were cross-tabulated on a nexus connecting intentions, capabilities, and crimes. There was no justice as long as these men were operational and until they were forced to pay for their crimes. Mahmoud al-Mabhouh was one such name.

  Mahmoud al-Mabhouh was a senior military wing commander of Hamas. Once a cold-blooded triggerman, he was selected by Tehran and Hezbollah to spend the vast sums of cash that Iran and its Lebanese proxy pumped into the Palestinian Islamic resistance movement. Mabhouh was born in the Gaza Strip in 1960, one of fourteen children. Interested in weightlifting and fast cars, Mabhouh became a mechanic, even opening up his own garage, before gravitating to militant Islam. He was good with his hands, and was physically imposing; the small and secretive Muslim Brotherhood was thrilled when al-Mabhouh joined their ranks.

  The Brotherhood was a small fringe group in the late 1970s when al-Mabhouh swore his allegiance, and the organization gladly welcomed anyone into their ranks who was devout and who was strong enough to win back-alley scrapes. The Muslim Brotherhood’s main foe in the first years, in the early 1980s, was Fatah, and men like al-Mabhouh targeted the Gaza coffeehouses where gambling and narcotics use was common, as well as establishments that sold alcohol and trafficked ladies of the night that ultimately kicked up to Arafat and his men.