Alien Tort Statute Liability for American Publisher Would Turn on Whether It Knew Author It Paid Was Hamas Hostage-Holder

From Judge Tiffany Cartwright (W.D. Wash.) in Friday's Jan v. People Media Project:

Plaintiff Almog Meir Jan is an Israeli citizen who was kidnapped on October 7 and held hostage by Hamas operative Abdallah Aljamal before being rescued by the Israel Defense Forces. Defendants are People Media Project, its individual officers Ramzy Baroud and John Harvey, and unnamed Doe Defendants 1 through 10.

Jan alleges that Defendants employed and compensated Aljamal as a journalist and provided him a U.S.-based platform to publish articles supporting Hamas. Jan asserts that through these actions, Defendants aided and abetted his kidnapping and imprisonment as well as aided and abetted terrorism in violation of the Alien Tort Statute (ATS), 28 U.S.C. § 1350.

Defendants moved to dismiss …, arguing that Jan's allegations are insufficient to state a plausible claim that Defendants aided and abetted his kidnapping and Hamas's acts of terrorism. Defendants also assert that their decision to publish Aljamal's articles is protected by the First Amendment, and that Jan's claims do not overcome the ATS's presumption against extraterritoriality because the conduct relevant to the ATS's focus—kidnapping and imprisoning a civilian hostage—occurred outside the United States. In response, Jan argues that the ATS recognizes aiding and abetting as a cause of action, and that aiding and abetting illegal conduct is not protected speech. By compensating Aljamal and providing him a U.S.-based platform to publish articles justifying Hamas's actions, Jan argues that Defendants materially supported terrorism. Jan asserts that this domestic conduct is the gravamen of his ATS claims and is sufficient to overcome the presumption against extraterritoriality….

The court rejected the claims based on publishing pro-Hamas propaganda, for reasons discussed in a separate post. But here's what the court had to say about the claims based on providing funds to Hamas via Aljamal:

Based on the Ninth Circuit's standard for ATS accomplice liability, Jan's allegations that Defendants paid Aljamal while he held Jan captive in his home could support a claim for aiding and abetting—but only if Defendants knew they were paying a Hamas operative. Because Jan's complaint does not allege actual knowledge, his claims based on compensating Aljamal as a journalist must be dismissed….

The following facts are those alleged in the complaint. Because the Court is considering a motion to dismiss …, Jan's factual allegations must be taken as true and construed in the light most favorable to him.

Jan was kidnapped from the Nova Music Festival and held hostage in Gaza by Abdallah Aljamal. He was held for 246 days before being rescued on June 8, 2024 by the Israel Defense Forces. Jan asserts that since May 2019, Defendant People Media Project, doing business as the Palestine Chronicle, "provided Hamas Operative Aljamal with support and a U.S.-based platform to publish Hamas propaganda under the guise of independent journalism and compensated [him] for his contributions." Jan alleges "Hamas Operative Aljamal's publications follow[ed] Hamas's well-known 'war-by-propaganda' strategy by attempting to exploit the international community's response to civilian casualties and blaming Israel for its reasonable response to Hamas's atrocities on October 7." For example, Jan asserts that the Palestine Chronicle published "a propaganda piece by Hamas Operative Aljamal calling October 7 a 'daring attack' and accusing Israel of starting a 'war on the Gaza population' in order to 'forcefully displace Palestinians from their homeland.'"

Defendant Ramzy Baroud is the Editor-in-Chief of the Palestine Chronicle and is responsible "for editorial, content, and management decisions." Defendant John Harvey is a Governor of People Media Project and "responsible for management and financial decisions of the Palestine Chronicle." Jan also alleges that political advocacy by Defendants Baroud and Harvey shows they have "close ties" with Hamas. In December 2020, Defendant Baroud participated in a webinar hosted by the American Muslims for Palestine where he "espoused familiar Hamas propaganda, including accusing Israel of ethnically cleansing Palestinians and calling for the defeat of Zionism." Defendant Harvey "organized a campaign in 2007 to establish the Gaza Strip's Rafah neighborhood—a Hamas stronghold—as Olympia, Washington's sister city." Jan alleges that, as Governors of the Palestine Chronicle, Defendants Baroud and Harvey "aligned the Palestine Chronicle's mission and content with Hamas" and "disseminated Hamas propaganda to the Palestine Chronicle's readers in the United States." …

The entirety of the ATS provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of the nations or a treaty of the United States." After its enactment by the First Congress in 1789, the ATS lay mostly dormant for nearly two hundred years. But in 1980, the Second Circuit in Filartiga v. Pena-Irala allowed two citizens of Paraguay to pursue a claim that the defendant had tortured and killed their family member in retaliation for their political beliefs, in violation of international law. Filartiga led to a wave of litigation seeking to hold corporations liable "for alleged human rights violations in other nations."

The Supreme Court first interpreted the ATS in Sosa v. Alvarez-Machain (2004). In Sosa, the Supreme Court sought to clarify whether the ATS is only a jurisdictional statute or whether it creates a cause of action for a violation of the law of nations. The Supreme Court concluded that while "the statute is in terms only jurisdictional … at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law." In 1789, the Court explained, "the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations," particularly "those torts corresponding to Blackstone's three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy." District courts may thus hear claims under the ATS "based on the present-day law of nations," so long as they "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms [the Supreme Court has] recognized." …

As an initial matter, Defendants do not contest that the underlying torts committed against Jan by Aljamal and Hamas—the kidnapping and imprisonment of a civilian hostage—are international human rights violations that are actionable under the ATS. The Court thus turns to whether Jan may pursue claims against Defendants for allegedly aiding and abetting those torts….

[T]he Ninth Circuit [has] explained that customary international law supplies the standard for accomplice liability. The plaintiff must plausibly allege that the defendant engaged in a sufficient actus reus and had the requisite mens rea. Id. The Ninth Circuit adopted the "global consensus" that the "actus reus of aiding and abetting liability requires assistance to the principal with substantial effect on an international law violation." And the Ninth Circuit joined the Eleventh Circuit in holding that the "mens rea for aiding and abetting liability under customary international law is knowing assistance." Because this standard is analogous to the aiding-and-abetting provision of the Justice Against Sponsors of Terrorism Act (JASTA), which imposes civil liability on anyone "who aids and abets, by knowingly providing substantial assistance" to an "act of international terrorism," this Court also looks for guidance to the Supreme Court's recent decision interpreting JASTA in Twitter v. Taamneh (2023)….

[T]he Court in Twitter clarified that … "… a defendant must have aided and abetted (by knowingly providing substantial assistance) another person in the commission of the actionable wrong—here, an act of international terrorism." … Jan alleges that Defendants "employed" Aljamal. He alleges that the Palestine Chronicle began publishing articles from Aljamal in May 2019 and "compensated [him] for his contributions." After the events of October 7, 2023, the Palestine Chronicle continued to publish pieces by Aljamal, "often publishing two to three pieces per day." Jan alleges that during the time he was held captive in Aljamal's home, Defendants continued to pay Aljamal for his articles. Jan incorporates screenshots from the Palestine Chronicle's website that, shortly before Jan's rescue, described Aljamal as a "correspondent for The Palestine Chronicle"—before changing his description to a "freelance contributor" after Jan was rescued and Aljamal was identified as one of his captors. Jan alleges that "the compensation Defendants paid Hamas Operative Aljamal for his propaganda directly enabled him to imprison Plaintiff in his home."

Under the Ninth Circuit's standard …, these allegations meet the actus reus requirement for ATS liability. This requirement is met if "a defendant provides assistance, of any kind, with substantial effect on the perpetration of an international law violation." Courts assess the effect of a defendant's actions not by determining whether each individual action had a substantial effect, but by considering the "cumulative contribution" a defendant made to the alleged international law violation.  Assistance does not "need to be used for exclusively criminal purposes to be actionable." …

Here, Jan alleges that Defendants enabled Jan's imprisonment by employing Aljamal and paying him for articles, as many as two or three pieces a day, during the time that Aljamal kept Jan as a hostage inside his home. Although Jan does not allege specific amounts of money, the timing and extent of Aljamal's employment support the conclusion that these payments provided assistance with substantial effect on Jan's captivity. This meets the actus reus requirement for ATS liability.

But for his claims to proceed, Jan's allegations must also satisfy the mens rea requirement—that the assistance was "knowing."  Jan's current complaint does not meet this standard. Jan does not allege that Defendants knew Aljamal was holding Israeli civilians hostage; that he had participated in any acts of terrorism, related to October 7 or otherwise; or even, critically, that Aljamal was a Hamas operative in the months following the October 7 attacks. Jan alleges only that, because Aljamal had served at some point as a spokesperson for the Hamas-run Ministry of Labor in Gaza, and he and Defendant Baroud were from the same Gaza town, "Defendants knew or should have known that Hamas operative Aljamal was an operative and official spokesperson for Hamas."

"Knew or should have known" is a negligence standard. "And negligence is a less culpable mental state than actual knowledge or recklessness." … This result is also consistent with the Supreme Court's guidance in Twitter on aiding and abetting liability…. [T]he Court in Twitter repeatedly cautioned that "[t]he point of aiding and abetting is to impose liability on those who consciously and culpably participated in the tort at issue," and that accomplice liability must be applied in a way to avoid "sweep[ing] in innocent bystanders as well as those who gave only tangential assistance." …

This context underscores the importance of the actual knowledge requirement. Without that boundary, organizations working in international conflict zones could be "swept in" to ATS liability for unwittingly employing residents to carry out legitimate tasks—reporting, taking photographs, distributing food and medical supplies—if those individuals turned out to have used their legitimate salaries to participate in human rights violations. The actual knowledge requirement guards against this expansion and ensures that "courts capture the essence of aiding and abetting: participation in another's wrongdoing that is both significant and culpable enough to justify attributing the principal wrongdoing to the aider and abettor." Because Jan's complaint does not allege actual knowledge, his compensation allegations must be dismissed….

But the court concluded that Jan should have a chance to refile the Complaint with the proper allegations (if he can indeed plausibly allege them):

The Court's dismissal of the complaint turns on the specific facts alleged, and Jan could conceivably plead additional facts to show Defendants' conduct satisfies the actus reus and mens rea elements of accomplice liability …. The Court therefore grants Jan leaves to amend his complaint.

Daniel Kovalik and Ralph Hurvitz represent defendants.