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Posted: September 29, 2014

Claim for Providing Material Support Under Antiterrorism Act Requires Knowing Support of Terrorist Organization, Not Terrorist Activities

On September 22, 2014, the Second Circuit issued a decision in Weiss v. National Westminster Bank PLC, No. 13-1618-CV, discussing the scienter required to state a claim for providing “material support and resources to a terrorist organization in violation of the Antiterrorism Act.”

In Weiss, the EDNY dismissed a an Antiterrorism Act claim, holding that such a claim requires knowing support of terrorist activities. The Second Circuit reversed, explaining:

While § 2333(a) does not include a mental state requirement on its face, it incorporates the knowledge requirement from § 2339B(a)(1), which prohibits the knowing provision of any material support to terrorist organizations without regard to the types of activities supported. . . .

Thus, to fulfill § 2339B(a)(1)’s scienter requirement, incorporated into § 2333(a), Plaintiffs must show that [the defendant] both knew that it was providing material support to Interpal and knew that Interpal engaged in terrorist activity. Section 2339B(a)(1) does not require a showing that NatWest knew it was providing material support for terrorist activity.

(Internal quotations and citations omitted) (emphasis added). The Second Circuit went on to explain that:

For the purposes of § 2339B(a)(1), a defendant has knowledge that an organization engages in terrorist activity if the defendant has actual knowledge of such activity or if the defendant exhibited deliberate indifference to whether the organization engages in such activity. . . . . Section 2339B(a)(1) explicitly incorporates the meaning of “engage in terrorist activity” from § 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(3)(B)(iv)(IV), which defines “engage in terrorist activity” to include soliciting funds or other things of value for a terrorist organization described in clause (vi)(I). Clause (vi)(I) defines “terrorist organization” to mean an organization designated under section 1189 of this title, and § 1189 authorizes the Secretary of State to designate an organization as a foreign terrorist organization (“FTO”).

(Internal quotations and citations omitted) (emphasis added). Because Interpal was alleged to have “solicited funds for Hamas,” which has been designated as a terrorist organization, “Interpal engaged in terrorist activity within the meaning of Section 212(a)(3)(B) of the Immigration and Nationality Act.” To prevail, the plaintiff thus had to show that the defendant”provided material support to Interpal while having knowledge that, or exhibiting deliberate indifference to whether, Interpal solicited funds or other things of value for Hamas, regardless of whether those funds were used for terrorist or non-terrorist activities.”

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