A Postcolonial Critique of the Linde et al. v. Arab Bank, PLC "Terrorism" Bank Cases

Marouf Hasian, Jr.

• Publisher: Palgrave Macmillan
• Year: 2016
• ISBN:
  9781137574039
• Topic: Politica e relazioni internazionali
• Subtopic: Politica militare

This book provides readers with a postcolonial reading of the case of Linde et al. v. Arab Bank, PLC, and argues that American courtrooms are being used by rhetors to tell Anglo-American stories about Hamas, the causes of the Second Intifada, and the importance of 'drying up' terrorist financing.

1

Appreciating the Significance of the Linde et al. v. Arab Bank, PLC “Terrorism” Bank Cases

Abstract: This chapter provides an explanation for why the terrorist banking case of Linde et al. v. Arab Bank, PLC has captured the attention of so many journalists, legal scholars, financers, jurists, and others who are interested in combating terrorist finance. It also provides readers with a chronological list of some of the key historical events that impacted the legal trajectory of these cases, and it explains how a postcolonial approach allows readers to see some of the rhetorical and ideological features of these disputes that are usually missed in more formalistic or positivist studies of terrorist finance.

Keywords: Arab Bank; assemblages; Eastern District of New York; First Intifada; Hamas; Hawala; Israel; lawfare; Marieke de Goede; Palestinian; terrorist financing

Hasian, Marouf Jr. A Postcolonial Critique of the Linde et al. v. Arab Bank, PLC “Terrorism” Bank Cases. Basingstoke: Palgrave Macmillan, 2015. DOI: 10.1057/9781137574039.0003.

Moral blame should only follow if the harm caused by providing bank services to terrorists is foreseeable. Hamas is not the defendant; the bank is.¹

U.S. District Judge Jack Weinstein

We all have a role to play, to prevent terrorism, every one of us. ... It just can’t be when a government says, “You have to act now.” It cannot be that we only do it when the computer gives us an alert.²

Michael Elsner, plaintiff’s lawyer, closing remarks in Linde et. al. v. Arab Bank, PLC, September, 2014

In March of 2003 a young Palestinian man by the name of Rami Ghanem walked into an Israeli café that was just blocks away from the beach in Netanya, and when he blew himself up he seriously wounded almost three dozen people. Shortly thereafter the Syrian-based terrorist group, Palestinian Islamic Jihad, took credit for Ghamen’s attack, and members of the Israeli military, like they did so many times, demolished Ghamen’s home in order to deter suicide bombers and punish supporters. Two weeks later Mr. Ghanem’s father received some $14,000 from an account at Jordan’s Arab Bank, and Israeli documents indicated that that the money was delivered to the Ghanem family by a local Islamic charity.³

The bank that would be at the center of all of these alleged transactions, Arab Bank, was often considered by American, Israeli, and Jordan governmental officials to be a moderating institutional force in the Middle East, and there have been times when U.S. State Department officials have asked the Arab Bank to open up branches in Iraq. However, this same bank, which is the only commercial bank that is networked in the Palestinian territories, has had to watch as hundreds of American plaintiffs have flocked to U.S. courtrooms in order to sue the bank for allegedly being involved in the financing of terrorism. Many of these plaintiffs are relatives of victims who died in Israel during terrorist attacks that were conducted before, during, and after the second Palestinian Intifada.

The Arab bank, along with the Palestinian Authority and the PLO, has found itself at the center of legal cases that have forced these entities to explain their political stances regarding both Middle Eastern affairs and counterterrorism policies. In 2005, for example, one representative of Arab Bank would tell reporters who were interested in the Ghamen situation that employees of this old venerable institution found “suicide bombing” to be an “abominable human act.”⁴ This did not resonate with all audiences, and those who filed a series of lawsuits considered this to be mere sophistry that hid the Arab Bank’s “real” support of Palestinian Islamic Jihad, Hamas, and others who were involved in suicide bombings during the early 21st century.

Many fine law reviews, books, and other texts have now been written about the formalistic or positivist features of these various “anti-terrorist financing” lawsuits that have been filed against the Arab Bank⁵ and Palestinian organizations, but it will be my contention that readers need to be presented with more “critical,” ideological critiques of these “financing” of terrorism cases so that they can see the contingencies, the motivations, the ambiguities, and the partialities of the conclusions that are often reached by American decision-makers, lawyers, and jurists who pride themselves on the work that they do to “end” terrorist financing.⁶ Instead of simply assuming that terrorism exists independent of politics and rhetorical labeling, readers need to recontextualize the Arab Bank cases in ways that allow them to see how these lawsuits are being used as counterterrorist, legal weapons in the arsenals of those who want to magnify the dangers of organizations like Hamas.⁷ In the name of tracing money flows, Middle Eastern ideological disputation drifts into Western legal and public spheres as Israelis, Palestinians, and others engage in jurisprudential battles in forums in distant lands. At the same time, we need to recognize that the journalistic narrations of these events, about characters like Ghamen, are also key fragments in these constitutive terrorist and counterterrorist rhetorics.

The legal, monetary, and journalistic communities who become social agents in these terrorist financing affairs are not just objectively commenting on preexisting realities – they are also creating, inventing, and helping to ossify the rhetorics that invent terrorist enemies and the counterterrorist strategies that are used to combat them. Not all horrific violence gets labeled as the product of “terrorism,” and it matters who has the power to render visible select enemies. Didier Bigo and Emmanuel-Pierre Guittet, in their study of terrorist labeling during the Northern Ireland conflicts, contend that suspicion “towards a certain category of people generates the idea that potential violence is always there, and that it will be even more dangerous” unless institutions carry out their “duty” to “anticipate” and prevent potential troubles.⁸

Our Anglo-American jurisprudential and journalistic narratives about terrorism are filled with commentary that draws sustenance from the application or adoption of well-known legal or militaristic principles like “military necessity” or “preventive” conflicts,⁹ and talk of “just wars” during counterterrorist contexts are handed down through the generations like loaded guns.¹⁰ Terrorist discourse and counterterrorism can only be rendered legible when we share common ways of arguing and thinking about what constitute illegal terrorist acts, and even the legislative acts and statutory provisions that are meant to control what is called “terrorist financing” become a part of these inventional performances. By constantly reiterating who is, and who is not, a culpable terrorist, and by recirculating the same stories across generations about terrorist financing, we turn contentious opinions into hard facts and often forget about the rhetorical strategies and ideologies that infused these narratives with meaning. Cultural amnesias set in that serve presentist counterterrorist with goals.

Institutions like the Arab Bank can become lightning rods for national and international controversies when their resources are linked to an assortment of organizations that are labeled terrorist by this or that empowered nation-state. In this particular book I provide readers with a more nuanced study of some of the realpolitik behind this labeling, and I do this by offering postcolonial, genealogical analyses of some of the most famous of the terrorism banking lawsuits, the cases surrounding Linde et al. v. Arab Bank, PLC.¹¹ I focus on these particular cases because more than a few pundits see them as bellwethers or precedents that will provide us some indication of how U.S. federal courts are going to treat future legal claims that are filed in American forums, as U.S. citizens and Israelis try to fight their Arab enemies by draining the resources that allegedly keep “Palestinian” terrorism afloat.

At this point in the introduction I need to provide readers with a brief timeline that summarizes some of the key historical and contemporary chronological nodal points that are going to be covered in this book in order to help with the contextualization for my analyses¹²:

December 9, 1987, The First Intifada in the occupied territories in Palestine begins.

June 22, 1989, Israel decides to designate Hamas as a terrorist organization.

January 23, 1995, U.S. designates Hamas and Hamas leader Sheikh Ahmed Yassin as “Specially Designated Terrorists.”

September 28, 2000, Second Intifada begins in what Israel calls “Disputed” territories.

June 1, 2001, Suicide bombing at the Dolphinarium nightclub in Tel Aviv. This attack kills 21 persons and injures 83 others.

March 29, 2002, Israel’s Operation Defense Shield begins.

July 2, 2004, the initial Linde v. Arab Bank complaint is filed in federal court in New York City.

September 2, 2005, the federal district court, in an opinion and order written by District Judge Nina Gershon of the Eastern District of New York, denied Arab Bank’s motion to dismiss the complaint, noting that there was sufficient factual evidence to show that some death and dismemberment benefits plans provided indications that the Arab Bank knew about, or intended to participate, in some “common plan” with terrorist organizations.¹³

November 25, 2006, the federal district court decided to overrule the Arab Bank’s secrecy objections that paved the way for studies of money flows that included operations by the Palestinian Monetary Authority.¹⁴

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Table of contents

• Cover
• Title
• 1  Appreciating the Significance of the Linde etal. v. Arab Bank, PLC Terrorism Bank Cases
• 2  A Critical Genealogical Study of 19th and 20th-Century Colonial and Imperial Concerns about the Financing of Terrorism
• 3  A Critical Reading of the Passage of the 1990 Anti-Terrorism Act and the Filing of the Linde etal. v. Arab Bank, PLC Cases
• 4  A Critical Review of the Linde Plaintiffs Framing of the Role that Financial Institutions Played in the Rise of Hamas, 2000 to 2014
• 5  Situational Factors and the Defenses Framing of Banking Innocence in the Linde etal. v. Arab Bank, PLC Cases
• 6  Conclusion The Lingering Influence of the Linde etal. v. Arab Bank, PLC Cases
• Bibliography
• Index