Court of Appeals Gives Extraterritorial Effect to Antiterrorism Act Despite Causing "Tension" With Decisions Made by U.K. Government

The World in U.S. Courts: Fall 2014 - Antiterrorism Act | September.22.2014

Weiss v. National Westminster bank PLC, U.S. Court of Appeals for the Second Circuit, September 22, 2014

Plaintiffs are approximately 200 U.S. nationals who claim to be victims of Hamas attacks in Israel.  They sued a U.K. bank under the Antiterrorism Act, alleging that the bank provided support to a "terrorist organization" by collecting and distributing funds to a non-profit account-holder organization.  The District Court had granted summary judgment in favor of the bank on grounds that the plaintiffs had not alleged that the bank acted with the requisite "scienter," or state of mind.  The Court of Appeals reversed, finding that the lower court had failed to find potential liability where a defendant "had knowledge that, or exhibited deliberate indifference to whether, [an entity] provided material support to a terrorist organization, irrespective of whether [the entity's] support aided terrorist activities of the terrorist organization."

In arriving at this conclusion, the Court confirmed that the presumption against the extraterritorial effect of a U.S. law had been overcome by the specific wording of the Antiterrorism Act.  This clear declaration also had the effect of making irrelevant the otherwise relevant question whether giving extraterritorial effect to a law might cause conflicts with the laws of other countries—even in this case, where applying the law caused some "tension" with positions taken by the government of the U.K.  The Court said that it was not free to ignore the plain language of the statute despite that potential conflict.

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