Stanley BOIM, individually and as administrator of the Estate of David Boim, deceased, and Joyce Boim, Plaintiffs-Appellees, v. HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, et al., Defendants-Appellants, 511 F.3d 707

ROVNER, Circuit Judge. This lawsuit has its origins in the murder of David Boim more than ten years ago. David, a citizen of both Israel and the United States, was living with his parents in Israel when he was gunned down while waiting for a bus in the West Bank outside of Jerusalem. He was apparently shot at random by gunmen believed to be acting on behalf of the terrorist organization Hamas.

Section 2333 of the United States Criminal Code grants U.S. nationals injured by acts of international terrorism the right to sue for treble damages in federal court. David’s parents, Stanley and Joyce Boim, on behalf of themselves and David’s estate, filed suit under this statute against not only the two men believed to have shot David, but an array of individuals and organizations in the United States with alleged connections to Hamas.

Broadly speaking, the Boims’ theory as to the latter group of defendants was that in promoting, raising money for, and otherwise working on behalf of Hamas, these defendants had helped to fund, train, and arm the terrorists who had killed their son. In Boim v. Quranic Literacy Inst., 291 F.3d 1000 (7th Cir.2002) (“Boim I”), we sustained the viability of the Boims’ complaint, concluding that liability under

section 2333 attached not only to the persons who committed terrorist acts, but to all those individuals and organizations along the causal chain of terrorism. On remand, the district court found appellants Muhammad Abdul Hamid Khalil Salah (“Salah”), Holy Land Foundation for Relief and Development (“HLF”), and American Muslim Society (“AMS”) liable to the Boims on

summary judgment. Boim v. Quranic Literacy Inst., 340 F.Supp.2d 885 (N.D.Ill.2004). At the conclusion of a trial, a jury concluded that appellant Quranic Literacy Institute (“QLI”) also was liable. The jury awarded damages of $52 million, which the district court trebled to $156 million. Salah, HLF, AMS, and QLI all appeal. Salah, HLF, and AMS contend that the criteria employed by the district court for imposing liability were incomplete or incorrect and that the evidence adduced below did not suffice to impose liability. QLI complains of the district court’s refusal to continue the trial date after the court’s

summary judgment rulings left it as the sole defendant facing a trial on liability; it also contends that the district court erred in sua sponte entering partial

summary judgment against QLI as to one aspect of liability. We reverse the entry of partial

summary judgment as to liability against defendants HLF, AMS, and Salah. As to HLF, we conclude that the district court erred in giving collateral estoppel effect to the District of Columbia Circuit’s finding that HLF funds the terrorist activities of Hamas. As to AMS and Salah, we conclude that the district court erroneously relieved the Boims of the burden of showing that these defendants’ actions were a cause in fact of David Boim’s death. As to QLI, we conclude that the district court erred in sua sponte and without prior notice applying its

summary judgment determination against the other defendants that Hamas was responsible for the murder of David Boim, to QLI, against whom the Boims did not seek

summary judgment. However, the district court did not abuse its discretion when it denied QLI’s request to continue the trial date. In light of the errors in the

summary judgment rulings below, we vacate the judgments entered against these four appellants and remand for further proceedings. On remand, the Boims will have to demonstrate an adequate causal link between the death of David Boim and the actions of HLF, Salah, and AMS. This will require evidence that the conduct of each defendant, be it direct involvement with or support of Hamas’s terrorist activities or indirect support of Hamas or its affiliates, helped bring about the terrorist attack that ended David Boim’s life.

A defendant’s conduct need not have been the sole or predominant cause of the attack; on the contrary, consistent with the intent of Congress that liability for terrorism extend the full length of the causal chain, even conduct that indirectly facilitated Hamas’s terrorist activities might render a defendant liable for the death of David Boim. But the plaintiffs must be able to produce some evidence permitting a jury to find that the activities of HLF, Salah, and AMS contributed to the fatal attack on David Boim and were therefore a cause in fact of his death.

Absent such proof, those appellants will be entitled to judgment in their favor. As to QLI, which has not challenged the liability standard employed by the district court, the remand will be limited to the question of whether Hamas was responsible for the murder of David Boim. QLI will be given the opportunity (of which it was deprived by the district court’s sua sponte

summary judgment ruling) to attempt to demonstrate that there exists a dispute of material fact on this point. I. A. The Boims moved to Israel from the United States in 1985 to pursue a more spiritual life. David was fifth of the Boim’s seven children. In 1996, David was finishing his third year of high school and preparing to apply for college. He was an intelligent and determined student who dreamed of becoming a doctor. His classmates knew him as a warm, outgoing young man. “His trademark was his hug and his smile,” recalled Yechiel Gellman, a friend and classmate. His mother described him as a peacemaker.

David studied in a yeshiva near Beit-El, a small West Bank village north of Jerusalem. By 3:30 p.m. on May 13, 1996, the school day had concluded. David and several of his classmates had gathered at a bus stop on a busy road between Jerusalem and Nablus. It was a hot, early-summer afternoon, and the boys were telling jokes and sharing stories as they awaited the bus that would carry them to Jerusalem, where they were taking a class to prepare them for their college entrance examinations.

Shortly before 4:00 p.m., a car pulled off the road and stopped ten feet away from the assemblage of people at the bus stop; one or more of the car’s occupants then opened fire. Gellman estimated that a total of thirty shots were fired; he could hear the bullets shrieking past his head. “[To] this day, I don’t understand how I survived the shooting.” He heard his friend Yair cry out, and he turned to see both Yair and David fall to the ground. David had been shot in the head. A passing dentist stopped and tried to revive him.

He was subsequently evacuated by ambulance to a local hospital and then transferred to a second hospital for surgery. He died shortly after he was taken into the operating room. He was buried in Jerusalem that same evening after a service attended by his classmates and thousands of other mourners. “Part of me was taken away” the day he died, Joyce Boim would later testify. David was seventeen years old. B. The murder of David Boim was later attributed to two individuals: Amjad Hi-nawi and Khalil Tawfiq Al-Sharif. Both were apprehended by the Palestinian Authority in 1997 and then released pending trial.

Al-Sharif killed himself in a suicide bombing at a shopping mall in Jerusalem later that same year. Hinawi was tried by a Palestinian Authority tribunal and convicted of participating in a terrorist attack and being an accomplice to Boim’s murder. He was sentenced to ten years of hard labor. Both Al-Sharif and Hinawi were believed to be members of the terrorist or “military” wing of Hamas., Hamas is an organization that was founded in 1987 as an outgrowth of the Muslim Brotherhood in Egypt.

Its name is derived from an acronym for “Harakat al-Muqawama al-Islamiyya,” which in English means the “Islamic Resistance Movement.” Its charter, written in 1988, calls for the obliteration of the State of Israel and the establishment of an Islamic republic in the area now comprising Israel, the West Bank, and the Gaza Strip. Soon after its founding, Hamas began to engage in terrorist attacks on both civilian and military targets. It was officially designated a terrorist organization by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) on January 24, 1995.

That designation made it illegal for a United States citizen or entity to engage in any transactions or dealings involving the property or interests of Hamas without license to do so. Hamas was subsequently deemed a foreign terrorist organization by the United States Secretary of State on October 8, 1997, a designation that made it illegal for anyone within the United States or subject to its jurisdiction to provide material support or resources to Hamas. In addition to its military wing, Hamas has a political wing that advocates on behalf of the Palestinian people.

Hamas also operates a network of social institutions known as Da’wa which provide medical care, schooling, and other services to Palestinians living in and around the Gaza Strip and the West Bank. Hamas’s charitable endeavors have helped it to achieve a position of influence among the Palestinian people. That influence was evident in the 2006 election of Hamas candidates to governing positions within the Palestinian Authority. See Zahren v. Gonzales, 487 F.3d 1039, 1040 (7th Cir.2007). C. Pursuant to

section 2333, Joyce and Stanley Boim sued a variety of individuals and organizations for their son’s death. Joyce Boim would later testify that their aim was to keep “even one nickel” from Hamas that might be used for further terrorist acts like the murder of her son. In addition to Hinawi and Al-Sharif, to whom the murder of David Boim was directly attributed, the Boims’ amended complaint named as defendants a variety of individuals and organizations with ties to Hamas. Among them are the four appellants: 1.

Salah is a naturalized United States citizen who allegedly has served as the U.S.-based leader of Hamas’s military wing. Salah was arrested at a Gaza checkpoint in January 1993 by Israeli military authorities and was subsequently charged with being an active member of, holding office in, and performing services for an illicit organization (Hamas), engaging in activity against the public order and undermining regional security, and providing shelter to terrorists. Salah ultimately pleaded guilty to these offenses and was incarcerated in Israel until his release in or around November 1997.

In 1995, while he was incarcerated in Israel, the U.S. Treasury Department’s OFAC added Sa-lah to the government’s list of specially designated terrorists. After he was released by the Israeli military authorities, Salah returned to the United States.

In 2004, a grand jury in the Northern District of Illinois indicted Salah and others for: conspiring (beginning in 1988) to conduct and participate in the affairs of an enterprise (Hamas) through a pattern of criminal acts (including murder, kidnaping, hostage taking, money laundering, obstruction of justice, and forgery) in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d) (“RICO”); knowingly providing and attempting to provide material support and resources to a foreign terrorist organization (Hamas) in violation of 18 U.S.C. § 2339B; and endeavoring to obstruct justice by giving false and misleading verified answers to interrogatories posed by the Boims in the instant civil litigation, in violation of 18 U.S.C. § 1503.

The government dropped the material support charge shortly before trial. In February of this year, following a three-month trial, a jury acquitted Salah of the RICO conspiracy charge and convicted him of the obstruction charge. On July 11, 2007, the district court sentenced Salah to a prison term of twenty-one months on that charge. 2.HLF is an organization incorporated in the United States that the U.S. government has determined provided financial support to Hamas; it was effectively shut down by the government on that basis in 2001. HLF was incorporated as the Occupied Land Fund in California in 1989.

It changed its name to HLF and relocated to Texas in 1992. It is a not-for-profit organization which purported to fund humanitarian relief for Palestinian people in the West Bank, Gaza, and beyond. At one time, HLF described itself as the largest Muslim charity in the United States. As discussed in greater detail below, the government named HLF a specially designated terrorist organization and froze its assets in 2001 based on evidence that it supplied funds to Hamas and/or organizations affiliated with Hamas.

In 2004, the government indicted HLF and seven of its principals for, inter alia, providing and conspiring to provide material support and resources to a foreign terrorist organization (Hamas) in violation of 18 U.S.C. § 2339B(a)(l). The indictment alleges that HLF channeled substantial financial support to Hamas through ostensibly charitable committees and organizations affiliated with Hamas. A two-month trial in the Northern District of Texas recently ended in a mistrial after the jury was unable to reach a verdict as to most of the charges, including those against HLF. 3.

AMS is a now-defunct organization incorporated in the United States which did business as the Islamic Association of Palestine (IAP). Over time there have been multiple AMS/IAP entities at the local and national levels. The Boims’ theory is that they all constituted a single entity, a proposition with which the district court agreed. 340 F.Supp.2d at 906-08. We shall refer to this entity as AMS/IAP. AMS/IAP allegedly provided financial support to Hamas through HLF.

IAP, which was headquartered in Chicago, described itself as a not-for-profit, grass-roots organization dedicated to advancing a just, comprehensive, and eternal solution to the cause of the Palestine people through political, social, and educational efforts. The U.S. government considers IAP to have acted as a front for Hamas in the U.S. by, for example, reprinting Hamas communi-qués in its periodical publications. 4. QLI is another U.S. organization that allegedly raised and laundered money for Hamas.

QLI is an Illinois not-for-profit organization that was incorporated in 1990 and has operated in the Chicago area since that time. Ostensibly, its central endeavor was to undertake an authoritative translation into English of the principal texts of Islam. Salah worked for QLI beginning in the late 1980s or early 1990s and until 1993, when he was arrested in Israel.

According to the plaintiffs, QLI aided Hamas and Salah in two ways: it gave cover to Salah by providing him with apparently legitimate employment while he was actually working on Hamas’s behalf, and it helped to raise money for and funnel money to Hamas. D.

Section 2333(

a) permits U.S. nationals who have been injured “by reason of

an act of international terrorism” to sue for their injuries in federal court and to recover treble damages. “International terrorism” is in turn defined to include conduct that (a) “involve[s] violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State”; (

b) appears intended “to intimidate or coerce a civilian population,” to influence government policy through intimidation or coercion, or to affect the conduct of government by means of mass destruction, assassination, or kidnaping; and (

c) occurs primarily outside of the United States or transcends national boundaries. 18 U.S.C. § 2331(1). It is both a fair inference — and undisputed — that the murder of David Boim constitutes

an act of international terrorism as so defined and that Stanley and Joyce Boim (and of course David, represented in this suit by his father as the administrator of his estate) were injured thereby. It is equally plain that the individuals who themselves killed David — purportedly Hinawi and Al-Sharif — would be liable to the Boims under

section 2333; and, indeed, a default judgment was entered against Hinawi below. (The Boims sued Al-Sharifs estate, but after they were unsuccessful in attempting service, the estate was dismissed from the suit.) We may also assume that Hamas, upon proof that Hinawi and Al-Sharif committed the murder at its behest or with its support, likewise would be liable to the Boims, although Hamas has not been named a defendant in this suit.

But what has been vigorously disputed from the inception of this litigation is whether and under what circumstances persons and groups who allegedly have provided money and other support to Hamas (directly and indirectly) may also be liable for David’s murder. Salah, HLF, AMS, and QLI all moved to dismiss the Boims’ complaint for failure to state a claim against them, and in Boim I, we affirmed the district court’s decision not to do so. We concluded that

section 2333 reflects an intent by Congress to allow a U.S. national injured by reason of international terrorism to recover from anyone along the causal chain of terrorism and that liability is not limited to those who commit the violent act that causes injury. 291 F.3d at 1010-11. Thus, to the extent that a third party had provided money or other support to a terrorist who engaged in a terrorist act, that party potentially could be held liable for the resulting injury along with the terrorist himself. See id.

However, in response to the first of three questions the district court had certified for interlocutory review, we did reject the proposition that merely giving money to an organization engaged in terrorism, without more, would constitute

an act of international terrorism sufficient to render the donor liable under

section 2333. Id. at 1011. To say that funding simpliciter constitutes

an act of terrorism is to give the statute an almost unlimited reach. Any act which turns out to facilitate terrorism, however remote that act may be from actual violence and regardless of the actor’s intent, could be construed to “involve” terrorism. Without also requiring the plaintiffs to show knowledge of and intent to further the payee’s violent criminal acts, such a broad definition might also lead to constitutional infirmities by punishing mere association with groups that engage in terrorism .... Id. So merely giving money to Hamas or a Hamas-affiliated entity would not by itself suffice to establish civil liability under

section 2333 for terrorist acts committed by the agents of Hamas. Id. The Boims would have to show that the donor was aware of Hamas’s terrorist activities and intended to further those activities, id., and also that the murder of David Boim “was a reasonably foreseeable result of making the donation,” id. at 1012. We went on to conclude, in answer to the second question certified by the district court, that knowingly and intentionally providing material support, including but not limited to financial support, to terrorist organizations and activities — conduct that is now separately forbidden by the U.S. Criminal Code, see 18 U.S.C. §§ 2339A and 2339B — would also constitute

an act of international terrorism for purposes of

section 2333. Boim I, 291 F.3d at 1014-15.

Section 2339A makes it a crime to provide material support or resources knowing or intending that they be used in the commission of specified violent acts, while

section 2339B makes it a crime to knowingly provide material support or resources to an organization that the United States has designated a foreign terrorist organization pursuant to 8 U.S.C. § 1189(a). Thus, those injured by reason of the knowing and intentional financing of terrorist organizations and activities as proscribed by these two statutory provisions would be entitled to recover under

section 2333, provided that causation can be shown as in traditional tort law. 291 F.3d at 1015. Financial support need not be substantial in order to qualify as material support; “even small donations made knowingly and intentionally in support of terrorism may meet the standard for civil liability under

section 2333.” Id Finally, we answered the last of the certified questions by holding that aiding and abetting

an act of international terrorism would also support liability under

section 2333. “The statute would have little effect if liability were limited to those who pull the trigger or plant the bomb because such persons are unlikely to have assets, much less assets in the United States, and would not be deterred by the statute.” Id. at 1021. Thus, those who knowingly and intentionally aid terrorist acts by providing funds or other support to those who commit the acts could be held liable under the statute, consistent with “Congress’ clearly expressed intent to cut off the flow of money to terrorists at every point along the causal chain of violence.” Id.

To establish a defendant’s liability for aiding and abetting the terrorist acts of an organization like Hamas, the plaintiff would have to show that the defendant knew of Ha-mas’s illegal activities, that the defendant desired to help those activities succeed, and that the defendant engaged in some act of helping the illegal conduct. Id. at 1023; see also id. at 1021. We rejected the contention of HLF and QLI that holding them liable under

section 2333 might contravene the First Amendment by penalizing them for mere association with Hamas. Although

section 2333 on its face requires more than mere association with a terrorist organization as a predicate to liability, 291 F.3d at 1022, the defendants suggested that they were exposed to liability simply for providing money to Hamas even if their intent was to fund its ostensibly legitimate, humanitarian activities, id. However, we found the premise of this argument to be mistaken insofar as plaintiffs were seeking to hold HLF and QLI liable on the theory that they had aided and abetted David Boim’s murder based on their alleged financial ties to Hamas.

In outlining the elements of aiding and abetting liability, we said that plaintiffs must prove that the defendant knew of Hamas’s illegal activities, desired to help those illegal activities succeed, and engaged in some act of helping those activities. Id. at 1023. If all of this were shown, then imposing liability would be consonant with the principles articulated in NAACP v.

Claiborne Hardware Co., 458 U.S. 886, 920, 102 S.Ct. 3409, 3429, 73 L.Ed.2d 1215 (1982), which held that “[f]or liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.” We explained: The Boims are not seeking to hold HLF and QLI liable for their mere association with Hamas, nor are they seeking to hold the defendants liable for contributing money for humanitarian efforts.

Rather, they are seeking to hold them liable for aiding and abetting murder by supplying the money to buy the weapons, train the shooters, and compensate the families of the murderers. That Ha-mas may engage in legitimate advocacy or humanitarian efforts is irrelevant for First Amendment purposes if HLF and QLI knew about Hamas’ illegal operations and intended to help Hamas accomplish those illegal goals when they contributed money to the organization. 291 F.3d at 1024.

In sum, plaintiffs could not prevail on an aiding and abetting theory without proving that the defendants’ intent was to help Hamas succeed in its terrorist aims. Having concluded that the Boims’ complaint asserted viable claims against these defendants, we affirmed the district court’s decision not to dismiss the complaint. While the appeal was pending, the defendants had consented to final disposition before Magistrate Judge Arlander Keys, the designated magistrate.

In the wake of this court’s decision in Boim I, the Boims amended their complaint to include allegations that the defendants had engaged in a conspiracy to promote Hamas and to raise money in the United States for Hamas’s terrorist activities. R. 203 ¶¶ 36, 55, 56. Discovery concluded in April 2004, and shortly thereafter the parties filed cross-motions for

summary judgment. In November 2004, Magistrate Judge Keys ruled on the motions for

summary judgment. He denied the motions of defendants Salah, HLF, AMS/IAP, and QLI, and granted the Boims’ motion for partial

summary judgment against defendants Sa-lah, HLF, and AMS/IAP, deeming them liable to the Boims for damages that were to be determined subsequently at trial. 340 F.Supp.2d 885. The court found HLF liable based on two key determinations. First, the court granted collateral estoppel effect to the District of Columbia Circuit’s determination — in litigation challenging the Treasury Department’s finding that HLF constituted a specially designated terrorist organization — that HLF funded Hamas and, indeed, that the proof of this funding was incontrovertible. 340 F.Supp.2d at 903-06; see Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003). Second, looking at the

summary judgment record in this case, the court found there to be no dispute that Hamas was responsible for the murder of David Boim. 340 F.Supp.2d at 899. The court proceeded to find AMS/IAP liable to the Boims.

The Boims’ theory was that AMS/IAP had supported Hamas by paying for Hamas leaders to come to the United States in order to attend and speak at conferences, helping to distribute pro-Hamas literature and propaganda, and using that literature and propaganda to solicit donations for Hamas’s cause, and on the basis of this support was liable for David Boim’s murder, which AMS/IAP conceded was committed at Hamas’s behest.

The district court understood our opinion in Boim I to say that AMS/IAP could be liable to the Boims so long as it was aware of Hamas’s illegal activities, it wished to help those activities succeed, and it engaged in some act of assistance. 340 F.Supp.2d at 906. Thus, without saying so, the court was relying on our articulation of the aiding and abetting theory of liability as the governing standard. The court found that each of these elements had been met. With respect to the first requirement, the court discerned no dispute that AMS/IAP had knowledge of Hamas’s illegal activity. Id.

As for intent, the court observed at the outset that there was one AMS/IAP organization manifested in multiple incarnations, so as the court considered whether IAP and AMS desired to help Hamas’s terrorist activities succeed and engaged in some act of assistance, it was fair to attribute the acts of the various IAP entities to one another; the court thus rejected the efforts of IAP and AMS to attribute responsibility for various acts to different IAP entities. Id. at 906-08.

Having made that threshold determination, the court proceeded to find that there was an “abundance” of evidence indicating that IAP and AMS desired to and did support Hamas. Id. at 908. Specifically, the record indicated that AMS/IAP had participated in a 1993 meeting in Philadelphia with Hamas members and Hamas sympathizers at which various ways to support Hamas were discussed, engaged in fundraising for HLF (which in turn funneled money to Hamas), published and distributed pro-Hamas documents, and held conferences at which Hamas terrorist speakers were featured. Id. at 908-13.

Although IAP and AMS had submitted a declaration of Rafeeq Jaber (who had been president of AMS since 1993, and who had been president of the national IAP organization from 1996 to 1998 and from 1999 onward) in which Jaber denied that AMS/ IAP had given any aid to Hamas’s terrorist activities and had any intent to do so, the court rejected these denials as conclu-sory and self-serving. Id. at 913. In sum, the court concluded that the undisputed facts were sufficient to render AMS/IAP liable to the Boims for having aided and abetted Hamas.

The court did not render any finding as to whether AMS/ IAP had aided a particular wrongful act or series of acts that had a causal connection to David Boim’s death. See id. Turning to Salah, the court found the undisputed facts sufficient to establish his deliberate support of Hamas’s terrorist activity. Again the court cited our discussing of aiding and abetting liability in Boim I as the source of the governing standard. 340 F.Supp.2d at 913.

The court cited a variety of evidence indicating that Salah had provided support to Hamas, including Salah’s guilty plea in an Israeli military court to being an active member of Hamas, holding office in Hamas, and performing services for Hamas, as well as an August 21, 1995 statement detailing Salah’s involvement with Hamas that Salah had written while in Israeli custody to other detainees whom he believed to be Palestinian prisoners.

Although Salah had raised questions about the voluntariness of his plea, the district court found there to be “an abundance of evidence” corroborating both his plea and the 1995 statement. 340 F.Supp.2d at 920. That evidence included bank records and a memorandum prepared by FBI counterterrorism expert Dale L. Watson (which among other things detailed Salah’s role in Hamas and his involvement with many individuals known to the American and Israeli governments as Hamas terrorists). Id. at 920-22; see infra at 721.

Beyond challenging the admissibility of some of the evidence documenting his ties to Hamas, Salah had not rebutted that evidence, the court noted. Id. at 922. Additionally, when deposed by the Boims and again in response to many of the averments of the Boims’ statement of undisputed facts, Salah had invoked the Fifth Amendment and refused to answer the questions put to him regarding his involvement with Hamas. Id. at 922-23. That invocation gave rise to a negative inference that, had Salah answered, he would have incriminated himself. Id. at 923.

Based on this record, the court concluded that the Boims had established all three elements of aiding and abetting liability as to Salah and that no factual questions remained for a jury to resolve as to those elements. Id. The court rejected Salah’s contention that he was no longer involved with Hamas following his January 1993 arrest in Israel and that, consequently, the Boims could establish no link between his activities in support of Hamas and David Boim’s death in 1996. The court found that proof of such a link was not required. Id.

The Seventh Circuit did not say that, to impose liability under § 2333, the Boims have to link Mr. Salah or any of the other defendants specifically to the attack that killed David Boim; rather, the court held that to impose liability for aiding and abetting — that is, providing material support to — a terrorist organization, the Boims need only show that the defendants knew of Hamas’ illegal activities, that they desired to help those activities succeed, and that they engaged in some act of helping. Boim, 291 F.3d at 1028. The evidence shows that all three are true with respect to Mr.

Salah, and no reasonable jury could find otherwise. 340 F.Supp.2d at 923. In any case, the court added, under established civil conspiracy principles, Salah could be liable for acts committed in furtherance of a conspiracy even after his withdrawal, providing he had not repudiated the goals of the conspiracy. Id. Moreover, even if the Boims were unable to show that Salah had given material support to Hamas, under conspiracy principles he could still be liable for David Boim’s murder so long as it was a reasonably foreseeable result of “the conspiracy that was Hamas.” Id. at 924. The Boims did not seek

summary judgment against QLI and the district court denied QLI’s motion for

summary judgment, which left QLI as the sole defendant facing trial on the subject of liability. Trial had previously been set for December 1, 2004, a date which was just three weeks off when the district court ruled on the motions for

summary judgment. Following the

summary judgment ruling, QLI moved to continue the trial date. Magistrate Judge Keys orally denied that request on or about November 24, 2004. QLI’s counsel immediately asked the court to allow an interlocutory appeal, and anticipating correctly that the district court would deny that request, R. 657, counsel also sought leave to withdraw from representing QLI on the ground that he believed he could not competently represent QLI at a trial beginning on December 1, a request that the court likewise denied, R. 658.

One week in advance of trial, the district court issued an opinion resolving certain motions in limine and other evidentiary matters. Sua sponte and without prior notice, the court noted that it had already determined on

summary judgment vis-a-vis the other defendants that Hamas was responsible for David Boim’s murder and signaled that this determination would limit what evidence the Boims would need to present in order to establish QLI’s liability. R. 659 at 9; see also R. 688, Mem. Op. at 9. Subsequently, in its opening instructions to the jury, the court would state that “[t]he terrorist group Hamas was responsible for the murder.” R. 814-1 at 107.

When he addressed QLI’s liability in both his opening statement and closing argument to the jury, the Boims’ counsel would expressly rely on that finding in laying out the Boims’ case against QLI. Id. at 126 (“As the Judge has already told you, he has concluded ... that Hamas is responsible for David’s murder.”); R. 814-4 at 503 (“The Court has already ruled that the international terrorist organization Ha-mas killed David Boim.”). The trial began with jury selection as scheduled on December 1. On that date, QLI filed a notice of attendance but non-participation in the trial. R. 663.

The notice indicated that QLI had decided not to participate in the trial because although it had a meritorious defense to the complaint, QLI did not believe its counsel could effectively defend QLI without additional time and its counsel was unwilling to present an ineffective defense. In a colloquy with QLI’s corporate secretary prior to start of trial, Magistrate Judge Keys confirmed that it was QLI’s wish not to participate in the trial. R. 814-2 at 158-164.

The trial thereafter commenced, and although QLI’s representative and counsel were present, its counsel did not participate in jury selection, did not give an opening statement, did not cross-examine plaintiffs witnesses or present witnesses for QLI, and did not make closing argument. The case was submitted to the jury on December 7, and the jury returned its verdict the following day. The jury found in favor of the Boims and against QLI on liability. It awarded damages of $52 million against all four defendants (QLI, HLF, IAP/AMS, and Sa-lah). Those damages were subsequently trebled as provided in

section 2333(a). II. Holy Land Foundation A. Collateral Estoppel Based on DC Litigation Over IEEPA Designation In litigation challenging the government’s 2001 decision to name HLF a specially designated terrorist organization, the District of Columbia Circuit found that HLF had funded the terrorist activities of Hamas. As we have noted, the district court in this case gave that finding collateral estoppel effect and relied on that finding to hold HLF liable to the Boims on

summary judgment. HLF contends that it was inappropriate for the court to grant the D.C. Circuit’s finding collateral estop-pel effect in the instant litigation. For the reasons that follow, we agree. 1. Proceedings in the District of Columbia Circuit a.

Summary of IEEPA designation The International Emergency Economic Powers Act, 50 U.S.C. § 1701 et seq. (“IEEPA”), empowers the President of the United States to declare a national emergency “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” § 1701(a).

Once the President declares such an emergency, he may “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.” This statutory provision “is designed to give the President means to control assets that could be used by enemy aliens.” Global Relief Found. v.

O’Neill, 315 F.3d 748, 753 (7th Cir.2002). On January 23, 1995, President Clinton issued Executive Order 12947 declaring such an emergency, finding that “grave acts of violence committed by foreign terrorists that disrupt the Middle East peace process” amounted to an “unusual and extraordinary threat to the national security, foreign policy, and economy of the United StatesM” § 1702(a)(1)(B). This order froze all assets of those terrorist organizations and persons, referred to in regulatory parlance as “Specially Designated Terrorists” (SDTs), identified in the order.

Hamas, commonly known as the Islamic Resistance Movement, is among those designated organizations. The order also authorized the Secretary of the Treasury to designate additional SDTs found to be “owned or controlled by, or to act for or on behalf of’ Hamas or any other entity designated in the order.

On September 23, 2001, following the September 11 terrorist attacks by al-Qae-da, President Bush issued Executive Order 13224 declaring a national emergency arising from “grave acts of terrorism ... and the continuing and immediate threat of further attacks on United States nationals or the United States.” That order blocked all property or interests in property held by designated terrorist organizations who are referred to as “specially designated global terrorists” (SDGTs). Hamas subsequently was designated as one of the SDGTs subject to that order.

The order further authorizes the designation of additional SDGTs whose assets are subject to blocking because they are “owned or controlled by” or “act for or on behalf of’ SDGTs or “assist in, sponsor, or provide ... support for,” or are “otherwise associated” with them. On November 5, 2001, Dale L. Watson, the Assistant Director of the FBI’s Coun-terterrorism Division, issued an “action memorandum” (hereinafter, the ‘Watson Memorandum”) to the director of the Treasury Department’s OFAC recommending that HLF be designated an SDT based on its ties to and activities on behalf of Hamas.

FBI investigations of HAMAS activities in the United States have revealed that [HLF] is the primary fundraising entity for HAMAS and that a significant portion of the funds raised by [HLF] are clearly being used by the HAMAS organization. The information provided in this document confirms that [HLF] is acting for or on behalf of HAMAS. Further, senior members of [HLF] support HAMAS ideology and activities. These HAMAS activities interfere with the Middle East peace process and pose a threat to the national security, foreign policy, or economy of the United States.

As such, [HLF] should be considered by OFAC for SDT designation as a HA-MAS entity, subject to the prohibitions of the IEEPA statute. R. 265-1 Ex. 12 at 49. The Director of the OFAC accepted Watson’s recommendation, and on December 4, 2001, the Secretary of Treasury issued a finding that HLF “acts for or on behalf of’ Hamas. Pursuant to that finding, and without prior notice to HLF, HLF was designated an SDT under Executive Order 12947 and an SDGT under Executive Order 13224. OFAC in turn issued a “Blocking Notice” freezing all of HLF’s funds, accounts, and real property in the United States.

Pursuant to that notice, all transactions involving property in which HLF holds an interest are prohibited without specific authorization from the OFAC. On March 8, 2002, HLF filed suit in the United States District Court for the District of Columbia challenging its designation as an SDT and SDGT and the blocking of its assets. The following month, the Treasury Department notified HLF and the district court that it was reopening the administrative record underlying the designation and considering whether to re-designate HLF as an SDGT based on additional evidence linking HLF to Hamas.

HLF was given thirty-one days to respond to this notice. HLF did respond and in support of its response submitted evidence in support of the contention that it was not involved with Hamas. On May 31, 2002, HLF was redesignat-ed as both an SDT and SDGT based on the evidentiary record underlying the first designation in December 2001 plus additional classified and unclassified information and a second evidentiary memorandum from the FBI to the OFAC. b.

HLF’s lawsuit challenging blocking order HLF’s suit in the District Court for the District of Columbia contended that the designation and blocking order was contrary to the Administrative Procedure Act (“APA”), the Due Process and Takings Clauses of the Fifth Amendment, the Fourth Amendment, HLF’s First Amendment rights to freedom of speech and association, and the Religious Freedom Restoration Act. Ultimately, the district court granted

summary judgment in favor of the government on the APA claim and dismissed all but one of the remaining claims set forth in HLF’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F.Supp.2d 57 (D.D.C.2002). Upon review confined to the administrative record, the district court held that the OFAC’s action in designating HLF an SDT and SDGT and blocking HLF’s assets was not arbitrary or capricious and was therefore consistent with the APA. See 5 U.S.C. § 706(2)(A).

The court observed that the administrative record provided substantial support for the OFAC’s determination that HLF acts for or on behalf of Hamas. Specifically, the record revealed that: (

a) HLF had financial connections to Hamas dating back to 1988 (including raising funds for and providing financial support to Hamas, and financing U.S. fundraising trips by Hamas leaders); (

b) HLF leaders had been actively involved in various meetings with Hamas leaders (including a three-day meeting in 1993 in Philadelphia, monitored and recorded by the FBI, which five senior Ha-mas officials and three senior HLF leaders attended, and a 1994 meeting in Oxford, Mississippi between a co-founder of HLF and a senior Hamas leader concerning a fundraising dispute); (

c) HLF had funded charitable organizations controlled by Ha-mas (specifically, between 1992 and 1999, HLF had contributed approximately $1.4 million to eight Hamas-controlled charity or “zakat” committees, and between 1992 and 2001, HLF had given approximately $5 million to seven other Hamas-controlled charitable organizations, including a hospital in Gaza); (

d) HLF had provided financial support to family members of Hamas “martyrs” (a term the court construed as referring to persons who were killed carrying out suicide bombings or other terrorist acts on behalf of Hamas) and prisoners, and, indeed, among needy families eligible for its support, HLF particularly sought out applications from the families of “martyrs” and may have favored them with higher payments; (

e) HLF’s Jerusalem office had acted on behalf of Hamas and was shut down by the Israeli government in 1995 after the Israelis-concluded that HLF was channeling funds to the families of Hamas activists; and following his arrest in 1997, the former head of that office revealed that although HLF provided aid to the needy, it also channeled some money to Hamas; and (

f) eight unidentified FBI informants had reported instances in which HLF leaders stated that HLF funds and supports Hamas. 219 F.Supp.2d at 69-73. The district court concluded that this evidence gave the OFAC a rational basis for concluding that HLF acts for or on behalf of Hamas. Id. at 74. The court observed that its role was not to second-guess the OFAC on its credibility determinations or on issues implicating the foreign policy expertise of the Executive Branch; the court’s sole task was to determine whether the agency had a reasonable basis for its action. Id. at 75.

With one immaterial exception (relating to one aspect of HLF’s Fourth Amendment claim), the court concluded that HLF’s complaint otherwise failed to state a claim on which relief could be granted. Among the claims dismissed was a First Amendment challenge which alleged that the government, by blocking HLF’s assets and preventing it from making humanitarian contributions, was violating HLF’s rights of free speech and free association. It is the resolution of this First Amendment challenge that underlies the collateral estoppel determination made by the district court in the instant case.

The D.C. district court concluded that the blocking order did not unduly interfere with HLF’s freedom of association. The court first noted that neither the blocking order, the two Executive Orders pursuant to which HLF had been designated, nor the IEEPA precluded HLF from holding membership in Hamas or endorsing its views, so HLF’s rights of association were not implicated. 219 F.Supp.2d at 81. All that HLF was forbidden from doing was giving money to Hamas, ‘“and there is no constitutional right to facilitate terrorism.’ ” Id. (quoting Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133 (9th Cir.2000)).

The court rejected HLF’s contention that the First Amendment required proof that HLF specifically intended to further Hamas’s illegal activities before its assets could be frozen. That requirement, set forth in NAACP v. Claiborne Hardware Co., supra, 458 U.S. at 920, 102 S.Ct. at 3429, was inapposite, as the government had not deemed HLF guilty of wrongdoing based simply on its association with Hamas. 219 F.Supp.2d at 81.

The court held that, in any case, it would be unworkable to en-graft such an intent requirement on the government’s ability to designate and block the assets of individuals and organizations that act on behalf of known terrorist organizations, as an organization like HLF, regardless of its intent, cannot control whether the recipient of its aid will use that support in furtherance of terrorist activities. Id. (citing Humanitarian Law Project, 205 F.3d at 1133). The court further held that the blocking order did not violate HLF’s freedom of speech.

To the extent the blocking order interfered with HLF’s free speech rights by preventing it from making humanitarian contributions, the intrusion was justified by the government’s compelling interest in battling terrorism. The court noted that humanitarian contributions have both speech and non-speech elements; for that reason, the blocking order was subject to intermediate scrutiny. Id. at 81-82 n. 37. Applying the four-part test set forth in United States v.

O’Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968), the court concluded that the governmental interest in regulating the non-speech aspect of contributions was sufficiently important to justify the incidental limitations on HLF’s First Amendment rights. The court noted that Presidents Clinton and Bush had the power under the IEEPA to issue the Executive Orders declaring national emergencies, and both the IEEPA and the two Executive Orders authorized the designation and blocking order against HLF.

The Executive Orders and the blocking order furthered the important and substantial governmental interest in combating terrorism by undermining its financial base. Moreover, that governmental interest in combating terrorism was unrelated to suppressing speech.

Although blocking the assets of a designated organization resulted in an incidental restriction on the organization’s freedom of speech, that restriction was no greater than necessary to further the government’s interest. “Money is fungible,” the court observed, and the government has no more narrow means of ensuring that contributions made to a terrorist organization for legitimate humanitarian purposes are in fact used for those purposes.

Id. at 82; see also id. at 71 n. 20 (noting that the “charitable component” of Hamas “is an effective way for Hamas to maintain its influence with the public, indoctrinate children and recruit suicide bombers” and consequently, one cannot draw a clear line between Hamas’s legitimate and illegitimate activities). For these reasons, the court held that the blocking order did not impermissibly restrict HLF’s First Amendment rights. On appeal, the District of Columbia Circuit affirmed the entry of

summary judgment against HLF on the APA claim. The appellate court held that the actions of the Treasury Department’s OFAC were properly reviewed pursuant to the arbitrary and capricious standard, and the decision to designate HLF an SDT and SDGT was “based on ample evidence in a massive administrative record.” 333 F.3d at 162.

That a significant portion of that evidence amounted to hearsay was not problematic: “it is clear that the government may decide to designate an agency based on a broad range of evidence, including intelligence data and hearsay declarations.” Id. (citing Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 196 (D.C.Cir.2001)). With respect to HLF’s First Amendment claims, the court found that the district court had erred in disposing of these claims pursuant to Rule 12(b)(6).

The underlying premise of the district court’s rationale for dismissing these claims was that there is no constitutional right to facilitate terrorism. However, HLF’s amended complaint alleged that HLF had no knowing affiliation with Hamas or any other terrorist organization and did not fund terrorist activity. So in order to reach the outcome it did, the district court first had to find, contrary to the allegations of the complaint, that HLF in fact did fund terrorism.

The district court could not make such a finding without either applying an improperly heightened pleading standard or expanding the scope of Rule 12(b)(6) review. The district court apparently had considered the evidence in the administrative record in disposing of the First Amendment claims, but it did so without notifying the parties that it was converting the motion to dismiss into a motion for

summary judgment by looking to matters outside of the complaint and without granting HLF an opportunity to present additional material pertinent to a

summary judgment motion as contemplated by Rule 12(b). In this respect, the court had abused its discretion. 333 F.3d at 164-65. Despite the procedural irregularity, the court concluded that HLF had not been prejudiced by the denial of an opportunity to present evidence. Echoing the district court, the appellate court observed that there is no constitutional right to fund terrorism. Id. The court had before it the full administrative record, which included both the classified and unclassified evidence that the OFAC had taken into consideration in designating and re-designating HLF an SDT and SDGT.

The court was satisfied that the record not only supported the notion that HLF funded terrorism, but ruled out the possibility that HLF could prove otherwise: The ample record evidence (particularly taking into account the classified information presented to the court in camera ) establishing HLF’s role in the funding of Hamas and of its terrorist activities is incontrovertible. While not in accordance with proper procedures, HLF has had every opportunity to come forward with some showing that the evidence is false or even that its ties to Hamas had been severed.

HLF’s presentations at the administrative stage did not reach this goal, even when HLF was given an additional thirty-one days to respond to its redesignation and to the new evidence in April of 2002. Even following the district court’s judgment, while HLF attempted to supplement the record on appeal, the supplementary material could not have defeated the proposition established by the record evidence that Holy Land was a funder of the terrorist organization Hamas. Perhaps the supplemental evidence offered, while properly rejected from the administrative review claim, should have been admitted for the unannounced

summary judgment proceeding we now review. But it would have made no difference. Id. at 165-66. The Court clarified that in the ordinary case, it would not necessarily deem harmless a district court’s decision to dismiss a case based on evidence outside of the pleadings simply because the losing party was unable to show what contrary evidence it would have produced had it been given the opportunity to do so; for in a general case, only the opportunity for discovery (which HLF had not been given) might have enabled the party to produce such evidence. Id. at 166. However, this is not a general case.

This is a specific case involving sensitive issues of national security and foreign policy. In addition to the classified evidence that we have reviewed, all evidence from the government that is unclassified and otherwise discoverable is in the record before us, as is the evidence HLF produced in an effort to create a genuine factual dispute. Despite the district court’s failure to follow the proper procedures, HLF had every opportunity and incentive to produce the evidence sufficient to rebut the ample evidence supporting the necessary conclusion that it was a funder of Hamas but could not do so....

Again, we hold as other courts have that there is no First Amendment right nor any other constitutional right to support terrorists, and that the record supports no conclusion that the designation or blocking violated any constitutional right of the HLF. See, e.g., Humanitarian Law Project, 205 F.3d at 1133. 333 F.3d at 166. It was the District of Columbia Circuit’s resolution of HLF’s First Amendment challenges to the blocking order that formed the springboard for the district court’s invocation of collateral estoppel here. In particular, the district court relied upon the D.C.

Circuit’s finding that the “ample record evidence” before that court, including the classified evidence submitted in camera, proved “incontrover-tibl[y]” that HLF funded Hamas and its terrorist activities. 340 F.Supp.2d at 903 (quoting Ashcroft, 333 F.3d at 165-66); see supra at 717). That language led the district court to conclude that HLF’s provision of material support to Hamas was actually litigated in the prior action and was essential to the D.C. Circuit’s decision to sustain the dismissal of HLF’s First Amendment claims. Id.

The district court was also satisfied that HLF had been given a full and fair opportunity to litigate the subject of its financial support of Hamas in the prior litigation. It was immaterial that the litigation in the District of Columbia entailed judicial review of an administrative determination. Id. at 904. Each of the arguments that HLF had raised in opposition to the Boims’ attempt to impose civil liability on the organization had been raised and rejected in resolving HLF’s contention that the designation and blocking order impermissibly infringed on its First Amendment rights. Id.

HLF offered the court no insight as to what evidence might have been lacking in the record before the District and Circuit Courts in the District of Columbia. Id. at 904-05. HLF had of course been represented in that proceeding and had been given a full opportunity to present its position. Id. at 905. The district court acknowledged that the D.C. Circuit, in deeming HLF’s role in funding terrorism incontrovertible, had in part relied on classified evidence presented to that court in camera. Id. No one other than the government and the D.C. Circuit knew what that evidence was. Id.

However, in the district court’s view, the secrecy shrouding that evidence “d[id] not vitiate the potential conclusive effect of the D.C. Circuit’s judgment.” Id. There was nothing to suggest that either the trial or the appellate courts in the prior litigation had acted as a rubber stamp in rejecting HLF’s challenge to the designation and blocking order. Id. at 905-06. 2. Criteria for Non-mutual Offensive Collateral Estoppel The doctrine of collateral estop-pel is employed under appropriate circumstances to prevent a party from re-litigating an issue that has already been fully litigated in another action.

E.g., United States v. Mendoza, 464 U.S. 154, 158, 104 S.Ct. 568, 571, 78 L.Ed.2d 379 (1984). Here, the Boims invoked collateral estop-pel offensively, relying on the D.C. Circuit’s finding that HLF funded Hamas’s terrorist activities as conclusive for purposes of their own case against HLF, and non-mutually, in the sense that the Boims were not a party to the litigation in the D.C. Circuit. See id. at 159 n. 4, 104 S.Ct. at 571 n. 4; Harrell v. U.S. Postal Serv., 445 F.3d 913, 921 (7th Cir.), cert. denied, — U.S. -, 127 S.Ct. 845, 166 L.Ed.2d 665 (2006).

There are four principal criteria that must be met to support the application of non-mutual offensive collateral estoppel: (1) the issue sought to be precluded from further litigation must be the same issue that was decided in the prior action; (2) that issue must have actually been litigated in the prior action; (3) the determination of that issue must have been essential to the final judgment in the prior action; and (4) the party against whom estoppel is invoked must have been fully represented in the prior action. E.g., Chicago Truck Drivers, Helpers & Warehouse Union (Indep.) Pension Fund v.

Century Motor Freight, Inc., 125 F.3d 526, 530 (7th Cir.1997). Collateral estoppel is, however, an equitable doctrine. Evans v. Katalinic, 445 F.3d 953, 956 (7th Cir.2006); Jones v. City of Alton, Ill., 757 F.2d 878, 885 (7th Cir.1985). Therefore, even if the criteria are satisfied, it remains within the court’s discretion not to allow offensive use of the doctrine when the court is convinced that it would be unfair to preclude a party from re-litigating an issue. See Parklane Hosiery Co. v.

Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 651-52, 58 L.Ed.2d 552 (1979) (district courts enjoy broad discretion whether to invoke offensive collateral es-toppel and should not do so where it would be unfair); see also Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1023 (7th Cir.2006) (applying Illinois law) (even if the technical requirements for offensive collateral estoppel are met, the doctrine must not be applied unless it is clear that no unfairness would result to estopped party); Ross-Berger Cos. v. Equitable Life Assur.

Soc. of U.S., 872 F.2d 1331, 1338 (7th Cir.1989) (applying Illinois law); Jones, 757 F.2d at 885. The doctrine should not be invoked when there is reason to doubt the quality, extensiveness, or fairness of the procedures followed in the prior litigation or when the party against whom estoppel is sought otherwise did not have the benefit of a full and fair opportunity to litigate the issue in the prior proceeding. Kremer v. Chem. Constr. Corp., 456 U.S. 461, 480-81, 102 S.Ct. 1883, 1897, 72 L.Ed.2d 262 (1982) (collecting cases). 3.

Analysis Applying these criteria, we come to a different conclusion than the district court did as to the propriety of invoking the collateral estoppel doctrine. Although we review a district court’s decision to apply collateral estoppel for abuse of discretion, Harrell v. U.S. Postal Serv., 445 F.3d at 921 (citing Parklane Hosiery Co., 439 U.S. at 331, 99 S.Ct. at 651), the question of whether the issues presented in the two suits are identical is a legal question as to which our review is de novo, Adair v. Sherman, 230 F.3d 890, 893 (7th Cir.2000).

We conclude that the question presented in the Ashcroft litigation in the District of Columbia Circuit was not the same as the question posed in the Boims’ case against HLF. Consequently, the threshold criterion for offensive non-mutual collateral estoppel cannot be satisfied, and the district court necessarily abused its discretion in collaterally estopping HLF from contesting the proposition that it knowingly and intentionally provided material support to Hamas by funding its terrorist activities.

The requirement that the issue resolved in the prior action must be the same as the one presented in the instant proceeding is an exacting criterion. Similarity does not suffice; the issue in the current case must be the precise and identical issue that was decided in the prior action. Am. Nat’l Bank & Trust Co. of Chicago v. Regional Transp. Auth., 125 F.3d 420, 430 (7th Cir.1997) (applying Illinois law); see also Parklane Hosiery Co., 439 U.S. at 326, 99 S.Ct. at 649; Smith v. SEC, 129 F.3d 356, 362 (6th Cir.1997) (en banc);. Prymer v. Ogden, 29 F.3d 1208, 1212 (7th Cir.1994); Crot v.

Byrne, 957 F.2d 394, 396 (7th Cir.1992); Levesque v. Brennan, 864 F.2d 515, 519 (7th Cir.1988). For purposes of context, we point out that the first and principal issue in the District of Columbia litigation was the propriety of the Treasury Department’s decision to designate HLF an SDT and SDGT and to block its assets. As is typical in cases involving administrative decision-making, HLF’s challenge to the designation did not trigger a de novo examination of the evidence before the Treasury Department.

Rather, both the district and appellate courts confined themselves to determining whether the Treasury Department’s decision was arbitrary and capricious and whether the designation and blocking order was inconsistent with HLF’s statutory or constitutional rights. It was for that reason that the bulk of the litigation was resolved without discovery and . without the usual kinds of factfinding procedures that are normally followed in civil litigation involving disputed facts. In this fundamental respect, the setting of the District of Columbia litigation was different from the instant case.

The former entailed deferential review of an administrative determination, whereas the Boim’s complaint in this case calls for straight-on determination of whether HLF funded or otherwise supported Hamas’s terrorist activities and, if so, whether there was a causal relationship between that support and David Boim’s murder. Against that backdrop, the sole potential for substantive overlap between the District of Columbia litigation and the instant case lies in the First Amendment challenges that HLF raised in the former litigation, as the parties and the district court have recognized.

Only as to those claims was there a de novo judicial assessment of HLF’s links to terrorism, and that assessment took place at the appellate level. Recall that the district court in Ashcroft had dismissed these claims on the pleadings, reasoning that there is no constitutional right to provide funding to a terrorist organization and thereby facilitate terrorism. 219 F.Supp.2d at 81, 82. Although the D.C.

Circuit agreed with this principle, it held that in order to dispose of HLF’s First Amendment challenge on this basis, it was necessary for the court to find that HLF actually does fund Ha- ' mas’s terrorist activities. The appellate court then proceeded to make that finding. Looking to the record evidence, and in particular the classified evidence, underlying the Treasury Department’s designation decision, the D.C. Circuit found it “incontrovertible” that HLF funded terrorism by funding Hamas. 333 F.3d at 165. The D.C.

Circuit’s finding that HLF funded Hamas’s terrorist activities was not, however, a finding that HLF engaged in

an act of international terrorism within the meaning of

section 2333 or that it aided and abetted such

an act. In particular, the D.C. Circuit did not mention, let alone embrace, our holding in Boim I that funding simpliciter of an organization that engages in terrorism would be inadequate to establish

section 2333 liability but rather that the financial support must be given with knowledge and intent to further terrorism. 291 F.3d at 1011-12, 1021-24. We took our cue on that point from the Supreme Court’s decision in Claiborne Hardware, which conditions the civil liability of an organization for the violent acts of one of its members on proof that the organization had the specific intent to further the aims of the wrongdoer. See 458 U.S. at 919-20, 102 S.Ct. at 3428-29.

Imposing liability solely on the basis of an organization’s association with a wrongdoer would interfere with the organization’s First Amendment freedom of association, the Court concluded, id. at 920, 102 S.Ct. at 3429. The D.C. Circuit’s decision in Ashcroft did not mention Claiborne Hardware, either. Notably, however, the district court’s decision in Ashcroft had discussed Claiborne Hardware, and it had expressly rejected HLF’s reliance on that precedent as a basis for challenging the designation and blocking orders. 219 F.Supp.2d at 80-81.

The lower court reasoned that the blocking order did not impose “guilt by association” in the way that the tort judgment against the NAACP at issue in Claiborne Hardware had; the order simply acted to prevent HLF from providing further funding to a terrorist organization, which it had no constitutional right to do in any event. Id. “Because the Government in this case has not imposed guilt by association, the Claiborne Hardware specific intent requirement is not applicable.” Id. at 81.

As we have noted, the district court added that it might be counterproductive to condition the issuance of a blocking order on proof that the donor knows and intends that its contributions be used in furtherance of terrorism: [Ijmposing a “specific intent” requirement on the Government’s authority to issue blocking orders would substantially undermine the purpose of the economic sanctions programs. Regardless of HLF’s intent, it can not effectively control whether support given to Hamas is used to promote that organization’s unlawful activities.

Humanitarian Law Project, 205 F.3d at 1133 (First Amendment does not require the government to demonstrate a specific intent to aid an organization’s illegal aims because “[mjaterial support given to a terrorist organization can be used to promote the organization’s unlawful activities, regardless of donor intent”). 219 F.Supp.2d at 81. The district court’s rationale in this regard suggests rather strongly that the question presented in Ashcroft as to HLF’s support of Hamas is not identical to the issue presented here. The D.C.

Circuit’s silence on this point is in turn significant: If the appellate court meant to overrule the district court and require proof that HLF had the specific intent to further Hamas’s terrorist activities, one would have expected the court to say so, particularly when that court was expressly urged to impose an intent requirement. See 2003 WL 25586053, at *28-32 (appellate brief of HLF). One might be tempted to say that when the D.C. Circuit found that HLF funded Hamas, it necessarily found that HLF did so with knowledge that Hamas perpetrates terrorist acts and with the intent to support such acts.

After all, Hamas’s role in terrorism has never been a secret, and the Ashcroft district court’s

summary of the evidence underlying the blocking order indicates that HLF had longstanding and extensive ties to Hamas at multiple levels. See supra at 722; 219 F.Supp.2d at 69-73. However, a further review and comparison of the district and appellate court opinions in Ashcroft reveals the difficulty of reading into the D.C. Circuit’s decision the findings of knowledge and intent needed to impose civil liability under

section 2333. The evidence that the district court relied upon to sustain the Treasury Department’s determination that HLF had acted for or on behalf of Hamas was a mixed bag in this respect. Some of that evidence suggested that HLF not only was aware of Hamas^s terrorist activities but meant to aid such activities. The district court noted, for example, that HLF particularly sought to provide financial aid to the families of Hamas “martyrs” — i.e., suicide bombers and others who die carrying out terrorist attacks. 219 F.Supp.2d at 71-72.

One could readily infer from such evidence that HLF was using the guise of charity to further terrorism. However, other evidence cited by the district court included support of Hamas’s humanitarian activities that potentially would be protected under Boim I. For example, the court noted that HLF had provided millions of dollars in funding to charitable organizations (including a hospital in Gaza) controlled by Ha-mas. Id. at 70-71. Did HLF know that these charities were controlled by Hamas? The district court’s opinion does not say.

Did HLF intend that the money given to these charities be funneled to Hamas’s terrorist arm? The opinion does not say. The district judge did observe that Ha-mas’s charitable activities helped cultivate public support for Hamas and to recruit terrorists. Id. at 71 n. 20. But nowhere in the district court’s decision is there a finding that HLF funded Hamas charities with this understanding (ie., knowledge) and purpose.

On the contrary, the district court could not have been more clear in saying that proof of such an intent was not necessary, even in order to overcome HLF’s First Amendment objections to the blocking order. Id. at 81. In that court’s view, any support that HLF gave to Ha-mas and its affiliates, even support that HLF intended be used for humanitarian purposes, supplied justification for the blocking order. For its part, the D.C. Circuit did not even discuss the nature of the evidence that it relied upon in concluding that HLF funded Hamas.

All we know is that the evidence before the appellate court, including in particular the classified evidence that the government tendered to that court in camera, convinced the court that HLF funded Hamas and therefore funded terrorism.

Because the court did not purport to adopt any requirement of knowledge and intent, we cannot know whether the court, in determining that HLF funded terrorism, relied on evidence showing that HLF knowingly and deliberately funded terrorist activities or rather relied, as the district court did in part, on evidence indicating that HLF provided more generalized support to Hamas, including financial support for Hamas-con-trolled charities. The court’s opinion quite simply is opaque in that regard. In the absence of any discussion of knowledge and intent, the only plausible conclusion is that the D.C.

Circuit did not believe that proof of HLF’s knowledge and intent in funding Hamas was necessary; so far as it appears, funding simpliciter was enough in that court’s view to overcome HLF’s First Amendment challenge to the blocking order. This, of course, would not suffice to meet the standard for civil liability that we articulated in Boim I. Therefore, although there undoubtedly is some factual overlap between the Ashcroft litigation and this case, the questions posed by the two suits are distinct.

In Ashcroft, the issue posed by HLF’s First Amendment challenge to the blocking order was whether it funded (directly or indirectly) Hamas’s terrorist activities. Here, the question is whether HLF funded Hamas’s terrorism knowingly — for example, realizing that it was giving money to charities controlled by Hamas, and that donations to such charities either would be diverted to terrorist ends or would free up other funds for terrorist activity — and intentionally. Furthermore, the litigation in the D.C.

Circuit directly concerned the government’s ability to further the national security and conduct, the foreign policy of the United States by stopping the flow of funds from organizations in the United States to terrorist entities abroad by freezing those assets before they can leave this country. Nothing that this court, the district judge, or a jury might say in this case would affect HLF’s designation as an SDT or SDGT or confine the government’s ability to rely on that designation in the future. The validity of the designation is not at stake here.

Instead, this suit looks backward to determine whether HLF knowingly and intentionally supported Hamas’s terrorist activities in a way that had some causal connection with David’s murder, which occurred before HLF was even designated an SDT and SDGT. The subject matter of both suits (HLF’s ties to Hamas) certainly is the same, and both suits have in common the goal of depriving terrorists of funds that they might use to commit further atrocities, but the means to that end, and the legal rules and procedures that govern them, differ in important respects.

Because the questions presented by the Ashcroft litigation and this suit are not identical, HLF cannot be collaterally es-topped from litigating here whether it knowingly provided financial (or other) support to Hamas with the intent to further Hamas’s terrorist activities. We need not consider whether any of the other prerequisites to offensive nonmutual collateral estoppel are satisfied, as all of them must be met in order for the doctrine to apply.

Nonetheless, we conclude our analysis with a few observations about the fullness and fairness of the opportunity that HLF was given in the Ashcroft litigation to challenge the proposition that it provided financing to Hamas and its terrorist activities. First, HLF had only a limited opportunity in the Ashcroft litigation to contest its involvement with Hamas. As the Ashcroft opinion itself makes clear, the D.C. Circuit’s conclusion that the links between HLF and Hamas were “incontrovertible” was based in particular on the classified evidence that the government had tendered to the court. 333 F.3d at 165.

Because that evidence was submitted to the court in camera and ex parte, HLF never had the opportunity to see, let alone respond to, that evidence. (We ourselves have no idea what that evidence was or what specifically it revealed.) The D.C. Circuit recognized that in a more typical civil case, HLF likely would have been entitled to the opportunity that it was denied in Ashcroft to conduct discovery in order to assemble evidence that might have helped controvert the notion that it was funding terrorist activity. 333 F.3d at 166.

But the court emphasized that Ashcroft was not a general case, but rather a case “involving sensitive issues of national security and foreign policy.” Id. This case, by contrast, is a civil dispute between private litigants. The government is not a party to this action, and although its decisions to designate Hamas a terrorist organization and to block the assets of HLF based on its ties to Hamas are certainly relevant, we are not reviewing these decisions. Instead, we are focused on whether the Boims have shown that HLF took actions that contributed in some way to David’s murder.

The case is important, to be sure, not only to the parties, but also to others who have been injured by terrorism and to the individuals and organizations whose ties to terrorist organizations may render them liable to those so injured. But, in contrast to Ashcroft, this case does not implicate national security or foreign policy concerns to a degree that would justify the circumvention of normal discovery and factfinding procedures.

See Parklane Hosiery, 439 U.S. at 330-31 & n. 15, 99 S.Ct. at 651 & n. 15 (noting that it may be unfair to apply offensive collateral es-toppel where second action affords defendant procedural opportunities that were unavailable in first action and that could readily produce a different result). Second, the administrative determination at issue in Ashcroft — that HLF funds Hamas, and otherwise acts for and on behalf of Hamas — was not rendered by a neutral arbiter in an adversarial context but rather was an ex parte finding by a government agency.

Although the Ashcroft litigation provided HLF with judicial review of that determination (and although HLF was given the opportunity to tender evidence to the OFAC contesting its affiliation with Hamas at the re-designation stage), it could not and did not grant HLF the opportunity that it was not afforded in the first instance — a fully adversarial hearing before a neutral and independent deci-sionmaker in which HLF would be permitted to confront the government’s evidence, cross-examine its witnesses, and present testimony and other evidence of its own, and at the conclusion of which the decision-maker would make credibility assessments and other findings of fact.

True, the D.C. Circuit was convinced that HLF could not have controverted the government’s evidence. 333 F.3d at 165-66. But that conclusion, like the OF AC’s own administrative decision that HLF acted for or on behalf of Hamas, was based in significant part on classified evidence to which HLF had no access and could not refute. We accept as the D.C. Circuit did that ex parte determinations based on a wholly or partially classified evidentiary record are appropriate for prophylactic measures that implicate matters of foreign policy and national security. Id. at 166.

But we do not believe it appropriate to grant collateral estoppel effect to such determinations in a civil action between private parties, when foreign policy and national security concerns are not implicated to the degree they are in a lawsuit directly challenging governmental action. Congress, when it enacted

section 2383, no doubt meant to further particular national security and foreign policy interests by allowing those injured by acts of international terrorism to seek recompense in federal court. But it gave no sign that it meant to abandon the rules, rights, and procedures that have long governed civil litigation. Nothing in either the IEEPA or

section 2333, for example, suggests that when a person or organization is found to act “for or on behalf of’ a terrorist entity like Hamas based on its links with that entity, that finding shall be conclusive as to what that person or organization knew and intended when it affiliated with the terrorist. Absent further legislative action, it is not our place to deprive HLF of its right to contest the notion that it knowingly and intentionally supported Hamas’s terrorist activities using the same tools and procedures that are made available to other civil litigants.

For all of these reasons, we conclude that the district erred in granting collateral estoppel effect to the D.C. Circuit’s finding that HLF funded Hamas’s terrorist activities. This alone requires the reversal of the district court’s determination on

summary judgment that HLF is liable for David Boim’s murder. As we proceed to discuss below with respect to defendants AMS and Salah, the district court mistakenly believed that an organization or individual that contributed money or other support to Hamas with the intent to support its terrorist activities could be liable to the Boims even in the absence of proof that the money or support given to Hamas was a cause in fact of David’s death, so long as the murder of David was foreseeable to the donor individual or organization. This misunderstanding of our opinion in Boim I requires the reversal of the partial

summary judgments deeming AMS and Salah liable to the Boims. It constitutes a second basis for reversing the entry of partial

summary judgment against HLF, as there has been no finding that HLF’s financial support of Hamas was a cause in fact of David Boim’s death. III. American Muslim Society A.

Summary judgment as to liability against AMS/IAP 1. District Court’s analysis Relying on Boim I, the district court stated that in order for AMS/IAP to be liable to the Boims, it must have (

a) known about Hamas’s illegal activities, (

b) desired to help those activities succeed, and (

c) engaged in some act of helping. 340 F.Supp.2d at 906. These are the elements we identified as necessary to render a defendant liable for aidi

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