Full opinion text
Opinion for the court filed by Circuit Judge TATEL. Opinion concurring in part and dissenting in part filed by Circuit Judge HENDERSON. Concurring opinion filed by Circuit Judge TATEL. Opinion concurring in part and dissenting in part filed by Circuit Judge BROWN. TATEL, Circuit Judge: While providing security for a U.S. State Department convoy in the Gaza Strip, Mark Parsons was killed by a roadside bomb. Parsons’s estate and his family sued the Palestinian Authority under the Anti-Terrorism Act of 1991, alleging that the Authority had provided material support for and conspired with the terrorist or terrorists who detonated the bomb. Concluding that the Parsons family had produced insufficient evidence to create genuine disputes of material fact on these Anti-Terrorism Act claims, the district court granted summary judgment to the Palestinian Authority. Although we agree with the district court that the family’s conspiracy claim theories are too speculative to survive summary judgment, we believe a reasonable juror could conclude that Palestinian Authority employees provided material support to the bomber. Accordingly, we affirm with respect to the conspiracy claim but reverse as to material support. I. In the midst of the Second Intifada, on October 15, 2003, a United States Department of State convoy traveled through the Gaza Strip on the way to interview Palestinian Fulbright Scholarship applicants. Besides State Department officials, the convoy included a Palestinian Authority Civil Police car in the lead position and DynCorp International employees under contract with the State Department to provide security. While the convoy traveled along Salahadeen Road, approximately 20 meters — or about one-fourth of a city block — from a manned Palestinian Authority security checkpoint, a roadside bomb exploded, killing DynCorp employee Mark Parsons and two of his co-workers. Immediately after the bombing, Palestinian Authority security and police forces took control of the site, gathered forensic evidence, and launched an investigation run by the Palestinian Authority’s Preventive Security Services. United States and Israeli authorities also launched their own investigations. During its investigation, the Palestinian Authority detained and interrogated six suspects, “a number of’ whom, according to the official having overall responsibility for the investigation, “admitted to possessing and planting explosive charges in the past, targeted at Israeli military incursions into Gaza.” One of those suspects was Amer Qarmout, a leader of the Popular Resistance Committees (“PRC”). During his interrogation, Qarmout recounted how, two or three days prior to the bombing, he supervised the digging of a hole on Salahadeen Street in which he planned to place a bomb. Qarmout and “fellow members in the Resistance” dug the hole “in front of the [Palestinian Authority] National Security Service.” Qarmout explained: “I introduced myself to the National Security soldiers and asked them to turn their attention from the young men who were planting the device.” But denying he ever planted a bomb, Qarmout claimed that after the “explosion targeting the U.S. convoy took place ... I called Joma’a Abou Loze[, who had helped dig the hole,] and asked him not to move about in the place and not to plant the device because of the dangers involved.” Qarmout also admitted to having possessed three bombs one month prior to the bombing. He described the bombs as using detonating cables, employing urea as the explosive material, and weighing 30 to 35 kilograms, 20 to 25 kilograms, and 10 to 12 kilograms. According to Qarmout, it was the 12 kilogram bomb that he had intended to plant on Salahadeen Road. In the course of their investigations, the Palestinian Authority and the FBI conducted forensic analyses of the bomb that killed Parsons. Both determined, among other things, that the bomb contained urea nitrate. The Authority’s analysis added that the bomb weighed approximately 30 to 40 kilograms and was detonated using cables. Moreover, a memo found in the Palestinian Authority’s investigative file concludes, based on “[t]he lid of the device, the type of detonator, the cables used, the poorly connected batteries, the type of explosive material, [and] the outer casing of the device[,] ... that the structure of this device is the same structure used by the Popular Resistance Committees.” To this day, neither the Palestinian Authority nor Israel nor the United States has publicly identified the bomber. The reason, according to the Palestinian Authority, is that all three investigations remain open and the “identity of the individuals or group responsible for planning and carrying out the bombing has never been determined.” Appellees’ Br. 2. The Parsons family disputes whether the Palestinian Authority has indeed failed to identify those responsible for the attack. Nearly four years after the bombing, Parsons’s estate, his siblings, and his par-exits’ estate filed this lawsuit in the U.S. District Court for the District of Columbia against the Palestinian Authority and the Palestinian Liberation Organization, alleging that each organization was at least partially responsible for the attack. Although the family’s complaint raised several claims, at issue in this appeal are just two, both brought under the Anti-Terrorism Act of 1991 against the Palestinian Authority (but not the Palestinian Liberation Organization) for allegedly providing material support to and conspiring with the terrorist or terrorists who set and detonated the bomb. In support of these claims, the Parsons family advanced several theories for linking the Palestinian Authority to the attack, only three of which are relevant to this appeal: that Palestinian National Security forces at the nearby checkpoint agreed to look the other way while the bomb was planted; that Authority personnel tipped off the bomber about the convoy; and that the Authority provided weapons to the bomber. Among the evidence the Parsons family offered to prove these theories, three documents — discovered in the Palestinian Authority’s investigative file and that the parties and the district court have thus far treated as admissible — are central to this case. The first document (quoted above) is Qarmout’s statement to Palestinian Authority interrogators in which Qarmout admits that he prepared to plant a bomb on Salahadeen Road in approximately the same location as the bomb that killed Parsons. In that statement, Qarmout also describes the three bombs he possessed in the month prior to this attack. The second piece of evidence (also referenced above) is the FBI’s forensic report. Lastly, the family relied on a two-page memo having an unidentified author addressed to the “Director General of the Preventive Security Service,” the significance of which the parties forcefully debate. In a section titled “Conclusion and personal interpretation of what happened according to the information in my possession,” the memo includes several statements about the role Palestinian Authority employees played in the bombing including: • “The explosive device was planted 20 meters away from the National Security checkpoint, a fact that indicates that those present in front of the checkpoint that day have previous knowledge of the presence of the device.” • “[Ajfter information of the arrival of U.S. embassy staff was leaked, either by the National Security personnel at the checkpoint or by those who were accompanying the convoy, the person responsible for the explosion detonated the device.” The memo also includes several observations about the bomb, see supra at 120, as well as two statements about when the device was prepared and buried: • “After examining the material used, we learned it had been prepared more than twenty days earlier and that a substantial portion of the nitric acid had been lost, separated from the urea, and reacted with the iron in the outer casing.” • “As we mentioned above, the device was present for 20 days at least....” In addition, the Parsons family claimed they could prove that Amer Qarmout and/or the Popular Resistance Committees directly carried out the attack. Moreover, the family insisted that even if they were unable to identify the actual bomber, they could nonetheless prevail so long as they could show what role the Palestinian Authority had played. The district court, focusing on the three items of evidence, granted the Palestinian Authority’s motion for summary judgment. The court first held that plaintiffs advancing material support claims under the Anti-Terrorism Act must identify “what terrorist organization or individual carried out the attack.” Estate of Parsons v. Palestinian Auth., 715 F.Supp.2d 27, 31 (D.D.C.2010). Concluding that no reasonable juror could find, based on the family’s admissible evidence, that Qarmout, the PRC, or any other specific terrorist or terrorist organization was directly responsible for the bomb, the court rejected the family’s material support claim. Although agreeing that the family need not prove the bombers’ identity for their conspiracy claim, the court nonetheless rejected that claim as well, reasoning that the admissible evidence linking the Palestinian Authority to the attack was too speculative. The Parsons family now appeals. Our review is de novo. See Jones v. Bernanke, 557 F.3d 670, 674 (D.C.Cir.2009) (explaining that we review summary judgment decisions de novo). II. The Parsons family brought their material support and conspiracy claims under the civil liability provision of the Anti-Terrorism Act of 1991, which gives United States nationals killed or injured “by reason of an act of international terrorism” (or their estates, survivors, or heirs) the right to bring a civil lawsuit in federal court. 18 U.S.C. § 2333. The Act defines “international terrorism” as activities that, among other things not relevant to this appeal, “involve 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.” Id. § 2331(1)(A). In other words, to prevail, a plaintiff must prove that the defendant would have violated any one of a series of predicate criminal laws had the defendant acted within the jurisdiction of the United States. Here, the Parsons family alleges that the Palestinian Authority violated two federal criminal statutes: 18 U.S.C. § 2339A, which makes it a crime to “provide[ ] material support or resources ... knowing or intending that they are to be used in preparation for, or in carrying out, a violation of’ specific violent crimes, including 18 U.S.C. § 2332, which prohibits the killing of a United States national outside the United States; and 18 U.S.C. § 2332(b), which makes it a crime to conspire to kill a United States national outside the United States. The family’s Anti-Terrorism Act claims thus turn on whether they can prove the elements of either section 2339A (the material support claim) or section 2332(b) (the conspiracy claim). In this opinion, we consider the material support claim and announce our judgment with respect to the conspiracy claim. Material Support The family first disputes the district court’s interpretation of section 2339A as requiring them to identify the actual bomber. The family may prevail, they claim, so long as they show that the Palestinian Authority provided material support to whoever directly carried out the attack. On this point, the Palestinian Authority never directly challenges the family’s statutory analysis, and for good reason. As the family correctly observes, “[t]he emphasis in 18 U.S.C. § 2339A is upon the material support provider — ‘whoever provides material support or resources’ — not the recipient.” Appellants’ Br. 18. That said, the family’s theory that Amer Qarmout planted and detonated the bomb and that Palestinian Authority employees gave him material support to that end, would, if proven, at least be sufficient to sustain their material support claim. Accordingly, we first consider whether a reasonable juror could so conclude, starting with the question of whether the family’s evidence that Qarmout planted and detonated the bomb is sufficient to survive summary judgment. Evaluating whether evidence offered at summary judgment is sufficient to send a case to the jury is as much art as science. Under Federal Rule of Civil Procedure 56, the court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). But what makes for a “genuine” factual dispute? The Supreme Court answered that question in Anderson v. Liberty Lobby, Inc., explaining that the “mere existence of a scintilla of evidence ... will be insufficient” to defeat summary judgment. 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Applying that standard requires us to examine both the “caliber” and the “quantity” of the family’s evidence “through the prism of the substantive evidentiary burden” — for these claims, the preponderance of the evidence standard. Id. at 254, 106 S.Ct. 2505. That said, Liberty Lobby also warns against “denigratfing] the role of the jury.” Id. at 255, 106 S.Ct. 2505. To that end, the Supreme Court emphasized, “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. We believe that the Parsons family’s evidence is sufficient to meet this burden with respect to whether Qarmout planted and detonated the bomb. Qarmout himself admitted that two or three days prior to the attack, he prepared to plant a bomb in the approximate location of the bomb that killed Parsons. Qarmout also said that around the time of the killing he possessed a bomb that weighed 30 to 35 kilograms, employed urea as the explosive, and used cable detonators. The bomb described by the FBI and the Palestinian Authority’s analyses largely matches that profile. Both describe a bomb employing urea nitrate as the explosive material, and the Authority analysis reports that the bomb weighed 30 to 40 kilograms and used cable detonators. Moreover, the memo in the Palestinian Authority’s investigative file concludes that “the structure of this device is the same structure used by the Popular Resistance Committees”' — -the very same terrorist organization of which Qarmout was a leader. The district court took note of most of this evidence, acknowledging that “[e]vidence that someone prepared to do something [i.e., that Qarmout prepared to plant a bomb] is of course relevant to the question of whether the person actually did it,” Estate of Parsons, 715 F.Supp.2d at 32, that the memo’s conclusion linking the bomb to the Popular Resistance Committees “is essentially of a factual nature and does have some relevance, as it tends to show a pattern or practice by the PRC,” id., and that “[t]here is also evidence that Qarmout is a PRC member, so it may be sensible to consider the evidence related to Qarmout and the PRC together,” id. at 33 n. 4. Even so, the district court found this evidence insufficient. Qarmout’s admissions were not enough “in light of his denial of actually orchestrating the bombing.” Id. at 32. Moreover, “[t]here is at least some indication that the bomb had been present for 20 days prior to the explosion ... contrary to Qarmout’s account” that he was preparing to plant a bomb only two or three days prior to the attack. Id. at 32 n. 2. As for the Palestinian Authority memo, because it “is undated and anonymous, its weight is minimal.” Id. at 32. And in any event, “the bare fact that the bomb used resembles PRC bombs of the past adds so little weight to the Qarmout evidence that the evidence remains insufficient to establish the identity of the bomber.” Id. at 33 n. 4. Supplementing the district court’s analysis, the Palestinian Authority argues that in light of Qarmout’s history of targeting the Israeli military “[tjhere is no evidence that Qarmout would have targeted a U.S. diplomatic convoy.” Appellees’ Br. 37. At oral argument, the Authority also pointed to Qarmout’s statement that he intended to plant his 12 kilogram bomb, not the 30 to 35 kilogram one. Recording of Oral Arg. 17:54-18:57. Although these evidentiary criticisms certainly have force, they are, given the teachings of Liberty Lobby, more properly directed to the jury. In our view, a reasonable juror could conclude that Qarmout never planted a bomb; that the actual bomb had been in the ground for twenty days, long before Qarmout began digging his hole; that Qarmout planted a different bomb; or even that he planted the bomb to target Israelis but never detonated it. A reasonable juror, however, could also believe Qarmout’s incriminating statements but disbelieve his exculpatory ones, and thus conclude that he lied about calling off the bombing. Likewise, a reasonable juror could find that Qarmout planned to and did plant the 30 to 35 kilogram bomb that had been in his possession, as opposed to the 12 kilogram bomb referred to in his statement. And it would hardly be unreasonable for a juror to conclude that the reference in the Palestinian Authority memo to the bomb having been in the ground for twenty days was a misstatement and that in fact the memo’s author meant to write only that the bomb had been prepared, but not necessarily planted, twenty days earlier. After all, the memo first says the bomb “had been prepared more than twenty days earlier,” meaning that its later statement — “as we mentioned above, the device was present for 20 days at least” — could be read as only cross-referencing that earlier statement. Sorting out these contradictions, deciding how much weight to give evidence that supports or undermines the family’s case, and evaluating how much credibility to assign Qarmout’s incriminating versus exculpatory statements are prototypical jury functions that courts may not commandeer. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. We therefore conclude that the Parsons family has demonstrated the existence of a genuine dispute of material fact as to whether Qarmout was the bomber. The Authority next disputes on both evidentiary and legal grounds whether the family can show that the Palestinian Authority provided Qarmout with material support. As for its evidentiary objection, the Authority questions any assertion that the National Security personnel at the checkpoint complied with Qarmout’s request to “turn their attention” away from the planting of a bomb. It points out not only that Qarmout’s statement makes no mention of whether and how the guards responded, but also that Qarmout describes only a conversation while he was digging a hole, not during the more serious activity of planting a bomb. Moreover, relying on another passage in Qarmout’s statement in which he describes how personnel at a different National Security checkpoint thwarted one of Qarmout’s previous bomb-planting missions, the Authority argues that the personnel at this checkpoint would have stopped Qarmout from planting a bomb. Appellees’ Br. 38. Once again, such evidentiary arguments are properly addressed to the jury, not to the court. Recall that at summary judgment the non-moving party is entitled to all “justifiable inferences” in its favor. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. Here, a reasonable juror could justifiably infer from Qarmout’s statement and from the fact that the checkpoint was only 20 meters from the bomb site that in response to Qarmout’s request, the Palestinian Security forces stationed there either expressly, or implicitly through their actions, agreed to and did “turn their attention” from Qarmout’s bomb planting activities. The Authority accuses the family of failing to “parse the language of the material support statute” or to “cite any legal authority” establishing that complying with Qarmout’s request to look the other way while he planted a bomb, constituted material support within the meaning of section 2339A. Appellees’ Br. 43. The family responds that the security forces’ conduct falls under two categories listed in section 2339A(b)(l)’s definition of “material support or resources” — namely, “service” and “personnel.” 18 U.S.C. § 2339A(b)(l). We begin with “service.” Although section 2339A nowhere defines that term, the Supreme Court provided a definition just last year in Holder v. Humanitarian Law Project, — U.S.-, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010), a case involving a closely related material support statute, section 2339B, that outlaws “knowingly providing] material support or resources to a foreign terrorist organization.” 18 U.S.C. § 2339B(a)(l). There, the Court explained that “service” “refers to concerted activity” (as opposed to “independent activity”) and carries its “ordinary meaning” — i.e., “ ‘the performance of work commanded or paid for by another: a servant’s duty: attendance on a superior’; or ‘an act done for the benefit or at the command of another.’ ” Humanitarian Law Project, 130 S.Ct. at 2721-22 (quoting Webster’s Third New International Dictionary 2075 (1993)). Although the Court defined that term in the context of a different statute than the one we deal with here, we generally presume, absent some indication to the contrary, that Congress intends identical terms to have identical meanings in related provisions, and no such indication exists here. See Comm’r v. Lundy, 516 U.S. 235, 249-50, 116 S.Ct. 647, 133 L.Ed.2d 611 (1996). Moreover, defining “service” differently in sections 2339A and 2339B seems particularly inappropriate given that the latter provision expressly borrows its definition of “material support or resources,” including “service,” from the former. See 18 U.S.C. § 2339B(g)(4). Indeed, when discussing “service” in Humanitarian Law Project, the Court cites not only to section 2339B, but also to section 2339A’s material support definition. Humanitarian Law Project, 130 S.Ct. at 2721-22 (citing 18 U.S.C. § 2339A(b)(l)). Assuming, as we must at this stage of the litigation, that the checkpoint personnel acted as the Parsons family claims, we think the security forces’ conduct falls comfortably within Humanitarian Law Project’s definition of “service.” As security personnel assigned to a checkpoint, they were presumably responsible for preventing terrorists from planting and detonating bombs nearby. Moreover, they allegedly acted in response to Qarmout’s request. In effect, then, at a terrorist’s behest, these security officers agreed to and did affirmatively remove the threat that local law enforcement officers would themselves interfere with the terrorist’s efforts to plant a bomb — actions functionally the same as distracting a beat-cop so that someone else can safely break the law without police intrusion. Because that is surely an act done in concert with and for the benefit of a terrorist, it constitutes providing a “service” and therefore material support within the meaning of section 2339A. Given this conclusion, we need not address the trickier question of whether the security forces’ alleged conduct also constitutes providing “personnel.” We say trickier because we are at least unsure whether that conduct qualifies as providing “personnel” as section 2339B defines that term and because although some courts have concluded that “personnel” has a different and broader meaning in section 2339A, at least one of those courts has also acknowledged the existence of strong arguments to the contrary. See United States v. Abu-Jihaad, 600 F.Supp.2d 362, 399^100 (D.Conn.2009) (concluding that one can provide “personnel” for the purposes of section 2339A so long as there is some form of coordination, joint action, or shared understanding between the personnel provider and the terrorist but acknowledging arguments for applying section 2339B’s narrower definition, which expressly requires working, or providing others to work, under a terrorist’s “direction or control”); see also United States v. Abdi, 498 F.Supp.2d 1048, 1057-58 (S.D.Ohio 2007). We, however, shall leave resolution of that issue for another day. In sum, we conclude that a reasonable juror could find on the basis of the family’s evidence that Qarmout planted the bomb that killed Parsons and that Palestinian Security forces at the nearby security checkpoint complied with Qarmout’s request not to interfere with his effort to plant a bomb. Because such acts qualify as providing material support under section 2339A, we reverse the district court’s grant of summary judgment to the Palestinian Authority on the family’s material support claim. Having reached this conclusion, we have no need to consider the Parsons family’s other evidentiary theories with respect to their material support claim. We note, however, that because the panel is divided on the issue, we have reached no binding decision about whether the Parsons family has shown a genuine dispute of material fact as to the scienter element of their material support claim. See 18 U.S.C. § 2339A (criminalizing the provision of “material support or resources ... knowing or intending that they are to be used in preparation for, or in carrying out, a violation of’ specific violent crimes, including 18 U.S.C. § 2332, which prohibits the killing of a United States national outside the United States (emphasis added)). Compare Opinion of Judge Henderson 127-32 (“Henderson Op.”) (concluding that the Parsons family has failed to satisfy the scienter element), with Opinion of Judge Brown 139-43 (“Brown Op.”) (concluding that the Parsons family has demonstrated a genuine dispute of material fact as to the scienter element), and Opinion of Judge Tatel 137-39 (“Tatel Op.”) (treating as forfeited any argument that the Parsons family has failed to satisfy the scienter element). Conspiracy We affirm the district court’s grant of summary judgment as to the family’s conspiracy claim. See Henderson Op. at 127 n. 1, 132; Tatel Op. at 132-38. But see Brown Op. at 143-50. III. Finally, the Parsons family argues in the alternative for additional discovery, a request the district court denied. Although we find no abuse of discretion in that decision with respect to the family’s conspiracy claim, see Dunning v. Quander, 508 F.3d 8, 9 (D.C.Cir.2007) (per curiam), the district court may well view the need for additional discovery on the material support claim differently in light of this opinion. We therefore leave this issue to the district court to consider in the first instance on remand. So ordered.
KAREN LeCRAFT HENDERSON, Circuit Judge, concurring in part and dissenting in part: The Anti-Terrorism Act (ATA or Act) authorizes a United States national (or his estate, survivors or heirs) injured “by reason of an act of international terrorism” to sue in federal court for money damages. 18 U.S.C. § 2333(a). The Act defines “international terrorism” as activities that, as relevant here, “involve 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.” 18 U.S.C. § 2331(1)(A). To prevail, therefore, the plaintiffs (Parsons family) must show that defendant Palestinian Authority (PA), had it acted within the jurisdiction of the United States or of any State, would have violated a criminal law of the United States or of the State. On appeal, the Parsons family alleges two such violations: (1) the PA provided material support for the killing of a U.S. national in violation of 18 U.S.C. § 2339A and (2) the PA conspired to kill a U.S. national in violation of 18 U.S.C. § 2332(b). I would affirm the district court on the alternative ground that the Parsons family has failed to establish the scienter requirement of sections 2339A and 2332(b). Accordingly, I respectfully dissent in part. I take no exception to the majority opinion’s explanation of the underlying facts. My disagreement is legal, not factual. Section 2339A criminalizes the provision of “material support or resources ... knowing or intending that they are to be used in preparation for, or in carrying out, a violation of’ certain criminal statutes. 18 U.S.C. § 2339A(a) (emphasis added). One criminal statute — 18 U.S.C. § 2332 — prohibits the killing of a U.S. national outside the United States. Section 2339A makes clear that providing material support or resources alone is not sufficient to constitute a violation. The criminal defendant must provide material support or resources “knowing or intending” that the resources “are to be used in preparation for, or in carrying out,” the underlying crime' — here, the killing of a U.S. national outside the United States. 18 U.S.C. § 2339A(a); see also United States v. Stewart, 590 F.3d 93, 113 (2d Cir.2009) (“Section 2339A ... does not penalize the provision of material support without regard to what the support is for. [It] requires instead that the defendant provide support or resources with the knowledge or intent that such resources be used to commit specific violent crimes.” (emphasis in original)); id. at 113 n. 18 (“Section 2339A criminalizes the provision of material support knowing or intending that such support is used to aid crimes of terrorism. Therefore, the mental state in section 2339A extends both to the support itself, and to the underlying purposes for which the support is given.” (emphasis in original) (internal citation omitted)). For a criminal violation of section 2339A, then, specific intent is required. See Humanitarian Law Project v. Mukasey, 552 F.3d 916, 927 (9th Cir.2009) (section 2339A requires defendant to act with specific intent), affd in part & rev’d in part on other ground sub nom. Holder v. Humanitarian Law Project, - U.S. -, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010). The knowledge required to violate section 2339A in the context of the ATA’s civil liability provision, 18 U.S.C. § 2883(a), has been subject to debate. The Seventh Circuit, sitting en banc, held that criminal recklessness suffices. Boim v. Holy Land Found, for Relief & Dev., 519 F.Sd 685, 693 (7th Cir.2008) (en banc). The defendants in Boim were accused “of having provided financial support to Ha-mas, ” which organization killed David Boim, a U.S. national living in Israel. Id. at 687-88. The court compared criminal recklessness — which “ ‘generally permits a finding of recklessness only when a person disregards a risk of harm of which he is aware’ ” — to civil recklessness — which “sometimes connotes merely gross negligence and at other times requires only that the defendant have acted in the face of an unreasonable risk that he should have been aware of even if he wasn’t”— and concluded that criminal, not civil, recklessness is required to violate sections 2389A and 2332, as incorporated into section 2333(a). Id. at 694 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1991)); id. at 693 (“[I]t would not be enough to impose liability on a donor for violating section 2333, even if there were no state-of-mind requirements in sections 2339A and 2332, that the average person or a reasonable person would realize that the organization he was supporting was a terrorist organization, if the actual defendant did not realize it.”). By way of example, the court noted that “giv[ing] a small child a loaded gun would be a case of criminal recklessness” because “the giver would know he was doing something extremely dangerous and without justification.” Id. at 693 (emphasis in original). Similarly, the court explained, [a] knowing donor to Hamas — that is, a donor who knew the aims and activities of the organization — would know that Hamas was gunning for Israelis ..., that Americans are frequent visitors to and sojourners in Israel, that many U.S. citizens live in Israel ... and that donations to Hamas, by augmenting Hamas’s resources, would enable Hamas to kill or wound, or try to kill, or conspire to kill more people in Israel. Id. at 693-94. In other words, the court concluded that knowingly donating money to Hamas is a criminally reckless act sufficient to violate sections 2333(a), 2339A and 2332. Three dissenting judges found the court’s reasoning “awfully vague” and accused the court of “sliding] over the statutory requirement ... that the entity providing material assistance must know that the donee plans to commit terrorist acts against U.S. citizens.” Id. at 725 (Wood, J., dissenting); see also Abecassis v. Wyatt, 704 F.Supp.2d 623, 664-65 (S.D.Tex.2010) (“[I]t is not enough [that provider of material support or resources] know the character of the ultimate [recipient of the support or resources]. The defendant must know (or intend) that its money is going to a group engaged in terrorist acts or is being used to support terrorist acts. Because civil liability under the ATA is restricted to American victims, the defendant must also know (or intend) that the terrorism or terrorist group it is supporting targets Americans.”); cf. United States v. Stewart, 590 F.3d 93, 113 & n. 18 (2d Cir.2009). I express no opinion on the Seventh Circuit’s application of criminal recklessness to establish civil liability under the ATA for a violation of section 2339A because the Parsons family failed to establish even criminal recklessness. Significantly, the Boim court’s determination that the donors acted recklessly relied on “State Department data that in 1999 there were about 184,000 American citizens living in Israel, accounting for about 3.1 percent of the country’s population.” 549 F.3d at 694. The record here contains no data suggesting a similar American presence in Gaza. Instead, the record indicates that Israelis, not Americans, were likely the intended targets of the bomb. See [Redacted] Decl. ¶ 19 (“[A] number of the individuals arrested and interrogated” by the PA after the explosion “admitted to possessing and planting explosive charges in the past, targeted at Israeli military incursions into Gaza.” (emphasis added)). That Israeli tanks arrived shortly after the explosion to secure the area reinforces the inference. See id. ¶ 10. The only evidence that links the PA’s alleged provision of material support to the killing of a U.S. national is the “[conclusion and personal interpretation” of the anonymous author of an undated two-page memorandum to the “Director General of the Preventive Security Service” that PA personnel — either those at the checkpoint or those in the lead car of the convoy — “leaked” “information of the arrival of U.S. Embassy staff’ to whoever detonated the bomb. Sealed App. 305. To accept the conclusion that PA personnel notified the bomber of the arrival of the U.S. convoy “would require piling inference (about the reliability and knowledgability of the statement’s author) upon inference (about when the statement was written) upon inference (about the statement’s evidentiary basis) [ ] akin more to speculation than to reasonable fact-finding” and “ ‘[t]he possibility that a jury might speculate in the plaintiffs favor ... is simply’ insufficient to defeat summary judgment.” Concurring Opinion of Judge Tatel (Tatel Op.) at 134 (quoting Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625, 631 (D.C.Cir.2010)). Judge Brown contends that the two-page memorandum is an “official government record” that is “entitled to a presumption of regularity.” Opinion of Judge Brown (Brown Op.) at 141 (citing PNC Fin. Servs. Grp., Inc. v. Comm’r, 503 F.3d 119, 123 (D.C.Cir.2007)). The government record in PNC was an official tax receipt of the Brazilian government marking the payment of a specific tax. PNC, 503 F.3d at 123. The relevant portion of the memorandum, in contrast, does not purport to memorialize the occurrence of a specific event but to offer a “[conclusion and personal interpretation.” Sealed App. 305. Because the document is unsigned and undated we cannot reasonably assume it represents the PA’s official position. We can assume only that it represents what it purports to represent — the “[c]onclusion and personal interpretation” of its author. Id. (emphasis added). The other precedent Judge Brown relies on applied the presumption of regularity to the actions of American governmental officials — not foreign officials. See Musengo v. White, 286 F.3d 535 (D.C.Cir.2002) (Army officers); Am. Fed’n of Gov’t Emps. v. Reagan, 870 F.2d 723 (D.C.Cir.1989) (President of the United States); S. Pac. Commc’ns Co. v. AT & T, 740 F.2d 980, 994-95 (D.C.Cir.1984) (judge), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 380 (1985); McSurely v. McClellan, 697 F.2d 309, 323-24 (D.C.Cir.1982) (same), cert. denied, 474 U.S. 1005, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985); Jones v. United States, 342 F.2d 863, 884 (D.C.Cir.1964) (en banc) (grand jury). These cases, moreover, applied the presumption to establish that the officials followed the appropriate procedures when performing their official duties, see, e.g., Am. Fed’n of Gov’t Emps., 870 F.2d at 727-28, not to lend credence to their “conclusions, inferences, and subjective judgments,” see Brown Op. at 141. That courts presume, absent clear evidence to the contrary, duly elected or appointed American governmental officials act correctly and in compliance with applicable law does not suggest that a similar presumption attaches — or should attach — to the admittedly personal interpretation of an anonymous investigator in one of the most chaotic and irregular regions of the world. The memorandum does not explain, moreover, why it concludes that PA personnel “leaked” news of the U.S. convoy’s arrival. The relevant portion of the memorandum states in full: As we mentioned above, the device was present for 20 days at least, which means that the device was planted either after the problem with Ismail Hameed or it was planted for one of the vehicles of the Israeli occupation army. However, after information of the arrival of U.S. Embassy staff was leaked, either by the National Security personnel at the checkpoint or by those who were accompanying the convoy, the person responsible for the explosion detonated the device. Id. The memorandum contains no factual basis for its conclusion that “National Security personnel” leaked news about the U.S. convoy. To conclude that the memorandum’s author “inferred” the conclusion “from the bomb’s proximity to the eheckpoint” is simply to speculate. Brown Op. at 142. The inference that personnel at the checkpoint knew about the bomb because of its proximity to the checkpoint, even if reasonable, says nothing about the further inference that personnel at the checkpoint leaked news of the U.S. convoy’s arrival. The two inferences are unrelated. The former is supported by facts — the proximity of the bomb to the checkpoint — while the latter is not. Because the Parsons family offers no admissible evidence to demonstrate that the PA intended or knew (or even recklessly disregarded whether) its conduct— assuming arguendo it provided material support or resources to whoever planted and detonated the bomb — would aid in the killing of a U.S. national, the PA is entitled to summary judgment on the Parsons family’s section 2339A claim. Judge Tatel would avoid section 2339A’s scienter requirement by maintaining that the PA did not “identiffy] section 2339A’s state of mind requirement as a problem for the specific theory” accepted by the majority — “namely, that the personnel posted at the checkpoint agreed to Qarmout’s request not to interfere with his efforts to plant a bomb.” Tatel Op. at 138 (emphasis in original); see Brown Op. at 143. To the contrary, the PA repeatedly argues that the Parsons family failed to satisfy section 2339A’s scienter requirement. See Appellees’ Br. 33-34 (The Parsons family “offered no facts that could be presented in admissible form that the PA provided any kind of material support to the PRC, let alone that the PA provided such support ‘knowing or intending’ that it was ‘to be used in preparation for, or in carrying out,’ the killing of a U.S. national, as the statute requires.” (emphasis in original) (quoting 18 U.S.C. § 2339A)); id. at 41-42 (“Even if someone in the PA had given Qarmout a weapon, there is no evidence that they did so ‘knowing or intending that they are to be used’ in carrying out the killing of a U.S. national or other terrorist act, as required by 18 U.S.C. § 2339A ....”); id. at 37 (“There is no evidence that Qarmout would have targeted a U.S. diplomatic convoy.”); id. at 43 (“Plaintiffs ... do not explain how a failure to adequately guard a security checkpoint and prevent the planting of an explosive charge meets the definition of ‘material support’ under the statute. See 18 U.S.C. § 2339A(b) (which requires an affirmative act of support engaged in with the requisite knowledge and intent, rather than an act of omission or negligence).” (emphasis added)). Nor is it “unfair to the Parsons family for us to consider whether the evidence creates a genuine dispute of material fact as to” a necessary element of their claims. See Tatel Op. at 138. The PA raised the lack of admissible evidence meeting section 2339A’s scienter requirement both in its brief in this court and in its motion for summary judgment in district court. See Appellees’ Br. 33-34, 37, 41-43; Mem. of Points & Auths. in Support of Defs.’ Mot. for Summ. J. at 14, Estate of Parsons v. Palestinian Auth., 715 F.Supp.2d 27 (D.D.C.2010) (No. 07-cv-01847). The Parsons family thus has had ample opportunity to respond to the PA’s argument. See Skinner v. U.S. Dep’t of Justice, 584 F.3d 1093, 1101 (D.C.Cir.2009) (“no unfairness” in affirming on alternative ground where issue was raised before district court with full opportunity to respond), cert. denied, — U.S. -, 131 S.Ct. 72, 178 L.Ed.2d 240 (2010); Washburn v. Lavoie, 437 F.3d 84, 89 (D.C.Cir.2006); see also Wash.-Baltimore Newspa per Guild, Local 35 v. Wash. Post, 959 F.2d 288, 292 n. 3 (D.C.Cir.1992) (“We have discretion to uphold a grant of summary judgment under a legal theory different from that applied by the district court, resting the affirmance on any-ground that finds support in the record, particularly one raised before the district court.” (emphasis in original)). Judge Ta-tel unrealistically parses the PA’s defense into discrete and seemingly unrelated arguments. See Tatel Op. at 137-38; cf. Brown Op. at 139-40 n. 1. “[SJummary judgment is appropriate if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Talavera v. Shah, 638 F.3d 303, 308 (D.C.Cir.2011) (internal quotation marks omitted). The Parsons family failed to make a showing sufficient to establish an essential element of their claim — that the PA, assuming it provided material support, acted with knowledge or intent that its support would aid the killing of a U.S. national. The district court therefore properly granted summary judgment to the PA. The PA is likewise entitled to summary judgment on the Parsons family’s section 2332(b) conspiracy claim. Section 2332(b) makes it a crime to “attempt! ] to kill, or engage! ] in a conspiracy to kill, a national of the United States” outside the United States. 18 U.S.C. § 2332(b). “To prove a conspiracy charge, the [evidence] must show that the defendant agreed to engage in criminal activity and ‘knowingly participated in the conspiracy’ with the intent to commit the offense.... ” United States v. Hemphill, 514 F.3d 1350, 1362 (D.C.Cir.) (quoting United States v. Gatling, 96 F.3d 1511, 1518 (D.C.Cir.1996)), cert. denied, — U.S. -, 129 S.Ct. 590, 172 L.Ed.2d 445 (2008); see also In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 113 (2d Cir.2008) (to establish existence of criminal conspiracy under section 2332(b), evidence “must prove that the conspirators agreed on the essence of the underlying illegal objective[s], and the kind of criminal conduct ... in fact contemplated.” (ellipsis and alteration in original; internal quotation marks omitted)), cert denied, — U.S. -, 129 S.Ct. 2778, — L.Ed.2d - (2009), — U.S.-, 130 S.Ct. 1050, 175 L.Ed.2d 928 (2010). Section 2332(b) thus requires that a violator knowingly conspire to kill a U.S. national. As explained earlier, the Parsons family has failed to show that the PA possessed the requisite knowledge or intent to support the conspiracy claim. For the foregoing reasons, I would affirm in toto the district court’s grant of summary judgment in favor of the PA and, accordingly, dissent from the reversal of summary judgment on the 18 U.S.C. § 2339A claim. . I join the judgment affirming the summary judgment grant to defendant Palestinian Authority on the Parsons family’s conspiracy claim. . [Redacted] was [Redacted] Gaza” at the time of the explosion. [Redacted] Deck ¶ 7. In that role he [Redacted] into the event. Id. ¶ 8. . Judge Brown urges that a statement by a former head of the PSS that Palestinian security forces aided Hamas and martyred themselves during the Second Intifada “tends to support [the] conclusion” that PA personnel at the security checkpoint at least disregarded the risk that their conduct would aid in the killing of Americans. Opinion of Judge Brown at 142-43. The PSS official’s statement is an English translation found on the website of Palestinian Media Watch, an Israeli research institute, of an excerpted news clip from 2007. Assuming arguendo the website accurately translated the statement, the statement does not suggest that PA personnel would have known the bomb would target Americans. . I find the Parsons family’s claim speculative for another reason. For PA personnel at the checkpoint — and even more so, in the convoy — to have "tipped” the bomber to the U.S. embassy staff's arrival means that those personnel had to have calibrated with pinpoint accuracy that the explosion would not affect them — otherwise, they risked their own lives as well. . I disagree with Judge Brown that the [Redacted] Declaration supports inferences favorable to the Parsons family regarding the reliability and knowledgability of the memorandum's author. See Brown Op. at 140-41. The relevant portion of the [Redacted] Declaration states: The PSS kept an investigative file documenting the investigation, interviews, interrogations and the forensic analysis provided by the FBI. Copies of those files were provided to counsel for the PA and PLO in this matter, and I understand copies were then provided to Plaintiffs’ counsel. I was responsible for collecting, assembling, and producing the investigative file produced in this matter and for verifying that the records produced are authentic copies of records kept in the course of the investigation into the bombing. [Redacted] Deck ¶¶ 17-18. [Redacted] statement that he was responsible for verifying that the records were "authentic copies” does not mean that he also verified the substance of each record. It means only that he verified that the records provided to counsel for the PA and PLO were accurate reproductions of records held by the PSS' — without necessarily endorsing any statements or conclusions in those records. After the above-quoted passage, moreover, the Declaration discusses — in several paragraphs that all begin "I have reviewed the investigative file .... "• — the evidence contained in Qarmout’s statement, a "true and correct copy” of which is attached to the Declaration as exhibit 1. See id. ¶¶ 19-22. In contrast to the extensive discussion of Qarmout's statement, the Declaration does not mention the memorandum. Nor is the memorandum attached as an exhibit to the Declaration, as Qarmout's statement is. Accordingly, I find nothing in the [Redacted] Declaration that supports the reliability or authoritativeness of the memorandum. . Even under his compartmentalized approach, moreover, Judge Tatel concedes that the PA raised section 2339A's scienter requirement as a defense to the Parsons family's "Qarmout theory.” Tatel Op. at 138. He nonetheless contends that the PA's claim that “[tjhere is no evidence that Qarmout would have targeted a U.S. diplomatic convoy,” Appellees’ Br. 37 — which claim immediately follows the PA’s explanation that Qarmout was known to attack Israeli military targets— "deals with whether Qarmout committed this attack, not with the state of mind of the personnel at the checkpoint.” Tatel Op. at 138. If, however, the personnel at the checkpoint did not believe — because there was no evidence to support the belief — that Qarmout would target a U.S. convoy, any support they may have provided Qarmout would not have been given knowing or intending (or recklessly disregarding whether) it would be used to kill a U.S. national.
TATEL, Circuit Judge, concurring: I write separately to explain my reasons for joining our affirmance of the district court’s grant of summary judgment to the Palestinian Authority as to the Parsons family’s conspiracy claim. I also explain why I would decide neither the scienter issue my colleagues debate, compare Opinion of Judge Henderson (“Henderson Op.”), with Opinion of Judge Brown at 139-43 (“Brown Op.”), nor the vicarious liability issue that Judge Brown reaches, see Brown Op. at 147-52. I. Although the parties appear to disagree about the exact elements of an Anti-Terrorism Act civil conspiracy claim, they agree, as do I, that the Parsons family must prove at least the existence of an agreement between Palestinian Authority employees and whoever planted the bomb. Compare In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 114 (2d Cir.2008) (listing among section 2332(b)’s requirements that a defendant “agree[ ] to the essence of [the conspiracy’s] objectives” (emphasis added)), with United States v. Hemphill, 514 F.3d 1350, 1362 (D.C.Cir.2008) (“To prove a conspiracy charge, the [evidence] must show that the defendant agreed to engage in criminal activity .... ” (emphasis added)). The family offers two evidentiary theories in support of its argument that a reasonable juror could find such an agreement. Before addressing those theories, however, I briefly consider the family’s argument that we should take account of two pieces of evidence the district court disregarded. First, the district court ruled inadmissible a document from the website archive of the Israeli Intelligence and Terrorism Information Center purporting to summarize a “captured” Palestinian Authority document allegedly describing plans to create a nitric acid factory to support bomb production. According to the district court, this document is inadmissible because “[i]ntelligenee reports that contain multiple levels of hearsay are not admissible evidence.” Estate of Parsons v. Palestinian Auth., 715 F.Supp.2d 27, 34 (D.D.C.2010). Given that the document only summarizes the supposedly captured Palestinian Authority document and neither quotes that document nor attaches a copy of it, I see no abuse of discretion in the district court’s decision. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (explaining that “[o]n a motion for summary judgment ... the question of admissibility of expert testimony ... is reviewable under the abuse-of-discretion standard”). Accordingly, I too shall disregard the document. The family also relies on a video snippet of a 2007 interview purportedly with Muhammad Dahlan, head of the Palestinian Preventive Security Services from 1999 until 2002 and Palestinian Minister of State Security from April until September 2003, in which Dahlan said (according to a translation on the Palestinian Media Watch website): “Forty percent of the Martyrs in this Intifada belonged to the Palestinian security forces. The Palestinian security forces were those who protected and hid half of the Hamas [military] leadership and of the Hamas military force during the Intifada.” Palestinian Media Watch, http://www.palwatch.org/main. aspx?fi=713&flcLid=713&doc_id=864 (last visited July 22, 2011). The Palestinian Authority describes this video as “unauthenticated,” suggesting that the video would be inadmissible at trial. Appellees’ Br. 34. But to defeat summary judgment, a party need only produce evidence “capable of being converted into admissible evidence,” Greer v. Paulson, 505 F.3d 1306, 1315 (D.C.Cir.2007) (internal quotation marks omitted), and the defect the Authority identifies seems hardly irremediable. Accordingly, and because the Authority offers no other inadmissibility argument in this court, I shall consider the Dahlan video. I turn, then, to the family’s two principal arguments for preserving their conspiracy claim, both of which rely almost exclusively on the undated and anonymous two-page memo discovered in the Palestinian Authority’s investigative file. Pointing to a single sentence in that memo, the family first says they can prove that personnel at the checkpoint or Palestinian Authority officials in the convoy’s lead car tipped off the terrorist about the convoy’s movements. That sentence states: “[A]fter information of the arrival of U.S. embassy staff was leaked, either by the National Security personnel at the checkpoint or by those who were accompanying the convoy, the person responsible for the explosion detonated the device.” Because this sentence “is stated as a fact,” not as an inference or a guess, the family argues that it must be believed. Appellants’ Reply Br. 6 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), for the proposition that “the evidence of the non-movant is to be believed”). Moreover, the family contends that as the non-moving party they are entitled to a series of supportive inferences: that the memo was written by a qualified and high-ranking Palestinian Authority investigator, that it was prepared at the conclusion of the investigation, and that it was based on damning facts uncovered during that investigation. Notwithstanding the family’s valiant effort to build an entire case out of this single sentence, I think it too slender a reed to support the weight of the conspiracy claim. Applying Liberty Lobby, I focus on both the “quantity” and the “caliber” of the family’s evidence. 477 U.S. at 254, 106 S.Ct. 2505. Other than the single sentence from the memo, the only even potentially admissible evidence on which the family relies is (1) the entirely speculative suggestion that because Palestinian Authority officials were in the convoy and at the checkpoint they would have had the requisite opportunity to leak; and (2) the equally speculative suggestion that because the former head of the Palestinian Security forces bragged that some among the many thousands of Palestinian Security forces participated in the Second Intifada, those particular forces at this particular checkpoint must have as well. As for the sentence from the memo, it too is of extremely poor “caliber.” Id. In particular, the sentence refers to no specific facts on which the memo’s author based his conclusion. By contrast, the sentence about the bomb resembling those used in the past by the Popular Resistance Committees rests on “[t]he lid of the device, the type of detonator, the cable used, the poorly connected batteries, the type of explosive material, [and] the outer casing of the device.” Moreover, the Parsons family can show neither who wrote this memo nor at what stage in the investigation it was written. Accepting their tipster theory, therefore, would require piling inference (about the reliability and knowledgability of the statement’s author) upon inference (about when the statement was written) upon inference (about the statement’s evidentiary basis)— akin more to speculation than to reasonable fact-finding. And “[t]he possibility that a jury might speculate in the plaintiffs favor ... is simply” insufficient to defeat summary judgment. Athridge v. Aetna Cas. & Sur. Co., 604 F.Sd 625, 631 (D.C.Cir.2010) (ellipsis in original) (internal quotation marks omitted). Nor does considering the memo in light of Dahlan’s statement change this analysis, for that statement is cast at such a high level of generality that it makes the family’s theory about what happened in this particular instance only infinitesimally more likely. But see Brown Op. 147-48. Accordingly, the family’s tipster theory cannot save their conspiracy claim. The Parsons family offers a second theory to support their conspiracy claim, namely, that the checkpoint security forces helped the terrorist while he planted the bomb. Significantly, however, the family never defends their conspiracy claim by arguing, as they do with respect to their material support claim, that Qarmout planted the bomb with the help of those stationed at the checkpoint. Instead, the family advances only the more generic evidentiary theory that someone at sometime planted the bomb with some kind of assistance from those security forces. In support, the family relies principally on the fact that the checkpoint was only 20 meters from the bomb site, which to them means that personnel posted there must have known about the bomb. Seeking to demonstrate the reasonableness of that inference, the family points to another sentence in the memo which, employing identical reasoning, states, “The explosive device was planted 20 meters away from the National Security checkpoint, a fact that indicates that those present in front of the checkpoint that day have previous knowledge of the presence of the device.” But apparently recognizing that simply knowing about a bomb or even failing to stop a bomb from being planted does not make one a co-conspirator in a terrorist attack, the family would have a jury further infer that the security forces affirmatively helped place the bomb, perhaps by complying with a request to look the other way. Defending that second inferential leap, the family relies on Qarmout’s statements, but only for the limited proposition “that anyone that planted the bomb on [Salahadeen] Street ... must have obtained the cooperation of the [Palestinian Authority] security checkpoint.” Appellants’ Br. 33. In addition, the family once again suggests that a juror could justifiably infer from Dahlan’s boast that some Palestinian Security forces participated in some attacks during the Second Intifada that personnel at this checkpoint were complicit in this attack. This second theory is just as dependent on incredibly little and incredibly low quality evidence — and so just as speculative— as the first. Not only would the family ask a jury to make two quite substantial inferences — that the security forces knew of the bomb and that they affirmatively helped plant it — but, as the Palestinian Authority points out, they would do so based on evidence that leaves a number of important questions unanswered, such as “whether the checkpoint was manned 24-hours a day” and “whether the bomb could have been planted unseen at night.” Appellees’ Br. 44. Such a tower of inferences built atop a gap-filled foundation is too unstable to stand. I thus agree with the district court that the family’s generic theory about the help personnel posted at the checkpoint must have provided in planting the bomb is also inadequate to defeat summary judgment. Given that the Parsons family has failed to defend their conspiracy claim with any evidentiary theory other than the two just rejected, I would ordinaril