Has America Closed the Gates of Justice for Victims of Palestinian Terror?

With the quashing of the Sokolow case, we could now be at the end of a decades long strategy of using American civil law to hold accountable terrorists who kill Americans abroad.

Relatives mourn next to the coffin of Marla Bennett, who was killed in an attack on the Hebrew University in Jerusalem, at her funeral in Tel Aviv, Israel, August 4, 2002.
Joe Shalmoni, Reuters

It’s not every day that the logic of Zionism is validated by a United States appeals court. But that what’s just happened in New York, where judges have let the Palestinian authorities off the hook for the killing or injuring of Americans in a series of attacks in Israel in 2002.

The case, known as Sokolow v. Palestine Liberation Organization, was brought by eleven American families of persons who were killed or injured in terrorist attacks at Israel. The most famous of the attacks was a bombing in 2002 at Hebrew University, where five Americans perished.

A jury last year found that the PLO and the Palestinian Authority had perpetrated attacks and knowingly provided support to terrorist organizations. The jury awarded the families $218.5 million in damages. The law under which they sued, the Anti-Terrorism Act, required that the damages were tripled automatically to $655.5 million.

Writing in Haaretz at the time, I noted that past experience invited caution and argued that in the war on Islamist terror, lawsuits had proven to be a poor substitute for military action. Would that it were not so, but there it is.

Last week — 14 years after the killings at issue in Sokolow and after more than a decade of litigation — the appeals court threw out the judgment against the Palestinian authorities. It concluded that the court never should have asserted personal jurisdiction over the Palestinian authorities in the first place.

It’s too soon to say whether that decision will itself be appealed. But it’s not too soon to say that we could be at the end of a decades long strategy of using American civil law to hold accountable those who, in the course of terrorist attacks, kill Americans abroad.

My sense that lawsuits were a doomed mission began to form in the 1990s, when a heroic New Jersey lawyer, Stephen Flatow, went into court to seek a portion of justice in the murder of his daughter Alisa. She was the Brandeis University student who was slain in Israel in a bus-bombing traced to Iran.

Flatow sued under a law that stripped foreign governments of sovereign immunity in certain cases — namely terrorism. The law, known as the Anti-Terrorism and Effective Death Penalty Act, was passed in 1996 by an overwhelming vote of congress and signed by U.S. President Clinton.

Although Flatow won a judgment of $247 million, he discovered it would not be so easy to collect. At one point, the Clinton administration actually appeared in court on Iran’s side, warning that enforcing the judgment risked upsetting the whole system of diplomatic immunity.

So the American government eventually bought out the Flatow family’s claim for six cents on the dollar. And now the Obama administration is shipping planeloads of cash to Iran, with billions more in the pipeline.

The latest case is, in some ways, even more galling. It was brought under a more recent law, the Anti-Terrorism Act, and didn’t involve quite the same questions of sovereign immunity, because the PLO isn’t a state and lacks the kind of immunity enjoyed by Iran.

Even so, the Obama administration filed a declaration with the court, warning it against getting too tough. The administration insisted that it supports “just compensation” for families of those the Palestinian terrorists killed or injured. But it voiced “significant concerns” about the “harms that could arise.”

It was worried that the Palestinian Authority’s ability to operate as a government might become “severely compromised.” It nursed that worry, even though Congress itself laid them aside when it passed the Anti-Terrorism Act.

In the end, the judges said that “no matter how horrendous” the attacks on the Americans, the lower court should never have heard the case to begin with. So it ordered the judgment and the whole case dismissed.

It’s unclear how far this will yet be pressed on appeal, if at all. If the latest ruling is upheld, though, we will be left with the question: Who will act when Americans Jews — or non Jews — are killed by Palestinian Arab terror?

No American administration has gone after the Palestinian Authority or the PLO militarily when they have slain Americans. And now — and it’s not my purpose to get into the fine points of the law — even the use of civil litigation is being ruled out of bounds.

So the broader point is how this decision illuminates the logic of the Jewish state — the vision of the Zionist founders. The Second United States Circuit Court of Appeals underscores the fact that if American Jews are murdered by anti-Jewish terrorism while overseas, it is to the Jewish state that their survivors will have to look for the redemption of justice.

Seth Lipsky is editor of The New York Sun. He was a foreign editor of The Wall Street Journal, founding editor of The Forward and editor from 1990 to 2000. Follow him on Twitter: @SethLipsky