Opinion |

This Week, Will America’s Highest Court Give Palestinian Terrorism a Free Pass?

A U.S. appeals court made a critical error in throwing out the right of U.S citizens to sue Palestinian bodies supporting terror groups. On Thursday, the U.S. Supreme Court has the chance to rectify that

Yishai Schwartz
Yishai Schwartz
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Palestinian women walk past a mural depicting late Ayat al-Akhras, who blew herself up in a suicide bombing outside a Jerusalem supermarket in 2002.
Palestinian women walk past a mural depicting late Ayat al-Akhras, who blew herself up in a suicide bombing outside a Jerusalem supermarket in 2002.Credit: AP
Yishai Schwartz
Yishai Schwartz

On Thursday, the justices of the United States Supreme Court will huddle over a list of cases, deciding which they will deign to hear this coming term. On that list sits a foreign affairs blockbuster - one with the potential to roil Israeli-Palestinian politics and to restore constitutional balance to American foreign policy.

The case, Sokolow v. PLO, has its origins in the bloody years of the second Palestinian intifada. Over a decade ago, suicide bombings tore through Jerusalem cafes, buses and universities with devastating force and frequency. The victims were mostly Israelis, but some were American citizens as well.

In 2002, these victims turned to U.S. courts for justice, filing suit against the Palestinian Authority and the Palestine Liberation Organization. They accused the Palestinian leadership of funneling money to the architects of suicide attacks even as they disclaimed support for terror.

Workers clean the inside of a cafeteria hours after a bomb exploded at Hebrew University in Jerusalem, killing nine, July 31, 2002.Credit: AP

After 11 years of legal wrangling and a seven-week jury trial, the victims’ families emerged victorious. The jury in Manhattan found the Palestinian leadership to have knowingly supporting six terrorist attacks in Israel between 2002 and 2004 in which Americans were killed and injured and awarded damages of $655.5 million.

Quickly, the Palestinians appealed, and last year, an appeals court threw out the judgment. The court’s reasoning? Because the defendants - the Palestine Liberation Organization and the Palestinian Authority - were headquartered outside the United States, American courts had no power to oversee lawsuits against them.

The decision rests on an old and venerable constitutional doctrine: "personal jurisdiction."

For hundreds of years, this doctrine has limited American state courts, confining their authority only to those present in a particular state or who have consented to be sued there. It is this sensible principle that prevents one state’s courts from encroaching onto its neighbor’s turf.

In Sokolow, however, the appeals court applied the same principle to a foreign defendant in federal court. Personal jurisdiction, the court ruled, limits transnational cases in precisely the same way it limits interstate disputes. The PA and PLO were thus beyond the reach of American courts.

The ruling flies in the face of Congressional will. After all, the law that permitted this lawsuit, the Anti-Terrorism Act, is unusual. Whereas most of America’s laws govern conduct within America, the ATA is different.

The ATA was passed in 1992, shortly after Palestinian terrorists threw an elderly, wheelchair-bound Jew, Leon Klinghoffer, into the Mediterranean. Its text specifically authorizes Americans to sue foreigners for acts of "international terrorism" occurring outside United States” and instructs courts not to dismiss suits simply because their location inconveniences defendants.

But congressional will is no match for the Constitution - or at least, the courts’ understanding of the Constitution. And in Sokolow, the appeals court held the Constitution, through the doctrine of personal jurisdiction, protects the PLO’s fundamental right not to be sued from afar.

The decision gets the Constitution wrong.

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. Credit: Joe Shalmoni, Reuters

And the source of the error is a confusion about the U.S. Constitution’s two central functions: the protection of rights and the structuring of government.

In the midst of our great cultural debates over free speech, gun control and abortion, we sometimes forget that "rights" make up only a fraction of our nation’s highest law.

But the other parts of our founding document - the sections that define the structures and institutions of government - are at least as crucial to our country’s success. It is these sections that describe the powers of the President and Congress, and which apportion power among the federal government and the states.

In deciding that the Constitution protects the PA and PLO from American lawsuits, the appeals court understood personal jurisdiction as protecting a "right" - a right not to be sued from afar.

Crucially, rights restrain federal and state power alike. Congress can no more restrict my free speech or force me to confess a crime than can a state. And so, according to the appeals court, personal jurisdiction protects the PLO from lawsuits in any American court - just at it protects a Californian tenant from being sued by his landlord in a New York state court.

But this understanding is mistaken. As originally understood, personal jurisdiction was not about protecting rights at all. Rather, it was about protecting the states from one another.

The doctrine goes all the way back to the American founding - and even before. It began as a voluntary understanding between the colonies, with each restraining its own judiciary for the sake of reciprocity and territorial sovereignty.

With the establishment of the Constitution, this same understanding became a binding feature of American federalism. By keeping each state’s judiciary squarely in its own lane, personal jurisdiction promoted comity and cooperation between the states.

A woman holding a poster of the late PLO leader Yasser Arafat during a rally marking the 13th anniversary of his death, in Gaza City, November 2017.Credit: Khalil Hamra/AP

Given these origins, personal jurisdiction has no place restricting the federal government’s interactions with foreign powers. The U.S. Constitution is about ensuring domestic tranquility, not guaranteeing fair treatment to foreign peoples. It protects New York’s sovereignty from Virginian imperialism. It was never intended to protect Palestinian sovereignty from the United States.

Under the Constitution, Congress and the President determine America’s foreign policy. They can make war unjustly, implement tariffs unfairly, and yes, subject foreign nationals to American lawsuits. These are powerful tools.

And in the case of Palestinian liability, they might even be detrimental: The Obama State Department warned that the Sokolow judgment could "severely compromise the P.A.’s ability to operate." (The victims’ families hotly dispute this; they point out that the PA could pay off the judgment in installments over time, that its annual budget is $3.5 billion, and that the PLO currently pays $60 million a year to convicted terrorists). Certainly, such a decision would enrage Palestinian leaders.

But it is not judges’ place to protect American democracy from our own questionable foreign policy choices. This Thursday, the Supreme Court should decide to hear the case, and restore the hard-fought judgment won by the victims of terror. And we, the American people, should live with the consequences of the laws we have passed.

Yishai Schwartz is a contributor to the Lawfare blog and a writer on law, the Middle East, religion and philosophy. He is a student at Yale Law School. Twitter: @YishaiSchwartz

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