US Supreme Court examines legality of law for suing Palestinians over attacks

The US Supreme Court yesterday examined the legality of a 2019 statute passed by Congress to facilitate lawsuits against Palestinian authorities by Americans killed or injured in attacks abroad as plaintiffs pursue monetary damages for violence years ago in Israel and the Israeli-occupied West Bank, Reuters has reported.

The nine justices heard arguments in appeals by the US government and a group of American victims and their families of a lower court’s ruling that the law at issue violated the rights of the Palestinian Authority and Palestine Liberation Organisation to due process under the US Constitution.

The ongoing, predominantly Israeli state and illegal settler violence against the Palestinians served as a backdrop to the legal arguments in court.

Many of the questions posed by the justices seemed to suggest that they would rule in favour of the plaintiffs. Some of the questions explored the authority of Congress and the president to empower US federal courts to hear civil suits over allegedly wrongful conduct experienced by Americans overseas, and what type of connection defendants must have to the United States before they must face such legal proceedings.

US courts have grappled for years with the question of whether or not they have jurisdiction in cases involving the Palestinian Authority and PLO for actions taken abroad. In the language at issue in the 2019 law — the Promoting Security and Justice for Victims of Terrorism Act — the PLO and Palestinian Authority would automatically “consent” to jurisdiction if they conduct certain activities in the United States or make payments to people who attack Americans.

“Congress’ judgment on these issues, as in all issues of national security and foreign policy, are entitled to great deference,” Deputy Solicitor General Edwin Kneedler, who argued on behalf of the Trump administration, told the justices.

Conservative Justice Brett Kavanaugh agreed with Kneedler on that point. “Congress and the president are the ones who make fairness judgments when we’re talking about the national security and foreign policy of the United States,” said Kavanaugh. “Unless it crosses some other textually or historically rooted constitutional principle, courts shouldn’t be coming in.”

Liberal Justice Elena Kagan pressed Kneedler on the possibility of giving Congress too much leeway in subjecting people around the globe to general jurisdiction in US courts, raising potential pitfalls such as retaliation against Americans on foreign soil.

“I could understand an argument which would say… it could have foreign policy consequences, it could encourage other nations to retaliate and treat US citizens in the same way,” said Kagan.

In response, Kneedler said that, “There could well be problems, other countries’ reactions to that, and retaliation perhaps.”

A New York-based federal judge in 2022 ruled that the law violated the due process rights of the PLO and Palestinian Authorities guaranteed under the Constitution. The New York-based 2nd US Circuit Court of Appeals upheld that ruling.

President Joe Biden’s administration initiated the government’s appeal, which subsequently was taken up by President Donald Trump’s administration.

Mitchell Berger, arguing on behalf of the Palestinian authorities, emphasised the need for US courts to enforce jurisdictional limits on what they can adjudicate, using pirates as an example.

“Nobody likes pirates, right,” Berger said. “The United States can define piracy as an offence, but the United States does not try pirates in absentia because there’s a delta between what Congress can prescribe as laws and what courts can do.”

Among the plaintiffs are families who in 2015 won a $655 million judgement in a civil case alleging that the Palestinian organisations were responsible for a series of shootings and bombings around Jerusalem from 2002 to 2004. They also include relatives of Ari Fuld, a Jewish settler in the Israel-occupied West Bank who was fatally stabbed by a Palestinian in 2018.

“These defendants directed their activity at US citizens who are within the protection of the United States,” said Kent Yalowitz, arguing on behalf of the plaintiffs. “Wherever in the world you travel, the protection of the United States travels with you.”

A ruling is expected by the end of June.

READ: 4 Palestinians injured in settler attack in Jericho