The U.S. Supreme Court examined on Tuesday the legality of a 2019 statute passed by Congress to facilitate lawsuits against Palestinian authorities by Americans killed or injured in terror attacks abroad as plaintiffs pursue monetary damages for violence years ago in Israel and the West Bank.
The nine justices heard arguments in appeals by the U.S. 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 Organization to due process under the U.S. Constitution. The ongoing violence involving Israel and the Palestinians served as a backdrop to the arguments.
Many of the questions posed by the justices seemed to suggest they would rule in favor of the plaintiffs. Some of the questions explored the authority of Congress and the president to empower U.S. 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.
U.S. courts for years have grappled over whether they have jurisdiction in cases involving the Palestinian Authority and PLO for actions taken abroad. Under the language at issue in the 2019 law - called 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," Kavanaugh said. "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 U.S. 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 U.S. citizens in the same way," Kagan said.
"There could well be problems, other countries' reactions to that, and retaliation perhaps," Kneedler responded. 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 U.S. 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, emphasized the need for U.S. 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 offense, 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 judgment in a civil case alleging that the Palestinian organizations were responsible for a series of terror shootings and bombings around Jerusalem from 2002 to 2004. They also include relatives of Ari Fuld, who was fatally stabbed by a Palestinian in 2018.
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"These defendants directed their activity at U.S. citizens who are within the protection of the United States," said Kent Yalowitz, arguing on behalf of the plaintiffs.
Yalowitz added that "wherever in the world you travel, the protection of the United States travels with you." A ruling is expected by the end of June.