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The US Supreme Court on Monday threw out a $655.5 million terrorism judgment from February 2015 against the Palestinian Authority, in a blow to efforts to hold it liable in American courts for terrorist incidents.
The original judgment related to PA-linked attacks in Israel during the Second Intifada, which killed 33 US citizens.
Already in August 2016, the Second US Circuit Court of Appeals in New York had ordered the case dismissed, saying that the court system had no jurisdiction over the PA or its sister organization, the PLO.
It wrote that a lower court was mistaken to have allowed the landmark trial to even take place.
As is practice, the Supreme Court did not explain its decision not to hear the case. But the decision leaves the appellate court decision intact and cannot be appealed. The Trump administration supported the second circuit judgment based on the position that US federal law does not apply to PA entities.
But Shurat Hadin – Israel Law Center, which led the legal charge and had hoped the US Supreme Court would uphold the original district court decision, called the decision “a horrible travesty of justice.”
That decision had been the biggest judgment ever handed down against the PA in the US and one of the first major anti-terrorism judgments, along with the September 2014 judgment against Amman-based Arab Bank for financing terrorism. An appeals court later took issue with the Arab Bank decision as well, but that case ended in a large settlement.
Disappointingly for Shurat Hadin and the victims, the Trump administration had surprisingly opposed the US Supreme Court intervening to save the anti-PA verdict from the appeals court.
Shurat Hadin said: “The families are gravely disappointed by the Supreme Court decision to uphold the dismissal of the jury verdict. These families took Congress at its word and pursued their cases under the ATA [Anti-Terrorism Act] for more than 14 years…went through the emotional tribulations of reliving the attacks and testifying at trial only to discover that the congressional legislation was deemed unconstitutional. It’s outrageous that the murderous Palestinian Authority is allowed to kill innocent civilians and not have to pay any cost.
“No one, including the Palestinians, denies that their security forces perpetrated these murders. We will insist that Congress either remedies the law or that the families are compensated from the foreign aid provided to the Palestinians… the ATA is completely toothless and obsolete.”
Shurat Hadin concluded: “The court’s short-sighted ruling is going to have many disastrous consequences for America’s counterterrorism programs…It’s shocking that the Trump administration and the court would take the side of the suicide bombers over the side of these tragic American families.”
THE PLAINTIFFS’ central narrative at trial was that a large volume of PA employees, including numerous policemen and commanders, had been arrested and convicted by Israel as having organized, planned and perpetrated suicide bombings and shootings against Americans in Israel.
The six attacks from 2001-2004 during the Second Intifada killed 33 people and wounded hundreds.
The case featured an array of star witnesses, including top PLO official Hanan Ashrawi, former top IDF intelligence and military prosecution officials, and the head of the “PA’s CIA.”
There was also heart-wrenching testimony from the families of victims.
Chana Goldberg brought the jury to tears talking about the breakdown of her family following the murder of her father, Scott.
But no emotion was enough before the appeals court or the US Supreme Court, which said neither the attacks nor the PA or PLO had sufficient ties to the US, including their lobbying activities, for American courts to have jurisdiction.
The appeals court found no evidence the attacks specifically targeted American citizens. Rather, it called them “random and fortuitous.”
Judge John Koeltl wrote for the appeals court: “The terror machine gun attacks and suicide bombings that triggered this suit and victimized these plaintiffs were unquestionably horrific.”
“But the federal courts cannot exercise jurisdiction in a civil case beyond the limits prescribed by the due process clause of the Constitution, no matter how horrendous the underlying attacks or morally compelling the plaintiffs’ claims,” he added.
Ironically, part of the PA’s win had to do with the fact that it is not considered a state under US law.
In a reply brief to the appeals court, the PA had written: “Plaintiffs seek to create for defendants an untenable whipsaw: not sovereign enough for purposes of the ATA and FSIA [Foreign Sovereign Immunities Act], but too close to sovereign to be entitled to due process.”
The PA claimed a double standard.
When US law might save it from being sued in the US for activities which occurred in Israel, it was not being treated as a state, but when American law made it easier to sue it in the US, it was being treated as a quasi-state.
The PA had cited three recent rulings by other courts, which dismissed similar ATA cases due to the lack of personal jurisdiction by US courts over the foreign defendants. It further argued that its few US connections, including two embassies, engaged only in diplomatic but not commercial activities.
In general, courts cannot handle a case against a defendant unless there is some physical or business connection between a defendant and the country where the court resides.
Shurat Hadin plans to take the issue back to Congress to amend the relevant laws to permit similar cases in the future.
The PLO’s envoy to Washington, Husam Zomlot, lauded the decision on Monday and said that it “reaffirms the vital relationship between the Palestinian and American people, which depends on mutual respect and, as importantly, on respect for the rule of law.”
“The court of appeals,” he added, “upheld the rule of law when it overturned the unjust, initial decision in the Sokolow case that should never have been brought to trial in the first place.”
Michael Wilner in Washington contributed to this report.