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January 7, 2010 – One of the next court dates in the litigation over the war on terror is February 1. That’s the deadline a United States district judge, Gladys Kessler, has given the Palestine Liberation Organization and the Palestinian Authority to post a $1 million bond in a case that has been brought by the family of a 25-year-old American, Esh Kodesh Gilmore, who was slain in a terrorist attack in East Jerusalem, where he’d been working as a security guard in an Israeli building. If the Palestinians Arabs fail to post the bond, the Judge said in an opinion last month, she would leave in place an order of default against them.
This will be a case to watch for those who want to find a way to deal with terror through America’s civilian court system — as well as for those of us who think such a strategy is a vain quest. The case, captioned Gilmore v. Palestinian Interim Self-Government Authority, has been dragging on since it was first filed in 2002, and the default process got going after the Palestinian Arabs initially refused to appear. It turns out, however, that America’s top diplomat in the latter part of the Bush years, Secretary of State Rice, actually encouraged the Palestinian Arabs accused of slaying this American to go into court to defend themselves.
Let it be said in Ms. Rice’s defense that she is not the first person from Foggy Bottom to tilt against America’s own citizens in a terror-related civil court case. In the 1990s, when the estate of Alisa Flatow, who was slain in an Iranian backed attack in Israel, won a judgment against the mullahs in Tehran, the State Department actually went into court to try to stymie the efforts at collection, as it did in a case involving Pan Am Flight 103. What makes Gilmore so newsworthy is that the Palestinians, partly on Secretary Rice’s advice, eventually decided to fight the case against them and ask the court to vacate a default order.
Judge Kessler agreed to do so — on certain conditions. One is that a bond be posted by the above-mentioned deadline. But an even more remarkable aspect of her order was the dressing down she gave President Obama’s administration for a filing that she derisively described as “mealy-mouthed” in its refusal to help the court weigh the foreign policy and national interest aspects of the court case. This was first reported by one of the shrewdest observers of our court system, the New York Sun’s erstwhile national correspondent, Josh Gerstein, now of Politico, to which he filed a dispatch that is accessible here.
The only thing the Obama administration was prepared to say in response to the Court’s plea was that America “supports just compensation for victims of terrorism from those responsible for their losses and has encouraged all parties to resolve these cases to their mutual benefit.” And to express the view that it also “remains concerned about the potentially significant impact that these default cases may have on the defendants’ financial and political viability.” The tenderness of its concerns for the Palestinian Authority, which typically denies its role in this murder of an American citizen, is touching.
The truth is that a filing such as that entered by the Obama administration in the case of Gilmore is a national disgrace. How, in the middle of a terror war against America and Israel, the American administration can encourage the family of an American who was killed by Arab terror to treat with the killers and resolve the case “to their mutual benefit” is something suited to Kafka. No wonder Judge Kessler, even while signaling her preparedness to let the Palestinians off the hook, let her anger flare. For what Gilmore teaches us is that getting an answer that ordinary Americans — and even an ordinary federal court — can relate to is beyond the power of a mere judge. It underscores again the importance of being willing to choose sides in the war and to levy the war with the normal tools of warfare. As things now stand, the Palestinian Arab authority isn’t the only institution involved in this case that appears to be in default.