On April 2, 2018, the Supreme Court denied certiorari in the case of Sokolow v. Palestinian Liberation Organization, wherein the Second Circuit Court of Appeals reversed a jury finding in favor of victims of Palestinian terrorism brought under the Anti-Terrorism Act. The reversal, notably, was not because of any lack of evidence demonstrating that the PLO and Palestinian Authority provided material support for the terrorist acts that cost the lives of the Plaintiffs’ family members, but was based solely on jurisdictional grounds.
Essentially, the Second Circuit held that “[t]here is no basis to conclude that the defendants participated in these acts in the United States or that their liability for these acts resulted from their actions that did occur in the United States.” Without getting too far off topic, while the Court of Appeals was sure to condemn the attacks as “heinous” and acknowledged that “the defendants were liable for tortious activities that occurred outside the United States”, it completed the latter sentence by stating that the terrorist attacks “affected United States citizens only because they were victims of indiscriminate violence that occurred abroad.”
The problem with the Second Circuit’s use of the term “indiscriminate” is that it is in fact antithetical to the fundamental purpose of modern terrorism, as exemplified by these murders committed with the support of the PLO and PA. The crucial intent in such attacks is, as defined by the Anti-Terrorism Act, is to use deadly violence and threats of the same in order to achieve a political objective. The targets are only facially indiscriminate due to the fact that terrorism seeks to feed on the fear of a general public that any and all are potential victims.
With all due respect to the Second Circuit Court of Appeals, which has also issued key decisions against international terrorism, the terrorist murders at issue in this case were calculated and coordinated, anything but ‘indiscriminate.’ Put another way, the Second Circuit conflated specific intents. There was not, and did not need to be, specific intent to murder the specific members of Plaintiffs’ families in these terror attacks. The specific intent was sufficiently demonstrated by the terrorists’ desire to kill as many people as possible, and thereby target crowded public places – emphatically not to kill specific individuals. There remains a fundamental difference between terrorist mass attacks and targeted killings, to say the very least.
Turning back to the jurisdictional basis at issue, the Second Circuit ultimately held that “because the terror attacks in Israel at issue here were not expressly aimed at the United States and because the deaths and injuries suffered by the American plaintiffs in these attacks were “random [and] fortuitous” and because lobbying activities regarding American policy toward Israel are insufficiently “suit-related conduct” to support specific jurisdiction, the Court lacks specific jurisdiction over these defendants.”
The substantive problem with this determination lies in the fact that the Second Circuit relied upon a 2014 Supreme Court decision, Walden v. Fiore, which held that it is “insufficient to rely on a defendant’s “random, fortuitous, or attenuated contacts” or on the “unilateral activity” of a plaintiff.” [Internal citation omitted] However, in that case, the Supreme Court also pointed out that “[t]he Court of Appeals reached a contrary conclusion by shifting the analytical focus from petitioner’s contacts with the forum to his contacts with respondents.”
Here, the Second Circuit appears to have failed to consider two critical factors. First, that the PLO and Palestinian Authority’s presence in the State of New York has always been a crucial part of the function of each entity by virtue of access to the United Nations, not merely “lobbying” as misleadingly stated by the Court. Second, the longstanding practice of the Palestinian Authority to not only praise deceased terrorists as ‘martyrs’ but to also pay their families thereafter has been inextricably tied to official PA pronouncements and strategy alike. Indeed, this practice ultimately resulted in the introduction of the Taylor Force Act, which became law on March 23, 2018 and conditions future aid to the Palestinian Authority on condemning terrorism and ceasing ‘martyrdom’ payments.
One might also point to the unique nature of New York as an international banking center. Indeed, while it does not appear to have raised significant journalistic interest, on March 8th, New York State's Department of Financial Services announced that it had signed a Memorandum of Understanding with the Bank of Israel, in which the State's Superintendent of Financial Services noted that"DFS is pleased to further strengthen our cooperation and work with The Bank of Israel to strengthen protections of our markets and our mutual interest in combatting terrorism.”
Even as concrete measures to fight terrorism and providing material support thereto have passed beneath the headlines, last month, the United States government filed an amicus brief asking the Supreme Court to deny certiorari, to allow the Second Circuit’s decision to stand. Ted Olson, who represents the petitioners, openly questioned “Why won’t the Trump administration defend a key anti-terrorism law?” Others were even more incensed at the apparent betrayal. However, a careful reading of the United States’ amicus brief demonstrates a different calculus entirely.
Almost paradoxically, it was the petitioners urged the Court to treat the Palestinian Authority as analogous to a state, and thereby not subject to due process considerations such as specific or general jurisdiction but instead would have to defend the action using the protections provided by the Foreign Sovereign Immunities Act of 1976, or “FSIA”. The Second Circuit responded that “neither the PLO nor the PA is recognized by the United States as a sovereign state, and the executive’s determination of such a matter is conclusive.” Emphasis added.
In making such a statement, the Second Circuit relied upon the sweeping holding of the Supreme Court in Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015), the latter of two appeals to the Supreme Court in which the Department of State asserted that the power to recognize sovereignty lay solely and effectively absolutely within the discretion of the President. Nearly seven years ago, this author, among others argued “that this claim of exclusive presidential power is not substantiated”, and more recently that my “serious jurisprudential objections to the jurisprudence embodied in the decision, which cannot readily be reconciled with the Constitutional scheme of ensuring that each federal department can exercise some form of control or coercion over the others as a means of averting totalitarianism.”
In this light, the Government’s position that allowing courts to determine whether a foreign entity was a ‘state’ “risks judicial determinations at odds with Presidential determinations underlying recognition” is actually rational and does not need to rely upon the overly sweeping ruling in Zivotofsky that provided the president with a type of “exclusive” power that is glaringly absent from the vast majority of the Constitutional structure.
Ultimately, the Government’s position in this case did not revolve around terrorism or assisting the PLO or PA. Nor is it fundamentally concerned with the jurisdictional and due process concerns that underlie this action. Rather, the current administration is looking – like the preceding administration – to assert its prerogative in the realm of foreign affairs, a prerogative that has been expanded by the Supreme Court to appear virtually impossible to challenge.
It remains a mistake to see the Government’s amicus brief as a betrayal, or at all inconsistent with its public foreign policy actions, which to date have included signing the Taylor Force Act and formal recognition of Israeli sovereignty over Jerusalem, the latter of which seemed impossible a mere two years ago. However, the sweepingly broad deference given to the Executive Branch in the realm of foreign affairs in Zivotofsky is something that any – and it must be surmised, every – administration.