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WASHINGTON, D.C. – Victims of terrorism are fighting for the right to sue Palestinian organizations in U.S. courts. Plaintiffs include a 7-year-old boy who suffered shrapnel wounds to his brain from a suicide bombing and the parents of four students who died in a bomb blast at a university cafeteria.
The victims argue that the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) encouraged these attacks, in part by paying the families of terrorists who target Israel.
The case, which is currently at the U.S. Supreme Court, Fuld v. PLO, centers on whether a law allowing American terror victims to sue Palestinian entities in U.S. federal courts is constitutional. A lower court ruled that the law violates the Constitution’s guarantee of due process.
Palestinian Terrorism and Questions of Jurisdiction
This case is part of a broader effort to determine the rules for personal jurisdiction – essentially, whether courts have authority to hear a case involving certain defendants. In this case, it’s regarding the Palestinian Authority and PLO for actions taken abroad.
According to a U.S. law passed by Congress in 2019, the victims could have the right to sue. The Promoting Security and Justice for Victims of Terrorism Act says the PLO and Palestinian Authority are consenting to U.S. jurisdiction if they conduct activities in the U.S. or pay people who attack Americans.
A federal appeals court ruled that it does not actually equate consent to U.S. jurisdiction – and that’s the court decision that sent this case to the Supreme Court.
What Happened at the Supreme Court
Mitchell Berger, attorney for the Palestinian Authority, argued that the U.S. cannot impose its jurisdiction on Palestine based solely on financial transactions.
“Nothing reflects submission of the antecedent sovereign authority of the U.S. The U.S. can’t say to Palestine do or don’t make that payment. That is not submission to a U.S. forum, and indeed, that’s what the court of appeals said and has applied in this case,” Berger said. “All of our conduct is unrelated conduct and has previously been held to be insufficient to support jurisdiction.”
Edwin Kneedler, representing the U.S. government through the U.S. Solicitor General’s office, said Congress passed the law because it believed deeming the PLO and Palestinian Authority to have consented to jurisdiction in federal courts was the best way to prevent terrorism. He argued that determination should take precedence.
“Congress has the constitutional authority and institutional capacity to weigh the varying interests, including the distinct status and international engagements of PLO and PA, the United States’ unique and long-term relationship with those entities, the imperatives of national security and in foreign policy and fairness to claimants and foreign defendants,” Kneedler said.
Supreme Court Justice Brett Kavanaugh said, “Courts shouldn’t be coming in, I don’t think, without that and saying, gee, what Congress and the president are doing here to advance the national security and for policy interests of the United States strikes us from our perch as unfair.”
Berger said, “The legislative wheel alone can’t define Fifth Amendment due processes.”
The justices appeared unsure about how far they should go in terms of ruling on this case, questioning both sides on whether a more limited decision, that would then send the case back to the lower courts, would suffice.
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