Last week a three-judge federal appeals court panel in Manhattan vacated a $655 million award against the Palestine Liberation Organization and the Palestinian Authority for several terrorist attacks in Israel that killed or wounded 11 Americans.
A federal jury had found that both were responsible for the attacks and that they were subject to the penalties of the federal Anti-Terrorism Act of 1992 which authorizes lawsuits in American courts against those who commit terrorist acts against Americans abroad.
The appeals court held, however, that American courts had no jurisdiction over the groups because there were insufficient connections to the U.S. The groups were not based in the U.S. (although they maintain a Washington, D.C. office) and Americans were not the specific targets of the attacks. The appeals court thus rejected the trial judge’s ruling that American law was applicable because the PLO and the PA engaged in attempts to influence U.S. Mideast policy from their U.S. office and that, as the jury also found, they were indeed connected to the actual terrorist perpetrators.
It seems to us that an appeal to the full appeals court and eventually the U.S. Supreme Court, if necessary, is vital. Of course, our courts seem to have a tendency to blanch at the prospect of vindicating congressional exercises of power in the foreign policy area no matter how compelling, especially in the face of adamant State Department opposition – as the courts did most recently in finding unconstitutional a federal law allowing Americans born in Jerusalem to designate “Israel” as their place of birth on their passports.
But that doesn’t mean that efforts shouldn’t be mounted to vindicate the rights Americans enjoy under our laws. Indeed, even a cursory review of the reach of the Anti-Terror Act underscores the perfidy in the appeals court negation of the congressional will to protect Americans abroad.
Here is what the Anti-Terrorist Act actually says:
Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefore in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.
There doesn’t seem to be any ambiguity in the language of the statute in terms of the entitlement of American victims of foreign terrorism to relief in U.S. federal courts. To be sure, it is implicit, even given the straightforward language, that there is a gloss that must kick in when applying this law, as is the case with any law. Thus, overarching principles of U.S. constitutional law and international law requiring some connection between proscribed acts and the assertion of jurisdiction must always be part of the mix.
But justice requires that a clear-cut statute like the Anti-Terrorism Act must be seen as creating a presumptive nexus to the U.S. and its courts as reflected in the district judge’s rulings.
It is instructive that the State Department actually intervened in the case after the district court jury found against the PLO/PA. Under federal court rules, a losing party has to post a bond to secure a damage award pending appeal. The State Department, though, sent a letter to the trial judge urging him not to require a large bond, even if merited, on the grounds that too large a bond would weaken the legitimacy of the PA and undermine “several decades of U.S. foreign policy.”
But the judge rejected the notion of “too big to fail” and required a bond of $10 million and another $1 million a month until the appeal was resolved.
The State Department notwithstanding, justice requires reinstatement of the claims arising out of Palestinian terrorism.