Should victims of suicide bombers who were wounded, or whose family members were murdered, during the second Palestinian intifada be able to get damages from the PLO and the Palestinian Authority?
The lower court said yes. The appellate court said no. Now it’s up to the Supreme Court.
Should it take the case? A group of 23 senators — a bipartisan group ranging from Ted Cruz, right-wing Republican of Texas, to Elizabeth Warren, left-wing Democrat of Massachusetts — says yes, according to the amicus brief it filed.
So does the entire House of Representatives, according to a unanimous amicus brief it filed.
So does a group of former high-ranking federal officials that includes retired Connecticut senator Joseph Lieberman, former Republican attorneys general John Ashcroft and Dick Thornburg, and onetime FBI director Louis Freeh.
So does Ted Olsen, who was George W. Bush’s solicitor general, whose first wife, Barbara, was killed in the plane hijacked on September 11 and flown into the Pentagon, who also wrote a brief in favor of the plaintiffs.
So does Noam Sokolow, the Teaneck restaurateur and local entrepreneur whose brother Mark is the named plaintiff in the case.
But that’s not a view shared by the Justice Department, whose solicitor general, Noel J. Francisco, wrote an amicus brief urging the Supreme Court not to take the case.
So what’s going on here?
Noam Sokolow remembers sitting at home on Sunday, January 27, 2002. He’d gotten a call from a friend, asking how his brother Mark was. His brother, who lives in Cedarhurst, one of Long Island’s Five Towns, and who had ironically, terrifyingly, mind-bogglingly survived the September 11 terrorist attacks — he’d been on the 37th floor of the south tower, and got out just in time, before the second plane hit and that second tower collapsed — was in Israel, with his wife and two younger daughters, visiting their oldest daughter, who was spending her gap year in Jerusalem. “Why?” Noam remembers asking? What could possibly be wrong? “Turn on the news,” his friend advised. And there he saw that there had been a suicide bomber, the first woman to kill herself in that way in Jerusalem, just outside a shoe store on the Jaffa Road.
A victim had died in that attack; Pinhas Toklatli, an 81-year-old painter, fifth-generation Jerusalemite, husband, father, and grandfather. (If you have a really strong stomach, google images of him. You’ll see what a suicide bombing victim looks like. Newspapers didn’t use these photos — certainly we wouldn’t, couldn’t, shouldn’t — but they are unvarnished.)
Mark Sokolow, his wife, Rena, and their daughters Lauren and Jamie all were wounded seriously; they all have recovered in the decade and a half since the bombing, although residual physical effects remain.
Mark Sokolow is a lawyer, and coincidentally he works for Arnold and Porter, the firm that is handling the lawsuit. He is a corporate lawyer, who does transactional work for corporate institutions, but he is well situated to explain the legal theory underlying the case.
He and the other 10 families represented in the lawsuit, harmed by six separate acts of terrorism, were able to bring it because of the Anti-Terrorism Act, passed in 1992 in response to the murder of Leon Klinghoffer in 1985. As it turned out, Mr. Klinghoffer’s family was able to sue his murderers, including the PLO, because he was killed at sea, so they were able to take advantage of maritime law. “That was a quirk of the case, and Congress felt that it should not have to be dependent on quirks,” Mark Sokolow said. “They wanted to pass a law protecting American citizens traveling abroad. So an American killed or injured by an act of terrorism abroad can bring suit in an American court. Of course, you have to be able to serve someone, but as long as that person is served under the provisions of the act, you can bring suit.
“For example, if ISIS were to kill an American in Iraq — you can’t serve ISIS in the United States, so you can’t sue them in the United States. But the PLO has a U.S. presence; it has a presence in New York, and the United States gives the Palestinian Authority millions of dollars every year, so it seemed ludicrous that they should not be able to be sued in the United States.”
So the 11 families served and sued the PA and the PLO, and it went to trial.
“Throughout the trial and the pre- and post-trial arguments and briefings and motions, the PLO raised the jurisdiction issue, and Judge Daniels kept striking it down,” Mr. Sokolow said. That was Judge George B. Daniels, who presided over a civil trial in a federal district court in Manhattan. “The jury found the PLO and PA responsible for every single count, for every single one of the attacks,” he continued.
“It was a very fact-based trial. Every attack was documented and proven through years of research. The documentation showed who was ordered to commit the attacks.”
It took a decade, but in February of 2015 they won. The jury awarded the plantiffs $218.5 million; because the terrorism act demanded that those damages be trebled, the final amount was $655.5 million.
Money cannot bring back the dead or undo physical or psychological damage, but it can represent vindication. So far, however, the defendants have received nothing.
“The PLO and the PA had the right to appeal,” Mr. Sokolow said. “They appealed to the Second Circuit. In order to appeal, they had to post a bond. Typically it is roughly the same as the judgment, so the bond would have been $655 million. They said they couldn’t afford it.
“And then, uninvited, the U.S. government came in and filed a statement of interest in the case before Judge Daniel set the bond. They said, ‘Look, we feel really badly for these American victims of terror, and they ought to have their day in court and be able to get relief under the ATA, but the PA and the PLO are very important partners in the peace process in the Middle East.’
“And so the government asked Judge Daniels not to do anything that would bankrupt or damage the PLO and the PA. And Judge Daniel took that into account, and so instead of setting a bond of $650 million, we asked for $20 or $30 million a month to be put into court. But Judge Daniel said they had to put $10 million in on Day One, and then $1 million a month after that. That’s much much less.
“We think that if the court had enforced a more customary bond, the case would have settled.”
But it didn’t. “They posted their bond, and every month they posted the extra $1 million, and they appealed to the Second Circuit on many grounds, the most important of which was jurisdiction.”
The appeals court basically said that despite the ATA, the court lacked jurisdiction. It invoked the 14th Amendment, the one about equal protection under law, the rights of citizenship. It cited a 2014 case, where the Supreme Court ruled the automaker Daimler could not be sued in California because it did not have enough of a presence there. “It held that a foreign company has to be ‘at home’ in a state before you bring suit against it in that state,” Mr. Sokolow said. Applied to this case, the appeals court said that “the PLO or the PA has to be held to be ‘at home’ in the United States and they would hold that they were not.”
Also, he said, the court “treated the PLO and the PA better than they would treat a government. We could more easily sue the governments of Iran or Iraq than the PA or the PLO. Because it isn’t a sovereign government, it was being treated as if it had more rights.
“So the appeals court reversed the case. It looked at Judge Daniels’ case and said that the courts did not have jurisdiction over the PA, and that the terrorism act was unconstitutional as it was applied. If the PA had either attacked someone in the United States, or had made it crystal clear that it was targeting Americans abroad, it would have been different.
“But because the suicide bomber didn’t yell ‘Death to America!’ before she detonated her vest, it didn’t count.
“They applied Fourteenth Amendment principles to a Fifth Amendment case, and they gave them more rights than an actual sovereign state would have in terms of being subject to suit,” Mr. Sokolow summed up.
Once the plaintiffs were turned down by the appellate court, they had only one option open to them other than dropping the case. That was petitioning for a writ of certiorari — that is, asking the Supreme Court to consider the case.
Petitioning for cert is always a long shot. According to the Internet consensus, about one percent of those requests are granted. But these plaintiffs had some advantages. While it is common for interested people or groups to file amicus briefs, it is not common to have the entire House of Representatives file on your behalf, and then there are those 23 senators and seven former high-level administration officials.
Interestingly enough, the senators include New York State’s Charles Schumer and Kirsten Gillibrand, but they do not include New Jersey’s Robert Menendez or Cory Booker.
In response to a question about whether he thinks that the Supreme Court should hear the case, Mr. Menendez emailed “Senator Menendez has consistently and forcefully condemned terrorist attacks against innocent civilians in Israel. Palestinian President Mahmoud Abbas and Palestinian leaders have a responsibility to prevent these attacks, to stop the incendiary rhetoric that encourages violence and terrorism and stop a perverse system that rewards and incentivizes violence. He supports the efforts of all victims of terror, anywhere, to see compensation for their suffering.”
Calls to Mr. Booker’s office have not been answered as of press time.
And Mr. Sokolow also held out some hope that his case might be accepted because “there is a long history of the Supreme Court taking a case where the act of a lower court essentially has rendered a law passed by Congress inoperable or said it to be unconstitutional.”
But the Supreme Court asked the solicitor general for the Justice Department’s official view on the question of whether it should grant cert and hear the case. “They do that from time to time,” Mr. Sokolow said. It’s called CVSG — “calling for the view of the solicitor general.” (“Although the CVSG is technically an invitation, the solicitor general always treats it as a command,” SCOTUSBLOG helpfully explains.) This time, it took the solicitor general nine months. “All that time, the U.S. government was silent,” Mr. Sokolow said. “We didn’t hear anything.
“They only filed their brief a couple of weeks ago, and shockingly their brief said don’t take the case. It didn’t even say, ‘Gee, we feel badly for the American victims of terror.’
“It is a very subdued technical brief. It said that these issues should percolate more on the lower level.
“It’s ridiculous,” Mr. Sokolow added. The idea that the issues should percolate means that more Americans should fall victim to terrorists abroad, so that they or their survivors can bring lower-court cases and the Supreme Court can consider all of them and decide based on a larger pool of examples. That seems harsh, Mr. Sokolow said.
“We were all really shocked and hurt by this brief,” he continued. “We thought that we really would have the ear of this administration. America First, and all that.”
His brother Noam echoed that sentiment. He thinks, he said, that President Donald J. Trump, “based on his support for Israel, and this is America and Americans First,” would take a stand in the American victims’ favor. The Justice Department’s position “is obviously the direct opposite of what the president has been preaching,” he said. “We hope that someone in the White House or the Justice Department just slipped this in, but that it is not necessarily the actual message of the White House. I hope that they will come out and say so.
“I hope that the White House will come out with a brief in support, or at least state on record that they are not aligning themselves with that position.”
As of press time, they have not done so.
Ted Olsen, another former solicitor general, wrote an amicus brief in direct response to Solicitor General Francisco’s. In remarkably clear, direct language, Mr. Olsen makes clear not only his outrage but also the lack of logic in the government’s position. Although he says that the Second Circuit’s decision “contradicts two long-held views of the United States” — about due process rights and about federal versus state jurisdiction — the “brief is even more astonishing because its failure to seek review of the nullification of the ATA is not even accompanied by any argument that the court of appeals’ decision is correct,” he writes. “It conspicuously says nothing of the merits.” Its real if unstated desire is to nullify the Anti-Terrorism Act.
“The brief is pretty sharply worded,” Mark Sokolow said. “It calls the solicitor general’s brief ‘astonishing,’ ‘disingenuous,’ and a ‘blatant abdication of duty.’ It also says that the circuit court decision ‘cut the heart out of a vital federal statute, draining it of its indisputable purpose,’ and now the Solicitor General ‘is not being square with the court.’”
This is what the brief points out, Mr. Sokolow continued: “Core applications of a vital anti-terrorism law are at stake. Even if the Executive is willing to forego a defense of this law, the Court should grant review in deference to Congress’s legislative judgment.”
After attacking what Mr. Olsen sees as the government’s illogic and its lack of straightforwardness in its refusal to say what its goals really are, he ends the brief this way: “The Anti-Terrorism Act is an important, thoughtfully considered, congressional effort to defend United States citizens from international terrorism. At the very minimum, this law is entitled to consideration in this Court in the face of the Second Circuit’s constitutional decision stripping it of its core purpose and meaning. The Court should grant the petition.”
There is very little time left for the Supreme Court to grant cert. If it doesn’t, the case is over.