Victims of international terrorism suffered a terrible blow this week when the United States Supreme Court declined to hear Sokolow v. Palestine Liberation Organization, a case brought by American citizens killed or injured in terrorist attacks committed in the early 2000s in Israel by the Palestine Liberation Organization and the Palestinian Authority. It was the last in a series of betrayals by the U.S. government, which shamefully took positions in the case that supported the terrorists, not the American victims.
The terror victims in Sokolow sued the PLO and the P.A. in 2004 under the Anti-Terrorism Act, or ATA, a federal law that affords a crucial legal right and remedy to American victims of international terrorism. After waiting 10 years for their day in court, the victims prevailed at a trial in February 2015. The jury awarded them $655.5 million in damages.
The victims suffered their first betrayal by the U.S. government when the PLO and P.A. appealed the jury’s verdict. These terrorism perpetrators disingenuously claimed they could not afford to post a bond as security while their appeal was pending—and the U.S. Department of Justice supported this ridiculous claim. In August 2015, the Justice Department filed a statement of interest, urging the court to consider the harmful impact a bond would have on the PLO and P.A. The trial judge listened, reducing the bond to be paid by terrorist murderers of U.S. citizens.
Then came another blow: In October 2016, the United States Court of Appeals for the Second Circuit vacated the jury verdict and dismissed the victims’ case. Even though the victims proved at trial that the PLO and P.A. were responsible for executing the terrorist attacks that caused their deaths and injuries, the Second Circuit concluded that it would violate the Fifth Amendment’s Due Process Clause to exercise jurisdiction over the PLO and P.A. The court’s reasoning? The plaintiffs had failed to show that the PLO and P.A. “specifically targeted” U.S. citizens or had the “specific aim” of targeting the United States.
That is a difficult, if not impossible, requirement for any terror victim to satisfy, and it appears nowhere in the ATA itself. Terrorists are rarely available to testify in U.S. lawsuits to describe their targets or aims. The goal of terrorists is to kill as many people as possible, including Americans.
In March 2017, the victims petitioned the Supreme Court to review the Second Circuit’s decision. The Supreme Court issued an order inviting the Solicitor General to express the views of the United States regarding the victims’ petition.
Again, the U.S. government betrayed the terror victims. It took the Solicitor General eight months to finally file his brief in February 2018. When he did—together with the legal adviser for the State Department and attorneys at the Department of Justice—he failed to stand up for the victims and their right to recover under the ATA. Instead, the Solicitor General encouraged the Supreme Court to leave the Second Circuit’s dismissal decision as is.
The Solicitor General and the State Department knew or should have known that they had a legal and moral obligation to file a different brief—one that supported jurisdiction over the PLO and P.A. under the ATA, and the victims’ right to compensation under the law. As the Solicitor General and the State Department knew or should have known, in 2007, the PLO and P.A. unequivocally consented to the jurisdiction of U.S. courts in all cases brought against them under the ATA and to defend all ATA cases on the merits.
In fact, in documents submitted to a U.S. court, including sworn statements by the P.A.’s own leadership, the PLO and P.A. represented that their officials had met with the State Department and concluded that it was in their own best interests, and in the interests of the United States, for them to defend these cases on the merits to prove to the American people that they did not provide material support for terrorism.
That, of course, was a lie, as the jury in Sokolow resoundingly determined. After losing at trial and facing the prospect of paying millions in damages to the terror victims, the PLO and P.A. tried a new ploy: reneging on their sworn commitments by challenging the court’s jurisdiction over them. Instead of calling them out for this sleazy maneuver, our government unconscionably filed a brief supporting them.
Congress should be as appalled as we are by the Solicitor General’s actions on the government’s behalf. The House of Representatives unanimously submitted a brief urging the Supreme Court to review the Second Circuit’s decision, as did many members of the Senate on both sides of the aisle. Lawmakers understood that the decision undermined our country’s fight against international terrorism, and nullified the rights and remedies that Congress afforded to American terror victims under the ATA.
We urge Congress to hold hearings about how and why our government would act in ways that support terrorists, not American terror victims. The Solicitor General, the State Department, the Justice Department and others should have to answer for making terrorists less concerned about facing legal consequences for their hideous actions.
In addition, we urge Congress to withhold funds earmarked for the P.A. until the victims receive the compensation they are due. There is no question that the PLO and P.A. orchestrated the horrific terror attacks that killed and injured our citizens. This is now the only way to make them pay for their crimes—and pay they must.
Susan B. Tuchman is director of the Zionist Organization of America’s Center for Law and Justice. David Schoen is a member of the Zionist Organization of America’s National Board of Directors who regularly represents American victims of terror, and represented the plaintiffs in the Sokolow case at the pretrial stage of the litigation. Morton A. Klein is the national president of the Zionist Organization of America.