OPINION ANALYSIS

The Supreme Court on Friday ruled that a pair of lawsuits by U.S. victims of terrorist attacks in Israel against the Palestinian Authority and the Palestine Liberation Organization can go forward. In an opinion by Chief Justice John Roberts, the justices unanimously rejected arguments by the PA and the PLO that allowing the victims to sue them in U.S. courts violates the Constitution’s guarantee of due process.

The case before the justices is a long-running one – indeed, the lawyer representing the victims observed at the April 1 oral argument that it was “old enough to go to law school.” As it came to the Supreme Court, the dispute centers on the issue of personal jurisdiction: whether courts have the authority to hear a lawsuit against particular defendants.

To ensure that federal courts could hear cases by victims of terrorism that occurs overseas, Congress in 2019 passed the Promoting Security and Justice for Victims of Terrorism Act. The law provides that, subject to a few narrow exceptions, the Palestinian Authority and the Palestine Liberation Organization “shall be deemed to have consented to personal jurisdiction” in any civil case brought under the Anti-Terrorism Act, even when the act of terrorism occurred before the law was passed, if the two groups either make payments to terrorists in Israeli prisons who injured or killed a U.S. national or the families of deceased terrorists who did such or engages in any activities within the United States.

Despite that law, the U.S. Court of Appeals for the 2nd Circuit concluded that the two lawsuits brought by U.S. citizens who were injured in terrorist attacks in Israel, as well as the families of U.S. citizens killed by terrorist attacks, could not go forward because the PA and PLO had not agreed to allow U.S. courts to exercise jurisdiction over them. And it would not be fair, the court of appeals continued, to infer consent from the kind of conduct that the law targets.

The victims came to the Supreme Court, which on Friday reversed the 2nd Circuit and revived their lawsuits. Roberts rejected the PLO and the PA’s suggestion that the standards that the court has outlined for personal jurisdiction cases under the 14th Amendment, which guarantees due process by the states, should also apply to personal jurisdiction cases, like this one, under the Fifth Amendment. The standards under the 14th Amendment, “and in particular, the requirement that a defendant have minimum contacts with” the state where a lawsuit is filed, Roberts reasoned, are intended to guard against efforts by the states to exceed their power, at the expense of other states.

But there are no such concerns with the federal government under the Fifth Amendment, Roberts continued, since the Constitution gives the federal government “both nationwide and extraterritorial authority.” This is especially true, Roberts added, in light of the federal government’s “interest in holding accountable those who perpetrate an ‘act of violence against’ U.S. nationals—who, even when physically outside our borders, remain ‘under the particular protection’ of American law.”

At the same time, the court declined to say what limits, if any, the Fifth Amendment does place on the government’s power “to hale foreign defendants into U.S. courts.” Although the victims had contended that it “imposes no territorial limits on personal jurisdiction,” the federal government had argued – and the court agreed – that it did not need to decide that issue now. It is enough, Roberts wrote, that the 2019 law “ties federal jurisdiction to conduct closely related to the United States that implicates important foreign policy concerns.”

Justice Clarence Thomas, in a concurring opinion joined in part by Justice Neil Gorsuch, explained that he would have gone further and held that the Fifth Amendment does not impose any “limits on the Federal Government’s power to extend federal jurisdiction beyond the Nation’s borders.”

Posted in Featured, Merits Cases

The US Supreme Court upheld a law Congress passed to let Americans sue Palestinian authorities over overseas terror attacks. Americans killed or injured in foreign attacks filed lawsuits seeking damages for violence in Israel and the West Bank years ago.

The court’s 9-0 ruling reversed a lower court’s decision against the 2019 Promoting Security and Justice for Victims law. That court had found the law violated due process rights of the Palestinian Authority and PLO under the Constitution.

Chief Justice John Roberts wrote that the 2019 law complies with due process under the Constitution’s Fifth Amendment protections. Roberts stated that Congress may write narrow jurisdictional laws helping Americans sue for terror-related damages under US foreign policy. He said federal law, the Antiterrorism Act of 1990, lets Americans injured by terrorism pursue compensation in U.S. courts.

The US government and American victims appealed the earlier ruling that struck down a key provision of the 2019 law. Plaintiffs include families who won $655 million in a 2015 verdict blaming Palestinian groups for attacks near Jerusalem, 2002–2004. He also include relatives of Ari Fuld, a Jewish settler stabbed to death by a Palestinian in 2018 West Bank.

Plaintiffs are American families whose loved ones were killed or maimed in PLO-linked terror attacks, their lawyer Kent Yalowitz said.

Yalowitz expressed hope that the case ends soon without forcing these families into more prolonged and unnecessary legal proceedings again.

Ongoing Israeli-Palestinian violence remained a backdrop to the Supreme Court’s case on suing Palestinian authorities for overseas terror incidents.

US courts debated for years whether they could hear lawsuits against the Palestinian Authority and PLO for foreign terror acts.

The 2019 law states that Palestinian groups consent to US jurisdiction if they act in America or pay American attackers.

Roberts said Congress and the president decided to hold PLO and PA liable to combat international terrorism threatening American citizens.

US District Judge Jesse Furman ruled in 2022 that the law violated due process rights of PLO and Palestinian Authority.

The 2nd US Circuit Court of Appeals, based in New York, later upheld Judge Furman’s decision against the jurisdictional law.

President Biden’s administration filed the appeal against that ruling, which President Trump’s administration later continued through the Supreme Court.

The US Supreme Court listened to legal arguments in this case on April 1 as part of the review process.

The Supreme Court on Friday said that the families of victims of terrorist attacks in Israel may sue the Palestinian Authority in a decision that will likely make it easier for victims of other overseas attacks with ties to Palestinian groups to seek damages in US courts.

Chief Justice John Roberts wrote the opinion for the court and the vote was unanimous.

“We have also recognized the national government’s interest in holding accountable those who perpetrate an ‘act of violence against’ US nationals—who, even when physically outside our borders, remain ‘under the particular protection’ of American law,” Roberts wrote. “So too the national government’s corresponding authority to make ‘the killing of an American abroad’ punishable as a federal offense ‘that can be prosecuted in (US) courts.”

At issue are a series of deadly attacks inside Israel that date back to the Second Intifada in the early 2000s. The question for the Supreme Court was whether Congress had the authority to subject the Palestine Liberation Organization and the Palestinian Authority to the jurisdiction of federal courts, which would allow the victims of those attacks to sue for damages.

One of those victims, Ari Fuld, an American citizen and the named plaintiff in the case before the Supreme Court, was stabbed in 2018 hours after the chairman of the PLO claimed the Israeli government wanted to establish Jewish prayer zones inside one of Islam’s holiest sites, according to court records. A federal court in 2015 awarded victims more than $650 million under the federal Anti-Terrorism Act, which permits Americans to sue for damages caused by terrorism.

But a federal appeals court in New York reversed that verdict, ruling that courts lacked jurisdiction over the PLO and the Palestinian Authority.

As the case bounced around federal courts, Congress repeatedly stepped in to amend the law to allow the victims to sue after federal courts ruled against them, most recently in 2019. That law essentially made the Palestinian groups subject to federal court jurisdiction if they conducted “any activity” within the United States, with few exceptions.

But the 2nd US Circuit Court of Appeals ruled that law violated the Fifth Amendment.

The Palestinian Authority told the Supreme Court in a briefing that because it does not “maintain any constitutionally meaningful connection to the United States,” allowing federal courts to exercise jurisdiction over claims “for alleged attacks in Israel and Palestine would violate due process.”

During oral arguments in April, several of the justices had indicated they were keen to defer to the other branches on the question.

Justice Brett Kavanaugh, a member of the court’s conservative wing, noted that the president and Congress had acted together on the question of court jurisdiction.

“Now there is still a role for judicial review to make sure they’re not crossing some other constitutional line, but, usually, that’s a very sensitive judgment for a federal court to make,” Kavanaugh said in April.

“Usually, we would require something in either the text of the Constitution or in the historical practice over the years that would suggest some principle that the courts could rely on that would disagree with the foreign policy and national security judgment of Congress and the president acting together,” he said.

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