The victims suffered their first betrayal by the US government when the PLO and PA 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 Obama administration’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 that a bond would have on the PLO and PA. The trial judge listened, reducing the bond to be paid by terrorist murderers of US 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 PA were responsible for executing the terrorist crimes against them, the Second Circuit concluded that it would violate the Fifth Amendment’s Due Process Clause to exercise jurisdiction over the PLO and PA. The court’s reasoning? The plaintiffs had failed to show that the PLO and PA “specifically targeted” US 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 US 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 US government, now under President Trump, 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 damages 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 PA 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, that the PLO and PA unequivocally consented to the jurisdiction of US 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 US court, including sworn statements by the PA’s own leadership, the PLO and PA 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 PA 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 PA until the victims receive the compensation they are due. There is no question that the PLO and PA 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 Tuchman is the 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 Klein is the national president of the Zionist Organization of America.