On Tuesday, the U.S. Supreme Court reviewed the constitutionality of a 2019 law enacted by Congress aimed at enabling American citizens who were killed or injured in overseas attacks to file lawsuits against Palestinian authorities, seeking financial compensation for incidents that occurred years ago in Israel and the West Bank.
The nine justices listened to arguments from both the U.S. government and a group of American victims and their families, challenging a lower court’s decision that deemed the law in question a violation of the due process rights of the Palestinian Authority and the Palestine Liberation Organization under the U.S. Constitution.
The ongoing conflict between Israel and the Palestinians provided context for the discussions.
Many justices’ inquiries indicated a potential inclination to support the plaintiffs. They examined the extent of Congress and the president’s authority to enable U.S. federal courts to adjudicate civil cases related to alleged misconduct against Americans abroad, as well as the necessary connection defendants must have to the U.S. to be subject to such legal actions.
U.S. courts have long debated their jurisdiction over cases involving the Palestinian Authority and the PLO concerning actions taken outside the country.
According to the provisions of the 2019 law, known as the Promoting Security and Justice for Victims of Terrorism Act, the PLO and Palestinian Authority would be deemed to have “consented” to U.S. jurisdiction if they engage in specific activities within the United States or make payments to individuals who attack Americans.
“Congress’ decisions on these matters, as with all national security and foreign policy issues, deserve significant deference,” stated Deputy Solicitor General Edwin Kneedler, representing the Trump administration before the justices.
Justice Brett Kavanaugh, who is aligned with conservative views, concurred with Kneedler on this matter.
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Kavanaugh stated, “It is Congress and the president who determine fairness in matters concerning the national security and foreign policy of the United States. Courts should refrain from intervening unless there is a violation of a constitutional principle that is clearly established in the text or history.”
Liberal Justice Elena Kagan questioned Kneedler about the risks of granting Congress excessive authority to impose general jurisdiction over individuals worldwide in U.S. courts, highlighting potential issues such as retaliation against Americans abroad.
“I can see a valid argument suggesting that this could have implications for foreign policy, potentially prompting other nations to retaliate and treat U.S. citizens similarly,” Kagan remarked.
Kneedler acknowledged, “There could indeed be complications, including reactions from other countries and possible retaliation.”
In 2022, a federal judge in New York determined that the law infringed upon the due process rights of the PLO and Palestinian Authorities as protected by the Constitution. This decision was later upheld by the 2nd U.S. Circuit Court of Appeals.
The Biden administration initiated the appeal, which was subsequently taken over by the Trump administration.
Mitchell Berger, representing the Palestinian authorities, stressed the importance of U.S. courts adhering to jurisdictional boundaries regarding their adjudicative powers, citing piracy as an example.
“Nobody supports pirates, right?” Berger stated. “While the United States can define piracy as a crime, it does not prosecute pirates in absentia, as there is a distinction between what Congress can legislate and what courts are authorized to do.”
Among the plaintiffs are families who, in 2015, secured a $655 million judgment in a civil lawsuit claiming that Palestinian organizations were accountable for a series of shootings and bombings in Jerusalem from 2002 to 2004. This group also includes relatives of Ari Fuld, a Jewish settler in the Israel-occupied West Bank who was fatally attacked by a Palestinian.
