Federal appeals judges in New York recently nullified a jury’s verdict that had granted $218.5 million in compensatory damages to American families victimized by terrorist shootings and bombings in Israel in 2002 and 2004. Under federal law this amount was trebled to $655.5 million. At first blush the court’s ruling seems shockingly unjust. A 1992 anti-terrorism federal law grants American nationals the right to recover damages in an American court for damages sustained in an “act of international terrorism.” I invoked that law to win a federal lawsuit against the Holy Land Foundation and others for their sponsorship of Hamas murderers of an American-born yeshiva student killed in a drive-by shooting at Beit El.
Media commentators have said that the recent appellate court decision lets terrorists “off the hook for killing Americans.” But the decision must be read more closely to understand the court’s reasoning and to know where to go from here.
The court’s opinion ends with a quasi-apology for the result reached by the judges. They acknowledge that the claims of the victims’ families are “morally compelling” and that “the terror machine gun attacks and suicide bombings that triggered this suit and victimized these plaintiffs were unquestionably horrific.” But, say the judges, American courts have no constitutional authority to hear and decide a civil claim against the Palestinian Authority and the Palestine Liberation Organization — the only two defendants that stood trial and were found to be liable for damages — for harm resulting from their conduct in foreign territory.
Whether an American court has “personal jurisdiction” over foreign non-governmental entities that injure Americans in foreign territory is a technical legal issue that the United States Supreme Court has addressed in several contexts other than lawsuits growing out of terrorist attacks. The appeals judges in the recent decision relied heavily on three virtually unanimous Supreme Court decisions that limited the constitutional power of American courts to hear and decide extraterritorial civil claims against foreign defendants.
In a 2011 ruling, the Supreme Court held unanimously that a North Carolina court did not have “personal jurisdiction” over foreign subsidiaries of the Goodyear tire company that allegedly manufactured defective tires resulting in a fatal bus accident outside Paris. All the Supreme Court justices extended that principle in two 2014 decisions. One concerned a lawsuit brought in a federal court against the Daimler Company — Mercedes-Benz’s parent corporation — for conduct in Argentina that injured Argentinian residents. Eight justices of the Supreme Court took the extraordinary step of dismissing the case because there was no “personal jurisdiction” over Daimler even though that contention was not presented by Daimler to the lower federal courts and was first raised in a footnote when the case reached the Supreme Court.
The Supreme Court’s justices are plainly committed to denying authority to America’s courts to deal with injustices that occur in foreign lands. They are shaping the constitutional rules of “personal jurisdiction” to achieve this goal. Unless the Court were now to recognize that international terrorism is subject to “universal jurisdiction” like piracy, war crimes, and crimes against humanity — a position argued by friends of the court in the recently decided litigation and rejected in a footnote by the appellate judges — the prospect that the Supreme Court will reverse the appellate court’s ruling is exceedingly slim.
This does not, however, leave the 11 families that were victims of the 2002 and 2004 terror attacks with no possible recovery of the jury’s award of damages against the Palestinian Authority and the PLO. A report of the Congressional Research Service issued a few months ago noted that United States’ financial assistance to the Palestinian Authority and to Palestinian projects assisted by the United States Agency for International Development (“AID”) has exceeded $400 million annually since 2008. Congress should direct that a portion of these appropriated funds be diverted this year to pay at least the compensatory-damages part of the judgment that the federal appellate court has vacated because of the jurisdictional limitation.
Moreover, the jurisdictional limitation against suing foreigners for damages caused by terrorism committed beyond America’s borders does not apply to criminal prosecution. It is well-established that American criminal law extends to crimes committed abroad against American citizens. The Department of Justice has initiated criminal proceedings and successfully extradited individuals who have murdered US citizens in foreign countries around the globe. But the United States Department of Justice has shamefully never charged a terrorist responsible for killing or maiming an American citizen in Israel. These are indisputably criminal acts under American law, and the Justice Department’s failure to prosecute and to seek the extradition of these criminals is a patent dereliction of duty. The appeals court’s decision barring civil liability leaves criminal prosecution in an American court as the most effective remedy to put the killers of Americans back “on the hook.”
Nathan Lewin is a Washington lawyer who has argued 28 cases in the United States Supreme Court and teaches a seminar on Supreme Court litigation at Columbia Law School.