In a recent court filing in the Supreme Court of the United States, the Department of Justice sided with terrorists in a lawsuit brought by the families of United States citizens who were killed or injured in horrific terrorist attacks while traveling in Israel. In doing so, the Department not only abandoned the victims but also refused to defend an act of Congress whose sole purpose was to provide the families of U.S. citizens killed or injured abroad by terrorist organizations a remedy in the courts of the United States. Is President Trump, who is not enamored of the Department’s head, Attorney General Jeff Sessions, aware of what the Department is doing in the name of the United States?
Some background. As many might recall, in 1985, Leon Klinghoffer, a 69 year-old Jewish American was on a cruise on the Achille Lauro ship with his wife to celebrate their 36th wedding anniversary. On October 7, hijackers from the Palestine Liberation Front took control of the liner off the coast of Egypt, demanding the release of Palestinian prisoners being held in Israeli jails. The hijackers singled out Klinghoffer for death, shooting him in the forehead and chest as he sat in his wheelchair. They then threw his body and wheelchair overboard.
As a direct response to this act of terrorism against a United States citizen, Congress enacted the Anti-Terrorism Act to “ensure that * * * a remedy will be available for Americans injured abroad by senseless acts of terrorism.” The law granted any U.S. national injured by international terrorism the ability to sue those responsible in federal court in the United States.
In 2004, eleven American families sued the Palestine Liberation Organization under the Anti-Terrorism Act for various terror attacks that occurred in Israel in 2002 that killed or wounded their family members who were United States citizens visiting Israel. (The Anti-Terrorism Act is not limited to terrorist attacks in Israel but extends to any U.S. citizen injured in any such attack anywhere in the world, such as the murder of Leon Klinghoffer off the coast of Egypt). The attacks included one where members of the Palestine Police Authority opened fire on a pedestrian mall in Jerusalem, killing two individuals and wounding forty-five others as well as several suicide bombing attacks in Jerusalem which killed many individuals, including four U.S. citizens, and grievously wounded numerous others, including a seven-year old American child.
The case was called Sokolow v. PLO. After a seven-week trial, a jury found that the PLO perpetrated the attacks. The jury awarded the victims damages of $218.5 million, an amount that was trebled automatically under the Anti-Terrorism Act, bringing the total award to $655.5 million.
The PLO appealed the jury’s judgment to the Second Circuit Court of Appeals in New York. In 2016, the court of appeals reversed the lower court’s judgment on technical jurisdictional grounds. It held, in effect, that it would be “unfair” to force the terrorists to answer for their acts in a United States court, which was precisely Congress’ intent in passing the anti-terrorism law in the first place. The court of appeals was of the view that enforcing the law as written would offend “traditional notions of fair play and substantial justice.” The appellate decision effectively eviscerated the Anti-Terrorism Act.
The victims in the case appealed to the United States Supreme Court. In determining whether or not to take the case, the Court asked for the views of the Department of Justice on the matter. In a recent filing, the Department urged the Court not to consider the case. The Department did not deny that the appellate court decision runs contrary to congressional intent in originally passing the Anti-Terrorism Act. More remarkably, the government’s filing did not even attempt to argue that the court of appeals’ decision was correct in spite of the fact that the appellate decision flatly contradicted previous positions set forth by the Department of Justice in other cases. Instead, even after fourteen years of litigation in this case, the Department argued that the important issues presented in this case were “premature” and should await “further development.”
Without deciding whether or not the Second Circuit Court of Appeals was right or wrong in depriving U.S. citizens of compensation for acts of terrorism committed abroad, at a minimum, the issues presented are at least significant enough for the Supreme Court to take up the case and decide whether of not the Anti-Terrorism Act is constitutional. The Department of Justice’s refusal to defend an act of Congress specifically designed to protect United States citizens should be reconsidered at the highest levels of the Trump administration. The Supreme Court will decide whether to take the case shortly after its next conference on March 29, 2018.
Steve Frank is a retired attorney who spent over 30 years as a career attorney in the appellate section of the United States Department of Justice.