By The Epoch Times | Created at 2025-04-02 04:13:49 | Updated at 2025-04-03 05:23:26
1 day ago
A lower court previously ruled in 2023 that a law authorizing the lawsuits was unconstitutional.
The U.S. Supreme Court on April 1 seemed to lean toward upholding a law that empowers Americans harmed by terrorist attacks abroad to sue in U.S. courts.
Mariam Fuld sued in federal district court in New York after her husband Ari Fuld was killed near a West Bank shopping mall in 2018 by a Palestinian terrorist allegedly incited by the Palestine Liberation Organization (PLO). Other victims of terrorism and their families also sued in the same legal proceeding, according to the petition filed on July 3, 2024.
The case is actually two cases—Fuld v. PLO and United States v. PLO—that were heard together.
The legal issue is whether the extraterritoriality provisions of the federal Promoting Security and Justice for Victims of Terrorism (PSJVTA) Act are consistent with the due process clause of the Fifth Amendment to the U.S. Constitution, according to the petition.
In 2019, the PSJVTA amended the federal Anti-Terrorism Act, which had created a right for victims of terror attacks committed against Americans outside the United States to sue in U.S. courts. The Anti-Terrorism Act was inspired by a lawsuit brought against the PLO for the 1985 killing of wheelchair-bound American cruise ship passenger Leon Klinghoffer “who was shot in the face and thrown into the sea by PLO hijackers,” the petition said.
The PSJVTA provides that the PLO and the Palestinian Authority are deemed to have consented to be sued in U.S. courts if they hand out payments “to terrorists for killing or injuring Americans.” The Palestinian Authority operates a so-called martyrs’ fund that sends money to the families of Palestinians killed, imprisoned, or injured when committing acts of violence against Israel.
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After a seven-week trial, a jury held in January 2022 that PLO and Palestinian Authority employees were “acting within the scope of their employment, [and] had planned or participated in each of the attacks.” The plaintiffs, including Fuld, were awarded $218.5 million for damages, a figure that was then tripled under federal law.
The U.S. Court of Appeals for the Second Circuit reversed in September 2023, finding the lower court erred because the PSJVTA was unconstitutional.
The Second Circuit found U.S. courts could not hear the case because the defendants were “at home” in “Palestine” and because the acts complained of took place “entirely outside the territorial jurisdiction of the United States.” Jurisdiction refers to a court’s official authority to render legal decisions.
The Second Circuit also found that the Fifth Amendment precludes the inference that a defendant has consented to federal jurisdiction without receiving a “governmental benefit” in return, and that in this case neither the PLO nor the Palestinian Authority had taken in such a benefit, according to the petition.
During the oral argument on April 1, Fuld’s attorney, Kent Yalowitz, said that the PLO and the Palestinian Authority have acknowledged in the case that the U.S. government may prosecute them for “terror activity abroad … that kills American citizens” without violating due process rights.
Yet they argue that “bringing a civil action crosses a red line and is unconstitutional under the due process clause,” he said.
“That is incorrect. The federal government’s sphere of sovereignty is sufficiently broad that it follows American citizens wherever in the world they might travel.”
Justice Amy Coney Barrett told Yalowitz that there are “competing lines of precedent” on how the Fifth and 14th Amendments deal with bringing foreign entities into U.S. courts.
Allowing the inconsistencies to remain intact might be the best course of action, Barrett said.
“Stay the course with the Fifth Amendment precedent, and, if they’re in tension, so be it?” she summarized.
Yalowitz replied, “This is not the case to resolve how the court should deal with 14th Amendment cases.”
Prior precedents need not be overruled to assert that “the sovereign power of the government is sufficient to protect Americans abroad,” the attorney said.
Deputy Solicitor General Edwin Kneedler said that on “all issues of national security and foreign policy,” Congress is “entitled to great deference.”
“The act providing for jurisdiction here is eminently fair and does not deprive Respondents of due process,” Kneedler said.
Justice Brett Kavanaugh agreed that the legislative and executive branches were entitled to respect.
“Congress and the president are the ones who make fairness judgments when we’re talking about the national security and foreign policy of the United States,” the justice said. “Unless it crosses some other textually or historically rooted constitutional principle, courts shouldn’t be coming in.”
Justice Elena Kagan asked Kneedler if the government was troubled by the idea that “anything Congress says goes.”
“Is that because there would be foreign policy implications that would result from an extremely broad congressional assertion of jurisdiction over foreign nationals?” she said.
Kneedler said, “There could well be problems with other countries’ reactions to that and … retaliation perhaps.”
Mitchell R. Berger, attorney for the PLO and the Palestinian Authority, asked the justices to uphold the Second Circuit’s decision.
Even pirates are entitled to due process, he said.
Berger said that since the nation’s founding era, “nobody” has thought that Congress could dispense with “all that trouble of finding, extraditing, or renditioning the pirate.
“We’ll just try him in absentia. That’s never been the law and that’s because due process requires something more than what Congress prescribes.”
Justice Clarence Thomas asked Berger to explain his argument that the PLO and the Palestinian Authority are “persons” given status by the Fifth and 14th Amendments.
Berger said that, according to Supreme Court precedents, only sovereigns are “excluded from the due process clause.” Sovereigns are rulers or states that govern their territories and populations free from external interference.
The lawyer said in a 2018 brief filed during an earlier stage of this litigation, the government said that the Palestinian Authority and PLO “are not recognized as sovereign by the United States, [so] they are by default persons entitled to due process protection.”
The Supreme Court is expected to rule on the case by the end of June.
