by Marc Rod in the Jewish Insider

The Supreme Court is set to hear a case in the coming months to decide whether American victims of Palestinian terror attacks can sue the Palestine Liberation Organization and Palestinian Authority for damages based on support for such attacks through the “pay for slay” program that compensates individuals who have carried out attacks as well as their families.

The Supreme Court cases — Fuld v. Palestine Liberation Organization and United States v. Palestine Liberation Organization, which the court will hear jointly — pertain to a decades-long series of litigation efforts by American terror victims and their families to sue the PLO and PA.

In one case in 2015, a lower court awarded a group of victims more than $650 million. But the 2nd Circuit Court of Appeals has repeatedly ruled as unconstitutional multiple pieces of legislation passed by Congress to assert U.S. jurisdiction over the PLO and PA and enable such lawsuits.

Those rulings have generated what amounts to a back-and-forth between Congress and the courts in which the courts have struck down legislation on the issue and Congress has responded with updated legislation to address those issues and reestablish an avenue for lawsuits.

The current case pertains to a 2019 law, the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA), which Congress passed on a bipartisan basis specifically in response to those previous court rulings, which would assert jurisdiction over the PLO and PA in U.S. courts so long as they conducted activity inside the United States.

The 2nd Circuit sided with the PA and PLO in ruling that the PSJVTA is unconstitutional because it violates the PLO and PA’s due process rights under the Fifth Amendment. The Supreme Court will be ruling on the constitutionality of the PSJVTA.

Alongside the victims, the federal government is defending the constitutionality of the PSJVTA and Congress’ ability to implement and enforce foreign affairs laws.

A group of 17 Jewish and pro-Israel groups filed a brief in the case this week supporting the terror victims: Agudath Israel of America, American Association of Jewish Lawyers and Jurists, the American Jewish Committee, Anti-Defamation League, Christians United for Israel, Coalition for Jewish Values, Endowment for Middle East Truth, International Legal Forum, Brandeis Center, the National Jewish Advocacy Center, One Israel Fund, Orthodox Jewish Chamber of Commerce, Rieders Foundation, StandWithUs, StopAntisemitism, Orthodox Union and Zionist Organization of America.

Mark Pinkert, an attorney at Holtzman Vogel who filed the brief on behalf of the groups, told Jewish Insider that, through repeated legislation, Congress has made its intentions clear.

“Congress said, ‘We want to make sure victims get access to justice, and we think that civil liability is a really important tool for fighting foreign terrorism,’” Pinkert explained, adding that creating such civil liability is part of Congress’ efforts to end the PA’s payment program.

The pro-Israel brief lays out the history of the PLO and PA; the “martyr” payment program and how it has become institutionalized within the PA; and the Americans who have been attacked by terrorists benefitting from such payments. It also lays out the history of congressional efforts to counter the program.

The brief further argues that it is “entirely fair” for the PLO and PA to be subjected to U.S. jurisdiction because they “were on notice that they would be subject to personal jurisdiction if they continued activities in the United States, and if they continued funding terrorism, and it’s undisputed that they’ve done both,” Pinkert said.

He said that the PLO and PA have conducted various activities that would clearly trigger U.S. jurisdiction under the statute, including operating a U.S. office, appearing in U.S. media, speaking on panels at universities and coordinating with individuals at U.S. universities.

“They’re present in America, and they’re exploiting our communications channels and our jurisdiction,” Pinkert said, “so it’s entirely fair and reasonable that they would be subject to civil liability in our courts.”

He argued that even though the PLO’s office in the United States was shuttered during the first Trump administration, its other activities inside the country still clearly make it subject to U.S. law.

Pinkert highlighted the diversity of viewpoints among the signatories to the brief, which he said “reflects the bipartisan nature of the legislation that’s at issue.”

In a further illustration of bipartisan support for the victims and the PSJVTA, the House of Representatives, by unanimous agreement of the top House leaders on both sides of the aisle, also filed a brief in support of the victims.

The House brief argues that if the justices side with the PLO and PA, they would gut Congress’s “constitutional authority to enforce the laws it enacts beyond U.S. borders” and more broadly diminish “Congress’s authority to legislate extraterritorially to advance our nation’s interests … with consequences rippling throughout the U.S. Code,” including undermining anti-terrorism law.

Other groups, including the American Center for Law and Justice, a pro-Israel group, and America First Legal, a conservative nonprofit previously led by Trump advisor Stephen Miller, have also filed briefs supporting the victims.

The case is named for one of the plaintiffs, the family of Ari Fuld, who was killed by a Palestinian terrorist in the West Bank in 2018. The court has not yet set a date for oral arguments, which will be heard this spring.

Pinkert said that the justices’ decision will likely ultimately revolve around questions of whether the Fifth Amendment limits Congress’ ability to pass such legislation; the victims argue that it does not.

Pinkert said that given the court’s current originalist bent, it may favor that interpretation of the intent of the Fifth Amendment, though Supreme Court decisions are often difficult to predict.

He added that, although the Supreme Court is independent, it will be “hard for them to ignore” the strong bipartisan support for PSJVTA and efforts to hold the PA and PLO civilly liable.

“It’s a big deal to strike down a federal statute, and not just any federal statute, but one that has been passed over and over again with bipartisan support and with so many amicus groups supporting the petitioners,” Pinkert said. “On a practical level, I think that’s going to be in the back of the Supreme Court justices’ minds.”

Photo Credit: Washington DC: United States Supreme Court by Wally Gobetz, with CC BY-NC-ND 2.0 license on Flickr