‘Very positive,’ relatives say of case against PLO for murder of Ari Fuld reaching Supreme Court
“Wherever in the world, if you’re an American citizen, the
protection of the United States follows you around,” the lawyer Kent
Yalowitz told JNS.
JNS
Apr 7, 2025
PA head Mahmoud Abbas vows Pay-for-Slay will be continued
When Kent Yalowitz, a partner at Arnold
and Porter, stood before the U.S. Supreme Court on April 1 to argue for
accountability from the Palestinian Authority and the Palestine
Liberation Organization, he saw it as the culmination of 21 years and
cries for justice from dozens of families of U.S. victims of terror
abroad.
“The case is old enough to go to law school,” Yalowitz told JNS, of Fuld v. PLO, one of two cases that the high court heard that day.
“It’s not like foreclosing a mortgage or something,” he said. “These folks are really harmed, badly harmed.”
In a lengthy and, at times, fiery two-hour
session, Yalowitz urged the justices to uphold the constitutionality of
the 2019 Promoting Security and Justice for Victims of Terrorism Act,
which expands the 1992 Anti-Terrorism Act to allow Americans harmed by
overseas terror attacks to sue foreign entities, including the
Palestinian Authority and the Palestine Liberation Organization, for
damages in U.S. courts.
The case before the Supreme Court aims to
deter the authority and the PLO from compensating terrorists and their
relatives via “pay-for-slay.”
“Having liability for terror attacks is a
way of deterring bad conduct,” Yalowitz told JNS. “Any time that you
have the tort system functioning on an organization, you encourage that
organization to engage in better conduct.”
“The PLO and the PA function in a lot of
ways as government entities,” he said. “If they are held liable and
required to pay damages as a consequence of supporting terrorism, it’s
more likely that they’ll stop supporting terrorism. That would be good
for the world.”
‘Better late than never’
The case heard on April 1 stems from
Palestinian terrorist Khalil Jabarin’s 2018 murder of Ari Fuld, a
U.S.-Israeli citizen he fatally stabbed outside a supermarket in Gush
Etzion. (Jabarin’s age at the time has been reported variously as 16 or
17.)
Backed by the U.S. Justice Department,
Fuld’s family argued that the Palestinian Authority’s and the PLO’s long
standing policies of paying terrorists and their families—including
Jabarin, who was recently released from prison as a part of Israel’s
hostage deal with Hamas—fall under U.S. court jurisdiction under the
2019 Justice for Victims of Terrorism Act.
Hillel Fuld told JNS that Ari Fuld’s case
making it to the Supreme Court “in no way makes me feel less devastated
about losing my brother.”
“I think it’s more symbolic than
financial. When we won the case against Iran—$91 million—obviously, no
one’s seen that money,” he said. “But it sent a message. Iran was being
held accountable. The PLO should be, too.”
“As my mother has said, we’d obviously
rather not have the money. But given where we are now, I think this is a
very positive development,” Hillel Fuld said. “The PLO is mistakenly
regarded as a moderate organization when in reality, the PLO is Hamas in
a suit.”
“They are in no way moderate, and neither
is Abbas. They’ve been paying a salary to the family of Ari’s killer
since the day he was murdered. It’s morally repugnant,” he told JNS.
“The PLO should have been held accountable years ago. But this is a step
in the right direction. Better late than never.”
Miriam Fuld, the widow of Ari Fuld,
traveled to Washington with her and her late husband’s children to
attend the Supreme Court hearing.
“Ari lived his life protecting the Jewish
people and standing up for truth and justice,” Miriam Fuld, the lead
plaintiff in the case, told JNS. “That’s exactly what we came to do here
at the Supreme Court today.”
“Living in Israel and fighting on the
front lines, our trip to D.C. reminded me, and showed my kids, that we
do have allies who support us,” she said. “Together, we’re determined to
stand against the hate and evil that threaten us all.”
‘Very emotional’
Yalowitz, the Arnold and Porter partner,
has been involved in related litigation since 2013, when he became lead
attorney for the plaintiffs in Sokolow v. Palestine Liberation Organization, a suit that victims and families of victims of terror attacks in Israel between 2001 and 2004 filed in 2004.
The case yielded a $655.5 million jury
verdict in 2015, after a seven-week trial in Manhattan with 50 witnesses
and an anonymous jury.
“I took the case because it was clients
who needed a lawyer, and it seemed like they had a valid claim,”
Yalowitz told JNS. “When we went to try the case, it was very
emotional—very difficult for a lot of the clients, but they did it, and I
was really proud of them.”
“All these years later, I’ve been trying to find a way to uphold the jury verdict,” he said.
The U.S. Court of Appeals for the Second
Circuit overturned the Sokolow verdict on jurisdictional grounds.
Congress responded by passing the Promoting Security and Justice for
Victims of Terrorism Act, which states that foreign entities consent to
U.S. jurisdiction if they engage in specific conduct, such as providing
financial rewards to terrorists who kill Americans or operating within
the United States.
Yalowitz argued before the court that the
PLO’s actions were “knowing and voluntary” and didn’t violate due
process, since U.S. law provides such clear warnings of what triggers
U.S. jurisdiction automatically.
“The United States can take many actions
in response to terror activity abroad by the PLO and P.A. that kills
American citizens,” he told the court. The PLO claims “that bringing a
civil action crosses a red line and is unconstitutional under the due
process clause,” he told the court. “That is incorrect.”
“Respondents had an opportunity to stop,”
Edwin Kneedler, the deputy U.S. solicitor general, who argued for the
U.S. government, told the court, of the PLO’s “pay-for-slay” program.
“They could stop making payments that
incentivize terrorism, or stop engaging in activities in the United
States,” he said. “They chose not to.”
Mitchell Berger, who represented the PLO,
urged the court to affirm the Second Circuit’s ruling that struck down
the statute, arguing that it stretched constitutional protections too
far.
“Congress may not drag foreign defendants
into federal court just by saying they’ve consented,” Berger told the
Supreme Court. “That’s not what the due process clause permits.”
The PLO’s maintenance of a U.N. mission
and limited public outreach in the United States do not meet the
constitutional standard for jurisdiction, Berger argued.
That line of reasoning met resistance from
the high court bench. Several justices pushed for a higher level of
deference to the other two branches of government, especially in a case
concerning international affairs.
“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,” Associate Justice
Brett Kavanaugh said.
“Unless it crosses some other textually or
historically rooted constitutional principle, courts shouldn’t be
coming in and saying, ‘Gee, what Congress and the president are doing
here strikes us from our perch as unfair,’” he added.
Associate Justice Neil Gorsuch told Berger
that “you are asking us to step into a space that the executive and
Congress have deliberately entered together.”
Elena Kagan, another associate justice on
the court, questioned whether allowing such a statute would risk
reciprocal treatment of U.S. citizens abroad, potentially opening “cans
of worms” to foreign governments claiming jurisdiction over Americans.
“You don’t worry that Congress opening the door this way invites other countries to do the same?” she asked.
“As I said to Justice Kagan, I think it’s
the most important thing—that wherever in the world, if you’re an
American citizen, the protection of the United States follows you
around,” Yalowitz told JNS. “That’s as simple as it gets.”
The case’s outcome could set a precedent
for future litigation against foreign entities accused of terrorism,
including potentially opening the door for U.S. victims of the Hamas-led
Oct. 7 attacks, and relatives of those victims, suing the
U.S.-designated terror group in U.S. courts.
The plaintiffs are “cautiously
optimistic,” about both the Supreme Court’s decision and the odds of
receiving monetary compensation from the PLO, Yalowitz told JNS. A final
decision is expected by the end of June.
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