‘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.
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.
No comments:
Post a Comment