Crime and Punishment by William Mehlman

 

In the hands of the nine justices of the U.S.  Supreme Court may rest the present and future ability of Israel to drive a spike into the circulatory system of a network of terror that has shadowed virtually every moment of its existence over the last 70 years.

With little wiggle room, the robed eminences are being called upon to put their imprint on two burning questions: First, do diplomatic considerations, however allegedly “sensitive,” preclude execution of a $655.5 million liability judgment against the PLO and its Palestinian Authority affiliate by a duly sworn Southern District of New York jury? Within the framework of Sokolow v. the Palestine Liberation Organization, the case in question, the Court will be tasked with defining the “civil remedies” parameters of the 1992 “Anti-Terrorism Act,” which allows any U.S.  national afflicted in “his or her person, property or business by reason of an act of international terrorism, or his or her survivors or heirs, to sue to recover threefold damages in any appropriate district court of the United States.”

Burning question No.2, to which the justices will have to provide an answer as they weigh the oral arguments they heard last month in Jesner v. Arab Bank, plc, is whether corporations can be sued under international law for human rights violations and terrorism.  Arab Bank, the corporation under scrutiny, headquartered in Jordan and with a branch network that stretches to New York, is one of the Arab world’s elite financial institutions.  The answer to the liability question devolves on the High Court’s interpretation of a law as old as the U.S.  Constitution, the 1789 “Alien Tort Statute,” which allows federal district courts to hear “any civil action by an alien for a ‘tort’ (a civil wrong for which the injured party is entitled to compensation) committed in violation of the Law of Nations or a treaty of the United States.” Relatively undisturbed for the better part of two centuries ATS was brought out of hibernation by 1960s “human rights” groups looking for a peg on which to hang lawsuits seeking relief for abuses beyond U.S.  borders.  The only restriction on its application is that the people or entities sued must have a “real connection to the United States.”

On that criterion both Sokolow v. the PLO and Jesner v. Arab Bank can be credited with perfect three-point landings.  Sokolow pivots on seven terror attacks perpetrated by the PLO between 2000 and 2004, the bloodiest years of the “second intifada.” That long list included, inter alia, the actions of a 17 year-old boy who blew himself and several bystanders up at a crowded bus stop in Jerusalem’s French Hill neighborhood; a bomb detonated by an operative for Hamas (then still part of the PLO) that killed five in a Hebrew University cafeteria; a shooting spree in a crowded Jaffa mall by a man identified as a “Palestinian security officer,” and the wounding of Mark Sokolow, his wife and two daughters in a Jan.  2002 Jerusalem suicide bombing.

In 2004, the families of 11 of those victims – all American citizens — joined the Sokolows in a suit against the PL0 and its PA appendage under the civil remedies provisions of the Anti-Terrorist Act in New York’s Southern District.  Following a seven-week trial in 2015, 13 years later, a jury found them liable for six of the seven attacks enumerated in the filing and awarded the plaintiffs a $218.5 million judgment that, when tripled, came to $655.5 million.  However in what the Lawfare blog headlined as “Another Blow Against Recovery for Foreign Wrongs,” the Second Circuit Appeals Court in New York, bowing to the opinion of a three-judge panel, vacated the jury’s finding on grounds that it “failed the Supreme Court’s test for personal jurisdiction“ in what the panel regarded as a prior similar suit in Argentina — one whose plaintiffs were pointedly not American citizens.

Jesner v.Arab Bank does not involve American citizens, but rather whether corporations can be held immune to suits by non-Americans under the Alien Tort Statute.  Some 6,000 foreign citizens, many of them Israelis, are hanging on the Supreme Court’s answer as it reviews an appeal of a decision by the same Second Circuit Appeals Court in Manhattan that vacated the Sokolow jury award.  The court decided that corporations, including Arab Bank, could not be sued under ATS.

Jonathan
esner

Lead plaintiff in the case is Joseph Jesner, whose 19 year-old son Jonathan, a British citizen and a student at the Har Etzion Yeshiva outside Jerusalem, was killed in a 2002 suicide bombing as the bus he was on approached Tel Aviv’s Great Synagogue on Allenby St.  Hamas claimed responsibility for the act that took five other lives and injured more than 70.  Plaintiff’s lead counsel Jeffrey Fisher of Stanford University’s “Supreme Court Litigation Clinic” charges Arab Bank with knowingly serving as paymaster for the Tel Aviv bus bombing, employing its Manhattan branch in the transfer of money that funded both the operation and rewards to the families of those who carried it out.  “What we allege is knowing and purposeful financing of terrorism,” Fisher submitted in oral arguments last month before the High Court, “with the expectation that it will make those terrorist attacks more successful and more lucrative for the perpetrators, and that is a violation of the Law of Nations.”

There are clearly three separate issues the Supreme Court will have to deal with here: Arab Bank’s assertion that it was engaged in nothing more actionable than a routine automated clearance of the funds in question with no prior knowledge of how or by whom they were to be employed; the still unsettled question of corporate liability, if any, under ATS; and whether the rule of law must be tailored to America’s diplomatic interests.

On the first count, Arab Bank’s self-portrayal as a mere processing mechanism for the clearance and movement of the funds of a globally recognized terrorist entity, in name and pseudonym, should be a flashing red light to the Supremes.  Moving that money through a New York branch is what the U.S.  Justice Department has properly labeled “foreign misuse of domestic banking instrumentalities.” The Jesner victims say they have solid evidence that Arab Bank “used its New York branch to transfer millions of dollars that were employed in the financing of terrorist attacks between 1995 and 2005 in Israel, the West Bank and Gaza.” The bank’s counter-claim in Court papers that the U.S.  government has deemed it a “constructive partner” in the fight against terrorism financing, as Robert Barnes reports in the Washington Post, seems highly implausible.

Arab Bank’s hopes for total corporate immunity to suit under ATS don’t look all that bright either.  Bolstering Jeffrey Fisher’s argument that “no business should be allowed to reap the benefits of incorporation while claiming immunity from liability for noxious acts such as terrorism, slavery or genocide,” Reuter’s legal correspondent Alison Frankel avers that “by my read, the Second Circuit prohibition on ATS suits is doomed.” Echoing Frankel, University of Virginia’s Barron F.  Black’s Research Professor of Law George Rutheralem asserts that “the proposed exclusion of corporate liability in Jesner appears little more than an attempt to close the door to human rights in Federal Court.”

If Rutheralem’s passionate investment in “principled lawmaking” falls by the wayside in the Supreme Court’s decisions in Jesner and Sokolow it may be difficult to interpret it other than as cover for the perpetuation of a State Department Middle East policy with a nearly unblemished record of failure.  Resting on the specious contention that the courts must at all costs avoid involvement in foreign policy, it has plunged them ever deeper into that entanglement with its pressure to make the dispensation of justice compliant with presumed diplomatic imperatives.  Shall we award the PLO free exit out of a $655 million trail of blood it left across Israel in the second intifada because, as former New Republic legal reporter-researcher Yishai Schwartz laments, it is “already teetering on insolvency?” With an estimated $600 millon a year flowing into its coffers, $400 million alone out of U.S.  taxpayers’ pockets, the PLO isn’t teetering on anything but a marginal threat to the royal lifestyles of its managerial benefactors.  Are U.S.  relations with Jordan so “frayed,” as one observer cautioned, as to risk rupture were Arab Bank compelled to satisfy a penalty consistent with the death and injury and broken lives its accommodations with Hamas have strewn across the face of Israel? King Abdullah’s other options could be listed on the back of a postage stamp.

The Supreme Court will have until June to ponder its decision on Jesner v.  Arab Bank.  Action on Sokolow v.  the PLO could come sooner.  In a rare display of bipartisanship, 66 members of the House of Representatives — 34 Republicans and 32 Democrats – and 24 Senators from both sides of the aisle have filed Amicus briefs to a letter from New York Democratic Representative Kathleen Rice to U.S.  Solicitor General Noel Francisco requesting immediate action on a request by the Supreme Court for a Trump Administration outline of its position on Sokolow.  “As members of Congress.” the letter reads, “we have a compelling interest to speak out in defense of the Anti-Terrorism Act passed with overwhelming bipartisan support and in support of these American victims waiting for justice.* We ask you now to expedite the response of the Solicitor General and request fair and full consideration of the views herein.” A reply is still being awaited.

 

*The Jan.  2002 suicide bombing on Jerusalem’s Jaffa Road that severely wounded the Sokolow family and 146 others was set off by Wafa Idris, the PLO’s first female suicide bomber.  The Palestinian Authority designated her a “martyr” and has been paying her family monthly stipends over the past 15 years. 

 

William Mehlman represents AFSI in Israel.

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