A three-judge panel of the Second Circuit US Federal Appeals Court on Tuesday heard the Palestinian Authority’s appeal against an historic $655.5 million civil wrongful death judgment against it for involvement in six terrorist attacks during the second intifada.
While the New York court asked both sides hard questions, a defining moment occurred when the judges told the PA’s lawyer, Mitchell R. Berger, that his defense could be used to uproot the US Anti-Terrorism Act, which has been one of the major bases to sue foreign terrorists in the US, said sources close to the plaintiffs.
The appealed judgment, handed down by a Manhattan jury in US federal district court in February 2015, was the biggest judgment ever against the PA in the US and one of the first major anti-terrorism judgments, along with the September 2014 judgment against Amman-based Arab Bank for financing terrorism.
Alan Bauer was wounded in the head in one of the attacks and his then-seven-year-old son Jonathan was seriously wounded by shrapnel and fell into a coma. He has subsequently undergone many operations to remove screws and nails, Bauer told The Jerusalem Post after the hearing. He is hopeful for “complete victory.”
He added, “It speaks wonders about the American legal system that the PA gets to appeal the verdict.”
Bauer criticized the US government for “coddling” the PA by substantially reducing the bond it needed to post to appeal, and for failing to “support its citizens” by praising the initial verdict.
At the same time, plaintiffs’ lawyer, Nitsana Darshan-Leitner, of Shurat Hadin, said that they were at most “cautiously optimistic” about beating back the appeal since the judges had been hard to read.
Both sides seemed frustrated that the judges held them to 10 minutes each for making their arguments – time frames which prevented them from putting forth all of their legal ammunition, though plaintiffs believed they got most key points in.
The PA’s appeal and representation have been led by Berger and Gassan A. Baloul of Squire Patton Boggs LLP.
The plaintiffs have been represented by Nitsana Darshan- Leitner of Shurat Hadin – Israel Law Center and Kent Yalowitz of Arnold & Porter.
Their central narrative at trial was that a large volume of PA employees, including numerous policemen and commanders, have been arrested and convicted by Israel as having organized, planned and perpetrated suicide bombings and shootings against Americans in Israel, including the six attacks from 2001-2004 during the second intifada. In those attacks, 33 people were killed, and hundreds wounded.
The case featured an array of star witnesses, including top PLO official Hanan Ashrawi, former top IDF intelligence and military prosecution officials, the current head of the “PA’s CIA,” and heart wrenching testimony from the families of victims, like Chana Goldberg, who brought the jury to tears talking about the breakdown of her family following the murder of her father, Scott.
In their written appeal, the PA had tried to throw out the judgment against it with a bigger picture attack on the US Anti-Terrorism Act’s (ATA) application. The appellants claimed there was no jurisdictional basis for the US to have held a lawsuit against Palestinians, the PA and the PLO in the first place.
In a reply brief relating to the appeal, the PA had written, “Plaintiffs to seek to create for Defendants an untenable whipsaw: Not sovereign enough for purposes of the ATA and FSIA, but too close to sovereign to be entitled to due process. Those conflicting scenarios, and the constitutional limbo they create, cannot co-exist under established Supreme Court and Second Circuit law.”
The PA claimed a double standard.
When US law might save it from being sued in the US for activities which occurred in Israel it was not being treated as a state. But when American law made it easier to sue it in the US, it was being treated as a quasi-state.
The PA had cited three recent rulings by other courts which dismissed similar ATA cases due to the lack of personal jurisdiction by US courts over the foreign defendants. It further argued that its few US connections, including two embassies, engaged only in diplomatic but not commercial activities.
In general, courts cannot handle a case against a defendant unless there is some physical or business connection between a defendant and the country where the court resides.
When the court pressed the PA about whether their argument would uproot most of the ATA’s ability to be used as an instrument to sue foreign terrorist groups in US courts, Berger responded that plaintiffs could sue for attacks planned in the US.
Yalowitz responded at Tuesday’s hearing that if the PA’s personal jurisdiction defense is used to toss the lower court judgment, that the negative impact could open a Pandora’s Box going far beyond civil cases and also impact criminal and antitrust cases, said sources close to the plaintiffs.
To highlight that the attacks were directed not only at Israel, but also at the US, he emphasized that during the second intifada the PA had put out a statement after a bombing at the Hebrew University of Jerusalem, that Americans and US policy would feel pressure to shift toward the Palestinians.
All of these arguments worked into the plaintiffs’ legal brief in which they stated that the PA’s defense flew in the face of years of ATA cases and would essentially tear the heart out of the ATA and defeat its purpose by making it much more difficult to file civil cases relating to terrorism incidents.
Debating whether the terrorist attacks were aimed at US citizens specifically or were only targeted at Israelis and simply happened to incidentally catch US citizens who were residing or touring there, the plaintiffs had said the attacks were aimed to influence US policy with the Palestinians.
Another point at the center of the debate is whether a new Supreme Court ruling on jurisdictional issues which came down in 2014 after the PA had lost earlier jurisdictional fights changed the playing field, and should give the PA a second chance to argue the issue of jurisdiction.
The plaintiffs rejected this on several grounds, including the lower court’s ruling that since the PA and PLO are stateless entities with no real jurisdictional home, they may as well be sued in the US, and are an exception to the new case limiting suing for foreign terrorism issues.
Following the hearing, Darshan- Leitner stated on Tuesday, “The attacks perpetrated by these terrorist groups were directed against American citizens to terrorize the US as well as Israel and to influence both nations’ foreign policy… It’s time the Palestinians are made to pay for the devastation they caused these 11 American families.”
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