The Supreme Court last week vindicated a common-sense principle: Foreign entities that kill Americans abroad through acts of terror can be held to account in American courts.
Fuld v. PLO marks a turning point in a long legal saga. In 2004 U.S. citizens sued the Palestinian Authority for its role in terror attacks that killed their family members. After a seven-week trial, a New York federal jury found the authority liable.
But in 2016 the Second U.S. Circuit Court of Appeals held that the authority couldn’t be subject to the jurisdiction of federal courts because the acts of terrorism were “unconnected to the forum and were not expressly aimed at the United States.” Congress enacted two laws to establish jurisdiction, particularly on account of the authority’s “pay to slay” policy, the practice “of paying salaries to terrorists servicing in Israeli prisons, as well as to the families of deceased terrorists.” But the Second Circuit held that this law was inconsistent with the Fifth Amendment’s guarantee of due process.
For nearly a decade, the Palestinian Authority occupied an unusual position in American constitutional law. Foreign states aren’t “persons” entitled to due-process rights, and therefore states like Iran can be held liable for acts of international terrorism. But because the U.S. doesn’t recognize the Palestinian Authority as a sovereign state, it enjoyed constitutional due-process protections, which left Congress powerless to hold it accountable for terrorism.
On Friday, the Supreme Court unanimously rejected the Second Circuit’s interpretation of due process. The lower court assumed the Due Process Clause of the Fifth Amendment imposes the same limits on the jurisdiction of federal courts that the Due Process Clause of the 14th Amendment imposes on the jurisdiction of state courts.
But as Chief Justice John Roberts explained, “it makes little sense to mechanically import the limitations that the Fourteenth Amendment imposes on the authority of state courts, which is restricted consonant with the States’ more constrained sovereign spheres.” The constitutional principles of interstate federalism constrain the sovereignty of the 50 states and their courts to act against one another; there is no similar limit on the federal government in relation to foreign actors.
Although the justices didn’t mark the outer bounds of Congress’s authority to create federal jurisdiction with respect to foreign conduct, they held that the exercise of federal jurisdiction was plainly met when it came to the pay-to-slay policy. Citing the Taylor Force Act of 2018, they noted Congress’s “longstanding policy of deterring these sorts of payments, which the United States has determined promote acts of terror that may injure or kill Americans.”
With Israeli cooperation, the plaintiffs should eventually be able to collect damages by attaching Palestinian Authority tax revenue and assets. Then justice will truly have been done.
Sander Gerber is Founder and CEO of Hudson Bay Capital Management. He is a distinguished fellow at the Jewish Institute for National Security of America and a fellow at the Jewish Council for Public Affairs.
Ezra Husney has served as a law clerk for Judge Steven J. Menashi of the Second Circuit and for the Israeli Supreme Court.
Originally Published in the Wall Street Journal.