The Second Circuit US federal appeals court on Tuesday is due to hear the Palestinian Authority’s appeal against a historic $655.5 million civil wrongful death judgment against it for involvement in six militant attacks during the Second Intafada.
The judgment, handed down by a Manhattan jury in US federal district court in February 2015, was the first massive judgment ever against the PA in the US and one of the first major "anti-terror" judgments, along with the September 2014 judgment against Arab Bank for terror financing.
Many observers have said that together the judgments could change the playing field in making it easier to successfully sue in US courts groups which finance or indirectly support militant groups.
The PA’s appeal and representation have been led by Gassan A. Baloul and Mitchell R. Berger of Squire Patton Boggs LLP.
The plaintiffs, represented by Nitsana Darshan-Leitner of Shurat Hadin – Israel Law Center and Kent Yalowitz of Arnold & Porter, 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 in the case during the Second Intifada. In those attacks, 33 were killed with hundreds injured.
The case featured a host of all-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 break-down of her family following the murder of her father, Scott.
In their appeal, the PA tries to throw out the judgment against it with a bigger picture attack on the US Anti-Terrorism Act’s (ATA) application, in particular claiming that there was no jurisdictional basis for the US to have held a lawsuit against Palestinians, the PA and the PLO in the first place.
The PA wrote, “Plaintiffs to seek to create for Defendants an untenable whipsaw: Not sovereign enough for purposes of the ATA and FSIA, but to 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,” in a reply brief relating to the appeal.
Here, the PA claims that anywhere, US law might save it from being sued in the US for activities which occurred in Israel and not in the US, it is not being treated as a state, but anywhere that makes it easier to sue it in the US, it is being treated as a quasi-state. The PA even goes one step more noting that if the US recognized Palestine as a state, then the plaintiffs could never have sued it under the ATA as it would have had sovereign immunity from being sued as a foreign country.
The PA cites three recent rulings by other courts which dismissed similar ATA cases citing a lack of personal jurisdiction by US courts over the foreign defendants.
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.
Next, the PA says that it does not engage in a commercial activity in the US which might bring it under personal jurisdiction. It says that its only activities in the US are its embassies to the UN in New York and to the US in Washington, DC, both of which merely relate to diplomacy issues.
The plaintiffs have countered that the PA’s arguments fly in the face of years of ATA cases and would essentially tear the heart out of the ATA and defeating its purpose by making it much more difficult to file civil cases relating to terror incidents.
They also argue that the PA, however limited, has a continuous presence in the US for decades by virtue of its embassies.
Next, they point out that the PA gets enormous annual US aid. The plaintiffs note that this aid was conditioned on the PA fighting terror and that it is highly appropriate to take the PA to task for doing the opposite during the Second Intifada.
Debating whether the attacks were aimed at US citizens specifically or were only targeted at Israelis and simply happened to incidentally catch some US citizens who were residing or touring there, the plaintiffs say the attacks were aimed to influence US policy with the Palestinians.
They also make some technical arguments which they say should fulfill the personal jurisdictional requirements, such as that the PA appointed a registered agent for handling legal proceedings in the US.
Moreover, they say that the PA is trying to raise new personal jurisdiction arguments that should have been raised in 2011, but were not raised until 2014 and were dismissed by the lower court for that reason.
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 another bite at the apple of killing the case due to jurisdiction.
The plaintiffs reject this both because they said the principles in the new case could have been argued based on older cases. Also, they note the lower court had ruled that since the PA and PLO are stateless entities with no real jurisdictional home, they might as well be sued in the US and are an exception to the new case limiting suing for foreign "terror" issues.
The PA’s appeal also attacks the lower court proceedings for allowing the plaintiffs’ experts to describe a wider narrative about terror by the PA instead of keeping their testimony focused on specific areas of expertise.
In contrast, the plaintiffs say their experts’ testimony was heavily policed by the lower court and that all of it was permissible.
In a big win for the plaintiffs, the PA did not attack the validity of Israeli West Bank Court judgments as invalid for being used as evidence, though they had tried to attack them in the lower court.
Yalowitz at the time stated, “The message is clear. If you kill or injure Americans overseas, you can expect the long arm of American law to follow you and bring you to justice.”
At the time of the February judgment, Shurat Hadin’s Nitsana Darshan-Leitner said, “The defendants have already been boasting that they will appeal the decision and we will never collect on the judgment – but we will go to the end of the earth to collect it.”
Darshan-Leitner said that even presuming they win the appeal, they would still need to keep an eye on the US State Department at the collection stage. The State Department already intervened once to help the PA obtain a much lower bond for filing appeal than normally needs to be posted.
There are concerns that at the collection stage, the State Department could file a statement of interest and try to free the PA from a significant portion of the judgment, warning otherwise that it could collapse.
Besides that scenario, Yalowitz has been open to settlement talks, but until now the PA appears to have wanted to put off contemplating a settlement hoping to win on its appeal.
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