Supreme Court revives terror victim lawsuits against Palestinian groups

The Supreme Court on Friday upheld a law allowing Americans injured by acts of terror in the Middle East to take Palestinian leadership groups to U.S. courts for damages. 

In a unanimous decision, the justices ruled the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA) does not violate the Palestinian Authority (PA) and Palestine Liberation Organization (PLO)’s due process rights by forcing them to consent to federal courts’ authority.

The decision means lawsuits by U.S. victims of terrorist attacks in Israel can move forward in American courts.

“It is permissible for the Federal Government to craft a narrow jurisdictional provision that ensures, as part of a broader foreign policy agenda, that Americans injured or killed by acts of terror have an adequate forum in which to vindicate their right to [Anti-Terrorism Act] compensation,” Chief Justice John Roberts wrote for the court. 

The justices reversed the U.S. Court of Appeals for the 2nd Circuit’s ruling finding the law denied the groups a fair legal process and directed the lower court to hold further proceedings consistent with the court’s opinion.

Congress enacted the law in 2019 to let victim lawsuits move forward against the PA and PLO, responding to a series of court decisions that found the victims' families had no jurisdiction to sue.

The justices consolidated two cases for arguments in April, a Justice Department appeal and an appeal by the family of Ari Fuld, an Israeli American fatally stabbed at a shopping mall in the West Bank in 2018.

The Justice Department argued that Congress determined the PA and PLO would be made open to U.S. civil suits if they made payments to representatives of terrorists who injured or killed Americans or maintained a certain presence in the country.  

Former U.S. Solicitor General Elizabeth Prelogar, who held the role in the Biden administration, wrote in court papers that a lower court’s finding those conditions fall short rests on a “rigid and misconceived” application of the law.

The Biden administration initially intervened in Fuld’s case — which received bipartisan support, including through a friend-of-the-court brief authorized by Speaker Mike Johnson (R-La.) and House Minority Leader Hakeem Jeffries (D-N.Y.) — and another case brought by 11 American families who sued the Palestinian leadership groups two decades ago for several attacks in Israel, winning more than $650 million in a 2015 trial. 

In April, under the Trump administration, Deputy Solicitor General Edwin Kneedler argued before the justices that the legislative and the executive branches together determined it would prevent terrorism to find the PA and PLO consented to jurisdiction in federal courts. The justices should not override that assessment, owing both branches “virtually absolute deference,” he said.

An attorney for the PA and PLO argued personal jurisdiction is “over and above” what Congress can prescribe. He pointed to piracy as an example, noting that while piracy has been illegal since the nation’s founding, “no one” thought Congress would let pirates be tried in the U.S. without being present there.

“That’s never been the law,” attorney Mitchell Berger said.

Justice Clarence Thomas wrote in a concurring opinion, joined in part by Justice Neil Gorsuch, that he would have gone a step further to define the boundaries of the Fifth Amendment’s due process clause — a question the high court ultimately left for another day. 

“I am skeptical that entities such as the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) enjoy any constitutional rights at all, let alone qualify as 'person[s]' for purposes of the Fifth Amendment," Thomas wrote.

Updated at 11:05 a.m. EDT