The New York Times called it again — it’s a “huge victory” that will “strengthen Israel’s claim that the supposedly more moderate Palestinian forces were directly linked to terrorism.” The U.S. District Court located in Manhattan found the Palestine Liberation Organization (PLO) and the Palestinian Authority liable for damages in terrorist attacks on American citizens who were in Israel between 2002 and 2004.
We get it . . . in this polarized world in which Rudy (Giuliani) wakes up enough to have the gall to be agnostic or “not know” whether President Barack Obama, the Commander-in-Chief, loves his country, and Gov. Scott Walker of Wisconsin doesn’t know if Obama is “a Christian” or not, we know one thing for sure — it’s complicated, and unintended consequences will abound.
The good/bad in this federal court’s territorially expansive ruling substantiating the Obama administration’s, the Democrats’, and the Republicans’ (i.e. Americans) support of the American Anti-Terrorism Act is that it gives all Americans (and their relatives) standing to sue if they are victims of international terrorism.
How is terrorism defined? First, it involves violent acts or “acts dangerous to human life” that are against American law. Second, terrorism is used to intimidate or coerce Americans or our government, or make the government alter its conduct. And third, these violent acts are generally outside the U.S.
Given how opposed the United States (Republicans and Democrats alike) has been to signing international treaties, many Americans (particularly law professors) suggest that we should tread lightly on transnational regulation, whether it affects the Internet or the environment, and particularly when it affects us as civilians, not just as civilians within the United States, and when the United States has to act to protect its national-security interests or its interests as a sovereign nation-state.
What this means is – if U.S. private citizens sue as victims of international terrorism, floodgates will open. Now I’m all for open gates. I’m participatory democracy that certainly includes using the courts. That said, how many citizens will these open gates accommodate?
In September 2014, a Brooklyn jury found Arab Bank ($46 billion in assets) liable for “knowingly supporting” terrorism by Hamas in the second Palestinian uprising. We don’t know the damages yet, or how much the 300 victims of 24 separate attacks will be paid, but a quick click onto Osen Law gives you a temperature read on what their litigators will be asking for, and it won’t be a small amount.
Is that good if you’re Zionist; bad if you’re PLO? Yes, for now. The real story, however, will be tracking how this nation-state and any American nationals will be using the American courts to sue foreign nations and foreign private enterprises like banks that don’t necessarily explicitly reflect our nation-state’s national security.
This is an equal-power tool for all citizens. It is a tool for everyone. So the big story is about jurisdiction — and jurisdiction is hard to wrap your head around or understand.
It is something I happen to dabbled in having grounded my last book in a spatial understandings of neotribalism internationally and of Obama’s grounding himself in the use of conservative means or methods for progressive purpose (such as the federalism underlying Obamacare and the bounceback he’s facing before the Supreme Court this June). Further, this has been one of my favorite topics to write about — due process and procedures since my dissertation turned into my first book.
In Workers’ Paradox: The Republican Origins of New Deal Labor Policy, I discovered it was Chief Justice William Howard Taft who not only liked being Mr. Jurisdiction (establish the rules and then gain the power) but relished backing the American Judiciary Act of 1925, which involves one more power-grabbing turn by increasing the federal courts’ discretion in deciding what issues to hear.
When it’s courts fighting nations, it’s all about lines, not identities — about standing (to sue), not sitting (being disengaged and discussing it in the U.N.).
An institution or a country gains power if it can 1) entice the sovereign nations who are battling into its own jurisdiction (think sinkable waters) and 2) sink the right ships in these dangerous waters at the right time.
Now, will this come back to bite the United States as a sovereign nation? Absolutely.
Will one of our frenemies as a nation-state establish moral superiority (e.g. universal jurisdiction that those pesky moralistic nation-states like Spain are adopting to gain the moral high ground against the United States)? Probably.
Do we have the moral authority as a nation to skip recognizing UN treaties such as the Convention on the Rights of the Child. I dunno. Do you?
What a power play in terms of clashing cultural courts on a global scale.
EDITOR FRED*: Despite the entirely justified outcome, conservatives have reason to be uneasy about this case, because if the plaintiffs are allowed to seize the PA’s assets, there’s nothing stopping any other country from putting Uncle Sam on trial and seizing his assets (or Israel’s, for that matter). That’s if they bother with the formality of a trial at all.
It has been suggested that this verdict will make people overseas hate America even more than they already do. I’m not sure I can quite picture that:
“Hey, Abdul, let’s go sign up with the PLO. All the cool kids are joining.”
“I don’t know, Mohammed. I’m actually getting kind of ambivalent about the whole terrorism thing. Sometimes I think it just perpetuates the cycle of violence and makes a fair and equitable solution even harder to negotiate.”
“Wait a minute, dude — check out this case from the Southern District of New York. Raises serious jurisdictional issues, wouldn’t you say?”
“What!? Why, that’s a completely unjustified extension of the principle of extraterritoriality. I feel like strapping on a bunch of explosives and blowing up some tourists!”
The bad guys deservedly lost in this case, and of course they merit the most severe punishment possible. Still, the interests of maintaining America’s global position, and its need to follow international norms, must predominate, even when dealing with perps as abhorrent as these. It’s far from clear whether the plaintiffs will actually be able to recover anything, but enforcing a court order against the government of a sovereign nation — or even (as in this case) the quasi-government of a quasi-sovereign quasi-nation — could well be considered tantamount to war, and at the very least would invite reprisals. It would also undercut the United States’ case against submitting to the jurisdiction of the International Criminal Court, or to courts in places like Belgium and Spain that claim “universal jurisdiction” over what they deem to be human-rights violations.
The trial had undeniably positive aspects. It established beyond a reasonable doubt that the PA and PLO are terrorist groups. And since, as the article notes, these organizations have settled two prior terrorism cases on confidential terms, the victims may get some relief after all. To be sure, courts should not be vehicles for making statements, and international relations are normally best conducted through diplomacy. But with something as extreme as terrorism, lawfare does have a role to play, and if the victims of these horrific acts can get a measure of both compensation and vindication, the trial can be considered a success.
*Frederic D. O’Brien’s views are entirely his own. They do not reflect The Graduate Center at the City University of New York or The City University of New York.
by Professor Ruth O’Brien & Frederic D. O’Brien (a.k.a. Fred Schwarz, Deputy Managing Editor, National Review)
Could you get more moralistic? Don’t forget the Golden Empire, or The Embarrassment of Riches, as Simon Schama called it in a culturally sensitive and astute book that captured the character and personality of the nation. Could you get more patronizing (the key word here is patron)?
Well the Dutch could. Those supposedly blond, blue-eyed stoop-sweepers have started a new magazine, DeMoslimkrant, which might be roughly translated as the demos or citizens’ newspaper. The name of this magazine indicates that it is doing no less than re-educating the Muslims about their own society, culture, and religion.
Now, don’t get me wrong. I got informally educated quite extensively in Holland, so much so that a few people in the nuclear family speak fluent Dutch. Still, although the Nederlanders are moralistic, they are also bound and determined to make things “right.” And by right, I mean the world (think globe-turning) for sure. Not only does it pay to look at Schama’s The Embarrassment of Riches, but also to take a second look at Spinoza’s excommunication, and where he was imprisoned by the Dutch.
But is a magazine-reading education ever so wrong? Well, of course that depends. As long as they are culturally sensitive, and even more importantly, as long as they are using education for real reasons (i.e. authentic), it should be all right.
Authentic education is to say not imposing the white, blond-blue-eyed’s own agenda, as patronizing behavior does. With this in mind, take a look at their columnists. Looks a lot more diverse than most American newspapers, no?
Authentic means that they cannot impose their agenda the way they did back in that good old golden 17th century. This means no state- or religious-sponsored merchants picking up spices, snatching tea, or stealing silk off any roads, mind you. Then, education — particularly public education, like The City University of New York — can be read up to 1 million strong.
Public education, particularly of the print kind, can only be a good thing. A thing, in other words, that could promote peace, tranquility through gender-free dignity (e.g. not neotribalism), and tolerance on our global colliding-social-spheres scale.
Prof. Ruth O’Brien
Since neither one of us has seen a copy of this publication, I’m not sure how much scope for disagreement there is, but if De Moslimkrant is meant to help Muslims adapt to Dutch culture, it will take some doing. Just as Islam has many strict rules governing daily life, so do the secular but moralistic Dutch, and the social pressure to conform can be just as great.
A friend who has spent time in the Netherlands provides numerous examples of the nation’s libertine-busybody ethos, in which Christianity is mocked or forgotten, drugs are openly available, and gays are universally accepted, yet neighbors go to elaborate lengths to spy on each other. Strict yet unwritten social codes abound: In a koffiehuis, you eat a single piece of chocolate, no more, with each cup; entire neighborhoods take their summer vacation at the same time; the nation sits down to dinner at 6:30 pm sharp, and if you knock on someone’s door at that hour, you are assumed to be a moocher.
This makes for something of a potential culture clash with praying five times a day, fasting during Ramadan, and making the hajj to Mecca. As in any nation where two or more distinct cultures coexist, something’s got to give. The two may occupy separate sectors, as in Canada, Belgium, Switzerland, Northern Ireland, etc.; or they can mingle freely, with some merging of cultures and concomitant loss of cultural cohesion. The latter doesn’t seem very Dutch, but neither does the alternative of French-style banlieues.
But if the Dutch think they have a problem with people taking their religion too seriously, the solution is simple: Just adopt it as an established church, and — as in England or Norway — pretty soon everyone will ignore it.
Editor Frederic O’Brien
My, my. It is Presidents’ Day again. February is that kind of month—polarized, that is, and I’m not talking about needing goggles or glasses (ski or otherwise). Nor am I kvetching about the vacuousness of that truly silly civil holiday—Groundhog Day (Bill Murray made that one boring, no?). Nor am I making any oblique 1970s or ’80s references about ice storms or polar climates in our polarized or bipolar world. Rather, I’m comparing apples to oranges, or religious-rights leaders to presidents, and it does seem that the former (surprise, surprise) comes up short in the recognition department.
On one hand, George and Abe get to merge and create a faceless yet stronger four-day weekend. On the other hand, Martin Luther King gets short-shrifted.
To be sure, MLK gets mean name recognition and a catchy acronym. Yet not only was this holiday not enjoyed in all states (such as Arizona) for many years, and not only is the holiday merged in several southern states with one for Robert E. Lee (born January 19), but even in states that embrace it completely, it depends on your workplace whether you will get the day off.
What I know is that MLK, as a stand-alone in mid-January, is short-shrifted, given that we have had 40-plus white male presidents and only one prominent religious-rights leader, even though we’re supposedly a predominantly Christian state?*
Is this reverse discrimination? Or is it reverse-reverse discrimination if you were part of the religious police? (I’m thinking of the Hobby Lobby Roberts Court here.)
I can’t imagine what this Court would say, but I can imagine what the Log Cabin Republicans might say about all these twists and reverses. But then again, would I want to be at either president’s or religious rights leader’s parties on any Friday or Monday?
*In-house development editors found a small logical leap. Find it if you can.
Well, it’s difficult to quantify whose shrift is shorter, but remember that Presidents’ Day is shared by two men, whereas King gets a day all to himself (except in those few Southern states Ruth mentioned that bring in Lee, thus borrowing the civilian civil-rights hero–plus–slaveowing general template from Presidents’ Day). In fact, if you consider Presidents’ Day to be a day for all presidents, then Washington and Lincoln have to share their glory with 41 others, most of whom are distinctly low-rent in comparison.
Moreover, George and Abe have long since been conscripted as pitchmen for holiday sales at appliance dealers, whereas the respect accorded King because of his inherent dignity (and his heirs’ zealous guarding of his personality rights) has kept him in the public mind as a hero instead of a kitschy figure.
But perhaps the biggest factor working against King’s holiday is the timing. It falls in the fallow period after the Christmas/Kwanzaa/New Year’s bacchanalia, leading to a general attitude of “What, another holiday?” Not to mention the weather—which is just as bad for Presidents’ Day, to be sure. Perhaps the solution is to celebrate important winter birthdays on an arbitrary day in summer, as the British do with Queen Elizabeth.
There’s a case in favor of restricting birthday holidays to presidents and Revolutionary figures, to keep them from multiplying too greatly. Yet even if you accept this, the unique status of slavery and its aftermath in American history would argue in favor of making an exception for King. Washington, Lincoln, and King all risked (and two of them lost) their lives to create and preserve freedom for Americans. But comparisons are futile; their lives and achievements speak for themselves, far above our poor power to add or detract with ski holidays and blockbuster weekend sales events.
Frederic O’Brien (a.k.a Fred Schwarz, Deputy Managing Editor, National Review)