Court Cultural Clash Round 2: American Anti-Terrorism Act

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PROF. O’BRIEN:
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 theConvention on the Rights of the Child. I dunno. Do you?

What a power play in terms of clashing cultural courts on a global scale.

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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