The United States Supreme Court may soon decide whether U.S. victims of terrorist attacks in Israel may sue the Palestinian Authority (“PA”) and the Palestine Liberation Organization (“PLO)” for damages in U.S. courts.
In 2019, the U.S. Congress passed a new law—the Promoting Security and Justice for Victims of Terrorism Act (“PSJVTA”)—giving U.S. courts jurisdiction over the PA and the PLO for terror-related suits, if the PA and PLO continued to make payments to families of terrorists who injured or killed U.S. citizens. Congress enacted the PSJVTA in response to a series of judicial decisions in which U.S. court ruled that victims of terror could not sue the PA and PLO in the United States for terror attacks that took place outside the United States.
In April 2020, the widowed spouse and children of Ari Fuld, who was stabbed to death in a terror attack outside the Rami Levi supermarket in Gush Etzion in September 2018, brought an action for damages against the PA and PLO in the United States. The Fulds alleged that the PA and PLO had encouraged, incentivized, and assisted the attack, and asserted that the U.S. courts have jurisdiction over the PA and PLO under the new law because they have continued their “pay to slay” payments to terrorists.
The trial court in New York dismissed the claims, ruling that the statute providing for jurisdiction over the PA and PLO violated due process and was unconstitutional. The U.S. Court of Appeals for the Second Circuit affirmed that ruling in September 2023. The court ruled that, the PA and PLO’s continued payments to terrorists could not reasonable be interpreted as signaling their intention to submit to the authority of the U.S. Courts. Some members of the court dissented, saying that the majority’s decision “lacks a basis in the Constitution and cannot be reconciled with Supreme Court precedent on personal jurisdiction.”
The Fuld family and the U.S. government appealed the Second Circuit’s decision to the U.S. Supreme Court. The Supreme Court heard argument on the case on April 1.
Some of the justices questioned whether the appeals court overstepped its bounds in overruling the Congressional Act, noting that Congress and the President, rather than the courts, are generally responsible for issues involving national security and foreign policy. Deputy Solicitor General Edwin Kneedler, arguing on behalf of the United States, told the Court that the PSJVTA is “an integral part of the foreign policy and national security policy of the political branches, including the securing of just compensation for victims of terrorism,” and urged the Court to overturn the Second Circuit’s opinion. Justice Brett Kavanaugh agreed that Congress and the executive branch are generally responsible for such matters, making it “a very sensitive judgment” for courts to make.
Justice Samuel Alito asked counsel for the PA and PLO, “What exactly is the unfairness in this case? Is it too burdensome [for the PA and the PLO] to litigate this in New York,” where they engage in activities at the U.N.? But Justice Sonia Sotomayor asked counsel for the Fulds whether he was “basically saying there is no due process protection under the Fifth Amendment [of the U.S. Constitution] even for U.S. citizens.” The Supreme Court, which has nine justices, will likely issue its decision within a few months. The case is entitled Miriam Fuld v. Palestine Liberation Organization, No. 24-20.