By John Burnett
March 22, 2018 at 5:00 am ET
This month’s visit to the United States by Israeli Prime Minister Netanyahu provided President Donald Trump a high-profile opportunity to affirm his strong support for Israel. But it also came shortly after his administration rebuffed Americans maimed and traumatized by Palestinian terror attacks in Israel.
The administration recently broke its long and troubling silence about whether the U.S. Supreme Court should review a lower court ruling against Americans victimized by terror attacks. Shockingly, the administration weighed in against the victims. When I commented on this matter late last year, the salient question was: Why the silence? But now the question is: Why this position?
The case stems from a suit brought by Mark Sokolow and his family along with several other Americans who suffered physical injury and emotional pain from a series of lethal terror attacks in Israel in the early 2000s. The attacks were carried out by groups affiliated with the Palestinian Liberation Organization, apparently under the approving eye of Palestinian Authority officials.
During one such attack in 2002, Mark Sokolow’s wife and two young daughters suffered terrible injuries that required surgeries and left indelible psychological scars. Sokolow and others wounded by these crimes invoked the Anti-Terrorism Act of 1992 to sue for damages. Congress passed the ATA in 1992 in the aftermath of the PLO’s hijacking of an Italian cruise ship and the vicious murder of wheelchair-bound American, Leon Klinghoffer.
In 2015, a jury unanimously found in favor of the Sokolows and the others, awarding $218.5 million in damages. Under the ATA, intended in part to frustrate the financing capabilities of terrorists, the damages were trebled. In a surprising turn of events the following year, the Second Circuit Court of Appeals overturned the jury finding and award, chiefly over questions about jurisdiction applying to the Palestinian Authority. Last June, the court sought the Trump administration’s position on the case.
After several months of silence, Congress put aside its usual partisanship to urge the administration to support the high court’s review. A distinguished group of former officials from the Obama, Bush and Clinton administrations also leant their gravitas in supporting a review of what they saw as the appeals court’s flawed decision.
Three months ago, speculation about the non-response from the State Department focused in part on whether entrenched bureaucrats were balking at the White House’s desire to help the victims seek justice because they feared it could antagonize the Palestinian Authority and upset efforts to negotiate a peace agreement with the Israelis.
At best, the silence could have been a function of reduced staff and structural changes at the State Department underway in this administration. Either way, the conventional wisdom was that the administration would eventually side with innocent Americans and not terrorists.
However, in late February the U.S. solicitor general filed an amicus brief on behalf of the administration recommending that the appeals court decision should stand and opposing the Supreme Court’s review. The brief detailed a rationale based on constitutional limits on prosecuting and extracting damages from foreigners for crimes committed overseas. For an administration that is so often strident in proclaiming Americans were not going to be pushed around anymore, this was a stunning disappointment.
Even if career State Department functionaries or White House political operatives felt it was best to find a legal rationale to get rid of what they feared was a stumbling block in the peace process, the administration should have at least supported the victims’ right to pursue justice to the fullest extent of the law. It should be up to the justices to decide whether the appeals court got it wrong. Urging the court to pass on even reviewing the case was a slap in the face to people such as the Sokolows and others who have had the courage to relive awful moments many times and over many years in order to achieve justice. They deserve the opportunity to present their stories and points of law to the Supreme Court justices.
Congress passed the ATA for good reasons: to strengthen the hand of Americans seeking justice against terrorism and to stifle the ability of terrorists to operate. Even though the Trump administration has chosen to assemble a legal argument opposing the fullest execution of the law, the court should be moved by the extraordinary expression of support by the people’s elected representatives in Congress and a pantheon of outstanding public servants for giving the victim’s their day in court against the people who tried to kill them.
John Burnett is a Republican strategist and founder and CEO of 1 Empire Group, a consulting firm specializing in business analytics and development, process re-engineering, growth strategies, regulatory compliance, risk management and public affairs.
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