Appeals Court reinstates suit against Sheldon Adelson and others over support for Israel
Everything in the case turns on the issue of whether Israel and Israeli settlers properly control the “disputed territory.” That is a political and foreign policy question, and the court was wrong to reinstate the lawsuit.
In March 2016, we covered the filing of a lawsuit by notorious Palestinian activist Bassem Tamimi and others against a long list of U.S. persons and entities alleging war crimes due to their support for Israel, Palestinian Bassem al-Tamimi lead plaintiff in suit against dozens of Americans for supporting Israel:
A group of Palestinians led by professional provocateur and propagandist Bassem Al-Tamimi has filed suit against a slew of Americans, American businesses, American organizations, international businesses and Israeli entities. The Complaint is embedded at the bottom of this post.
Altogether nineteen Plaintiffs have brought claims against fifty-three defendants. Plaintiffs’ attorneys are Martin F. McMahon, a colleague in his law firm, and Sameer Jarrah, who claims a license to practice law in Jordan.
Al-Tamimi is a familiar figure. He is at the heart of LI’s ongoing battle with Ithica, New York’s public school system (where he encouraged third-graders to become “freedom fighters for Palestine”), peddles the blood libel that Israel harvests and sells Palestinians’ organs, and useshis own daughter (and other children) as props in his war against Israel (more here)….
The claims are broad: Civil conspiracy; war crimes, crimes against humanity, and genocide; aggravated and ongoing trespass; RICO, and; war crime of pillage. Even aside from the lack of any factual support, Plaintiffs confront serious technical and legal challenges which we will explore in later posts.
In September 2017, the U.S. District Court dismissed the lawsuit on the ground that it involved political questions beyond the jurisdiction of the court, Court throws out suit against Sheldon Adelson and others over support for Israel:
The Opinion (pdf.) is embedded at the end of this post.
Here is the Court’s summary of its ruling:
As more fully explained below, upon careful review of the Amended Complaint and the parties’ filings, the court concludes that it lacks jurisdiction to hear Plaintiffs’ claims against the United States, as Congress has not waived sovereign immunity for such claims. The court further concludes that it lacks subject matter jurisdiction to adjudicate the claims against all Defendants because they are replete with nonjusticiable political questions. Accordingly, the court will GRANT both motions to dismiss and will dismiss Plaintiffs’ claims against all Defendants.
The key finding, which in itself warranted dismissal, was that the case involved political questions which courts cannot rule upon:
All Defendants argue that this court lacks subject matter jurisdiction under the political question doctrine….
If this case were permitted to go forward, resolution of Plaintiffs’ claims for trespass, genocide, and other war crimes would require this Court to determine: (1) the limits of state sovereignty in foreign territories where boundaries have been disputed since at least 1967; (2) the rights of private landowners in those territories; (3) the legality of Israeli settlements in the West Bank, Gaza, and East Jerusalem; and (4) whether the actions of Israeli soldiers and private settlers in the disputed territories constitute enocide and ethnic cleansing. With respect to the Defendants in this case, the court would further have to decide whether contributing funds to or performing services in these settlements is inherently unlawful and tortious, as Plaintiffs allege that settlement expansion is inextricably tied to violence against Palestinians….
In general, issues involving foreign policy are constitutionally committed to the political branches of the federal government, and therefore normally constitute non-justiciable political questions…. However, Plaintiffs ask this court to wade into foreign policy involving one of the most protracted diplomatic disputes in recent memory…. and therefore Plaintiffs’ claims are ultimately non-justiciable….
Where, as here, the court is asked to make a determination on issues at the forefront of global relations while the United States government continues to determine how best to approach these same issues, it should decline to weigh in on such sensitive diplomatic and geopolitical matters….
… Plaintiffs’ claims—against both the United States and the remaining Defendants—raise non-justiciable political questions, which deprive this court of subject matter jurisdiction. Accordingly, the motions to dismiss will be GRANTED.
The court then went through other grounds for dismissal, such as sovereign immunity, and also found those grounds required dismissal as to specific defendants.
The Court concluded:
The Palestinian and Palestinian-American Plaintiffs in this lawsuit allege that they have experienced immense loss of life, liberty, and property over the last several decades, and they seek justice and compensation for violence they have experienced. At the core of their Amended Complaint, however, is the request for this court to adjudicate and resolve the lawfulness of the development of Israeli settlements in Gaza, the West Bank, and East Jerusalem stretching over thirty years into the past. This issue, both close to the heart of the ongoing Israeli-Palestinian conflict and central to the United States’ foreign policy decision-making in the region, is simply inappropriate for this court to resolve. Instead, these issues must be decided by the political branches. As a result, for the foregoing reasons, this court will GRANT both motions to dismiss.
The U.S. Court of Appeals has just reinstated the lawsuit. Reuters reports:
In a 3-0 decision on Tuesday, the U.S. Court of Appeals for the D.C. Circuit said a federal district judge wrongly concluded in August 2017 that all of the plaintiffs’ claims raised political questions that could not be decided in American courts….
… in Tuesday’s decision, without ruling on the merits, Circuit Judge Karen LeCraft Henderson said the only political question concerned who had sovereignty over the Israeli-occupied territories.
She said courts could rule on whether the defendants conspired to expel non-Jews or committed war crimes “without touching the sovereignty question, if it concluded that Israeli settlers are committing genocide.”
Henderson said that presented a “purely legal issue” because genocide violated the law of nations, and could support the plaintiffs’ claim under the federal Alien Tort Statute.
The Opinion (pdf.) is fully embedded below.
Of note, the courts refers to the territories in question as “disputed territory,” rather than the popular “occupied territory.” Israel has a legal claim to the “West Bank” despite the propaganda otherwise:
1 The ownership of the territory, which comprises the WestBank, including East Jerusalem, and the Gaza Strip, is at the heart of a decades-long dispute between the Israelis and the Palestinians. We refer to it as the “disputed territory.”
The court clearly is wrong on the issue of whether the complaint raises non-justiciable political questions. Everything in the case turns on the issue of whether Israel and Israeli settlers properly control the “disputed territory.” That is a political and foreign policy question.
Hopefully either the D.C. Circuit will hear the case en banc, or the Supreme Court will take the case.
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Tamimi v. Adelson – US Cour… by on Scribd
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Comments
It sounds to me like they are claiming that their tactic of purging Jews from Arab controlled areas is being used against them.
Might makes right, Israel should drive all the palestinians to the ocean. The only way I can see to end palestinians constant aggression is to completely remove all of them from lands to which Jews have an earlier claim.
Jews have made the world a better place, palestinians have made it worse, especially for Israel.
Sheldon should sue back.
JusticeDelivered: if force of that magnitude is used I would say resettle these Arabs who call themselves “Palestinians” in the actual Arab countries they are from or descend from. There is more empty space in Arab countries than they know what to do with and they are at the heart of the matter. They should be forced to deal with the human crisis they purposely created. There is no real justification for a Palestinian state.
There is a reason that no other country wants palestinians, they are conditioned to be terrorists.
Judge Henderson (gift of Reagan and GWB):
https://en.wikipedia.org/wiki/Karen_L._Henderson
https://www.law.com/nationallawjournal/almID/1202734191130/?slreturn=20190125121912
Why we are disgusted by GOPe RINOs like GWB.
When I first saw this, I assumed this judicial disgrace/embarrassment must have been written by Obama nominees packed onto the court by Harry Reid. My mistake.
so an accurate summary would be?
Federal Appeals Court reinstates suit against Sheldon Adelson & others because there’s a remote (NOT) possibility an Israel ‘settler’ might (NOT) have committed (IMPOSSIBLE) genocide
Because it’s theoretically possible, and a court could reach that finding without deciding on which country owns the territory.
This thing will get tossed in an en-banc review if Andrea Mitchell, Chuck Todd, Dana Bash and friends let it be know that these judges won’t be invited to the best parties or get to be with the cool kids any more.
It’s politics not law.
I am beginning to think that judges are merely human, and not infallible.
As if a US court has jurisdiction the issue.
US Courts have had jurisdiction over the alleged offenses since the Alien Torts Act was passed. In other words for about as long as there have been US courts.
I don’t understand this point you are making. The judge clearly wrote that this is indeed a political question which the courts can’t get into, but that the claims are resolvable without getting into it. In other words, the district court handling this suit would have to assume, for the purpose of the case, that Israel’s control of the territory is proper, but could still find, if the facts supported it (which they don’t), that Jewish residents (“settlers”) supported by the defendants are committing “genocide” as defined by the law of nations and the Alien Torts Act.
…What definition in the Alien Torts Act?
As for the law of nations, the UN declaration from 1948 is pretty narrow, so how could this be resolved without using the Rome Statute of the International Criminal Court… which is a bit of a problem because the US is not party to that court? Anything else, including forced transfers under Article 4, or Israel “deporting” or “transferring” (which doesn’t imply voluntarily) its own population to the territories, isn’t genocide, even if people want to portray it as a war crime.
I find this situation ridiculous because Sheldon Adelson may be rich, but he is not a nation. The settlers are not a nation. A non-nation cannot be an Occupying Power because it’s not a Power at all, it’s just people. They are not a government apart and separate from the State of Israel. How are they individually liable for Occupying Power policy? Just have random Americans picked up off the street and tried for trespassing Iraqi borders then…
Also, doesn’t trespassing kind of hinge on it being someone else’s land? How do you resolve that without the political question of whether it is the Palestinians’ land being resolved?
The Alien Torts Act refers to “the law of nations”. There is very little in the law of nations that covers individual acts, but whatever there is, is thereby incorporated into US law.
The suit isn’t about the actions of the State of Israel, it’s about the alleged actions of the individual defendants. The entire point of the Appeals Court decision is that these actions can be determined without regard to the political question of whether Israel’s administration of the Territories is lawful.
Trespassing hinges on whether a specific plot of land belongs to a specific person, which is not a political question, not on which nation has sovereignty or lawful administration, which is. Israeli courts routinely consider such questions; the Appeals court says a US court could do the same.
(This, by the way, is a huge point that many people miss. Any Arab who claims that a Jew is trespassing on his property can very easily bring suit in the Israeli courts, which will bend over backwards to hear the claim in the most favorable light to the plaintiff. There is no need for such a plaintiff to appeal to US courts; he will get much more than justice in Israel. If he loses there, it means he had nothing even slightly resembling a case. So any general statement that Jewish residents of the Territories trespass or steal land from Arabs is as obviously false as such a statement would be in the USA.)
Well, without being an expert on the fine details of this specific case, I don’t want to generalize too far. I’m simply skeptical most of the claims can be answered without regards to the territory belonging “to the Palestinian people”. Insofar as the genocide part is concerned, the proper definition – barring being party to the ICC, as I have noted – should have the suit dismissed before trial, because there’s no evidence that stands up to the old definition of genocide. One billionaire and some settlers do not a Mongol horde make.
You may be skeptical, but the appeals court thinks that most of the claims can indeed be answered without regards to who (if anyone) has sovereignty over the area in question. An individual’s property rights are the same regardless of which state he’s in, and so are his human rights. If the individual defendants (as opposed to the Israeli government) are engaging in genocide the evidence should be pretty obvious. Absence of such evidence shows that they’re not doing so. Once the court engages with the evidence the case should be dismissed in very short order, because there isn’t any evidence to support it.
A court determination that aspects of the conflict in the West Bank constitute either a “genocide” or “self-defense” would improperly involve the judiciary in a policy determination reserved to the political branches of government. This is quite clearly a political question and whether prudential or jurisdictional, the district court was correct to dismiss this nonsense and the appellate court erred. Big Time.
The court isn’t being asked about “aspects of the conflict”. It’s being asked about the defendants’ specific actions. Either they constitute specific torts against specific people or they don’t. (Hint: They don’t.) This is determinable by a US court simply by examining the plaintiffs’ objective evidence (of which there is none) without regard to any political question.
Ok, you win, a determination of the plaintiffs’ tort claims would require the court to characterize the conflict in the West Bank as either a “genocide” or “self-defense.” Is that precise enough for you to grasp? Just try to think about it and you might understand, but I wouldn’t bet on it.
No, it would not. It merely requires the court to determine the specific actions of these specific defendants against the specific plaintiffs. If there is no evidence that the defendants have done things to the defendants that are torts regardless of how the political questions shake out — i.e. seeing the political questions in the light most favorable to the defendants — then the suit fails. And we all know that is indeed the case.