DOJ Failed to Defend American Victims of Terrorism. The Supreme Court Should Not.
By Senator Chuck Grassley
The first duty of our government is to protect American lives. To support that duty, I sponsored the Anti-Terrorism Act of 1992 (ATA), which allows U.S. victims of international terrorism to bring perpetrators before our justice system, regardless of where the attacks occurred. But recent, deeply flawed decisions by courts of appeals gutted the ATA and its effectiveness as a core counter-terrorism tool. The Trump Administration had the opportunity to stand with American victims of terrorism by defending and restoring the law. But it failed to do so. The Supreme Court should not.
Thousands of international terrorist attacks occur every year, many of which claim the lives of Americans overseas. More than three decades ago, one such attack spurred congressional action. In 1985, members of the Palestine Liberation Front murdered U.S. citizen Leon Klinghoffer while aboard an Italian cruise ship. In response, Congress passed the ATA, removing complex jurisdictional hurdles in our justice system that had prevented victims from seeking redress for injuries sustained outside of the United States.
Since then, the ATA has empowered American victims of international terrorism to bring civil lawsuits in federal courts to vindicate their rights and obtain compensation for their injuries. Equally important, these lawsuits disrupt and discourage the financing and material support of terrorist organizations. By cutting terrorists’ financial lifelines, the ATA helps to reduce global terrorism, protecting Americans both here and abroad. In short, the ATA puts terrorists on notice to keep their hands off Americans.
Yet, despite Congress’s clear intent, federal courts of appeals recently issued deeply flawed decisions effectively holding that the Constitution protects terrorists and their financiers from facing justice in U.S. courts, so long as those terrorists commit their crimes off of American soil and have not overtly admitted to targeting U.S. citizens. These decisions — reached only by casting aside Congress’s considered judgment — placed the interests of international terrorists above the safety of American citizens abroad.
The case of Sokolow v. PLO demonstrates this miscarriage of justice. In Sokolow, eleven American families sued the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) under the ATA for their role in a series of brutal terrorist attacks in Israel that devastated the lives of their victims. In 2015, a jury in New York found that agents of the PLO and PA carried out the attacks and provided material support and resources to U.S.-designated foreign terrorist organizations. The jury awarded compensatory damages to the victims and their families. This is exactly what Congress envisioned when passing the ATA.
But the Second Circuit Court of Appeals found the verdict to be a violation of the PLO’s and PA’s constitutional rights to due process, because they are not sufficiently “at home” in the United States for purposes of court jurisdiction, nor did they “expressly aim” their attacks at the United States. This is all in spite of the fact that the plaintiffs are American citizens victimized by clear acts of international terrorism. In reaching its decision, the court even admitted it was imposing “a unilateral constraint on United States courts,” contrary to Congress’s views.
The Supreme Court is now considering whether to take up this case. In April of last year, I led a bipartisan coalition of 23 United States Senators in a brief to the Court urging its review of the Second Circuit’s decision. Similarly, the U.S. House of Representatives filed a brief urging the Court’s review — a move that required the unanimous approval of the Speaker, the Majority Leader, the Majority Whip, the Democratic Leader, and the Democratic Whip.
Despite broad bipartisan support in Congress for the ATA and the victims it protects, the Justice Department, in a recent brief, actively opposed those victims and their right to seek redress against terrorists. Inconceivably, instead of standing up for American victims of terrorism, the Administration urged the Court to not even consider the Sokolow decision.
This is stunning not only because it is the obligation of any Administration to stand with American victims of terrorism, but also because the Department of Justice has a longstanding practice of defending the constitutionality of federal laws. The Supreme Court should review the Sokolow decision and restore the intended scope of the ATA.
Indeed, the Supreme Court has an institutional obligation to take up this case. The Second Circuit decision effectively deemed unconstitutional congressional action furthering vital national security and foreign policy interests. As the Office of the Solicitor General wrote in another case concerning the constitutionality of a federal statute, “a lower court’s decision to invalidate a congressional enactment, which expresses the majority’s will in a democratic society, involves the most momentous application of judicial power.” The Supreme Court ordinarily reviews such decisions to ensure that the exercise of such power is carried out with due respect to Congress — a coequal and representative branch of our Government.
Congress passed the ATA to open the courthouse doors to victims of international terrorism. The Second Circuit’s decision in Sokolow ripped a hole in the law, limiting our constitutionally mandated power to protect U.S. interests and the lives of U.S. citizens abroad. The Supreme Court should step in where the Attorney General would not by reviewing that dangerous decision.
Chuck Grassley, a Republican, is the senior senator from Iowa and Chairman of the Senate Judiciary Committee
