Susan B. Tuchman & Morton Klein
U.S. President Trump did the right thing last October when he signed the Anti-Terrorism Clarification Act (ATCA) into law.
The law was sorely needed to help American victims of international terrorism. It closed loopholes in an earlier law—the Anti-Terrorism Act of 1992, which afforded a civil remedy to American victims against their terrorist attackers overseas. Loopholes in the 1992 law ended up hurting many American terror victims, instead of affording them the justice they deserve, as Congress intended.
Now there are troubling reports that State Department officials are going to Congress to try to undo the ATCA before it goes into effect in January because the Palestinian Authority is unhappy with the new law. The P.A. is reportedly claiming that the ATCA will require it to lose U.S. aid unless the P.A. agrees to pay court judgments to American victims of Palestinian Arab terrorism. State Department officials are concerned that the P.A.’s unhappiness with the ATCA may stand in the way of peace between the Palestinian Arabs and Israel.
The ATCA is no obstacle to peace. If the P.A. is truly committed to achieving peace, then it will agree to be held to account for any terrorist crimes committed against an American citizen for which the P.A. was allegedly responsible, which is what the ATCA requires.
The P.A. and the Palestine Liberation Organization recently weaseled out of accountability after American terror victims and their families obtained a legal judgment against them in Sokolow v. PLO. This lawsuit was filed in 2004 under the 1992 Anti-Terrorism Act. After waiting 10 years for their day in court, the plaintiffs proved that the PLO and the P.A. orchestrated the terror attacks in Israel that led to their injuries and deaths. Instead of accepting the jury’s verdict and paying the $655.5 million judgment against them, the two Palestinian terror entities appealed, claiming that the court lacked jurisdiction over them.
For reasons that would make it virtually impossible for many terror victims to hold their terrorist perpetrators accountable under the 1992 law, the Court of Appeals for the Second Circuit sided with the P.A. and the PLO on jurisdictional grounds. The Second Circuit vacated the jury verdict and dismissed the case.
When the victims and their families sought Supreme Court review of the Second Circuit’s decision, the Supreme Court declined to hear the case, leaving the Second Circuit’s decision in place and the victims without the justice they deserved. The Supreme Court was undoubtedly influenced by the shameful position that the U.S. government took in the case: Instead of siding with the American terror victims and their families, the U.S. Solicitor General—support by the State Department—actually urged the Supreme Court to leave the Second Circuit’s decision as is, which meant that the terror victims and their families would lose their civil remedy against their terrorist attackers.
The Solicitor General’s position was made even more disgraceful when it came to light that in 2007, the P.A. and the PLO unequivocally consented to the jurisdiction of U.S. courts in all cases brought against them under the 1992 Anti-Terrorism Act. In documents submitted to a U.S. court, including sworn statements by the P.A.’s own leadership, the PLO and P.A. represented that their officials had met with the State Department and concluded that it was in their own best interests, and in the interests of the United States, to defend these cases on the merits and prove to the American people that they did not provide material support for terrorism.
That was a lie, as the Sokolow case shows. It was a lie at the expense of the Americans who were killed and injured in P.A.- and PLO-orchestrated attacks in Israel.
Congress understood that the Sokolow decision undermined our country’s fight against international terrorism. Congress appreciated that the Sokolow decision impeded the rights and remedies that American terror victims were afforded under the 1992 anti-terrorism law.
That’s why Congress passed the ATCA—to make sure that all victims of terrorism overseas would be better protected, and that terrorists would be more likely to be held accountable for their crimes. Avoiding a lawsuit or getting out of satisfying a court judgment after terror victims proved wrongdoing would no longer be so easy for international terrorists.
Among the ATCA’s provisions is that if a defendant accepts U.S. foreign assistance or operates an office inside the United States, then—as a condition of accepting those privileges—the defendant is deemed to have consented to personal jurisdiction in lawsuits brought under the 1992 Anti-Terrorism Act.
The law makes perfect sense. If the United States is going to assist you and provide you with American taxpayer funds, then you will have to be answerable in U.S. courts if you are alleged to have committed a terrorist crime against our citizens.
The P.A. accepts U.S. foreign assistance. But it doesn’t want to agree to be accountable in U.S. courts for allegedly injuring or killing Americans in terrorist attacks overseas, as the ATCA requires.
That’s outrageous and wrong. Our country has made a commitment to eradicate international terrorism. Our leaders have made it clear that our anti-terrorism laws will be vigorously enforced, in order to let terrorists know that if they terrorize, harm or kill Americans anywhere in the world, they will be held to account for their crimes and that justice will be served.
We must send that message, loud and clear, to the P.A., too. Congress must remain steadfast in supporting American interests and resist State Department efforts to undermine the enforcement of the ATCA. If the P.A. won’t agree to be answerable for alleged wrongdoing against American citizens, then the P.A. must bear the consequences, as the ATCA requires. It must lose our financial support because the legal rights, safety and well-being of U.S. citizens must come first.
Susan B. Tuchman is the director of the Zionist Organization of America’s Center for Law and Justice. Morton Klein is the national president of the Zionist Organization of America.