On December 7, 2009, the Zionist Organization of America (ZOA) joined three other Jewish organizations in filing an amicus (“friend of the court”) brief with the U.S. Supreme Court. The brief urged the Court to reverse a Fourth Circuit decision and “establish as the law of the land” that foreign government officials who are sued in the U.S. based on their official acts are immune from liability, whether they are foreign officials at or after the time of suit. The case’s outcome could affect Israel and its officials who carry out Israeli policies.
The case decided by the Court of Appeals for the Fourth Circuit involved a former Somali government official who was sued in the United States for acts committed while he was in office. When the Somali official claimed that he was immune from suit under the federal Foreign Sovereign Immunities Act (FSIA), the Fourth Circuit rejected his claim, concluding that the FSIA grants absolute immunity to foreign governments, but not to the officials who acted on their behalf. This conclusion conflicts with the majority of courts that have looked at the issue and decided that individuals are covered under the FSIA.
The amicus brief described how the Fourth Circuit’s decision, if upheld by the Supreme Court, would encourage a torrent of unfounded lawsuits in the U.S. against present and former Israeli officials, a strategy that has been used by Israel’s enemies in foreign countries. The tactic – popularly called “Lawfare” – is designed to force Israeli officials to “shade” their decisions out of concern that they might later be sued for actions they take while exercising governmental authority. The brief emphasized that government officials must be able to exercise independent judgment, unaffected by the prospect that their decisions will provoke retaliatory lawsuits that they will have to defend.
The brief also noted that if the Fourth Circuit’s decision were upheld, it would affect the flow of information into the U.S. The threat of being subjected to unfounded litigation would deter officials from visiting and sharing ideas with organizations like the ZOA, and with educational and research facilities that benefit from the exchange of information with present and former foreign government leaders, including Israeli officials.
Susan B. Tuchman, Esq., director of the ZOA’s Center for Law and Justice, submitted the brief on behalf of the ZOA. The American Association of Jewish Lawyers and Jurists, the Union of Orthodox Jewish Congregations of America, and Agudath Israel of America joined in the brief, which was authored by Washington, D.C. attorney Nathan Lewin.
Morton A. Klein, the ZOA’s National President, emphasized the significance of the case to the State of Israel: “Palestinian ‘lawfare’ is being used in England and other European countries, particularly after Israel’s defensive operation in Gaza. Such suits falsely claim that Israeli officials have committed war crimes against Palestinians, when in fact these officials were fulfilling their moral, legal and honorable duty to defend the Israeli people against murderous terrorist groups. If the Supreme Court does not decide that foreign government officials have immunity for their official acts, then Israeli officials will understandably be reluctant to carry out their obligation to defend the people of Israel, which will ultimately harm Israel’s right and duty to defend itself.”
