In a letter sent on March 26, 2018, ZOA National Board Member David I. Schoen, Esq. called on Noel Francisco, the Solicitor General of the United States, to withdraw the brief he filed with the United States Supreme Court in Sokolow v. PLO, brought under the Anti-Terrorism Act (ATA) by American victims of terrorism against the PLO and PA. Citing supporting evidence, Schoen showed that, by their actions in the Sokolow case, the PLO and PA reneged on a prior official policy decision to consent to the jurisdiction of American courts for the purpose of litigating claims brought against them under the ATA. Yet instead of seeking to hold the PLO and PA accountable for violating their clear and deliberate commitment and ensuring that they are held accountable for their terrorist actions, the Solicitor General, on behalf of the United States government, disgracefully filed a brief that takes the position that it is unfair to subject the PLO and PA to the jurisdiction of the U.S. courts.
The plaintiffs in Sokolow were American terror victims and their families who were killed or injured in terrorist attacks in Israel. They sued the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) under the ATA, a federal law that affords a crucial legal right and remedy to American victims of international terrorism. After the plaintiffs prevailed at trial and were awarded 655.5 million dollars in damages, the PLO and PA appealed to the United States Court of Appeals for the Second Circuit, arguing successfully that the court lacked jurisdiction over them.
The terror victims petitioned the U.S. Supreme Court for certiorari, asking the court to review the Second Circuit’s judgment. The Supreme Court asked the Solicitor General to express the views of the United States regarding the victims’ petition. It took the Solicitor General eight months to weigh in. When he finally did, he did not stand up for the right of American terror victims to secure some measure of justice under U.S. law against the terrorist perpetrators, or for the vigorous and unfettered enforcement of the ATA. Instead, the Solicitor General, on behalf of the United States government, urged the Supreme Court to deny the plaintiffs’ petition, thereby defending the terrorists by letting the PLO and PA off the hook on jurisdictional grounds under the ATA, instead of supporting the terror victims.
Schoen was lead counsel for the plaintiffs in Sokolow during the early stages of the case; he has also represented other terror victims and their families. He is now counsel of record for an amicus party before the Supreme Court, The Restoring Religious Freedom Project at Emory University. In his March 26, 2018 letter to the Solicitor General, Schoen established that in 2007, the PLO and the PA filed papers in a federal court in Washington, DC, advising the court that from that point forward, they agreed to the jurisdiction of American courts in all cases brought against them under the ATA, and that they wanted a chance to present their defense on the merits in each ATA case brought against them in U.S. courts and they committed to doing so. These commitments were supported by documents filed by counsel for the PLO and PA – the same counsel representing the PLO and PA in Sokolow – and sworn statements by their leadership. The PLO and PA agreed to the jurisdiction of U.S. courts in consultation with the U.S. State Department, for the purpose of convincing a court in another terrorism lawsuit that the default entered against the PLO and PA should be set aside.
Among the evidence cited by Schoen in his letter to the Solicitor General was the sworn statement of Salam Fayyad, the PA’s prime minister, submitted with the authorization of the PA and PLO. Fayyad stated, under penalty of perjury:
I have instructed new counsel that the Defendants will participate fully in this and other litigation, in a cooperative, manner, including complete participation in the discovery process. I have further instructed new counsel [for the PLO and PA] to transmit this commitment to the United States courts. I personally commit to sustain this instruction throughout the effort to litigate these cases. It is my belief there are meritorious defenses to the claims brought in the United States and it is important to the PA to present those defenses. Moreover, it is important to the PA’s role in the international community to participate in the legal process, even when it is process brought in the United States for actions that occurred far from the United States. The importance of this was not fully appreciated by the PA government, as a whole, until recently. Now we can act on that understanding, and we therefore seek to contest this litigation, fully and responsively [emphasis added].
Schoen shows that these assurances by the PLO and PA were made after consultation with then-Secretary of State Condoleezza Rice. Attached to his letter to the Solicitor General is a letter from Secretary Rice to PA President Mahmoud Abbas, responding to Abbas’s concerns regarding U.S. court rulings against the PLO, PA, and the Palestinian Investment Fund. Secretary Rice “encourage[d]” Abbas “as I would any government, to respond to U.S. legal proceedings in good faith and a timely manner.”
By reneging on its commitment to participate fully in litigation brought against them under the ATA, the PLO and PA are showing egregious bad faith, not the good faith that our Secretary of State expected. Yet rather than hold the PLO and PA accountable for this outrageous reneging on their promise and commitment, the Solicitor General – based on the brief he, together with the Legal Adviser to the State Department, filed with the Supreme Court in Sokolow – is shamefully allowing and indeed endorsing it.
As Schoen stated in his letter to the Solicitor General:
It is crystal clear that in 2007, the PLO/PA made a firm policy decision, after consulting with our Secretary of State, that it was in their best interests to fully litigate all pending ATA cases against them in the U.S. courts, to prove their purported innocence to the U.S. public. The fact that a jury resoundingly rejected their claims on the merits [in the Sokolow litigation] does not then given them license, let alone with your support, to regret and withdraw their consent to jurisdiction.”
Schoen acknowledged the possibility that the Solicitor General might not have been aware of the PLO/PA’s official commitment to fully litigate all ATA cases in U.S. courts when he filed his brief on behalf of the U.S. government. Now that he undeniably knows, the Solicitor General must withdraw his brief. As Schoen advises the Solicitor General – with the full endorsement of the ZOA – his failure to withdraw the brief “will truly be a very sad commentary on your office, it will badly tarnish the extraordinary reputation your office has enjoyed for so many years, and it will make a mockery of our commitment to hold terrorists accountable for their actions in killing innocent Americans.”
The ZOA strongly urges the Solicitor General to fix this outrage, stand by our anti-terrorism laws, and most importantly, stand with the terror victims, not the terrorists. The Solicitor General should withdraw the brief filed with the U.S. Supreme Court immediately and urge the Court to hear the victims’ case.