Amicus Curiae Brief — Miriam Fuld, et al., Petitioners v. Palestine Liberation Organization, et al.
Supreme Court briefAug 8, 2024
Ask Donna
What actually matters in this document.
Text
NO. 24-20
In the Supreme Court of the United States
________________
MIRIAM FULD, et al.,
Petitioners,
v.
PALESTINE LIBERATION ORGANIZATION, et al.
________________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Second Circuit
________________
BRIEF OF SENATOR CHARLES
GRASSLEY, REPRESENTATIVE JERROLD NADLER,
SENATOR RICHARD BLUMENTHAL, SENATOR
TAMMY DUCKWORTH, SENATOR MARCO RUBIO,
AND SENATOR CHRIS COONS AS AMICI CURIAE
IN SUPPORT OF PETITIONERS
________________
J. Carl Cecere
Counsel of Record
CECERE PC
6035 McCommas Blvd.
Dallas, Texas 75206
(469) 600-9455
ccecere@cecerepc.com
Counsel for Amici Curiae
August 2024
TABLE OF CONTENTS
Table of authorities ............................................................. II
Statement of interest .......................................................... 1
Introduction and summary of argument ......................... 2
Argument ............................................................................. 4
I.
The lower court has nullified an Act of Congress
and eviscerated a critical component of
Congress’s comprehensive anti-terror scheme. ....... 4
A.
Congress enacted the ATA to overcome
jurisdictional obstacles to holding terrorists
accountable in U.S. courts. ................................. 6
B.
Congress amended the ATA in response to
new jurisdictional obstacles that hindered
its operation........................................................ 14
C.
The court below overturns the PSJVTA,
despite Congress’s determination that
holding the PLO and PA accountable in U.S.
civil cases serves vital U.S. national security
interests. ............................................................. 17
II. The lower court has misconstrued the
requirements of Due Process and inserted the
judiciary into matters committed to the Political
Branches. .................................................................... 19
Conclusion .......................................................................... 24
(I)
TABLE OF AUTHORITIES
Cases:
Biton v. Palestinian Auth,,
310 F. Supp. 2d 172 (D.D.C. 2004) ................................. 13
Daimler AG v. Bauman,
134 S. Ct. 746 (2014) ................................................. 14, 15
Douglass v. Nippon Ysen Kabushiki Kaisha,
46 F.4th 226 (5th Cir. 2022) (en banc) ..................... 20, 23
Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct.,
592 U.S. 351 (2021) ......................................................... 22
Gilmore v. Palestinian Interim SelfGovernment Auth.,
422 F. Supp. 2d 96 (D.D.C. 2006) ................................... 13
Iancu v. Brunetti,
139 S. Ct. 2294 (2019) ....................................................... 5
J. McIntyre Mach., Ltd. v. Nicastro,
564 U.S. 873 (2011) ......................................................... 21
Jesner v. Arab Bank PLC,
138 S. Ct. 1386 (2018) ..................................................... 23
Klieman v. Palestinian Auth.,
467 F. Supp. 2d 107 (D.D.C. 2006) ................................. 13
Klieman v. Palestinian Auth.,
923 F.3d 1114 (D.C. Cir. 2019), vacated, 140 S.
Ct. 2713 (2020) ................................................................ 16
Klinghoffer v. S.N.C. Achille Lauro,
795 F. Supp. 112 (S.D.N.Y. 1992) ................................... 13
Knox v. Palestine Liberation Org.,
248 F.R.D. 420 (S.D.N.Y. 2008) ...................................... 13
(II)
III
Cases—continued:
Knox v. Palestine Liberation Org.,
No. 03 Civ. 446 (VM) (THK), 2009 WL 1591404
(S.D.N.Y. Mar. 26, 2009), adopted, 628 F. Supp.
2d 507 (S.D.N.Y. 2009).................................................... 14
Livnat v. Palestinian Auth.,
851 F.3d 45 (D.C. Cir. 2017) ........................................... 14
Massachusetts v. EPA,
549 U.S. 497 (2007). ........................................................ 20
Penhallow v. Doane’s Administrator,
3 U.S. (3 Dall.) 54 (1795) ................................................ 21
Picquet v. Swan,
19 F. Cas. 609 (C.C.D. Mass. 1828) (No. 11,134) .......... 20
Sokolow v. Palestine Liberation Org.,
No. 04-cv-397, 2011 WL 1345086 (S.D.N.Y.
Mar. 30, 2011) .................................................................. 13
Ungar v. Palestinian Auth.,
153 F. Supp. 2d 76 (D.R.I. 2001) .................................... 13
Ungar v. Palestinian Auth.,
715 F. Supp. 2d 253 (D.R.I. 2010) .................................. 14
United States v. Bennett,
232 U.S. 299 (1914). ........................................................ 21
United States v. Curtiss-Wright Exp. Corp.,
299 U.S. 304 (1936) ......................................................... 21
Walden v. Fiore,
134 S. Ct. 1115 (2014) ............................................... 14, 15
Waldman v. Palestine Liberation Org.,
835 F.3d 317 (2d Cir. 2016), vacated sub nom.
Sokolow v. Palestine Liberation Org., 140 S.
Ct. 2714 (2020) .......................................................... 14, 16
IV
Cases—continued:
World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286 (1980). ........................................................ 21
Statutes:
18 U.S.C.
§ 32 ................................................................................. 1, 6
§ 37. .............................................................................. 1, 11
§ 112 ................................................................................... 7
§ 175 ................................................................................... 7
§ 229 ................................................................................. 12
§ 831. ................................................................................ 12
§ 1116 ................................................................................. 7
§ 1201 ................................................................................. 7
§ 1203 ................................................................................. 7
§ 2280 ............................................................................... 11
§ 2281 ............................................................................... 11
§ 2280a ............................................................................. 11
§ 2281a ............................................................................. 11
§§ 2331 et seq. ................................................................. 2,3
§ 2331(1)(C) ..................................................................... 10
§ 2332 ................................................................................. 8
§ 2332b. ............................................................................ 12
§ 2332c ............................................................................. 12
§ 2332f .............................................................................. 13
§ 2332i .............................................................................. 12
§ 2334(e)(1)(A)................................................................. 16
§ 2334(e)(1)(B)................................................................. 16
V
Statutes—continued:
§ 2334(e)(5) ...................................................................... 16
§ 2339B ............................................................................ 12
§ 2339C ............................................................................ 13
§ 2401 ............................................................................... 12
21 U.S.C. § 960a. ................................................................ 13
22 U.S.C. § 5202 ................................................................. 16
49 U.S.C.
§ 1472(n) ............................................................................ 6
§ 46502(b. ......................................................................... 13
Pub. L. 97-285, 96 Stat. 1219 (Oct. 6, 1982)
(amending 18 U.S.C. § 351) ............................................. 8
Act for the Prevention and Punishment of
Crimes Against Internationally Protected
Persons, Pub. L. 94-467, 90 Stat. 1997 (Oct. 8,
1976) ................................................................................... 7
Act for the Prevention and Punishment of the
Crime of Hostage-Taking, Pub. L. 98-473, tit.
II, ch. XX, Part A, 98 Stat. 2186 (Oct. 12, 1984) ............ 7
Aircraft Sabotage Act, Pub. L. 98-473, tit. II, ch.
XX, Part B, 98 Stat. 2187 (Oct. 12, 1984) ....................... 6
Antihijacking Act of 1974, Pub. L. 93-366, 88
Stat. 409 (Aug. 5, 1974) .................................................... 6
Anti-Terrorism Act of 1992, Pub. L. 102–572, tit.
X, § 1003, 106 Stat. 4522-4524 (Oct. 29, 1992) ............ 2,3
Antiterrorism and Effective Death Penalty Act
of 1996, Pub. L. 104-132 (Apr. 4, 1996), § 303 .............. 12
§ 502 ................................................................................. 12
§ 521 ................................................................................. 12
VI
Statutes—continued:
§ 702. ................................................................................ 12
§ 721. ................................................................................ 13
Anti-Terrorism Clarification Act of 2018, Pub. L.
No. 115-253, 132 Stat. 3183-3185 (2018) ................... 2, 15
Biological Weapons Anti-Terrorism Act of 1989,
Pub. L. 101-298, 104 Stat. 201 (May 22, 1990) ............... 7
Federal Death Penalty Act of 1994, Pub. L. 103322, tit. VI,
§ 60009 ............................................................................. 11
§ 60019 ............................................................................. 11
§ 60021. ............................................................................ 12
Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999, Pub.
L. 105-277, div. I, title II, § 201, 112 Stat. 2681866 (Oct. 21, 1998) ........................................................... 12
Omnibus Diplomatic Security and Antiterrorism
Act of 1986, Pub. L. 99-399, § 1202, 100 Stat.
896 (Aug. 27, 1986) ............................................................ 8
Promoting Security and Justice for Victims of
Terrorism Act of 2019, Pub. L. No. 116-94, div.
J, tit. IX, § 903......................................................... 2, 3, 16
Suppression of the Financing of Terrorism
Convention Implementation Act of 2002, Pub.
L. 107-197, § 202, 116 Stat. 724 (June 25, 2002) .......... 13
Taylor Force Act, Pub. L. 115-141, Title X,
§ 1002(1) (22 U.S.C. § 2378c-1 note) ............................. 23
Terrorist Bombings Convention Implementation
Act of 2002, Pub. L. 107-197, § 101, 116 Stat.
721 (June 25, 2002) ......................................................... 13
VII
Statutes—continued:
USA FREEDOM Act of 2015, Pub. L. 114-23, §§
801-805, 129 Stat. 300-309 .............................................. 11
§§ 811-812, 129 Stat. 309-313 ......................................... 12
USA PATRIOT Act, Pub. L. 107-56 (Oct. 26,
2001),
§ 122, 115 Stat. 225. ........................................................ 13
§ 306, 115 Stat. 237 ......................................................... 11
War Crimes Act of 1996, Pub. L. 104-192, 110
Stat. 2104 ......................................................................... 12
Treaties:
Convention for the Suppression of Unlawful
Acts Against the Safety of Civil Aviation, S.
Treaty Doc. 92-32 (ratified Oct. 3, 1972) ........................ 6
Convention for the Suppression of Unlawful
Acts Against the Safety of Maritime
Navigation, S. Treaty Doc. 101-1 (ratified Nov.
22, 1989) ............................................................................. 7
Convention for the Suppression of Unlawful
Seizure of Aircraft, S. Treaty Doc. 92-1
(ratified Sept. 8, 1971) ...................................................... 6
Convention on the Physical Protection of
Nuclear Material Implementation Act of 1982,
Pub. L. 97-351, 96 Stat. 1663 (Oct. 18, 1982) .................. 7
Convention on the Physical Protection of
Nuclear Material, S. Treaty Doc. 96-43
(ratified July 30, 1981) ..................................................... 7
VIII
Treaties—continued:
Convention on the Prevention and Punishment
of Crimes against Internationally Protected
Persons, including Diplomatic Agents, S.
Treaty Doc. 93-36 (ratified Oct. 28, 1975) ...................... 7
Convention on the Prohibition of the
Development, Production, and Stockpiling of
Bacteriological (Biological) and Toxin Weapons
and on Their Destruction, S. Treaty Doc. 92-29
(ratified Dec. 16, 1974) ..................................................... 7
International Convention against the Taking of
Hostages, S. Treaty Doc. 96-49 (ratified July
30, 1981) ............................................................................. 7
Legislative materials:
136 Cong. Rec. 7594 (Apr. 19, 1990) ................................. 11
136 Cong. Rec. S14283 (1990) ......................................... 6, 8
136 Cong. Rec. S14279, S14284 (1990) .............................. 9
136 Cong. Rec. S4592, S4594 (1990) .................................. 6
137 Cong. Rec. 9883 (May 2, 1991) .................................. 11
137 Cong. Rec. S4511 (1991) ............................................. 11
137 Cong. Rec. S1771-01 (1991) ..................................... 5, 9
137 Cong. Rec. S4511-04 (1991) ................................... 5, 10
137 Cong. Rec. S7183 (2019) ............................................. 17
138 Cong. Rec. S17252-04 (1992) ....................................... 8
138 Cong. Rec. S17252-14 (1992) ....................................... 9
IX
Antiterrorism Act of 1990: Hearing Before the
Subcommittee on Courts and Administrative
Practice of the Senate Committee on the
Judiciary, 101st Cong., 2d Sess. at 2-3 (July
25, 1990) ................................................................. 9, 10, 11
Antiterrorism Act of 1990: Hearing on S. 2465
Before the Sen. Subcomm. on Courts &
Admin. Practice, 101st Cong. 84 (1990) ...................... 18
Antiterrorism Act of 1991, Hearing before the
Subcommittee on Intellectual Property and
Judicial Administration of the Committee on
the Judiciary, United States House of
Representatives, 102d Cong., Second Session
(Sept. 18, 1992) ................................................................ 10
The Antiterrorism Act of 1991: Hearing Before
the Subcomm. on Intellectual Property &
Judicial Admin. of the H. Comm. on the
Judiciary, 102d Cong. 10 (1992) ............................. 5, 8, 9
H.R. Rep. No. 115-848 (2018) ........................................... 17
S. Rep. No. 102-342 ............................................................. 9
Constitutional provisions:
U.S. Const., amend. XIV .......................................... 14
U.S. Const., amend.
V .......................... 2, 3, 4, 5, 11, 14, 15, 17, 19, 20, 23
Other authorities:
Jimmy Gurulé, Unfunding Terror: the Legal
Response to the Financing of Global
Terrorism 325 (2008). .................................................... 19
X
Other authorities—continued:
John C. Coffee Jr., Rescuing the Private
Attorney General: Why the Model of the
Lawyer as Bounty Hunter is Not Working, 42
Md. L. Rev. 215 (1983). ................................................... 19
Juan C. Zarate, Treasury’s War: The
Unleashing of a New Era of Financial
Warfare (2013). ............................................................... 18
Stephen E. Sachs, The Unlimited Jurisdiction
of the Federal Courts, 106 Va. L. Rev. 1703
(2020) ................................................................................ 20
The 9/11 Commission Report, Final Report of
the National Commission on Terrorist
Attacks Upon the United States (2004). ...................... 18
In the Supreme Court of the United States
No. 24-20
MIRIAM FULD, et al.,
v.
Petitioners,
PALESTINE LIBERATION ORGANIZATION, et al.
_____________________
On Petition for a Writ of Certiorari
to the United States Court of Appeals,
for the Second Circuit
____________________
BRIEF OF SENATOR CHARLES
GRASSLEY, REPRESENTATIVE JERROLD
NADLER, SENATOR RICHARD BLUMENTHAL,
SENATOR TAMMY DUCKWORTH, SENATOR
MARCO RUBIO, AND SENATOR CHRIS COONS AS
AMICI CURIAE IN SUPPORT OF PETITIONERS
____________________
STATEMENT OF INTEREST1
Amici are a bipartisan group of members of the U.S.
Senate and the House of Representatives with deep experience guiding national antiterrorism policy. They have
served on congressional committees with jurisdiction over
issues related to foreign relations, the judiciary, homeland
security, and armed services. They also share a commitment to the private right of action provided in the Anti1
All parties received 10-days’ advance notice of the filing of this
brief. No counsel for any party authored this brief in whole or in part,
and no one other than amici or their counsel made a monetary contribution intended to fund the brief ’s preparation or submission.
(1)
2
Terrorism Act of 1992 (ATA), 18 U.S.C. § 2331 et seq. Amici
include those who were involved in enacting the ATA and
monitoring its implementation for over 30 years. They
were also involved in enacting the Anti-Terrorism Clarification Act of 2018 (ATCA), Pub. L. No. 115-253, 132 Stat.
3183-3185, and the Promoting Security and Justice for
Victims of Terrorism Act of 2019 (PSJVTA), Pub. L. No.
116-94, div. J, tit. IX, § 903 (codified at 18 U.S.C. § 2334(e)),
a pair of legislative efforts to strengthen the ATA in response to jurisdictional obstacles that certain circuit
courts imposed on terror victims and their families.
The decision under review holds the PSJVTA facially
unconstitutional, effectively eviscerating the ATA’s private right of action in many of its most important applications—against the very organizations it was enacted to
bring into our courts. The decision did so by adopting a
definition of Due Process, and a conception of the territorial boundaries on Congress’s power to legislate against
extraterritorial threats, which will severely hamper Congress’s efforts to combat terrorism. Amici therefore submit this brief to urge this Court to reverse this erroneous
and troubling decision.
INTRODUCTION AND
SUMMARY OF ARGUMENT
For decades, starving terror networks of funding has
been a central focus of Congress’s national security efforts, one that has been singularly effective in bringing
terror sponsors to justice, reducing terrorists’ destructive
capabilities, and saving American lives. Private civil actions have proven to be an integral component of that
strategy. Such suits provide a measure of justice to terror
3
victims and their families and impose uniquely effective financial pressures on the perpetrators, directors, and
sponsors of terror.
Congress’s enactment of the ATA unlocked private
civil lawsuits’ terror-fighting potential, removing many of
the jurisdictional barriers that once made it difficult to
reach terror sponsors like the PLO and PA. And after new
jurisdictional barriers emerged to prevent American
plaintiffs from haling the PLO and PA into U.S. courts,
Congress, with input from the Executive Branch, responded with new legislation, most recently the Promoting Security and Justice for Victims of Terrorism Act of
2019 (PSJVTA), Pub. L. No. 116-94, div. J, tit. IX, § 903.
That act restored the ATA’s full effectiveness against the
PLO and PA, by declaring their post-enactment presence
in the United States, and their post-enactment support of
terrorism, to constitute consent to ATA suits in U.S.
courts. But the court of appeals in this case held the
PSJVTA unconstitutional through a novel and erroneous
interpretation of the Due Process clause that disregards
the understanding of Congress’s virtually unfettered
power to legislate against extraterritorial threats that has
persisted since the founding, and instead subjects Congress’s powers to even greater territorial restraints than
those imposed on the States.
This decision effectively eviscerates the ATA—contravening the considered judgment of Congress, sapping
strength from a key component of the Nation’s anti-terrorism strategy, and dangerously constricting Congress’s
powers to meet an ever-wider variety of extraterritorial
threats. The decision will leave the Political Branches with
sharply limited options to staunch the continued, admit-
4
ted, and unapologetic support of terrorism against American citizens by Respondents, even as those organizations
continue to operate freely on U.S. soil. It will also allow
Respondents to evade responsibility for past acts of terror
that have left scores of Americans dead and scores of families to grieve with no chance at justice.
This case therefore raises constitutional questions of
the highest order about Congress’s authority to combat
terrorism, and about whether Due Process Clause protections designed to limit the States’ power to encroach on
the sovereignty of sister States ought to be applied to shelter foreign terrorists and their sponsors, including those
which maintain a presence in the U.S.
This Court should take this case to reverse the decision
below, remove the barriers preventing the PSJVTA’s constitutional operation, and confirm Congress’s authority to
combat terror occurring outside the borders of the United
States where the Political Branches have determined that
federal interests require the exercise of such authority.
ARGUMENT
I.
The lower court has nullified an Act of Congress
and eviscerated a critical component of
Congress’s comprehensive anti-terror scheme.
In the proceedings below in this case, Judge Menashi,
joined by Chief Judge Livingston and Judges Sullivan and
Park, identified this case as having “exceptional importance.” Pet. App. 232a. That description is entirely accurate. The decision below facially invalidates an Act of
Congress as unconstitutional, which, “on its own,” makes
this case worthy of immediate review. Id. 233a. This
Court’s “usual” approach is to grant certiorari any time “a
lower court has invalidated a federal statute.” Iancu v.
5
Brunetti, 139 S. Ct. 2294, 2298 (2019). And for that reason
alone, it would be appropriate for this Court to grant certiorari in this case.
But this Court’s review is especially critical because
the PSJVTA is not just any federal statute. It is a key component of Congress’s comprehensive scheme to protect
Americans from being harmed by international terrorism—and a key for unlocking the terror-fighting potential
of another federal statute that had been hobbled by improper constitutional interpretation: the ATA, Pub. L.
102–572, tit. X, § 1003, 106 Stat. 4522-4524 (Oct. 29, 1992)
(codified as amended at 18 U.S.C. §§ 2331 et seq.). Congress enacted the ATA to “remove the jurisdictional hurdles in the courts confronting victims [of international terrorism]”—and to ensure that Respondents (and others
like them) can be held accountable for harms they have
inflicted on innocent Americans abroad. The Antiterrorism Act of 1991: Hearing Before the Subcomm. on Intellectual Property & Judicial Admin. of the H. Comm. on
the Judiciary, 102d Cong. 10 (1992) (1992 Hearing) (letter
from Sen. Grassley); 137 Cong. Rec. S4511-04 (1991)
(statement of Sen. Grassley) (same); 137 Cong. Rec.
S1771-01 (1991) (statement of Sen. Grassley) (same).
Yet the decision under review has imposed new jurisdictional barriers that undermine the ATA, even after
Congress amended the law to remove such barriers, effectively placing the PLO and PA beyond the reach of Congress and American courts, notwithstanding the PLO’s
and PA’s continued enjoyment of the benefits of operating
in the United States and their continuing payments to terrorists for murdering and maiming U.S. citizens. That result is not required by the Due Process Clause and should
not be left standing.
6
A. Congress enacted the ATA to overcome
jurisdictional obstacles to holding terrorists
accountable in U.S. courts.
Congress’s impetus for enacting the ATA dates back to
the 1970s and 1980s, when the Nation was stunned by a
series of brazen terror attacks against Americans abroad.
136 Cong. Rec. S4592, S4594 (1990) (statement of Sen. Heflin). These included the PLO’s kidnapping and murder of
U.S. Ambassador Cleo Noel in Sudan in 1973; Hezbollah’s
suicide truck-bomb attack that killed 220 U.S. Marines in
Beirut in 1983; Hezbollah terrorists’ murder of U.S. Navy
Diver Robert Stethem during the hijacking of TWA Flight
847 in 1985; and the bombing of Pan Am Flight 103, which
ended the lives of more than 250 people above Lockerbie,
Scotland in 1988.
1. These horrendous attacks of the 70s and 80s brought
attention to a significant “gap” in the Nation’s legal strategy for combatting oversees terrorism, 136 Cong. Rec.
S14283 (1990) (statement of Sen. Grassley). Up to that
time, Congress had focused on enacting criminal anti-terrorism laws—many of which explicitly reached actors and
conduct beyond our borders. In addition, Congress and
the Executive Branch negotiated, ratified, and implemented a series of international anti-terrorism conventions prohibiting hijacking,2 aircraft sabotage,3 hostage2
Convention for the Suppression of Unlawful Seizure of Aircraft,
S. Treaty Doc. 92-1 (ratified Sept. 8, 1971); Antihijacking Act of 1974,
Pub. L. 93-366, 88 Stat. 409 (Aug. 5, 1974) (adding 49 U.S.C. § 1472(n)).
3
Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation, S. Treaty Doc. 92-32 (ratified Oct. 3, 1972);
Aircraft Sabotage Act, Pub. L. 98-473, tit. II, ch. XX, Part B, 98 Stat.
2187 (Oct. 12, 1984) (amending 18 U.S.C. § 32).
7
taking,4 use of biological5 and nuclear weapons,6 assassination, kidnapping and assault of diplomats, 7 and piracy on
the high seas.8 Congress also enacted many laws that were
expressly designed to act extraterritorially, punishing international terrorists for harms inflicted on Americans
abroad, including by prohibiting assassination, kidnapping, and assault against senior government officials
4
International Convention against the Taking of Hostages, S.
Treaty Doc. 96-49 (ratified July 30, 1981); Act for the Prevention and
Punishment of the Crime of Hostage-Taking, Pub. L. 98-473, tit. II,
ch. XX, Part A, 98 Stat. 2186 (Oct. 12, 1984) (adding 18 U.S.C. § 1203).
5
Convention on the Prohibition of the Development, Production,
and Stockpiling of Bacteriological (Biological) and Toxin Weapons and
on Their Destruction, S. Treaty Doc. 92-29 (ratified Dec. 16, 1974); Biological Weapons Anti-Terrorism Act of 1989, Pub. L. 101-298, 104
Stat. 201 (May 22, 1990) (adding 18 U.S.C. § 175).
6
Convention on the Physical Protection of Nuclear Material, S.
Treaty Doc. 96-43 (ratified July 30, 1981); Convention on the Physical
Protection of Nuclear Material Implementation Act of 1982, Pub. L.
97-351, 96 Stat. 1663 (Oct. 18, 1982) (adding 18 U.S.C. § 831).
7
Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, including Diplomatic
Agents, S. Treaty Doc. 93-36 (ratified Oct. 28, 1975); Act for the Prevention and Punishment of Crimes Against Internationally Protected
Persons, Pub. L. 94-467, 90 Stat. 1997 (Oct. 8, 1976) (amending 18
U.S.C. §§ 112, 1116, 1201).
8
Convention for the Suppression of Unlawful Acts against the
Safety of Maritime Navigation, S. Treaty Doc. 101-1 (ratified Nov. 22,
1989).
8
(1982),9 and terror attacks against United States nationals
(1986).10
2. But while Congress had long combatted terrorism
through criminal laws that allowed foreign terrorists to
be tried in U.S. courts, it was not until the enactment of
the ATA that Congress utilized the potential to fight terrorists through civil lawsuits. With the ATA, Congress
recognized that civil lawsuits could provide a means of
“fill[ing] the gap” in federal national security legal strategy by providing the “civil counterpart” to the nation’s extraterritorial criminal statutes, ibid. (statement of Sen.
Grassley); see also 1992 Hearing at 11. Congress recognized that allowing such private civil actions for terror attacks would not only provide compensation to the victims
of terror but could provide “an important instrument in
the fight against terrorism” itself, id. at 10 (letter from
Sen. Grassley), by striking at “the resource that keeps [international terrorists] in business—their money.” 138
Cong. Rec. S17252-04 (1992) (statement of Sen. Grassley).
The ATA reaffirmed America’s “commitment to the rule
of law,” under which “the people of the United States”
could “bring terrorists to justice the American way, by using the framework of our legal system to seek justice
against those who follow no framework or defy all notions
of morality and justice.” Antiterrorism Act of 1990: Hearing Before the Subcommittee on Courts and Administrative Practice of the Senate Committee on the Judiciary,
9
Pub. L. 97-285, 96 Stat. 1219 (Oct. 6, 1982) (amending 18 U.S.C.
§ 351).
10
Omnibus Diplomatic Security and Antiterrorism Act of 1986,
Pub. L. 99-399, § 1202, 100 Stat. 896 (Aug. 27, 1986) (currently codified
as amended at 18 U.S.C. § 2332).
9
101st Cong., 2d Sess. at 2-3 (July 25, 1990) (“1990 Hearing”).
The attacks of the 1970s and 80s also illustrated why
the ATA was necessary to facilitate these civil suits, revealing terrorism to be “a wrong that, by its nature, falls
outside the usual jurisdictional categories of wrongs that
national legal systems have traditionally addressed.” S.
Rep. No. 102-342, at 22.
One case more than any other illustrated the limitations of these traditional remedies: the PLO’s 1985 murder of wheelchair-bound Leon Klinghoffer, an American
passenger aboard the Italian vessel Achille Lauro. 1990
Hearing 56. The incident not only prompted public outcry
and a congressional inquiry into the PLO and its finances,
id. at 109-117, but also revealed the difficulty in holding
organizational perpetrators or terrorism accountable,
given the welter of technical challenges that the PLO
raised when sued by the Klinghoffer family. The ATA’s legislative record is replete with references to the legal challenges of the Klinghoffer case—and shows how Congress
drew inspiration from that case in order to solve them.11
“Only by virtue of the fact that the attack violated certain
11
See 137 Cong. Rec. S1771-01 (1991) (statement of Sen. Grassley)
(“The PLO must be held accountable for its crimes and the Klinghoffers are making sure that, at least in some way, the PLO will be
brought to justice.”); 138 Cong. Rec. S17252-14 (1992) (statement of
Sen. Grassley) (“[T]he first and best remedy is to bring these terrorists to justice in our courts of law. But often, the terrorists elude justice, as in the Achille Lauro case, where Leon Klinghoffer, an elderly
American was callously murdered by PLO terrorists.”); 136 Cong.
Rec. S14279, S14284 (1990) (statement of Sen. Grassley) (By enacting
Section 2333, Congress intended to “put terrorist[s] on notice[] [t]o
keep their hands off Americans” like Leon Klinghoffer); see also 1992
Hearing at 4.
10
Admiralty laws and that the [PLO] had assets and carried
on activities in New York, was the court able to establish
jurisdiction over the case.” Id. at 5. But Congress was concerned that “[a] similar attack occurring on an airplane or
in some other [foreign] locale might not have been subject
to civil action in the U.S.,” and therefore Congress passed
the ATA to “codify” the Klinghoffer ruling and “make[]
the rights of American victims definitive,” 137 Cong. Rec.
S4511-04 (1991) (statement of Sen. Grassley), whenever
they seek redress for terrorism-related injuries from attacks occurring overseas.
3. The ATA therefore allows U.S. nationals to bring actions for injuries from acts of “international terrorism”
that “occur primarily outside the territorial jurisdiction of
the United States.” See 18 U.S.C. § 2331(1)(C). And the
ATA brings the same “jurisdictional structure that undergirds the reach of American criminal law to the civil remedies it defines.” S. Rep. 102-342, at 45 (1992). Congress
specifically enacted the ATA as a counterpart to 18 U.S.C.
§ 2331 [now 2332], the “so-called ‘long-arm statute,’ which
provides extraterritorial criminal jurisdiction for acts of
international terrorism against U.S. Nationals,” allowing
them to be tried, convicted, and sentenced in U.S. district
courts. H.R. Rep. No. 102-1040, at 5 (1992).12
12
Antiterrorism Act of 1991, Hearing before the Subcommittee
on Intellectual Property and Judicial Administration of the Committee on the Judiciary, United States House of Representatives, 102d
Cong., Second Session at 1 (Sept. 18, 1992) (“House Hearing”) (Subcommittee Chairman Hughes: the “new civil legal cause of action for
international terrorism by providing for extraterritorial jurisdiction
over terrorist acts against U.S. nationals…parallels criminal legisla-
11
Congress was attentive to the sensitivities raised by
this sort of extraterritorial legislation. Congress considered testimony about the ATA’s Due Process implications,
1990 Hearing 79, 121-131, and as a result, tailored the statute to provide a cause of action only where vital U.S. interests are at stake. Congress was confident that Due Process posed no impediment to reaching acts of terrorism
committed abroad by the PLO, because the Klinghoffer
case itself had shown “that the U.S. courts have jurisdiction over the PLO.” 137 Cong. Rec. S4511 (1991) (statement of Sen. Grassley).
That jurisdictional understanding held even after the
creation of the PA in 1993 and persisted for decades. During that time, Congress continued combatting international terrorism by enacting extraterritorial criminal laws
prohibiting foreign murders of U.S. nationals,13 maritime
piracy against U.S. nationals,14 violence at international
tion which we enacted in 1986”); id. at 11 (Ranking Member Moorhead: legislation “will provide civil sanctions as a counterpart to the
criminal statute”); 136 Cong. Rec. 7594 (Apr. 19, 1990) (Statement of
Sen. Heflin) (“While Congress has enacted various laws aimed at extending American criminal jurisdiction for acts of international terrorism against our citizens, there are currently no laws expressly
providing Federal civil remedies against these outrageous acts.”); 137
Cong. Rec. 9883 (May 2, 1991) (Statement of Rep. Feighan).
13
Federal Death Penalty Act of 1994, Pub. L. 103-322, tit. VI, §
60009 (adding 18 U.S.C. § 1119).
14
Id. § 60019 (adding 18 U.S.C. § 2280); USA PATRIOT Act, Pub.
L. 107-56, § 306, 115 Stat. 237 (Oct. 26, 2001) (adding 18 U.S.C. ch.
111A); see USA FREEDOM Act of 2015, Pub. L. 114-23, §§ 801-805,
129 Stat. 300-309 (June 2, 2015) (adding 18 U.S.C. §§ 2280a and 2281a
and amending 18 U.S.C. §§ 2280 and 2281).
12
airports against U.S. nationals,15 use of weapons of mass
destruction against U.S. nationals,16 war crimes against
U.S. nationals,17 the provision of material support and resources to foreign terrorist organizations designated as
threats to U.S. interests or U.S. nationals,18 use of nuclear
weapons19 and chemical weapons against U.S. nationals,20
transnational terrorism against U.S. nationals,21 aircraft
15
Federal Death Penalty Act of 1994, Pub. L. 103-322, tit. VI, §
60021 (adding 18 U.S.C. § 37).
16
Id. § 60021 (adding 18 U.S.C. § 37).
17
War Crimes Act of 1996, Pub. L. 104-192, 110 Stat. 2104 (adding
18 U.S.C. § 2401).
18
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
104-132 (Apr. 4, 1996), § 303 (adding 18 U.S.C. § 2339B); see USA
FREEDOM Act of 2015, Pub. L. 114-23, §§ 81-812, 129 Stat. 309-313
(June 2, 2015) (adding 18 U.S.C. § 2332i and amending 18 U.S.C. §
831).
19
Id. § 502 (amending 18 U.S.C. § 831).
20
Id. § 521 (adding 18 U.S.C. § 2332c); Omnibus Consolidated and
Emergency Supplemental Appropriations Act, 1999, Pub. L. 105-277,
div. I, title II, § 201, 112 Stat. 2681-866 (Oct. 21, 1998) (adding 18
U.S.C. § 229).
21
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
104-132, § 702 (adding 18 U.S.C. § 2332b).
13
hijacking against U.S. nationals,22 narcoterrorism harming U.S. nationals,23 terrorist bombings against U.S. nationals,24 and the financing of terrorism harming U.S. nationals.25
During that same period, private parties successfully
sued the PLO and PA in numerous civil cases under the
ATA. In each case, district courts held that the PLO and
PA were subject to personal jurisdiction in the United
States.26 And both the PLO and PA were forced to pay
22
Id. § 721 (Apr. 4, 1996) (amending 18 U.S.C. §§ 32, 37, and 49
U.S.C. § 46502(b)).
23
USA PATRIOT Act, Pub. L. 107-56, § 122, 115 Stat. 225 (Oct.
26, 2001) (adding 21 U.S.C. § 960a).
24
Terrorist Bombings Convention Implementation Act of 2002,
Pub. L. 107-197, § 101, 116 Stat. 721 (June 25, 2002) (adding 18 U.S.C.
§ 2332f).
25
Suppression of the Financing of Terrorism Convention Implementation Act of 2002, Pub. L. 107-197, § 202, 116 Stat. 724 (June 25,
2002) (adding 18 U.S.C. § 2339C).
26
See Sokolow v. Palestine Liberation Org., No. 04-cv-397, 2011
WL 1345086, at *3 n.7 (S.D.N.Y. Mar. 30, 2011) (collecting cases);
Klinghoffer v. S.N.C. Achille Lauro, 795 F. Supp. 112, 114 (S.D.N.Y.
1992); Ungar v. Palestinian Auth., 153 F. Supp. 2d 76, 88 (D.R.I. 2001);
Biton v. Palestinian Auth,, 310 F. Supp. 2d 172, 179 (D.D.C. 2004);
Knox v. Palestine Liberation Org., 248 F.R.D. 420, 427 (S.D.N.Y.
2008); Klieman v. Palestinian Auth., 467 F. Supp. 2d 107, 113 (D.D.C.
2006). The rule was so well established that the PLO and PA stopped
contesting jurisdiction in some cases. Gilmore v. Palestinian Interim
Self-Government Auth., 422 F. Supp. 2d 96, 102 n.4 (D.D.C. 2006)
(“Defendants did not move to dismiss the PLO and the PA from this
action for lack of personal jurisdiction.”).
14
substantial sums to U.S. victims of international terror attacks.27
B. Congress amended the ATA in response to new
jurisdictional obstacles that hindered its
operation.
1. Things changed, however, after the Court’s decisions in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), and
Walden v. Fiore, 134 S. Ct. 1115 (2014). After Daimler and
Walden were decided, the PLO and PA began advancing
the argument that U.S. courts no longer had jurisdiction
over either of them, and that meritorious suits brought
against them by Americans who had been injured or killed
in acts of international terrorism had to be dismissed. See
Waldman v. Palestine Liberation Org., 835 F.3d 317, 322
(2d Cir. 2016), vacated sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020); see also Livnat v. Palestinian Auth., 851 F.3d 45, 142 (D.C. Cir. 2017).
Certain courts agreed—including the lower court. Although both Daimler and Walden concerned Fourteenth
Amendment Due Process standards applicable only
against the States, this Court held that these precedents
should also govern Fifth Amendment Due Process standards applicable in federal district court. Waldman, 835
F.3d at 337; see also Livnat v. Palestinian Auth., 851 F.3d
45, 57-59 (D.C. Cir. 2017). And on the basis of that understanding, the court below applied the personal jurisdiction
27
See, e.g., Ungar v. Palestinian Auth., 715 F. Supp. 2d 253, 269
(D.R.I. 2010) ($116 million judgment paid on installment basis); Knox
v. Palestine Liberation Org., No. 03 Civ. 446 (VM) (THK), 2009 WL
1591404, at *12 (S.D.N.Y. Mar. 26, 2009) ($5 million per month payments), adopted, 628 F. Supp. 2d 507 (S.D.N.Y. 2009).
15
standards from Walden and Daimler on terms that essentially precluded the ATA from being applied to conduct occurring abroad by any foreign-terror-sponsoring organization like the PLO or PA. The court decided that the ATA
could not be constitutionally applied to Respondents because neither of them could be considered “at home,” in
Daimler’s parlance, in this country. 835 F.3d at 331-35. The
court also concluded that the PLO’s and PA’s terror-sponsoring activities lacked the “‘substantial connection’” to
the United States that Walden demands, because their
“‘suit-related conduct’” occurred abroad, and “the plaintiff-victims[’ status as] United States citizens” was insufficient to establish the requisite connection. Id. at 335 (quoting Walden, 134 S. Ct. at 1121). These rulings effectively
precluded the PLO, the PA, or any similar foreign sponsor
of terrorism acting abroad, from being hailed into U.S.
courts under general or specific personal jurisdiction Due
Process standards.28
2. In response, Congress quickly and decisively
passed the ATCA (Pub. L. No. 115-253, 132 Stat. 31833185 (2018)) using a long-recognized and firmly established basis for obtaining personal jurisdiction—jurisdiction by consent. The statute provided that any person who
28
Some of the present Amici, as well as the House of Representatives acting on a bipartisan basis, urged this Court to review the decision in Sokolow, expressing the view that Fourteenth Amendment
personal jurisdiction standards had no application to suits arising under federal law where Congress provided for federal jurisdiction in
federal courts. See Br. for the U.S. House of Reps. as Amicus Curiae,
Sokolow v. PLO, No. 16-1071 (Apr. 2017) (H.R. Br.); Br. of U.S. Senator Charles E. Grassley et al. as Amici Curiae, Sokolow v. PLO, No.
16-1071 (Apr. 2017). The Supreme Court declined review. 138 S. Ct.
1438 (2018).
16
benefited from a waiver of 22 U.S.C. § 5202 (a statute excluding the PLO and its agents from the United States) or
accepted specified forms of U.S. foreign assistance (which
both the PLO and PA had received) would be deemed to
have consented to personal jurisdiction in U.S. civil actions
brought under the ATA. Pub. L. 115-253, § 4(a) (formerly
codified at 18 U.S.C. § 2334(e)(1)(A)). After the ATCA became law, the PLO and PA stopped accepting any of the
foreign assistance that qualified under the Act. In addition, the Second and D.C. Circuits held that the PLO and
PA were not benefiting from a waiver of the relevant statute, and thus the ATCA’s “factual predicates” had not been
established against them. Klieman v. Palestinian Auth.,
923 F.3d 1114, 1128-31 (D.C. Cir. 2019), vacated, 140 S. Ct.
2713 (2020); Waldman, 925 F.3d at 574.
3. Congress again responded with the Promoting Security and Justice for Victims of Terrorism Act of 2019
(PSJVTA). Pub. L. No. 116-94, div. J, tit. IX, § 903. The
PSJVTA expanded the bases for jurisdiction established
by the ATCA. And it specifically identified the PA and
PLO by name, 18 U.S.C. § 2334(e)(5), expressly providing
that those organizations’ post-enactment activities in the
United States would be deemed to constitute consent to
jurisdiction in civil ATA cases, with narrow exceptions for
participation in official U.N. business and other specified
activities. 18 U.S.C. § 2334(e)(1)(B). The PSJVTA also contained a new jurisdictional provision under which the PLO
and PA would be deemed to have consented to personal
jurisdiction in civil ATA cases if they made post-enactment
payments to terrorists who had been imprisoned for injuring or killing American citizens or made such payments to
the families of terrorists who had been killed doing so. 18
U.S.C. § 2334(e)(1)(A).
17
Congress based the PSJVTA on the same consentbased theory that undergirded the ATCA: that imposing
such conditions on “the PLO and the PA” was eminently
reasonable as “Congress has repeatedly tied their continued receipt of privileges,” including this country’s tolerance of their “continued presence in the United States” “to
their commitment to renounce terrorism.” See H.R. Rep.
No. 115-848, at 7 (2018). Congress gave the PLO and PA a
choice: abide by conditions on matters of intense interest
to the United States or provide grounds to “reopen[] the
courthouse doors to American victims and their families,”
137 Cong. Rec. S7183 (2019) (statement of Sen. Grassley),
who had seen their cases “dismissed for lack of jurisdiction
after years of litigation,” id. at S7182 (statement of Sen.
Lankford).
C. The court below overturns the PSJVTA, despite
Congress’s determination that holding the
PLO and PA accountable in U.S. civil cases
serves vital U.S. national security interests.
1. The court of appeals in this case shut the courthouse
doors once again. The court accepted that the PLO and PA
had engaged in conduct necessary to trigger jurisdiction
under the PSJVTA by paying terrorists who had murdered Americans and by conducting activities inside the
United States. App. Pet. App. 38a. Yet the court held the
Act unconstitutional on its face. In the court’s view, the
Fifth Amendment’s Due Process Clause requires a that
Congress can only enact consent-to-jurisdiction statutes
like the PSJVTA if it provides those subject to the Act with
some “reciprocal bargain” in return. Id. 24a-26a. And
granting the PLO and PA’s permission to be present and
engage in activities in the United States does not count as
such a “benefit.” See id. 28a. If left standing, this ruling
18
would invalidate Congress’s express determination to revive the ATA and would likely prohibit Congress from
passing any future deemed-consent legislation reaching
the PLO and PA that would pass constitutional muster.
2. Leaving the decision in place would thus hamstring
key components of the United States’ antiterrorism strategy. Congress has long understood that terror enterprises
“rest[] on a foundation of money.” See Antiterrorism Act
of 1990: Hearing on S. 2465 Before the Sen. Subcomm. on
Courts & Admin. Practice, 101st Cong. 84 (1990) (testimony of Joseph A. Morris, former General Counsel, U.S.
Information Agency). Congress has therefore employed a
robust and comprehensive scheme—composed of administrative sanctions, civil and criminal penalties—that aims
to deny malefactors of every dollar they might use to fund
terrorism. And these government efforts to combat terror
financing have been demonstrably effective. See The 9/11
Commission Report, Final Report of the National Commission on Terrorist Attacks Upon the United States
382–383 (2004). For instance, documents found in Osama
Bin Laden’s compound revealed that efforts to restrict
terrorist funding had frustrated al Qaeda’s efforts to raise
and transfer money around the world. Juan C. Zarate,
Treasury’s War: The Unleashing of a New Era of Financial Warfare ix (2013).
Congress has determined that government enforcement alone is not enough to stanch the flow of terror
funds. Civil litigation under the ATA plays an irreplaceable role in reinforcing these governmental antiterrorism
efforts, providing “an invaluable supplement to the criminal justice process and administrative blocking orders,”
Jimmy Gurulé, Unfunding Terror: the Legal Response to
the Financing of Global Terrorism 325 (2008). Private
19
civil litigation also provides advantages that make it a
more effective terror-fighting tool than criminal enforcement efforts, including a less stringent burden of proof, an
absence of constitutional restrictions on investigation, and
broader discovery rights than those accorded governmental agents. Ibid. Private civil lawsuits also provide “an important failsafe function” against the winds of political
change, “by ensuring that legal norms are not wholly dependent on the current attitudes of public enforcers.”
John C. Coffee Jr., Rescuing the Private Attorney General: Why the Model of the Lawyer as Bounty Hunter is
Not Working, 42 Md. L. Rev. 215, 227 (1983).
Accordingly, by undercutting the operation of the ATA,
the court of appeals not only denied relief to American victims of international terrorism, it blunted a vital tool in our
Nation’s war on terror, frustrating an Act of Congress that
concerns one of the gravest threats facing our nation. The
Court’s review is warranted to reverse that improper result.
II. The lower court has misconstrued the
requirements of Due Process and inserted the
judiciary into matters committed to the Political
Branches.
It is not just the lower court’s result—striking down as
unconstitutional a federal statute aimed at national security—that raises concerns for Congress and warrants this
Court’s review. The decision’s legal underpinnings themselves threaten to undermine Congress’s legitimate authority to legislate consistent with the Due Process Clause
and to meet future threats facing the Nation.
A. In holding that federal legislation concerning the
territorial reach of the federal courts’ adjudicative powers
20
is subject to the same Due Process limits as state laws and
state courts, the court below disregarded an understanding of Due Process, and different understandings of state
versus federal sovereignty that have persisted since the
founding.
“For the first 150 years of the Republic, *** the recognized doctrines of jurisdiction worked very differently for
state and federal courts.” Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev.
1703, 1706 (2020). Unlike the jurisdictional limitations imposed upon state courts by the Fourteenth Amendment,
“as originally understood, the Fifth Amendment did not
impose any limits on the personal jurisdiction of the federal courts. Instead, it was up to Congress to impose such
limits by statute.” Douglass v. Nippon Ysen Kabushiki
Kaisha, 46 F.4th 226, 255 (5th Cir. 2022) (en banc) (Oldham, J., dissenting). Accordingly, “[i]f Congress wanted to
exercise exorbitant [personal] jurisdiction * * * a federal
court ‘would certainly be bound to follow it, and proceed
upon the law.’” Sachs, supra (quoting Picquet v. Swan, 19
F. Cas. 609 (C.C.D. Mass. 1828) (No. 11,134) (Story, J.)).
This basic distinction between federal and state jurisdictional power results from peculiar limits on state sovereignty that have no federal analog. In our federal system, “[w]hen a state enters the Union, it surrenders certain sovereign prerogatives.” Massachusetts v. EPA, 549
U.S. 497, 519 (2007). “[T]he sovereignty of each State * *
* implie[s] a limitation on the sovereignty of all its sister
States—a limitation express or implicit in both the original scheme of the Constitution and the Fourteenth
Amendment.” World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 293 (1980). Those limitations preserve the balance among States, “acting to ensure that the States
21
through their courts, do not reach out beyond the limits
imposed on them by their status as coequal sovereigns in
a federal system.” World-Wide Volkswagen, 444 U.S. at 292.
They are an expression of the reality that the States have
agreed to coexist under a single Constitution, each agreeing to respect the needs of the other. “[I]f another State
were to assert jurisdiction in an inappropriate case, it
would upset the federal balance, which posits that each
State has a sovereignty that is not subject to unlawful intrusion by other States.” J. McIntyre Mach., Ltd. v.
Nicastro, 564 U.S. 873, 884 (2011) (plurality).
But personal jurisdiction “requires a forum-by-forum,
or sovereign-by-sovereign, analysis.” McIntyre, 564 U.S.
at 583. And where the relevant “sovereign” is the federal
government, the Constitution expressly conveys to Congress the “external powers” to assert jurisdiction over
cases arising outside the territory of the United States.
United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304,
316-18 (1936) (citing Penhallow v. Doane’s Administrator, 3 U.S. (3 Dall.) 54, 80–81 (1795)). And this Court has
warned that “the limitations of the Constitution * * * preventing [States] from transcending the limits of their authority” afford “no ground for constructing an imaginary
constitutional barrier around the exterior confines of the
United States for the purposes of shutting the government off from the exertion of powers which inherently belong to it by virtue of its sovereignty.” United States v.
Bennett, 232 U.S. 299, 306 (1914).
From the very beginning, Congress has regulated
consistent with the understanding that it could assert extraterritorial jurisdiction to address a series of exterior
22
threats from abroad. And this Court has consistently upheld those actions. See Pet. 17-20. Yet the decision below
upends that understanding entirely.
It is therefore critical for the Court to take this case to
ensure that the Fifth Amendment is not interpreted to impose restrictions on the powers of the federal government
to enact reasonable legislation advancing extraterritorial
national security interests based on federalism constraints meant to limit only the States’ powers vis-à-vis
one another.
B. Yet even taken on its own terms, the court of appeals’ attempt to apply limits on states’ territorial authority to Congress and the federal courts is entirely improper.
The lower court applied notions of consent that would be
more at home in contract law than an explanation of federal power, under which Congress must bargain with terrorists by giving them “governmental benefit[s]” to obtain
their willingness to subject themselves to the jurisdiction
of U.S. courts. Pet. App. 38a. But even States are not required to provide such reciprocal benefits to enact
deemed-consent laws. They need only provide defendants
“fair warning” and be “reasonable, in the context of our
federal system of government.” Ford Motor Co. v. Mont.
Eighth Jud. Dist. Ct., 592 U.S. 351, 358 (2021) (citation
omitted).
There is no legitimate question that the PSJVTA
would pass muster under that analysis, because there is
no question that the Act gave the PLO and PA the freedom
to avoid the jurisdiction of U.S. courts simply by ceasing
pay-for-slay “martyr” payments to people who have killed
Americans or confining their activities in the United
States within the boundaries set in the Act. And there can
23
be no doubt that the Act reasonably advances legitimate—
nay, vital—federal interests.
Furthermore, as Judge Elrod has observed, the Second
Circuit’s rule means that “civil foreign defendants now
have more due process rights than criminal foreign defendants,” Douglass, 46 F.4th at 276 (dissenting), when
the greater deprivation of liberty in the criminal context
obviously calls for greater Due Process protections. See
Pet. 24-25.
In the end, the lower court’s constitutional analysis
amounts to little else beyond a disagreement between one
circuit court and Congress itself on complex questions of
foreign policy—including the proper way to conduct an
anti-terror campaign and whether Respondents should be
entitled to continue their odious pay-for-slay practice,
which is “an incentive to commit acts of terror.” Taylor
Force Act, Pub. L. 115-141, Title X, § 1002(1) (22 U.S.C.
§ 2378c-1 note), while still evading the jurisdiction of U.S.
courts. But “[t]he political branches, not the Judiciary,
have the responsibility and institutional capacity to weigh
foreign-policy concerns.” Jesner v. Arab Bank PLC, 138
S. Ct. 1386, 1403 (2018). The circuit court’s arrogation of
those foreign-policy questions to itself is yet another reason this Court’s review is necessary.
24
CONCLUSION
The petition for a writ of certiorari should be granted.
J. Carl Cecere
Counsel of Record
CECERE PC
6035 McCommas Blvd.
Dallas, Texas 75206
(469) 600-9455
ccecere@cecerepc.com
Counsel for Amici Curiae
August 2024
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.