Amicus Curiae Brief — Miriam Fuld, et al., Petitioners v. Palestine Liberation Organization, et al.
Supreme Court briefFeb 4, 2025
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NO. 24-20
In the Supreme Court of the United States
________________
MIRIAM FULD, et al.,
Petitioners,
v.
PALESTINE LIBERATION ORGANIZATION, et al.
________________
On Writ of Certiorari
to the United States Court of Appeals
for the Second Circuit
________________
BRIEF OF SENATOR CHARLES GRASSLEY, SENATOR CHRIS COONS, SENATOR RICHARD BLUMENTHAL, REPRESENTATIVE JERROLD NADLER, AND
REPRESENTATIVE CLAUDIA TENNEY 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
February 2025
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. ................................. 5
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
Legislative materials—continued:
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.,
Petitioners,
v.
PALESTINE LIBERATION ORGANIZATION, et al.
_____________________
On Writ of Certiorari
to the United States Court of Appeals,
for the Second Circuit
____________________
BRIEF OF SENATOR CHARLES GRASSLEY,
SENATOR CHRIS COONS, SENATOR RICHARD
BLUMENTHAL, REPRESENTATIVE JERROLD
NADLER, AND REPRESENTATIVE CLAUDIA
TENNEY AS AMICI CURIAE
IN SUPPORT OF PETITIONERS
____________________
1
STATEMENT OF INTEREST
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
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 the terrorfighting potential of civil lawsuits, 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 antiterrorism strategy, and dangerously constricting Congress’s
powers to meet an ever-widening variety of extraterritorial threats. The decision will leave the Political Branches
with sharply limited options to staunch the continued, admitted, and unapologetic support of terrorism against
4
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 left 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 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 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.
5
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.
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
6
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 the Nation’s borders. In addition, Congress and the Executive Branch negotiated, ratified, and
7
implemented a series of international anti-terrorism con2
3
ventions prohibiting hijacking, aircraft sabotage, hos4
5
6
tage-taking, use of biological and nuclear weapons, as7
sassination, kidnapping and assault of diplomats, and pi8
racy on the high seas. Congress also enacted many laws
2
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).
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
8
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 offi9
10
cials, and terror attacks against United States nationals.
2. But while Congress had long combatted terrorism
through criminal laws that facilitated trying foreign terrorists 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, 136 Cong. Rec. at S14283 (1990)
(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
Safety of Maritime Navigation, S. Treaty Doc. 101-1 (ratified Nov. 22,
1989).
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
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, 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. See
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
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
10
“Only by virtue of the fact that the attack violated certain
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.” H.R. Rep. No. 102–1040, at 5
(1992). 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
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.
11
them to be tried, convicted, and sentenced in U.S. district
12
courts. H.R. Rep. No. 102-1040, at 5.
Congress was attentive to the constitutional 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,
Congress 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
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 legislation 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).
12
13
prohibiting foreign murders of U.S. nationals, maritime
14
piracy against U.S. nationals, violence at international
15
airports against U.S. nationals, use of weapons of mass
16
destruction against U.S. nationals, war crimes against
17
U.S. nationals, 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
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).
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
20
Id. § 502 (amending 18 U.S.C. § 831).
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).
13
21
transnational terrorism against U.S. nationals, aircraft
22
hijacking against U.S. nationals, narcoterrorism harm23
ing U.S. nationals, terrorist bombings against U.S. na24
tionals, and the financing of terrorism harming U.S. na25
tionals.
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
21
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
104-132, § 702 (adding 18 U.S.C. § 2332b).
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
14
substantial sums to U.S. victims of international terror at27
tacks.
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, the court below held that these precedents should also govern Fifth Amendment Due Process
standards applicable in federal district court. Waldman,
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.”).
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
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 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 juris28
diction Due Process standards.
2. In response, Congress quickly and decisively
passed the ATCA (Pub. L. No. 115-253, 132 Stat. 318328
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
3185 (2018)) using a long-recognized and firmly established basis for obtaining personal jurisdiction—jurisdiction by consent. The ATCA provided that any person who
benefited from a waiver of 22 U.S.C. § 5202 (a statute excluding the PLO and its agents from the United States) or
had 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)).
Yet the ATCA was immediately nullified. 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 allowing the PA and PLO to participate 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
17
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).
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 overturned 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. Pet. App. 1a. Yet the court held the Act unconstitutional on its face. In the court’s view, the Fifth
18
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 the
court determined that granting the PLO and PA permission to be present and engage in activities in the United
States did not count as such a “benefit.” See id. 28a. If left
standing, this ruling 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 Nation’s 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. 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);
see also The 9/11 Commission Report, Final Report of the
National Commission on Terrorist Attacks Upon the
United States 382–383 (2004).
19
Yet 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
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 must 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 ultimate conclusion—
striking down as unconstitutional a federal statute aimed
at national security—that raises concerns for Congress
20
and must be overturned. 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.
And these improper foundations for the lower court’s conclusions must also be repudiated.
A. In holding that federal legislation concerning the
territorial reach of the federal courts’ adjudicative powers
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 sys-
21
tem, “[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
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.
These limits 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
22
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 an understanding that it could assert extraterritorial jurisdiction to address a series of exterior
threats from abroad. And this Court has consistently upheld those actions. See Pet. Br. 16-27. Yet the decision below upends that understanding entirely.
It is therefore critical for the Court to reverse the
judgments below, in order 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. Even States are not required
to provide such reciprocal benefits to enact deemed-consent laws: “‘express or implied consent’ can continue to
ground personal jurisdiction—and consent may be manifested in various ways by word or deed.” Mallory v. Norfolk Southern Ry Co., 600 U.S. 122, 138 (2023).
Even outside the deemed-consent context, due process
generally requires that a law (even a jurisdictional law)
23
provide “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 notice of
the conduct that would subject them to the jurisdiction of
U.S. courts and the freedom to avoid such jurisdiction
simply by ceasing pay-for-slay “martyr” and “prisoner”
payments to people who have killed Americans and by
confining their activities in the United States to the narrow boundaries set out in the PSJVTA. And there can 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 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 it is “[t]he
political branches, not the Judiciary,” that “ha[s] the responsibility and institutional capacity to weigh foreign-
24
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 that
its decision must be reversed.
CONCLUSION
The judgment of the court of appeals should be reversed.
J. Carl Cecere
Counsel of Record
CECERE PC
6035 McCommas Blvd.
Dallas, Texas 75206
(469) 600-9455
ccecere@cecerepc.com
Counsel for Amici Curiae
February 2025
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.