State Department should butt out

Law must trump politics

By Ed Morgan, National Post

…the federal court issued a request for a governmental “statement of interest” in order to determine whether any “separation of powers” issue — where the judicial branch backs off a case for fear of treading on the executive branch’s turf — is truly at stake. The State Department has been contemplating its response and, given the amount of aid to the PA it routes through U.S. financial institutions, is reported to be leaning toward the Palestinians.

Leslye Knox’s husband Aaron was killed when a bomb exploded at a bar mitzvah in the town of Hadera, Israel. Yishai Ungar’s parents, Yaron and Efrat, were killed in a drive-by shooting on an Israeli highway on the way to a family wedding. The two American citizens share more than celebrations-turned-tragic. They share a commitment to using the law to repair their lives.

Each won a large award after suing the Palestinian Authority (PA) under U.S. anti-terror legislation — $175-million in the Knox case and $116-million in Ungar. In both judgments, individuals under the command of the late Palestinian president Yasser Arafat were identified as the perpetrators of the attacks, and the PA was held responsible for sponsoring them.

As a result of creative maneuvers by the families’ lawyers, attempts to collect the judgments have met with some success. They froze several U.S. bank accounts belonging to the PA’s parent body, the Palestinian Liberation Organization (PLO), and one holding pension funds for PA civil servants. They also brought enforcement proceedings in Israeli courts, seeking to legally divert Palestinian excise taxes that Israel collects and remits to the PA. At one point, the plaintiff families managed to lien the Manhattan building used by the PLO as its United Nations mission headquarters. A New York court eventually vacated the lien, but the message was sent that the assets of those who sponsor terror remain at risk.

Knox and Ungar now face another legal challenge. The PA, with new lawyers in tow, has applied to a federal court in New York to quash the judgments, stating they will vigorously defend cases they had previously ignored. But the PA’s claim that the lawsuits were previously unanswered is patently false. The PA was represented all along by no less a legal figure than Ramsay Clark, the Carter Administration’s attorney general.

Clark recently told the court that in 2003 he visited Arafat personally and was instructed to ignore the litigation. Nevertheless, for years Clark put up a strenuous defence, arguing all the way to the U.S. Supreme Court that the PA has sovereign state status and deserves immunity in other states’ courts. Clark lost that argument, and now seeks to avoid the consequences by pursuing a different tact.

Palestinian Prime Minister Salaam Fayyad put forward the new strategy when he labelled the judgments an obstacle to continued Palestinian participation in the peace process. That view was endorsed by PA President Mahmoud Ab-bas, who wrote directly to Secretary of State Condoleezza Rice calling for U.S. government intervention.

This past month, the PA was in court arguing that the judgments could potentially bankrupt it and interfere with American foreign policy. With that in mind, the federal court issued a request for a governmental “statement of interest” in order to determine whether any “separation of powers” issue — where the judicial branch backs off a case for fear of treading on the executive branch’s turf — is truly at stake. The State Department has been contemplating its response and, given the amount of aid to the PA it routes through U.S. financial institutions, is reported to be leaning toward the Palestinians.

This would set a precedent that threatens judgments in numerous U.S. cases against foreign entities, including sponsors of terror, state practitioners of torture and human rights abusers of all shapes and sizes. The Knox and Ungar lawyers met last week with the U.S. Department of Justice, trying to get the one branch of government that worries about civil rights to weigh in on the side of the rule of law for U.S. citizens killed abroad.

The suits against the PA now boil down to a contest between the foreign policy interests of the United States and the civil rights of Americans. As a consequence, the State Department’s Middle East desk is facing off against the Justice Department’s litigation policy branch.

For the sake of terror victims everywhere, here’s hoping the court comes down on the side of law over politics, or Justice over State, and that it helps ease the plaintiffs’ enduring losses.

Ed Morgan is a law professor at the University of Toronto. He testified as the plaintiff’s expert on the international legal status of the PA in the Ungar case.

February 21, 2008 | 4 Comments »

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  1. ‘The fake allies’

    America has no business aiding Israel. The attempts to achieve for Israel
    closer ties with the US are a disservice to Jewish people. American will
    never-ever pursue Jewish interests as they are irrelevant to US voters and
    America embargoed weapons shipments to Israel during the
    Independence War, threatened intervention on Egypt’s behalf in the 1956 war,
    had operational plans for landing its troops in Sinai to defend Egypt in 1967,
    barred Israel from preemption in 1973 and only shipped Israel weapons after
    we’ve won the war, forced Israel to abandon Sinai, and pushes us to the
    suicidal peace process. America gives more aid to Egypt and Palestine than
    Israel, fought for Kuwait but never for Israel, and spent more in Iraq than the
    total aid to Israel since inception.

    That is only natural, as we cannot expect America to take care of the Jewish state.
    Why would the WASP establishment care, if Jews don’t? Polls indicate the
    American Jews overwhelmingly supports the peace process and opposes the war with
    Iran. No one hates Israel like many American Jews: they want to prove to their
    Gentile friends that they are not too Jewish, and so side with Arabs. They are
    trying to show that Jews are exactly like others; but Jewish state is not like
    other states. And so most American Jews support “democratic” Israel where
    Arabs enjoy equal rights with Jews: that is, the right to breed and vote Jewish
    state out of existence.

    The support Israel now enjoys from America is a self-delusion. The US vetoed
    many UN resolutions which condemned Israel. But the very likelihood of such veto
    allows other UNSC members to behave more radically: they vote pro-Left pro-Arab
    knowing that the resolution won’t pass. The US vetoes keep Israel in the UN
    while a stream of empty anti-Israeli resolutions would have forced Israel out of
    that barbarian conference, and end Israeli adherence to the UN-sponsored
    nonsense such as the 1956 borders. The UN fails to enforce sanctions against
    Iran, an international pariah; the chance of effective sanctions against Israel
    is infinitesimal. If Israel doesn’t follow the South Africa’s path of
    decades-long oppression of aborigines, but ends the Arab demographic problem
    swiftly and ruthlessly, in a few years there would be no prospect of sanctions.

    From 1948 to 1972, Israel survived while having no official sponsor. We played
    with France, Germany, America, even the Soviet forefront Romania, and survived.
    Arab loyalty is non-existent and allegiance – prohibitively expensive; many
    countries would find it cheaper to buy regional influence by aiding Israel than
    Arabs. America aids Israel to control her, and to brandish that control before
    Arabs extracting concessions from them. The control over Israel gives America
    great leverage in relations with every Arab country; aid to Israel is an
    excellent investment. Not only the US, but other countries, too, realize that
    and would ally themselves with Israel. In the show of absurd loyalty, Israel
    sticks to America, but America sells her at every corner – for oil.

    Russia cannot give Israel much aid, but can supply advanced weapons much
    cheaper than America, and provide excellent support in the UN.
    military credibility among Arabs is much higher than America’s; Arabs don’t
    hesitate terrorizing the American pawn, but would shrink from attacking
    Russia’s client state.

    There is also France, boiling with imperial ambitions but unable to vie the
    Arab states away from America. Through an alliance with France, Israel can
    extract diplomatic support and considerable aid from the EU.

    China and India.

    Israel pays with real concessions for the fictional American support. The US
    needs to show the Arab clients its power over Israel, and kicks her around just
    for fun of it: witness the squabble over a few dozen hamlets dubbed frightfully
    “illegal outposts.” As if the Arab attacks on Israel from 1929 onwards have
    anything to do with those hamlets erected as a protest against the Oslo
    capitulation. American politicians sell Israel to placate Arabs, such as by
    boosting the peace process after the Iraqi debacle. The Carter-Rice ilk uses
    Israel to vindicate their silly theories, and Clinton pushed for the peace
    process to cover his deviatory conduct. If not for US pressure, Israeli
    governments won’t even think of giving the Arabs Judea and Samaria and
    partitioning Jerusalem.

    Incidentally, our tactical goals agree with a major aim of American
    anti-Semites: divestment from Israel.
    For the utterly different reasons we, too
    believe that Israel must abandon the US aid and live on her own. Financial
    responsibility would signify the return to Israel’s fundamental political
    doctrine: Only IDF is responsible for Israel’s safety. Israel doesn’t need
    the Star Wars weapons to extinguish Palestinian terrorism; good old napalm would
    do. Israel need not cutting-edge weapons against regular Arab armies: nuclear
    bombs are good enough.

    Rough, self-reliant, arrogant Israel has a good chance for lasting armistice
    with neighboring Arabs. Israel the American client has no chance for lasting

    We have already tried relying on Assyria.

  2. If, as the article says, “The suits against the PA now boil down to a contest between the foreign policy interests of the United States and the civil rights of Americans,” then the civil rights of Americans will lose. Anyone or any group who sides with Muslims is a Muslim or a Muslim group.

    Victims of Palestinian terror ask US not to hinder their cases

    Terror victims from across the US and Israel came here this week to urge the
    Bush administration not to interfere with their multi-million-dollar
    lawsuits against the Palestine Liberation Organization. They left feeling
    they’d been listened to, but not necessarily heard.

    “I hope that they understand deeply now what we need from them, what we’re
    going through, that we’re seeking justice the way we’re supposed to,” said
    Shayna Elliot, one of more than 20 American victims of terror attacks and
    bereaved family members who met with officials at the State Department and
    Department of Justice on Wednesday and Thursday.

    Attorney David Strachman, who represents Elliot and many of the other
    victims who came to Washington this week, has so far won $288 million in
    damages from the PLO, but has yet to collect any money for his clients. He
    said a US government statement of interest against the judgments would
    “entirely undermine the purpose of the act and would defeat what the judicial branch
    did.” He said the meetings with government officials this week were

    “They were unable to tell us that they were not going to support the PLO,”
    he said. “We had 25 victims in the room, and they were unable to say they
    would support American citizens over a terrorist organization.”
    IMRA – Sunday, February 17, 2008 Victims of Palestinian terror ask US not to hinder their cases

    Following Kahane’s murder, no charismatic leader emerged to replace him in the movement, and Kahane’s ideology declined in popularity among Israelis. Two small Kahanist factions later emerged; one under the name of Kach and the other Kahane chai (Hebrew: ???? ??, literally “Kahane lives [on]”).

    In 1994, following the murders in the Ibrahim Mosque/Cave of the Forefathers in Hebron by Kach supporter Dr. Baruch Goldstein, the Israeli government declared both parties to be terrorist organizations.[10][11] The U.S. State Department also added Kach and Kahane Chai to its list of Foreign Terrorist Organizations. Providing funds or material support to these organizations is a crime in both Israel and the USA. Source

    Who’s the terrorist?