Terror victims and their advocates suffered a major setback Aug. 31, when a U.S. appeals court overturned a $655 million judgment that had been obtained by Mark Sokolow and 10 other families against the Palestinian Authority and Palestine Liberation Organization. Families who had won a hard-fought courtroom victory 18 months earlier tasted the bitterness of defeat.
I have had the same thing happen to me.
Factually and procedurally our cases are different, but the role of the U.S. government in our cases is the same — instead of supporting American terror victims, the government weighs in on the side of terrorists.
The Sokolow case was filed in 2004 following a series of terror attacks in Israel in which Americans were murdered or injured. Relying on the Antiterrorism Act of 1992, the victims and their families went to court in Manhattan against the Palestinians. They proved in court that the terrorists who carried out the attacks were PA employees. They showed how the PA recruited known terrorists into its police and so-called “security” forces, gave those terrorists weapons and, using the PA-controlled media, urged them to kill Jews. This all resulted in the terror war that came to be known as the “Al-Aqsa Intifada.”
Our case, which we brought after my daughter, Alisa, was murdered in Israel in a 1995 suicide bombing, came under the provisions of the Antiterrorism Act of 1996. We were able to pursue Iran because it had been named a “state sponsor” of terrorism. That designation stripped away the “sovereign immunity” that any foreign country would normally enjoy in a U.S. court. We proved to the court that Iran committed terror through proxies such as Islamic Jihad, who murdered Alisa, and we were awarded $250 million in damages.
We collected approximately $22 million of that award through a law passed during the Clinton administration. That money was paid from the U.S. Treasury and was to be reimbursed from $400 million that Iran had on deposit in the Foreign Military Sales Act account. We now know that neither the Clinton, Bush nor Obama administrations took money out of that account to reimburse Treasury. In fact, the Obama administration has released the money in that account to Iran.
The Sokolow case did not depend on any type of terrorism designation. The 1992 law allows any American citizen injured “by reason of an act of international terrorism” to sue and obtain treble damages in “any appropriate district court of the United States.” It doesn’t distinguish between individual actors and states or similar governmental entities.
Eleven years after filing their case and winning many courtroom battles, the Sokolow plaintiffs proved to a jury that the PLO and PA bore responsibility for the attacks. The jury awarded them $218.5 million in damages that, when trebled under the law, became $655.5 million.
Before the ink on the judgment dried, the PLO and PA announced they would appeal the verdict. As is the custom in civil cases, the defendant has a right to appeal but has to post a bond, in this case 111 percent of the judgment, in order to do so. This is done to ensure that the defendant doesn’t remove assets from the court’s jurisdiction and that money will be available to the plaintiffs if the defendants lose their appeal.
It was during the lead-up to the bond hearing that the case took a turn for the worse, because at this point the federal government intervened in the case, not on the side of the American victims as one would hope, but on the side of the PLO and PA. The government’s position in its filed Statement of Interest was that imposing a cash bond on the defendants would “severely compromise” the PA’s ability to operate as a governmental authority, and that a crisis would occur if the PA collapsed financially.
Message received. And the district court bowed to the government’s request and imposed a ridiculously low bond payment requirement.
On appeal, things only got worse: The defendants claimed that the case should never have been tried in the United States, because neither the PLO nor the PA had “sufficient contacts” — in other words, didn’t do business — in the United States. Despite the determination of the trial court judge that there was jurisdiction, the appeals court bought the Palestinians’ argument and voided the verdict. The United States was silent.
Did the federal government force the appeals court to make that decision? Of course not. But at the same time, it did nothing to stand up for the victims and tell the court that the wording of the 1992 law doesn’t require any showing of “sufficient contacts” in the United States for the court to have jurisdiction.
In Alisa’s case, when we went to enforce our judgment against Iran, we were opposed in open court — Justice and Treasury department lawyers on one side of the room, me on the other. In the Sokolow case, the government files a document. In both cases, it’s clear the victims don’t stand a chance.
Again and again, victims and their families avail themselves of existing federal law designed to allow citizens to pursue those who murder and severely injure their children, spouses, mothers, and fathers. Again and again, the U.S. government protects those who have murdered and injured its citizens. Again and again, victims are forced to ask: When will the United States stand with us?
Stephen M. Flatow is a New Jersey attorney. A version of this column first appeared in the New Jersey Jewish News.