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Appeals panel: Courts can't use judicial power to seize control of U.S. Gaza policy

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Thursday, November 21, 2024

Appeals panel: Courts can't use judicial power to seize control of U.S. Gaza policy

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James R. Browning Courthouse, home of the U.S. Ninth Circuit Court of Appeals, San Francisco | Carol M. Highsmith, Public domain, via Wikimedia Commons

SAN FRANCISCO - A federal appeals court say judges cannot step in to dictate foreign policy, tossing a lawsuit from pro-Palestinian activists seeking a court order to stop U.S. military aid to Israel amid Israel's ongoing military operations against Hamas in Gaza, actions which the pro-Palestinian activists called "genocide."

On July 15, a three-judge panel of the U.S. Ninth Circuit Court of Appeals issued the ruling, declaring an end to the court battle launched by activist organizations Defense for Children International - Palestine, which is based in Ramallah; and Al-Haq, an organization also based in Ramallah.

Other plaintiffs in the action include individual Palestinians and Palestinian Americans who claim to live in Gaza or who claim to have family in Gaza, and who claim to have either been injured or have family members who have been injured or killed in Israeli military actions against Hamas in Gaza.


Attorney Marc Van Der Hout was among those representing the pro-Palestinian groups and individuals in court. | Van Der Hout LLP

The decision was issued as a per curiam opinion, meaning it reflects a consensus of the judges. The decision was issued by Ninth Circuit judges Consuelo M. Callahan, Jacqueline H. Nguyen and Daniel A. Bress.

In the ruling, the judges said the case would lead the courts to an unconstitutional position, trespassing into "political questions" that are left to Congress and the President - and by extension, voters - to decide.

"We fully appreciate that it is 'error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance," the judges wrote. "But this case goes beyond that. By the textual allocation of powers in our founding document, 'the  management of foreign affairs predominantly falls within the sphere of the political branches,' with 'the courts consistently defer[ring] to those branches.

"And with no manageable standards to govern what kind of support to provide an ally in wartime, plaintiffs’ lawsuit would place our country’s strategic approach to a major world conflict under the auspices of a single federal district court," the judges wrote.

In response, the Palestinian activist plaintiffs and their attorneys, with the New York-based Center for Constitutional Rights, blasted the decision, calling it a "stunning abdication of the court’s role to serve as a check on the Executive."

“In a deeply troubling ruling that ignores both the legal framework put in place after World War II to ensure that a people is not targeted for destruction because of their identity and the horrifying facts on the ground in Gaza, the three-judge panel effectively gives the president a blank check whenever foreign policy is invoked, contrary to Supreme Court precedent and binding domestic and international law,” said Center for Constitutional Rights Senior Staff Attorney Katherine Gallagher in a released statement. 

The lawsuit was filed in late 2023 in San Francisco federal court. The lawsuit argued the U.S. under President Joe Biden had a "legal, and moral, obligation" to pressure Israel to halt its military operations in Gaza.

The lawsuit asserted such duties are legally enforceable in court under international law and the 1948 Genocide Convention, "to which the United States, Israel and Palestine have acceded."

Israel has consistently denied it is carrying out "genocide." Rather, Israel's government says its military operations are aimed at rooting out Hamas terrorists who have used Gaza's semi-autonomous status to launch attacks against Israeli civilians. Those military operations have continued since they were first launched in the fall of 2023 in response to the October 7 terrorist attacks carried out by Hamas which resulted in the death of 1,200 Israelis, as well as alleged mass rape, hostage kidnappings and other alleged terrorist atrocities.

Palestinians and their supporters around the world claim the Gaza operations amount to "genocide." 

Protests opposing Israeli operations in Gaza have since been used to justify antisemitic actions against Jewish Americans and Jewish citizens in European nations and other countries.'

The lawsuit claims continued U.S. support for Israel amid the military actions in Gaza make the U.S. and the Biden administration "complicit in the Israeli government’s genocidal campaign against the Palestinian people of Gaza."

In proceedings in federal district court in San Francisco, the plaintiffs noted District Judge Jeffrey S. White noted "the current treatment of the Palestinians in the Gaza Strip by the Israeli military may plausibly constitute a genocide in violation of international law."

However, White also dismissed the case, finding the lawsuit presented political questions beyond the purview of the courts.

In oral arguments before the Ninth Circuit panel in June, the plaintiffs attempted to claim the courts could still force the Biden administration to alter American foreign policy and withhold military aid from Israel, a U.S. ally, because they said what the judges viewed as a policy question was actually a violation of law.

They asserted that "aiding and abetting genocide can never be a mere policy choice."

The appellate judges, however, sided with the Biden administration, and declared such delicate foreign policy matters off limits to the courts.

They noted courts can step into international affairs when the cases involve questions over "a familiar judicial exercise," such as declaring the legal place name of someone's birth. They pointed to a decision in which the Supreme Court said courts could answer the question of whether Congress had overstepped its bounds in enacting a law requiring the State Department - which answers to the President - declare that people born in "Jerusalem" were actually born in "Israel."

"What we have here is anything but familiar," the appellate judges said of the new lawsuit. "The myriad 'policy choices and value determinations' that a court would need to pass on in this case, include, by the allegations of the complaint: evaluating the 'military decisions and strategy' the United States has followed with respect to Israel, the scope of the United States’ influence over Israel, whether the United States should have imposed 'conditions on its support to Israel,' and how the United States has acted in the United Nations Security Council.

"... The plaintiffs here want the judiciary to evaluate and reject the 'military decisions and strategy'  that the United States has followed with respect to Israel and Gaza since October 7, 2023."

They said nothing in prior legal precedent could lead them to support "plaintiffs’ far-reaching request for the courts to 'condemn United States foreign policy toward Israel,' and to question whether American 'economic and military aid' to Israel is 'necessary and appropriate.'”

“As the the death toll keeps rising and we see nonstop images of carnage during this live streamed genocide, the court washes its hands of our case," said Waeil Elbhassi, a plaintiff in the case, in the statement released by the Center for Constitutional Rights. "We turned to the law to help stop the horror, and the court chose to do nothing. We are beyond disappointed."

The Center for Constitutional Rights said it was reviewing options for the plaintiffs in light of the ruling.

Plaintiffs were represented by attorneys Marc Van Der Hout and Johnny Sinodis, of Van Der Hout LLP, of San Francisco; and Sadaf M. Doost, Baher A. Azmy, Katherine Gallagher, Maria C. LaHood, Astha Sharma Pokharel, Samah Sisay and Pamela C. Spees, of the Center for Constitutional Rights.

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