On Monday, the Supreme Court announced it would not hear an appeal of the 2016 appellate court ruling overturning a $655.5M verdict against the Palestinian Liberation Organization (PLO).
But don’t blame the Court. According to several sources, plaintiff Mark Sokolow and the 10 other American families whom the defendants targeted for death may have just been denied justice due to the happenstance of docket scheduling.
In 2015, a federal jury ruled that the Palestinian Authority/PLO was in violation of the U.S. Anti-Terrorism Act, which was signed into law in 1992. Sokolow, et al were awarded a judgment of $218.5M, which was immediately tripled per the Act:
[The Anti-Terrorism Act] authorizes any U.S. national injured in his or her person, property, or business by reason of an act of international terrorism to bring a civil action in U.S. district court and recover treble damages and the cost of the suit, including attorney’s fees.
But in 2016, the U.S. Second Circuit Court of Appeals overturned the decision. The plaintiffs then appealed to the Supreme Court. Last June, the Court — Justice Ginsburg made the request — asked for the White House’s position on the matter prior to its own consideration. (According to the American Bar Association, the Court requests White House input about 25 times per term.)
Last month, the Department of Justice Solicitor General’s Office shockingly recommended that the Supreme Court not review the decision. On Thursday, March 29, the Court met to consider hearing Sokolow’s appeal. Today, we have the Court’s decision: justice denied.
Why was the brief issued by Trump’s Solicitor General Noel Francisco such a shock?
As an issue concerning national security and foreign relations, the Court’s apparent deference to the Trump Administration — or at least the Court’s request for a solicitor general brief — is proper. However, Donald Trump has established his intention to apply the might and economic leverage of the United States to hold the PA/PLO to account for unleashing decades of hell. The PA/PLO directly targeted citizens of the United States abroad; seeking justice for such attacks was the sole impetus for the passage of the Anti-Terrorism Act.
In late 2017, a demonstratively bipartisan collection of 23 U.S. senators — from Elizabeth Warren to Ted Cruz — announced their solidarity with Sokolow and the ten other families. They issued a public letter to Attorney General Jeff Sessions and Secretary of State Rex Tillerson. The Anti-Terrorism Act, they argued, if it covers any case at all, must certainly apply to Sokolow.
Also, the Office of General Counsel of the House of Representatives filed a brief which serves as the position of the House. It supported Supreme Court review as well.
So what happened?
According to several sources, two key members of the Trump Administration were responsible for guiding the solicitor general’s brief based on their personal foreign policy judgments. However, as of April 8, neither will still be a member of the Trump Administration. And the men Trump selected to replace them appear to have been chosen, in part, for their drastically different approaches to Mideast terror than their predecessors.
On March 8, Sara Carter of FoxNews reported that a source claimed the solicitor general had received pressure from Rex Tillerson’s State Department:
A government official and source involved in the case said the failure of the DOJ to challenge the appeals court may have more to do with the State Department than the actual law.
According to one source, the State Department allegedly pressured the DOJ to file the brief against Sokolow and the other participants, in an effort not to raise tensions with the Palestinian Authority as the U.S. continues to deliberate the difficult process of trying to broker a deal between Israel and the Palestinians.
A State Department official declined to discuss what deliberations took place between the DOJ and State Department in the decision making.
Recall, that letter signed by 23 senators was directed to Sessions and Tillerson. As the Weekly Standard reported on November 14, Tillerson and State did not respond with a position statement at that time. State finally issued a statement accepting the judgment of the solicitor general’s brief when it was filed this March. State’s lead attorney — legal adviser Jennifer Newstead — is listed on the brief, although a department attorney signing on to a DOJ brief is an ordinary occurrence. It does not indicate that State expressed any position in particular to DOJ:
Morton Klein, president of the Zionist Association of America, responded forcefully after the filing of the solicitor general’s brief in March. He mentioned having administration sources who claimed that State was not the only Executive Branch entity guiding the brief — and that Trump’s views did not guide the brief at all:
Klein of the ZOA said he spoke with administration representatives and understands that the decision to support the Palestinians was made by the State Department and the National Security Council.
“I was told Trump was not involved, and I believe that because of his extraordinary statements in which he has said radical Islamic terrorism must be stopped,” he said. “We are still working to see how we can … reverse this awful decision.”
Following the publication of the brief in March, I requested comment from four sources regarding the deliberations which led to the brief.
One current member of the Trump administration said that H.R. McMaster was the primary figure responsible for directing the solicitor general’s brief. One GOP adviser claimed knowledge of specific evidence regarding McMaster’s involvement. A former key Trump administration member simply responded: “It was McMaster.”
Perhaps most notably, one current DOJ attorney involved with the Sokolow case, on background, does not support the solicitor general’s brief and would have recommended Supreme Court review.
The Court’s request for the Trump administration’s position indicates the Court’s willingness to weigh foreign policy and national security considerations. However, on April 9, John Bolton arrives. Soon after, Mike Pompeo should receive Senate confirmation. As should Gina Haspel at the CIA.
The Trump administration’s foreign policy and national security considerations may soon bear little resemblance to the opinion the Court presumably deferred to on March 29.
The Trump administration, understandably, has indicated it will not discuss the deliberations which led to the solicitor general brief, and eleven American families struck by barbarians may never discover if their 16-year wait was 12 days too short.
Follow PJMedia Editor David Steinberg’s tweets at @DavidSPJM.