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The U.S. Supreme Court now gives lawyers a head start on the preparation of briefs and fills up the court’s schedule of oral arguments as early as possible. Even before it formally convened the first Monday in October, the court announced which cases it would hear of those on which petitions for review gathered over the summer while the court was in recess.
Two cases the court placed on its docket on September 30 should be of concern to friends of Israel and to the Israeli public.
The first case affects prosecution in American courts of terrorist groups. In a 1996 anti-terrorism law, Congress made it a federal crime to provide “material support or resources” to a foreign terrorist organization, and in a 2004 law the words “material support or resources” were further defined to include any “service,” “training, expert advice or assistance.”
Three federal appellate judges in California ruled that the words “service,” “training,” and “expert advice or assistance” are unconstitutionally vague because they might authorize prosecutors to file criminal charges against individuals who advise terrorist groups “on how to lobby or petition representative bodies such as the United Nations” or who train members of such groups on “how to use humanitarian and international law to peacefully resolve ongoing disputes.”
The Supreme Court has now accepted the Department of Justice’s request – made through the Obama administration’s new solicitor general, former Harvard Law School dean Elena Kagan – to review that ruling.
The case the Supreme Court will hear does not involve terrorist groups that threaten Israel. The case was initiated by organizations and individuals that wished to support a group battling for Kurds in Turkey and another group helping the Tamils in the northern and eastern provinces of Sri Lanka. But whatever the court decides will affect U.S. enforcement policy regarding supporters of Hamas and Hizbullah.
American courts and American statutes have made it clear that U.S. anti-terrorism law cannot be invoked against anyone who supports a terrorist group without knowing that it engages in terrorism. Terrorism is defined as including “violent acts dangerous to human life” designed “to coerce a civilian population.” If there exist contributors to Hamas who intend only to help its purported charitable activities and who are ignorant of its program to murder and maim, they would be, on this account, beyond the reach of the law.
The legal issue now before the Supreme Court is whether someone who knows that an organization commits terrorism and nonetheless provides service, training, or expert advice to such a group acts lawfully.
Because of the wholly unreal possibility that a supporter of the terrorist group who knows that it murders civilians might only advise it on how to file a petition with the United Nations or how to peacefully resolve ongoing disputes in a humanitarian way – fanciful imaginings that only naïve judges could conceive – the very liberal U.S. Court of Appeals for the Ninth Circuit (the one most frequently reversed by the Supreme Court) has invalidated significant provisions of American anti-terrorism law.
This is too much for even the Obama administration’s Department of Justice. It sought and obtained Supreme Court review of the Court of Appeals decision on the ground that the language declared unconstitutional for vagueness is “a vital part of the Nation’s effort to fight international terrorism.” The government’s initial petition to the Supreme Court did not specify the kinds of service, training, or expert advice for terrorist organizations that Department of Justice investigations have uncovered, but it did report that 120 defendants have been charged under these terms and 60 have already been convicted.
The criminal prohibitions in American law against all forms of support for Hamas and Hizbullah are crucially important in both Israel and the U.S. Few, if any, Hamas or Hizbullah supporters in the U.S. are giving advice on how to petition to the United Nations or on how to resolve disputes in a humanitarian way.
The service, training, and expert advice usually given in the U.S. to supporters of Hamas and Hizbullah who know of their programs of terrorism are geared to more violent means of achieving the ends of these terrorist groups. If American law is to have any deterrent effect, the language of the federal law should be given its natural and ordinary meaning and not declared unconstitutionally vague.
A second case that should be watched in Israel affects the prospect that Israeli officials will be dragged into American courts to answer for the kinds of allegations concerning military action in Gaza that have been made in the Goldstone report. To be sure, in the U.S. private citizens cannot initiate criminal prosecutions, as they can in many European countries where Israeli officials now fear to visit. In the U.S. only government prosecutors may file criminal felony charges. No responsible prosecutor in any American jurisdiction is likely to indict Ehud Barak, Ehud Olmert or Tzipi Livni over Operation Cast Lead.
But civil lawsuits are another matter. They can be brought by any injured party against individuals who are served with process, and civil lawsuits for damages have been filed by foreigners in American courts under a law called the Alien Tort Claims Act since its enactment in 1789. On the other hand, lawsuits against foreign governments cannot be brought in American courts except in carefully defined situations specified in the Foreign Sovereign Immunities Act.
The case the Supreme Court has agreed to hear concerns a lawsuit brought against a general who served between 1980 and 1990 in the Somali regime of General Mohamed Siad Barre. The plaintiffs in the lawsuit claim they were imprisoned and tortured on the general’s orders. The court will decide whether the immunity a foreign government has under the Foreign Sovereign Immunities Act extends to lawsuits against individuals, and particularly to those who no longer hold the official governmental positions they once occupied.
Whether individuals who claim to have been injured by the Israeli operation in Gaza can sue Barak, Olmert, or Livni in American courts will turn on the Supreme Court’s decision in this case. A usually conservative federal Court of Appeals in Virginia held that the Somali general cannot invoke governmental immunity and must answer the lawsuit filed against him.
The decision rested on a precise reading of the immunities law, which does not explicitly protect individuals. Only “corporate and legal entities,” not “natural persons” are, according to the lower court, entitled to immunity.
The fact that the Supreme Court agreed to hear the case makes it much more likely than not that a majority of the Supreme Court will disagree with the lower-court decision. The two cases discussed here will probably be heard in January 2010 and will be decided before the Supreme Court adjourns at the end of June.
About the Author: Nathan Lewin is a Washington lawyer who was president of the Greater Washington Jewish Community Relations Council between 1982 and 1984 and has argued many Jewish-interest cases before the Supreme Court and lower federal courts.
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Editor’s Note: On July 30, the firm of Lewin & Lewin, LLP, filed in the Supreme Court its brief in Zivotofsky v. Clinton, No. 10-699, on which the Supreme Court will hear oral argument in early November. The constitutional issue in the case is whether Congress had the authority to enact a law in 2002 that directs the Secretary of State to permit U.S. citizens born in Jerusalem to record their place of birth in their passports as “Israel.” Because the State Department has consistently refused to recognize any part of Jerusalem as being in Israel, the government has refused to implement the 2002 law, claiming it violates the President’s constitutional authority to “recognize foreign sovereigns.” This is the Introduction to the Zivotofsky brief written by Nathan Lewin, followed by a Summary of Argument.
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