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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, D.C. lawyer who has argued numerous cases in the U.S. Supreme Court and teaches a seminar in Supreme Court litigation at Columbia Law School.
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“these soldiers are on the front lines of a war that the entire world is fighting”
Hayovel’s vision: to share with them (Jews) a passion for the soon coming jubilee in yeshua messiah.”
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But the world is forever challenging our Jewish principle and our practices.
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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.
Congress has never seen a better friend of the observant Jewish community than Stephen Solarz, who died of esophageal cancer on the 22nd of Kislev. Yonoson Rosenblum’s recently published biography of Rabbi Moshe Sherer describes Solarz as an “invaluable ally” for many Agudath Israel projects and there are 20 references to Solarz in the book’s index.
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