In 2002, Benjamin Blutstein was an American student from New Jersey, studying for a semester at the Hebrew University in Jerusalem. As he began lunch in the school’s Frank Sinatra Cafeteria, a Hamas-planted bomb blew up, ending his life instantly. He had planned to fly home later that day. Blutstein was one of several Americans murdered in that attack and one of many Americans murdered by Palestinian terrorists over the past 20 years. Several of his murderers sit in Israeli prison—and are to this day given a stipend as reward by the Palestinian Authority (PA). The families of Palestinian “martyrs,” suicide bombers, receive similar sustenance.
It was more than two decades later, this past June, that the Supreme Court addressed the legal rights of Blutstein’s relatives and those of others. The case is technical, focusing on matters abstruse and abstract, but if we pay close attention, we will discover that the jurisprudential debate also makes manifest larger questions relating to American foreign policy, mistakes made over the past years—and the new attitude that must be adopted.
The case, Fuld et al. v. PLO et al., concerns the policy of the Palestinian Authority that is known as “pay for slay,” through which the PA continues to bestow financial rewards on terrorists and their families, thereby incentivizing terrorist acts. Families of murdered Americans like Benjamin Blutstein sued the Palestinian Authority for damages. They relied on the 1990 Anti-Terrorism Act, which allows for verdicts bestowing triple damages to those hurt by international terror. They, in turn, were constantly rebuffed by the courts, which insisted that U.S. law had no jurisdiction over the Palestinian Authority.
In response, Congress in 2019 passed the Promoting Security and Justice for Victims of Terrorism Act, specifically stating that the PA would be deemed to have consented to the jurisdiction of United States law if it maintained a presence in American territory and if it continued its “pay for slay” activities. Because the PA does indeed maintain an office in midtown Manhattan, and because its payments for terror are still ongoing, the families of the victims successfully sued the PA in federal court, achieving a civil verdict of hundreds of millions of dollars.
That decision was overturned by the Second Circuit Court of Appeals, which deemed it a violation of the PA’s due-process rights because it unfairly imposed the burden of “litigating in a distant or inconvenient forum.” While the PA does have an office in New York, the circuit court argued that aside from its presence at the United Nations, the PA had no right to engage in its activities in the United States; the American government was merely turning a “blind eye” to its activities. The PA could not be deemed to have consented to U.S. jurisdiction unless it received some “reciprocal” benefit for its presence in the country.
When the families’ request for the case to be reheard by the full court was denied, one of the judges, Steven Menashi, issued a powerful dissent. To the court’s claim that the PA should not have to litigate in a “distant forum,” Menashi sarcastically commented that it did not seem too much “to require the officials that engaged in this conduct—and were found to have supported terrorists who killed and injured Americans—to endure the burden of travel from East 65th Street to Pearl Street,” in downtown New York, in order to answer for their support for terror. The PA, in other words, had been allowed, thanks to the “blind eye” of the United States government, to maintain an office in midtown Manhattan.
To the Second Circuit’s contentions that the PA’s presence was technically illegal, Menashi reflected that his fellow judges’ reasoning was perverse: They were saying that if a foreign actor was legally in the United States, then it could be sued for supporting terror, but if it was present illegally, then it was protected from such a suit by the Constitution. The court, Menashi further reflected, had “invented a new requirement” in demanding reciprocal benefit for the Palestinian Authority, and he added that the PA had in fact received a profound benefit from the United States: It had been allowed to stay in the country.
In a dissent largely about jurisdiction, Judge Menashi captured all that had gone wrong over the past many decades with the way that so many had approached the Middle East conflict. Why was the presence of the PA tolerated in the United States for so many years, even as it continued to reward and celebrate the murder of Jews—including American citizens such as Benjamin Blutstein, Ari Fuld, and Alisa Flatow? Why have so many continued to see the Palestinian Authority as the moderates in whom the hope for a “two state solution” ultimately lies? And why have we, for so long, treated the practice of visits in the United States by Middle Eastern students and officials alike as a right rather than a privilege, without considering whether their presence foments support for terror? Why, in allowing so many to come to this country, have we not demanded reciprocity in return?
In June, the Supreme Court unanimously embraced Menashi’s reasoning. Chief Justice John Roberts argued that the appellate judges’ reasoning was “backward” and that the PA can indeed be sued, given that the PA was given a “clear and voluntary choice: either cease engaging in the conduct specified in the law, or submit to jurisdiction of the United States.” Citing earlier decisions, the chief justice further asserted that “combatting terrorism is, we have recognized, ‘an urgent objective of the highest order’” because the U.S. government has a profound interest “in holding accountable those who perpetrate an ‘act of violence against’ U.S. nationals—who, even when physically outside our borders, remain ‘under the particular protection’ of American law.”
Roberts’s opinion brings to mind an event in British history that I have previously discussed in this column, the “Don Pacifico affair,” when the Victorian statesman Lord Palmerston ordered Her Majesty’s Navy to intervene on behalf of a Jewish-British subject whose rights were deemed to have been violated overseas. Responding to his critics in Parliament, Palmerston said that “a British subject, in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England will protect him against injustice and wrong.”
Meanwhile, as the leaders of Europe are choosing to reward the terror regimes of the Middle East with the recognition of a Palestinian state, our own chief diplomat, Marco Rubio has responded by sanctioning and denying visas to officials of the PA, citing its policy of “pay for slay.” Given the way he has also begun to address the issue of student visas in the United States, Rubio’s announcement caps one of the most significant six months of service as secretary of state in some time. Taken in tandem with the Supreme Court’s decision, it is a reminder that moral wisdom and realism about the Middle East go hand in hand—and that, as both Roberts and Rubio recognize, declining to embrace regimes that celebrate the murder of Americans is essential for those who truly seek to put “America first.”
Photo: Paula Bronstein/Getty Images
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