In the spring of 2002, American citizen Mark Sokolow was shopping for shoes with his wife and daughters in Jerusalem when a Palestinian Authority agent detonated a bomb. The Sokolows survived, though injured and traumatized. Dozens of other Americans living in or visiting Israel were not so fortunate in the wave of stabbings, bombings, and shootings that followed.
In 2015, a U.S. federal jury found that those attacks—collectively known as the Second Intifada—were funded, directed, and rewarded by the Palestine Liberation Organization and the Palestinian Authority. The jury awarded 36 victims and their families $655 million in a landmark judgment against the Palestinian groups, with Sokolow among the plaintiffs.
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But instead of receiving that award, the Sokolows and other victims endured more than a decade of procedural purgatory, as various courts thwarted Congress’s repeated insistence that the PLO and PA face justice. The Second Circuit Court of Appeals stubbornly found that American federal courts had no power to render judgment—in technical terms, no personal jurisdiction—against foreign defendants for terrorist attacks on Americans abroad.
That injustice was finally corrected last month, when the U.S. Second Circuit Court of Appeals reinstated the full judgment in Sokolow v. PLO. The appeals court had little choice but to relent. Last year, the Supreme Court’s unanimous decision in Fuld v. PLO overruled the Second Circuit’s earlier determination that Congress’s authorizing of personal jurisdiction against the PA and PLO violated the Fifth Amendment’s Due Process Clause.
If all that sounds procedurally confusing and substantively abstruse, you can only imagine how the plaintiffs felt. But the resolution of their ordeal has delivered an important message: the American people will not let terrorists use our own Constitution against us.
In Fuld, the Supreme Court concluded that the Fifth Amendment affords Congress considerable latitude to give federal courts jurisdiction over cases implicating national security and foreign policy. As Congress took pains to point out, the PLO and PA had effectively consented to jurisdiction by maintaining a diplomatic presence in the United States, and by continuing to make special payments to families of convicted terrorists, even after Congress made clear that doing so would carry consequences under American law.
This issue was controversial only because of a long-running category error in American jurisdictional law. For decades, federal courts borrowed the Fourteenth Amendment framework from International Shoe v. Washington—built around state sovereignty and interstate federalism—and applied it to federal cases involving foreign actors. In that framework, personal jurisdiction is appropriate only where a defendant is “at home” or where the incident being litigated occurred. These limitations brought due-process rights to life, in International Shoe’s famous phrase, consistent with “fair play and substantial justice.”
But the Fourteenth Amendment deals with states, while the Fifth governs the federal government. As Harvard Law professor Stephen Sachs—who filed an amicus brief in support of the terror victims in Fuld—has argued, when the Second Circuit twice struck down congressional efforts to exercise jurisdiction over the Palestinian groups, it was effectively treating the United States as nothing more than one very large state.
That’s an absurd analogy. The federal government is fundamentally different from a state. It issues passports, conducts foreign policy, and bears responsibility for the protection of American nationals abroad. And foreign terrorist organizations are not always answerable to other sovereign entities, whose judgments U.S. courts would afford full faith and credit, as they would between states. When Congress, acting on its constitutional power to define and punish offenses against the law of nations, enacts a statute specifically designed to hold foreign organizations accountable for targeting Americans, it doesn’t offend anyone’s sense of fairness or justice.
Sokolow’s final judgment vindicates the principle once and for all: our Constitution was never a sanctuary for rogue organizations that deliberately fund the murder of Americans. The Due Process Clause does not immunize a billion-dollar foreign entity from facing justice in the United States simply because its terrorist proxies did their killing overseas.
Civil suits against terror organizations and their supporters will be an important tool in combating the increasingly globalized marketplace for ideologically motivated violence. There are simply too many potential defendants for the Department of Justice to handle on its own; states and private citizens will have to step up. Massive suits like Sokolow can deter the funneling of money, weapons, and other property to terrorist enterprises. Congress should continue to write laws authorizing such private anti-terror actions.
The political branches have insisted now on three separate occasions that foreign terrorists have no get-out-of-jail-free card. The courts finally listened. Now it’s time to enforce the judgment: force the PA to cough up what it owes and ensure that the Sokolows and their fellow warriors for justice can collect.