On Monday September 22, 2014, a jury in the US District Court of Brooklyn found that the Arab Bank is liable for financing terrorism. This is the first jury trial to find a bank liable for financing terrorism under the 1990 Anti-Terrorism Act (ATA). The Arab Bank contends that the case was riddled with errors that should be rectified upon appeal before the Second Circuit. The Central Bank of Jordan has come out in support of the Bank, whose earnings constitute a quarter of the country’s stock market portfolio.
The decision, dubbed as a “trial against Hamas,” has been welcomed by some Palestine advocates. They are hopeful that this means, Israeli or US banks can be sued for facilitating the expansion of illegal Israeli settlements in the West Bank. That, however, is just not possible for two reasons. First, US federal courts have demonstrated an unwillingness to challenge Israeli policies, preferring to punt those questions to the Executive Branch instead. Second, it is a legislative invention, namely the ATA, that has made this case possible. Together, executive shielding of Israeli actions from judicial review and legislative endorsement of suits against Arab defendants, makes similar suit challenging Israel’s settlement policies very unlikely.
The U.S. federal court system has consistently invoked the political question doctrine to shield individuals connected to the Israeli government. The doctrine prevents the U.S. federal court system from adjudicating an issue that the U.S. Constitution textually commits to another branch of government. Since the Constitution commits foreign relations to the executive and legislative branches, the judicial branch may reject a claim as in-actionable by invoking the political question doctrine.
In 2005, Palestinian bystanders injured and killed during an operation intended to kill a Hamas leader in the Gaza Strip brought a lawsuit under the Alien Tort Statute (ATS) against Abraham Dichter, the former director of Israel’s General Security Services responsible for the operation. The plaintiffs in Matar v. Dichter, 563 F.3d 9, 11 (2d Cir. 2009) claimed that the targeted killing was extrajudicial, prohibited by the Torture Victims Protection Act (TVPA), and actionable in U.S. courts under the ATS. The Second Circuit dismissed the case for raising a political question. It characterized Dichter’s military actions as part of Israel’s foreign policy and therefore non-justiciable. The Department of State (DOS) submitted a Statement of Interest to the Court urging it to not hear the case. Israel’s Ambassador to the US at the time also submitted a letter claiming that Dichter’s actions constitute official Israeli policy. These letters had considerable influence on the panel.
In Belhas v. Ya’alon, 515 F.3d 1279, 1282 (D.C. Cir. 2008), Lebanese citizens – who were injured and killed when Israel shelled a United Nations Interim Forces in Lebanon (UNIFIL) compound – sued Moshe Ya’alon, head of the Israeli Army Intelligence during the time of the shelling. The DC District Court dismissed the case for being barred by the Foreign Sovereign Immunities Act (FSIA), which prohibits suit against a foreign country in US courts.
The claims were never heard on their merits.