Not every miracle involves falling out of a thirty-story building and walking away without a scratch.
Not everyone knows that Winston Churchill won the Nobel Prize for Literature in 1953. He certainly had his fair share of brilliant statements that are often invoked as appropriate. So, I’ll join with his comments at Mansion House in London after the victory over Rommel’s tanks at El Alamein: “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.” I felt that this sentiment had incredible relevance this week, when the United States Court of Appeals 2nd Circuit handed down an important verdict.
My son and I were wounded in a suicide bombing on March 21, 2002. For the first six months, we were busy keeping the Bauer ship afloat. Then, in October of that year, a short article appeared in the Hebrew press describing all of the characters involved in the attack. They were all Palestinian Authority (PA) employees. The bomber was a PA policeman, the one who sprung him from a Ramallah jail and sent him with two women guides to Jerusalem was a PA intelligence officer. PA parliamentarian Marwan Barghouti paid money to the terror cell, as did the current heir apparent of the PA leadership, Hussein Al-Sheikh. I wanted justice and I started doing Google searches for lawsuits against the PLO. The one name that showed up over and over was Nitsana Darshan-Leitner. We met in late 2002 and joined 10 other American families harmed in Jerusalem for a lawsuit, Sokolow v PLO, filed in New York in 2004. Why were we suing the bad guys in the US?
In 1985, Leon Klinghoffer, a 69-year-old wheelchair-bound American, was murdered by Palestinian terrorists aboard the Italian ship Achille Lauro. Because the attack occurred at sea, there were piracy-related laws that allowed suit in the US. But there was nothing to allow American citizens to sue terrorists for attacks that occurred anywhere on dry land. The 1990 Antiterrorism Act (ATA) was made law and included both civil and criminal components, the latter often used for the arrest and prosecution of pirates and terrorists. Ours was not the first case, but it was one of the first in the new realm of suing terrorists in American courts. The PAs’ lawyers did everything to have the case thrown out. Since the PA was not a state, its status made the case somewhat murky. We reached discovery in 2014 and had a seven-week trial in 2015. On the second-to-last day of the trial, the judge asked the sides about telling the jury about the automatic treble included in the ATA. The PA’s lawyers, of course, wanted the jury to know; our side asked that they not be informed and they were not. The presiding judge, Judge George Daniels, ran the trial very efficiently. I once asked my lawyer why he always seemed to be going over papers while the trial progressed; he told me that the judge did not want to tip the jury as to his views on the case. While he seemed to be reading material, he did not miss a beat and instructed lawyers in real time on all relevant points.
The PA and PLO were found guilty by 12 New Yorkers on 24 counts in less than two days. Each plaintiff was assigned damages, which were automatically trebled. The jury judgment of $218.5 million went up to $655.5 million. There was much joy in Mudville. Then in 2016, we appeared at the Second Circuit for the first time. The PA upgraded its lawyers to Patton-Boggs, one of the best law firms in Washington and the number one lobbyist in the capital. They argued successfully that the PA and PLO were not present enough in the US for there to be jurisdiction over them. The judgment was thrown out. And then we took a circuitous route for the next decade.
We asked the Supreme Court to hear our case, and they asked the Trump White House if they should. We were told that the DOJ was going to respond positively until someone in the White House told them otherwise. The Congress twice passed laws—signed by Donald Trump in his first term—in order to help establish jurisdiction over the PA. The second law was named Promoting Security and Justice for Victims of Terrorism Act of 2019. The name alone should have made the PA pay. The law said in short that if, after 120 days, the PA continued to pay terrorists in Israeli jails for killing or wounding American citizens, then the PA would agree to jurisdiction in the US. Obviously, they continued to pay the murderers, though they did some paper gymnastics to claim otherwise. We went back to the Supreme Court and they asked the Second Circuit to determine the constitutionality of the new law. Judge Daniels held a hearing, and he, as well as another district judge—as well as two circuit courts—determined that the law was unconstitutional. One judge claimed that Congress was cutting a law “from whole cloth” and could invent jurisdiction out of thin air.
We again turned to the Supreme Court and they agreed to hear our case regarding the new law. Our US lawyer, the indefatigable Kent Yalowitz, told me that we were going to win 9-0. As we had lost at every level, I couldn't grasp why he was so confident. But he was right and we won 9-0. This was a critical victory. Without the possibility of jurisdiction, the ATA was a dead letter. No terrorist organization opens an office in the US to expose itself to potential liability. The justices wrote that the president and Congress have determined that holding terrorists liable for harming American citizens is an important part of national security and can thus pass a law to improve the likelihood of holding the bad guys responsible for their actions. The venue moved back to the Second Circuit, and last week, three judges voted to restore the original judgment. In their conclusion, they wrote, “For the foregoing reasons, the plaintiffs’ motion to recall the mandate is GRANTED. The district court’s October 1, 2015 judgment is AFFIRMED.” The original 2015 judgment returned to its place.
When we had our first hearing at the Second Circuit, we arrived by red eye and made our way to the court. There are two identical buildings next to each other: the Second Circuit and the NY Supreme Court. I didn’t know which was which, and we were running late. I noticed that there were police officers on every third step on one of the buildings and I asked them which was the Second Circuit. Not one knew. When I got to the top, a security guard said that I was in the wrong building. “Why don’t any of these cops know this?” “Oh, they’re all actors. They’re filming a crime drama.”
The game is by no means over. It’s amazing to go back to the same spot 11 years later. Nitsana has many terror-related cases, and both she and Kent have been tough as nails, especially when things looked lost. They never gave up and told us to hold tight; victory was on its way. Senator Chuck Grassley (R-IA) was the father of the ATA, and he and many of his Congressional colleagues stood by our side in both court filings and the key legislation needed to plug the one hole in the law to make the bad guys accountable for harming American citizens. Oftentimes, when I heard elected officials say that one can’t get away with harming Americans overseas, I just sighed. Now, I believe that they may well be right.
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