Western legal systems seem ill-prepared for an age of mass illegal immigration and international terrorism.
Two things I miss from my days at Harvard are my friends and the long talks we would have on an interesting subject. Being in Israel means that I don’t just jump on a plane and spend a weekend with a former roommate or go to our class reunions, which always fall on the same Jewish holiday. But we can still talk. So a friend and I were debating last week whether or not Europe is beyond the tipping point in moving towards eventual Sharia states. With “Mohammed” as the top name in the UK and Ireland, I think that it’s a done deal. Sure, it may take 30 years of Muslims out-reproducing the hosts, but it will happen. My friend felt that Europeans are waking up and may just be ready to stop mass immigration and start ejecting Syrians and others who came and have completely changed the face of their host countries (look at German Christmas markets and the recent attack to get an idea). And I wish to note, I couldn't care less if everyone in London was Pakistani, as long as they kept up the British ways and traditions. But instead of becoming Londoners, they are making London another failed Islamabad.
As we were debating the point, I came across an article in The Telegraph stating that the European Court would not allow the UK to eject a Turkish drug dealer, as such a move would “breach his human rights”. I pointed out to my friend that this was the problem: even if the Europeans elect Nigel Farage, Marine Le Pen and AfD, the courts and other governmental bodies will prevent them from mass removal of aliens who have shown their utter contempt for their hosts and have stated categorically that they are going for a caliphate in the heart of Europe. I also mentioned to him that I expect many lawsuits against Donald Trump’s planned ejection of millions of illegal aliens, and it only takes one federal judge to make an injunction against the forced removal of these people, and the whole thing could be bottled up until the midterm elections. Stopping immigration and throwing out people who do not belong sounds easy; getting it past the bureaucracy and the courts might be something completely different.
Did you ever wonder why the US sent so many people to its jail in Guantanamo Bay, Cuba? One of the reasons is that the US legal system is not built for foreign terror cases. One of the hallmarks of US jurisprudence is “standing”. Another concerns jurisdiction. In the former, you cannot have anybody suing about anything. A person or group bringing a legal action must somehow be affected by the defendant that they claim harmed them. Many cases, like those brought after the 2020 election, have been thrown out because the courts have determined that plaintiffs do not have standing. The issue of “jurisdiction” also is extremely important. Many foreign actors have had cases thrown out against them because their presence in the US (“minimal contacts”) does not rise to the standard of them being considered at home for the purpose of legal action against them.
After Leon Klinghoffer was brutally murdered aboard the Achille Lauro in 1985, the US Congress passed what is generally known as the Anti-Terrorism Act, or ATA. The civil law gave US citizens the power to sue terrorists who harmed them overseas in a US courtroom. It was a revolutionary tool for fighting terrorism, and it gave hope to Americans harmed abroad that they could seek redress in the friendly confines of an American courtroom. There is a parallel criminal statute often used to catch overseas terrorists or pirates in order to stand trial in the US.
When we and nine other US families won an ATA lawsuit against the Palestinian Authority (PA) and PLO in New York district court, we were ecstatic. We knew that the game was not over, but the guilty-on-all counts and the massive trebled judgment were certainly well-received by families who have been to hell and back. One of our plaintiffs recognized his daughter’s hair falling out of a body bag on TV after a suicide bombing at the Hebrew University. Our joy did not last very long, though. Tony Blinken, then undersecretary to John Kerry, wrote a statement of interest on behalf of the terrorists, and the Second Circuit court of appeals said that the bad guys were simply not at home in the US to be sued by US citizens, even if they did what they had been accused of doing. They failed to meet the minimal contacts threshold required to be considered to be at home for knowing the law and thus being open to being sued.
After the Supreme Court refused to hear the case, the Congress passed a law making the PA at home if it took any American funding. So it was Mahmud Abbas and his cronies who refused to take US aid more than Donald Trump refusing to send it that caused headlines about the US not funding the PA. For a year, the PA would not touch a dime of US money. That was pretty gratifying, but the Congress and the State Department told our lawyers that they wanted to start the money flowing again. A compromise was reached in which this law would be stricken and would be replaced with a new one: if the PA paid terrorists who had harmed Americans, then they would consent to be judged in a US courtroom. The PA has to pay these salaries, as there are hundreds of such terrorists in Israeli jails who depend on such payments. They did not even try to avoid paying these people. Rather, they said that the new law was unconstitutional.
And when several district and circuit courts began to look at the new law meant to help fill the gaping jurisdictional hole in the original ATA, they all said without exception that the law is unconstitutional. The Congress, even for good reasons, cannot simply invent consent to jurisdiction. Either a party is at home in the US or it is not; one cannot simply create conditions that would make it so. Well, the Biden Department of Justice (DoJ) actually filed an amicus brief on our side, and the Supreme Court agreed last week to hear our case, which has been coupled to a second case of a young American who was murdered in Israel while out shopping with his wife. Will the Supreme Court agree with the lower courts that Congress has overstepped its authority, or will it conclude that since fighting terror is an important national security goal, the Congress has such power to reasonably create conditions for jurisdiction? The PA had 120 days from the time that the law was signed until it came into effect; they did not use that time to stop the money flowing to its jailed terrorists.
If we win, then the Second Circuit will have to decide whether to reinstate the original $655 million judgment or go for a new trial. If we have the judgment, then we have to enter the byzantine world of getting money out of a recalcitrant PA. Many American terror victims who won cases against Iran have been searching high and low for unfrozen Iranian assets in the US in order to fulfill their massive judgments. I once sent my wife’s cousins to a high-end apartment in Chicago to find out who owned it.
Many criminal laws, when written, did not take into account foreign terrorists harming Americans and having no personal relationship with the US homeland. Many terrorists captured overseas during the “War on Terror” were kept at Guantanamo Bay because there was no way to try them in the US, even though their terrorist activity was without doubt. The attempts to make federal criminal trials against Guantanamo prisoners were dropped due to strong opposition. In Europe, they are according rights to people who arrived illegally and have made it clear that they want to overthrow the government that let them in. The European governments cannot distinguish between legitimate speech and that which is meant to hasten the destruction of the very states into which these people have been brought.
New laws need to be considered that take into account the best of American judicial tradition but also reflect that many bad actors do not have a store on main street to aid in jurisdiction. The same is true for Europe: governments need to be empowered to advance their national interests, which include remaining the countries that they have traditionally been. If an immigrant will not learn the language and customs and make a pledge of allegiance to his/her new country, then the next stop should be their original point of departure.