The principle is clear, direct, critical and visceral.
The implementation of the principle is unclear, indirect, so seemingly outdated as to be absurd and anything but visceral.
The principle is redress for victims of terrorism. The implementation is a 1789 statute, apparently based on an assault in 1784 between the French ambassador to the US and a local French bully in Philadelphia.
Formally, the principle is expressed in a lawsuit, Joseph Jesner v. Arab Bank, now before the Supreme Court.
Oral arguments, Oct. 11, kept circling back to the assault in 1784.
Joseph Jesner lost his 19-year-old son to an Arab bus bomber in Tel Aviv in 2002. In his case, Jesner represents not only his son but some 6,000 other Israeli victims of Palestinian terrorism. They are suing Arab Bank, a Jordanian entity, for delivering money to the Palestinian terrorist groups that carried out the terrorist attacks. Note: Neither Arab Bank nor Jesner nor the other 6,000 Israeli victims are citizens of the US. What is this case doing in an American court?
Well, go back to that 1789 statue, the “Alien Tort Statute,” which apparently was passed to provide redress for the French ambassador, one Francois Barbe-Marbois, against his alleged attacker, one Charles Julian de Longchamps. Note: Neither of these individuals were American citizens.
After the attack, the question arose as to whether the defendant was to be tried in Pennsylvania or in France. Should a non-American citizen have redress in an American court? Should the US assume the responsibility for assuring justice between non-American parties?
Back in the 1780s, a Pennsylvania court sentenced the defendant to two years in prison. The controversy — reports JTA correspondent Ron Kampeas — is believed to have led to the passage of the Alien Tort Statute of 1789. The statute allows American courts to consider lawsuits between non-American parties if the issues “touch and concern” the US. Congress seemed eager to show that the new nation found it right to consider tort, or civil wrongs, “committed in violation of the law of nations or a treaty of the US.”
Thus, on Oct. 11, the Supreme Court heard arguments by non-American victims of Palestinian terrorism against the non-American Arab Bank of Jordan. Presumably, the court agreed to hear the case because the issues in the case “touch and concern” the US.
Oddly enough, the primary dispute before the court, though directly rooted in the statute of 1789, had a distinctly contemporary ring. When the statute was passed, did it intend to include an entity like Arab Bank — a corporation? Is a corporation an individual?
Chief Justice John Roberts, defining the statute as intending to avoid foreign entanglements by providing a legal forum for someone like the French ambassador, nonetheless seemed to reject the statute’s application to the Israelis’ case. “I’m wondering if extending it to corporate liability is in fact going to have the same problematic result of increasing our entanglement, as it obviously has here with respect to the government of Jordan.”
The plaintiff’s lawyer struck back, arguing that should the Supreme Court deny the plaintiffs’ bid to seek redress, then Israel — like France in the 1780s — would have cause for alarm at how the US conducts its foreign policy.
Meanwhile, the liberal justices on the court seemed sympathetic to arguments advanced by human rights advocates and counterterrorism officials that the US should play a robust role in policing human rights abuses wherever they occur. The conservative justices on the court seem to wonder whether it was not stretching the 1789 law to extend it to corporations.
The ironies! In the recent, controversial Citizens United case, the Supreme Court ruled that corporations are indeed like individuals, with full rights of free speech, thus free to contribute any sum to political campaigns. Conservatives welcome that. Liberals abhor it. But in the Jesner case, conservatives on the court seem to challenge the idea of the corporation as like an individual, while liberals on the court seem to embrace it. Is it law, or merely justices’ biases, that now govern the Supreme Court?
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