Professor says verdict highlights need for Congress to revisit terrorism law

A historic $218.5 million verdict handed down Feb. 23 against Palestinian organizations for a series of terrorist attacks that killed or injured several U.S. citizens could bring unintended consequences and should cause Congress to reexamine federal terrorism statutes, according to a prominent Indiana legal scholar.

The ruling in Sokolow v. The Palestinian Liberation Organization, 1:04-CV-000397, stemmed from a lawsuit against the Palestinian Liberation Organization and the Palestinian Authority following two shootings and five bombings carried out around Jerusalem between 2001 and 2004. The American victims and their families brought the case under the U.S. Anti-Terrorism Act.

A Manhattan jury reached the verdict in the U.S. District Court for the Southern District of New York.

Jimmy Gurulé, professor at Notre Dame Law School, said the verdict coupled with the District Court’s previous order in denying the defendants summary judgment has broadened the ATA beyond its original boundaries.

“I think the ATA statute is a mess. I think Congress needs to revisit it,” Gurulé said, noting that Washington lawmakers will have to decide whether they want the statute to be so expansive that it could create unintended consequences or if they should make it more focused.

Gurulé, a member of the Notre Dame faculty since 1989, is an internationally known expert in terrorism, terrorist financing and anti-money laundering. He has held positions at the U.S. Department of Justice and the U.S. Treasury Department. At the treasury department, he helped develop and implement a global strategy to combat terrorist financing.

Under the Anti-Terrorism Act, 18 U.S.C. 2333, damages can be tripled, which would bring Monday’s award to $655.5 million. But, Gurulé said, the ruling may be a moral victory at best.

“I don’t believe the PLO has property or funds in the U.S. even remotely approaching this figure,” he said. “I think it’s highly unlikely the victims are going to see even a fraction of this amount.”

Still, a hunt could now be launched to seize any assets the Palestinians are holding in the U.S. and possibly Israel, Gurulé said. Any property or money found would then be transferred to the plaintiffs to enforce the judgment.

The professor noted the verdict could inadvertently harm innocent Palestinians if the Palestinian government diverts funds from public services like education and medical care in order to compensate the victims of the terrorist attacks. This would be an unintended consequence of the judgment and could breed more resentment toward the United States.

Indeed, Gurulé pointed out, the ATA seeks to avoid such results by prohibiting terrorism lawsuits being filed against foreign governments. The ban does not apply in this case because Palestine is not considered a state, he said.    

What, exactly, is the Palestine Authority is the issue the District Court grappled with in its November denial of summary judgment to the defendants.

The order, issued by Judge George Daniels, allowed the claims of vicarious liability to move forward under the respondeat superior theory that the Palestine Authority was responsible for the criminal activities of its employees. But, in the same order, the court seemingly contradicted itself by finding the PA and the PLO were unincorporated associations that could not be sued on the non-federal claims brought by the plaintiffs.

This dual view of the Palestine Authority is a “lightening rod issue” for appeal, Gurulé said. The District Court gave the jury the ability to find that the PA aided and abetted the terrorists and, therefore, was vicariously liable for the attacks.

Gurulé was critical of the expansion of the ATA that has come not only from the summary judgment denial but also from Monday’s verdict as well as the September 2014 verdict against Arab Bank. Lawyers and courts have an obligation to apply the statute as it is written, he said, and should not be swayed by the emotions that arise after terrorist attacks.