The US Supports the Rights of Victims of Terrorism. Just Not These.

By Matthew Weybrecht
Friday, August 14, 2015, 2:29 PM

As the Wall Street Journal recently reported, the U.S. Department of Justice and Deputy Secretary of State Antony Blinken have filed letters urging a federal judge to weigh the “public interest” when considering a motion that would require the Palestinian Authority (PA) to post a bond to satisfy a judgment against it for supporting terrorism.

The background is fairly straightforward. Victims and family members of terrorist attacks filed suit against the PA and Palestinian Liberation Organization for their involvement. A jury found them liable for $218.5 million, which under the Antiterrorism Act (ATA) is tripled, making the award $655.5 million. The victims have moved for a bond while the defendants’ appeal is heard. The defendants want the judge to stay execution of the judgement and waive the bond, while the victims want the PA to satisfy the bond by depositing $30 million per month.

In response, the U.S. government (USG) filed the letters described above. The primary argument, surely a reasonable one, is that the PA is preferable to any other potential governing body in Palestine right now, and the bond might cripple its ability to govern. It is no secret that the United States provides hundreds of millions of dollars a year to support the PA, largely to act as a counterweight to Hamas. Per Blinken:

In sum, the continued viability of the PA is essential to key U.S. security and diplomatic interests, including advancing peace between Israel and the Palestinians, supporting the security of U.S. allies such as Israel, Jordan, and Egypt, combatting extremism and terrorism, and promoting good governance. In furtherance of U.S. foreign policy interests, the United States has provided billions of dollars in assistance to strengthen Palestinian institutions, promote security in the West Bank, expand Palestinian economic growth and help create the conditions for peace.

Blinken thus asserts that “the collapse of the PA would undermine several decades of U.S. foreign policy….”

But this is awkward for the USG. First, consider the implications of the fact that the United States provides substantial funding to the PA. If the PA is required to pay victims of terrorism, and if a substantial amount of the PA’s funding comes from the USG, it appears that the USG is indirectly compensating the victims.

Second, Blinken’s Declaration asserts that the United States strongly supports the rights of victims of terrorism to be compensated under the ATA. He then proceeds to argue for reasons why the judge should “carefully consider” the public interest in deciding whether to impose a bond, and if so, how much. While he never specifically asks the court to waive or reduce the bond, that implication is clear.

Of course, the government is only addressing the bond, not the ultimate award. But if the PA can’t post the bond, it is unclear how it would be able to pay the award if it loses the appeal. Wouldn’t the foreign policy implications then be the same as now, if not worse? This should be clear by simply reading the Declaration, but replacing the word “bond” with “award,”and by considering how much bigger the judgment is than the bond. Aside from the legal issue of what discretion a judge has in waiving a bond versus reducing an award, the foreign policy problem remains identical.

This is a case study in unintended consequences. As my colleague Yishai noted in a previous post on this case, law can be a blunt instrument. The ATA was designed not only to compensate victims but also to combat terrorism by imposing costs on its sponsors. Blinken is right that undermining the PA would have deleterious effects throughout the region. Hamas in particular would likely benefit. This would almost surely increase terrorism.

On the other hand, what message does the USG’s position send to other governments? If Blinken’s argument works for the PA, this signals to the rest of the world that the United States supports victims of terrorism unless there is a strong countervailing foreign policy interest on the other side. This may negate some of the deterrent effect that the ATA was designed to achieve.