The Biden administration does not have discretion to aid and abet an ongoing genocide free from any judicial review, say attorneys

June 10, 2024, San Francisco, CA – Today before a three-judge panel of the Ninth Circuit Court of Appeals, Palestinians from Gaza and Palestinian-Americans with family in Gaza argued that the courts have a constitutional obligation to hear their claims that President Biden, Secretary of State Blinken, and Secretary of Defense Austin violated their legal duty to prevent – and are complicit in – Israel’s genocide in Gaza. The lower court had found a plausible case of genocide and urged the Biden administration to reexamine its “unflagging support” for Israel’s siege of Gaza, but dismissed the lawsuit in January, finding it was not the court’s place to rule on what it determined was a “political question.”

“Nine months into this genocide, I have lost everything and I am living on what used to be sidewalks of cities I barely recognize,” said Ahmed abu Artema, a plaintiff in the lawsuit. “An Israeli airstrike killed my son and my relatives. My other children and I barely made it out alive. I’m sitting here in Gaza amidst this genocide and a renewed nakba, looking to the U.S. court system to do its job.”

Government lawyers for President Biden and his cabinet members did not dispute that Israel’s assault on Gaza constitutes a genocide. Rather, they invoked the “political question” doctrine, arguing that “foreign policy” decisions – even a decision to enable genocide by providing weapons used to kill tens of thousands of Palestinians – are not subject to judicial review. They also contended that the remedy the plaintiffs are seeking would not address their harms because, defendants claim, they can’t influence Israel’s behavior. 

The plaintiffs’ lawyers, from the Center for Constitutional Rights and Van Der Hout LLP, countered that the political question doctrine cannot be invoked when policy decisions cross over into violations of the law – a line that courts must enforce under our system of separation of powers. Indeed, they showed, throughout U.S. history, from the founding-era to the post 9/11 “enemy combatant” cases, courts have repeatedly determined whether foreign policy decisions violated domestic and international law, and they must do so in this case. Aiding and abetting genocide can never be a mere policy choice, the lawyers said. They also pointed out the sheer amount of U.S. support, both historically and since October 7 – including tens of thousands of general purpose bombs and precision-guided munitions as well as over a million rounds of small arms ammunition, makes Israel’s capacity to carry out the genocide manifestly dependent on the United States. 

“Today, the Palestinian and Palestinian-American plaintiffs urged the court of appeals to deny the Biden administration a blank check to carry out so-called ‘foreign policy’ without the constraints of law or judicial oversight when their conduct amounts to aiding and abetting an ongoing genocide,” said Katherine Gallagher, a senior staff attorney at the Center for Constitutional Rights who argued the appeal. “That is not how a constitutional system based on separation of powers works. The court is well positioned to assess defendants’ conduct in supplying billions of dollars in weapons being used to kill or harm Palestinians in Gaza against clear international and domestic laws prohibiting complicity in genocide.” 

Today’s oral arguments took place as Israel’s invasion of Rafah focuses fresh attention on U.S. backing for the genocidal assault, including the U.S-made bombs that Israel used to kill dozens in a camp for displaced people in Rafah on May 26th and an Israeli attack on a UN-run school sheltering displaced people in Nuseirat. The Biden administration has provided billions of dollars in arms and staunch diplomatic support for a campaign that has killed an estimated 38,000 Palestinians, including more than 15,500 children. With starvation spreading and Israel continuing to impede the delivery of humanitarian aid, the number of deaths is expected to rise sharply, while Israel’s actions are being more broadly condemned as genocide. 

“After losing close to 100 family members in this genocide, the least I could do is sue this administration for their complicity in justifying and sending money and weapons to Israel, said Basim Elkarra, CAIR Action Executive Director and one of the plaintiffs in the case. “Our fight is not just for justice today, but to set a precedent that aiding and abetting genocide is indefensible. We are here to demand accountability and to uphold the principles of humanity and international law.”

The lawsuit, filed in November, asks the court to enjoin the Biden administration from providing weapons for Israel’s genocide. In January, Federal Judge Jeffery S. White largely endorsed the factual case put forward by the plaintiffs, and his finding that Israel’s assault was a plausible case of genocide echoed the historic ruling by the International Court of Justice (ICJ). Judge White, however, dismissed the case, invoking the political question doctrine. The ICJ has since issued a ruling in a related case that warns states, like the United States, not to breach their obligations to prevent genocide when supplying Israel with arms. 

Today’s arguments were heard by Ninth Circuit Judges Consuelo M. Callahan, Jacqueline H. Nguyen, and Daniel Aaron Bress.  Judge Ryan Nelson was originally slated to be on the panel, but recused following the plaintiffs’ motion to disqualify him due to his participation on a World Jewish Congress delegation that took federal judges to Israel this past March to meet with Israeli government officials, explicitly designed to influence U.S. judges’ opinions regarding the legality of ongoing Israeli military action against Palestinians.

Marc Van Der Hout, of Van Der Hout, LLP in San Francisco, co-counsel in the case, said, “The U.S. supported massacres of tens of thousands of innocent Gazan civilians, many of whom are women and children, and the almost complete destruction by Israel of entire cities and villages throughout Gaza, cannot in any way be justified under international or U.S. law in the name of, ostensibly, trying to eradicate Hamas. It is the role of the courts to step in and order this administration to cease its support for this ongoing genocide. As President Biden himself has said many times, no president is above the law. That includes him.”

Eight amicus briefs – from legal scholars, former diplomats and servicemembers, human rights groups around the world, and others – were filed in support of the appeal. 

The organizational plaintiffs in the case are Defense for Children International – Palestine and Al-Haq. The individual plaintiffs from Gaza are Dr. Omar Al-Najjar, Ahmed Abu Artema, and Mohammed Ahmed Abu Rokbeh; and Mohammad Monadel Herzallah, Laila Elhaddad, Waeil Elbhassi, Basim Elkarra, and Ayman Nijim, U.S. citizens with family in Gaza.

For more information, see the Center for Constitutional Rights’ case page. 

The San Francisco law firm of Van Der Hout LLP is co-counsel in the case.