Biden, Blinken, and Austin claim “foreign policy” decisions are exempt from judicial review; legal team argues in appeal reply brief submitted today that aiding and abetting genocide can never be a policy choice

May 7, 2024, San Francisco, CA – Palestinian human rights organizations, Palestinians, and Palestinian-Americans continue to press their case against President Biden, Secretary of State Blinken, and Secretary of Defense Austin, arguing in a brief filed today that the court has a constitutional obligation to hear their claims that these top U.S. officials failed to prevent – and are complicit in – Israel’s genocide in Gaza. A lower court 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 on jurisdictional grounds. A three-judge panel from the Ninth Circuit Court of Appeals will hear oral arguments on June 10th in San Francisco. 

As Israel continues its assault on Palestinians in Gaza with its attack on Rafah amidst a full-blown famine, while tens of thousands of students across the country and around the world protest their universities’ complicity in human rights violations, this case is another component of the effort by Palestinians and Palestinian rights advocates to stop Israel’s genocidal campaign on Gaza by ending U.S. support for it. Israel has killed an estimated 35,000 Palestinians, including more than 13,000 children, injured over 77,600, and displaced 1.7 of the 2 million people in Gaza; with starvation spreading and Israel closing off Gaza as it begins a ground assault on Rafah, the number of deaths is expected to continue to rise. 

“Every single day of the past seven months, we have seen more death and destruction,” said Omar Al Najjar, one of the plaintiffs, who was able to leave Gaza for Egypt days before Israel seized and closed the Rafah crossing. “I barely managed to flee, and everything I know is still in Gaza. My home and entire neighborhood is under the rubble. The U.S. government could have stopped this, and still can.”   

Government lawyers for President Biden and his cabinet members do not make the case that Israel’s assault on Gaza is not genocide. Rather, employing a maximalist interpretation of the “political question” doctrine, they argue that “foreign policy” decisions – even a decision to enable genocide by directly providing weapons, including those used to kill tens of thousands of Palestinians – are not subject to judicial review. They also contend that the remedy the plaintiffs are seeking would not address their harms because, they claim, Israel would be conducting its attack on Gaza in the same way even without the billions of dollars in arms and other forms of support from the U.S. government.

In plaintiffs’ reply brief submitted today, the Center for Constitutional Rights and co-counsel Van Der Hout LLP demonstrate that aiding and abetting genocide can never be a policy decision, but is a legal question properly before the court. Their brief also details the billions of dollars of weapons being delivered by the U.S. to Israel despite its knowledge of a plausible genocide, and that the plaintiffs’ injuries are “traceable” to the United States, as the U.S. provides the vast majority of weapons being used in Gaza, such that Israel’s capacity to carry out the genocide of Palestinians in Gaza is manifestly dependant on U.S. support. 

“The Palestinian and Palestinian-American plaintiffs in this urgent case are asking the Court of Appeals to deny President Biden, Secretary of State Blinken, and Secretary of Defense Austin the blank check they demand to carry out any so-called ‘foreign policy’ without the constraints of law or judicial oversight – even when their conduct amounts to complicity in genocide,” said Katherine Gallagher, a Senior Staff Attorney at the Center for Constitutional Rights. “That is not how a constitutional system of separation of powers works. The court is well positioned to assess defendants’ conduct in supplying billions in weapons for use to kill or harm Palestinians in Gaza against clear international and domestic law prohibiting aiding and abetting genocide.” 

The lawsuit, filed in November, asks the court to enjoin President Biden, Secretary of State Blinken, and Secretary of Defense Austin from providing weapons and other forms of support for Israel’s genocide. In January, Federal Judge Jeffery S. White largely endorsed the factual case put forward by the plaintiffs in their complaint and in their testimony; his finding that Israel’s assault was a plausible case of genocide echoed the International Court of Justice’s historic ruling that came on the same day as the hearing. Judge White, however, dismissed the case, invoking the “political question” doctrine. The International Court of Justice has since issued a ruling in a related case that warns third states – like the United States – not to breach their obligations to prevent – and not further – genocide, when supplying Israel with arms. 

Eight amicus briefs, from constitutional and international law scholars to former diplomats and servicemembers to human rights groups around the world, were filed in support of the appeal in March. 

The organizational plaintiffs in the case are Defense for Children International – Palestine and Al-Haq. The  individual plaintiffs are Dr. Omar Al-Najjar, Ahmed Abu Artema, and Mohammed Ahmed Abu Rokbeh in Gaza; 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.