Also filing for disqualification of judges who traveled on World Jewish Congress sponsored delegation to Israel

August 30, San Francisco – Palestinians, Palestinian Americans, and Palestinians human rights groups are urging the Ninth Circuit Court of Appeals to review their lawsuit charging President Biden and his aides with enabling Israel’s genocide in Gaza. Last month, a three-judge panel of the Ninth Circuit affirmed the decision of a lower court, which dismissed the case on jurisdictional grounds even as it said Israel’s assault “plausibly” constituted genocide. In an en banc petition filed late yesterday, the plaintiffs argue that courts have a constitutional duty to assess the legality of the Biden administration's actions.   

“Just this week, my brother’s apartment building in Gaza was completely destroyed– the second time he lost his home, after our family house was obliterated in 2009,” said Ayman Nijim, a plaintiff in the case. “The U.S. is providing the bombs for this genocide. I have lost countless friends and neighbors, so many that I couldn’t know where to start to grieve. When will the courts uphold the law and stop the horror?”

If the Ninth Circuit grants the petition for en banc rehearing, the case would be heard by an eleven-judge en banc court. A case needs to meet at least one of two requirements for en banc review: it must involve a matter of “exceptional importance” or have resulted in inconsistency with other court rulings. The plaintiffs’  petition, filed on their behalf by the Center for Constitutional Rights and Van Der Hout LLP, argues that their case fulfills both. 

One indication of the case’s “exceptional importance,” the petition says, is the scale of the ongoing violence. With unconditional U.S. support, Israel has killed about 40,000 Palestinians – injured more than 90,000, forcibly displaced 2 million, and pushed large segments of Gaza into famine. Israel’s actions, which followed numerous expressions of eliminationist intent by its leaders, have led many legal experts and scholars to conclude that it is committing genocide, the most serious human rights crime. In January, the International Court of Justice (ICJ) ruled that Israel’s assault “plausibly” amounted to genocide and ordered it to take provisional measures to prevent further harm to civilians. 

The following week, the federal judge in this case echoed the ICJ but ruled that the “political question” doctrine prevented courts from ruling on executive branch decisions that touch on foreign policy. Yet courts have repeatedly rejected the executive’s invocation of the political question doctrine when policy decisions cross over into violations of the law. From the founding-era to the post-9/11 “enemy combatant” cases, courts have determined whether foreign policy decisions violated domestic and international law. This failure to uphold Supreme Court precedent also qualifies the case for en banc review, the petition says. 

“For almost eleven months we have witnessed the intentional destruction of the Palestinian people in Gaza made possible by these officials,” said Pam Spees, a senior staff attorney at the Center for Constitutional Rights. “With this ruling, the panel has said our courts are too small to do the job they were assigned at the founding – to be a co-equal branch in our government and a check and balance on presidential power. If the Ninth Circuit doesn’t course correct here, it will be giving this and future presidents license to violate the law at will in the realm of foreign relations.” 

The lawsuit, filed in November, claims Biden, Secretary of State Blinken, and Secretary of Defense Austin violated international and federal law when they failed to prevent and were complicit in Israel’s genocide. It asked the court to enjoin the administration from supporting the assault on Gaza with weapons or other means. The case featured rare testimony from victims of the genocide, and plaintiff lawyers pointed to evidence of the massive current and historical U.S. support for Israel – including an affidavit from former State Department official Josh Paul – to make the case that Israel could not be committing genocide without its chief benefactor. 

The three-judge panel consisted of Consuelo M. Callahan, Jacqueline H. Nguyen, and Daniel Aaron Bress. Judge Ryan Nelson was slated to be on the panel, but recused himself following the plaintiffs’ motion highlighting his participation in a World Jewish Congress delegation to Israel that was explicitly designed to influence U.S. judges’ opinions on the legality of Israeli military action against Palestinians. Alongside the en banc petition, plaintiffs are also filing an unopposed motion to disqualify Judge Patrick Bumatay and Judge Lawrence VanDyke from participating in any deliberation in the case because they participated in the same delegation to Israel.       

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.