Sokolow, et al v. Palestinian Liberation Organization Litigation Update

Speaker 6:                           Welcome to the Federalist Society's Practice Group podcast. The following podcast, hosted by the Federal Society's International & National Security Law Practice Group, was recorded on Thursday, February 29, 2018 during a live Teleforum conference call held exclusively for Federalist Society members.

Dean Reuter:                     Welcome to the Practice Group's Teleforum conference call as today we consider the 2nd circuit Sokolow versus PLO case. I'm Dean Reuter, vice president of general counsel and director of practice groups here at the Federal Society. Please note that all expressions of opinion are those of the expert on today's call. Also, this call is being recorded for use as a podcast in the future and will likely be transcribed.

                                                We're very pleased to welcome our special guest, our return guest, well known to most of you on this call I would think by now, David Rivkin. He's a partner at Baker Hostetler, featured contributor to the Wall Street Journal, and other publications as well, and a frequent guest here on Teleforum. He's going to give his background and his read out on the case in the next 5-10 minutes, but as always we will be looking to the audience for questions, so please have those in mind. A special thanks to David Rivkin for joining us when he's suffering through a late winter cold. So with that, David Rivkin, the floor is yours.

David Rivkin:                      Thank you very much, Dean. I apologize for my voice, but it's an interesting case and I am glad we can speak on about it. The [inaudible 00:01:22] is basically as follows. This is a lawsuit that was brought by victims, families of victims of PLO bombings in Israel in early 2000 period, basically 2002 from 2004, was a lawsuit brought under an anti-terrorism act of '92 that was meant to deal with this very situation. The lawsuit originated in the seven district of New York. The plaintiffs prevailed there only to lose in the 2nd circuit. Then having lost in the 2nd circuit, they filed a Cert petition, and this frequently happens in cases that implicate difficult constitutional issues particularly involving foreign affairs.

                                                The Supreme Court has asked for opinion of listed generals, and that opinion was a long time in coming, but it was finally submitted in late February of 2018. In its filing, this was the general's office recommends against granting Cert, and it's been not well-received in the media and was characterized as a kind of a jarring siding by administration of the PLO. I keep pointing to you all is that it's nothing of a kind. This is in fact an instance where the Trump Administration or a Trump DOJ, particularly a list of general's office is taking a principle constitutional stand.

                                                And really, the case as I've said now, while the lawsuit was brought up under the anti-terrorism act the decisions involved, the 2nd circuit decision has nothing to do really with the merits. It has to do with a very, very important question of personal jurisdiction. Not to be pedantic, but personal jurisdiction is a concept that is rooted in the Due Process Clause about 14th and then 5th amendment. It is important limitation on the ability of defendant's to be hold into federal courts. That concept of course applies in this case, and I think that the Solicitor General's position is entirely correct. Let me just elaborate on this. Briefly, there are two types of personal jurisdiction. There is general jurisdiction, which arises in this situation where a particular party has been characterized in a couple of different ways, but let's just say continues systematic activities in a giving jurisdiction.

                                                Words like infant home in this jurisdiction has been used, and this is the basis in which the district court filed PLO to be subject to general jurisdiction. PLO of course has a couple of offices in the United States, if I'm not mistaken both New York and D.C, as well as engages in various public diplomacy and other activities. The Supreme Court actually has tightened back in 2014 in the time of decision, the pre-requisites for filing of general jurisdiction. The Solicitor General's office, I am certainly satisfied that while PLO has engaged in various activities here, it did not satisfy the DIMO test for general jurisdiction.

                                                Then there's a second type of personal jurisdiction, for a very a specific jurisdiction. Actually that was not the basis on which the district court found the existence of jurisdiction, but this issue was breathed below. The 2nd circuit concluded that in order... let me back up and say. In order for this specific jurisdiction to find, there basically has to be a situation where the actions of the defendant gives rise to liability either took place in the jurisdiction or was sufficiently directed at the jurisdiction. And not just directed in the general sense, but where the focal point of those actions impacted the jurisdiction.

                                                Obviously, ladies and gentlemen, that test would be satisfied in something like 9/11 attacks that we carried in the United States. The test was not met in a situation where the attacks were carried out IN Israel, even though it was predictable that you may have some American victims. As a factual finding in that case, and that of course fact finding took place at the district court level, and the 2nd circuit did not take any issue of it. Those attacks were not directed at the United States, they were directed at Israel even though it was predictable that there might be American victims.

                                                So the test were neither personal nor general, not a specific jurisdiction haven't been satisfied. There was no personal jurisdiction in this case, and therefore no matter how heinous, the PLO contact has been the merits were not reachable. Now, I mentioned a couple of things again and I'll stop. What a lot of people don't understand is, including I'm afraid a lot of members of congress who passed anti-terrorism act of 1992, that there's a difference between whether or not statute is exterritorial, and that is a statute interpretation issue. It's governed by Supreme Court cases and two in particular Morrison and RJR Nabisco and it requires an explicit statement of congressional intent to do so.

                                                The presumption is that specific statement is lacking. The statute is not exterritorial, but that's a statute interpretation issue. The question of personal jurisdiction being a constitutional issue is obviously not something that can be altered for statutory language. Now, a lot of folks including the Amechi congressional, Amechi were arguing basically that without being able to reach an ending that the PLO of the anti-terrorism act of 1992 is essentially factual. Well, first of all, even if it were true that that wouldn't alter the constitutional acts involved. It's actually factually not true. They may well be a tax carried out overseas, but in the situation where the test for either general jurisdiction or specific personal jurisdiction would be satisfied.

                                                For example, if that were the case that PLO offices in the United States participated in operational planning or provided financing as some type of logistical support, we would not be in the situation we are in now. But while PLO provided support, I think the record is pretty clear on that for those bombings, it was not done by the PLO offices of the United States. Or if there was a specific intent by the bombers, by the terrorist, to carry out an attack on American citizens in such a way as to satisfy the test for a specific jurisdiction. So there are circumstances in which the Anti-Terrorism Act of '92 can be operational exists, they're just not as plentiful as the plaintiffs in this case hoped. But in any case, what everyone thinks about the effectiveness of the statute does not override the constitution.

                                                The second thing that from my perspective is very important, because one of the important subsidiary issues, but an important one in this case, was whether or not PLO is a foreign government. Because there's a Supreme Court teaching that the United States are not entitled to due process, and while the Supreme Court has never held definitively that that is the case for foreign governments, a couple of circuits, specifically the 2nd circuit, and the DC circuit analogized that if American states don't have due process, not with the foreign governments. And the challenges in this case, the plaintiffs pressed argument that Palestinian PLO pressed the United States in getting various types of US aid instead of engaging the quasi government activities of foreign government. And the SG's position entirely correctly was no, that's not your decision. The decision of whether to recognize somebody as a foreign government is exclusive in the prominence of executive siding.

                                                Interestingly enough, I suppose you will remember the case of Zivotofsky. That was a Jerusalem passport case that we affirmed the proposition that it is very much exclusively the prerogative of article two, simply the president, to recognize foreign governments. So I think due process issues and personal jurisdiction issues aside, this case was very good in reaffirming hyping a clear constitutional proposition as to whether the article two prerogatives in this area.

                                                Well let me stop here and see where we go.

Dean Reuter:                     Very good, thank you so much, David. In a moment we'll all hear an announcement that will say the floor mode is on. After you hear that announcement, if you have a question for our guest, push the star button and then the pound button on your telephone.

                                                So once again, if you have a question, push the star button and then the pound button on your telephone. Let me go just one step deeper in one of your hypotheticals regarding jurisdiction and well let me ask you this first as a preliminary...jurisdiction is a preliminary question. It really goes to the power of the court to hear a case. Is it that fundamental? Is that why personal jurisdiction is such an important constitutionally anchored principle?

David Rivkin:                      Yes Dean. Well on there...let me put it this way. The most fundamental question in our constitutional system [inaudible 00:12:48] pre court is a subject matter jurisdiction, which goes to the overarching ability of article three to adjudicate this position on certain disputes. That's sort of a threshold question. And that issue cannot be waived. So even if you have lawyers who have not figured it out and did not bring it, there's no way where you can raise it at any time. Personal jurisdiction is also very important but is waive able if it's not raised at appropriate time. But it really is, it's anchored in the Due Process Clause of both 5th amendment, which of course deals with the Bill government, 14th amendment deals with states. So it is a question of really liberty, is the question of an ability of federal courts to impact particular individuals or particular entities, particular organization. So it is important, but as I said it's a little different lane than subject matter jurisdiction.

Dean Reuter:                     Now, again for our audience, if you have a question push the star button, then the pound button on your telephone. Our lines are wide open.

                                                Going a little further into one of your hypotheticals, if there, if the attack here had involved a US embassy or even a military base within Israel or somewhere abroad, would that, would the jurisdictional analysis come out differently then?

David Rivkin:                      Yes, I very much believe so. I think that again, let's say the attack came. In a hypothetical there are no PLO officers here at all so it wasn't down, or PLO officers as was the case here did not have anything to do operationally, financially when the attack was carried out by PLO assets overseas. But yes, if you are attacking the US embassy you can certainly be an additional, be criminally liable and hopefully you'll be captured and brought back. As for example happened with the attackers in USS Cole in Yemen. You'll be brought back and tried in a criminal prosecution and there could be civil cases brought against you by the victims or the victims families. So that would be a, that clearly would be a different situation, which is again makes, to me makes perfect sense.

                                                [inaudible 00:15:23] this area is quite, quite logical, Dean, which is not always the case with whoever case the law.

Dean Reuter:                     One thing that, and again, if you're in the audience, if you have a question, push the star button and then the pound button on your telephone. We've got plenty of time for questions. One thing that might not sound, I don't know if logical is the right word, but maybe counterintuitive, the idea of this notion that, if I heard you correctly, foreign entities have constitutional and due process rights in US courts. Foreign entities being foreign corporations and other entities. Foreign governments, however, apparently don't. Does that seem...give us your readout on that if you would.

David Rivkin:                      Sure. Well first, we're not talking about foreign persons or entities having constitutional rights overseas. It's pretty cleanly established that they do not. Remember where the context here is we're talking about foreign persons, foreign entities being dragged into US courts. Being dragged into US courts, obviously you have the rights that attach. In fact in some sense, my analogy is if you are physically present in the United States you have constitutional rights. Point number one.

                                                Point number two, I am not a big fan, I'm a [inaudible 00:16:47] litigator. I understand that the Supreme Court doctrine is that American states due not have due process rights because they are not persons living the medium of Due Process Clause. And as I said earlier in my opening remarks, by analogy, foreign governments are not persons living the medium of the Due Process Clause and do not have due process rights. I happen to think, and only two circuits really, the DC circuit in the case called [inaudible 00:17:24] and the second circuit in the case called Fonterra, upheld that the foreign governments do not have due process rights. I happen to think, I recognize the case and if I were litigating this I would of course acknowledge this. But I happen to think conceptually that does not make any particular sense. The Supreme Court, by the way, held that Americans states are not persons and therefore do not have due process rights in a case called South Carolina v. Katzenbach that dates back to 1966.

                                                It is what it is, but I think conceptually it makes no sense cause among other things it would mean that the big old government is suing states in federal courts, which happened quite a bit both during the Obama administration and seems to be happening even more frequently during the Trump administration. That means that, as a constitutional matter, states have no, not only no due process rights to [inaudible 00:18:22], but they have no right to any notice or opportunity to be heard. Now the only rights they have are the ones that accrue by virtue of, you know, federal rules or civil procedure that essentially is statutorily based. And they're quite plentiful, but it would be jarring to consider that if Congress wanted to prune the rights of states by changing federal rules of civil procedure that the states would have no opportunity to get notice or not be entitled to be heard. I happen to think it's...it is not a very, not a very good, not a very good conclusion. But it is what it is. We just have to recognize that.

Dean Reuter:                     Right. Back to this case in particular, and again, if you're in the audience, if you have a question, push the star button and then the pound button on your telephone. I see now somebody's just weighed in with a question. We'll go to them in a second, but one quick question you might or might not know the answer to. You mentioned that the Department of Justice to the Office of Legal Counsel came in recommending against a grant of start looking at the principles here regardless of the sympathy they might have for the plaintiffs. Did they consult the state department in a matter like this? Or do you know?

David Rivkin:                      Well, I don't know what that one specifically in this case, but it is quite common for Department of Justice to consult with the State Department in matters bearing very important policy. But I certainly have strong conviction that in a matter of constitutional interpretation it is first and last DOJ and particularly Solicitor General's office, you know, the appropriate. And then we'll consult within the department of the Office of Legal Counsel, you know possibly other divisions. Again, this is not an instance where policy had a lot to do with it.

Dean Reuter:                     Right.

David Rivkin:                      So this is everything to do about constitution and it's a very nicely written brief, by the way, so I salute Bravo Francisco.

Dean Reuter:                     Interesting. Now two questions pending, so let's pause here and take our first question from the audience. Go right ahead, caller.

Speaker 4:                           Alright, I did not have it on mute so I wasn't sure...I'm not an attorney, so you'll have to bear with me. It is possible, isn't it, for US nationals to get at the assets of foreign governments in the United States for wrongs committed against them? Is that true?

David Rivkin:                      That's not entirely true. Getting at the assets is a different question from personal jurisdiction, but yes. Well, let me back up. You cannot really get at the sovereign assets of a foreign country because of to be extend the foreign sovereign of unity, which is the statutory vehicle applies. That's point number one. There is one exception to this rule, one exception to the situation. Congress back in 2016 passed something called JASTA, which specifically waived foreign sovereign immunity. Well, it really does not say that explicitly but that was done in the context. But going after states who were allegedly involved in supporting 9/11 hijackers. So you generally cannot get asset belonging to a foreign sovereign. You can get...but again it's a little technical, cannot get at the sovereign assets.

                                                You can get at the...so you cannot seize their warship. You cannot seize an embassy. You can get at the commercial property perhaps, but what you may be thinking about is the...my whole discussion about personal jurisdiction arises in the context of a jurisdiction over person, that's why it's called personal. There's other types of jurisdiction called in rem or quasi in rem jurisdiction. So if there is an asset in the United States, which is not a sovereign asset, which cannot be touched because of foreign sovereign immunity. A commercial asset, that asset can be a basis for in rem jurisdiction in BBCs.

Speaker 4:                           So is that the case with Cuba?

David Rivkin:                      Well, again, if there is a commercial...well look, it's...this is a complicated issue. I hate to sound like a damn lawyer, but you where...a number of instances where there were efforts to seize otherwise seizable assets that belonged to foreign governments that have done various wrongs, it involved Cuba, it involved Iran, it involved going back to the early post civil war in Russia days. The fact that Russia defaulted on various bonds that they issued. Typically, those cases are resolved in a context of a diplomatic settlement. And indeed the Russia claims were settled in something called the Litvinov Assignment. The Iranian claims were settled in the context of a deal the United States signed with Iran. And the same I believe was done in with regard to Cuba much, much more recently.

                                                So the short answer is anything aside from the foreign sovereign immunity issues, you cannot just go and try to seize an asset that belongs to a foreign entity without checking to see if those types of claims have been disposed of by your government. And it's been challenged, you can say to me, "Why is it that the United States government is able to dispose of the claims that I as an individual may want to vindicate?" Well, let me just say this issue has been litigated and people who felt that the government should not celibate claims will-

Speaker 4:                           Is there a point in which a terrorist organization becomes the agents of a state? And then more liability can be put to that? Or would that still be the US taking the issue to the world court and blaming the sovereign government? Or...

David Rivkin:                      No, no, no. I'm a little confused. If United States wants to strip away sovereign immunity, which is granted by statues again, which is what happened with JASTA. And as you may know there has been a lawsuit brought by the survivors, excuse me, not survivors, by the families of the people who died during 9/11. And they brought a lawsuit against Saudi Arabia in the seventh district of New York and that lawsuit, while not result definitively, at least a preliminary phase, the plaintiffs have won. They got the district court in Manhattan to reject Saudi Arabia's claims that...rejected their motion to dismiss. So this lawsuit is going forward.

Speaker 4:                           Right.

David Rivkin:                      So there are certainly circumstances where, I mean...United States wants to make a given foreign sovereign liable, they can easily strip away foreign sovereign immunity either by statute like JASTA or it can have a statute that enables the resident to designate countries as sponsors of terrorism that would effectively [inaudible 00:26:20]. So there are many ways to proceed but when you say world court, I'm not aware of anybody doing that certainly in the recent past. But yes, the United States could take the position that a foreign country that carries a terrorist attack against the American embassy, American warship, American nationals, that's committing an act of war and assuming that country has subjected itself to ICJ's jurisdiction, which is done by treaty, you can bring a case to ICJ. But that's typically not what we would do.

Speaker 4:                           Okay, thank you very much.

David Rivkin:                      Sure.

Dean Reuter:                     We still have some time left if you'd like to ask a question, push the star button and then the pound button on your telephone. Just one question pending, so let's turn to our next caller.

David Emerson:                Yes, Mr. Rivkin, it's David Emerson with the Berkeley Federal Society Chapter, thank you for your remarks. Question for you about a personal jurisdiction and whether or not that you get a sense of either directly or indirectly through the briefs or the court's decisions, whether or not it considers whether or not the petitioners have reasonable access to justice in another forum other than the court that they are appealing to? And I guess right behind that question is the assumption that the general sense of exterritorial jurisdiction and the discouragement of that is that there is justice to be found elsewhere. And there's no reason, there's no need for the US to be intravening in matters of other states if someone could just go to those other states and expect to get justice. So my question has to do with whether the courts take this into account in their reasoning and if they don't, is there a court of last resort? Is there a supra international body, which has something the counterpart of the inter carriers and after which these petitioners can seek relief?

David Rivkin:                      Right. Well I would say that the question of what would you have a recourse in an of a court does not really enter into the paradigm for determining other, either general personal jurisdiction or specific personal jurisdiction. I say that even while there is language in both texts that uses words like reasonable under different circumstances, and I'm loosely quoting from a general jurisdiction types cases. Under the [inaudible 00:29:21] particular case exercise jurisdiction on defendant in the context of a specific jurisdiction there words about fairness.

                                                So yes, there is a little bit of a wiggle room I would say as far as the judicial ability given that language to sort of look a little beyond just the extent of your contacts or the inability to argue that there was a...that the torturers acts were directed at the jurisdiction or jurisdiction was the focal point for them. But it really is not particularly relevant here. You may be thinking about other doctrines like Forum Non conveniens where you could say, well look, yes personal jurisdiction may be met but this is really not the best court to proceed with. So I would say it gets captured under Forum Non conveniens, which is essentially a much more discretionary exercise of authority by article three.

                                                And again, it makes sense. I mean basically if you think about it in terms of domestic litigation, if you have, if you live in California but you have sufficiently availed yourself of presence, you know your presence in New York, the laws of New York and continuous activities in New York, other general jurisdiction in New York, the fact that you really, really don't want to litigate in New York because you don't want to...let's say New York law is not great from your perspective or you just rather do it in California, the fact that it may be more convenient to you does not [inaudible 00:31:14] the facts that enable you, excuse me, enable the plaintiffs to reach you in New York. Bottom line being, you voluntarily, nobody forced you into this, you voluntarily chose to be a visiting presence in New York, either for purposes of general jurisdiction or you've done enough to satisfy this specific personal jurisdiction test.

                                                So a long answer, but availability of other venues would not really signify impropriety.

Dean Reuter:                     Let me make a final call for questions. If you have a question, push the star button and then the pound button on your phone.

                                                I believe we've had our final question. Let me give you a chance to wrap up. In doing so, David Rivkin, if you could let us know...in my experience the court will often follow the advice of the Solicitor General here. You've noted that the Solicitor General recommends against Cert grant, which is a position you think is perfectly defeasible, indeed the right decision or the right position. Any predictions on whether or not there will be a Cert grant and how do you analyze that?

David Rivkin:                      Zero for the reason you mentioned. But also because there are a couple of creative arguments that the petitioners have put on the table including the argument that PLO really is a sovereign state but it's a sovereign state for a foreign government. It's not, but what's impor...and the Supreme Court by the way again, as I said a couple of times now, is not even to be ruled on whether foreign governments are person or not and are or not entitled to the due process protections.

                                                But this was the general points I've correctly, they like to use Latin words. That PLO is sui generis or sui generis. So it's not the best vehicle for reaching this issue. Why is PLO sui generis? Well some people in this call may know it better than I do, but PLO is a very unusual relationship with the United States. It does have offices here, it is entitled to some immunities. It interacts a lot with US government, receives a lot of US government money, so it's kind of one of a kind. So to the extent that the Supreme Court wants to definitively dispose of the issue of whether or not foreign governments are persons, thinking of the Due Process Clause, this is not the right vehicle.

                                                And last but not least, contrary to...so and this is in addition to the more pragmatic observation I think you just made, which is the Solicitor General urges the court not to accept Cert. It puts a heavy problem on the scale. But in addition to that, there's a point I made about this being the wrong vehicle. And the fact that contrary to what the party suing [inaudible 00:34:13] alleged, there is no surrogate split. The DC circuit and the second circuit that were squarely reaching those issues are in unison.

                                                So I would be bold and instead of saying almost zero I would say zero.

Dean Reuter:                     Anything about...one final question. Any insight into the timeframe here? Is it something the court will dispose of quickly? Or they'll sit on it until the end of the term or any sense of that?

David Rivkin:                      I would say they should...I think they should do so...I mean whenever they're...again I don't know what when is the next conference coming up for considering Cert petitions, I just have not been tracking it. But yeah, I don't expect that it would take a long time for the Cert denial to issue. I think the issues are pretty clear. And let me also speculate that I don't think there will be any dissent from a Cert denial. But [inaudible 00:35:09] of that.

Dean Reuter:                     That's pretty definitive. Well, I want to thank you, David Rivkin, for your time. This is something sort of on the breaking news category, although we didn't do this at the courthouse steps, it certainly concerns the latest goings ons at two levels of court. So I appreciate you making time for us today, especially given the status of your health and your voice. I also want to thank our audience for dialing in and for your thoughtful questions.

                                                A reminder about our next scheduled Teleforum conference call, that's 3 pm tomorrow. We'll be talking, this will be courthouse steps, talking about a case heard yesterday, the Senate case. That's the second partisan gerrymandering case heard so far this term. That will be tomorrow, again at 3 pm Eastern time at this same number. But until that next call, we are adjourned. Thank you very much everyone.

Speaker 6:                           Thank you for listening. We hope you enjoyed this Practice Group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit the Federalist Society's website at fedsoc.org/multimedia.