WAR IS FOUGHT on land, sea and air, as well as in the court of public opinion. But when parties bring their concerns about a war to the federal courts, they frequently find their road is blocked.
On Tuesday, the U.S. Court of Appeals for the 9th Circuit agreed to expedite consideration of a decision that put a roadblock on an attempt to stop President Joe Biden and other government officials from providing money and weapons to Israel for use in their war against Hamas in Gaza.
The appeal concerns an unusual decision issued Jan. 31 by U.S. District Judge Jeffrey White. The decision came in a lawsuit challenging U.S. Aid to Israel after the Oct. 7, 2023, attacks that killed approximately 1,200 people and resulted in the taking of some 240 hostages, many of them civilians.
The plaintiffs in the case are two Palestinian nongovernmental human rights organizations “dedicated to preserving and promoting the human rights of Palestinian people.”
They are joined by seven individuals: three of whom are residents of Gaza and four who are U.S. Citizens of Palestinian origin. The complaint alleges that the three residents of Gaza have lost a total of 21 members of their families, all allegedly killed by Israeli bombing.
The 85-page complaint begins by noting that genocide is “the gravest of crimes under international law.”
Federal law defines genocide to include acts “committed with the intent to destroy in whole or in part a national ethnical, racial or religious group as such by, among other things: (ii) deliberately inflicting upon the group conditions of life calculated to bring about its physical destruction in whole or in part.”
‘A matter of law and morality’
The plaintiffs seek an order requiring Biden, along with Antony Blinken and Lloyd Austin, U.S. Secretaries of state and defense, respectively, to “adhere to their duty to prevent, and not further, the unfolding genocide of Palestinian people in Gaza.”
They argue that “even attacks that result [from] atrocity crimes can never justify, as a matter of law or morality, the form of lethal collective punishment and destruction against the Palestinian population that is unfolding.”
They urge the court to enjoin Biden and the other officials from providing financing, weapons, and other military assistance to Israel. They also ask the court to direct the officials to use their powers and influence to make Israel end the bombing and siege of Gaza.
The lawsuit was brought by lawyers from Van Der Hout LLP in San Francisco and the Center for Constitutional Rights in New York.
White’s decision began with a traditional analysis. He held that the suit could not be heard in U.S. federal courts because the case raised “political questions” that were exclusively the province of the president and Congress.
He explained that the federal courts only have authority to hear cases that fall within particular areas and then only subject to limitations imposed by the U.S. Constitution.
One of those limitations is the “political question doctrine” which, he said, quoting the U.S. Supreme Court, “excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.”
The arena of foreign relations is one of particular sensitivity, both for the potential it offers for interference with decision-making that is committed to the president and Congress, but also because courts lack expertise in such matters.
Partially quoting the high court, White said, “the judiciary is not equipped with the intelligence or the acumen necessary to make foreign policy decisions on behalf of the government. The very nature of [an] executive decision as to foreign policy is political, not judicial responsibility and have long been held to belong to the domain of political power not subject to judicial intrusion or inquiry.”
He said that in order to grant relief in this case it would require him to question and “even condemn U.S. foreign policy towards Israel,” actions that would likely cause international embarrassment and undermine the country’s foreign policy decision-making.
An unusual conclusion
White’s opinion closed on an unusual note. Although he swiftly and decisively dismissed the case, he used the ending of his opinion to express a personal view.
He began by saying, “There are rare cases in which the preferred outcome is inaccessible to the Court. This is one of those cases.”
He noted that a decision of the International Court of Justice on Jan. 26, 2024, found “the military operation being conducted by Israel … has resulted in a large number of deaths and injuries, as well as the massive destruction of homes, forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure.”
The ICJ is a judicial arm of the United Nations and, according to Amnesty International, its role is to settle legal disputes relating to the “interpretation, application or fulfillment of the Genocide Convention.”
White noted that the ICJ “found that the acts and omissions complained of … appear to be capable of falling within the provisions of the Genocide Convention.”
He then observed that while he could not hear the case, the ICJ had found it to be “plausible that Israel’s conduct amounts to genocide.”
He ended with a plea: “This Court implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.”
White is a senior judge on the U.S. District Court for the Northern District of California. He was nominated to the bench by George W. Bush in 2002 and confirmed by the Senate on Nov. 15, 2002.
In its order accelerating briefing, the appeals court directed that the appeal be listed on the court’s June calendar.
Under the court’s procedures, preliminary decisions about an appeal are frequently made by a “motions panel” that is separate from the “merits panel” that will ultimately decide the appeal.
Johnny Sinodis of Van Der Hout LLP said in a statement, “The Ninth Circuit’s grant of our motion to expedite is important, as the dire and unlivable conditions in Gaza must be addressed urgently.”
He added, “We are hopeful that the court will ultimately order the U.S. to fulfill its obligations under the 1948 Genocide Convention to prevent, and not be complicit in, the genocide that the world is witnessing taking place in Gaza.”
The defendants are represented by lawyers from the U.S. Department of Justice. A DOJ spokesperson declined to comment on the order.
