“I believe that we have lost over 70 relatives (now over 100). I am experiencing this trauma of feeling guilty, as an American, that my taxpayer dollars are paying for the bombs being dropped on my family. I’m feeling tremendous guilt and shame. My children keep asking me questions. How am I supposed to explain a genocide against their people to them? Secretary Blinken and other U.S. officials make comments that seem to only value Israeli lives and Israeli safety. This means that Palestinian lives don’t mean anything to the United States. It’s very dehumanizing.”
This is part of what plaintiff Basim Elkarra, one of ten plaintiffs, stated in his declaration to the court in the complaint, Defense for Children International-Palestine, et al. v. Biden. The lawsuit was filed in the United States District Court for The Northern District of California on November 13, 2023, against U.S. government officials, naming President Joe Biden, Secretary of State Antony J. Blinken and Lloyd James Austin III, Secretary of Defense, for “their failure to prevent and for complicity in,” Israel’s genocide in Gaza.
The lawsuit “on behalf of Palestinian individuals and various organizations” was brought by the Center for Constitutional Rights (CCR), along with co-counsel Van Der Hout, LLP of San Francisco in charging the U.S. government for its “failure to exercise influence over Israel to prevent genocide” under international human rights law.
On January 31, 2024, U.S. District Judge Jeffrey S. White announced that “…the court found that Israel’s assault and siege on the Palestinian people in Gaza plausibly constitute genocide and ‘implor[ed]’ the Biden administration to examine its ‘unflagging support’ for Israel.” His finding of plausibility is in alignment with the historic ruling by the International Court of Justice (ICJ).
Judge White then granted a motion to dismiss the case “on jurisdictional grounds, invoking the political question doctrine. Government lawyers cite that doctrine in their appeal brief, arguing that “foreign policy” decisions – even a decision to enable genocide – are not subject to judicial review.”
Before that issue could be argued, it was learned that one of the three Appellate Court panel judges deciding the case, Judge Ryan Nelson (a 2018 Trump appointee) had gone on a March 2024 trip to Israel sponsored by the World Jewish Congress (WJC) along with “…two other 9th Circuit judges [who] participated in a delegation of federal judges that met with Israeli legal and military officials, and, according to organizers of the trip, was explicitly designed to influence U.S. judicial opinion regarding the legality of ongoing Israeli military action against Palestinians.” In reaction to this, on June 4 an “Emergency Motion to Disqualify” the judge from the panel was filed. Two days later, Judge Nelson recused himself and was replaced.
As oral arguments before the Court of Appeals began this morning on June 10 in San Francisco, plaintiffs’ attorney Katherine Gallagher countered the government’s argument for dismissal by saying “…that the political question doctrine, applied properly, excludes only cases that challenge the wisdom of foreign policy decisions – not those that challenge their legality. This case asks whether the executive branch can tell the judiciary that it must stand aside powerless while the executive violates binding law simply because the case involves foreign affairs.”
Max Baldi representing the government argued that “The decision about whether to grant military aid to a foreign nation is a political decision that is inherently entangled in with foreign relations. A court cannot second guess how the executive branch pursues these goals” and that “allowing a court to decide what military assistance could be supplied to an ally was beyond usual competence.”
When asked by Judge Consuelo Callahan if there would ever be a case in which a court “could enjoin the executive branch from supporting an alleged genocide in another country.” Baldi responded that “I have not been able to think of one.”
Responding later at a press conference, attorney for the plaintiffs, Baher Azmy, legal director of CCR, characterized Baldi’s statement on genocide as “Shockingly arrogant” by saying the argument that “If the Biden administration chooses to support genocide, there is nothing that the law or the courts can do to stop it.” And that it implied “Impunity trumps human rights. This makes the U.S. look hypocritical and borderline farcical as a defender of human rights and so-called western values.”
Commenting on today’s proceedings, plaintiff Elkarra noted that, “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.”
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At the conclusion of the hearing, the plaintiffs and their attorneys appeared at a rally across the street from the courthouse where human rights activists, Palestinians and their supporters heard from the plaintiffs and their attorneys who spoke forcefully about their case and the compelling urgency to end the genocide and war in Gaza immediately. There was also a giant banner created by participants which included 40,000 watermelon seeds, one for each of the victims killed so far in the war.
When asked how soon the case would be decided by the court due to the urgency in ending the ongoing genocide, Katherine Gallagher responded that it would take two to three months for the court to reach a decision.
Report and photo by Phil Pasquini
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