Bernstein v. Kerry

Case 1:12-cv-01906-ESH Document 19 Filed 06/14/13 Page 1 of 45
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
--------------------------------------------------------------------- X RACHEL BERNSTEIN, et al., Plaintiffs, -againstJOHN F. KERRY, et al., Defendants. --------------------------------------------------------------------- X Civil Action No: 12-1906 (ESH)
PLAINTIFFS MEMORANDUM IN OPPOSITION TO THE DEFENDANTS MOTION TO DISMISS
Table of Contents TABLE OF AUTHORITIES ....................................................................................................... ii INTRODUCTION ........................................................................................................................1 ARGUMENT POINT I LEGAL STANDARDS APPLICABLE TO THE MOTION TO DISMISS ...............................2 POINT II DEFENDANTS POLITICAL QUESTION ARGUMENT IS FRIVOLOUS.............................3 POINT III FAR FROM BEING AN ABUSE OF DISCRETION, ENFORCING THE LIMITATIONS IN FEDERAL APPROPRIATIONS STATUTES AGAINST EXECUTIVE ABUSES IS THE JUDICIARYS ROLE .............................................................6 POINT IV THIS COURT HAS JURISDICTION ..........................................................................................9 POINT V PLAINTIFFS HAVE ARTICLE III STANDING......................................................................13 A. The Plaintiffs Suffer Constant Injury ............................................................................13 B. The Plaintiffs Injuries are Fairly Traceable (in Part) to Funding Sent by the Defendants to Palestinian Governmental Entities, NGOs, and Individuals..........................24 C. The Plaintiffs Injuries can be Redressed (in Part) by an Order Compelling the Defendants to Comply with Federal Statute ...................................................................25 D. The Constitution Compels the Conclusion that the Plaintiffs Have Standing ..............28 POINT VI PALESTINIAN TERRORISM IS A DAILY THREAT THAT RELIES ON A CONSTANT SUPPLY OF MONEY ........................................................................................31 CONCLUSION...........................................................................................................................38
Table of Authorities Constitution * U.S. CONST. art. I, 7, cls. 2-3 (Presentment Clause) ................................................ 22, 28-31 U.S. CONST. art. I, 8...................................................................................................................3 U.S. CONST. art. I, 9, cl. 7 .......................................................................................................21 U.S. CONST. art. II, 3 .........................................................................................................19, 29 U.S. CONST. art. III, 2..............................................................................................................23
Cases Allen v. Wright, 468 U.S. 737 (1984) .........................................................................................20 Am. Canoe Assn, Inc. v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536 (6th Cir. 2004).................................................................................................... 20-21 Baker v. Carr, 369 U.S. 186 (1962) ..................................................................................... 3-4, 9 Bennett v. Spear, 520 U.S. 154 (1997) .......................................................................................24 Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685 (7th Cir. 2008) (en banc) ............................................................................................................. 15-16, 24 Bond v. United States, 131 S. Ct. 2355 (2011)...........................................................................10 Bryant v. Yellen, 447 U.S. 352 (1980)........................................................................................27 Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013) ..............................................................22 * Clinton v. City of New York, 524 U.S. 417 (1998) ...................................................... 18, 28-30 CNA v. United States, 535 F.3d 132 (3d Cir. 2008) .....................................................................2 Gonon v. Allied Interstate, LLC, 286 F.R.D. 405 (S.D. Ind. 2012).......................................... 2-3 Haase v. Sessions, 835 F.2d 902 (D.C. Cir. 1987) .......................................................................2 Hanson v. Veterans Admin., 800 F.2d 1381 (5th Cir. 1986) ......................................................26 Havens Realty Corporation v. Coleman, 455 U.S. 363 (1982) ............................................ 18-19 I.N.S. v. Chadha, 462 U.S. 919 (1983)............................................................................. 5, 22-23
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Jenkins v. McKeithen, 395 U.S. 411 (1969) .................................................................................3 Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug Admin., 402 F.3d 1249 (D.C. Cir. 2005) .......................................................................................................3 Larson v. Valente, 456 U.S. 228 (1982) .....................................................................................25 Leonhard v. Mitchell, 473 F.2d 709 (2d Cir. 1973) ...................................................................11 Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) ..........................................................................9 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................... 13, 19-20 Marbury v. Madison, 1 Cranch 137 (1803)..............................................................................3, 6 Marcinkowsky v. United States, 44 Fed. Cl. 610 (Fed. Cl. 1999) ................................................3 Massachusetts v. E.P.A., 549 U.S. 497 (2007)............................................................... 21-22, 26 Miller v. Ackerman, 488 F.2d 920 (8th Cir. 1973) .....................................................................10 Monmouth Medical Center v. Thompson, 257 F.3d 807 (D.C. Cir. 2001).................................11 NAACP v. Levi, 418 F. Supp. 1109 (D.D.C. 1976) ....................................................................11 National Black Police Assn v. Velde, 631 F.2d 784 (D.C. Cir. 1980) ......................................28 The Nat. Fedn of The Blind v. Spellings, 562 F. Supp. 2d 74 (D.D.C. 2008) .............................2 Raines v. Byrd, 521 U.S. 811 (1997)..........................................................................................30 * Train v. City of New York, 420 U.S. 35 (1975) ..................................................................... 7-9 United States v. Richardson, 418 U.S. 166 (1974).....................................................................21 * United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973) ........................................................................... 16-18, 21 Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982)...................................................................... 13-14, 20 Walpin v. Corp. for Nat. & Cmty. Servs., 630 F.3d 184 (D.C. Cir. 2011) .................................11 Wultz v. Islamic Republic of Iran, 755 F.Supp.2d 1 (D.D.C. 2010).....................................16, 31 Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579 (1952)................................................................................................................................9 * Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) ....................................................................... 4-6
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Statutes 28 U.S.C. 1331 ........................................................................................................................10 28 U.S.C. 1361 (Mandamus Act) .................................................................................. 9-10, 12 42 U.S.C. 3604(d).............................................................................................................. 18-19
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 312, Pub. L. No. 10756, 115 Stat. 272 (2001) (USA PATRIOT Act)..................................32
GA. CODE ANN. 16-5-90 ..........................................................................................................14
Rules FED.R.CIV.P. 12(b)(1).................................................................................................2, 10, 12, 19 FED.R.CIV.P. 12(b)(6)...........................................................................................................10, 19
Secondary Sources ISRAELI MINISTRY OF FOREIGN AFFAIRS, INTERNATIONAL FINANCIAL AID TO THE PALESTINIAN AUTHORITY REDIRECTED TO TERRORIST ELEMENTS June 5, 2002, available at http://mfa.gov.il/MFA/ForeignPolicy/Terrorism/ Palestinian/Pages/International %20Financial%20Aid%20to%20the%20Palestinian%20Aut.aspx................................35 Richard Nixon, Veto of the Federal Water Pollution Control Act Amendments of 1972, October 17, 1972, available at http://www.presidency.ucsb.edu/ws/?pid=3634 ...............................................................7 United States Census Bureau, Country Rank, http://www.census.gov/population/ international/data/countryrank/rank.php................................................................... 36-37 United States Department of the Treasury, Financial Crimes Enforcement Network, USA PATRIOT Act, http://www.fincen.gov/statutes_regs/patriot/..................................................................32
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Leslie Yalof Garfield, The Case for a Criminal Law Theory of Intentional Infliction of Emotional Distress, 5 CRIM. L. BRIEF 33 (2009) ........................................15 Matthew J. Gilligan, Note, Stalking the Stalker: Developing New Laws to Thwart Those who Terrorize Others, 27 GA. L. REV. 285 (1992) ..................................15 Afton L. Hassett & Leonard H. Sigal, Unforeseen Consequences of Terrorism: Medically Unexplained Symptoms in a Time of Fear, 162 ARCHIVES INTERN MED. 1809 (2002), available at http://archinte.jamanetwork.com/article.aspx?articleid=212551....................................37 Andrew Jay McClurg, Bringing Privacy Law out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C.L. REV. 989 (1995).......................................................................................................................14 Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1 (1993) ...................................................................................................................9 Ido Rosenzweig & Yuval Shany, A Decade of Palestinian Terrorism Report by the Israeli Security Agency, 14 TERRORISM & DEMOCRACY (2010), http://en.idi.org.il/analysis/terrorism-and-democracy/issueno-14/a-decade-of-palestinian-terrorism-%E2%80%93-report-bythe-israeli-security-agency/.............................................................................................36 * Steven Stotsky, Does Foreign Aid Fuel Palestinian Violence?, 15 MIDDLE EAST QUARTERLY 23, fig.2 (2008), available at http://www.meforum.org/1926/does-foreign-aid-fuel-palestinianviolence ..................................................................................................................... 33-36
Herb Keinon, PM to Christie: Israel, New Jersey are Similar, JERUSALEM POST, Apr. 2, 2012 ..........................................................................................................36 HUMAN RIGHTS WATCH, ROCKETS FROM GAZA: HARM TO CIVILIANS FROM PALESTINIAN ARMED GROUPS ROCKET ATTACKS 17 (2009) ..........................................37 International Centre for Political Violence and Terrorism Research, Terrorist Financing 1 (2007), http://www.pvtr.org/pdf/Financial%20Response/TerroristFinancing.pdf ..................................................................................................................31
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Jewish Virtual Library, Terrorism Against Israel: Rocket & Mortar Attacks (February 2009 - Present), http://www.jewishvirtuallibrary.org/jsource/Terrorism/ rockets2011.html.............................................................................................................36 Terry Davis, Sec'y Gen., Council of Eur., Speech at the Joint Plenary of MONEYVAL and the FATF (Feb. 21, 2007) (transcript available at http://www.coe.int/t/dc/press/news/20070221_disc_sg_ EN.asp)..................................31 WM. ROBERT JOHNSTON, DEATH RATES FROM TERRORISM, UNITED STATES AND ISRAEL, 1985-2013 (May 5, 2013), http://www.johnstonsarchive.net/terrorism/terror-rate.html..................................... 36-37
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INTRODUCTION This is an action by American citizens who reside in Israel and live under the constant threat of death and other severe harm to themselves and their loved ones. Two of them are victims of prior terror attacks in Israel. All of themevery day of their liveslive as human targets in fear that they will be attacked (again). They experience the emotional pain that is associated with being targets now, not at some unknown time in the future. And their lives are different (again, now) as a result. They seek nothing but the enforcement of federal laws designed to protect their safety and reduce the risks that they face on a daily basis. Throughout their memorandum in support of their motion, Defendants claim that the Plaintiffs have filed this suit for no reason other than to air their disagreement with the conduct of U.S. foreign policy and that this suit is merely an attempt to litigate [Plaintiffs] disagreement with how this countrys foreign policy is managed. (E.g. Docket No. 15-1 at 2, 13). That is not just false, it is upsetting. The Plaintiffs have sued the Executive Branch because they fear for their safety and believe that the Executive Branch is not compliant with federal statutes designed and intended to protect their safety. As a result of this noncompliance, the Plaintiffs are less safe and their lives less secure. The Executive Branch responds by ignoring the Plaintiffs problems, reframing them as different (political) problems, and accusing the Plaintiffs of wasting this Courts time. (Docket No. 15-1 at 5 n.2). The Plaintiffs claims relate only to their safety and protection, not to foreign policy. They relate to the enforcement of federal statute and statutory interpretation, not to the resolution of imponderables that occupy the minds of the employees of the State Department. But because Plaintiffs anticipate that, absent excessive clarity, the Defendants will repeat this red herring, the Plaintiffs leave no room for doubt:
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The Plaintiffs do not challenge U.S. foreign policy. The Plaintiffs do not challenge the decision by the Executive Branch to
fund the Palestinian Authority and other Palestinian interests, subject to the limitations on such funding created by federal law. The Plaintiffs do not think that this Court is the place to decide such
questions and acknowledge that they are best left to political resolution. Rather, the Plaintiffs challenge the Executive Branchs disregard of
express limitations placed upon it by Congress, pursuant to Congress constitutional authority to control the federal purse strings, in a manner that inflicts affirmative, legitimate, cognizable, and observable harm on the Plaintiffs. ARGUMENT I. LEGAL STANDARDS APPLICABLE TO THE MOTION TO DISMISS A motion to dismiss pursuant to Rule 12(b)(1) seeks dismissal for lack of subjectmatter jurisdiction. It presents a threshold challenge; a ruling on a Rule 12(b)(1) motion is not a ruling on the merits for the purposes of res judicata or any other purpose. Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). Accordingly, whether a court has subject matter jurisdiction to hear a dispute does not turn on the merits of the claims in that dispute. The Nat. Fedn of The Blind v. Spellings, 562 F. Supp. 2d 74, 79 (D.D.C. 2008). The motion to dismiss must be viewed from the presumption that the plaintiff has stated valid claims and that those claims have merit. See CNA v. United States, 535 F.3d 132, 144 (3d Cir. 2008) ([A] district court must take care not to reach the merits of a case when deciding a Rule 12(b)(1) motion.); Gonon v. Allied Interstate, LLC, 286 F.R.D. 405, 406 (S.D. Ind. 2012) (The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) is to test the sufficiency of the complaint, not to
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decide the merits of the case.); Marcinkowsky v. United States, 44 Fed. Cl. 610, 613 (Fed. Cl. 1999) affd, 206 F.3d 1419 (Fed. Cir. 2000) (Trial courts may not reach the merits of a case before ascertaining that they have jurisdiction.). Further, all of the factual allegations in the complaint must be accepted as true, Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005), and the allegations must be construed in the favor of the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421-422 (1969) (cited by Haase, 835 F.2d at 906). The courts, however, are not limited to the factual allegations themselves. [T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction. Jerome Stevens Pharmaceuticals, 402 F.3d at 1253. II. DEFENDANTS POLITICAL QUESTION ARGUMENT IS FRIVOLOUS Defendants argue that this case asks this Court to answer political questions, relying upon the six-part test articulated in Baker v. Carr, 369 U.S. 186, 217 (1962). (Docket No. 15-1 at 10). Defendants note that the Baker test requires only that the Defendants demonstrate one, not all six, of the Baker factors. Id. But the Defendants then change the subject, failing to argue that any one of the Baker factors is implicated here.1 Rather, the Defendants argue that any That is, of course, with good reason. None of the Baker factors are relevant: (1) To the extent that there is a textually demonstrable constitutional commitment of the issue, it lies in the fact that the Legislative Branch, not the Executive Branch, has authority to appropriate funds and has the powers created by U.S. CONST. art. I, 8, to spend or withhold spending for the general welfare of the United States. It is thus within Congresss power to decide to place financial and budgetary restrictions on the Executive Branch as it carries out U.S. foreign policy. The wisdom of the limitations created by Congress is not before this Court, as assessing Congresss political decisions would likely entail a political question. (2) There certainly are manageable standards associated with interpreting Congress statutes and applying them. (3) The case asks this Court to render no policy judgments, only to apply statutes as written and intended by Congress. (4) This case does not ask this Court to express any lack of respect to either of the political Branches of government. All it does is ask the Court to fulfill its constitutional role in say[ing] what the law is by interpreting Congress statutes and applying them. See Marbury v. Madison, 1 Cranch 137, 177 (1803). (5) This case does not ask the Court to adhere or reject any political or policy decision. Indeed, the Plaintiffs do not challenge U.S. foreign policy. (6) This case creates no -31
case that has an incidental effect on the Executive Branchs conduct of foreign policy is, by definition, a political question. (Docket No. 15-1 at 11). The Defendants position appears to be the same as that of Justice Stephen Breyer in his dissent in Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012). Zivotofsky was an action on behalf of an American boy born in Jerusalem whose parents requested that his passport record, as the place of his birth, the state of Israel rather than the city of Jerusalem. Their request rested upon a federal statute that permits Americans born in Jerusalem to elect to have Israel listed as the[ir] place of birth. Zivotofsky, 132 S. Ct. at 1424. The Executive Branch declined to follow that law, citing its longstanding policy of not taking a position on the political status of Jerusalem. Id. When the parents of the child sued the Executive Branch, the latter sought to have the case dismissed. Id. The district court (Kessler, J.) agreed, dismissing the complaint for lack of standing and for presenting a nonjusticiable political question. Id. at 1426. The Supreme Court ultimately reversed by a vote of 8-1. Seven2 Justices found the Executive Branchs reliance on the political question doctrine to be profoundly flawed, noting that [t]he courts are fully capable of determining whether this statute may be given effect or must be struck down due to perceived separation of powers violations (not relevant in this litigation). Id. at 1425. The Court wrote further: possibility of any sort of embarrassment to the Government resulting from multifarious pronouncements by various departments on one question. There is no doubt that (a) conduct of U.S. foreign policy is in the hands of the Executive Branch, (b) control over the federal purse is in the hands of the Legislative Branch, and (c) control over the judicial function of interpretation and application is in the hands of the Judiciary. It is true that those three functions may occasionally come into conflictas they appear to herebut that is simply a function of the constitutional system developed by our Framers. Baker is not implicated by the mere suggestion that the Executive Branchs preferred course of action is blocked by a constitutional and legitimate exercise of power by Congress and the Judiciary. 2 Justice Alito concurred separately and did not join the six-Justice majority. Nevertheless, his reasoning appears to be fully consistent with the presentation herein. Plaintiffs therefore count him among the majority. The point is immaterial for even if the Court majority was only six, Justice Alito in Zivotofsky surely rejected the position proffered now by the Defendants. -4-
The District Court understood Zivotofsky to ask the courts to decide the political status of Jerusalem. This misunderstands the issue presented. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right, under 214(d), to choose to have Israel recorded on his passport as his place of birth. The existence of a statutory rightis certainly relevant to the Judiciarys power to decide Zivotofskys claim. The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the Judiciary must decide if Zivotofskys interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise. Id. at 1427 (internal citation omitted). The fact that statutory interpretation and application might occasionally have political implications, does not, said the Court, absolve the Judiciary of its constitutional obligation to resolve the questions properly before it. Id. at 1428 (quoting I.N.S. v. Chadha, 462 U.S. 919, 943 (1983)). Those statements in Zivotofsky are not less true here. While some of the statues relied upon by the Plaintiffs grant to the President and the State Department the latitude to make factual findings and exercise a certain amount of discretion, many of the statutes relied upon by the Plaintiffs do not. (See Docket No. 1 at 109, 110, 123, 126, 144, 151-53, 160-65, 182-83, 185-86, 188.) The latter statutes are express, unyielding, and absolute limitations on the
Executive Branchs power. With regard to those statutes, Defendants reliance upon the political question doctrine is quite puzzling. But even with regard to the former statutes, a grant of authority to make factual determinations (including factual determinations that have political content) is not a blank check. The statutory grant of fact-finding and/or discretionary authority necessarily has limitations, and it is up to the Judiciary to decide what those limitations are and whether the Defendants have exceeded them. That task is certainly within the judicial competenceit is what judges do.
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The similarities between Zivotofsky and the present case are striking. Both cases present a statute (in this case, several statutes) that the State Department has elected to ignore. Both cases are brought by plaintiffs that those statutes were intended to benefit. Both cases ask the Judiciary to interpret those statutes, determine their scope and to decide whether the State Departments decision to ignore them was within its lawful power as an organ of the Executive Branch. This is what courts do. The political question doctrine poses no bar to judicial review of this case. Id. at 1430. III. FAR FROM BEING AN ABUSE OF DISCRETION, ENFORCING THE LIMITATIONS IN FEDERAL APPROPRIATIONS STATUTES AGAINST EXECUTIVE ABUSES IS THE JUDICIARYS ROLE The Defendants amazingly suggest that a decision by this Court to entertain this case would be an abuse of [its] discretion. (Docket No. 15-1 at 16 (internal citation omitted)). The Defendants set up a straw manarguing that Plaintiffs seek to have this Court issue a mandamus to the Secretary of State directing him on how to conduct foreign policyand rely on cases that raze the straw man. As noted supra, all that Plaintiffs desire is the Courts interpretation and application of federal statutes for the purpose of securing the protections created by said statutes. That is not, and cannot be construed as, an abuse of the Courts discretion. It is an exercise of the Judiciarys constitutional right and duty under Marbury v. Madison, 1 Cranch 137, 177 (1803). Not only is the enforcement of appropriations limitations within the Judiciarys hypothetical constitutional powers, the courts have actually taken an aggressive role in the enforcement of those limitations, even where doing so carried with it considerable political implications.
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Most prominently, the Supreme Court unanimously rejected in Train v. City of New York, 420 U.S. 35 (1975), President Nixons interpretation of the Federal Water Pollution Control Act Amendments of 1972 (the Clean Water Act or CWA). Congress passed the CWA over President Nixons veto. In his veto statement, Nixon argued that while he found the intent of the CWA laudable, its merits were outweighed by its unconscionable $24 billion price tag. Richard Nixon, Veto of the Federal Water Pollution Control Act Amendments of 1972, October 17, 1972, available at http://www.presidency.ucsb.edu/ws/?pid=3634 (last visited May 20, 2013). Nixon explained his decision further: Environmental protection has been one of my highest priorities as President. The record speaks for itself. The budget authority which I have requested for pollution control and abatement in fiscal year 1973 is more than four times the amount requested in 1969. This dramatic growth in the share of Federal Government resources being devoted to the environment exceeds, many times over, the rate of increase for funds in most other major government programs. Every environmental spending increase that I have proposed, however, has been within the strict discipline of a responsible fiscal policya policy which [sic] recognizes as the highest national priority the need to protect the working men and women of America against tax increases and renewed inflation. Specifically, the water pollution control bill which [sic] I originally sent to the Congress last year was fully consistent with the concept of a balanced, full-employment budget. It would have committed $6 billion in Federal funds over a three-year period, enough to continue and accelerate the momentum toward that high standard of cleanliness which [sic] all of us want in Americas waters. By contrast, the bill which [sic] has now come to my desk would provide for the commitment of a staggering, budget wrecking $24 billion. Ironically, however, only a portion of the $ 18 billion by which my bill was fattened on Capitol Hill would actually go to buy more pollution control than the Administration bill would have done. Id. Congress overrode Nixons veto the next day. Id. Subsequently, Nixon interpreted the CWA in a manner consistent with the policy objectives that he articulated in his veto statement. Specifically, he made available to municipalities considerably less money than was appropriated
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to assist them with the construction of sewers and sewage treatment works. Train, 420 U.S. at 37-38. The CWA provided that an amount not to exceed $5 billion was authorized to be appropriated for the provision of such assistance in the fiscal year ending 1973 and $6 billion for the fiscal year ending 1974. Id. at 38-39. Nixon instructed his Administrator of the Environmental Protection Agency not (to) allot among the States the maximum amounts provided by section 207 and, instead, to allot (n)o more than $2 billion of the amount authorized for the fiscal year 1973, and no more than $3 billion of the amount authorized for the fiscal year 1974. Id. at 40 (alternations and internal quotation marks in original). The EPA wrote Nixons directive into regulation. Several municipalities sued immediately thereafter. Id. The Train Court subsequently dealt with the contentious political battle between Congress and the Executive by doing what courts do: it read and interpreted the statute. The CWA mandated, the Court unanimously noted, that (s)ums authorized to be appropriated pursuant to (s 207)shall be allotted by the Administrator. Id. at 42 (emphasis added, other alterations in original). The Court explained that [i]f a sum of money is authorized to be appropriated in the future by s 207,then s 205(a) directs that an amount equal to that sum be allotted. Id. at 44. Accordingly, the Court held, Nixon lacked authority to interpret the appropriations provisions in the CWA in accord with his political objectives. Id. The Defendants position here appears to be materially similar to President Nixons. They believe that the policy objectives of the Executive permit Executive Branch officials to interpret statutes in any way that they choose, even if that means completely disregarding the plain text of the statute. The Defendants would presumably attempt to distinguish Train by arguing that while the Executive is bound to comply with statutory text in all other arenas, even with regard
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to appropriations measures, appropriations provisions dealing foreign affairs are different. When it comes to foreign affairs, the Defendants appear to believe, the Constitutions general mode of dividing power between three branches is irrelevantin their view, executive authority trumps all else. That proposition needs only to be stated to be rejected. Indeed, it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Baker, 369 U.S. at 211; see also Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579 (1952) (invalidating on statutory grounds President Trumans attempt to seize the nations steel mills in the face of a possible strike that might have jeopardized ongoing military operations in the Korean War); Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) (holding that the President could not authorize the seizure of foreign ships in contravention of an express contrary congressional directive); Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1, 31 (1993) (The executive Power recognizes no presidential license to disregard otherwise concededly applicable legislation, even in an emergency.). IV. THIS COURT HAS JURISDICTION Defendants claim that none of the statutes that they have violated contain a private right of action and, therefore, Plaintiffs requested relief pursuant only to the Mandamus Act. (Docket No. 15-1 at 14). They claim further that jurisdiction pursuant to the Mandamus Act is unavailable. Id. They are wrong on both counts. First, the Complaint expressly requests a declaration that the Defendants have violated federal statutes and a permanent injunction requiring Defendants to comply with the law and cease all funding to the Palestinian Authority, UNRWA, and others in the West Bank and Gaza, until those actors are ready and able to fully comply with federal prohibitions against support for terrorism. (Docket No. 1 at 57). To that end, Plaintiffs noted that this Court has
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jurisdiction pursuant to 28 U.S.C. 1331 (action arising under the laws of the United States), [and] 1346(a)(2) (United States as defendant) in addition to 28 U.S.C. 1361 (mandamus). (Docket No. 1 at 3). (The Defendants have not moved to dismiss this case on the grounds that there is no private right of action. Their entire discussion on jurisdiction focuses on mandamus jurisdiction and offers no argument or specific demands outside of the context of mandamus jurisdiction. Moreover, their motion to dismiss cannot be construed (counterfactually) to seek dismissal for lack of a private right of action. Questions on the existence of a private right of action are questions on the merits. Bond v. United States, 131 S. Ct. 2355, 2363 (2011) ([T]he question whether a plaintiff states a claim for relief goes to the merits in the typical case, not the justiciability of a dispute.) (internal quotation marks omitted). A motion seeking dismissal on those grounds must therefore be raised pursuant to Rule 12(b)(6) (failure to state a claim). The instant motion is a motion under Rule 12(b)(1). Accordingly, the propriety of the Plaintiffs private right of action is not before the Court.) Second, the Plaintiffs have jurisdiction pursuant to the Mandamus Act, 28 U.S.C. 1361. It provides that The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. Mandamus is available to compel any public official or authority to refrain from taking actions contrary to law or to take actions compelled by law. There is no doubt that mandamus is an extraordinary remedy. But courts should grant a writ of mandamus when official conduct goes far beyond any rational exercise of discretion Miller v. Ackerman, 488 F.2d 920, 922 (8th Cir. 1973), and when government officials fail[] to comply with a specific statutory direction.
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Leonhard v. Mitchell, 473 F.2d 709 (2d Cir. 1973); NAACP v. Levi, 418 F. Supp. 1109, 1117 (D.D.C. 1976). This is a case in which mandamus is appropriate. It presents rather extraordinary circumstances: Congress has duly passed a series of spending restrictions with the clear
objective of retarding Palestinian terrorism and, accordingly, protecting the Plaintiffs. The Executive Branch has made the decision that Congress efforts to protect the Plaintiffs are inconsistent with its policy objectivesit has therefore elected to ignore those spending restrictions. By so doing, it has injured and continues to injure the Plaintiffs. The balance of the equities here clearly lies with the Plaintiffs. Where, as here, equitable concerns counsel in favor of granting a writ of mandamus, mandamus should issue. See Monmouth Medical Center v. Thompson, 257 F.3d 807, 815 (D.C. Cir. 2001) (Although mandamus is classified as a legal remedy, its issuance is largely controlled by equitable principles.). Defendants argue that that the statutes indentified in the Complaint do not create a duty owed to the plaintiff[s]. (Docket No. 15-1 at 15).3 Their reasoning seems to be that the statutes do not expressly vest the Plaintiffs with any private rights. But that conflates the question of whether there is a private right of action with the question of whether the Court has
The Defendants only case in support of this proposition, Walpin v. Corp. for Nat. & Cmty. Servs., 630 F.3d 184, 187-88 (D.C. Cir. 2011), in inapposite. Walpin held that the statutes relied upon by the petitioner did not, on their terms, grant the protections that the petitioner desired. At present, there is no dispute over the content of the statutes. The statutes explicitly prohibit Executive expenditures, sometimes absolutely and sometimes when certain conditions are met. The Plaintiffs have adequately alleged that the necessary conditions have been met here. Accordingly, the Plaintiffs have adequately alleged the applicability of the relevant statutes. The Defendants have not provided a single case to support their suggestion that this case should be barred for lack of mandamus jurisdiction solely because a statute that is plainly applicable and plainly restricts the Executive in the manner that the Plaintiffs allege does not expressly grant the Plaintiffs a private right of action (which is itself a question on the merits and not a jurisdictional question). As far as Plaintiffs are aware, there is no such case; this Court has jurisdiction. -11-
jurisdiction under the Mandamus Act. Those are distinct inquiries.4 There can be no question that the statutes create a duty owed to the plaintiffs, at least within certain parameters specified by the statutes. The statutes are designed to protect the Plaintiffs from harm. While the statutes do not compel anyone to give any money or other tangible assets or services to the Plaintiffs, they do compel the Executive Branch to give a measure of protection to the Plaintiffs and their personal and pecuniary interests. The statutes do that by restricting the Executive Branchs ability to provide money to those who want to kill the Plaintiffs and destroy their property. Alternatively, the statutes create within the Palestinian governing authorities an incentive to stop killing innocent civilians and destroying their property. That interest (whether understood as an affirmative requirement to defund Palestinian terrorists or as one to create incentives) is an interest of great valueindeed, it is invaluable. Further, it is owed to the Plaintiffs in the sense that the Executive Department lacks the discretion to withhold that valuable interest from the Plaintiffs (unless the Executive makes (in good faith) findings specified by particular statutes, which did not happen here). Accordingly, the statutes create a duty [that is] owed to the plaintiff[s] for the purposes of the Mandamus Act. The Defendants also argue that they have no duty to act for the purposes of the Mandamus Act because the Plaintiffs claims reach the discretionary province of the political brancheswhich are not amenable to mandamus. (Docket No. 15-1 at 16). The Defendants completely misunderstand the Plaintiffs posture in this case. It is precisely the ministerial and nondiscretionary duties created by the appropriations statutes identified in the Complaint regarding which nothing is left to discretionfor which the Plaintiffs seek mandamus. (See
As noted above, the question of whether the Plaintiffs have a private right of actions is a question on the merits and is not before this Court on a Rule 12(b)(1) motion. -12-
Docket No. 15-1 at 15).5 As noted in the introduction of this memorandum, the Plaintiffs do not request this Court to order the Executive Branch to conduct foreign policy in accord with its preferences. Rather, the Plaintiffs request a writ of mandamus compelling the Executive to comply with nondiscretionary provisions in various appropriations statutes. That the Executive has an affirmative duty here could not be clearer. V. PLAINTIFFS HAVE ARTICLE III STANDING The vast majority of suits against the government may not be entertained unless the Plaintiffs demonstrate that they have an injury in fact that is fairly traceable to the defendant and can be redressed by the courts. Lujan v. Defenders of Wildlife, 504 U.S. 555, 56061 (1992). What is less clear is how those elements operate in light of the unusual factual scenario presented here. As explained below, all three elements are present and the Plaintiffs have standing under Lujan. Further, the Plaintiffs have Article III standing for another reason: it is compelled by the structure and function of the Constitution. A. The Plaintiffs Suffer Constant Injury 1. Defining the Injury
The general purpose of the injury prong of the standing doctrine is to ensure that legal questions are presented in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action. Valley Forge Christian Coll. v. Americans United for Plaintiffs recognize that somebut not allof the statutes they rely on in their Complaint grant the Executive a discretionary waiver power. But even the use of that discretionary waiver has express limitations. It may not be utilized unless, for example, the Executive makes particular findings. If the Executive is unable to make those findings, as is the case here, his duties under the statute are non-discretionary. Moreover, the statutes do not grant the Executive the authority to make said findings if those findings cannot be supported. There is an implied requirement that the President make said findings in good faith and non-arbitrarily. The Plaintiffs have credibly alleged, based on reasonable deductions from facts presented in the Complaint, that with regard to none of the statutes at issue the Executive could have plausibly made the necessary findings in good faith. On these facts, his duties under the statute are non-discretionary and absolute. -135
Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). The quintessential question, then, is whether the Plaintiffs have suffered, continue to suffer, or very likely will suffer in the future in such a manner as to render this dispute appropriate for judicial inquiry. The answer to these questions is undoubtedly yes. In order to explain why, the Plaintiffs will first articulate their injury and then move to addressing some of the finer doctrinal points. The Plaintiffs live under an umbrella of constant fear. Their lives and livelihood, and that of their families, are always at risk. The nature of that risk is difficult for most Americans to understand because most Americans have not spent much time in the crosshairs of someone who would like very much not just to kill them, but to torture them and their families in front of a video camera. The closest analogy is likely one hounded by a stalker with homicidal tendencies where the victims is aware of the stalker (and his intent to harm) but cannot seem to capture him. The stalker occupies a place in the victims mind, haunting the victim even when the former is not physically there. What is the injury to the stalking victim? The Defendants would apparently have the Court believe that this stalking victim has suffered no injury. The victim, in their view, would not have standing to sue until the stalker extends his knife towards the victims neck. That is intuitively wrong. It is also wrong as a matter of law; at lest forty-eight states criminalize stalking. Andrew Jay McClurg, Bringing Privacy Law out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C.L. REV. 989, 1065 (1995); see, e.g., GA. CODE ANN. 16-5-90 (A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.). Stalking was also likely actionable at common law as an assault (either as an attempted battery or under the
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doctrine of intentional scaring) or an intentional infliction of emotional distress, at least where the stalker evidenced an intent to cause physical harm. See, e.g., Matthew J. Gilligan, Note, Stalking the Stalker: Developing New Laws to Thwart Those who Terrorize Others, 27 GA. L. REV. 285, 288-94 (1992); Leslie Yalof Garfield, The Case for a Criminal Law Theory of Intentional Infliction of Emotional Distress, 5 CRIM. L. BRIEF 33, 38-41 (2009). By targeting the victim with the victims knowledge, the stalker has harmed the victim. As one commentator put it, [v]ictims of stalkers must live their lives in a state of siege, unsure of the dangers they face and unable to obtain adequate police protection. Gilligan, supra, at 286. (Of course, their inability to gain police protection or other legal protection generally has to do with a lack of evidence or other problems reaching the merits of a possible tort claim or criminal prosecution. Those limitations are not relevant here. The question here is whether such people have been harmed (i.e., injured) prior to any physical confrontation.) Palestinian terrorists target Jews living in Israel. They target them pervasively, day and night, often not farther than a stones throw from where their victims live and work. The victims know that the terrorists mean business and are capable of executing. Indeed, a great many people living in Israel know (or, sadly, knew) people who have been injured or killed by terrorists. The injury they suffer is this constant targeting by terrorists. The Plaintiffs live in the crosshairs, so to speak, of Palestinian terrorists. That is a pernicious injury. (For further elaboration on this point, see the end of the last part of this memorandum.) The federal government is providing money to these terrorists. Doing so is akin to giving the violent stalker discussed above a high powered rifle and night goggles. These gifts make the stalker far more effective and dangerous, thus significantly increasing the harm that his victim suffers by being stalked. Judge Poser correctly described the act of financing terrorists
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thusly: Giving money to [a terrorist organization], like giving a loaded gun to a child (which[, while] not a violent act), is an act dangerous to human life. Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 690 (7th Cir. 2008) (en banc) (Posner, J.) (internal quotation marks omitted); see also Wultz v. Islamic Republic of Iran, 755 F.Supp.2d 1, 66-67 (D.D.C. 2010). The Defendants, no doubt, do not mean the Plaintiffs any harm. But by funding the terrorists who are targeting them, contrary to federal law, they are exacerbating the injury that the Plaintiffs now suffer. 2. The SCRAP Case and the Injury in Fact Requirement
Much less has been deemed an injury for the purposes of standing. The Supreme Court has held that a group of students complaining of economic, recreational and aesthetic harm had standing as a result of those harms. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 675-76 (1973). The student-plaintiffs complained of a new government-authorized surcharge to be imposed by railroad carriers. The new surcharge was intended to help the railroad industry, which was then in peril, by providing additional revenue. Id. at 672-75. The Court explained that the students feared that the rate structure would discourage the use of recyclable materials, and promote the use of new raw materials that compete with scrap, thereby adversely affecting the environment by encouraging unwarranted mining, lumbering, and other extractive activities. The members of these environmental groups were allegedly forced to pay more for finished products, and their use of forests and streams was allegedly impaired because of unnecessary destruction of timber and extraction of raw materials, and the accumulation of otherwise recyclable solid and liquid waste materials. Id. at 676. The railroads response was rather intuitive: since this was a general rate increase, recyclable materials would not be made any less competitive relative to other commodities, and that in the past general rate increases had not discouraged the movement of scrap materials. Id.
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They added that the allegations in the pleadings as to standing were vague, unsubstantiated, and insufficient [to grant standing in light of prior precedent]. Id. at 683-84. They also pointed out that the Plaintiffs purported injury was based on a series of unsubstantiated assumptions about likely future activity, including that the railroads would become so flush with cash as a result of this new subsidy that they would prefer to purchase raw or non-recyclable materials despite that adequate scrap and recyclable materials were available at less cost. Id. at 688. The SCRAP Court held that the plaintiffs had standing on the basis of allegations that they used the forests, streams, mountains, and other resources in the Washington metropolitan area for camping, hiking, fishing, and sightseeing, and that this use was disturbed by the adverse environmental impact caused by the nonuse of recyclable goods brought about by a rate increase on those commodities. Id. at 685. The Court explained that [a]esthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process. Id. at 686 (internal quotation marks omitted). It later acknowledged that the injury alleged here is also very different from that at issue in [prior cases] because here the alleged injury to the environment is far less direct and perceptible. Here, the Court was asked to follow a far more attenuated line of causation to the eventual injury of which the appellees complaineda general rate increase would allegedly cause increased use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area. The railroads protest that the appellees could never prove that a general increase in rates would have this effect, and they contend that these allegations were a ploy to avoid the need to show some injury in fact.
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Id. at 688. The Court nevertheless held that, on the assumption that all of the plaintiffs allegations were true, the SCRAP plaintiffs were injured. Id. at 689-90. If an unsubstantiated, possible future reduction in natural resources that might impact a plaintiffs ability to enjoy camping, hiking, fishing, and sightseeing, id. at 676, is enough to satisfy the injury prong of standing doctrine, that prong is likewise satisfied by a constant personal injury forced upon the Plaintiffs as a result of the targeting they suffer by Palestinian terrorists. 3. Defining the Injury Alternatively
Additionally, the Plaintiffs have been injured via the violation of their legal right to be free of the threat of terrorists funded by their government, at least to the extent provided by the statutes identified in the Complaint. Denying the Plaintiffs that right constitutes an injury for the purposes of the standing inquiry. See Clinton v. City of New York, 524 U.S. 417, 430 (1998) (noting that the City of New York plaintiffs suffered an immediate, concrete injury the moment that the President used the Line Item Veto to cancel section 4722(c) and deprived them of the benefits of that law). In Havens Realty Corporation v. Coleman, 455 U.S. 363 (1982), the Court held that 804(d) of the Fair Housing Act, 42 U.S.C. 3604(d), created a statutory affirmative right to truthful information about housing. It did so indirectly. The statute only provided that it is unlawful for an individual or firm covered by the Act [t]o represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available[.] Coleman, 455 U.S. at 373 (quoting 42 U.S.C. 3604(d)) (emphasis removed). That language, which did nothing but prohibit particular action, was construed as creating a right to be without the results of that action, at least for the
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purposes of standing. Denying the Coleman plaintiffs access to truthful information about housing was thus deemed an injury that conferred standing. Id. at 373-74. This case is not materially different.6 The relevant statutes seek to prevent U.S. dollars from reaching Palestinian terrorists. They do so for the purpose of protecting the Plaintiffs and preserving their personal and pecuniary interests. Certainly, the statutes have exceptions. Many of them expressly grant the President the right to waive the limitations of the statutes under specified circumstances. Other statutes permit federal funding where certain facts are satisfied. The Plaintiffs thus do not have a right to see the Palestinian Authority get entirely defunded, for example. (Nor is that what they seek.) But the appropriations statutes nevertheless have content. They create express and clear restrictions on funding. Those funding restrictions are designed to prevent terrorists and their sympathizers from getting aid from the federal government. While they do so imperfectly, the funding restrictions are designed to protect the Plaintiffs. The Plaintiffs therefore have the right7 to the enforcement of the statutory protections created for them. The Presidents failure to take Care that the[se] Laws be faithfully executed, see U.S. CONST. art. II, 3, has injured and continues to injure the Plaintiffs by denying to them the rights created by those Laws. 4. The Lujan Test
Lujan indicated that the injury in fact prong of the standing doctrine actually has two distinct sub-prongs. Namely, a plaintiff must demonstrate an invasion of a legally The Plaintiffs acknowledge that the Fair Housing Act also provided an express cause of action, which might distinguish it (on those narrow grounds) from the present case. Coleman, 455 U.S. at 373. But, as noted above, the question of whether there is a private right of action is a question on the merits and therefore must be the subject of a Rule 12(b)(6) motion. The present motion is a Rule 12(b)(1) motion for lack of jurisdiction. Accordingly, the merits of the claims must be presumed for the purpose of this motion and any attempt to distinguish Coleman on those grounds is unavailing. 7 Again, the Plaintiffs use the word right here only for the purposes of the standing inquiry. That they have a private right of action must be assumed for the purposes of this motion. See id. -196
protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Lujan, 504 U.S. at 560 (internal citations and quotation marks omitted). The Defendants first argue that the Plaintiffs injuries are not concrete and particularized on the grounds that they are too speculative. (Docket No. 15-1 at 7). (This seems to conflate the concrete and particularized element with the conjectural or hypothetical element.) Later in their memorandum, in a single sentence, the Defendants state that Plaintiffs posited injury here is not particularized because the terrorism they fear is a generalized threat to people throughout Israel. (Docket No. 15-1 at 8). Plaintiffs address both points below. The Defendants do not appear to argue that the Plaintiffs claims are not actual or imminent. Nor can they. The injuries described above are happening now. The Executives extra-statutory funding policies are long-standing and, as the Defendants appear to concede in their memorandum and attached exhibit, are almost certain to continue indefinitely into the future. They are in no position to argue that future targeting by Palestinian terrorists (funded illegally by federal dollars) is unlikely, speculative, or part of the distant future. It is actual, imminent, and certain. 5. Generalized Grievances
This case does not present a generalized grievance. For prudentialand not constitutionalreasons, courts generally do not entertain generalized grievances because such grievances are better handled by the political Branches. Valley Forge, 454 U.S. at 474-75; Allen v. Wright, 468 U.S. 737, 751 (1984); Am. Canoe Assn, Inc. v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 544-45 (6th Cir. 2004) (collecting cases). That is to say that even where a court might be permitted to entertain an action pursuant to Article III, it should generally not do
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so if the grievance is of such broad public significance that political resolution is likely to achieve a more equitable outcome.8 For example, taxpayers were denied standing on prudential grounds to challenge the CIAs failure to make an accounting of expenditures as required by U.S. CONST. art. I, 9, cl. 7 ([A] regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.). United States v. Richardson, 418 U.S. 166 (1974); see also id. at 196 & n.18 (Powell, J. concurring) (discussing prudential standing and implying that Richardson relies upon it); Am. Canoe Assn, 389 F.3d at 545 (citing Richardson). Those prudential concerns are not relevant here because the Plaintiffs have suffered and continue to suffer a particularized injury. The Plaintiffs lives and livelihood are placed at risk by reason of the Defendants actions. The Plaintiffs and those similarly situated are thus uniquely harmed by the Defendants actions such that political resolution is less likely to provide them with fair or reasonable relief in light of excessive burden that Defendants illegal actions have placed on the Plaintiffs. The fact that there are many other Americans living in Israel who are similarly situated also does not convert this into a generalized grievance. It is almost too obvious to state that standing is not to be denied simply because many people suffer the same injury, because so denying standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. SCRAP, 412 U.S. at 687-88; see also Massachusetts v. E.P.A., 549 U.S.
Noting that the prudential avoidance of generalized grievances is rooted in a preference for the political resolution of political problems underscores that those prudential concerns are inapposite here. Congress already has acted hereit has prohibited the very activity that the Executive engages in and that the Plaintiffs complain of. What good would further political resolution accomplish? Another statute passed by Congress would similarly be ignored. If this Court does not grant the Plaintiffs the remedies they are entitled to, no one will. -21-
497, 522 (2007). To hold otherwise would be to state that the Executive is privileged to ignore appropriations restrictions as long as he does so on a very large scale. 6. Concrete Injury
The Plaintiffs injuries are hardly speculative. As explained in detail above, the Plaintiffs injuries are current, real, and virtually certain to continue. For their notion that the Plaintiffs injuries are not cognizable, the Defendants rely very heavily on Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013). But Clapper involved plaintiffs that had suffered absolutely no injuryother than self-imposed expensesat the time of filing.9 See id. at 1143. They complained of an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under 1881a at some point in the future[,] thus causing them injury. Id. at 1147. The Court noted the obvious: a reasonable likelihood of future harm does not render the injury certainly impending. Id. Clapper is inapposite. The Plaintiffs injuries are already realized and the Defendants have effectively conceded that those injuries will continue into the future. 7. Separation of Powers Concerns Not Relevant Here
The fact that this case compels the Plaintiffs to defend the work of Congress and resist an excesses of power by the Executive against Congress does raise legitimate prudential concerns (perhaps apart from the political question doctrine, which is not implicated here as explained earlier in this memorandum). I.N.S. v. Chadha, 462 U.S. 919 (1983) involved an action by a potential deportee moving against the House of Representatives and on behalf of the I.N.S., an executive agency, on the grounds that the House violated the Presentment Clause, U.S. CONST. art. I, 7, cls. 2-3. The Court had little trouble finding that Mr. Chadha had standing to Clapper involved an unsubstantiated and subjective fear of surveillance, see Clapper, 133 S. Ct. at 1153. This case involves actual targeting, with the knowledge of the Plaintiffs. -229
do so despite that a consequence of his prevailing will advance the interests of the Executive Branch in a separation of powers dispute with Congress[.] Chadha, 462 U.S. at 935-936. The fact that Mr. Chadha suffered an injury that was caused by the government and redressable by the courts was sufficient to overcome any hypothetical prudential concerns raised by his case. So too here. The fact that this dispute undoubtedly raises separation of powers issues does not deny the Plaintiffs their day in court. 8. Seeing the Forest for the Trees
The injury in fact requirement does not exist solely, without any other objective, to exclude certain cases from judicial resolution. It exists on a constitutional level because the courts are limited to hearing Cases and Controversies. U.S. CONST. art. III, 2. And it exists on a prudential level because some disputes are simply not fit for judicial resolution. While the Courts have developed a vocabulary and a detailed set of rules to help them decide when a plaintiff has adequately alleged an injury in fact (the Plaintiffs have addressed those rules above), it is important to keep first principles in mindto not lose the forest for the trees. There can be no question that the Plaintiffs have here presented (1) a Controversy that is (2) appropriate for judicial resolution. The Plaintiffs have sued agencies of the Executive Branch for violating duly-enacted statutes that are designed to protect them. As a result of the Executives failure to abide by those duly-enacted statutes, the Plaintiffs have experienced and continue to experience a significant harm. They have a significant financial incentive to alleviate that harm and are uniquely situated to do so. Indeed, there is no other class of plaintiffs that is better situated to do so. The Controversy here is whether the Defendants have, in fact, violated duly-enacted statutes to the detriment of the Plaintiffs. This is a question of tremendous
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importancenot just politically and not just for the purpose of upholding the rule of law, but to the very lives and livelihood of the Plaintiffs. This Court ought to answer it. The fact that this is a Controversy for the purposes of Article III and that none of the prudential bars to standing apply indicates conclusively that the Plaintiffs have suffered an injury in fact. B. The Plaintiffs Injuries are Fairly Traceable (in Part) to Funding Sent by the Defendants to Palestinian Governmental Entities, NGOs, and Individuals Once the Plaintiffs injuries are properly understood,10 as described in the prior section, there can be no legitimate debate over whether at least a portion of those injuries are traceable to the Defendants. The Plaintiffs are injured by the targeting inflicted upon them by Palestinian terrorists. That targeting is exacerbated by funding provided to those terrorists by the Defendants. Moreover, the Plaintiffs are injured by the Defendants by virtue of the Defendants statutory violations that, in turn, deny the Plaintiffs rights granted to them by the violated statutes. All of this is, plainly, fairly traceable to the Defendants. See Bennett v. Spear, 520 U.S. 154, 168-71 (1997) (noting that alleging traceability is a relatively modest burden that certainly does not approximate proximate causation); Boim, 549 F.3d at 690 (comparing the financial support of terrorists with the provision of a loaded gun to a child (surely injuries suffered as a result are fairly traceable to the one who put the gun in the childs hand)).
The Defendants suggest that the Plaintiffs only injury is an ill-defined fear of terrorism. (Docket No. 15-1 at 8). They claim that because terrorism existed prior to the Executives provision of funding and that such fear cannot be proven to be caused by federal funding, their claims are not fairly traceable to the defendants. Id. Those arguments make sense as far as they go, but only because the Defendants have misapprehended the harm that they are inflicting on the Plaintiffs. -24-
10
C.
The Plaintiffs Injuries can be Redressed (in Part) by an Order Compelling the Defendants to Comply with Federal Statute [A] plaintiff satisfies the redressability requirement when he shows that a
favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury. Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (emphasis in original). The Plaintiffs do not need to prove that a victory before this Court will result in the ameliorat[ion of] the risk of terrorism in the region. (Contra Docket No. 15-1 at 9). Nor do they need to show that they will not become victims of terrorism in the future. They do not even need to show that a victory here will result in the end of the targeting that Palestinian terrorists constantly subject them to. All they need to show (following discovery) is that federal government dollars that are provided to the Palestinian Authority and others, contrary to federal law, contribute to the targeting by Palestinian terrorists and that an order from this Court can have the effect of reducing the scope, intensity, or frequency of the targeting to some extent, thus mitigating the Plaintiffs current injury. The Defendants complain that the remedial benefit to the Plaintiffs in this action is merely speculative or uncertain. (Docket No. 15-1 at 9-10). Again, this is a function of their misunderstanding the nature of this action.11 The Plaintiffs seek the enforcement of statutory In their discussion on redressability, the Defendants note that the Executive Branch has determined that the provision of assistance supports the peace process and reduces the risk of terrorism. (Docket No. 15-1 at 9). This irrelevant assertion is extremely telling. It indicates that the Executive Branch does not appreciate the limitations of its role in the constitutional system. There is no question that the Executive power is at its highest when it deals with matters relating to foreign relations and national security. But its power is not absolute; its discretion is not without limitation. Congress, and not the Executive, controls discretionary appropriations. Congress has decided to impose restrictions upon the provision of aid to the Palestinian Authority and others. That the Executive has decided that the provision of aid to certain terrorists (to the exclusion of others) might aid the peace process does not mean that it therefore has authority to so provide that aid. The Executive must comply with the limitations that Congress has put in place. To the extent that the Defendants quarrel with the Plaintiffs allegations and conclusions, the -2511
restrictions on funding designed to benefit them. The enforcement of those restrictions would certainly yield a cessation of federal funding, or at least a reduction in federal funding, to Palestinian terrorists. And as noted in the last part of this memorandum, the Palestinian terrorists rely to a great extent on federal funding. As demonstrated there, there is a direct correlation between the provision of federal funds and acts of Palestinian terrorism. Reducing the flow of U.S. funds will certainly have a deleterious effect upon Palestinian terrorists, quickly reducing their ability to conduct acts of terrorism and thus their targeting of innocent civilians. To be clear, the Plaintiffs do not believeand do not allegethat stopping all federal funding the Palestinian Authority and others in the region will end terrorism or will make them forever safe. Consequently, they do not claim that reducing federal funding to those individuals and organizations, in a manner consistent with federal statute (i.e., subject to the exceptions created by Congress), will make them forever safe. But, as Congress apparently assumed, doing so will certainly make the Plaintiffs safer. And that is all they must allege. See Massachusetts, 549 U.S. at 526 (The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek. (emphasis added)); see also Hanson v. Veterans Admin., 800 F.2d 1381, 1386 (5th Cir. 1986) (finding that the plaintiff had standing to challenge systematic underappraisal of homes where a favorable judgment might result in a better appraisal and might give the plaintiff access to a home loan adequate to purchase the home that he wanted). The fact that for the remedial benefit to accrue to the Plaintiffs requires more than one stepfirst the Court must compel the Executive department to comply with the funding place to do that is in a motion for summary judgment, after the both sets of Parties have had the opportunity to introduce evidence. At this stage in the litigation, all that the Plaintiffs must do is make reasonable allegations consistent with the pleading standards and draw appropriate conclusions. They have done so adequately. -26-
restrictions, then the Executive department must actually comply and withhold funding, then the terrorists, lacking funds, must reduce their targeting of the Plaintiffsis of no moment. The Supreme Court has found standing where the remedial benefit was even more attenuated. Bryant v. Yellen, 447 U.S. 352, 366-368 & n. 17 (1980), involved a suit originally brought by the federal government seeking a declaratory judgment stating that water from a federal irrigation project could not be used to irrigate more that 160 acres of land held by a single owner. The government lost in the trial court and decided not to appeal. Local residents intervened and sought appeal. Their claim for standing relied upon a series of assumptions. They argued that if the 160 acre limit were upheld, owners of larger tracts of land would prefer to sell the additional land (voluntarily) rather than to allow it to remain unirrigated and either sit fallow or be put to other uses. The intervenors then reasoned that the excess land would be sold well below value, thus creating a boon for the local residents who could purchase that excess land at significant discounts. Their claimed remedial benefit in the enforcement of the federal statute was thus the difference between the fair market value and the hypothetical reduced sale price of land that was then owned by large area land owners and not currently for sale. That, held the court, was adequate to confer standing. If Bryant defines the edge of redressability, with all of its assumptions and independent actors that were completely outside of the control of the defendants or the courts, Plaintiffs claims of redressability in this case stand on firm ground. This Court unquestionably has the authority to compel the Executive to comply with federal statute. And doing so will unquestionably harm the finances of Palestinian terrorists. The Plaintiffs have shown (both in the Complaint and in the last part of this memorandum) and will demonstrate conclusively following discovery that Palestinian terrorism is tied to money such that reducing the terrorists access to money reducesalmost automaticallyterrorism.
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Indeed, a decision by the D.C. Circuit is apparently based on the same premise. National Black Police Assn v. Velde, 631 F.2d 784, 787 n. 16 (D.C. Cir. 1980), vacated on other grounds, 458 U.S. 591 (1982). A fair reading of Velde indicates that standing exists, albeit in another context, to challenge the provision of federal funding on the theory that denial of funding will positively affect future behavior. Specifically, the plaintiffs in Velde challenged the provision of federal funds to state and local law enforcement agencies that were allegedly discriminating on the basis of race and gender. Id. at 203-04 & n.1. The court apparently reasoned that, should the Plaintiffs be victorious, the denial of federal funds would have an affect on the future behavior of the recipients of those funds. While the funding recipients were not directly under the jurisdiction of the court, the courts assumed ability to affect their behavior rendered the injury redressable. So too herethe Court can impact the behavior of the Palestinian terrorists by finding the Plaintiffs victorious in this litigation. D. The Constitution Compels the Conclusion that the Plaintiffs Have Standing Even if the authority cited in the prior sections did not grant the Plaintiffs standing, the Constitution itself does. It is important to remember that standing is a doctrine inferred from the Constitution. To the extent that existing standing doctrine is inconsistent with the plain text of the Constitution, standing doctrine must yield to that plain text. The Presentment Clause, U.S. CONST. art. I, 7, cls. 2-3, provides that after a bill has passed both Houses of Congress, but before it become[s] a Law, it must be presented to the President. If he approves it, he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. Art. I, 7, cl. 2. His return of a bill, which is usually
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described as a veto, is subject to being overridden by a two-thirds vote in each House. Clinton v. City of New York, 524 U.S. 417, 438-39 (1998) (internal footnotes omitted). The City of New York Court went on to explain how the Executives Presentment Power interacts with Congress legislative power: There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes. Both Article I and Article II assign responsibilities to the President that directly relate to the lawmaking process, but neither addresses the issue presented by these cases. The Presidentmay [for example] initiate and influence legislative proposals. Id. at 438. That power to engage in the political process does not imply a power to actually affect the passage or cancellation of law, outside of the Presidents power under the Presentment Clause. Indeed, the Constitution implicitly declines to give the President that power. Id. at 439. All the Presentment Clause allows the President to do is either approve all the parts of a Bill, or reject it in toto. Id. at 440 (quoting President Washington). Accordingly, after a President signs a bill into law, he and all future Presidents have no power to abrogate or amend that law in whole or in part. This case involves a series of statutes duly enacted by Congress that must be enforced by the Executive Branch. The Executive Branch is placed in charge of the distribution of the Economic Support Fund described in the Complaint (Docket No. 1 at 98-101 and elsewhere throughout the Complaint) and other foreign aid described in the Complaint (see, e.g., id. at 216-19), and is thus responsible for enforcing the limitations placed on that the distribution of that aid.12 If the Executive, acting through his delegatees, assumes the power to disregard those statutory directives, he is in effect amending the statute post-enactment, unless someone has the authority to stop the Executive. That is, if the Executive can assume, without Additionally, it is the Presidents obligation to take Care that the Laws be faithfully executed. U.S. CONST. art II, 3. He may, of course, delegate that power to others under this control, such as the Defendants here. -2912
confrontation or protest, the ability to amend appropriations statutes, then the Presentment Clause and City of New York are null, at least with regard to appropriations statutes. Accordingly, the actions by the Defendants here serve as post-enactment amendments of the various statutes identified in the Complaint, in violation of the Presentment Clause, as understood by City of New York, unless someone has the ability to enforce the statutory directives. If no one has that power, the Executives interpretation and application of the aforementioned provisions has the force of law. One might assume that the best someone to enforce the provisions of the statute would be Congress itself. But the Supreme Court severely limited congressional standing in a predecessor case to City of New York. Raines v. Byrd, 521 U.S. 811 (1997), involved a challenge to the Line Item Veto Act (which was later held unconstitutional in City of New York, 524 U.S. at 421) by six Members of Congress, four of whom served as Senators and two of whom served as Congressmen in the 104th Congress [which had earlier passed the Line Item Veto Act]. Raines, 521 U.S. at 814. All of the congressional plaintiffs in Raines voted against the Act and they sued following its passage to have it declared unconstitutional. Id. The Court held that the congressional plaintiffs lacked standing because they have alleged no injury to themselves as individuals, the institutional injury they allege is wholly abstract and widely dispersed, and their attempt to litigate this dispute at this time and in this form is contrary to historical experience. Id. at 829 (internal parentheticals omitted). On this jurisprudential rule, it is difficult to imagine how congressional standing could be useful to anyone in the present case, at least with regard to statutes passed by a prior Congress (i.e., before 2013).13 It is theoretically possiblealthough far from certainthat even after Raines, a majority of the Members of Congress that are sufficient independently either to pass or defeat a piece of legislation (that is, in most cases, a bare majority in the House and a majority of 60 in the Senate) might have congressional standing over a specific piece of legislation. But that is true -3013
If congressional standing is not available, then the only other logical someone to defend the works of Congressas required by the Presentment Clauseare those who are harmed by Executive excesses of power, even if the harms alleged would not be significant to confer standing in other contexts. Thus, even if the Plaintiffs injuries are held to be inadequate under generally applicable standing rules, they must have standing here to be able to prevent the Executive from unconstitutionally re-writing the laws to their detriment. VI. PALESTINIAN TERRORISM IS A DAILY THREAT THAT RELIES ON A CONSTANT SUPPLY OF MONEY When a party provides anything of value to an organization engaged in terrorism, common sense dictates that the party has proximately caused the damage inflicted by that organization's terrorist attacks. Terrorists seldom kill for money, but they always need money to kill.14 Wultz, 755 F.Supp.2d at 66-67 (Lamberth, C.J.). It is well-known that international terrorist organizations require liquid assets in order to facilitate their operations. See, e.g., International Centre for Political Violence and Terrorism Research, Terrorist Financing 1 (2007), http://www.pvtr.org/pdf/Financial%20Response/Terrorist-Financing.pdf (While the monies required for a terrorist act may be small (e.g. USD 5,000) the process of advocacy, training and sustaining sleeper operations (over years) is an expensive one that requires huge amounts of money.) It is likewise well-known that disrupting terrorists access to liquid assets frustrates their operations. Indeed, a major feature of the congressional response to (potentially) only for legislation passed by the Congress then in power. Legislation passed by a prior Congress would have to be challenged or defended by a majority of the Members of the prior Congress. Here we have a Catch-22. The prior Congress is no longer in office. Its Members, appearing before the courts as a member of a prior Congress, have no more standing to attack or defend existing laws than does any other citizen. Accordingly, they would likely be denied standing on the grounds that they are presenting a generalized grievance. 14 Quoting Terry Davis, Sec'y Gen., Council of Eur., Speech at the Joint Plenary of MONEYVAL and the FATF (Feb. 21, 2007) (transcript available at http://www.coe.int/t/dc/press/news/20070221_disc_sg_ EN.asp). -31-
the terrorist attacks of September 11, 2001, was to address terrorist financing. The USA PATRIOT Act,15 enacted in the wake of September 11, focuses heavily on what the banking community refers to as AML/CFT (anti-money laundering and combating the financing of terrorism). See generally United States Department of the Treasury, Financial Crimes Enforcement Network, USA PATRIOT Act, http://www.fincen.gov/statutes_regs/patriot/ (last visited June 10, 2013); Terrorist Financing, supra, at 1 (The US passed the USA PATRIOT Act to ensure that both combating the financing of terrorism (CFT) and anti-money laundering (AML) was given adequate focus by US financial institutions.). It is therefore not surprising that there is a correlation between the provision of funds to a terrorist organization and that organizations attack and success rates. At least one article has demonstrated such a correlation between the provision of foreign aid to the Palestinian Authority and acts of terrorism by Palestinian terrorists.16 The chart embedded below offers an excellent window into the articles findings:
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 312, Pub. L. No. 10756, 115 Stat. 272 (2001). 16 The Plaintiffs recognize that there is a step in the analysis not explicitly accounted for in the text. The Palestinian Authority is not a recognized terrorist organization. This argument relies, therefore, on the many allegations that Plaintiffs have made (and will prove at trial) that the Palestinian Authority is directly linked to terrorist organizations, such that the provision of aid to the Palestinian Authority is not materially different from the provision of aid directly to recognized terrorist organizations themselves. (See, e.g., Docket No. 1 at 80-97). -32-
15
Steven Stotsky, Does Foreign Aid Fuel Palestinian Violence?, 15 MIDDLE EAST QUARTERLY 23, fig.2 (2008), available at http://www.meforum.org/1926/does-foreign-aid-fuel-palestinianviolence. The chart illustrates the relationship between budgetary aid provided to the Palestinian Authority in one year and the number of terrorism-related homicides in the following year. Another chart explores the link between budgetary aid to the Palestinian Authority and the raw number of attempted terrorist attacks in that year, again showing a very tight correlation:
Id. at fig.3. The article goes on to explain why there is such a tight correlation between the provision of foreign aid to the Palestinian Authority and Palestinian terrorism:
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Prior to the outbreak of the second intifada, donors directed nearly all foreign aid to the Palestinians to economic and infrastructure development programs, so that by 1999 the Palestinian Authority could raise enough revenue through taxation and private borrowing to pay its bills. This era of relative self-sufficiency would not last long, however. The Palestinian terror campaign launched against Israel in 2000 disrupted the three main PA revenue sources clearance taxes collected by Israel, taxes on wages earned by Palestinians working in Israel, and domestic tax revenue. The international community responded to the ensuing Palestinian financial crisis by replacing much of the lost revenue. [T]he decision to fund the [PA] government budget made the Palestinian Authority less dependent on revenue derived from commerce, detaching the PAs solvency from the health of the economy. Thus, while the intifada sent the Palestinian economy into free fall, the PAs coffers swelled. The conditions were thus established that ensured the separation of Palestinian governance from responsibility for the economic health of the Palestinian people. Id. In other words, infusions of foreign aid into the Palestinian Authoritys fisc enabled robust governmental operations even without the Palestinian Authority tending to essential obligations that it has to its citizens. This enabled the Palestinian Authority to route its resources to projects that it found most important, again, often without regard to the needs of Palestinian civilians. In the case of the Palestinian Authority, those favored projects unfortunately tended to involve terrorism. The article corroborates this theory by demonstrating that there is, in fact, a (tight) direct correlation between the ratio of the Palestinian Authoritys total governmental budget that derives from international support, on the one hand, and terrorism-related homicides (in the following year) on the other:
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Id. at fig.5. The article further notes that there are substantial collaborative relationships between the various Palestinian terrorist organizations and the Palestinian Authority, notwithstanding considerable differences between them. It is precisely those collaborative relationships that enable the Palestinian Authoritys facilitation of terrorism to be so effective. For example, the author notes ongoing concern that donor funds given to Palestinian Authority leader Mahmoud Abbas are subsidizing Hamas members on government ministry payrolls. These findings are consistent with those of the Israeli government. The Israeli Defense Forces determined in 2002, for example, that 14% of foreign aid provided to the Palestinian Authority is channeled to other objectives than those originally intended. It estimated that Fatah elements are allocated $5-$10 million per month from the PA for its expenses in the confrontation against Israel. ISRAELI MINISTRY
OF
FOREIGN AFFAIRS, INTERNATIONAL
FINANCIAL AID TO THE PALESTINIAN AUTHORITY REDIRECTED TO TERRORIST ELEMENTS June 5, 2002, available at http://mfa.gov.il/MFA/ForeignPolicy/Terrorism/Palestinian
/Pages/International %20Financial%20Aid%20to%20the%20Palestinian%20Aut.aspx.
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The implications of these findings and others like it are tremendously significant to anyone living in Israel. From the years 2000-2008, roughly half of all Israeli fatalities (including non-terrorism fatalities) were the result of suicide attacks. Stotsky, supra. In the decade ending 2009, there were 146 suicide attacks in Israel (i.e., more than one per month, on average), a country that is roughly equivalent in size and population to New Jersey. Ido Rosenzweig & Yuval Shany, A Decade of Palestinian Terrorism Report by the Israeli Security Agency, 14 TERRORISM & DEMOCRACY (2010), http://en.idi.org.il/analysis/terrorism-anddemocracy/issue-no-14/a-decade-of-palestinian-terrorism-%E2%80%93-report-by-the-israelisecurity-agency/; Herb Keinon, PM to Christie: Israel, New Jersey are Similar, JERUSALEM POST, Apr. 2, 2012. Moreover, since January 1, 2012, approximately 1,800 rockets and 650 mortar shells fired from Gaza at Israeli civilians have landed in territory controlled by Israel. Jewish Virtual Library, Terrorism Against Israel: Rocket & Mortar Attacks (February 2009 Present), http://www.jewishvirtuallibrary.org/jsource/Terrorism/rockets2011.html (last visited June 10, 2013). It is fair to assume that nearly every Israeli civilian knows someone who has been directly affected by terrorism. From January 1985 through May 2013, there were 2,061 fatalities from homeland terrorist attacks in Israel. That compares with 3,487 fatalities in the United States for that period (the vast majority of those occurring on a single day, September 11, 2001). During the same period, there were 11,438 injuries from terrorism in Israel and 11,318 in the United States. WM. ROBERT JOHNSTON, DEATH
RATES FROM TERRORISM,
UNITED STATES
AND ISRAEL,
1985-2013
(May 5, 2013), http://www.johnstonsarchive.net/terrorism/terror-rate.html. Those numbers look fairly similar. But looks can be deceiving. The U.S. population is roughly forty-one times larger than the Israeli population. United States Census Bureau, Country Rank,
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http://www.census.gov/population/ international/data/countryrank/rank.php (last visited June 10, 2013) (US population: 316,668,567; Israeli population: 7,707,042). During the years in question, the terrorism-related annual fatality rate in the U.S. was approximately 0.44 per million. In Israel, it was approximately 11.9 per million. The annual casualty rate in the U.S. was approximately 1.89 per million. In Israel, it was approximately 74.8 per million. Israels annual casualty rate, if applied to a county the size of the United States, would yield almost 24,000 terrorism-related casualties each and every year. (That is more than double the number of terrorism-related casualties in the United States in 2001.) JOHNSTON, supra. Again, it is fair to assume that nearly every Israeli civilian knows someone who has been directly affected by terrorism. It is from that backdrop that one must view this case. Plaintiffs concerns are anything but speculative. Their daily existence is fundamentally altered as a result of the astounding terror threat that faces each Israeli resident. The Plaintiffs lives are detrimentally affected now; their injury is real, not contingent. Indeed, fear of terrorism and the fear caused by terrorism are often pernicious. Afton L. Hassett & Leonard H. Sigal, Unforeseen Consequences of Terrorism: Medically Unexplained Symptoms in a Time of Fear, 162 ARCHIVES INTERN MED. 1809 (2002), available at http://archinte.jamanetwork.com/article.aspx?articleid=212551;
HUMAN RIGHTS WATCH, ROCKETS FROM GAZA: HARM TO CIVILIANS FROM PALESTINIAN ARMED GROUPS ROCKET ATTACKS 17 (2009) (The psychological toll of years of rocket attacks has affected a far greater number of Israeli civilians than those who suffered physical wounds. The trauma can be severely debilitating) (The problem for most people was not being hit, but the fear, uncertainty and stress. You had to plan your daily life by considering how long it would
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take you to get to a bomb shelter from every point on your route. (quoting Yonatan Yagodovsky of Magen David Adom)). The Plaintiffs alleged at length in their Complaint that the federal government is a significant contributor of aid to the Palestinian Authority, and thus to the terrorism facilitated by the Palestinian Authority. The Defendants essentially admitted as much in their memorandum (Docket No. 15-1) and the exhibit attached thereto. The Plaintiffs also demonstrated that numerous statutes restrict or prohibit the federal government from transmitting that aid and that the Executive Branch has not been mindful of those restrictions. The Defendants have not denied those allegations. At issue in this case is whether the Defendants have the right to continue to fund the Palestinian Authority and others without regard to the restrictions duly placed upon the Executive Branch by Congress, where doing so inflicts significant continued harm and suffering upon the Plaintiffs. CONCLUSION For the foregoing reasons, the Defendants motion to dismiss should be denied. Dated: June 14, 2013 Brooklyn, New York Respectfully submitted, THE BERKMAN LAW OFFICE, LLC Counsel for the Plaintiffs by: /s/ Robert J. Tolchin Robert J. Tolchin (D.C. Bar # NY0088) 111 Livingston Street, Suite 1928 Brooklyn, New York 11201 (718) 855-3627 rjt.berkman@gmail.com
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PLAINTIFFS MEMORANDUM IN OPPOSITION TO THE DEFENDANTS MOTION TO DISMISS

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GA. CODE ANN. 16-5-90 ..........................................................................................................14

Rules FED.R.CIV.P. 12(b)(1).................................................................................................2, 10, 12, 19 FED.R.CIV.P. 12(b)(6)...........................................................................................................10, 19

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FOREIGN AFFAIRS, INTERNATIONAL

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