The Palestinians and Amendments to the Anti-Terrorism Act: U.S. Aid and Personal Jurisdiction
Released: 2020-03-18T00:00:00

Introduction and Issues for Congress

This report provides background information and analysis on two amendments to the Anti-Terrorism Act (ATA, 18 U.S.C. Â§Â§ 2331 et seq. ): the Anti-Terrorism Clarification Act of 2018 (ATCA, P.L. 115-253 ), which became law in October 2018; and the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA, Â§ 903 of P.L. 116-94 ), which became law in December 2019. The report focuses on the impact of this legislation on the following key issues:

U.S. aid to the Palestinians.

Whether federal courts have personal jurisdiction over the Palestinian Authority (PA) and Palestine Liberation Organization (PLO) for terrorism-related offenses.

Amendments to Anti-Terrorism Act

The ATA generally prohibits acts of international terrorism, including the material support of terrorist acts or organizations. It also provides a civil cause of action through which Americans injured by such acts can sue responsible persons or entities for treble damages. Prior to ATCA, the ATA did not dictate personal jurisdiction.

Anti-Terrorism Clarification Act of 2018

Congress passed ATCA in the wake of a U.S. federal lawsuit (known in various incarnations as Waldman v. PLO and Sokolow v. PLO ) that an appeals court dismissed in 2016. The plaintiffs were eleven American families who had members killed or wounded in various attacks against Israeli targets during the second Palestinian intifada (or uprising, which took place between 2000 and 2005). The trial court found that the PA and PLO were liable for the attacks because they provid ed material support to the perpetrators. 6 The jury awarded damages of $218.5 million, an amount trebled automatically under the ATA , bringing the total award to $655.5 million. On appeal, however, the U.S. Court of Appeals for the Second Circuit (Second Circuit) dismissed the suit for lack of personal jurisdiction. Discussed in more detail below, personal jurisdiction is the principle that defendants in U.S. courts must have "minimum contacts" to the forum for the court to adjudicate the dispute. In Waldman/ Sokolow , the Second Circuit conclude d that the terrorist attacks, "as heinous as they were, were not sufficiently connected to the United States" to create personal jurisdiction in U.S. federal courts.

ATCA amended ATA (at 18 U.S.C. Â§ 2334) by, among other things, stating that a defendant consented to personal jurisdiction in U.S. federal court for lawsuits related to international terrorism if the defendant accepted U.S. foreign aid from any of the following three accounts after the law had been in effect for 120 days :

Economic Support Fund (ESF); International Narcotics Control and Law Enforcement (INCLE); or Nonproliferation, Anti-terrorism, Demining, and Related Programs (NADR).

Although ATCA's terms do not specifically cite the PA/PLO, ATCA's reference to the three accounts from which U.S. bilateral aid to the Palestinians has traditionally flowed (see " U.S. Aid to Palestinians " below) suggests that ATCA was responding to the appellate ruling in the Waldman/Sokolow cases on personal jurisdiction.

In December 2018, then-PA Prime Minister Rami Hamdallah wrote to Secretary of State Michael Pompeo that the PA would not accept aid that subjected it to U.S. federal court jurisdiction. Consequently, U.S. bilateral aid to the Palestinians ended on January 31, 2019.

Promoting Security and Justice for Victims of Terrorism Act of 2019

In December 2019, Congress passed PSJVTA as Â§Â 903 of the Further Consolidated Appropriations Act, 2020, P.L. 116-94 . PSJVTA changes the legal framework by replacing certain provisions in ATCA that triggered consent to personal jurisdiction for terrorism-related offenses. These changes include eliminating ATCA's provision triggering consent when a defendant accepts U.S. foreign aid. In place of that provision, PSJVTA provides that the following three actions trigger consent to personal jurisdiction:

Making payments to individuals imprisoned for terrorist acts against Americans or to families of individuals who died while committing terrorist acts against Americans; Maintaining or establishing any PA/PLO office, headquarters, premises, or other facilities or establishments in the United States; or Conducting any activity (other than some specified exceptions) on behalf of the PA or PLO while physically present in the United States.

Unlike ATCA, which did not mention specific Palestinian entities by name, PSJVTA expressly applies its new jurisdictional triggers exclusively to the PA and PLO.

The prospect of ending PA/PLO payments that could activate the first trigger may encounter strong opposition among Palestinians. Similar payments to Palestinians in connection with alleged terrorist acts continued even after they led to a legal suspension of significant ESF funding for the PA under the Taylor Force Act (Title X of P.L. 115-141 ) when it became effective in March 2018. By partly reversing ATCA with respect to the acceptance of aid, PSJVTA could facilitate the resumption of various types of aid, but would still provide for conditions that are reasonably likely to trigger PA/PLO consent to personal jurisdiction, subject to the question of constitutionality.

PSJVTA also directs the State Department to create a claims process for U.S. nationals harmed by terrorist attacks that they attribute to the PA or PLO. Under PSJVTA, the Secretary of State, in consultation with the Attorney General, has 30 days from the date of enactment (December 20, 2019) to "develop and initiate a comprehensive process for the Department of State to facilitate the resolution and settlement of covered claims." Covered claims are defined to mean pending and successfully completed civil actions against the PA or PLO under the ATA, as well as those lawsuits previously dismissed for lack of personal jurisdiction. The Secretary of State has 120 days after enactment to begin meetings with claimants to discuss the state of lawsuits and settlement efforts. The Secretary of State has 180 days after enactment to begin negotiations with the PA and PLO to settle covered claims. There is no provision withdrawing pending cases from court, however, and jurisdictional provisions applicable before PSJVTA continue to apply to such cases if consent to jurisdiction existed under them. The settlement mechanism will apparently operate in tandem with court proceedings.

President Trump stated in a signing statement that the claims process provision in PSJVTA could interfere with the exercise of his "constitutional authorities to articulate the position of the United States in international negotiations or fora." He further stated that his Administration would "treat each of these provisions consistent with the President's constitutional authorities with respect to foreign relations, including the President's role as the sole representative of the Nation in foreign affairs." To date, CRS does not have information about whether the executive branch has taken steps to create a claims process under PSJVTA.

Implications for U.S. Policy and Law

The end of U.S. security assistance and existing economic assistance projects for Palestinians in January 2019, in light of ATCA, has had implications for U.S. policy. The enactment of PSJVTA in December 2019 to partly reverse ATCA and otherwise amend ATA also has policy and legal implications related to U.S. aid and personal jurisdiction over Palestinian entities (see timeline at Figure 1 ).

U.S. Aid to Palestinians

After ATCA

While the Administration made drastic reductions to aid for the Palestinians during 2018 , the ongoing use of prior-year funding meant that the changes had not affected aid for the PA security forces or existing economic aid projects at the time ATCA took effect. Some sources suggested that the Administration and Congress belatedly realized ATCA's possible impact, and subsequently began considering how to reduce or reverse some of its consequences.

The end of bilateral aid has halted U.S.-funded programs that began in 1975 with a focus on economic and humanitarian needs, and expanded starting in 1994 (in the context of the Israeli-Palestinian peace process) to assist the newly formed PA with security and Palestinian self-governance. The following are changes in status to key aid streams.

Economic assistance. Although the Trump Administration decided in September 2018 to reprogram all of the FY2017 ESF aid from the West Bank and Gaza to other recipients, some aid projects continued in the West Bank and Gaza using prior-year funding. These projects shut down in January 2019. ESF appropriations for the West Bank and Gaza from FY1975 to FY2016 have totaled some $5.26 billion. Security assistance. After the Administration reprogrammed or discontinued various funding streams for the Palestinians during 2018, the main U.S. aid category remaining was the INCLE account. This security assistance account supported nonlethal train-and-equip programs for PA West Bank security forces (PASF). INCLE assistance, along with $1 million per year in NADR assistance, also ended in January 2019 due to ATCA. INCLE appropriations for the PASF from FY2008 to FY2019 have totaled some $919.6 million. The office of the U.S. Security Coordinator for Israel and the Palestinian Authority (USSC, see textbox below) continues to conduct a "security cooperation-only mission" that does not involve funding support, but still facilitates Israel-PA security coordination.

After ATCA's enactment, the Administration reportedly favored amending ATCA to allow security assistance to continue because of the priority U.S. officials place on Israel-PA security cooperation, which many in Israel also highly value. In an October 29, 2019, hearing before the House Foreign Affairs Subcommittee on the Middle East, North Africa, and International Terrorism, Assistant Secretary of State for Near Eastern Affairs David Schenker said that the Administration was willing to "engage with Congress on every level" to consider ways to revisit or "fix" ATCA to allow the resumption of certain types of aid to Palestinians.

Israeli officials have strongly supported U.S. security assistance as a way to improve PA security capabilities and encourage the PA to coordinate more closely with Israeli security forces. Before U.S. bilateral aid to the Palestinians had ceased, other sources suggested that Israeli officials had reached out to the Administration and Members of Congress in hopes that some arrangement would be able to ensure that U.S. security assistance could continue while also maintaining recourse in U.S. courts against the PA/PLO for past alleged acts of terror .

It is unclear to what extent the stop to U.S. security assistance for the PA has affected Israel-PA security cooperation and could affect it in the future. One analyst wrote in January 2019 that even without U.S. aid, the PA would have a strong interest in coordinating security with its Israeli counterparts. Media reports have routinely suggested that Israel and the PA share a core objective in countering Hamas in the West Bank. However, the same analyst wrote that over the long term, "termination of [U.S.-funded programs] in areas like training, logistics, human resources, and equipment provision will undoubtedly have a negative impact on the PASF's overall capabilities and professionalism." Another analyst said that without U.S. security aid, the PA will have fewer incentives to continue security cooperation with Israel. A spokesman for PA President Mahmoud Abbas responded to the halt in aid by saying it would "have a negative impact on all, create a negative atmosphere and increase instability."

After PSJVTA

Even though PSJVTA removed acceptance of U.S. bilateral aid as a trigger of PA/PLO consent to personal jurisdiction, the actual resumption of U.S. aid may depend on political decisions by Congress and the Administration, as well as cooperation from the PA. The conference report for the Further Consolidated Appropriations Act, 2020 ( P.L. 116-94 ), enacted in December 2019, provided the following earmarks:

$75 million in INCLE for security assistance in the West Bank for the PA; $75 million in ESF for the "humanitarian and development needs of the Palestinian people in the West Bank and Gaza."

The conference report said that these funds "shall be made available if the Anti-Terrorism Clarification Act of 2018 is amended to allow for their obligation." The inclusion of PSJVTA in P.L. 116-94 may satisfy that condition.

It is unclear whether the executive branch will implement the aid provisions. The Trump Administration had previously suggested that restarting U.S. aid for Palestinians could depend on a resumption of PA/PLO diplomatic contacts with the Administration. Such a resumption of diplomacy may be unlikely in the current U.S.-Israel-Palestinian political climate, particularly following the January 2020 release of a U.S. peace plan that the PA/PLO strongly opposes. Additionally, under its terms, the Taylor Force Act would preclude any ESF deemed to directly benefit the PA. The Administration's omission of any bilateral assistanceâsecurity or economicâfor the West Bank and Gaza in its FY2021 budget request, along with its proposal in the request for a $200 million Diplomatic Progress Fund ($25 million in security assistance and $175 million in economic) to support future diplomatic efforts, may potentially convey some intent by the Administration to condition aid to Palestinians on PA/PLO political engagement with the U.S. peace plan.

Additionally, it is unclear whether the PA would cooperate with a U.S. effort to provide aid to Palestinians given U.S.-Palestinian political tensions and the way that PSJVTA amended ATA. Even if accepting aid would no longer potentially trigger PA/PLO liability in U.S. courts, it is possible thatâgiven PA concerns about national dignityâthe PA might not accept aid if doing so could be perceived domestically as giving in to U.S. political demands on the peace plan, or as tacitly agreeing to the new triggers of potential PA/PLO liability in PSJVTA (see " Promoting Security and Justice for Victims of Terrorism Act of 2019 " above).

If the executive branch and the PA agree on the resumption of aid, it is unclear how the economic portion of aid would specifically address humanitarian and development needs in the West Bank and Gaza. In the October 29, 2019, committee hearing mentioned above, U.S. Agency for International Development (USAID) Assistant Administrator for Middle East Affairs Michael Harvey was asked what type of aid should be given priority. Harvey said that, without prejudging, if the political decision were made to resume ESF assistance, water and wastewater projects have historically been key objectives, and thus could be places to start.

Personal Jurisdiction

One of the aims of the amendments to ATA described above is to enhance personal jurisdiction over defendants accused of carrying out terrorist attacks that injure U.S. nationals. To try any civil case, U.S. courts must have both subject matter jurisdiction and personal jurisdiction over the defendant. ATA provides for subject matter jurisdiction by providing a cause of action for U.S. nationals injured by applicable acts of terrorism. However, for a court to exercise personal jurisdiction over the defendant, the Due Process Clause of the Fifth or Fourteenth Amendment must be satisfied. Due process requires that the defendant have sufficient "minimum contacts" in the forum adjudicating the lawsuit such that the maintenance of the suit there does not offend "traditional notions of fair play and substantial justice."

Foreign entities, including foreign political but non-sovereign entities such as the PA and PLO, are entitled to due process and can challenge a court's jurisdiction based on a lack of personal jurisdiction. Under the doctrine of general personal jurisdiction, a foreign entity can be sued for virtually any matter without regard to the nature of its contacts with the forum state. The Supreme Court has held that, for courts to exercise general personal jurisdiction, a defendant entity must have enough operations in that state to be essentially "at home" there. When general jurisdiction is not available, maintenance of a lawsuit against a foreign defendant requires specific personal jurisdiction. Specific jurisdiction exists where there is a significant relationship among the defendant, the forum, and the subject matter of the litigation. Based on this test, ATA lawsuits against the PA and PLO have failed for want of specific personal jurisdiction.

Personal jurisdiction can be waived and litigants can consent to personal jurisdiction that might otherwise be lacking. But the extent to which Congress can provide by statute that a foreign entity is deemed to consent to personal jurisdiction by making payments or through the maintenance of facilities in the United States appears to be untested. Plaintiffs' efforts to obtain personal jurisdiction over the PA and PLO based on the criteria provided in ATCA, including acceptance of foreign aid and the maintenance of facilities in the United States, failed because plaintiffs could not prove that any of the criteria had been met, obviating the need for the courts to address ATCA's constitutionality.

The new deemed consent provisions in PSJVTA may encounter challenges in court on the basis that they could constitute an unconstitutional condition on permission to operate in the United States. A condition attached to government benefits is unconstitutional if it forces the recipient to relinquish a constitutional right that is not reasonably related to the purpose of the benefit. If this concept applies to personal jurisdiction, a reviewing court may need to determine whether submission to such jurisdiction is either voluntary or has a rational relationship with PA/PLO payments or other PA/PLO activities, including maintenance of facilities in the United States. On the other hand, because ATA is a federal foreign affairs-related statute, Congress may have greater leeway to establish jurisdiction based on deemed consent.

Looking Ahead: Questions

Responses to the following questions could have important implications for U.S. policy and law.

Given that acceptance of aid no longer triggers consent to personal jurisdiction, will the PA cooperate with the implementation of U.S. security and economic aid that Congress appropriated in December 2019 for FY2020 for the West Bank and Gaza? Will the Trump Administration provide the appropriated FY2020 security and economic aid to Palestinians? If so, when? What are the effects of the cutoffâsince January 2019âof U.S. aid to the West Bank and Gaza? Depending on the timing and other circumstances surrounding a possible resumption of aid, what effects could an aid resumption have? Will the PA/PLO stop payments to prisoners accused of terrorist acts against Americans (or payments to the prisoners' families) in order to avoid being deemed to consent to personal jurisdiction under PSJVTA? If PSJVTA's provisions on PA/PLO consent to personal jurisdiction are challenged in court, will they be upheld as constitutional? Will the Trump Administration comply with the requirement in PSJVTA for the State Department to establish a process for resolving and settling claims against the PA/PLO under ATA? If so, what would the process look like and what outcomes would it produce?