Lawsuit over US support for Israel fails at Ninth Circuit

(CN) — The Ninth Circuit Court of Appeals on Monday upheld a federal judge’s dismissal of a lawsuit intended to force President Joe Biden to withdraw military, financial and diplomatic support from Israel over the war in Gaza.

“Plaintiffs’ lawsuit would place our country’s strategic approach to a major world conflict under the auspices of a single federal district court,” the three-judge panel in wrote in a terse 15-page per curium opinion. “The courts do not chart the national security and geopolitical objectives of the United States.”

The Defense for Children International-Palestine, a nongovernmental organization, and a handful of Palestinian-Americans and residents of Gaza filed the lawsuit in November 2023 — about five weeks after Hamas-led militants groups launched a surprise attack on Israel, killing more than 1,000 people and taking more than 250 hostages. Israel responded with an intense bombardment of the Gaza strip, followed by a large-scale ground invasion of the territory. So far, according to the Gaza Health Ministry, more than 38,000 Palestinians have been killed in war, which has also sparked a widespread protests around the world.

In the United States, those protests have taken aim in part at the Biden administration’s support for Israel, which comes in the form of financial aid and arms sales. Many protesters have called the war in Gaza a “genocide,” as indeed a United Nations expert did in March, though use of the term is still disputed.

“The United States has been obligated, from the time it learned of the specter of a genocide of the Palestinian people, to exercise its clear and considerable influence on Israel to prevent this grave crime from unfolding,” the plaintiffs said in their lawsuit. “The president and the secretaries of state and defense have not only been failing to uphold the country’s obligation to prevent a genocide, but have enabled the conditions for its development by providing unconditional military and diplomatic support — disavowing any constraint or ‘red lines’ on Israel’s military campaign even in the face of numerous Israeli governmental statements reflecting a genocidal intent.”

The suit asked a judge to order the Biden administration “to take all measures within their power to exert influence over Israel to lift the siege on Gaza,” and to “enjoin defendants from providing, facilitating, or coordinating military assistance or financing to Israel.”

U.S. District Judge Jeffrey White dismissed the lawsuit in January. Though he conceded “the current treatment of the Palestinians in the Gaza Strip by the Israeli military may plausibly constitute a genocide in violation of international law,” he found the suit should be blocked by the political question doctrine, which bars courts from interfering in certain political acts, including most elements of foreign policy.

“It is every individual’s obligation to confront the current siege in Gaza,” White wrote, “but it also this court’s obligation to remain within the metes and bounds of its jurisdictional scope.” Perhaps coloring somewhat outside the lines, White added: “This court implores defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.”

The Ninth Circuit agreed, finding that the plaintiffs “explicitly ask the courts to condemn the United States’ foreign policy toward Israel, to the point of wresting this responsibility away from the executive branch and placing it under judicial control.”

“This decision is mind boggling and, frankly, scary,” said plaintiff Waeil Elbhassi, a Palestinian now living in California, in a written statement. “It is just unfathomable, while we count our dead [and] witness the total obliteration of Gaza — aided by our own government.”

Plaintiff attorney Katherine Gallagher said the ruling “ignores both the legal framework put in place after World War II to ensure that a people is not targeted for destruction because of their identity” and “effectively gives the president a blank check whenever foreign policy is invoked.”

“On the heels of Trump v. United States ,” she added in a statement, “this stunning abdication of the court’s role to serve as a check on the Executive even in the face of its support for genocide should set off alarm bells for all.”

The three-judge panel was made up of U.S. Circuit Judge Consuelo Callahan, a George W. Bush appointee; U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama appointee; and U.S. Circuit Judge Daniel Bress, a Donald Trump appointee.

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