SAN FRANCISCO (CN) — The Ninth Circuit Court of Appeals will decide if a federal judge was right to dismiss a lawsuit demanding that the judicial branch halt U.S. aid to Israel as it bombs Gaza on the grounds that courts cannot limit political foreign policy decisions.
In a case that gets to the heart of the separation of powers and political question doctrines, a group of Palestinians are seeking a preliminary injunction against the Biden administration’s U.S. ammunition policy specifically for Israel’s use on Palestinians in Gaza. They say the government violated the 1948 Genocide Convention by failing to intervene in Gaza and directly supporting Israel.
The convention defines genocide as acts committed “with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group,” including through killing, inflicting serious bodily or mental harm upon a targeted group, or by “inflicting upon the group conditions of life calculated to bring about its physical destruction in whole or in part.”
The federal government argues the claims are preempted by the political questions doctrine, limiting how courts can hear constitutional questions even if other requirements are met.
Katherine Gallagher, a senior attorney at the Center for Constitutional Rights who represents the plaintiffs, argued before U.S. Circuit Judges Consuelo María Callahan, Jacqueline Nguyen and Daniel Bress on Monday that the case concerns whether the judicial branch is “powerless” while the executive branch acts in violation of international law. She cited “clear evidence” of killings of Palestinian people using American weapons.
Callahan, a George W. Bush appointee, questioned if ruling against the federal court would be “second-guessing” Israel’s need for stability. Bress, who was appointed by Donald Trump, asked if it’s enough to identify a legal question to get past the political question doctrine. He asked if, by the plaintiffs' logic, the courts could start “running" the U.S. military.
Gallagher responded that the judicial branch can check executive conduct to ensure that it complies with the law, and the Supreme Court’s established political question doctrine is narrow.
“Here, reviewing executive conduct — whether it is adding or abetting the specific intent to destroy, in whole, people — it is the responsibility of the court to review that conduct against clearly established definition of genocide, of complicity in genocide," Gallagher said. "The Supreme Court made clear that even in moments of crisis, the executive is still bound by law.”
Justice Department attorney Maxwell Baldi said the U.S. government has worked to negotiate with Israel and Hamas for an end to the conflict and the return of Israeli hostages. He said the judicial branch cannot act on foreign policy.
Callahan asked if the outcome would be the same if Israelis had filed a lawsuit demanding more aid to Israel’s military campaign. Baldi said it would, because legal precedent shows that an integral policy choice cannot be decided in the courts.
"This requires a claim by claim analysis, and the court would have to ask if the claims can be resolved without looking at core policy decisions," Baldi said.
On rebuttal, Gallagher said the government was arguing that there is no accountability for U.S. foreign policy decisions in its own courts. She said the State Department's report in May, which found that U.S. weapons are being used in Gaza in violation of international law, shows that it could limit those weapons' use as a response.
She cited recent estimates that the death toll in Gaza is around 40,000.
“It is not simply the failure to put in place a ceasefire resolution that has caused that. It’s the more than a million pieces of ammunition that have been used in Gaza," she said: "tens of thousands of missile kits that have been sent, including tons of thousands of bombs sent within the last month.”
The plaintiffs said a press conference Monday that they will pressure the Biden administration even more if the panel rules in the government’s favor.
“Here we are today, and the genocide continues. The scale of destruction is massive, and almost complete,” said Wael Elbhassi, one of the plaintiffs.
Baher Azmy, legal director at the Center for Constitutional Rights, predicted that the Biden administration will be condemned for its culpability in Israel’s campaign.
“Experts in our case say they have never encountered such clear statements of genocidal intent by leaders before," Azmy said. "It is unmasked, and the Biden administration has known about it from day one. Yet they perpetuate it.”
Ahmed Abu Artema, a Palestinian plaintiff who spoke in a recording sent from Gaza, added, "To hear the Biden administration is saying in court that it has the discretion to continue supporting this genocide is a reminder that, in their eyes, the lives of my people are worthless. But we have no choice but to resist this dehumanization.”
Gallagher said she hoped for a speedy decision from the panel.
According to Azmy, U.S. Circuit Judge Ryan Nelson, a Trump appointee, agreed to recuse himself from the case following the plaintiffs' discovery that he was one of 14 U.S. judges who made a sponsored visit to Israel in March to meet with Israel Defense Forces, lawyers and government officials to influence U.S. judicial opinion.
Both sides argued in federal court on Jan. 26 after the plaintiffs filed their lawsuit in November 2023. Less than one week later, U.S. District Judge Jeffrey White dismissed the case, saying his hands were tied by judicial procedure.
White said foreign policy is constitutionally under the purview of the political branches of government and disputes over foreign policy are political questions that can't be decided by the courts.
However, he expressed some reservation, saying the undisputed evidence before him and findings from the International Court of Justice supported the conclusion that the Israeli military's treatment of Palestinians in the Gaza Strip "may plausibly constitute a genocide in violation of international law."
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