DOJ says suit can’t thwart U.S. aid to Israel
In response to a lawsuit by Palestinians and their supporters accusing President Joe Biden of complicity in genocide, the administration has told a Bay Area federal judge that U.S. aid to Israel is a political decision that courts can’t second-guess.
“Plaintiffs seek to have the Court override the Executive Branch’s foreign policy and national security determinations,” Justice Department lawyers said in a filing with U.S. District Judge Jeffrey White of Oakland seeking dismissal of the lawsuit. “But decisions about whether and how to attempt to influence foreign nations, and whether and how to provide them military assistance, financial assistance, or other support, are constitutionally committed to the political branches of the Government. … The Constitution squarely commits foreign policy and national security decisions to the political branches.”
The suit is also futile, the government’s lawyers contended, because even if the courts ordered the U.S. to cut off all military aid to Israel — currently $3.8 billion a year, plus $14 billion that Biden is seeking from Congress — it would not save any lives in Gaza.
“While the United States is providing military assistance and other support to Israel, it does not control Israel’s military operations,” the lawyers wrote. “Even if the Court were to order the United States to withdraw such support, there is no indication that such an order would change Israel’s military operations in a way that would redress Plaintiffs’ alleged injuries.”
The lawsuit contends Israel’s actions, and their U.S. support, fit the legal definition of genocide, as stated in an international treaty that has been ratified by the United States: conduct “committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
The Justice Department’s filing did not discuss that issue but simply argued that the case did not belong in court.
The lawsuit seeks injunctions that would require Biden administration officials to “take all measures within their power” to end the bombing of Gaza, lift Israel’s siege of the territory, and stop “obstructing attempts by the international community … to implement a ceasefire.”
The latest filing was denounced by the Center for Constitutional Rights, the nonprofit that sued Nov. 13 on behalf of two humanrights groups along with Palestinians and Americans whose relatives have been killed by Israeli troops. The defendants are Biden, Secretary of State Antony Blinken and Defense Secretary Lloyd Austin.
Biden and his aides “are attempting to evade legal responsibility for their failure to prevent — and complicity in — Israel’s unfolding genocide of Palestinians in the Gaza Strip,” said Astha Sharma Pokharel, an attorney for the organization. “Israel’s political leaders are overseeing and escalating a military campaign
Miriam Alster/Associated Press that is targeting civilians and civilian infrastructure and denying all residents of Gaza food, water, and other necessities.”
Since the Oct. 7 attack by Hamas that Israel officials say killed 1,200 Israelis, nearly 20,000 Palestinians, more than half of them women and children, have been slain in Israel’s counterattack, according to Palestinian health officials. The U.S. vetoed a resolution in the United Nations Security Council on Dec. 9 that would have ordered an immediate ceasefire by both sides.
White has scheduled a hearing Jan. 26, 2024, on the plaintiffs’ injunction requests and the government’s motion to dismiss the suit. The plaintiffs have asked the judge to allow testimony by witnesses at the hearing, but Justice Department lawyers oppose any testimony and say the judge should rule without holding a hearing.
“This Court lacks authority to decide the current dispute because ‘a determination of whether foreign aid to Israel is necessary at this particular time is… inappropriate for judicial resolution,’ ” the administration’s lawyers said, quoting a federal appeals court ruling in the case of Rachel Corrie.
Corrie, a 23-year-old college student from Olympia, Wash., and a volunteer with the International Solidarity Movement, was run over and killed by a U.S.-made bulldozer in 2003 while trying to protect a house from being demolished by Israelis in the Gaza Strip.
Her family and others, also represented by the Center for Constitutional Rights, accused the bulldozer manufacturer, Caterpillar, of aiding Israel in war crimes. As the government’s lawyers noted in their recent filing, the 9th U.S. Circuit Court of Appeals ruled in 2007 that allowing such a suit to proceed “would impermissibly intrude upon the executive branch’s foreign policy decisions.”
Reach Bob Egelko: begelko@sfchronicle.com; Twitter: @BobEgelko