Legal Docket: Justice for terror victims

MARY REICHARD, HOST: It’s The World and Everything in It for this 21st day of April, 2025. We’re so glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

In 2018, an American-Israeli named Ari Fuld was leaving a shopping mall in the West Bank. About that moment, a Palestinian terrorist stabbed him fatally. But before he collapsed, Fuld was able to shoot the terrorist, and that prevented him from attacking anyone else.

REICHARD: The attacker ended up surviving. He received a life sentence in Israel. But was released in February as part of a prisoner exchange deal. Israel swapped more than 600 prisoners, including Ari Fuld’s killer. That group, given in exchange for six hostages held by Hamas.

Speaking to i24News, Ari Fuld’s brother Hillel explained the complexity of emotions Israelis feel about these swaps:

FULD: We all, you know, we feel the pain, but we also recognize that these, these families deserve to be reunited, and it's a dissonance that many of us experience. And at the same time, it's terribly painful to imagine this terrorist
who took my brother walking freely.

EICHER: Fuld’s widow, Mariam, had filed a lawsuit that finally made it to the Supreme Court this month, after years of legal battles in lower courts.

ROBERTS: We will hear argument this morning in Case 24-20, Fuld versus Palestine Liberation Organization, and the consolidated case.

The other consolidated case is Sokolow versus PLO, where victims initially won more than $650 million in damages under the Anti-Terrorism Act.

But that decision was tossed out by a lower court, ruling U.S. courts lacked jurisdiction over the PLO and the Palestinian Authority.

REICHARD: In response to that, Congress in 2019 approved the Promoting Security and Justice for Victims of Terrorism Act. It clarified that U.S. citizens harmed abroad by terrorism could seek justice in American courts. Specifically, the law allowed jurisdiction over foreign entities if those entities received U.S. foreign aid or maintained offices or activities within the U.S.

EICHER: Now, the Supreme Court must decide a fundamental legal question: Can Congress do that? Can it mandate that foreign entities be subject to American courts, even for actions carried out overseas?

Kent Yalowitz represented the Fuld family and other victims, arguing not only Congress can do it, it should:

YALOWITZ: The United States can take many actions in response to terror activity abroad by the PLO and the PA that kills American citizens. The government could, for example, prosecute them under our criminal laws, and they admit doing so would not violate any due process rights. They contend, however, that bringing a civil action crosses a red line is unconstitutional under the Due Process Clause. That is incorrect. The federal government's sphere of sovereignty is sufficiently broad that it follows American citizens wherever in the world they might travel.

Justice Clarence Thomas asked how the Fifth Amendment’s due process guarantees enter in to the facts of this case:

THOMAS: If we analyze this under the Fifth Amendment, what limitations would the Fifth Amendment provide for personal jurisdiction?

YALOWITZ: So, first of all, the Fifth Amendment requires fair notice and opportunity to be heard, which the defendants had. In addition, it protects persons against arbitrary government action. Here, the statute reasonably advances a legitimate government interest and within the context of the federal government's power.

REICHARD: Other justices worried about possible overreach. Justice Sonia Sotomayor:

SOTOMAYOR: You’re basically saying there is no due process protection whatsoever under the Fifth Amendment even for U.S. citizens, because I don’t know why it makes a difference that this is a foreigner or a U.S. citizen. If there is, as you’re advocating, no Fifth Amendment due process constraint on government, then Congress could at its own whim say you committed an act in New York, it violated a federal statute, get tried in California, get tried in Alaska, get tried in Hawaii. …

Yalowitz responded by emphasizing reasonableness. That’s a key legal standard courts use to ensure the government does not overstep. He gave an example: Suppose Congress passed a law saying anyone who sets foot in Paris, France, could be hauled into court in Paris, Texas. That would clearly be unreasonable. That would amount to arbitrary government action and would therefore violate due-process rights. So “reasonableness” is a good guardrail.

EICHER: Deputy Solicitor General Edwin Kneedler agreed with Yalowitz and the victims, emphasizing that courts usually defer to Congress on issues of foreign policy and national security:

KNEEDLER: Congress determined that it is fair to deem the PLO and PA to have consented to personal jurisdiction in suits under the Anti-Terrorism Act if they made payments to or on behalf of persons who injured or killed Americans in acts of terrorism or engaged in certain activities in the United States. Both of those forms of conduct that are jurisdiction-triggering are knowing and voluntary. They have a clear nexus to United States territory and to United States nationals and to the compelling U.S. interests in deterring terrorism.

But Justice Elena Kagan wondered about Constitutional limits:

KAGAN: If the minimum contacts test is a constitutional test, why does what Congress says in a particular statute modify that

YALOWITZ: Be --because the --minimum contacts test grows out of Fourteenth Amendment cases that provided for limitations on state governments. Those limitations do not apply to the federal government. The Court has said that.

For the PLO’s side, lawyer Mitchell Berger acknowledged he’s representing a deeply unpopular cause. He highlighted the historical limits of prosecuting defendants who aren’t actually here:

BERGER: Nobody likes pirates, right? Pirates have been bad from the founding. Nobody ever thought that even though piracy is a crime against humanity or it's a crime that fits in the Define and Punish Clause, that, certainly, the United States can define piracy as an offense, but the United States does not try pirates in absentia because there's a delta between what Congress can prescribe as laws and what courts can do in adjudicating individual claims against someone who violates a law with extraterritorial effect.

REICHARD: And then Justice Samuel Alito compared the relative harms in the case:

ALITO: What exactly is the unfairness in --in this case? It's the --it's too burdensome to litigate this in New York, where the PA and the PLO conduct some activities?

BERGER: Well, so I --

ALITO: What's the unfairness?

Berger answered the courts have already ruled that having an office in the U.S. or any kind of seat at the UN is not enough to establish jurisdiction in American courts over the PLO. It wouldn’t be right to deprive it of that liberty interest now.

If the justices side with Congress, that could reshape how American courts deal with foreign defendants in jurisdictions far from their homes. I think that side will prevail though, as I counted at least five justices leaning that way.

EICHER: Okay, so we can get caught up a bit, there’s another overseas terror case to touch on, in brief. This one deals with financial support for terror. It’s Blom Bank v Honickman. Here, victims and family members accused a Lebanese bank of supporting Hamas financially. Lower courts dismissed the case twice. Now the Supreme Court must decide how much flexibility courts have to let plaintiffs amend complaints after dismissal.

REICHARD: Alright, one more quick hit: Esteras v United States. In this one the court is weighing how much discretion judges have when they revoke the supervised release of a prisoner.

Edgardo Esteras violated the terms of his supervised release when he fired a gun during a domestic dispute. The recommended sentence for that was between 6 and 12 months. But the judge gave him two years, saying it was necessary to promote respect for the law.

EICHER: Esteras argues that federal law doesn’t give judges that kind of power. In cases like these, they’re supposed to consider only rehabilitation, not punishment. But that leads to a tricky question: how is a judge supposed to consider the nature of someone’s offense—without considering the seriousness of it?

REICHARD: Justice Samuel Alito pointed out this tension directly:

ALITO: Under the statute, the judge must consider the nature and circumstances of the offense. But, on your reading of the statute, the judge may not consider the seriousness of the offense. And how is the judge supposed to do that?

EICHER: In other words, what’s the real difference between considering the nature of an offense and punishing someone for it? That’s what the justices have to figure out.

Finally today, one case the justices did figure out. It’s a unanimous one, Cunningham v Cornell.

REICHARD: It makes it easier for employees to challenge retirement plan managers, ruling that employees don’t have to disprove every defense just to get their case heard. Employers must justify their own decisions, and that will reinforce protections for workers who are saving up for retirement.

And that’s this week’s Legal Docket!

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