Palestinian Organizations, Individuals Take U.S. Officials to Court for Complicity in Gaza Genocide

Earlier this year, a preliminary hearing was held in Oakland, California for a lawsuit filed in U.S. federal court by the Center for Constitutional Rights (CCR) on behalf of Palestinian organizations, together with Palestinians in Gaza and the U.S.; Defense for Children International - Palestine v. Biden. The plaintiffs asked the court to declare that U.S. President Joe Biden, Secretary of State Antony Blinken, and Secretary of Defense Lloyd Austin have failed to prevent genocide and are aiding and abetting Israel in carrying out a genocide on the Palestinian people in Gaza. 

The case was filed on Nov. 13, 2023 and a decision was made by U.S. District Judge Jeffrey White on Jan. 26, 2024; the court reluctantly dismissed the case. Judge White wrote: “There are rare cases in which the preferred outcome is inaccessible to the Court. This is one of those cases.” Citing the political question doctrine, the court maintained that it was bound to its judicial limitations and could not rule on issues that are determined by the powers of the executive branch, i.e., foreign policy. 

Still, the court made it clear that based on the testimony from plaintiffs, which included a doctor surviving the siege in Gaza, an expert on genocide and the Holocaust, as well as the ruling by the International Court of Justice, “...it is plausible that Israel’s conduct amounts to genocide.” Imploring the Biden administration to “examine the results of their unflagging support of the military siege against the Palestinians in Gaza.” 

Although the court's decision to rule in favor of the defendants is bound to disappoint many, this conclusion could add pressure from a federal court for the Biden administration to reconsider its policy of providing military and political support to the Israeli regime as it commits a horrifying genocide on the Palestinian people.

After this decision, the CCR pursued an appeal for which they were granted an expedited briefing. On March 7, the appeal was officially submitted. The plaintiffs argued that the court holds a constitutional obligation to review their claim that U.S. officials are complicit in Israel’s genocide in Gaza. In their brief, the CCR insists that “aiding and abetting genocide can never be a policy decision, and the Constitution requires that the federal judiciary uphold its duty to apply the law.” The Court of Appeals for the Ninth Circuit will hear oral arguments in San Francisco, California in June 2024.  

Historically, U.S. courts have ceded to the federal government when it has claimed that federal courts have no say in U.S. foreign policy and that any intervention would be a breach of the Political Question doctrine, meaning the courts are overstepping their role as an apolitical branch of government that is meant to concern itself solely with the law. 

The Political Question doctrine is meant to enforce the separation of powers by the government between the legislative, executive, and judicial branches, but the plaintiffs argue that the court is not being asked to question foreign and military aid to Israel altogether, but rather a specific instance of an active genocide, which they determine to be an issue of law based off the Genocide Convention. 

The issue of the political question doctrine foregrounded this case. The plaintiffs addressed this issue, and how the government uses it to bully courts. Pamela Spees, one of the attorneys for the plaintiffs, spoke in a press conference held in Oakland after the Jan. 26 hearing stating: “The government comes in, as they do, and say this is a political question, you can’t interfere with it. And that is not the law, but it often will scare courts into abdicating from their role of being a full[y] co-equal branch of government, in this democracy. And that’s what we’re up against. We’re swimming against this tide.” 

The political question doctrine is what ultimately led the court to dismiss the case in favor of the government. It purports to have its hands tied, as the nature of military aid falls under foreign policy, and therefore, the executive branch of government. Still, this case has brought the political question doctrine into consideration. 

The morning of the Jan. 26 hearing, community members gathered to support the Palestinian plaintiffs, painting the main street outside of the courthouse with a mural that read, “Biden: Complicit In Genocide.” While they painted, testimony from the courtroom was broadcast over loudspeakers.

Community members paint mural in front of the U.S. Court House in Oakland during hearing proceedings on January 26, 2024. Photo by Sarah O'Neal. 

The loudspeakers were set up because the judge had ordered the courtroom closed to the public, citing safety concerns due to past direct actions taken at the Oakland federal building to demand a ceasefire in Gaza. Typically a case like this would be heard publicly with overflow rooms opened when the courtroom reached capacity; still, organizers managed to create an overflow room on the streets of Oakland. 

The Jan. 26 hearing unfolded over four hours. Judge Jeffrey S. White appeared sympathetic to the plaintiffs, an experience many community members were moved by, considering the hostile and downright violent atmosphere many institutions have cultivated against Palestinians and their supporters in the US. Judge White began the hearing by citing the violence Palestinians have endured in Gaza over the past months, as well as the role of the U.S. in supporting Israel with military aid. Still, the Judge shared that it ultimately came down to “jurisdictional reach.” In the end, it did. 

Afterward, the plaintiffs shared that the vocal and visual support of the community uplifted them during a difficult hearing. Speaking directly to supporters who had gathered all morning, Bilal Elkarra, Director of Council on American-Islamic Relations, Sacramento, shared, “from the second floor, we were nervous as we were about to testify, but then we would look out at all of you, and get inspiration from all of you.” It was a powerful scene. As protesters could look up at the plaintiffs, who were continuing the fight on the other side of the glass. During the hearing, Elkarra was informed by his mother that Israel had killed another family member in Gaza, and that two more went missing. 

This hearing was historic for numerous reasons. One of the most significant was the ability for plaintiffs to share testimony about the current moment, by contextualizing the Palestinian struggle through their lives and familial experiences. The plaintiffs were able to describe the ethnic cleansing by Zionist militias that their families survived in 1948, which led them to become residents of Gaza. Elkarra shared a similar sentiment: “For the first time in the history of this country, a [U.S.]high court was able to hear our stories about the Nakba. We told the judge that we were descendants of refugees, of people who were forcibly displaced from their country. And then we proceeded to tell [him] about the current Nakba we are witnessing today.” 

Community members gather outside of the U.S. Court House in Oakland listening to plaintiff testimonies. Photo: Sarah O'Neal. 

Diala Shamas, senior staff attorney at CCR elaborated: “We’ve seen and heard Palestinians stand up in a non-defensive posture and be allowed to testify, and bear witness, to not only what the Israeli government and military are doing to them right now uninterrupted, to explain that to understand how we are currently experiencing what is happening in Gaza, you have to understand the Nakba, that when they say Nakba now, we know exactly what that means.” For so long, the Zionist perspective has dominated the discourse surrounding the Occupation of Palestine, effectively ensuring the Occupier’s language is solely legitimate. This case challenged that. 

It was surreal to hear Dr. Omar Najjar speak over Zoom from Rafah, Gaza, to a courtroom in Oakland, California. Najjar, who is only twenty-four years old, described witnessing his childhood and family homes being obliterated by Israeli airstrikes while he watched through media streams; the experience speaks to the violent absurdity of witnessing the genocide over livestreams and recordings in the past months. 

Still, the abundance of evidence has not seemed to shift the political willpower of the Biden administration to stop supporting the Israeli military and has instead doubled down on its commitment to supporting the Israeli regime.

The unprecedented nature of the genocide that the Israeli regime has carried out on the Palestinian people for almost six months should compel the legal system to respond in an equally unprecedented manner. The question of political doctrine was what ultimately led to the dismissal of Corrie v. Caterpillar in 2007. The case was brought forth by CCR in 2004 in an attempt to hold the U.S. government accountable for the murder of Rachel Corrie, an American activist who was attempting to defend Palestinians in Gaza against home demolitions when Israeli forces bulldozed her to death. Caterpillar, the company that produced the bulldozer used to kill her, denied responsibility because the U.S. military had purchased and provided Israel with its bulldozers.  

Two of the attorneys who worked on Corrie’s case, Maria LaHood and Katherine Gallagher, returned to represent Palestinians in the case against Biden, Blinken, and Austin. 

In CCR’s Jan. 31 press release, Gallagher expressed disagreement with the ruling on jurisdictional grounds and implored the Biden administration to “...heed the judge’s call to examine and end its deadly course of action. Together with our plaintiffs, we will pursue all legal avenues to stop the genocide and save Palestinian lives.” 

The January ruling on the Defense for Children International - Palestine v. Biden case came 15 days after President Biden issued a statement 100 days into Israel’s genocide on Palestinians, where he did not mention Palestine or Palestinians once. He chose to close out his statement with “We will never stop working to bring Americans home.” 

The bitter irony highlights how, to this administration, only some Americans matter. Israel has killed Americans like Rachel Corrie, Shireen Abu Akleh, and Furkan Doganl with zero recourse. More recently Tawfiq Ajaq a 17-year-old Palestinian-American was killed in the West Bank with justice yet to be served. 

The lack of justice for these Americans highlights an urgent need for U.S. courts to do more to ensure justice for the individuals and families who are killed or harmed by the Israeli regime. This case is a historic effort to hold the U.S. government accountable to international law and its commitment to preventing genocide.