Sokolow et al v. Palestine Liberation Organization et al

Filing 31

Sokolow et al v. Palestine Liberation Organization et al

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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

MARK I. SOKOLOW, et al. Plaintiffs, v. THE PALESTINE LIBERATION ORGANIZATION, et al. Defendants. SUPPLEMENTAL MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION TO ENTER DEFAULT, SCHEDULE AN INQUEST ON DAMAGES AND ENTER JUDGMENT BY DEFAULT Introduction This is a civil action pursuant to the Antiterrorism Act ("ATA"), 18 U.S.C. §2331 et. seq. and supplemental causes of action, brought by United States citizens, and by the guardians, family members and the personal representatives of the estates of United States citizens, who were killed and injured in seven terrorist attacks carried out by defendants Palestine Liberation Organization ("PLO") and Palestinian Authority ("PA"), between January 8, 2001 and January 29, 2004. On January 26, 2006, this Court entered an Order finding that the PLO and PA have failed to answer or otherwise respond to the First Amended Complaint (despite having sought and received three enlargements of time over a period of six months) and authorizing plaintiffs to file a formal motion for default judgment. Accordingly, on February 21, 2006, plaintiffs filed a Motion to Enter Default, Schedule an Inquest on Damages and Enter Judgment by Default. 1:04-cv-00397-GBD

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Defendants PA and PLO responded by filing a Memorandum in Opposition to Plaintiffs' Motion for the Entry of Default Judgment ("Defs. Memo"), arguing that default judgment should not enter because the Court purportedly lacks subject-matter jurisdiction. On October 4, 2006, the Court held a conference, at the conclusion of which it ordered the parties to brief defendants' subject matter jurisdiction argument, and ruled that if the Court determines that it has subject matter jurisdiction defendants will have 30 days to file an answer or default judgment will be entered. Plaintiffs therefore submit the instant Supplemental Memorandum regarding the Court's subject-matter jurisdiction in this action. As shown below, the Court's subject-matter jurisdiction in this matter is indisputable. I. THE STATUTORY BASIS FOR SUBJECT-MATTER JURISDICTION IN THIS ACTION The First Count of the First Amended Complaint in this case is a cause of action for "international terrorism" pursuant to §2333 of the ATA, which creates a federal cause of action for U.S. citizens, and their estates, survivors and heirs, for death and personal injuries caused by an act of "international terrorism". First Amended Complaint at ¶¶ 126-134. The Court therefore has original subject-matter jurisdiction over this case pursuant to 28 U.S.C. §1331. Additionally, the First Amended Complaint asserts supplemental claims for wrongful death, pain and suffering, battery, assault, loss of consortium and solatium, negligence and infliction of emotional distress. See id. at ¶¶ 135-201. These supplemental causes of action are all based on the same terrorist attacks as the federal claim brought under 18 U.S.C. §2333 and are thus derived from the same nucleus of operative fact as the §2333 claim. This Court therefore has subject-matter jurisdiction over these supplemental causes of action pursuant to 28 U.S.C. §1367. See Estates of Ungar v. Palestinian Authority, 153 F.Supp.2d 76, 86 (D.R.I. 2001) (Holding that federal and 2

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supplemental causes of action arising from same terrorist attack are derived from the same nucleus of operative fact and that court therefore has supplemental jurisdiction over non-federal claims under 28 U.S.C. § 1367); Biton v. Palestinian Interim Self-Government Authority, 310 F.Supp.2d 172, 182-183 (D.D.C. 2004) (same). The statutory basis of the Court's subject matter jurisdiction in this action is therefore established for all counts of the First Amended Complaint. II. DEFENDANTS' BASELESS JURISDICTIONAL CHALLENGES HAVE ALREADY BEEN UNANIMOUSLY REJECTED BY A FEDERAL COURT OF APPEALS AND SEVEN DIFFERENT FEDERAL JUDGES IN FOUR FEDERAL DISTRICTS Defendants seek to challenge the Court's subject-matter jurisdiction on three grounds: 1) 2) 3) Defendants assert that the instant action presents non-justiciable questions; Defendants assert that they enjoy sovereign immunity; Defendants assert that the terrorist attacks which killed or injured plaintiffs

constitute "acts of war" under §2336(a) of the ATA. Defs. Memo pp. 5-48. This case is one of eight civil actions brought against the PA and PLO under the ATA by American citizens killed or injured in terrorist attacks carried out by the PA and PLO over the past decade. The other ATA actions against the PA and PLO were brought in this Court, and in the federal district courts for the District of Rhode Island, the District of Columbia, and the Southern District of Florida.1

Knox v. Palestine Liberation Organization, (Civ. No. 03-4466) (S.D.N.Y.); Ungar v. Palestinian Authority, (Civ. No. 00-105) (D.R.I.); Biton v. Palestinian Interim Self-Government Authority, (Civ. No. 01-0382) (D.D.C.); Gilmore v. Palestinian Interim Self-Government Authority, (Civ No. 01-853) (D.D.C.); Klieman v. Palestinian Authority, (Civ. No. 04-1173) (D.D.C.); Shatsky v. Syrian Arab Republic et al., (Civ. 02-2280) (D.D.C.); Saperstein v. Palestinian Authority, (Civ. No. 04-20225) (S.D.Fla.).

1See

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As shown below, the very same challenges to subject-matter raised by defendants in this action were asserted by them in the other ATA actions, where they were thoroughly analyzed and resoundingly and unanimously rejected by the seven different federal judges hearing those actions and by the Court of Appeals for the First Circuit. III. THIS ACTION IS FULLY JUSTICIABLE Defendants assert, as they did unsuccessfully in all of the seven other ATA cases pending against them, that the instant action presents non-justiciable political questions. Defs. Memo at 3337. While defendants' argument is not the picture of clarity, their basic assertion is that adjudicating this action would somehow require the Court to determine political issues related to the Israeli-Palestinian conflict. Id. Defendants neither explain how or why the Court would need to make such determinations, nor point to a single sentence of the complaint that raises a political issue, because they cannot. This case arises out of the following seven terrorist attacks carried out by defendants and their operatives: (1) On the evening of January 8, 2001, plaintiff Varda Guetta was driving her 12 yearold son, plaintiff Joseph Guetta, home from soccer practice. The two were traveling in their family car on a public highway near Jerusalem. Defendants' operatives opened fire with machine-guns on the Guetta vehicle, striking and seriously wounding plaintiff Joseph Guetta. First Amended Complaint at ¶¶ 54-60. (2) In the afternoon of January 22, 2002, plaintiffs Shayna Gould and Shmuel Waldman, who were then in Israel to attend religious seminaries, were present on Jaffa Street in downtown Jerusalem. Defendants' operative opened fire with a M-16 machine-gun

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on random passersby, killing two elderly women and wounding over 45 people including plaintiffs Shayna Gould and Shmuel Waldman. Id. at ¶¶ 61-76. (3) At about midday on January 27, 2002, plaintiffs Mark I. Sokolow, Rena M. Sokolow, Jamie A. Sokolow and Lauren M. Sokolow, who were visiting Israel as tourists, were walking on Jaffa Street in downtown Jerusalem. Defendants' operative set off a powerful explosive device, killing an 81 year-old man and wounding over 150 other persons, including plaintiffs Mark I. Sokolow, Rena M. Sokolow, Jamie A. Sokolow and Lauren M. Sokolow. Id. at ¶¶ 77-85. (4) In the afternoon of March 21, 2002, plaintiff Dr. Alan J. Bauer and his minor son plaintiff Yehonathon Bauer were walking on King George Street in downtown Jerusalem. Defendants' operative set off a powerful explosive device, which killed three innocent passersby and wounded more than 80, including plaintiffs Dr. Alan J. Bauer and Yehonathon Bauer. Id. at ¶¶ 86-99. (5) On the evening of June 19, 2002, plaintiff Shaul Mandelkorn was standing near a crowded bus stop at the French Hill intersection in Jerusalem. Defendant's operative set off a powerful explosive device, which killed seven innocent persons and wounded over 50 more, including plaintiff Shaul Mandelkorn. Id. at ¶¶ 100-107. (6) In the afternoon of July 31, 2002, decedents Janis Ruth Coulter, Diane (Dina) Carter, Benjamin Blutstein and David Gritz were in or near a cafeteria on the campus of the Hebrew University in Jerusalem. Defendants' operatives detonated a powerful explosive device, which they had previously planted in the cafeteria, which killed nine persons including decedents Janis Ruth Coulter, Diane ("Dina") Carter, Benjamin Blutstein and David Gritz. Id. at ¶¶ 108-117.

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(7)

On January 29, 2004, decedent Stuart Scott Goldberg was riding a public bus in the Rehavia neighborhood of downtown Jerusalem. Defendants' operative detonated a powerful explosive device on the bus, which killed eleven persons including decedent Stuart Scott Goldberg. Id. at ¶¶ 118-125.

Thus, this case does not implicate, much less require the Court to reach, any political questions whatsoever. The sole question presented in this case is whether defendants are liable in tort under 18 U.S.C. §2333 and the supplemental causes of action for the harm caused by these seven specific attacks. Defendants have not even attempted to articulate ­ because they cannot ­ how the respective merits or demerits of the Palestinian-Israeli conflict could possibly be relevant or necessary to this determination. Indeed, this entire argument is no more than a straw man of the defendants' own making. In a vain and transparent attempt to artificially "politicize" this tort action, defendants have devoted pages upon pages of their memorandum to political statements, "supported" by newspaper clippings and other immaterial documents, the irrelevancy of which is glaringly obvious. This is not the first time that defendants have claimed in this Court that terrorist attacks on American citizens overseas are beyond the judicial ken of the courts of the United States. In Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (2nd Cir. 1991) the PLO raised the identical claim which was resoundingly rejected. The reasoning and holdings of the Second Circuit are fully applicable to this action: The PLO next argues that this case constitutes a non-justiciable political question because is "raises foreign policy questions and political questions in a volatile context lacking satisfactory criteria for judicial determination." However, the doctrine "is one of `political questions,' not one of `political cases.'" Baker v. Carr, 369 U.S. 186, 217, 7 L. ed. 2d 663, 82 S. Ct. 691 (1962). The fact that the issues before us arise in a politically charged context does not convert what is essentially an ordinary tort suit into a non-justiciable political question.

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Id. at 49 (emphasis added). The Klinghoffer holding was reiterated in an action brought against the Bosnian-Serb leader Radovan Karadzic by Croat and Muslim victims of atrocities in the former Yugoslavia. The district court dismissed the action, accepting Karadzic's claim that the allegations charging him with vicarious liability for various atrocities, including rape, torture, and summary execution, were nonjusticiable. The Second Circuit reversed on appeal, holding that: Karadzic maintains that these suits were properly dismissed because they present nonjusticiable political questions. We disagree. Although these cases present issues that arise in a politically charged context, that does not transform them into cases involving nonjusticiable political questions. "[T]he doctrine `is one of "political questions," not one of "political cases.'" Klinghoffer, 937 F.2d at 49 (quoting Baker, 369 U.S. at 217). Kadic v. Karadzic, 70 F.3d 232, 249 (2nd Cir. 1995). Klinghoffer, unlike the instant action, was not brought under a specific federal cause of action for terrorism, but involved common law torts. Nonetheless, the Court of Appeals explicitly found that it had judicially discoverable and manageable standards to resolve the action: Here, we are faced with an ordinary tort suit, alleging that the defendants breached a duty of care owed to the plaintiffs or their decedents . . . [T]he common law of tort provides clear and well-settled rules on which the district court can easily rely, this case does not require the court to render a decision in the absence of "judicially discoverable and manageable standards." Klinghoffer, 937 F.2d at 49. Similarly, the supplemental causes of action pled against the PLO and PA in this suit are standard tort claims for wrongful death, pain and suffering (survival damages), battery, assault, loss of consortium and solatium, negligence and infliction of emotional distress. As in Klinghoffer, these tort claims provide "clear and well-settled rules on which the district court can easily rely, this case

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does not require the court to render a decision in the absence of `judicially' discoverable and manageable standards." Id. Furthermore, in contrast to Klinghoffer, this suit is primarily brought under the specific federal cause of action for "international terrorism" codified at 18 U.S.C. §2333. The finding in Klinghoffer that the common law provides the Court with judicially discoverable and manageable standards to hear an action for overseas terrorist attacks, applies a fortiori to the §2333 claim of "international terrorism." Section 2331 provides a detailed, meticulously defined list of the elements which comprise "acts of international terrorism" actionable under §2333. The definitions in §2331 are so

standardized as to make their application almost mechanistic. Subsection §2331(1)(A) defines the actual behavior which constitutes the federal tort of "international terrorism," while subsections §§2331(1)(B) and (C) add, respectively, conditions relating to the purpose and intent, and the geographical circumstances, of the terrorist behavior. The "behavioral component" of the tort of international terrorism, defined in §2331(1)(A), consists of two elements. The behavior must be 1) violent or dangerous to human life and 2) a criminal violation of federal or state law, or would constitute such a violation if committed within the U.S. Thus, in enacting this provision, Congress did not attempt to narrowly define tortious behavior. Rather, any violent or dangerous behavior violative of any U.S. or state criminal provision is deemed international terrorism (provided it also meets the conditions of §2331(1)(B) and (C)). On the other hand, Congress balanced the broad, virtually unlimited scope of behaviors deemed tortious, by setting a high threshold for the flagrancy of the behavior: only criminal behavior is tortious under §2331(1).

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Section 2331(1)(B) requires that the behavior must appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion or to affect the conduct of a government by mass destruction, assassination or kidnapping. Finally, §2331(1)(C) provides that defendants' behavior must occur primarily outside the United States or transcend national boundaries, in terms by which it is accomplished, the persons intended to be intimidated or coerced, or the locale where the perpetrators operate or seek asylum. Therefore, the PLO and PA will be found liable under §2333(a), if the Court finds that their behavior (a) was dangerous to human life, (b) violated the criminal laws of the United States or of any state, or would be a criminal violation if committed within the United States, (c) appears to be intended to intimidate a civilian population, or to influence or affect the policy of a government by intimidation, coercion or assassination, and (d) occurred primarily outside the United States. Clearer judicially discoverable and manageable standards than those codified in §2331 could hardly be imagined. In enacting §2333, Congress gave federal courts the judicial standards necessary ­ and the mandate ­ to hear actions such as the instant suit. Indeed, significantly, in rejecting the PLO's claim that foreign terror attacks were not justiciable, the Second Circuit specifically cited the (then-recent) enactment of the very federal cause of action under which this suit is brought, 18 U.S.C. §2333(a), as proof that Congress had "expressly endorsed the concept of suing terrorist organizations in federal court." Klinghoffer, 937 F.2d at 4950. 2

The legislative history demonstrates that the ATA was enacted as a specific response and remedy to jurisdictional and procedural hurdles raised by the PLO in Klinghoffer. That action commenced in 1985. Twelve years later, in 1997 (when the parties reached an out of court settlement), the suit was still mired in pretrial discovery. Klinghoffer v. S.N.C. Achille Lauro, 739 F.Supp. 854 (S.D.N.Y. 1990), 921 F.2d 21 (2nd Cir. 1990), 937 F.2d 44 (2d. Cir. 1991), 795 F. Supp. 112 (S.D.N.Y. 1992), 816 F. Supp. 930 (S.D.N.Y. 1993). The mind-boggling delay in Klinghoffer was caused by protracted pre-trial proceedings stemming from threshold claims raised by the PLO, including lack of personal and subject-matter jurisdiction, insufficient service of process and lack of capacity to be
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The rule set down by the Second Circuit in Klinghoffer has been applied by the federal courts in all the cases brought against the PA and PLO under the ATA. For example, in Ungar v. Palestinian Authority, the court rejected defendants' non-justiciability argument on the following grounds: The plaintiffs in the case before this Court brought a cause of action in tort under federal law seeking damages. As the Second Circuit in Klinghoffer stated, an ordinary tort suit in which the plaintiffs allege that the defendants breached a duty of care owed to the plaintiffs or their decedents is an issue which has been "constitutionally committed ... [to] none other than our own ­ the Judiciary." 937 F.2d at 49. Thus, it is evident that simply because the events which resulted in the filing of this case took place in a politically volatile area in which the United States has a strong foreign policy interest does not transform what is otherwise an ordinary tort action into a non justiciable political question. Ungar v. Palestinian Authority, 228 F.Supp2d 40, 44-45 (D.R.I. 2002); see also Ungar v. Palestine Liberation Organization, 402 F.3d 274, 279-282 (1st Cir. 2005).

sued. In response, Congress enacted the ATA specifically in order to ensure that no future American victim of terrorism would have to undergo the ordeal endured by the Klinghoffer family in their suit against the PLO: This legislation will allow American victims of terrorism to bring civil suits in U.S. Federal court. The need for this legislation couldn't be clearer. While Congress has passed laws providing for the criminal prosecution of terrorists, victims of terrorism face incredibly difficult legal hurdles in pursuing claims against terrorists. The recent case of the Klinghoffer family is a glaring example of this gap in our efforts to develop a comprehensive legal response to international terrorism. Leon Klinghoffer, a passenger on the Achille Lauro cruise liner, was executed and thrown overboard during the 1985 terrorist attack. His widow, Marilyn Klinghoffer, and family took their case to the courts in their home State of New York. Only by virtue of the fact that the attack violated certain admiralty laws and that the organization involved--the Palestine Liberation Organization--had assets and carried on activities in New York, was the court able to establish jurisdiction over the case. A similar attack occurring on an airplane or in some other locale might not have been subject to civil action. The Anti-Terrorism Act of 1991 would fill in this gap in our laws. Remarks of Congressman Edward F. Feighan, co-sponsor of the ATA, Cong. Rec., May 2, 1991, p. E1538.

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Similarly, Judge Marrero of this Court rejected defendants' identical non-justiciability argument in another recent ATA action: Defendants urge the Court to dismiss the case on the ground that it raises non-justiciable political questions. Specifically, Defendants assert that this case will require the Court to "assess[ ] the PalestinianIsraeli conflict over the years" and to "adjudicate history in progress." (Def. Mem. at 26-27.) The Court disagrees. As explained more fully above, the Court will not, and need not, endeavor to answer or otherwise lend its views towards these broader and intractable political questions which form the backdrop to this lawsuit. This lawsuit will simply adjudicate whether and to what extent the Plaintiffs may recover against Defendants under certain causes of action for the violence that occurred in Hadera, Israel on the night of January 17, 2002. In this connection, the Court cannot ignore the incongruity and conflict with statutory intent that the Defendants' argument would countenance. Plaintiffs' claims allege unprovoked savagery that encompasses even murder. Defendants' view essentially would ask the Court to hold that, even if the facts were to verify the accusations here, a wanton massacre of innocents would still be "non-justiciable." This proposition cuts against the grain of what compels the business of the courts. It would rub every syllable of justice out of the concept of justiciability and do equal violence to the ATA. ... The Second Circuit in Klinghoffer squarely addressed this issue when the PLO (represented by the same lawyers as in this lawsuit) unsuccessfully sought to dismiss that case on virtually the same grounds. See 937 F.2d at 49-50. In Klinghoffer, four persons hijacked an Italian cruise liner in the Mediterranean Sea, and, in the course of the hijacking, an American citizen was thrown overboard and killed. Id. at 47. The victim's estate brought common law tort causes of action against various defendants, who impleaded the PLO. Id. The PLO unsuccessfully argued that the case raised non-justiciable "foreign policy questions and political questions in a volatile context lacking satisfactory criteria for judicial determination." Id. at 49. First, the Circuit Court emphasized that "the doctrine `is one of "political questions," not one of "political cases." ' " Id. (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). The "politically charged context" did not convert what was "essentially an ordinary tort suit into a non-justiciable political question." Id. Second, the Circuit Court concluded that all six of the considerations put forth in Baker, the leading Supreme Court case on the issue, militated against applying the political question doctrine. Id. Most importantly, Klinghoffer noted that common law tort claims are 11

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"constitutionally committed" to the judicial branch. Id. Moreover, the Circuit Court cited ATA § 2333, under which Plaintiffs have sued in the instant case, and pointed out that Congress had "expressly endorsed" these types of lawsuits. Id. at 49-50. ... Defendants here fail to distinguish (or even cite) Klinghoffer or Ungar I. Accordingly, the Court concludes that the case will not be dismissed on the alleged ground that it raises non-justiciable political questions. Knox v. Palestine Liberation Organization, 306 F.Supp.2d 424, 448-449 (S.D.N.Y. 2004). The United States District Court for the District of Columbia rejected defendants' nonjusticiability argument on the same grounds: Defendants fail to address the fact that this lawsuit was brought under a statute specifically designed to provide a civil cause of action in federal court for terrorist acts taken against American nationals abroad. ... Enactment of the ATA makes it clear that both Congress and the Executive have "expressly endorsed the concept of suing terrorist organizations in federal court," and therefore this Court need not delve into an in-depth political question analysis here. Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 49 (2d Cir.1991). Moreover, through the express language of the ATA and the application of common law tort principles, the Court has clear and manageable standards by which to properly adjudicate Plaintiffs' claims. See Ungar v. The Palestinian Authority, 402 F.3d 274, 281 (1st Cir. 2005). The courts which have addressed this precise issue have squarely held that ATA claims brought against the PLO and the PA do not constitute non-justiciable political questions. See, e.g., Biton v. Palestinian Interim Self- Government Authority, 310 F.Supp.2d 172, 184-85 (D.D.C. 2004); Ungar, 402 F.3d at 282; Klinghoffer, 937 F.2d at 49-50; Knox v. Palestine Liberation Organization, 306 F.Supp.2d 424, 448-49 (S.D.N.Y. 2004). Defendants fail to discuss, no less distinguish, any of these cases. ... As the Second Circuit noted in Klinghoffer, in which the PLO made nearly the exact same non-justiciability argument, the doctrine "is one of `political questions,' not one of `political cases.' The fact that the issues before us arise in a politically charged context does not convert what is essentially an ordinary tort suit into a non-justiciable political question." 937 F.2d at 49 (citing Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). As in Klinghoffer, this case "is essentially an ordinary tort suit," despite its tragic facts.

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Consequently, Defendants' Motion with respect to non-justiciability must be denied. Gilmore v. The Palestinian Interim Self-Government Authority, 422 F.Supp.2d 96, 99-100 (D.D.C. 2006). See also Biton v. Palestinian Interim Self- Government Authority, 310 F.Supp.2d 172, 184-85 (D.D.C. 2004) (same); Estate of Klieman v. Palestinian Authority, 424 F.Supp.2d 153, 161-162 (D.D.C. 2006) (same); Saperstein v. Palestinian Authority, (Civ. No. 04-20225) (S.D.Fla.), Order Granting in Part and Denying in Part Motion For Default Judgment, entered July 11, 2006, (Exhibit A), at p. 11 (same); Shatsky v. Syrian Arab Republic et al., (Civ. 02-2280) (D.D.C.), Minute Order entered February 7, 2005, denying defendants' motion to dismiss (dkt. # 26, 28) on grounds inter alia of non-justiciability. Defendants cite two cases from the District of Columbia, a concurrence in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir. 1984) and the decision in Doe v. Israel, 400 F.Supp.2d 86 (D.D.C. 2005), in purported support of their justiciability argument, but ­ as another federal court confronted with the identical argument by the PA and PLO recently concluded ­ neither of these cases are apposite to an ATA case: Asserting without elaboration that the instant case touches upon every Baker v. Carr factor, defendants' basic argument is that the prosecution of this lawsuit will burden "the long running Middle East peace process." Def. Mem. at 31. The Court finds defendants' argument unconvincing and the authority on which defendants rely inapposite. For example, Judge Robb's concurring opinion in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 823 (D.C.Cir. 1984) (Robb, J., concurring), on which defendants primarily rely, while similarly involving an armed attack on a civilian bus in Israel, does not support defendants' position that this case presents non-justiciable political questions because that decision predated the enactment of the ATA, which expressly provides, in Section 2333(a), a civil remedy in federal court for United States nationals injured by acts of international terrorism. See Tel-Oren v. Libyan Arab Republic, 726 F.2d at 822 (Bork, J., concurring) (although the Alien Tort Claims Act, 28 U.S.C. § 1350, does not authorize the courts "to enter into sensitive areas of foreign policy,"

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only a statute or treaty expressly creating a cause of action "[c]ould direct courts to entertain cases like this one"). Defendants' reliance on Judge Bates' opinion in Doe v. Israel, 400 F.Supp.2d 86 (D.D.C. 2005), also is misplaced. In that case, the court merely concluded that the political question doctrine constituted an alternative ground to dismiss claims against the State of Israel, Israeli government entities, and Israeli officials-all of which (and whom) the court already had determined to be immune from suit under the FSIA. See id. at 111. As demonstrated above, defendants here have no such immunity. Moreover, unlike defendants in the present case, the defendants in Doe v. Israel were not being sued under the ATA. Estate of Klieman v. Palestinian Authority, 424 F.Supp.2d 153, 161-162 (D.D.C. 2006) (emphasis added). Furthermore, a perusal of the decision in Doe v. Israel makes clear that the Doe plaintiffs (unlike the instant plaintiffs) were indeed seeking to have that court make political rulings: Plaintiffs would have this Court adjudicate the rights and liabilities of the Palestinian and Israeli people, making determinations on such issues as to whom the land in the West Bank actually belongs. *** The Court cannot find that plaintiffs state a RICO claim unless the Court implicitly determines that the Israeli settlement activities are illegal or tortious. That, as discussed above, is a foreign relations determination to be made by the Executive or Legislative Branches, and the Court would usurp the roles of those coordinate branches if it were to intrude. Such a conclusion would also implicitly condemn American foreign policy by suggesting that the support of Israel is wrongful. Doe v. Israel, 400 F.Supp.2d at 112. In the instant case, no such political questions are presented. Here, the only question is whether defendants' actions ­ shootings and bombings against innocent civilians, including women and children, walking down the street, standing at a bus stop, eating at a university cafeteria, riding a public bus, and driving home from soccer practice ­ fulfill

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the conditions set forth by Congress for civil liability under 18 U.S.C. § 2333 and/or for civil liability under the garden variety torts pled as supplementary causes of action. Simply put, acts of terrorism require no assessment of their "legitimacy" or illegitimacy beyond that already expressly provided and mandated by Congress when it enacted 18 U.S.C. §2331 et. seq.3 Indeed if defendants' argument ­ that a foreign political context renders an action nonjusticiable ­ were to prevail, no action could ever be brought under §2333, since (i) §2331 requires that the act of "international terrorism" actionable under §2333 must take place primarily abroad, i.e. in a foreign context; (ii) §2331 also requires that the act be intended to influence a government or population; and (iii) virtually every incident of international terrorism takes place in a political context (a fact of which the Court may properly take judicial notice). Thus, like the actions in Ungar, Knox, Biton, Gilmore, Klieman, Shatsky and Saperstein, the instant action was committed by Congress to this Court for adjudication under a specific federal statute, and is therefore readily and eminently justiciable. IV. NEITHER DEFENDANT IS A FOREIGN STATE A. Defendants Are Collaterally Estopped From Re-Litigating Their Sovereign Immunity Claims

Defendants assert that they constitute a "foreign state" and are therefore immune from this action pursuant to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602-1611, and §2337 of the ATA. Defs. Memo at 5-33. Defendants made the same statehood and sovereign immunity argument in each of the other seven ATA cases pending against them.

As one federal court has noted, "As terrorism has achieved the status of almost universal condemnation, as have slavery, genocide, and piracy, and the terrorist is the modern era's hosti humani generis ­ an enemy of all mankind ...". Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 23 (D.D.C. 1998).
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The first two ATA cases to consider defendants' statehood argument were Knox v. Palestine Liberation Organization, 306 F.Supp.2d 424 (S.D.N.Y. 2004) and Ungar v. Palestinian Authority, 315 F. Supp.2d 164 (D.R.I. 2004) (denying a Rule 12(b) motion to dismiss), 325 F. Supp.2d 15 (D.R.I. 2004) (entering final judgment) aff'd 402 F.3d 274 (1st Cir. 2005). Both Knox and Ungar thoroughly considered defendants' statehood argument, and resoundingly rejected it. The Ungar and Knox decisions conclusively establish that the PA and PLO are not immune from suit under the FSIA or 18 U.S.C. §2337. See also Gilmore v. The Palestinian Interim Self-Government Authority, 422 F.Supp.2d 96 (D.D.C. 2006) (same); Shatsky v. Syrian Arab Republic et al., (Civ. 02-2280) (D.D.C.), Minute Order entered February 7, 2005, denying defendants' motion to dismiss (dkt. # 26, 28) on grounds inter alia of sovereign immunity. The doctrine of collateral estoppel therefore precludes defendants from re-asserting and relitigating their immunity claims in this action. Under the doctrine of collateral estoppel: [A] final judgment on the merits in a prior suit precludes subsequent relitigation of issues actually litigated and determined in the prior suit, regardless of whether the subsequent suit is based on the same cause of action. Next Wave Pers. Communications, Inc. v. F.C.C., 254 F.3d 130, 147 (D.C. Cir. 2001) (internal citation and quotation marks omitted), aff'd, 537 U.S. 293 (2003). One Court of Appeals has explained the rationale behind the doctrine as follows: Collateral estoppel serves three main purposes. It protects litigants from the burden of relitigating an issue which the other party has already litigated and lost. It promotes judicial economy by preventing needless litigation. Finally, it fosters reliance on judicial action by minimizing the possibility of inconsistent decisions. Southern Pacific v. AT&T, 740 F.2d 1011, 1019 (D.C. Cir. 1984) (internal quotes and citations omitted) (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979) and Montana v. United States, 440 U.S. 147, 154 (1979)). Collateral estoppel will apply when: 16

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(i) the issue previously adjudicated is identical with that now presented, (ii) that issue was actually litigated in the prior case, (iii) the previous determination of that issue was necessary to the end-decision then made, and (iv) the party precluded was fully represented in the prior action. Thomas v. General Services Adman., 794 F.2d 661, 664 (Fed. Cir. 1986) (internal quotations omitted). These conditions are clearly met here. First, the issues adjudicated in Ungar and Knox ­ defendants' claims to "foreign state" status under the FSIA and 18 U.S.C. §2337 ­ are identical to those before this Court. Second, that issue was "actually litigated" in the exhaustive, treatise-like decisions in Ungar and Knox. Third, the rejection of defendants' sovereignty claim was clearly necessary to the decisions in Ungar and Knox, which denied defendants' motions to dismiss those actions and permitted those courts to enter final judgment. Finally, defendants were of course fully and vigorously represented in both Ungar and Knox by the same capable and experienced counsel as represent them here, as indicated in the captions of those decisions. Therefore, defendants are collaterally estopped from re-litigating their statehood and immunity claims in this Court. Indeed, three federal courts have expressly held that the defendants are collaterally estopped from re-litigating their statehood and immunity claims: The PA and PLO seek dismissal on the grounds that they both meet the definition of "foreign state" under the Foreign Sovereign Immunity Act ("FSIA"), 28 U.S.C. § 1604 and/or under 18 U.S.C. § 2337, and are therefore immune from suit. The instant litigation is only one of at least five lawsuits against the PA and PLO in which these Defendants have raised the same issues of fact and law with respect to Palestinian statehood, sovereignty and immunity. Two of the other suits have reached the point of decision: Ungar v. Palestine Liberation Organization, 402 F.3d 274 (1st Cir. 2005); Knox v. Palestine Liberation Organization, 306 F.Supp.2d 424 (S.D.N.Y. 2004). In both cases, after thorough consideration and discussion, the court rejected Palestine's claims of statehood. Plaintiffs argue that the doctrine of collateral estoppel precludes Defendants from re-litigating their immunity claims here. The Court agrees. 17

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Biton v. Palestinian Interim Self-Government Authority, 412 F.Supp.2d 1, 4 (D.D.C. 2005). Likewise: The Court ... concludes that the doctrine of collateral estoppel precludes relitigation of the issues surrounding defendants' assertion of sovereign immunity. This case is one of at least six ATA lawsuits currently pending against defendants; in all six cases the defendants are represented by the same attorneys; and in all six cases they have raised the same issues of fact and law ­ even relying on the same AlKidwa affidavit ­ with respect to Palestinian statehood. And in every case that has reached the point of decision, the court either has rejected their sovereign immunity argument on the merits, see Ungar v. Palestine Liberation Org., 402 F.3d at 282-92; Gilmore v. Palestinian Interim Self-Gov't Auth., 422 F.Supp.2d 96, 100-102, 2006 WL 711264, at *3-5 (D.D.C. 2006); Estates of Ungar v. Palestinian Auth., 315 F.Supp.2d 164, 174-87 (D.R.I. 2004); Biton v. Palestinian Interim Self-Gov't Auth., 310 F.Supp.2d 172, 180-81 (D.D.C. 2004) ("Biton I"); Knox v. Palestine Liberation Org., 306 F.Supp.2d 424, 430-48 (S.D.N.Y. 2004), or has done so under the doctrine of collateral estoppel. See Biton v. Palestinian Interim Self-Gov't Auth., 412 F.Supp.2d 1, 4-5 (D.D.C. 2005). Estate of Klieman v. Palestinian Authority, 424 F.Supp.2d 153, 159-160 (D.D.C. 2006). Notably, the "same Al-Kidwa affidavit" referred to in the above quote from Klieman, bearing the caption of the Ungar case, is the fulcrum of defendants' argument in the instant action as well. See Defs. Exhibit 1. Similarly, The PA and the PLO contend that the court lacks subject matter jurisdiction because they are "foreign states" and thus immune from suit under the Foreign Sovereign Immunities Act ("FSIA"). However, at least two courts have thoroughly considered and rejected Defendants' position in previous lawsuits. See Ungar Palestine Liberation Organization, 402 F.3d 274 (1st Cir. 2005); Knox v, Palestine Liberation Organization, 306 F. Supp. 2d 424 (S.D.N.Y. 2004). Accordingly, the doctrine of collateral estoppel precludes the PA and the PLO from re-litigating their immunity claims here. See Biton v. Palestinian Interim Self-Government Authority, Case No. 01-0382 (RMC) (D.D.C.) (Aug. 22, 2005, Memorandum Opinion) (giving "full preclusive effect" to the decisions in Ungar and Knox and holding that the PA and the PLO cannot claim statehood).

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Saperstein v. Palestinian Authority, (Civ. No. 04-20225) (S.D.Fla.), Order Granting in Part and Denying in Part Motion For Default Judgment, entered July 11, 2006, (Exhibit A), at p. 10. Defendants will no doubt argue here ­ as they did in Biton, Klieman and Saperstein ­ that their legal status is a function of ever-changing facts and circumstances, and thus not properly subject to collateral estoppel on the basis of previous decisions. Indeed, defendants have already foreshadowed this argument. See Defs. Memo at 4. This argument fails on multiple grounds: First, the defendants' objection to the application of collateral estoppel to their statehood claim has already been considered and rejected by the federal courts. See Klieman, 424 F.Supp.2d at 159-161 (rejecting defendants' opposition to the application of collateral estoppel to their sovereign immunity claim, and granting partial summary judgment denying their sovereign immunity claim on the basis of collateral estoppel); Biton, 412 F.Supp.2d at 4-5 (rejecting defendants' sovereign immunity claim on grounds of collateral estoppel). Since the propriety of applying collateral estoppel to defendants' statehood claim has already been fully adjudicated twice on the merits, defendants are collaterally estopped from contesting the application of collateral estoppel here. Second, the decisions in Knox and Ungar, which analyzed and rejected defendants' sovereign immunity claim on the merits and which underlie the subsequent finding of collateral estoppel made by the Klieman and Biton courts, based their rejection of the sovereign immunity claim both on the finding that the PA does not meet the four recognized criteria of statehood and on the wholly independent and alternate ground that a sovereign immunity defense is unavailable to the defendants because they are not recognized as a "foreign state" by the Executive Branch. See Knox, 306 F.Supp.2d at 438-448 ("even if Defendants presented sufficient evidence that Palestine and the PA and PLO regime satisfy the criteria for statehood, this Court would decline to give effect

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to the foreign state and governmental immunities Defendants invoke" because the Executive Brach does not recognize a Palestinian state.); Ungar, 315 F.Supp.2d at 186-187 ("Even assuming, without deciding, that a State of Palestine exists, the PA and PLO are still not entitled to sovereign immunity because there is no evidence that the United States has recognized or otherwise treated Palestine as a sovereign state.") Thus, even assuming purely arguendo that there had been some recent change in circumstances that brought the PA within the quadripartite definition of statehood (which as shown below there has not), and further assuming arguendo that such a change could have some relevance at this stage of the proceedings (which as shown below it cannot), the defendants could not even attempt to relitigate their immunity claim in this Court unless they could also demonstrate that the Executive Branch has now recognized a Palestinian state. Therefore, unless and until defendants can show that there has been such Executive Branch recognition, they remain estopped by the holdings in Ungar and Knox that the absence of such recognition precludes any claim of sovereign immunity, and cannot even begin to demand any reexamination of this claim ­ irrespective of any other purported change in circumstance. Of course, defendants do not even attempt to argue that the United States has recognized a Palestinian state because it has not.4 Third, as the Supreme Court recently established, the determination of whether a defendant has "foreign state" status, like all other factual predicates of subject-matter jurisdiction, is relevant only to the time the suit is filed. See Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003) (noting "the longstanding principle that the jurisdiction of the Court depends upon the state of things at the
On the contrary, in light of Hamas' electoral victory in the Palestinian Authority in January 2006, United States recognition of a Palestinian state is currently unimaginable. In fact, in response to the Hamas takeover of the PA, the Executive Branch has placed the PA on the list of entities whose assets are blocked under the Department of the Treasury's terrorism sanctions program. See "Recent OFAC Actions ­ April 12, 2006", Exhibit B, available at http://www.ustreas.gov/offices/enforcement/ofac/actions/20060412.shtml
4

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time of the action brought. It is well settled, for example, that federal-diversity jurisdiction depends on the citizenship of the parties at the time suit is filed.") (internal quotations and citations omitted). Thus, precisely contrary to defendants' position, a sovereign immunity claim is not open to constant reconsideration in light of alleged changes in circumstances. Defs. Memo at 4. Rather, the examination of a defendant's claim to "foreign state" status, and of the court's subject-matter jurisdiction over the action against that defendant, relates to only one point in time ­ the date the suit was filed. This action was filed on January 16, 2004, prior to the decisions in Ungar and Knox (given on April 23, 2004, and March 1, 2004, respectively) rejecting defendants' sovereignty claim. Thus, the decisions in Ungar and Knox, which found that no Palestinian state had come into existence as of March-April 2004, per force reflected "the state of things at the time of the action brought" by the instant plaintiffs, in January 2004. Dole Food, 538 U.S. at 478.5 Fourth, the Ungar and Knox courts rejected defendants' claim to meet the four-part test of statehood because the PA's constituent instrument, the Oslo Accords, severely limits the powers of the PA, which limitations those courts enumerated and analyzed in detail. See Ungar, 315 F.Supp.2d at 177-186; Ungar, 402 F.3d at 291-292; Knox, 306 F. Supp. 2d at 433-438. Thus, in order to demonstrate that there has been a change in circumstances that renders Knox and Ungar obsolete, defendants would have to assert and show ­ and this Court would have to find ­ that there has been a change in the provisions of the Oslo Accords. Defendants make no such claim because they cannot. The Oslo Accords have not been modified, much less abrogated, since the decisions in Ungar and Knox. Indeed, as recently as September 5, 2006, defendants themselves informed the United States District Court for the District of Columbia that:
In fact, the decision of the First Circuit in Ungar, which analyzed defendants' statehood claim de novo and in detail, and rejected it, was entered on March 31, 2005.
5

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The Palestinian Authority ... is specifically prohibited by its founding charter from engaging in foreign relations and maintaining foreign offices. See e.g. Article VI of the Agreement on the Gaza Strip and Jericho, dated May 4, 1994: "2.a. In accordance with the Declaration of Principles, The Palestinian Authority will not have powers and responsibilities in the sphere of foreign relations...". Defendants Memorandum in Reply to Plaintiffs Opposition and in Further Support of Defendants Rule 12(b) Motion, filed on September 5, 2006, in Klieman v. Palestinian Authority, Civ. No. 0411173 (PLF) (D.D.C.), Exhibit C, at 1-2 (emphasis added). The "Agreement on the Gaza Strip and Jericho" referred to here by defendants as the PA's "founding charter" is part of the Oslo Accords. See Ungar, 402 F.3d at 287; Knox 306 F. Supp. 2d at 433. Moreover, the limitation on foreign relations capacity which the defendants here admit is still in force today (in a pleading filed by them on September 5, 2006) is sufficient, standing alone, to doom defendants' claim to statehood, because the capacity to conduct foreign relations is one of the four cumulative conditions for statehood under international law, as discussed at length in Ungar and Knox. See Ungar, 315 F.Supp.2d at 181-182; Ungar, 402 F.3d at 287; Knox 306 F. Supp. 2d at 438. Indeed, in Gilmore, once the court determined that the defendants lack capacity to conduct foreign relations, it decided that there was no point in even examining the other cumulative conditions of statehood: Defendants fail to establish that Palestine has the capacity to engage in formal relations with other sovereign states. ... In light of Defendants' failure to satisfy one of the criteria for statehood, it is not necessary for the Court to examine Plaintiffs' remaining arguments for why Palestine does not possess the attributes of statehood as outlined in the Restatement. Gilmore 422 F.Supp.2d at 101.

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This Court, too, need go no further. Defendants' admission on September, 5, 2006, that the PA still lacks the capacity to conduct foreign relations ­ a lack of capacity which Knox and Ungar correctly found to defeat statehood ­ clearly shows that defendants remain estopped by the holdings in Knox and Ungar. Therefore, defendants' demand that this Court revisit their statehood claim is not only baseless but frivolous, since the limitations on the PA's capacities set forth in the Oslo Accords, which limitations the Ungar and Knox courts found to negate any claim to "foreign state" status, are still in force ­ as defendants themselves have expressly admitted to other federal courts.6 Fifth, even assuming purely arguendo that defendants were not precluded from re-litigating their statehood claim, the burden would be on them to make a factual showing that there has been some relevant change in the facts since the decisions in Knox and Ungar. "[T]he party who alleges sovereign immunity has the burden of proving that status". Ungar, 402 F.3d at 289 (citing Drexel Burnham Lambert Group, Inc. v. Comm. of Receivers, 12 F.3d 317, 325 (2nd Cir. 1993)). Defendants utterly fail to meet this burden, as shown below: Defendants claim that there are three circumstances that were "not addressed by prior decisions in ATA cases," Defs. Memo at 4, and which purportedly demonstrate their statehood.

6 The argument made by defendants in their memorandum in Klieman, i.e. that their lack of capacity to conduct foreign relations means that they cannot have a presence in the United States for "minimum contacts" purposes, was made by them in Ungar and expressly rejected by that court. See Ungar, 325 F.Supp.2d at 54 (rejecting the identical argument, and finding that "while the PA is prohibited from conducting `foreign relations' ... there is nothing in the Oslo Accords, as Plaintiffs point out, which prohibits the PA `from conducting other nondiplomatic activities (such as commercial, public relations, lobbying, or educational activities) through its representatives, officers and agents abroad' ... It is precisely these types of activities which have caused this court to find that both the PA and PLO have sufficient minimum contacts with the United States to allow the exercise of personal jurisdiction. Thus, the fact that the PA cannot conduct foreign relations does not mean that it cannot have minimum contacts with the United States. As Plaintiffs note, there are thousands of individuals and corporations, which like the PA are unable to conduct foreign relations, but which have sufficient minimum contacts with this country to allow the exercise of personal jurisdiction over them.") (internal cite omitted).

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The first circumstance cited by defendants is Israel's withdrawal of settlers from the Gaza Strip which, they claim, resulted in "the fully independent exercise of governmental functions and power" by the PA. Id. But the sole "evidence" adduced for this claim of "fully independent exercise of governmental functions" is a French news clipping from September 3, 2005, attached as Exhibit 5 to defendants' memorandum. Id. Aside from the fact that this news report says not a single word about the PA's powers and authority, this anonymous third-hand report has no evidentiary weight and is inadmissible. Thus, defendants provide no evidence whatsoever of their claim to have achieved sovereignty in Gaza. They have not, because they cannot. The plain fact is that since the decisions in Ungar and Knox in 2004, and especially since Israel withdrew its settlers from the Gaza Strip in 2005, there has been a severe deterioration in the PA's already-limited measure of control within the Gaza Strip and West Bank. Though plaintiffs have no burden whatsoever to make a showing on this point, even the briefest survey of the undisputed public record easily demonstrates that the PA's control in Gaza and the West Bank has only weakened, and that chaos and anarchy have set in: On September 15, 2005, the chairman of the PA complained of "the security anarchy, the armed chaos" plaguing Gaza. Exhibit D. The same day, the Washington Post noted that "the Gaza Strip is on the verge of anarchy." Exhibit E. On September 21, 2005, the head of Israel's security service warned that the "Palestinian Authority is crumbling". Exhibit F. On October 17, 2005, the New York Times reported in detail on the "disintegration of the Palestinian Authority". Exhibit G.

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November 23, 2005, "a senior Palestinian Authority official ... admitted that the PA has failed to take control of the former settlements in the Gaza Strip," and that local gangs and clans were in control. Exhibit H. Officials of the PA made similar statements on November 2, 2005. Exhibit I. Likewise, the Palestinian Centre for Human Rights has repeatedly reported ­ as recently as December 19, 2006 ­ on the "security chaos" and the "chronic failure" of the PA to exercise governmental control in Gaza. Exhibits J, K, L, P. On December 16, 2006, Secretary of State Rice noted the "lawlessness that is there in the Gaza, which largely derives from Hamas's inability to govern." Exhibit Q. Moreover, defendants' own papers note the fact that Israel continues to operate freely in Gaza even now. Defs. Memo at 4. Furthermore, the defendants themselves have repeatedly and publicly made clear over the two years since Ungar and Knox that no state of Palestine exists and that Israel's removal of its settlers from the Gaza Strip has effected no change in the status of that area, and that Gaza has descended into anarchy. For example, the PLO published a detailed legal analysis explaining that Israel's withdrawal from the Gaza Strip did not change its legal status as "occupied" territory. Exhibit M. This document is currently published on the official PLO website at www.nad-

plo.org/inner.php?view=facts_gaza_GAZA%20STILL%20OCCUPIED.7 Likewise, on August 27, 2006, the official spokesman of the PA published an article stating that "Gaza is suffering under the yoke of anarchy" and from "unimaginable chaos". Exhibit N.

Indeed, it appears that the sole forum in which defendants allege the existence of a Palestinian state, is in the courts of the United States. Defendants' argument before this Court is thus made in gross bad faith, since it contradicts their own public statements and admissions.
7

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On December 19, 2006, a PA governmental official described the situation in Gaza as "anarchy". Exhibit R. Thus, the PA is further than ever from the "sovereign governmental control" required as a condition of statehood (Ungar, 315 F.Supp.2d at 180) and it is patently clear that defendants have presented no evidence in support of their claim to a change in circumstances because in fact developments since Ungar and Knox have only distanced them from statehood.8 Next, defendants refer to a decision of an Israeli judge which, they claim, "recognized" that the PA satisfies the criteria of statehood. Defs. Memo at 4. In support of this argument, defendants attach two news reports about a decision issued on April 23, 2006, by a judge of the Jerusalem District Court, and a Hebrew-language copy of the decision ­ with no translation! Defs. Exhibits 2-4. Defendants refrained from attaching a translation of the Israeli decision because the decision does not say what defendants claim it does: In response to an identical attempt by defendants to rely on this Israeli decision in the Klieman matter, the Klieman plaintiffs filed an affidavit from an Israeli law expert explaining that

8

Furthermore, as noted above and as discussed in detail in Knox and Ungar, the extent of the PA's authority is limited as a matter of law by its constituent instrument, the Oslo Accords. Thus, in order to prove that the PA exercises sovereign governmental powers anywhere, defendants would have to prove (which they cannot) that the Oslo Accords have been modified or abrogated. Not only do defendants make no such claim , both the Al-Kidwa affidavit submitted as Exhibit 1 of their memorandum and the papers filed by them on September 5, 2006, in Klieman, confirm the continued force of the Oslo Accords. Additionally, the Oslo Accords provide that the parties "view the West Bank and Gaza Strip as a single territorial unit, the integrity and status of which will be preserved during the interim period", and that "Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations." Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, 36 I.L.M. 551, at Articles XXXI(7) and XXXI(8). Thus, in asking this Court to find that the status of the Gaza Strip is different from that of the West Bank, or that "the status of the West Bank and the Gaza Strip" together has changed, defendants are effectively asking this Court to breach the provisions of the Oslo Accords.

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the Israeli judge had expressly refrained from determining the PA's status, and had found that the PA was immune from certain proceedings in Israeli courts based on provisions of the Oslo Accords and Israeli domestic law governing the bilateral relationship between the PA and Israel. See Declaration of Avraham Colthof, Adv., filed in Klieman v. Palestinian Authority C.A. No. 04-1173 (D.D.C.), Dkt. # 57, Exhibit O. Moreover, that Israeli decision is non-final, is on appeal, and in any case is contradicted by a three-judge panel decision of the same court expressly holding that the PA does not meet the criteria of statehood and has no immunity. Id. Thus, contrary to defendants' misrepresentation to this Court, the Israeli decision does not find that the PA has achieved statehood, and in any case is founded on provisions of the Oslo Accords and Israeli domestic law which govern the bilateral relationship between Israel and the PA and which are obviously irrelevant to actions brought in U.S. courts. Finally, defendants point to the recent elections in the PA (in which Hamas came to power) as somehow proving that the PA is a state. This argument is absurd. The Elks' Lodge also holds elections, that does not make the Elks' Lodge a state. Furthermore, the PA previously held such elections, in January 1996, some eight years before the Knox and Ungar courts determined that the PA is not a state. Therefore, for the reasons set forth above, the Court should preclude defendants from relitigating their immunity claims in this Court on the basis of collateral estoppel, and adopt the holding in Knox and Ungar that the defendants are not immune from suit under the FSIA or 18 U.S.C. §2337. B. Alternatively, Defendants' Sovereign Immunity Claims Should Be Rejected on the Merits

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1.

Defendants' Argument

While defendants claim sovereign immunity from suit under the FSIA and §2337 of the ATA, they do not claim that either the PA or the PLO is a "foreign state" within the meaning of those provisions. Rather, defendants admit that "Neither the PA nor the PLO are, of themselves, states" (Defs. Memo at 17) and assert only that the PA and PLO are "essential elements" of an alleged third entity, a "State of Palestine" purported to have existed at least since 1949.9 As demonstrated by Knox and Ungar, and as shown below, the "State of Palestine" of which defendants claim to be part is a wholly non-existent figment of defendants' pleadings. Indeed, in order to bridge the gap between their argument and empirical reality, and to create a semantic "State of Palestine" where none exists on the ground, defendants' memorandum employs the term "Palestine" interchangeably to connote at least five different meanings: 1) As a geographic term which refers, alternately, to ancient Canaan,10 to the area of the Mandate for Palestine administered by the League of Nations and United Nations,11 and to the West Bank, Gaza Strip and East Jerusalem;12 2) As a synonym for the Arab state envisioned by UN resolution 181 in 1947 but never established;13 3) As a synonym for Egypt, Jordan and Syria;14

See e.g. Defs. Memo at 10: "The armistice border between the two states was called the Green Line . . . The area retained by the Palestinian state within the Mandate territory was reduced to approximately 23% of the total." (emphasis added).
9 10 11 12 13 14

Defs. Memo at 18. Id. at 5-10. Id. at 10-12. Id. at 8-9. Id. at 10 ("in the summer of 1967, Israel launched a major military attack against Palestine").

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4) As a synonym for the PLO;15 5) As a synonym for the PA;16 Thus, by employing the term "Palestine" to encompass whatever they wish whenever they wish, defendants attempt to establish a "State of Palestine" based entirely on a rhetorical tautology. Similarly, defendants' memorandum employs "creative capitalization" in order to mislead an unwary reader into believing that certain phrases ("State of Palestine," "Government of Palestine") are generally recognized proper nouns or defined terms of art. Defendants refer, for example, to "the Territory of Palestine as defined in S.C. Res. 242" (Defs. Memo at 17), falsely implying that "Territory of Palestine" is a defined term of art. In fact, neither that phrase, nor the term "Palestine," nor any definitions at all, appear in Resolution 242. Nor do defendants eschew blatant historical fabrications, such as their claim that the PLO was a party to the 1978 Camp David Accords. (Defs. Memo at 13).17 Defendants' prestidigitation notwithstanding, neither the PA nor the PLO is part of a "State of Palestine" because no such state exists beyond the four corners of defendants' pleadings. 2. Klinghoffer Disposes of Defendants' Pre-1991 Arguments

Defendants claim that a "State of Palestine" (of which defendants are allegedly "essential elements") existed long before the PA and the PLO were created, since as early as 1947 when the UN voted to partition Mandatory Palestine and/or since 1949 when Egypt and Jordan occupied the West Bank and Gaza and/or since Israel occupied these areas in 1967 (Defs. Memo at 7-13) and/or since 1988 when the PLO "declared the independence of the State of Palestine," which was "acknowledged"
See Id. at 13, at (b) and (c) where defendants describe the Oslo Accords as an agreement between Palestine and Israel. In fact, of course, the PLO was the signatory to the Oslo Accords, as acknowledged in (d) on the very same page.
15 16 17

Id. at 23-25. The only parties to the Accords were Israel and Egypt.

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by the UN and a number of countries, and resulted in the re-designation of the PLO as "Palestine" in the UN system. Id. at 29. The trouble with this entire theory is that in 1991--subsequent to and despite the events cited by defendants--the Second Circuit considered and rejected these selfsame claims and held it "quite clear" that no "State of Palestine" existed. Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 47-49 (2nd Cir. 1991). Thus, Klinghoffer disposes of defendants' assertion that a "State of Palestine" existed in 1947, 1967 or at any other time prior to 1991. As demonstrated below, the establishment of the PA, which was the sole salient event in the West Bank and Gaza since 1991, did not create a State of Palestine. 3. The PA Does Not Meet Any of the Criteria of Statehood; No "State of Palestine" Exists a. All Governmental Control in the West Bank and Gaza Strip Is Shared by Israel and the PA

The PA was created and constituted by, and functions within the normative framework of, the provisions of two agreements between the PLO and Israel, the Declaration of Principles on Interim Self-Governing Arrangements of September 13, 1993 ("DOP") and the "Isr