Judge slams Obama in Palestinian terror suit

A federal judge is slamming the Obama administration for refusing to take a position in a lawsuit brought against the Palestinian Authority in connection with an alleged terrorist attack in 2000 that claimed the life of a 25-year-old American, Esh Gilmore.

In an opinion filed Monday, U.S. District Court Judge Gladys Kessler complained that the Obama administration was "particularly unhelpful" and the State Department "mealy-mouthed" in refusing to provide official guidance on the complex foreign policy issues involved in the case. Kessler was attempting to decide whether the Palestinian Authority should be granted a trial it recently sought or forced to pay a default judgment because of past decisions not to defend itself against the lawsuit. Gilmore's family claims the Palestine Liberation Organization's Tanzim branch was responsible for his death in the shooting outside an Israeli government office in East Jerusalem.

"The Executive Branch of the United States has been particularly unhelpful in resolving this difficult Motion," Kessler wrote. "The Court requested that the State Department file a Statement of Interest in order to understand the international ramifications of any order it might enter, and to be apprised of our Government’s position about such ramifications. In this case, as in Knox v. The Palestinian Liberation Organization... the State Department declined to do so. Instead it filed the identical mealy-mouthed Notice there as it did in this case. That Notice, for all practical purposes, said nothing and certainly provided no substantive guidance whatsoever to the Court regarding the Government’s position or concerns about any impact a decision might have on the delicate situation in the Middle East."

The U.S. government's two-page filing last month in the Gilmore case is, indeed, vague. After explicitly declining to take a formal position, the government lawyers said this: "The United States supports just compensation for victims of terrorism from those responsible for their losses and has encouraged all parties to resolve these cases to their mutual benefit. At the same time, the United States remains concerned about the potentially significant impact that these default cases may have on the defendants’ financial and political viability."

Kessler seemed to be arguing that it was unfair for the executive branch, which under Obama and his predecessors so often urges judges not to interfere in matters of national security and foreign relations, to cast the court adrift in this case. "It is fair to say that making any predictions about developments in the Middle East is a risky and speculative undertaking, far beyond the competence of federal judges," Kessler wrote.

Ultimately, Kessler ruled that a trial should go forward, rather than forcing the Palestinian Authority to pay a default judgment. "Given the long and violent history in this area of the world, the Court is reluctant to take any action that might hinder the progress of such negotiations, tedious and drawn out as they have been, or to exacerbate existing tensions between adversaries in the region who may now desire to defuse those tensions," the judge wrote. She called the current state of Middle East peace talks "quiescent."

Spokespeople for the State Department, Justice Department and National Security Council all declined to comment on Kessler's griping.

My recollection from past reporting is that the Bush administration was no more helpful to the courts on these questions because of an apparent unwillingness to antagonize either terrorism victims, on the one hand, or Palestinian leaders, on the other. One document on file in the Gilmore case shows that in 2007, Secretary of State Condoleezza Rice urged the Palestinian Authority to respond to the cases in U.S. courts or negotiate with the families who filed them.