Ted Olson: Why won’t the Trump administration defend a key anti-terrorism law?

Nearly every person to hold the office of president has recognized that the single most important job of our government is to keep us safe.  So why is the Trump administration now acquiescing in the evisceration of one of America’s most important counter-terrorism laws?

International terrorism is a constant threat to our safety at home and abroad.  Every year, some of the millions of Americans who travel, study, or reside abroad are killed and injured by terror attacks outside the United States.

The threat posed by international terrorism is not new.  Two centuries ago, pirates from the Barbary States in northern Africa regularly raided American merchant vessels traversing the Mediterranean Sea.  The Barbary Pirates enslaved their captive American crews and held them for ransom.  America responded by building a navy and sending the fledgling the United States Marine Corps to “the shores of Tripoli.”    

In the 1980s, America faced a new threat from terrorists of the Palestine Liberation Organization (PLO) —one that had echoes of the past.  In 1985, Palestinian terrorists hijacked the Italian cruise ship Achille Lauro in the Mediterranean Sea.  When their demands were not immediately met, the hijackers shot wheelchair-bound American Leon Klinghoffer and dumped his body into the sea.   

Congress soon recognized that it would need more than the Navy and the Marines to fight this new breed of pirate.  Soon after the Achille Lauro hijacking, a young professor at Yale Law School named Harold Koh had introduced the idea of allowing victims of terrorism to sue their attackers.  By making terrorists “pay up,” these lawsuits not only would compensate the victims for their injuries, but it also would disrupt the terrorists’ financing, perhaps preventing future attacks. 

According to this court, if a foreign terrorist kills and maims “indiscriminately” and without regard to nationality—as is the case in practically every suicide bombing—it is unconstitutional to make the terrorists “pay up.”

Congress enacted this suggestion into law as part of the Anti-Terrorism Act of 1992.  This law allows “[a]ny national of the United States” injured in acts of “international terrorism” “outside” the United States to bring a lawsuit in federal court against their terrorist attackers.   

Unfortunately, a court of appeals in New York recently gutted this important counter-terrorism measure.  In a case brought by eleven American families victimized by PLO-sponsored suicide bombings and mass shootings in Israel, the court decided that subjecting foreign terrorists to lawsuits in U.S. courts violates the terrorists’ rights under the United States Constitution to “due process of law.” The court ruled that victims can sue only if they can show that the terrorists targeted them specifically because they were American, or somehow implicated American facilities or property in their attacks.  So, according to this court, if a foreign terrorist kills and maims “indiscriminately” and without regard to nationality—as is the case in practically every suicide bombing—it is unconstitutional to make the terrorists “pay up.”

I represent those eleven American families and we have asked the Supreme Court to review this very troubling decision.  We are supported in that effort by the entire House of Representatives, which has sounded the alarm over the lower court’s ruling, observing that it “renders [the Anti-Terrorism Act] ineffective with respect to the overwhelming majority of international terrorist attacks within its scope” and “frustrates Congress’s intended exercise of legislative power to combat terrorism.”  We also have the support of the Anti-Terrorism Act’s original sponsor, Senator Charles Grassley, and 22 other Senators who span the entirety of the political spectrum—from Elizabeth Warren to Ted Cruz.

But where is the Trump administration?  In June of last year, the Supreme Court requested that the solicitor general submit the views of the United States as to whether the Court should accept the case for review.  This should have been an easy call.  As long as we have had solicitors general, it has been recognized that they have a duty to defend the constitutionality of Acts of Congress if there is a reasonable argument to do so.  And that duty has maximum force where, as President Obama’s solicitor general wrote, “the statute in question … is a vital part of the Nation’s effort to fight international terrorism.” 

Months went by with no answer from the administration.  It ultimately took the Trump administration eight months to file its brief.  Astonishingly, the brief sided with the PLO and against American victims of terrorism.  The administration urged the Supreme Court to leave undisturbed the New York court’s amputation of the Anti-Terrorism Act. 

This would seem to be an abandonment of the Justice Department’s traditional practice of defending Acts of Congress and will seriously degrade one of our nation’s key tools in defending against and responding to international terrorism.  We are hopeful that the Supreme Court will agree to consider this case despite the Trump administration’s opposition.  The bipartisan congressional judgment concerning how to protect Americans from terrorists deserves a hearing in the nation’s highest court.   This is the last hope for the vitality and utility of the Anti-Terrorism Act.

Mr. Olson served as the 42nd Solicitor General of the United States, from 2001-2004.  He represents the petitioners in Sokolow v. Palestine Liberation Organization.