US federal court hears appeal in Gaza v. Biden case

On Monday, at a federal appeals court in San Francisco, a three-judge panel listened to arguments from Palestinian-Americans with families in Gaza and those they are suing, the U.S. administration.

The appeal hearing in the case of Defense for Children International-Palestine v. Biden comes five months after the case was heard by the court, three months after the start of Israel’s war on Gaza, when the death toll in the besieged enclave stood at around 10,000 people and now reached almost 40,000; most of the dead are women and children.

A growing number of academics and human rights groups have called Israel’s actions in Gaza genocide, a characterization rejected by U.S. President Joe Biden’s administration. Nonetheless, a group of families of those affected are seeking justice from the American justice system.

“This case asks whether the executive branch can tell the judiciary that it must stand aside, helpless, while the executive branch violates a binding law simply because the case concerns foreign affairs,” said Katherine Gallagher , an attorney at the Center for Constitutional Rights, representing the plaintiffs, who she noted collectively lost more than 230 family members in Gaza.

In her opening statement, she then described the situation in Gaza as a genocide made possible by lethal US munitions.

She emphasized that the separation of powers in the Constitution makes clear that the political question doctrine “requires judicial review to affirm that executive officials have violated specific legal obligations enshrined and approved by the political branches in the Genocide Convention , national criminal law and customary international law. including in cases involving foreign policy.

Responding to a question from Justice Consuelo Callahan, a George W. Bush appointee, about her argument about the role of the judiciary in foreign policy, Gallagher said: “When there is a clear legal obligation, including an obligation arising from ‘a treaty that the United States States are required to… the court has a role and responsibility… to evaluate the conduct of the executive branch against binding law. »

Looking at Gallagher’s argument from an opposing perspective, Judge Daniel Bress, a Donald Trump appointee, asked: “With this logic, you could turn any claim into a legal claim.” Any claim could be turned into a declaratory judgment claim, and that would have the courts essentially ruling the U.S. military. »

She responded that the judiciary has the responsibility to check executive misconduct, emphasizing that it focuses on genocide.

At the heart of this case is the concept of the political question doctrine, or duty versus discretion, which is generally interpreted to mean that a dispute of a non-legal character falls into the political, not legal, category. According to this doctrine, the executive branch is responsible for foreign policy and should not be interfered with by other governmental branches.

Max Baldi, a lawyer representing the U.S. government, later argued that courts lack jurisdiction to interfere in foreign affairs.

“The decision to grant military aid to a foreign country is a political decision intrinsically linked to the conduct of foreign relations,” he told the court.

In rebuttal, Gallagher said having executive power without legal constraints is a dangerous conclusion for a court to draw. “No king in this country,” she said, referring to a Supreme Court declaration. “The judiciary should serve as a check. And we call on the judiciary to do that today.”

A decision in this case is expected relatively soon. After the initial trial, Presiding Judge Jeffrey White, a Bush appointee, dismissed the case less than a week later, saying the court lacked jurisdiction over U.S. foreign policy because of the political question doctrine , although in the dismissal order he urged the US administration to “examine the results of its unwavering support for the military siege against the Palestinians in Gaza.”

Brittney Rezaei, chief counsel for the San Francisco Bay Area chapter of the Council on American-Islamic Relations, who wrote an amicus brief in support of the plaintiffs, said: The new Arabic that if the case was dismissed, the plaintiffs would have the opportunity to appeal the decision and could request a hearing with a larger panel of judges.

“Regardless of the outcome, the fact that this case is being brought to attention is historically very significant,” she said. “This is the first time that Palestinians have brought this type of case to federal court.”