After Historic Ruling, Lawyers Vow to Keep Fighting Biden Over Complicity in Gaza Genocide

A federal judge declared on Wednesday that Israel is plausibly engaging in genocide in Gaza and implored the Biden administration to reconsider its “unflagging support” for Israel’s attacks on Palestinians.

The comments came in a ruling in response to a lawsuit that accused President Joe Biden and senior administration officials of complicity in and failure to prevent Israel’s genocidal acts, as required by both international and U.S. law. The Center for Constitutional Rights, a nonprofit legal organization, filed the lawsuit on behalf of two Palestinian human rights organizations and Palestinians in Gaza and in the United States. 

The judge, Jeffrey S. White of the U.S. District Court for the Northern District of California, dismissed the lawsuit on jurisdictional grounds —citing legal doctrine that prevents the judiciary from interfering in matters of foreign policy. But his strong-worded statement is unprecedented, as was his unusual decision to allow more than three hours of testimony from Palestinian plaintiffs during a powerful hearing last week, including a doctor calling into court from a Gaza hospital hallway.

During that hearing, which took place in Oakland just hours after the International Court of Justice in The Hague ruled that Israel had plausibly engaged in genocide in Gaza, White described the case as the “most difficult” of his career.

“It is every individual’s obligation to confront the current siege in Gaza, but it [is] also this Court’s obligation to remain within the metes and bounds of its jurisdictional scope,” he wrote in his decision to dismiss the case. “There are rare cases in which the preferred outcome is inaccessible to the Court. This is one of those cases.”

Justice Department attorneys had asked the judge to dismiss the case on a technicality, citing the jurisdictional question, but did not challenge the suit on its merits. In court last week, government lawyers did not cross-examine witnesses, with the exception of a scholar of the Holocaust who testified that Israel’s actions in Gaza amounted to genocide. 

At a press briefing on Thursday afternoon, State Department spokesperson Matthew Miller declined to comment on the lawsuit and the judge’s ruling but said that “it remains our conclusion that the allegations of genocide are unfounded.”

Brad Parker, a senior adviser at Defense for Children International Palestine, one of the two organizational plaintiffs in the case, said that the decision was “disappointing,” but that the judge’s findings — and the fact that such a hearing could take place in a U.S. courtroom in the first place — were of “significant, historic meaning.”

“We know that U.S. weapons are integral in the genocide.”

“We know that U.S. weapons are integral in the genocide that we’re documenting as a Palestinian human rights organization,” Parker told The Intercept. “But similar to the historic ICJ decision and the increasing recognition that what Israel is carrying out is a genocide and the U.S. is complicit in those genocidal acts, I think the strong language from a U.S. federal court judge increasingly works to isolate Israel’s actions and also bring pressure on the Biden administration to change course.” 

“It’s clear what President Biden’s complicity is in the destruction of Palestinian life,” Parker added. “And we’re committed to doing everything that we can to end that complicity, and ultimately end the genocide.” 

Next Steps 

Attorneys for the plaintiffs responded to the ruling by stressing the judge’s “historic rebuke” of U.S. government support for Israeli crimes. They also disputed the court’s jurisdictional finding, indicating an argument for a potential appeal or request for the case to be reconsidered.

Ahmed Abofoul, a Palestinian attorney at Al Haq, the second organizational plaintiff, testified in court last week about the killing of more than 80 of his relatives since the beginning of the war. During a press conference on Thursday, he said that the dismissal on a technicality “doesn’t mean that this was not a victory.”

“The judge acknowledged that genocide is being committed,” Abpfoul said, “and basically what he was saying is just that his hands are tied.” 

Katherine Gallagher, a senior attorney at CCR and lead counsel on the case, said, “The legal conclusions are there: The U.S. is clearly on notice that its actions are in violation of both international and domestic law.”

In his opinion, White cited an earlier suit, also brought by CCR, against Caterpillar, the manufacturer that provided the bulldozer used by an Israeli soldier to kill American peace activist Rachel Corrie in Gaza in 2003. That case was also dismissed on the basis that policy decisions are exempt from judicial review, with an appeals court upholding the dismissal. CCR attorneys argued that their case against the Biden administration is different, pledging to explore all legal avenues. 

“There is a legal distinction,” Gallagher said during the event on Thursday. The Biden administration’s support for the war in Gaza is more than just “rubber-stamping or approving the use of foreign military financing for a direct commercial sale,” she said. “We have the president of the United States knowing that there is an ongoing genocide and continuing to provide ‘unflagging support’ to Israel.” 

Still, Gallagher implied that the lawsuit against Caterpillar could provide a road map for future legal action. “Companies are now on notice because of the ICJ judgment and the U.S. court judgment if they weren’t before, which they should have been. Those companies also have obligations to not further the genocide by continuing to sell and supply weapons that are being used to kill Palestinians every day.” 

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