“Blank check” for genocide: Court dismisses Palestinian lawsuit against Biden administration over Gaza war

AMY GOOD MAN: That is Democracy now!democracynow.org. We are “Breaking Conventions: War, Peace, and the Presidency.” I’m Amy Goodman.

Turning now to Gaza, a three-judge panel of the U.S. Ninth Circuit Court of Appeals has dismissed a lawsuit accusing President Biden of complicity in the genocide in Gaza. The justices agreed with a lower court that courts cannot review foreign policy decisions made by the executive branch.

The Center for Constitutional Rights has sued President Biden, accusing him of failing to prevent genocide. The legal group sought an emergency executive order to prevent Biden, as well as Secretary of State Antony Blinken and Secretary of Defense Lloyd Austin, from providing Israel with more military funding, weapons and diplomatic support, according to the lawsuit filed on behalf of a group of Palestinian plaintiffs.

We now turn to Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights.

Can you comment on the significance of the court’s dismissal of your case, Kate?

Catherine GALLAGHER: Good morning, Amy, and thank you for having us on this very busy morning, bringing renewed attention to Gaza, where an ongoing genocide against Palestinians is taking place. Against this backdrop, we are not only deeply disappointed but also disturbed by the unanimous decision of the Ninth Circuit Court of Appeals to dismiss our case.

To step back and explain what this case is about: In November, Defense for Children International-Palestine, Al-Haq, three Palestinians living in the Gaza Strip under the genocidal attack, and five Palestinian Americans brought this case, portraying U.S. conduct as complicity or aiding and abetting genocide and a failure to prevent what was already a serious threat of genocide in November. So they brought the case in federal court, citing clearly established law—the duty to prevent genocide and the prohibition of aiding and abetting genocide, which is codified in U.S. criminal law. It’s in the Genocide Convention. And it’s been recognized, including by the Biden administration, as binding customary international law. So the plaintiffs turned to the courts and asked for an injunction to stop the dropping of two-ton bombs on Palestinian children, women and the entire population of Gaza. They wanted to prevent these weapons from being used in an airstrike to maintain a total siege that denies people food, fuel, energy and electricity, destroys health infrastructure and bombs hospitals and doctors. This is the case that was filed in November.

And that evidence has been backed up by a solid body of evidence over the course of many months of litigation, including the International Court of Justice’s findings that genocide is likely in Gaza, supported by testimony and reports from UN experts, affidavits from former State Department officials, expert opinions from the world’s leading genocide expert, William Schabas, and from historians of genocide and Holocaust studies here in the United States. All of this evidence suggests that there is indeed a plausible impending genocide in Gaza.

Against that backdrop, where there are strong factual and legal arguments and clear legal obligations for President Biden, Antony Blinken and Secretary of Defense Austin not to support genocide, the court yesterday abdicated its role and said that whenever foreign policy is involved, the courts must step back. They essentially said that foreign policy and war conditions – they didn’t mention genocide, they didn’t say this is an unfolding genocide in Gaza – but that war conditions are ones where there really is respect for the executive branch, and that it is not the job of the courts to hold executive conduct up against the law and to make statements when executive conduct goes beyond what the president and his cabinet members are permitted to do. So they said that this case must be dismissed. Essentially, they are being given a blank check to allow whatever conduct the executive branch wants on its own in times of genocide and war. The Supreme Court had warned against it in a series of cases after September 11 and declared that it did not exist.

AMY GOOD MAN: I want to play you one more thing – before we come to the end of this program, I want to play you a clip of Scott Anderson, the head of the UN refugee agency in Gaza, talking about the aftermath of the Israeli bombing on al-Mawasi on Saturday. The area had been designated as a security zone in Khan Younis. At least 90 Palestinians were killed in the attacks and hundreds more were injured. CNN reported that at least one US munition was used in the airstrike, identifying the tail fin of a joint direct attack munition — that is a JDAM — a Boeing-manufactured GPS-led kit. This is Scott Anderson.

SCOTT ANDERSON: On Saturday, I visited Nasser Hospital in Khan Younis after an attack in the Mawasi security zone. I have been in Gaza for nine months, and in those nine months I have seen some of the most horrific scenes. The health facility was overwhelmed. There were over a hundred injured. The smell of blood was in the air. And a health worker was mopping up pools of blood from the floor using only water, as there were not enough disinfectants or other cleaning agents to stop the spread of infection. There are not enough beds, hygiene products, sheets, mattresses or gowns. And many patients were being treated on the floor or on waiting benches without disinfectants. And that puts even treatable injuries at risk of sepsis and far more serious complications. Now the ventilator systems were not working due to electrical problems.

As I walked through the hospital and spoke to families and children, we saw young children who had both their legs amputated, children who were paralyzed and could not be treated because the hospital in Khan Younis did not have the necessary equipment, and others who had been separated from their parents. And we also saw mothers and fathers desperately searching for their children in the hospital because they were not sure if they were still alive. One mother I spoke to told me she was told to move to Rafah because it was safe there, and then she was told to move to al-Mawasi because it was safe there. And unfortunately for her and her family, that was not true. And I think that mother’s words remind us that nowhere in Gaza is safe, and no one is safe in Gaza. Three children in that family were affected by the explosion. One child was miraculously completely unharmed. Another child was paralyzed, and the other son was killed.

I mentioned that there is no security anywhere in Gaza. And I think we saw that over the weekend both with the events in Mawasi and the incident in Camp Beach where 25 more people were killed. And what is urgently needed is a complete ceasefire so that all parties to the conflict can protect civilians wherever they are, but especially in the UN schools and hospitals.

AMY GOOD MAN: This is Scott Anderson, Director of UN Refugee Aid in Gaza, Director of UNRWA Issues in Gaza. Katherine Gallagher, you’re a senior attorney at the Center for Constitutional Rights. Your case was just dismissed. Talk about what you’re going to do now and what that means, what it describes, what happened, you know, long after you filed your lawsuit, in al-Mawasi, an Israeli-designated security zone, where nearly a hundred Palestinians were killed and 300 more injured.

Catherine GALLAGHER: Amy, I wish the clip we just heard was an unprecedented report, but unfortunately it is stories like this, reports like this, that we have been hearing for nine months: Palestinians being herded from one supposedly safe zone to another and bombed, whether they are women or children. In this case, nearly 15,000 children have been killed and 20,000 have disappeared. We don’t know if they are buried under rubble or if they are being held in Israeli prisons. We don’t know where they are. Over the course of these nine months of hearing this report over and over again, we have also heard indications that U.S. weapons are being used. And U.S. weapons are continuing to be supplied.

So if we don’t have success in court yet – and we will consider our next options, whether in domestic or foreign courts or in international bodies where we continue to pursue this case – we will also present the case to those who are involved. I think it’s time for the arms companies – you mentioned Boeing in that clip – to stop supplying weapons. There are legal obligations and, frankly, moral obligations as well.

AMY GOOD MAN: We have five seconds.

Catherine GALLAGHER: We call on the Biden administration to at least fulfill its moral responsibility and stop aiding and abetting genocide.

AMY GOOD MAN: Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights.

And that’s the end of our show. Democracy now! is currently accepting applications for the position of Development Director to lead our fundraising team. For more information and to apply, visit democracynow.org.

Democracy now! is produced by Mike Burke, Renée Feltz, Deena Guzder, Sharif Abdel Kouddous, Messiah Rhodes, Nermeen Shaikh, María Taracena, Tami Woronoff, Charina Nadura, Sam Alcoff. Special thanks to Denis Moynihan. I’m Amy Goodman.