A U.S. federal appellate panel dismissed a case brought by Palestinians accusing senior Biden administration officials of complicity in Israeli genocide in Gaza. The three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco affirmed a lower court’s dismissal of the lawsuit against President Joe Biden, Secretary of State Antony Blinken, and Defense Secretary Lloyd Austin. The lawsuit was led by the Center for Constitutional Rights (CCR) on behalf of several Palestinian groups and individuals.
CCR attorney Katherine Gallagher, who represented the plaintiffs, said the dismissal “essentially gives the blank check to carry out any kind of conduct that the executive wants in times of genocide, in times of war.” Gallagher’s comments came during an interview on Democracy Now! following the court’s decision.
The lawsuit, originally filed in November in the U.S. District Court for the Northern District of California in Oakland, sought to stop the Biden administration from aiding Israel’s bombardment of Gaza. U.S. weapons have played a critical role in Israel’s war, which Palestinian and international agencies say has killed, wounded, or left missing more than 137,500 Gazans.
The lower court found that “the current treatment of the Palestinians in the Gaza Strip by the Israeli military may plausibly constitute a genocide in violation of international law,” but dismissed the case on jurisdictional grounds in late January. The 9th Circuit subsequently granted an expedited appeal, which was heard in June.
Plaintiff Waeil Elbhassi expressed profound disappointment with the decision. “It is just unfathomable, while we count our dead, witness the total obliteration of Gaza—aided by our own government,” Elbhassi said. “As the death toll keeps rising and we see nonstop images of carnage during this livestreamed genocide, the court washes its hands of our case. We turned to the law to help stop the horror, and the court chose to do nothing. We are beyond disappointed. We have no choice but to continue to fight for our people. Our very existence is at stake.”
Israel’s conduct in Gaza, including alleged forced starvation that has fueled deadly famine in parts of the besieged strip, is under investigation by the International Court of Justice in a genocide case brought by South Africa. Additionally, International Criminal Court Chief Prosecutor Karim Khan has applied for warrants to arrest Israeli Prime Minister Benjamin Netanyahu, Israeli Defense Minister Yoav Gallant, and three Hamas leaders for crimes including extermination allegedly committed on and after October 7.
Today, a three-judge panel of the Ninth Circuit Court of Appeals affirmed the dismissal of this historic lawsuit. The judges agreed with the lower court that there is no role for the courts in reviewing Executive branch conduct that touches on foreign policy under the “political question doctrine,” even when that conduct is alleged to breach the domestic and international law prohibition against aiding and abetting the intentional destruction of a people—genocide.
“In a deeply troubling ruling that ignores both the legal framework put in place after World War II to ensure that a people is not targeted for destruction because of their identity and the horrifying facts on the ground in Gaza, the three-judge panel effectively gives the president a blank check whenever foreign policy is invoked, contrary to Supreme Court precedent and binding domestic and international law,” said CCR Senior Staff Attorney Katherine Gallagher.
Today’s ruling affirms the dismissal of an extraordinary case that featured rare testimony from Palestinian and Palestinian-American victims of Israel’s ongoing genocide against the Palestinian population in Gaza. With unconditional U.S. support, Israel has, since October 8, killed an estimated 38,650 people in Gaza, including at least 14,000 children, injured nearly 90,000 Palestinians, forcibly displaced two million, and inflicted conditions of life leading the entire population of Gaza to be at the brink of famine, as the genocidal assault—and the flow of U.S. weapons—continues.
Plaintiff Basim Elkarra stated, “We tried every recourse to save our families and our people from this genocide: petitions, protests, lawsuits—and this administration has ignored us and supported this genocide. While disappointed in this decision, we will continue to hold Biden and this administration accountable, if not legally, then politically.”
In the oral arguments in June, government lawyers did not dispute that Israel’s assault on Gaza constitutes a genocide. Instead, they invoked the “political question” doctrine, arguing that “foreign policy” decisions—even a decision to enable genocide by providing weapons used to kill tens of thousands of Palestinians—are not subject to judicial review.
The plaintiffs’ lawyers, from the Center for Constitutional Rights and Van Der Hout LLP, countered that the political question doctrine cannot be invoked when policy decisions cross over into violations of the law—a line that courts must enforce under the system of separation of powers. Throughout U.S. history, from the founding era to the post-9/11 “enemy combatant” cases, courts have determined whether foreign policy decisions violated domestic and international law, and they must do so in this case. Aiding and abetting genocide can never be a mere policy choice, the lawyers said.
Supported by evidence, including confirmations of the continued flow of weapons with no “red lines” by the Biden administration and an affidavit from former State Department official Josh Paul, plaintiffs pointed out that the sheer amount of U.S. support makes Israel’s capacity to carry out the genocide manifestly dependent on the United States.
The lawsuit asked the court to enjoin the Biden administration from providing weapons and other forms of support for Israel’s genocide in Gaza. In January, Federal Judge Jeffery S. White largely endorsed the factual case put forward by the plaintiffs, and his statement that Israel’s assault was a plausible case of genocide echoed the historic ruling by the International Court of Justice (ICJ). The ICJ has since issued two more sets of provisional measures in the South Africa v. Israel genocide case and a ruling in a related case that warns states, like the United States, not to breach their obligations to prevent genocide when supplying Israel with arms.
The three-judge panel reached its decision despite arguments in eight amicus briefs—from legal scholars, former diplomats and servicemembers, human rights groups, and experts on the use of starvation as a tool of war—filed in support of the appeal.
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