When historians look back on the war against terror, they might yet see the decisive element in the West’s victory as the entry into the fight of America’s tort bar. That’s one prospect raised by the Supreme Court’s ruling allowing American terror victims to use the federal courts to hold accountable for facilitating terrorism the Palestinian Authority and the Palestine Liberation Organization. Critics call it “pay for slay” — financial incentives for terrorist acts.

In the high court’s unanimous opinion this morning in Fuld v. Palestine Liberation Organization, Chief Justice Roberts points to Congress’s finding that these groups have “taken credit for, and been implicated in, the murders of dozens of American citizens abroad.” Partly for that reason, Congress in 1990 passed an antiterrorism act allowing Americans killed or harmed by “an act of international terrorism” to seek recourse in federal courts.

Passage in 2019 of the Promoting Security and Justice for Victims of Terrorism Act broadened the potential liability for groups for, say, “paying salaries to terrorists serving in Israeli prisons, as well as to the families of deceased terrorists,” as the law puts it. The family of an Israeli-American, Ari Fuld, who was murdered by a Palestinian terrorist in 2018, was among those relying on the federal laws to file suits against the Palestinian bodies.

Lower courts questioned whether the tribunals had authority over the Palestinian groups, and found that the law breached the organization’s Fifth Amendment guarantee of due process. A dissenting voice at the Second Circuit was Judge Steven Menashi. He reckoned that his colleagues wrongly doubted the federal courts’ “extraterritorial reach,” so their holding was incorrect on “the due process standards limiting the exercise” of the courts’ authority. 

Judge Menashi’s appraisal, cited by Chief Justice Roberts, was vindicated by the Nine’s ruling. The chief points out that “the Constitution confers upon the Federal Government — and it alone — both nationwide and extraterritorial authority.” That bolstered the view that federal law implicates the Palestinian groups far from America’s territory. To suggest otherwise implies an “imaginary constitutional barrier,” the chief said, citing an earlier case.

Chief Justice Roberts stressed Uncle Sam’s “interest in holding accountable those who perpetrate” acts of violence against Americans — who, he writes, “even when physically outside our borders, remain ‘under the particular protection’ of American law.” That stirs echoes of the ancient phrase “civis Romanus sum” — “I am a Roman citizen” — as a kind of talisman of security for Romans wherever they traveled in a dangerous world. 

The high court also disagreed with lower court findings that the 14th Amendment’s due process protections — which bind the states — crimped the federal courts. Even so, the Nine declined to weigh in on the “outer bounds of the Federal Government’s power, consistent with due process, to hale foreign defendants into U. S. courts.” Instead the majority confined themselves to resolving the more limited jurisdictional dispute before them in this case.

“It is permissible for the Federal Government,” Chief Justice Roberts reckons, “to craft a narrow jurisdictional provision that ensures, as part of a broader foreign policy agenda, that Americans injured or killed by acts of terror have an adequate forum in which to vindicate their right” to “compensation” under the Antiterrorism Act. That’s because, the chief explains, the fight against terrorism is “an urgent objective of the highest order.”

The court’s ruling reopens the door to a measure of justice for Fuld’s family, though they insist “we’d rather not have this money,” as the victim’s brother has told the Sun. “What’s more important than the money is the symbolism of them having to pay us. It’s the very fact that our enemies will finally be held accountable.” That principle, writ large, could shake, and ultimately destroy, backers of terrorism in Palestine and elsewhere around the globe.