U.S. Law Will Likely Prevent the PLO From Reopening Its Office in Washington

Palestinian Authority (PA) Prime Minister Mohammed Shtayyeh’s call for the Biden administration to reopen the PLO Delegation office in Washington, DC, was echoed again this week by Congressman Andy Levin (D-MI) in his “Two-State Solution Act.” Yet the primary obstacle to reopening the office is not the White House, but the U.S. Anti-Terrorism Act (ATA).

The PLO first established a Washington office in 1994 after the Clinton administration waived an earlier statutory prohibition on doing so. The Trump administration closed the office in September 2018, citing Palestinian obstruction of the peace process.

Shortly thereafter, the Anti-Terrorism Clarification Act (ATCA) amended the ATA in a manner that created a separate and more difficult obstacle, on top of the waiver requirement, to reopening the PLO office.

Signed into law in late 2018, ATCA broadened the ability of U.S. victims of terrorism to sue both the perpetrators and the entities providing assistance to them. Congress passed ATCA in response to an appeals court’s dismissal of a ruling for the plaintiffs in a lawsuit against the PA by families of Americans killed or wounded in attacks during the second Palestinian intifada.

The victims included innocent American men, women, and children who were shot, bombed, or otherwise grievously harmed by Palestinian terrorism — including families visiting a Jerusalem shoe shop whose lives were turned upside down.

In 2016, the U.S. Court of Appeals for the Second Circuit dismissed an earlier trial court ruling on the grounds that the plaintiffs lacked personal jurisdiction — the principle that courts can exercise power over a party only if that party “has certain minimum contacts with the forum in which the court sits.” The Second Circuit found the PA did not meet that standard. Had the appeals court upheld the trial court’s ruling, the PA would have had to pay damages of $655 million.

In passing ATCA, Congress sought to overcome the appeals court’s objection by mandating that all those who receive certain types of U.S. assistance or who benefit from certain waivers are subject to personal jurisdiction and therefore face civil liability. Aware of the risks this created, the PA rejected U.S. assistance, effectively ending a number of successful and popular U.S.-Palestinian security assistance and cooperation programs.

In response, Congress quickly amended ATCA to allow foreign assistance to the Palestinians. But Congress deliberately preserved the link it had established between the waiver for the PLO Delegation office and the application of personal jurisdiction to the PA in federal court. To that end, a new law revised ATCA to specifically apply personal jurisdiction to any organization “maintaining or establishing any PA/PLO office, headquarters, premises, or other facilities or establishments in the United States,” among other activities. The law also requires the State Department to develop a process to resolve the settlement of claims.

The PLO’s Washington mission, before its closure, conducted business in the United States directly with U.S. companies and managed a public relations effort in support of the PA.

If the PA or PLO attempt to reopen the DC office, any U.S. company providing them services of any kind — from real estate to public relations — may find itself exposed to civil litigation.

The Biden administration may be tempted to grant Shtayyeh’s request for a waiver and to help the PA and PLO avoid lawsuits by asking the Department of Justice to issue statements of interest in support of the PA and PLO against American claimants. Instead, the administration should take this opportunity to support American victims of Palestinian terrorism by, at the very least, predicating the opening of any PA or PLO office on the provision of restitution to these victims and their families. For its part, Congress should press the administration to do just that.

Matthew Zweig is a senior fellow at the Foundation for Defense of Democracies (FDD), where he contributes to FDD’s Israel Program and Center on Economic and Financial Power (CEFP). For more analysis from Matthew, the Israel Program, and CEFP, please subscribe HERE. Follow Matthew on Twitter @MatthewZweig1. Follow FDD on Twitter @FDD and @FDD_CEFP. FDD is a Washington, DC-based, nonpartisan research institute focusing on national security and foreign policy.