The case of Joseph Jesner v. Arab Bank is a bid by about 6,000 Israelis who have been harmed by Palestinian terrorism to get redress from Jordan’s Arab Bank, which delivered money to the groups carrying out the acts.
Yet when the U.S. Supreme Court heard arguments in the case on Oct. 11, the contretemps most often cited was between a French official and a French adventurer in Philadelphia in 1784.
Jesner, in which the petitioners allege that Arab Bank provided financial services to various terrorist groups, is an important test of corporate liability abroad for acts of terror. Lawyers for Jesner, the father of a 19-year-old man murdered in a Tel Aviv bus bombing in 2002, and the other Israeli litigants who have joined the suit say a 1789 statute known as the Alien Tort Statute allows them to sue the Arab Bank for facilitating terrorist attacks between 1995 and 2005.
That argument, which has been rejected by lower courts, reached the Supreme Court in part because it addresses a divide between the court’s conservative and liberal justices over the modern application of a law initiated by events of 1784. That’s when the top French diplomat in the country at the time, a nobleman named François Barbé-Marbois, allegedly was assaulted by an adventurer named Charles Julian de Longchamps.
A disagreement arose as to whether Longchamps was to be tried in Pennsylvania or France. The French government was not happy that Barbé-Marbois lacked the means of civil redress. A Pennsylvania court sentenced Longchamps to two years in prison, and the controversy is believed to have led to the passage of the Alien Tort Statute, allowing a U.S. court to consider lawsuits between non-U.S. parties if the issues “touch and concern” the United States. Congress appeared eager to show that the baby nation was ready, as the statute put it, to consider tort, or civil wrongs, “committed in violation of the law of nations or a treaty of the United States.”
The statute lay dormant for nearly two centuries, but was revived in the 1980s when human rights advocates used it to sue Latin American torturers on behalf of their victims, also Latin Americans.
On Oct. 11, the high court’s liberal justices seemed sensitive to arguments advanced by the human rights community, as well as an array of former counterterrorism officials, that the United States should continue to play a robust role in policing human rights abuses wherever they occur.
The conservative justices worried about judicial overreach, in this case into matters best left to the foreign policies of the administration of the day.
Both concerns kept circling back during oral arguments to the 1784 encounter in Philadelphia.
Conservatives wondered whether the writers of the 1789 law would have considered corporations like the Arab Bank as individuals.
“I mean, we passed this statute to avoid foreign entanglements because we wanted to provide a forum for someone like the French ambassador in the Longchamps affair,” Chief Justice John Roberts said to Jeffrey Fisher, the attorney appearing on behalf of the plaintiffs, “but I’m wondering if extending it to corporate liability is, in fact, going to have the same problematic result of increasing our entanglements, as it obviously has here with respect to the government of Jordan.”
Justice Stephen Breyer, one of the liberal flank’s three Jewish justices, said that according to current international norms — the “law of nations” to which the 1789 statute refers — a corporation could be considered liable under the statute. He alluded to the fact that the Arab Bank has offices based in New York, making it subject to redress under an anti-terrorism treaty.
“Now when you look at this case, what [the plaintiffs] have cited is, for example, the international convention for the suppression of the financing of terrorism, which we’ve ratified, which says that states must take necessary measures to enable a legal entity located in its territory or organized under its laws to be held liable,” he said, addressing the Arab Bank’s lawyer, Paul Clement. “That sounds like a corporation. And it sounds like the relation is the same as the international norm to the individual who struck the French ambassador in the street.”
Fisher pushed back against Roberts’ theory that allowing the case to proceed could complicate U.S. foreign policy, arguing that should the courts quash the plaintiffs’ bid to seek redress, Israel — like France in the 1780s — would have cause for alarm at how the United States conducts its foreign policy.
“Imagine Israel’s view if our financing — if our entire finance system — could be used and accessed … to commit terrorist attacks, make them easier, make them more deadly, make the funding more effective,” the attorney said. “If suits like this were taken away, Israel and countries like it might well have a complaint to the United States.”
The Trump administration, not weighing in on either side, nonetheless has filed a brief. A Justice Department lawyer, Brian Fletcher, said the government would prefer that the court preserve the use of the 1789 statute for use against corporations, but also argued that Jesner did not meet the standard of U.S. involvement to merit consideration in U.S. courts.
The case will decided before next July.
The courts are separately considering a lawsuit against the Arab Bank brought by U.S. litigants who were victims of terrorist attacks in Israel, the West Bank and the Gaza Strip.
Barbé-Marbois, for what it’s worth, survived whatever wounds were inflicted by Longchamps and went on to negotiate the Louisiana Purchase. He died in 1837 at the ripe old age of 92.