At a federal appeals court in San Francisco on Monday, a panel of three judges listened to the arguments for Palestinian-Americans with families in Gaza and for those they are suing, the US administration.
The appeal hearing for the case of Defense for Children International-Palestine v. Biden comes five months after the case was heard in court three months into Israel's war on Gaza, when the death toll in the besieged enclave stood at around 10,000 and has now reached nearly 40,000; with most of the dead are women and children.
A growing number of scholars and human rights groups have described Israel's actions in Gaza as genocide, a characterisation US President Joe Biden's administration rejects. Nevertheless, a group of families of those affected are seeking justice through the US legal system.
"This case asks whether the executive branch can tell the judiciary it must stand aside powerless while the executive violates binding law simply because the case involves foreign affairs," said Katherine Gallagher, an attorney with the Center for Constitutional Rights, representing the plaintiffs, whom she noted have collectively lost more than 230 family members in Gaza.
In her opening statement, she went on to describe the situation in Gaza as a genocide that is enabled by lethal US munitions.
She emphasised that constitution's separations of powers makes clear the political question doctrine "requires that the judiciary review claims that executive officials have breached specific legal obligations enshrined in and approved by the political branches in the genocide convention, domestic criminal law, and customary international law, including in cases that involve foreign policy."
Responding to a question by Judge Consuelo Callahan, a George W. Bush appointee, on her argument on the role of the judiciary in foreign policy, Gallagher said, "When there is a clear legal duty, including one coming from a treaty that the United States is bound to... the court has a role and a responsibility... to assess executive conduct against binding law."
Looking at Gallagher's argument from the opposing perspective, Judge Daniel Bress, a Donald Trump appointee, asked, "By this logic, you could turn any claim into a legal claim. Any claim could be recast as a declaratory judgement claim, and that would have the courts essentially running the United States military."
She responded that the judiciary has a responsibility to serve as a check on executive misconduct, stressing that they are focused on genocide.
At the heart of this case is the concept of the political question doctrine, or duty versus discretion, which is generally interpreted to mean that a dispute that is within a non-legal character falls within the category political and not legal. Under this doctrine, the executive branch is responsible for foreign policy, and shouldn't be interfered with by the other government branches.
Max Baldi, an attorney representing the US government, then argued that the courts lacked jurisdiction to interfere in foreign affairs.
"The decision to grant military aid to foreign nation is a political decision that's inherently tangled with the conduct of foreign relations," he told the court.
In rebuttal, Gallagher said that having an executive branch with no legal constraints is a dangerous finding for a court to make. "No king in this country," she said, referring to a Supreme Court statement. "The judiciary should serve as a check. And we ask the judiciary to do that today."
A decision in this case is expected relatively soon. Following the initial trial, the presiding judge Jeffrey White, a Bush appointee, dismissed the case less than a week later, saying that the court did not have jurisdiction over US foreign policy due to the political question doctrine, though in the dismissal order, he urged the US administration to "examine the results of their unflagging support of the military siege against the Palestinians in Gaza."
Brittney Rezaei, a managing attorney with the San Francisco Bay Area chapter of the Council on American-Islamic Relations, which did an amicus brief in support of the plaintiffs, told The New Arab that if the case is dismissed the plaintiffs would have the opportunity to further appeal the decision, and they could request a hearing with a larger group of judges.
"No matter the outcome, the fact that this case is being brought forward is so important historically," she said. "It is the first time Palestinians have brought this kind of case to federal court."
