OAKLAND, CAlif. (CN) — A federal judge has been tasked with determining whether the judicial branch can condemn or block the president from providing aid to Israel while it bombs Gaza, in a case getting at the heart of the separation of powers and political question doctrines.
A crowd gathered early Friday morning around Oakland’s federal courthouse ahead of arguments before U.S. District Judge Jeffrey White. It’s the first hurdle for the plaintiffs, who seek a preliminary injunction against the Biden administration on claims the government failed to fulfill its legal responsibility to "prevent the unfolding genocide of Palestinian people” and is complicit. The federal government has already moved to dismiss the case.
The judge restricted public access to the courthouse, which some learned about while standing in line. Federal marshals prevented anyone without valid identification from entering the courthouse. Hundreds gathered in the courtyard and the adjacent street with banners and chalk signs saying "Free Palestine" and "Cease-fire Now," and painted murals reading "No bombs" and "Biden complicit in genocide."
“It is the duty of this court to apply these laws intended to stall further death, displacement and starvation of the Palestinian people in Gaza, half of whom are children," Katherine Gallagher, Center for Constitutional Rights senior attorney, told White. She asked for an injunction blocking further U.S. ammunition specifically for Israel’s use on Palestinians in Gaza.
The plaintiffs filed their lawsuit in November 2023, saying the government violated the 1948 Genocide Convention by failing to intervene in Israel’s recent actions in Gaza and directly supporting them. The convention defines genocide as acts committed “with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group,” including through killing, inflicting serious bodily or mental harm upon a targeted group, or by “inflicting upon the group conditions of life calculated to bring about its physical destruction in whole or in part.”
Gallagher said the Fourth Circuit ruled that where there is a settled and binding international prohibition, the court can enforce such prohibitions to prevent human rights violations such as previous cases of torture and genocide. The Ninth Circuit has ruled that the right to a remedy under a cause of international law remains, and a claim of “aiding and abetting” violations of such law can be a question of civil liability, she added.
The government argues the claims are preempted by the political questions doctrine, limiting how courts can hear constitutional questions even if other requirements are met.
Justice Department attorney Jean Lin said the court could find that the plaintiffs’ claims are political questions, and not proceed further. A judicial finding against U.S. foreign policy could cause “international embarrassment” and undermine the foreign policy stance, she said.
“Where there's a direct challenge to U.S. foreign policy, the political question doctrine applies in full force here,” Lin said, adding that it is not appropriate for a district court to "manipulate how the president can make very sensitive policy decisions."
Gallagher responded: “A discussion of foreign policy which may be contrary to the views of an ally is not a reason to find that there is a political question.” She cited the International Court of Justice finding Friday which ordered Israel to limit deaths and damage in Gaza.
“Even when military affairs are implicated, binding law applies,” she said. “No one, including the president of the United States, is above the law.”
The judge asked Lin what the president could do if he ordered it to “stop aiding and abetting, I won’t say genocide, but the damage being inflicted on the Palestinian people.”
Follow @nhanson_reports
