A coalition of Palestinians is calling for a U.S. court to rehear a lawsuit filed against the Biden administration for its support of and complicity in Israel’s ongoing genocide in Palestine.

The lawsuit, Defense for Children International-Palestine v. Biden, was filed in federal court in California in November. A lower court dismissed the lawsuit, ruling that it did not have jurisdiction over the matter, a decision reaffirmed by an appeals court in July. Last month, a group of Palestinians, Palestinian Americans, and Palestinian human rights organizations filed a petition asking for a review of the case from all 11 judges on the 9th U.S. Circuit Court of Appeals. On Sept. 10, seven coalitions of legal scholars, humanitarian groups, former diplomats, and grassroots organizations filed amicus briefs in support of the petition to rehear the case. 

The plaintiffs attest that President Joe Biden, Secretary of State Antony Blinken, and Secretary of Defense Lloyd Austin have failed to prevent the Israeli government’s genocide that has raged on since last fall and killed more than 41,000 Palestinians, a toll many experts already consider to be a severe undercount. The case also asks the court to order the Biden administration to halt both diplomatic and military support to Israel as legally obligated under international and federal law. 

“We have lost so many people, but there are still many more who are living, and we owe it to them to do everything possible to stop this genocide,” Mohammad Herzallah, one of the plaintiffs, said in an initial statement released by the Center for Constitutional Rights (CCR), a nonprofit legal advocacy organization serving as co-counsel on the case. “I have done everything in my power: I have participated in protests, sit-ins, wrote letters to my representatives, and civil disobedience. Now I am asking the courts to end this ongoing genocide.”

Plaintiffs in the case extend beyond just Defense for Children International-Palestine, a Palestinian human rights organization. Other plaintiffs include physician Dr. Omar Al-Najjar, poet and activist Ahmed Abu Artema, and researcher Mohammed Ahmed Abu Rokbeh, all of whom currently live in Gaza, as well as Mohammad Monadel Herzallah, Laila Elhaddad, Waeil Elbhassi, Basim Elkarra, and Ayman Nijim, who are all U.S. citizens with family in Gaza. According to documents shared by CCR, these plaintiffs had collectively lost 100 family members when the case was filed last November—a toll that surely has risen in the almost year since. 

“With this ruling, the panel has said our courts are too small to do the job they were assigned at the founding—to be a co-equal branch in our government and a check and balance on presidential power,” Pam Spees, a senior staff attorney at CCR, said in a press release. “If the Ninth Circuit doesn’t course correct here, it will be giving this and future presidents license to violate the law at will in the realm of foreign relations.” 

The ‘political question’ doctrine and accusations of bias

Plaintiffs and CCR have faced opposition at almost every turn. In December 2023 and again in January 2024, the U.S. government moved to dismiss the case. On Jan. 31, the federal court found that the testimony offered by plaintiffs and experts indicate that “the ongoing military siege in Gaza is intended to eradicate a whole people and therefore plausibly falls within the international prohibition against genocide” and that the Biden administration should reexamine its “unflagging support” for Israel. But the court ultimately still dismissed the case. 

The court’s dismissal came under two grounds, the first being the now hotly contested “political question doctrine.” The doctrine argues that some questions and controversies are by their nature political rather than legal inquiries. Therefore, the court does not have jurisdiction to rule over them. In the case regarding support to Israel, the court contends that this particular foreign policy decision is not subject to judicial review. Further, the court argued that the specific remedies that the plaintiffs seek sit outside of the court because they ultimately cannot influence Israel’s behavior. 

However, in one of the amicus briefs filed this week, an assembly of constitutional, federal, and international law scholars argued that the court “badly misinterpreted the political question doctrine.”

The collective wrote that plaintiffs were not asking the court to make a moral judgment about the Biden administration’s policies; instead, they were asking the court to decide whether the administration’s foreign policy violated longstanding federal laws. 

“These allegations do not implicate the political question doctrine, and the panel judgment to the contrary is mistaken,” the brief states. “Worse, it undermines a vital and hard-won judicial role in interpreting and applying federal law that restrains executive action in foreign affairs.”

The seven amicus briefs filed outline the devastation experienced by Palestinians both living in Gaza and abroad, contest the grounds for the case’s dismissal, and express support for a rehearing en banc, meaning the case would be heard by all 11 judges on the court. 

Accompanying the plaintiffs’ petition are concerns around potential biases amongst judges still on the case. In June, plaintiffs successfully petitioned for the recusal of Judge Ryan Nelson, who in March participated in a trip to Israel to meet with Israeli government and military officials as a delegate of the World Jewish Congress. The August petition for the rehearing included a request to disqualify Judges Patrick Bumatay and Lawrence VanDyke, who also joined Nelson on the trip to Israel. 

‘Exceptional Importance’ 

In order to receive a rehearing en banc, a case’s original ruling must have resulted in an inconsistency with other court rulings, a criteria that both CCR and supporters of the plaintiffs say applies here due to the misinterpretation of the political question doctrine. A qualifying case must also however involve a matter of “exceptional importance”—a stipulation that plaintiffs and civil rights organizations contend that Defense for Children International-Palestine v. Biden exceeds given the devastating impact of Israel’s attacks on Palestine. 

In an amicus brief filed by 10 civil rights and grassroots organizations that advocate for the rights of Black, Arab, Middle Eastern, Muslim, and South Asian communities, the authors tease out the psychological distress experienced by Palestinians, specifically the 19 affected individuals they consulted with directly. The brief details the impacts of starvation, of losing entire branches of one’s family tree, of having to witness the murders of their loved ones or recover their bodies, the destruction of Palestinian culture and physical institutions, the degree to which the U.S. has helped provide weaponry that supports Israeli attacks, and the “stigma associated with being viewed by your own government as less deserving of protection than others.”  

“The depravity of the United States’ support of this genocide grows starker every day,” the coalition wrote. “During the pendency of this case, famine has spread in Gaza, and Israel’s violent campaign has expanded to the West Bank. This catastrophe cannot go on one day longer.”