A federal judge on Wednesday dismissed a lawsuit by Palestinian Americans who sought to force the White House to withdraw support for Israel’s bombardment of Gaza, as was widely expected based on constitutional precedent that only the political branches of U.S. government could determine foreign policy.
But, unexpectedly, U.S. District Judge Jeffrey White indicated that he would have preferred to have issued the injunction were he not limited by the Constitution, and he implored the Biden administration to “examine the results of their unflagging support” of Israel.
The determination came five days after a hearing in Oakland, Calif., in which Judge White allowed the head of a humanitarian group, a medical intern and three Palestinian Americans with relatives in Gaza to tell the court that their loved ones were being slaughtered. They alleged that the U.S. government has underwritten a genocide by backing Israel’s military response to the Oct. 7 attacks by Hamas.
“President Biden could, with one phone call, put an end to this,” Laila el-Haddad, a Palestinian activist and author living in Maryland, told the judge. She said that Israeli attacks had killed at least 88 members of her extended family in Gaza. “My family is being killed on my dime.”
Judge White, who last week had called the testimony “gut-wrenching,” wrote that the evidence and testimony “indicate that the ongoing military siege in Gaza is intended to eradicate a whole people.”
But, he added, “there are rare cases in which the preferred outcome is inaccessible to the court.”
This, he wrote, was such a case: “It is every individual’s obligation to confront the current siege in Gaza, but it is also this Court’s obligation to remain within the metes and bounds of its jurisdictional scope.”
Legal precedent limits judicial power over U.S. presidents on foreign policy decisions, and lawyers for the government had argued that, regardless of the testimony about Gaza, the White House and Congress have the constitutional prerogative to set policy on Israel.
However, in a remarkable aside, Judge White, an appointee of former President George W. Bush, urged President Biden to rethink U.S. policy on the military siege, writing that “it is plausible that Israel’s conduct amounts to genocide.”
Lawyers for the plaintiffs said they would contest the decision, but were heartened by the judge’s comments.
“While we are disappointed in the outcome, we are very pleased that the court recognized that it is plausible that Israel is committing genocide in Gaza,” said Marc Van Der Hout, a lawyer for the plaintiffs, “and that the United States is supporting that genocide.”
Katherine Gallagher of the Center for Constitutional Rights in New York, the plaintiffs’ lead counsel, noted that the court “used extremely strong language.”
“We hope that the executive branch hears the court’s call,” she said, “as the situation on the ground in Gaza continues to be dire.”
On Oct. 7, Hamas launched a terrorist attack against Israel, killing some 1,200 people and taking 240 others as hostages, according to Israeli authorities. In the months since, Israel has bombarded the Palestinian enclave of Gaza in an effort to crush Hamas, which has governed the territory. Local health officials in Gaza say that more than 25,000 people have been killed there, including thousands of children, and that most of the 2.2 million people living there have been displaced and are facing famine.
The unusual legal action in California was filed on Nov. 13 by Palestinian humanitarian groups and eight individual supporters. It accused President Biden, Secretary of State Antony J. Blinken and Defense Secretary Lloyd J. Austin III of violating federal common law by defying customary international laws that bind the U.S. to the 1948 Genocide Convention.
The suit asked Judge White to order the president and his administration to “take all measures within their power” to stop “Israel’s commission of genocidal acts against the Palestinian people of Gaza.” It also sought injunctions halting aid for Israel and preventing the White House “from obstructing attempts by the international community, including the United Nations, to implement a cease-fire.”
The hearing earlier this month came hours after the United Nations’ highest judicial body ordered Israel to prevent genocidal acts by its forces but stopped short of calling for an end to the war in Gaza.
The International Court of Justice was responding to charges brought by South Africa, which alleged that Israel’s military response was crafted to deny Palestinians the right to exist.