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You Can't Assume the Risk of an Intentional Tort...Unless You're an American Jew in Israel

Updated: Oct 6, 2019



On July 31, 2002, a bomb ripped through a cafeteria at the Hebrew University in Jerusalem, killing 9 (5 of which were Americans) and wounding approximately 100. The attack met with outrage, not just within Israel, but thousands of miles away in the United States, from which the majority of the dead hailed. On September 24, 2002, Sen. John McCain addressed an impassioned speech to his fellow Senators,[1] and on October 15, 2002, Rep. George W. Gekas condemned the attack in the House of Representatives and honored Benjamin Blutstein, a constituent who perished in the attack.[2]

This attack was just one of the events underpinning Sokolow v Palestine Liberation Organization,[3] whose most egregious legacy may be the Second Circuit's finding that the PLO and PA "were liable for tortious activities that occurred outside the United States and affected United States citizens only because they were victims of indiscriminate violence that occurred abroad,"[4] differentiating Palestinian terrorism from that of al Qaeda, which the Second Circuit said was "known to be targeting the United States";[5] and maintaining that only Israel maintained a legally cognizable jurisdictional "nexus" to the terrorism alleged.[6]

The following is highly distressing, but nonetheless important, video and pictorial documentation of the devastation underlying the Sokolow claims, the impact of which was felt far beyond the State of Israel by its American victims and their next of kin:

The below footage is a compilation taken from Palestinian suicide bomb attacks throughout 2002, including the January 27 suicide bomb on Jaffa Road in Jerusalem, which killed 2 and injured more than 100; and the June 19 suicide bomb by the Al-Aqsa Martyrs Brigade at a crowded bus stop at rush hour at the French Hill intersection in Jerusalem, killing 7 and injuring 50.

A suicide bombing, a joint effort by the Al-Aqsa Martyrs Brigade and Hamas, on the No. 19 bus on Gaza Street in Jerusalem on January 29, 2004 killed 11 and injured 50.

Story and footage of the January 22, 2002 shooting attack on Jaffa Road in Jerusalem, killing two and wounding 45, including American student Shayna Gould.

The suicide bombing on March 21, 2002 on King George Street in Jerusalem by a former Palestinian policeman which caused devastating and permanent injuries to American Jonathan Bauer, 7, and his father, Alan, who witnessed his son's catastrophic injuries.

While no rational person would deny that Israelis have lived in the shadow of terrorism since well before the creation of the State of Israel, or minimize the daily challenges faced by Israelis by equating them in frequency, scope, or scale with those endured by a comparatively small sampling of American victims of Palestinian terror, nevertheless in Sokolow the Second Circuit set precedent in New York, Connecticut, and Vermont (echoing precedent previously set in the District of Columbia),[7] tacitly approved by the Supreme Court,[8] that effectively stripped American victims of Palestinian terror of any meaningful relief under the ATA. We, as a profession, must understand the greater implications of American courts framing the impact of Palestinian terror on Americans in this way, as it is reminiscent of the (ethically, morally, and legally problematic) views of United States District Judge Rosemary M. Collyer of the United States District Court for the District of Columbia in Fraenkel v Islamic Republic of Iran:[9]

Plaintiffs accepted the risks of living in a community built across the Green Line in Israel and sending Naftali Fraenkel 40 miles further into the West Bank for high school in Gush Etzion. Gush Etzion is about six miles from Hebron, a predominantly Palestinian city...At age 16, Naftali Fraenkel was hitchhiking home at 10:30 at night from Gush Etzion Junction when he and two other young men were picked up by two Hamas members disguised as Israelis. Plaintiffs' own expert describes the junction as a site of "many terror attacks" since 2000. (emphasis added) [10]

Naftali Fraenkel, a dual American-Israeli citizen, was murdered by Hamas when he was just 16 years old.

According to Judge Collyer's opinion, Fraenkel's surviving family members were entitled to a lesser amount of tort damages than other claimants because the location where Fraenkel was killed "was the site of many terror attacks aimed at Jewish-Israeli citizens," (emphasis added),[11] and Fraenkel's parents, in essence, were at least partially to blame for his death by choosing to live and raise children in such a location.

They were, per Judge Collyer, assuming the risk of their own child's murder at the hands of terrorists.

When Judge Collyer measured the Frankels' entitlement to recovery from Syria and Iran for their state sponsorship of Hamas's intentional tort against their choice to live in Israel, and send their child to school in Gush Etzion, she ignored one of the most fundamental precepts of American jurisprudence, which any first year law student could recite in her sleep:


This is black letter law.[12] Even assuming, arguendo, that Hamas did not specifically target American citizens and interests,[13] and simply meant to kill an Israeli child on his way home from school, Naftali Fraenkel's actual identity as an American-Israeli living in the vicinity of Gush Etzion does not reduce Hamas's tort liability for his death, as Hamas still intended to commit against Fraenkel the tortious acts which proximately caused his death.[14]

Judge Collyer's Fraenkel decision and the Second Circuit's Sokolow decision cannot be reconciled with well-settled American jurisprudence; jurists cannot have it both ways. Americans in Israel cannot assume the risk of intentionally tortious terrorist acts; even assuming, arguendo, that they could, then that would require a high probability of foreseeable terrorist activity in the area; the specific victims would know, or ought to know, that they were likely to be targets of such activity due to their presence in the area; therefore, the tortious activity that harms them would not be indiscriminate but, rather, intentional and purposeful.

The attorneys representing the Sokolow plaintiffs compiled, and presented, ample evidence that the violence that harmed these plaintiffs was neither indiscriminate nor accidental, and the Second Circuit's dismissal of Palestinian incitement activities within the United States, and the resulting violence against American citizens, as insufficient contacts to justify personal jurisdiction over the PLO/PA, was disingenuous.

Notwithstanding the Second Circuit's blanket assertion to the contrary,[15] since at least the 1970s, multiple Islamic terrorist organizations (including Palestinian-aligned groups) have viewed terrorism as a viable substitute for diplomacy, and American citizens and interests as strategic targets in furtherance of their goals.

On March 28, 1970, the Popular Front for the Liberation of Palestine (the "PFLP") fired rockets at the U.S. Embassy, the American Insurance Company, and the John F. Kennedy Library in Beirut, Lebanon; on September 6, 1970, the PFLP hijacked two commercial flights en route to New York (TWA Flight 741 from Frankfurt and Swiss Air Flight 100 from Zurich); and on May 30, 1972, 3 members of the Japanese Red Army (acting on behalf of the PFLP) staged a machine gun and grenade attack in the baggage claim area at Lod (now Ben Gurion) Airport.

On March 2, 1973, Fatah held hostage the U.S. Ambassador to Sudan and another diplomat at the U.S. Embassy in Khartoum before killing them both; and also placed explosives in the rear cargo hold of TWA Flight 841 from Tel Aviv to New York while it made a brief stop in Athens, causing the aircraft to crash into the Ionian Sea shortly after takeoff, killing all 88 passengers aboard, 12 of whom were American.

The PFLP kidnapped the U.S. military attaché to Lebanon in Beirut on June 29, 1975; and kidnapped and murdered the U.S. Ambassador to Lebanon and another diplomat in Beirut on June 16, 1976.

The 1980s ushered in a new era of terrorist attacks in the Middle East, as Hezbollah (with assists from the PLO and Islamic Jihad) continued to terrorize Americans in Lebanon, attacking the U.S. Embassy in Beirut no less than 4 times, and the U.S. Marines no less than 2 times.

On July 19, 1982, Hezbollah kidnapped the acting President of the American University in Beirut, only releasing him after a year in captivity; even after the U.S. withdrew its forces from Lebanon in 1983, Hezbollah bombed the U.S. Embassy in Kuwait on December 12 of that year, and continued to target the American University in Beirut, as on January 19, 1984 two Hezbollah-linked gunmen killed the Lebanese-born President of the university outside his office. Even though the victim was himself Lebanese, the university at which he worked was American; the violence was part of an organized plan of intimidation, "to drive all Americans out of Lebanon."

On August 10, 1982, the PLO bombed a kosher restaurant in Paris, killing six, including two Americans; and on July 1, 1983, the PLO singled out and stabbed an American-Israeli from New York in a marketplace in Hebron. On March 16, 1983, an Islamic Jihad grenade attack at the airport in Beirut wounded 5 patrolling American Marines.

Hezbollah continued to terrorize American interests in Beirut throughout 1983 and 1984, including bombing the U.S. embassy in Beirut on April 18, 1983.

Hezbollah kidnapped CNN's Beirut bureau chief on March 7, 1984 (he later escaped); kidnapped an American minister on March 8, 1984, releasing him only after 16 months in captivity; kidnapped and murdered an officer at the U.S. Embassy in Beirut on March 16, 1984; bombed a restaurant adjacent to a U.S. air force base in Torrejon, Spain on April 12, 1984, killing 17 and wounding at least 82; committed a suicide bomb attack at the U.S. Embassy in Beirut on September 21, 1984, killing 23 and injuring 21, including both the U.S. and U.K. Ambassadors to Lebanon; hijacked a Kuwait Airlines plane en route from Dubai to Karachi on December 4, 1984, flying the plane to Tehran, demanding the release of prisoners, and, when that failed, singling out and murdering the 2 Americans on board.

On October 7, 1985, somewhere between Alexandria and Haifa, the PFLP seized an Italian cruise ship and murdered wheelchair-bound American passenger Leon Klinghoffer.

Hezbollah's fixation with the American University in Beirut continued, first in 1986 when, on September 9, it kidnapped the university's director, releasing him after 44 months in captivity, and then, on September 12, when it kidnapped the university's acting comptroller, releasing him after 5 years in captivity; and then again in 1991 when a car bomb outside an administrative building at the university killed 1, and wounded at least 12.

On December 1, 1993, Hamas killed an American teenager in a drive-by shooting in Jerusalem.

In 1994, Hamas began consciously modeling its strategy off of Hezbollah's, especially in its strategic adoption of suicide attacks;[16] as Khalid Mishal of Hamas described the group's strategy, "[w]e always have the Lebanese experiment before our eyes. It was a great model of which we are proud."[17] That year, Hamas was responsible for a suicide attack by car bomb on a bus in Afula on April 6; a suicide attack by belt bomb in Hadera on April 13; another suicide attack by belt bomb in Tel Aviv on October 19; and yet another suicide attack by belt bomb in Jerusalem on Christmas Day. Islamic Jihad was likewise responsible for a suicide attack by belt bomb in Netzarim, Gaza on November 11.

If, as Abdel Karim, leader of the Fatah-linked Al-Aqsa Martyrs Brigade, admitted in a May 9, 2002 newspaper article, that "[t]he goal [of the Second Intifada was] to increase losses in Israel to a point at which the Israeli public would demand withdrawal from [Judea and Samaria] and Gaza Strip,"[18] it stands to reason that a similar justification was advanced by Palestinian leadership in targeting Americans, Jews, and other allies and supporters of Israel: if those who supported Israel suffered losses and casualties as a direct result of that support, support for Israel would erode. As former U.S. President Ronald Reagan described his decision to withdraw American forces from Lebanon in 1983, "[t]he price we had to pay in Beirut was so great, the tragedy at the barracks [Hezbollah truck bomb attack killing 241 U.S. Marines and wounding 8] was enormous...We had to pull out...We couldn't stay there and run the risk of another suicide attack on the Marines."[19]

This sentiment was hardly new in Palestinian rhetoric; as early as 1985, Congress noted increasingly specific and explicit language used by the PLO/PA to threaten and incite violence against American citizens and interests.[20] The evidence shows definitively that the PLO/PA and their affiliates have not only been operating within the United States on a continuous basis, but are also inciting their followers in the United States to violence against Americans and Jews of any nationality.

For example, in 1988, Sheikh Azzam spoke at Brooklyn’s Al-Farooq Mosque, clarifying the role expected of congregants in advancing the Palestinian cause from within the United States: “Every Muslim on earth should unsheathe his sword and fight to liberate Palestine…You must fight in any place you can get…Whenever jihad is mentioned in the Holy Book, it means the obligation to fight. It does not mean to fight with the pen or to write books or articles in the press or to fight by holding lectures.”[21] Similarly, on November 13, 1985, Iraqi newspaper Al-Ahali quoted PLO Chairman Yasser Arafat as saying: “We are on the threshold of a fierce battle, not an Israeli-Palestinian battle, but a Palestinian-United States battle."[22] An August 18, 1990 New York Times article cited Israeli intelligence sources who warned that several Palestinian terrorist groups were planning attacks on American targets in Saudi Arabia and the Persian Gulf; the reporter stated that "[t]he Israelis...believe the terror groups are of the view that American resolve might be broken by successful terrorist actions against U.S. forces in the Middle East - just as it was when U.S. Marines were deployed in Lebanon seven years ago."[23] At a 1992 Muslim Arab Youth Association ("MAYA") conference in Oklahoma City, the head of Hamas was just one out of a long line of speakers who shouted: "Kill the Jews and destroy the West!"[24]

In February 1993, a group of terrorists trained in Pakistan, but living in the United States, compiled explosives and built a highly sophisticated explosive device within the United States; transported it from Jersey City to Manhattan; and, on February 26, detonated it in the parking garage of the World Trade Center, killing 6 and injuring more than 1,000.[25] The terrorists, who called themselves simply the "Liberation Army," promptly sent a letter to The New York Times declaring the following:

This action was done in response for (sic) the American political, economical (sic), and military support to Israel, the state of terrorism...Our demands are: (1) Stop all military, economical (sic), and political aid to Israel; (2) All diplomatic relations with Israel must stop; (3) Not to interfere (sic) with any of the Middle East countries interior affairs (sic). If our demands are not met, all of our functional groups in the army will continue to execute our missions against military and civilian targets in and out of the United States...The terrorism that Israel practices (which is supported by America) must be faced with a similar one...The American people must know that their civilians who got killed are not better than those who are getting killed by American weapons and support. The American people are responsible for the actions of their government and they must question all of the crimes that their government is committing against other people. Or they - Americans - will be the targets of our operations that could diminish them.[26]

At a December 1994 MAYA meeting in Chicago, Bassam Alamoush gave a speech in which he referenced a prior conversation at a mosque in Amman:

[He] asked, "If I see a Jew in the street, should I kill him?" Alamoush said he paused a moment, then said: "Don't ask me. After you kill him, come and tell me. What do you want from me, a fatwa [legal ruling]? Really, a good deed does not require one." The audience laughed. Later in his speech, Alamoush was interrupted by an aid with a note that he read to thunderous applause: "Good news - there has been a suicide bombing in Jerusalem" killing three people.[27]

Approximately 6,000 people attended this meeting, one of which was Mustafa Saied, who reports that he was radicalized by a friend at the University of Tennessee, and joined the Muslim Brotherhood after being recruited on campus in 1994.[28] According to Saied (as relayed by The Wall Street Journal):

[T]he lights in a packed ballroom went dark, with spotlights trained only on the stage, where several speakers sat. Suddenly, six or seven masked young men dressed as Hamas militants ran down the aisles, waving the organization's green flags and shouting, "Idhbaahal Yahood!" ("Slaughter the Jews!")[29]

Saied admits that he personally raised money within the United States[30] for a charity now known to have financed terrorism;[31] and that he personally delivered speeches within the United States, including at a camp for Muslim teenagers in Florida, justifying "martyrdom operations," including suicide bombings, targeting not only Israel in particular, but Jews in general, as well as non-Jewish Americans.[32]

This rhetoric was of pressing enough importance to the United States government that the Senate Judiciary Committee, Subcommittee on Terrorism, Technology, and Government Information held a hearing to explore the impact of foreign terrorists in America on February 24, 1998, including the following testimony from Steven Emerson:

[I]ntelligence officials and law enforcement agents have discovered that militant Islamic extremists have established extensive networks throughout the United States. Although there is no established hierarchy that centrally coordinates the activities of the myriad militant networks, the intelligence and law enforcement communities agree that the entire spectrum of radical groups from the Middle East has been replicated in the U.S. They include: Hamas, Islamic Jihad, [Hezbollah]...[and] Muslim Brotherhood.[33]

Dale Watson, Chief of the International Terrorism Section, National Security Division, of the Federal Bureau of Investigation, echoed Emerson's statement, concurring that both Hamas and Hezbollah "established an active presence in the United States," and revealing that the "Liberation Army's" decrypted computer files revealed plots to bomb flights to the United States and kidnap and murder U.S. diplomats.[34]

In a video clip from October 1, 2000, students are seen burning the American flag at Al-Azhar University in Gaza. An American speaker heard on the clip stated: “Palestinian incitement did not lessen.”

That same month, the crowd at a rally in front of the Israeli embassy in Washington, D.C. repeatedly chanted: "Al-Aqsa is calling us, let's all go into jihad, and throw stones at the face (sic) of the Jews!"[35]

In hindsight, Osama bin Laden's February 23, 1998 fatwa (culminating in al-Qaeda's September 11, 2001 bombing of Manhattan's World Trade Center which killed at least 2,753 people) appears pointedly directed at a Palestinian audience: "The ruling to kill the Americans and their allies - civilians and military - is an individual duty for every Muslim who can do it in any country in which it is possible to do it, in order to liberate the al-Aqsa Mosque...and in order for their armies to move out of all the lands of Islam, defeated and unable to threaten any Muslim."

Message received...

The Council on American-Islamic Relations ("CAIR") held a picnic in Austin in October 2002, at which Dallas-based band Al Nojoum performed "skits and songs...advocat[ing] the destruction of the State of Israel and glorify[ing] the killing of Jewish people."[36] Disturbingly, according to an October 10, 2002 article, Hamas also disseminated detailed, specific instructions for kidnapping Americans.

Palestinian incitement against Americans reached its apex[37] in 2002, the height of the bloody Second Intifada[38] from which the Sokolow claims arose, and it is within this historical and political context that American courts should be viewing the claims of American citizens for injuries caused or funded by Palestinian terrorists.

In Sokolow, the Second Circuit categorically dismissed PLO/PA contacts with the United States during the Second Intifada as “regist[ry] with the United States [g]overnment as a foreign agent;…two diplomatic offices;…ret[ention] of a consulting and lobbying firm;…[and] promot[ion of] the Palestinian cause in speeches and media appearances,”[39] and minimized the PLO/PA’s terrorist acts as “indiscriminate violence”[40] for which the nucleus of the harm was Israel alone.[41] This is patently obtuse, and a vast oversimplification of Palestinian terror strategy, the Palestinian presence in America, and America’s centrality to the PLO/PA’s overarching political strategy.

David Harris-Gershon does not mince words when speaking of Mohammed Odeh’s intent in masterminding and carrying out the aforementioned 2002 bombing of a cafeteria at Hebrew University that seriously and permanently injured his wife, Jamie: “He intended to kill Jews and Americans. We were both, far from home, newly married, living in Jerusalem. Graduate students being stalked…[W]e were targets.”[42] Mark Haughwout, a survivor of the same attack, agrees: “The terrorist turned out to be one of the Muslim painters who [had been] painting our classroom walls. We interacted with him and [his] crew on a daily basis. He knew first hand the faces of the students and teachers he was going to murder.”

The Rothberg International School at Hebrew University, whose cafeteria Odeh targeted, offers intensive summer courses to foreign students in a variety of subjects. Many students, including Jamie Harris-Gershon,[43] spend the summer completing intensive Hebrew language courses prior to the start of the next academic year. Other students pursue unique summer course offerings, all taught in English, which may be taken in either a four-week July session or a two-week August session. This seemingly innocuous information makes Haughwout’s account of Odeh’s July 31, 2002 attack all the more chilling: “The explosion coincided with the last day of class [for the July session] and the first day of orientation [for the August session].” Odeh’s reconnaissance work clearly acquainted him with Rothberg’s calendar and summertime demographics, enough that he knew that July 31, which straddled two course sessions targeting predominantly native English speakers, would be the optimal day to strike for the greatest possible casualties at Rothberg: "[H]e watched those seated within and listened to a mix of Hebrew and the Western tongues of summer exchange students. He considered the oblivious mass of humanity, nodded internally and decided, yes, this is the place where it will occur."[44]

As described by David Harris-Gershon:

[Mohammed Odeh] had previously worked as a contract painter at Hebrew University…and knew the layout well…[He] scouted the campus…noting [students’] eating behaviors, where they congregated, always checking the clock, calculating precise times and places…[He] set his sights upon a cafeteria, adjacent to the Rothberg International School, frequented by…a significant population of foreign students, mostly American…

[A] bomb was prepared in Ramallah and placed in a black backpack…Odeh picked it up, traveled to the university, jumped the barrier fence, and hid the bomb under some shrubs…The next morning…[he] stopped briefly at a kiosk to buy two items: a Hebrew language newspaper and cologne…to mask the scent of any explosive residue… [He] headed straight for the bushes, grabbed the bag, walked quickly to the utility closet, and set it down among cans of paints and rollers…He opened the bag and wired a cell phone to the bomb…sprayed the bag with cologne, closed the closet, and “passed time.”

Around 1 p.m., Odeh returned to the closet, grabbed the backpack, and walked directly to the cafeteria’s main entrance…newspaper in hand…not to drape…over the bag, shielding it from view under a mound of newsprint; that would have drawn attention, been conspicuous. Instead…knowing that a newspaper resting on an abandoned backpack indicated an item to which one would soon return…he looked around…The place was full. Bustling. It was easy to blend in…[He] placed the bag on a table unnoticed, the folded newspaper balanced on top.

Then, he was gone, disappearing into [a getaway] car, where he fingered the cell phone and hit “send.” The phone ringing…[45]

Mohammad Odeh attacked the area adjacent to the Rothberg International School at Hebrew University in order to maximize the chances that non-Israeli Jews, particularly Americans, would be casualties; and in doing so he specifically chose to bomb a prominent symbol of Americana on the university's campus: the Frank Sinatra Cafeteria.

Although it may seem random, "indiscriminate" even, it is a little known fact that Frank Sinatra, "Ol' Blue Eyes," "the Chairman of the Board," one of the most beloved and celebrated entertainers in American history, an Italian Catholic boy from humble beginnings in Hoboken, New Jersey, was a staunch Zionist.

Throughout his lifetime, Sinatra donated his time and money to assist the fledgling Jewish State, culminating in his 1972 acceptance of Israel's Medal of Honor from future Israeli prime minister Menachem Begin. Six years later, Sinatra was in Jerusalem for the cafeteria's dedication ceremony; while the funds for the cafeteria were raised by the West Coast branch of the Friends of Hebrew University, according to Jerry Barasch, a former university spokesman, there was never any doubt that the cafeteria would bear Sinatra's name.

Puzzlingly, despite the overwhelming evidence that Palestinian terrorists and their sympathizers have purposely and intentionally targeted American citizens and interests, the United States government clings to the fallacy that Americans injured or killed by Palestinian-sympathetic terrorism have fallen victim to "indiscriminate" violence with the sole purpose of "ensur[ing] a high number of casualties."[46] There is no doubt that these groups seek to kill as many as possible to make the greatest impact possible; however, as set forth herein, there is likewise no doubt that these groups have specifically targeted Americans, especially American Jews. As Pape discovered in his research on suicide terrorism during the time period 1980-2001, "nearly all suicide attacks occur in organized, coherent campaigns, not as isolated or randomly timed incidents,"[47] and their victims are rarely random.[48] When, during the Second Intifada, the PLO/PA abandoned even the façade of diplomacy in favor of violent jihad, and was “unwilling to work within our framework of democracy…[while] intend[ing] to initiate a violent revolution whenever the propitious occasion appeared,”[49] this was a calculated reign of terror that killed Americans, and arose directly out of failed negotiations facilitated and funded by United States taxpayers (including the victims themselves).

Justice Oliver Wendell Holmes once wrote that "the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism."[50] Holmes found logical reasoning and common sense to be fundamentally incompatible,[51] although the devil for Holmes was less in the presumed higher value of logic, and more in the "intrinsic inertia" of rote application of fixed concepts in a formalized, syllogistic manner by human beings believing that logic exists in a vacuum, devoid of lived experience and intuition.[52]

Despite Holmes's mistrust of syllogistic reasoning, however, the totality[53] of American jurisprudence gives at least the appearance that it is based on syllogistic deductive reasoning; that is, "reasoning in which a conclusion is compelled by known facts."[54] Decisions based on deductive reasoning are linear, from fact-finding, to law-specifying, to application of law to fact, and then, finally, to pronouncement of the law as it applies to those facts. The legal findings are the product of the facts, and not vice versa.

Courts such as the Second Circuit in Sokolow, however, employ syllogistic inductive reasoning, "a logic of probabilities and generalities, not certainties. It yields workable rules, but not proven truths."[55] It occurs when jurists intuit the superiority of a particular outcome, then work backwards to find factual and legal support for their intuitions, "fashion[ing] a general rule that supports" the jurists' personal viewpoints.[56] The problem, for our purposes, is that while the Second Circuit's decision in Sokolow "sets forth the results of thinking, it has nothing to do with the operation of thinking."[57] It cannot fit the facts and applicable law to the desired outcome, thus it abandons the deductive syllogism in favor of broad assumptions tailored to jurists' erroneous conceptions of social, rather than legal, justice. As stated by Aldisert et al., "[j]udges have notions of how things should be - of what is wrong and what is right - and often strive to do justice as much as to fulfill the mandates of precedent. They have biases, too."[58]

These sorts of biases led Judge Collyer to the clearly erroneous (and frankly embarrassing) inductive conclusion that people can assume the risk of intentionally tortious conduct; and they led the Second Circuit to find, in Sokolow, that tortfeasors' repeated admissions and relevant conduct over decades proving that they intentionally and purposefully targeted American citizens and interests, from within and without the United States, were irrelevant because they raised thorny political issues that may have brought the jurists' personal biases in conflict with well settled facts and legal precedents.

Therefore, it behooves us, as a profession, particularly in the aftermath of Sokolow, to reexamine those judicially-made canons which have so encrusted the Constitution as to cause us to forego textual constitutional interpretation in favor of "what has been judicially said":[59]

Judicial exegesis is unavoidable with reference to an organic act like our Constitution, drawn in many particulars with purposed vagueness so as to leave room for the unfolding future. But the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.[60]

I posit, much as Professor Linde did, that Fraenkel and Sokolow are only part of the problem; the greater problem is "the assumptions about constitutional lawmaking...implicit in the judicial formulas"[61] that make a judicial outcome like that in Sokolow possible. Now, almost 40 years after Professor Linde admonished us to do so, "[t]he time has [finally] come to look the [due process] clause itself in the eye."[62]

Stay tuned...

[1] Office of Senator John McCain, "Floor Statement of Senator John McCain on Israel's Hebrew University," available at (last visited February 12, 2018).

[2] 135 Cong. Rec. E1870-71 (daily ed. Oct. 15, 2002) (statement of Rep. Gekas).

[3] 583 F. Supp. 2d 451 (S.D.N.Y. 2008); 835 F.3d 317 (2d Cir. 2016), cert.denied, 138 S. Ct. 1438 (No. 16-1071) (action brought in United States federal court under the Anti-Terrorism Act, 18 U.S.C. § 2331 et seq., for injuries and deaths caused by Palestinian terrorism during the Second Intifada).

[4] 835 F.3d at 337.

[5] Id. at 339.

[6] Id. at 340.

[7] Klieman v Palestinian Authority, 82 F. Supp. 3d 237 (D.D.C. 2015); 923 F. 3d. 1115 (D.C. Cir. 2019).

[8] 138 S. Ct. at 1438.

[9] 258 F. Supp. 3d 77 (D.D.C. 2017).

[10] Id. at 83.

[11] Id.

[12] And, in fact, the District of Columbia Circuit Court took issue with that portion of Judge Collyer's decision which reduced the Fraenkels' recovery on the basis of "assumption of risk." See Fraenkel v Islamic Rep. of Iran, 892 F. 3d 348, 351, 356-60, 362 (D.C. Cir. 2018) (reversing and remanding on the basis that the District Court abused its discretion in awarding reduced solatium damages to the Fraenkels on an "assumption of risk" theory and "clearly erroneous findings of fact": "one does not assume the risk that he will be the victim of an intentional tort"), citing Janelsins v Button, 102 Md. App. 30, 648 A.2d. 1039, 1045 (Md. 1994) ("jurisdictions that have considered the issue of assumption of risk as a defense to an intentional tort have overwhelmingly rejected its applicability"); Kanelos v Kettler, 406 F. 2d 951, 955 (D.C. Cir. 1968); Knight v Jewett, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, 704-05 (1992) ("the driver who voluntarily chooses to go out at night does not assume the risk of being hit by an inebriated motorist"); Doe v. Roe , No. CV125034145S, 2013 WL 6912882 (Conn. Super. Ct. Nov. 27, 2013) ("[t]he college student who consumes alcohol at a party does not assume the risk of being sexually assaulted by another guest"); Restatement (Second) of Torts 469 E, comment c (1965).

[13] Per the reasoning of the D.C. Circuit Court in Fraenkel, 892 F. 3d at 358, the Anti-Terrorism Act, 18 U.S.C. § 2331 et seq., provides a cause of action for United States citizens against terrorists for injuries sustained abroad, but does not require that the claimant be targeted on the basis of nationality, or prove that a victim's nationality formed the basis of a terrorist's intent to harm such victim.

[14] See 28 U.S.C. § 1605A(c); Kilburn v Socialist People's Libyan Arab Jamahiriya, 376 F. 3d 1123 (D.C. Cir. 2004); Valore v Islamic Rep. of Iran, 700 F. Supp. 2d 52 (D.D.C. 2010); Ben-Rafael v Islamic Rep. of Iran, 540 F. Supp. 2d 39 (D.D.C. 2008); Spencer v Islamic Rep. of Iran, Civil Action No. 2012-0042 (D.D.C. 2014).

[15] See notes 4 and 5, infra.

[16] Angel Rabasa, Peter Chalk, Kim Cragin, Sara A. Daly, Heather S. Gregg, Theodore W. Karasik, Kevin A. O’Brien, and William Rosenau, "Hezbollah and Hamas," Beyond Al-Qaeda: Part 2, The Outer Rings of the Terrorist Universe, 6-7 (2006), available at (last visited October 3, 2019).

[17] Robert A. Pape, The Strategic Logic of Suicide Terrorism, 97 Am. Political Science Review 343, 355 (August 2003), available at (last visited October 3, 2019).

[18] Id. at 346, citing Joel Greenberg, "Suicide Planner Expresses Joy Over His Missions," New York Times (May 9, 2002), available at (last visited October 3, 2019).

[19] Id. at 352, citing Ronald Reagan, An American Life 465 (1990).

[20] Hearing Before the Subcommittee on Security and Terrorism of the Committee on the Judiciary, Senate, 99th Cong. 2 (1986) (Opening Statement of Jeremiah Denton) ("In recent months, [Yasser] Arafat's anti-American threats have been explicit").

[21] Kenneth Lasson, Incitement in the Mosques: Testing the Limits of Free Speech and Religious Liberty, 27 Whittier Law Review 3, 32 (2005), available at (last visited October 3, 2019); see also Weiser, Benjamin and Kocieniewski, David, "U.S. Sees Brooklyn Link to World Terror Network," New York Times (Oct. 22, 1998), available at (last visited October 3, 2019).

[22] Hearing Before the Subcommittee on Security and Terrorism of the Committee on the Judiciary, Senate, 99th Cong. 2 (1986) (Opening Statement of Jeremiah Denton).

[23] Joel Brinkley, "Confrontation in the Gulf: Israelis Assert Palestinians Plan Terror Attacks for Iraq,"New York Times (Aug. 18, 1990), available at (last visited October 3, 2019).

[24] Lasson, Incitement in the Mosques at 32, citing Emerson, Steven, American Jihad: The Terrorists Living Among Us 7 (2002).

[25] Hearing Before the Subcommittee on Terrorism, Technology, and Government Information of the Committee on the Judiciary, Senate, 105th Cong. (Feb. 24, 1998) (Statement of J. Gilmore Childers, Esq. and Henry J. DePippo, Esq.), available at (last visited October 3, 2019).

[26] Id.

[27] Lasson, Incitement in the Mosques at 32-33, citing Emerson, American Jihad at 189-90; Daniel Pipes, Militant Islam Reaches America 138 (2002).

It is unclear which event Alamoush was referencing in this speech, which was believed to have occurred on December 24, 1994. A suicide bombing on November 11, 1994 killed three people, but it took place in Netzarim Junction, Gaza, not Jerusalem, and several weeks prior to this speech; a suicide bombing on December 25, 1994 at a bus stop in Jerusalem wounded 13, but had not yet occurred if the date of Alamoush's speech is accurate.

[28] Paul M. Barrett, "Student Journeys Into Secret Circle of Extremism," The Wall Street Journal (Dec. 23, 2003), available at (last visited October 3, 2019).

[29] Id.

[30] Id.

[31] The United States has been fertile ground for terrorist fundraising; at a conference in Chicago in November 1999, imam Jamal Said implored attendees: "I appeal to you, on this night that is ushering in the holy month of Ramadan, to be generous and give plenty, to keep the light in the houses of our martyrs burning. We have boxes here that say 'Help us, help the Aqsa cause...!' We want you to fill those boxes. There is no better charity than to pay for the family of a martyr." Lasson, Incitement in the Mosques at 34-35.

[32] Barrett, "Student Journeys Into Secret Circle of Extremism."

[33] Hearing Before the Subcommittee on Terrorism, Technology, and Government Information of the Committee on the Judiciary, Senate, 105th Cong. (Feb. 24, 1998) (Statement of Steven Emerson), available at (last visited October 3, 2019).

[34] Hearing Before the Subcommittee on Terrorism, Technology, and Government Information of the Committee on the Judiciary, Senate, 105th Cong. (Feb. 24, 1998) (Statement of Dale Watson), available at (last visited October 3, 2019).

[35] Lasson, Incitement in the Mosques at 35.

[36] Investigative Project, "CAIR Has Participated in and Co-Sponsored Islamist Conferences Within the United States" at 3 (Nov. 9, 2004), available at (last visited October 3, 2019).

[37] Lasson, Incitement in the Mosques at 17 ("An analysis of the messages appearing in religious lessons and sermons on the Temple Mount during the [Second I]ntifada indicates a systematic campaign of incitement directed towards the United States").

[38] See Dov Waxman, Living With Terror, Not Living in Terror: the Impact of Chronic Terrorism on Israeli Society, 5 Perspectives on Terrorism 4, 7 (December 2011) ("During this time, more than one thousand Israelis were killed, the overwhelming majority of them [70%] civilians...more than the number of Israelis killed in all terrorist attacks in the thirty-five years prior to the Second Intifada").

[39] 835 F.3d at 323.

[40] Id. at 337-38.

[41] Id. at 340.

[42] David Harris-Gershon, What Do You Buy the Children of the Terrorist Who Tried to Kill Your Wife?: A Memoir 4 (2013).

[43] Id. at 4-5.

[44] Id. at 3.

[45] Id. at 6-8.

[46] See Hearing Before the Subcommittee on Terrorism, Technology, and Government Information of the Committee on the Judiciary, Senate, 105th Cong. (Feb. 24, 1998) (Statement of Dale Watson).

[47] Pape, The Strategic Logic of Suicide Terrorism at 347.

[48] Id.

[49] Dennis v United States, 341 U.S. 494, 497 (1951).

[50] William O. Douglas, Harlan Fiske Stone Centennial Lecture: The Meaning of Due Process, 10 Colum. J.L. & Soc. Probs. 1, 3 (1973), citing Oliver Wendell Holmes, Common Carriers and the Common Law 609, 630-31 (1879).

[51] John Dewey, Logical Method and the Law, 10 Cornell Law. Rev. 17, 20-21 (1924); see also H.L.A. Hart, American Jurisprudence Through English Eyes: the Nightmare and the Noble Dream, 11 Georgia Law Rev. 969, 974-76 (1977).

[52] Dewey, Logical Method and the Law at 20-21; see also Hart, American Jurisprudence Through English Eyes: the Nightmare and the Noble Dream at 974-75 (Holmes's viewpoint was hardly "full steam ahead and damn the syllogisms," but rather that the relative importance of syllogistic logic in legal decision-making has been overstated; the experiences, instincts, and "felt necessities" of jurists can be equally vital).

[53] Ruggero J. Aldisert, Stephen Clowney & Jeremy D. Peterson, Logic for Law Students: How to Think Like a Lawyer, 69 Univ. of Pittsburgh L. Rev. 1, 4-5 (2007), citing Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803) ("The Judicial Department's province and duty is to say what the law is. The Supreme Court is the Judicial Department. Therefore, the province and duty of the Supreme Court is to say what the law is"); Youngstown Sheet & Tube Co. v Sawyer, 343 U.S. 579 (1952) ("The President's power to issue an order must stem from an act of Congress or the Constitution. Neither an act of Congress nor the Constitution gives the President the power to issue the order. Therefore, the President does not have the power to issue the order"); Brown v Board of Education, 347 U.S. 483 (1954) ("Unequal educational facilities are not permitted under the Constitution. A separate educational facility for black children is inherently unequal. Therefore, a separate educational facility for black children is not permitted under the Constitution").

[54] Aldisert et al., Logic for Law Students: How to Think Like a Lawyer at 3, citing Edward P.J. Corbett & Robert J. Connors, Classical Rhetoric for the Modern Student 38, 43-44 (4th ed. 1999).

[55] Aldisert et al., Logic for Law Students: How to Think Like a Lawyer at 13.

[56] Id.

[57] Dewey, Logical Method and the Law at 22.

[58] Aldisert et al., Logic for Law Students: How to Think Like a Lawyer at 21.

[59] Hans A. Linde, Due Process of Law Making, 55 Neb. L. Rev. 197, 199 (1976), citing Graves v New York ex rel. O'Keefe, 306 U.S. 466, 491 (1939) (Frankfurter, J.).

[60] Id.

[61] Linde, Due Process of Law Making at 199.

[62] Id. at 236.

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