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‘Pay For Slay’: Seeking An Effective American Legal Response To Palestinian Terror

The suspected murderers of Elan Ganeles, the American citizen who was recently buried in Ra’anana after an attack by Arab terrorists in the northern Dead Sea area, have just been arrested. The murderers of the Yaniv brothers, Hallel and Yagel, shot at point-blank range in Huwara last week, have yet to be apprehended. But one thing is certain: when they are identified, all of them and their families will receive lifelong murder stipends from the Palestinian Authority (PA). 

It is impossible to rationalize the ethical and moral bankruptcy of any “culture” that actually promotes, justifies, glorifies, and rewards the murder of innocents, but we were trained as lawyers, so we will simply talk about the law. The PA and its supporters, as well as supporters of other terrorist organizations, literally invite terrorists through financial incentives to kill Americans and Israelis. We seek criminal and civil remedies for their victims and we believe that in many cases the families of these victims are not without possible redress against those who enable and solicit the crimes. 

While the cold-blooded murders of the recent victims shock the conscience and rend the heart, these crimes were not committed in a vacuum: There are other identifiable perpetrators, who encouraged, solicited, enabled, promoted, and engendered those awful unlawful acts, promising payment for their commission. They are legally, not just morally, culpable for the premeditated murder of American citizens; they should be subject to criminal penalties, and their assets should justly be available as damages.

Some basic definitions are in order. Under U.S. law, one is liable as an accomplice to the crime of another if he or she gave assistance or encouragement … with the intent thereby to promote or facilitate the commission of a crime … Or if they solicit, command, encourage, or request another person to commit the crime. A person who aids, abets, or encourages another to commit a crime need not even be present at the scene to be culpable as an accomplice. One may be guilty of solicitation if he requests or induces another person to commit a crime. A wide range of defendants can be held jointly and severally liable for damages, including, among others, those who knowingly assisted in causing injury and those who incite or aid another to cause injury.

And now some facts:  

The Palestinian Authority makes payments to prisoners convicted of attacks against civilians and to the surviving families of suicide bombers and other deceased terrorists. Over $300,000,000 annually, comprising 7-10% of the annual PA budget, is allocated to terrorists or their families. For example, the family of the murderer of Ari Fuld (an Israel-American hero who was knifed in the back four years ago and managed to incapacitate his own attacker as he died before others could be harmed) received an initial payment within hours of the crime, and were then made eligible to receive a monthly payment of 1,400 shekels. Under PA law, perpetrators of even deadlier attacks would be eligible for even larger sums.

The Palestinian payments to prisoners and surviving families of terrorists are not secret: They have been publicly defended by Palestinian political leaders and even acknowledged by the terrorists as a primary inducement to the commission of their heinous crimes. In 2018, The Washington Post reported the explanation of a would-be terrorist, to the effect that “The important thing is that I will die and they will kill me, so that my children will receive a [PA] allowance and live happily.”   

Murdering an American citizen is a crime. So is inducing a third party to murder an American citizen, by publicizing, and subsequently paying, a monetary reward for commission of that murder. In almost all cases, an additional civil action and remedy will be available and appropriate for the intentional or negligent infliction of physical and emotional damages. And, thinking out of the box, there may even be a class of plaintiffs whose “shared circumstance” is that the perpetrators of the crimes or torts against them were paid by the PA.

Both the U.S. government (through the Taylor Force Act) and the Israeli government (through legislation to withhold funds equivalent to the terrorist-related payments) have tried to stop the pay-for-slay program. But the PA has made it clear that no economic sanction will affect the payment regime, with President Mahmoud Abbas saying that they would continue to pay those stipends with their very last penny. The Biden Administration maintains that its restoration of hundreds of millions of dollars in aid to the PA does not technically violate the Taylor Force Act, notwithstanding the continued payments to terrorists and the fungibility of money.

There is no question as to the criminal and civil liability of people who made it known to the public that they would pay a bounty of $10,000 to anyone who murders a member of a particular religion in a specific place, thus both encouraging and rewarding the murder. It would be no defense if they later argued, as did Nabil Shaath, the foreign affairs adviser to President Abbas, speaking in his official capacity, that “payments to support the perpetrators or their families are a social responsibility.” (Note that the World Bank has determined that the payments are not based on need and are disproportionate to other welfare type payments.)

In 1990, Congress enacted the Antiterrorism Act (ATA), creating a new federal right of action for any U.S. national “injured in his or her person, property, or business by reason of an act of international terrorism,” defined to include “violent acts or acts dangerous to life” occurring overseas that violate U.S. criminal laws (or would violate such laws if committed in the United States), and performed to intimidate or coerce populations or public policy. Plaintiffs are permitted to pursue relief in a U.S. district court and, if liability is established, to collect treble damages, plus attorneys’ fees.

Of course, the PA would try and claim that they were outside the jurisdiction of U.S. courts because of foreign sovereign immunity — but the Foreign Sovereign Immunities Act provides a series of exemptions, including an exception added in 1996 that withholds immunity from state sponsors of terrorism in cases alleging their responsibility for the death or personal injury of U.S. citizens. President Biden’s questionable restoration of Palestinian aid, the conditioning of which, under the ATA, subjects the PA to personal jurisdiction in the U.S., should at the very least be used to overcome that obstacle, which stymied Plaintiffs in recent cases like Sokolow v. the Palestinian Liberation Organization. Moreover, NGOs providing support to the PA would lack even that putative defense.

There are also other laws that could come into play like the Racketeer Influenced and Corrupt Organizations Act (RICO), which makes it unlawful to engage in a pattern of racketeering activity in association with an enterprise. RICO has criminal and civil application, and has been interpreted to include extraterritorial activity, so long as the enterprise has a nexus to the United States. Of course, the PA conducts numerous activities here, including commercial activity raising money, which should satisfy the nexus requirement.

For some reason, the U.S. government has been slow to enforce its laws and hesitant to punish those who have killed innocent American citizens. Take Ahlam Tamimi, the female mastermind of the 2001 Sbarro pizzeria bombing in Jerusalem, who gleefully admitted to murdering innocent men, women, and children, including American citizen Malki Roth. This assassin still lives freely in Jordan despite the U.S. having an extradition treaty with the Kingdom. To date, she has received thousands of dollars in murder stipends from the PA.

Enough is enough. Palestinian terrorists have killed 147 American citizens since 1968, and not one has ever been brought to the United States to stand trial. Senior members of the PA do, however, visit the United States on a regular basis. If the federal government won’t act then states and the private sector should. Where are the bold state attorneys-general who will seek justice for their injured citizens? Where is the plaintiffs’ bar that brought Big Tobacco to its knees?

There have been some sporadic efforts to bring individual tortfeasors to justice, and some damages have been awarded to surviving family members, but this is insufficient. What is required is a multi-state and multi-jurisdictional consortium of attorneys-general, public interest organizations that seek justice for victims, and plaintiffs’ lawyers, dedicated to discovering and pursuing every individual and organization that provides material support to the entities that encourage, incite, and reward violence. Let them spend the money they pay murderers to defend their actions in court. And let us demand that they be financially liable for damages, despite the fact that no compensation will ever restore the losses they have caused.

Gary Epstein recently retired as global chair of Greenberg Traurig’s Corporate and Securities Practice. 

Mark Goldfeder is an international lawyer and Director of the National Jewish Advocacy Center.  

The views expressed in this piece are those of the authors and do not necessarily represent those of The Daily Wire. 


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The Daily Wire   >  Read   >  ‘Pay For Slay’: Seeking An Effective American Legal Response To Palestinian Terror