(212) 715-1077 Counsel for Resp

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IN THE

FOR THE SECOND CIRCUIT

IN RE PALESTINE LIBERATION ORGANIZATION, PALESTINIAN AUTHORITY, Petitioners.

ON PETITION FOR WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

ANSWER TO PETITION

ARNOLD & PORTER LLP 399 Park Avenue New York, New York 10022 (212) 715-1077

Counsel for Respondents

December 17, 2014 REDACTED - PUBLICLY FILED VERSION

TABLE OF CONTENTS Page

INTRODUCTION...... 1

PROCEDURAL HISTORY ...... 5

STANDARD OF REVIEW...... 9

ARGUMENT ...... 10

I. Petitioners Do Not Have a “Clear and Indisputable” Right to Relief ...... 10

A. The District Court Correctly Denied Petitioners’ Jurisdictional Motions ...... 10

B. Alternate Grounds Establish Personal Jurisdiction...... 18

1. The Court Has Specific Jurisdiction Over Petitioners ...... 19

2. Petitioners Waived Their Jurisdictional Arguments...... 24

3. These Respondents Have No Due Process Rights...... 29

II. Mandamus Is Not Appropriate in the Circumstances of This Case ...... 32

III. Petitioners Will Suffer No Irreparable Harm ...... 35

A. GIS Documents...... 35

B. Alleged Political and Financial Harm...... 37

CONCLUSION ...... 40

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INTRODUCTION Respondents and their decedents are U.S. citizens who were killed or injured in terrorist attacks carried out by petitioners’ officers and employees and by designated foreign terror organizations to which petitioners provided material support. Respondents commenced this action over a decade ago seeking damages for their injuries under the federal Anti-Terrorism Act, 18 U.S.C. ¶¶ 2331, et seq. (the “ATA”). A three-month trial is set to begin on January 13, 2015. Judge Daniels has cleared his calendar for the trial and issued dozens of pretrial rulings.

Witnesses from around the world have arranged their travel plans. After losing their summary judgment motion, petitioners filed an eleventh- hour mandamus petition challenging personal jurisdiction on the basis Daimler AG v. Bauman, 134 S. Ct. 747 (2014). The Petition is meritless, as it would require an unprecedented extension of Daimler and a complete disregard for numerous additional bases for personal jurisdiction that were not reached by the District

Court. It is untimely, as the District Court denied a motion petitioners made on this precise issue over eight months ago. And, it is unnecessary, as none of the “harm” asserted by petitioners cannot be cured by a direct appeal from judgment. Petitioners do not have a “clear and indisputable” right to relief on the merits, as they must to prevail. The District Court’s ruling that it has general jurisdiction over petitioners was correct. Petitioners claim that Daimler requires dismissal of the action, but Daimler addressed the Fourteenth Amendment’s limitations on a State’s ability to assert jurisdiction over a corporation engaged in international commerce. As this Court recently noted, Daimler was concerned REDACTED - PUBLICLY FILED VERSION

with “the ‘risks to international comity’ of an overly expansive view of general jurisdiction.” Gucci America, Inc. v. Weixing Li, 768 F.3d 122, 135 (2d Cir. 2014) (quoting Daimler). Judge Daniels correctly held that such comity considerations are absent from this case because the exercise of jurisdiction over these petitioners does not conflict with the interests of any sovereign—foreign or domestic. Pet. Ex. 1 at 4. Judge Daniels also held that the circumstances of this case are exceptional. Id. That holding was correct because these petitioners are not a State and are not citizens of any State.1

In addition, limitations imposed on the States by the Fourteenth Amendment should not be extended by rote to limit the sovereign power of the United States under the Fifth Amendment. And, even under the Fourteenth Amendment,

Daimler left open certain questions concerning the circumstances in which jurisdiction may be premised on an agency theory. Here, Congress expressly provided for personal jurisdiction over terrorist organizations using an agency method of acquiring jurisdiction—personal service on an agent. In short, petitioners would have this Court extend Daimler to the Fifth Amendment, decide an issue not decided in Daimler, and then apply Daimler to a case in which the defendants are not headquartered or incorporated in any state, foreign or domestic—and make those novel decisions on an expedited mandamus petition filed on the eve of trial.

1 Like every other federal court to have considered the issue, Judge Daniels found that “Palestine” is not a sovereign foreign state. Sokolow v. PLO, 583 F. Supp. 2d 451, 457-458 (S.D.N.Y. 2008) (collecting cases).

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Such extraordinary steps are also unwarranted here because personal jurisdiction over petitioners is founded on several additional and independent grounds, the most salient of which is specific jurisdiction. Remarkably, the Petition—which has been in the works for many months—fails entirely to grapple with specific jurisdiction, or with the several other independent bases for jurisdiction asserted by respondents in the District Court (but not addressed by it). The evidence at trial will show that petitioners “followed a course of conduct directed at the society or economy existing within the [United States], so that the sovereign has the power to subject the defendant to judgment concerning that conduct.” J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2789 (2011). Petitioners’ “course of conduct” aimed to achieve their political goals and included two interrelated elements: (1) petitioners executed and materially supported terrorist attacks in Israel that killed and injured U.S. citizens and that were carried out in order to influence the conduct and policies of the Governments of the United

States and Israel; and (2) petitioners used their U.S.-based offices, officials and employees to advocate for the very same political goals, with claims that the terror campaign would end if petitioners’ political objectives were achieved.

The evidence of these facts is highly relevant to the merits, because the Anti- Terrorism Act requires a plaintiff to prove that the criminal conduct at issue appeared intended to achieve a political goal, such as influencing the policy or affecting the conduct of a government. 18 U.S.C. § 2331(1)(B). Where, as here, the jurisdictional evidence is intertwined with the merits, the jurisdictional question is one for the jury in a case of genuine dispute. Dorchester Fin. Secs., Inc. v.

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Banco BRJ, S.A., 722 F.3d 81, 86-87 (2d Cir. 2013). Thus, there is no way for petitioners to obtain the relief they seek (i.e., dismissal) before trial. Weighing heavily against petitioners is their inexcusable delay in filing the Petition. The District Court rejected petitioners’ Daimler defense in April 2014. The summary judgment ruling they now challenge was simply a confirmation of that earlier decision. If the Petition had merit and were addressed to averting real (rather than manufactured) prejudice, it would have been filed with sufficient time for normal briefing and consideration by this Court.

In fact, petitioners have not articulated any legitimate harm from the delay of a few months that they will experience by waiting to exercise their appellate rights after the trial, rather than now. Petitioners claim that the trial will result in the disclosure of certain allegedly privileged documents, but the Magistrate Judge rejected those same privilege claims during discovery. Petitioners did not object to that decision. Their failure to object belies their current claim that the documents are highly sensitive and forecloses appellate review of the Magistrate Judge’s ruling. Moreover, the documents themselves show that the Magistrate Judge was correct because the documents were never privileged.

Petitioners’ claims that a judgment against them would affect peace in the Middle East and would lead to renewed violence are both fanciful and wrong. This Court rejected a similar contention as “overly speculative” in Linde v. Arab Bank,

PLC, 706 F.3d 92, 118 (2d Cir. 2013). And, petitioners’ claim that the executive branch is on their side or is concerned about the case in some way is highly misleading. Petitioners quote a portion of a letter declining to file a statement of

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interest in another case. Petition Ex. 8. The part of the letter petitioners left out says: “The United States supports just compensation for victims of terrorism from those responsible for their losses and has encouraged all parties to resolve these cases to their mutual benefit.” Id. Indeed, the State Department gave the same message to these petitioners in 2007, when Secretary of State Rice explained to PA President Abbas: “Mr. President, I appreciate how difficult and complex these legal actions are and fully recognize the already significant economic crisis that exists for the Palestinian people. I encourage you, as I would any government, to respond to U.S. legal proceedings in good faith and a timely manner.” Ex. S.

PROCEDURAL HISTORY In 2007, petitioners (defendants in the District Court) told the District Court: “Should this Court not dispose of this case on jurisdictional grounds, Defendants fully intend to defend this case on the merits.” DE 44 at 2.2 Judge Daniels warned petitioners about last-minute shenanigans: Obviously a party can’t come into a litigation, defend the litigation, attempt to win the litigation and then at the 12th hour say, well, you know what, even though it looks like we’re getting ready to lose, we want to now say you don’t even have personal jurisdiction, we’re going to get out of the case. That’s not the way it works. You don’t preserve in your back pocket your right to, at some later date, say, if things don’t go my way, I’m going to say you don’t have personal jurisdiction over me even

2 Documents found in the District Court’s ECF record for the underlying action, Sokolow v. PLO, et al., 04-Civ.-0397 (GBD)(RLE), are cited using the District Court’s ECF docket number preceded by “DE.”

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though I came in here and litigated substantively the issues. Ex. C (Transcript 10/10/2007) at 10.

Petitioners moved to dismiss for lack of personal jurisdiction in 2007, again in 2009, and a third time in 2010. DE 45, 66, 81. The District Court denied their motion on March 30, 2011, holding that it had general jurisdiction based on their continuous and systematic presence in the United States. DE 87. Petitioners immediately challenged personal jurisdiction again in a motion to dismiss for lack of venue, arguing that the alleged lack of venue “also means that the Court lacks personal jurisdiction.” DE 94 at 1. When respondents cross-moved to transfer the case (DE 106), petitioners elected to “waive their objections to venue in the South- ern District of New York in order to allow the case to proceed before [that] Court.” DE 476-#3 (petitioners’ June 3, 2011 letter to District Court). Three weeks later, the Supreme Court decided Goodyear Dunlop Tires Op- erations, S.A. v. Brown, which announced the “essentially at home” test on which petitioners now seek to rely. 131 S. Ct. 2846, 2851 (2011). Goodyear was a “no- ticeable shift,” because the Court “significantly altered its viewpoint regarding the importance of where a corporation is ‘at home,’ referencing domicile, state of incorporation, and principal place[] of business . . . .” CML-NV Civic Ctr., LLC v. Gowan Indus., LLC, 11-Civ.-00120, 2011 WL 6752406, at *6 (D. Nev. Dec. 23, 2011). However, petitioners did not raise the “essentially at home” test based on Goodyear. They instead embarked on a broad-ranging course of discovery and merits litigation, including depositions and physical and psychological examina-

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tions of virtually every respondent. In January 2012, petitioners submitted a Rule 12(c) motion for partial judgment on the pleadings, which did not challenge personal jurisdiction. DE 186. (The District Court denied that motion. DE 251.) For their part, respondents sought production of petitioners’ documents concerning the perpetrators of the attacks at issue in this case. Some of these documents were reports by petitioners’ “General Intelligence Service” (the “GIS”). Pe- titioners resisted producing the GIS reports, asserting that they were both privileged and irrelevant. Magistrate Judge Ellis rejected both arguments and ordered the documents produced in orders dated July 26 and November 4, 2013. DE 327, 380. Petitioners filed no objection to either order. Petitioners did not raise their “essentially at home” argument until Janu- ary 31, 2014, in a motion for reconsideration that purported to rely on Daimler, rather than Goodyear. DE 421. The motion did not explain petitioners’ two-and-a- half-year delay in raising the argument, did not provide the District Court with any factual record, and did not address specific jurisdiction, even though that had been briefed repeatedly in earlier motions. On April 11, the District Court denied the motion for reconsideration from the bench, explaining that “a motion based on jurisdiction was an argument to be made much earlier in this case and that argument was not made with regard to the lack of due process, even though there was case law from which one could have made such an argument.” Tr. (4/11/2014) at 68:8-11. The District Court further explained that on the bare record before it, there was no basis to conclude that petitioners’ activities in the United States were not continuous and systematic enough

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to make them at home in the United States. Id. at 68:12-18. The District Court did not reach numerous alternative grounds for jurisdiction raised by respondents. Petitioners did not seek mandamus at that time. The District Court denied petitioners’ motion for certification under 28 U.S.C. § 1292(b) on June 20, 2014, but petitioners again failed to seek mandamus. Petitioners filed a motion for summary judgment on the merits on May 6, 2014. They included with their motion a one-page pro forma request that the Dis- trict Court re-re-consider the issue of general jurisdiction. Ex. J (excerpt from DE

497).3 While the motion for summary judgment was pending, petitioners filed a “Notice of New Authority” regarding Gucci America, Inc. v. Weixing Li, 768 F.3d

122 (2d Cir. 2014). Gucci rejected, as inconsistent with Daimler, New York’s traditional rule (which is not at issue here) that the existence of a corporate office within the state is per se sufficient to establish general jurisdiction and remanded to the district court to consider specific jurisdiction. On November 19, the District Court ruled on the summary judgment motion, dismissing all pendent claims and all non-U.S. parties, but in most other respects denying the motion for summary judgment and making no mention of personal ju-

3 Petitioners could not reasonably have expected the District Court to re-reconsider jurisdiction, since where a “party seeks solely to relitigate an issue already decided” the courts adhere to their prior decisions. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see Enzo Biochem, Inc. v. Amersham PLC, 902 F. Supp. 2d 308, 313 (S.D.N.Y. 2012).

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risdiction. At a pre-trial conference the next day, petitioners acknowledged that the District Court had “more than once” articulated its views on personal jurisdiction “very clearly,” but nonetheless requested that the District Court “solidify” its denial of petitioners’ renewed jurisdictional arguments. Ex. D (Transcript of 11/20/2014) at 43:11-24. The District Court issued a short order on December 1 denying petitioners’ renewed jurisdictional arguments. The District Court explained that this an exceptional case, as contemplated in Daimler, because Peti- tioners are not corporate entities and there are no comity concerns on the unique facts of this case. Pet. Ex. 1 at 3.

STANDARD OF REVIEW Mandamus is a “‘drastic and extraordinary remedy reserved for really extraordinary causes.’” In re Roman Catholic Diocese of Albany, 745 F.3d 30 at 35 (quoting Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367, 380

(2004)). The writ is justified only in “exceptional circumstances amounting to a judicial ‘usurpation of power’ or a ‘clear abuse of discretion.’” Id. And where a petition is directed to a district court’s finding of jurisdiction, the narrow “exceptional circumstances” standard is even more confined: “appellate courts should avoid determining jurisdictional issues on a petition for mandamus.” Id. at 37 & n.3 (quoting In re Ivy, 901 F.2d 7, 10 (2d Cir. 1990)). A mandamus petitioner must meet three “demanding requirements”: (1) “the petitioner must demonstrate that the ‘right to issuance of the writ is clear and indisputable’”; (2) “‘the party seeking the issuance of the writ must have no

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other adequate means to attain the relief [it] desires’”; and (3) “‘the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.’” In re Roman Catholic Diocese of Albany, 745 F.3d at 35 (quoting Cheney, 542 U.S. at 380-81). “Failure to satisfy any one of these prongs is dispositive . . . .” Linde v. Arab Bank, PLC, 706 F.3d at 108. The standard of review “is necessarily more deferential to the district court than would be [the Court’s] review on direct appeal.” Id. at 108-09. Petitioners must also show that they have no adequate means to attain the relief that they desire after a final judgment, by demonstrating that “issuing the writ would prevent an otherwise ‘irreparable harm.’” Id. at 107 (quoting In re City of New York, 607 F.3d 923, 929 (2d Cir. 2010)). This requirement ensures that “‘the writ will not be used as a substitute for the regular appeals process.’” Id. (quoting Cheney, 542 U.S. at 380-81).

ARGUMENT

I. PETITIONERS DO NOT HAVE A “CLEAR AND INDISPUTABLE” RIGHT TO RELIEF

A. The District Court Correctly Denied Petitioners’ Jurisdictional Motions The District Court’s rejection of petitioners’ arguments under Goodyear, Daimler and Gucci was correct for three reasons: first, those cases involved business organizations engaged in international commerce, rather than the sui generis stateless entities here, bringing this case within Daimler’s “exceptional circumstances” (assuming that Daimler even applies); second, those cases involved tradi-

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tional limits on the States imposed by the Fourteenth Amendment, rather than the less restrictive limits on the Federal Government imposed by the Fifth Amend- ment; and third, in Daimler the Supreme Court did not address the method of acquiring jurisdiction that was authorized in the ATA by Congress and used here. 1. Daimler identifies the “paradigm forum” for general jurisdiction over corporations as the place of incorporation and principal place of business. For corporations, these have the “virtue” of being “unique” and “easily ascertainable.” 134 S. Ct. at 760. But petitioners are not corporations engaged in commerce.

They are stateless entities. Recognizing that, the District Court found this action to be an “exceptional case” requiring a different analysis not governed by the “traditional analysis of determining a defendant’s place of incorporation or principal place of business.” Pet. Ex. 1 at 3. The District Court also recognized that international comity considerations drove Daimler, where the Supreme Court sought to provide “greater predictability” and to create “simple jurisdictional rules” to encourage foreign corporations to do business in the United States. Accord Gucci, at 135 (noting Daimler’s concern for “the risks to international comity of an overly expansive view of general jurisdiction.”). Petitioners have offered no grounds for concluding that jurisdiction would conflict with foreign laws or competing inter-state sovereign interests. Pet. Ex. 1 at 4, n.5. Nor can they, since there is no sovereign state of Palestine.4 And there is

4 See Sokolow, 583 F.Supp.2d at 457-458; Ex. Q at 2 (Secretary of State Kerry: “there is no state.”).

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certainly no evidence that Congress had any desire to provide “greater predictability” or “simple jurisdictional rules” for terrorists: The legislative history of the ATA, Executive Orders signed by two United States Presidents, and the participation by the Unit- ed States in international treaties and an international task force, establish this country’s profound and compelling interest in combating terrorism at every level . . . . Strauss v. Credit Lyonnais, S.A., 249 F.R.D. 429, 443-44 (E.D.N.Y. 2008); accord Wultz v. Bank of China Ltd., 910 F. Supp. 2d 548, 559 (S.D.N.Y. 2012) (“When the U.S. interest in fully and fairly adjudicating matters before its courts is com- bined with its interest in combating terrorism, the U.S. interest is elevated to nearly its highest point . . . .”). Petitioners point out that two district courts have extended Goodyear and Daimler to non-corporate defendants. Pet. at 17 (citing Krishanti v. Rajaratnam, No. 2:09-Civ.-05395, 2014 WL 1669873 (D.N.J. Apr. 28, 2014); Toumazou v. Turkish Republic of N. Cyprus, 09-Civ.-1967, 2014 WL 5034621 (D.D.C. Oct. 9, 2014)). Unlike the decision in this case, those decisions do not analyze whether entities like these unique petitioners fall within Daimler’s reservation for “exceptional circumstances.” 2. Goodyear and Daimler were decided under the Fourteenth Amend- ment, not the Fifth Amendment, which controls in cases arising under federal law.5

5 See, e.g., Chew v. Dietrich, 143 F.3d 24, 27-28 & n.4 (2d Cir. 1998) (applying Fifth Amendment in case under Jones Act); Mariash v. Morrill, 496 F.2d 1138, 1143-44 (2d Cir. 1974) (same, for Securities Exchange Act case); see generally 1993 Advisory Comm. Notes to Fed. R. Civ. P. 4(k) (“[C]onstitutional limitations on the exercise of territorial jurisdiction by federal courts over persons outside the Footnote continued on next page

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In an amicus brief in Daimler, the Solicitor General requested that the Supreme Court limit its analysis in that case to the Fourteenth Amendment because “exer- cises of the federal judicial power are, as a constitutional matter, constrained instead by the Due Process Clause of the Fifth Amendment” and raise different concerns than those arising under the Fourteenth Amendment. Brief of the United States in Daimler, 2013 WL 3377321 at * 3 (July 5, 2013). The distinction is a sound one: “an inquiry into fairness under the Due Pro- cess Clause of the Fifth Amendment tends to focus on the same factors considered under the minimum contacts test, but is often applied with more flexibility than under the Fourteenth Amendment analysis.” Charles A. Wright & Arthur R. Mil- ler, et al., Federal Practice and Procedure § 1068.1 (3d ed. 2014 online). Thus, although this Court has said (in a case that did not have national security implica- tions) that the Fifth and Fourteenth Amendment analyses are “basically the same,” Chew, 143 F.3d at 28 n.4, it has applied the minimum contacts test under the Fifth

Amendment to permit jurisdiction over defendants engaged in commercial activities entirely overseas. In SEC v. Unifund SAL, the court exercised personal jurisdiction in a civil case challenging insider trading through a foreign affiliate of a

U.S. broker because insider trading “has serious effects that can reasonably be expected to be visited upon United States shareholders where . . . the securities are those of a United States company traded exclusively on a United States exchange.”

Footnote continued from previous page United States . . . arise from the Fifth Amendment rather than from the Fourteenth Amendment[.]”).

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910 F.2d 1028, 1033 (2d Cir. 1990).6 In the terrorism context, this Court has been especially protective of the federal government’s power to exercise jurisdiction over persons acting abroad to harm the interest of the United States or its citizens. In United States v. Yousef, the Court upheld, against a Fifth Amendment due process challenge, the prosecution of individuals who bombed a foreign airline flight—even though no U.S. national was injured—because it was a “test-run” in furtherance of a larger conspiracy to “inflict injury on [the United States] and its people and influence American foreign policy[.]” 327 F.3d 56, 112 (2d Cir. 2003). In United States v. Al Kassar, this Court rejected a Fifth Amendment due process challenge to a prosecution to sell arms abroad “with the understanding that they would be used to kill Americans and destroy U.S. property,” because “the aim therefore was to harm U.S. citizens and interests and to threaten the security of the United States.” 660 F.3d 108, 118 (2d Cir. 2011). The fact that the “sting operation” took place “entirely outside the

United States and involv[ed] solely foreign citizens” did not deprive the U.S. courts of jurisdiction: “For non-citizens acting entirely abroad, a jurisdictional nexus exists when the aim of that activity is to cause harm inside the United States

6 See Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 207-08 (2d Cir. 2003) (minimum contacts satisfied by attending a single meeting in a foreign country “in which price-fixing activities took place.”); In re Grand Jury Subpoena Directed to Marc Rich & Co., A.G., 707 F.2d 663, 666-68 (2d Cir. 1983) (enforcing grand jury subpoena to investigate Swiss corporation’s alleged evasion of U.S. tax laws).

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or to U.S. citizens or interests.” Id.7 Applying a more expansive approach to jurisdiction under the Fifth Amendment than under the Fourteenth also makes sense because the Fourteenth “‘ensure[s] that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.’” Handley v. Ind. & Mich. Elec. Co., 732 F.2d 1265, 1271 (6th Cir. 1984) (quoting World-Wide Volkswagen v. Woodson, 444 U.S. 286, 291-92 (1980)).8 Federal interests, by contrast, stretch broadly in many areas that are off-limits to the States, but that are central to this case—including foreign policy, national security, and international law enforcement. Extending Fourteenth Amendment rules to cases under the Fifth Amendment could have grave, unintended consequences for prosecutions of international terrorists. Many of those on the FBI’s most-wanted terrorists list committed their crimes outside the territory of the United States, but hurt U.S. citizens or U.S. interests.9 If the narrower concepts in the Fourteenth Amendment

7 See In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 93-94 (2d Cir. 2008) (“primary participants” in “terrorist attack[s] on . . . citizen[s] of the United States” have been held repeatedly to have engaged in “purposeful direction” at the United States), abrogated on other grounds by Samantar v. Yousuf, 560 U.S. 305 (2010). 8 Wright & Miller, Federal Practice and Procedure § 1068.1 (“The Fourteenth Amendment function of protecting the several states’ status as coequal sovereigns seemingly ought to be of no relevance to the parallel analysis under the Due Pro- cess Clause of the Fifth Amendment . . . .”). 9 For example, Ali Atwa and Mohammed Ali Hamadei are wanted for hijacking a commercial airliner en route from Athens to Rome, during which a U.S. citizen was murdered. Ibrahim Salih Mohammed Al-Yacoub is wanted for conspiracy to kill U.S. citizens by bombing the Khobar Towers in Saudi Arabia. Abdullah Ah- Footnote continued on next page

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applied to the Fifth Amendment, such prosecutions would be called into question. In addition, importing Fourteenth Amendment limitations into the Fifth Amendment would irrationally place greater limits on the exercise of civil jurisdiction than on the exercise of criminal jurisdiction. As one court has observed, Con- gress has passed numerous statutes that contemplate the assertion by a United States court of jurisdiction over a foreign national for terrorist activities committed abroad, irrespec- tive of the number and nature of that individual’s other “contacts” with the United States. It logically follows that if federal courts may constitutionally exercise criminal jurisdiction over such individuals, the Constitution should be no bar to those same federal courts, in a civil action for damages, exercising civil in personam jurisdiction over those same individuals for the same acts. Pugh v. Socialist People’s Libyan Arab Jamahiriya, 290 F. Supp. 2d 54, 59 (D.D.C. 2003). 3. Rule 4(k)(1)(C) provides that service of process “establishes personal jurisdiction over a defendant . . . when authorized by a federal statute.” Respond- ents obtained personal jurisdiction over petitioners by serving one of their senior officers in the United States, as authorized by the Anti-Terrorism Act’s nationwide service of process provision. 18 U.S.C. § 2334(a).10 Before Goodyear and Daimler, local service on an agent with a systematic and continuous presence was understood to subject a “foreign corporation to the

Footnote continued from previous page med Abdullah is wanted for murdering U.S. nationals in Africa. And Faouzi Mohamad Ayoub is wanted for using a false U.S. passport to gain entry into Israel for the purpose of conducting a terrorist bombing there. See FBI’s Most Wanted Terrorists (www.fbi.gov/wanted/wanted_terrorists). DE 476-#4. 10 See Return of Serv. on Hassan Abdel Rahman (June 3, 2004), DE 2.

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general jurisdiction of the [local] courts in matters to which [the forum’s] tenuous relation would not otherwise extend.” Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 892-93 (1988). Indeed, the availability of general jurisdiction over a defendant whose agent is systematically and continuously present was the rule for more than a century.11 Daimler did not discuss those cases, or how they might apply where Congress has provided for nationwide service of process on an agent.12 However, it would appear to comport with traditional notions of fair play

11 St. Clair v. Cox, 106 U.S. 350, 356 (1882) (“If a state permits a foreign corporation to do business within her limits, and at the same time provides that in suits against it for business there done, process shall be served upon its agents, the provision is to be deemed a condition of the permission; and corporations that subse- quently do business in the state are to be deemed to assent to such condition as fully as though they had specially authorized their agents to receive service of the process.”); see State of Washington v. Superior Ct. of Wash., 289 U.S. 361, 364-65 (1933) (“It has repeatedly been said that qualification of a foreign corporation in accordance with the statutes permitting its entry into the state constitutes an assent on its part to all the reasonable conditions imposed.”); In re Hohorst, 150 U.S. 653, 663 (1893) (“The firm of Kunhardt & Co. being the financial agents of the corporation, the office of the firm being in the city of New York, and being the office of the corporation for the transaction of its monetary and financial business in this country, the service of the subpoena in New York upon the head of the firm as general agent of the corporation was a sufficient service upon the corporation.”); Moss v. Atl. Coast Line R.R. Co., 157 F.2d 1005, 1007 (2d Cir. 1946) (defendant “was so conducting business in New York by means of such agents there resident that valid service could be, and was, made upon it in that state”); Smolik v. Phila- delphia & Reading Coal & Iron Co., 222 F. 148, 150-51 (S.D.N.Y. 1915) (L. Hand, J.) (service on registered agent subjects corporation to general jurisdiction). 12 Similarly, Gucci did not involve a nationwide service of process statute. Un- like Section 2334(a) (applicable here), the Lanham Act (under which Gucci sued), does not authorize nationwide service of process. Sunward Elecs. v. McDonald, 362 F.3d 17, 22 (2d Cir. 2004).

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and substantial justice under the Fifth Amendment for Congress to provide for jurisdiction based on service on a local agent of an entity that maintains a systematic and continuous presence in the United States—such jurisdiction was (at least until Goodyear and Daimler) a familiar feature of the legal landscape, taught to first- year law students for generations. The Supreme Court’s caution in not discarding that traditional framework for all cases is consistent with the views of the United States in Daimler, which emphasized that Daimler did not “involve an Act of Congress . . . reflecting Con- gress’s judgment concerning relevant contacts with a forum for jurisdictional pur- poses.” 2013 WL 3377321 at * 3. The Solicitor General expressed the views of the United States that “the political Branches are well positioned to determine when the exercise of personal jurisdiction will, on balance, further the United States’ interest, [and] the United States has an interest in ensuring proper regard for their judgments in this field.” Id.

In reality, the Petition asks this Court to extend Goodyear and Daimler to a context not presented in those cases, in a manner that would require this Court to answer a question not addressed in Daimler—and in a way that would hold uncon- stitutional the judgment of Congress as to the manner of obtaining jurisdiction over a defendant sued under the Anti-Terrorism Act. Even on its own terms, the Peti- tion does not establish a “clear right” to mandamus.

B. Alternate Grounds Establish Personal Jurisdiction The Petition fails to address the other bases on which the District Court’s personal jurisdiction rests. This Court is free to deny mandamus on “any ground in

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the record.” In re Certain Underwriter, 294 F.3d 297, 302 (2d Cir. 2002).

1. The Court Has Specific Jurisdiction Over Petitioners In determining whether a defendant’s contacts are sufficient for a constitutional assertion of specific jurisdiction, courts consider “the relationship among the defendant, the forum, and the litigation.” Walden v. Fiore, 134 S. Ct. 1115, 1121

(2014) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984), quoting, in turn, Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). Specific jurisdiction may be exercised where a claim “arises out of or relates to defendants’ contacts” with the United States. Chew, 143 F.3d at 28 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984) (emphasis added)); Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 167 (2d Cir. 2010) (district court

“too narrowly construes the nexus requirement, which merely requires the cause of action to ‘relate to’ defendant’s minimum contacts with the forum”); Gucci, 768 F.3d at 141 (“arises out of or relates to the defendants’ contacts”).

“The question is whether a defendant has followed a course of conduct directed at the society or economy existing within the jurisdiction of a given sovereign, so that the sovereign has the power to subject the defendant to judgment concerning that conduct.” J. McIntyre Mach., 131 S. Ct. at 2789. This Court has iden- tified several methods of meeting the minimum contacts requirement for specific jurisdiction, including contact with the forum that is part of an overall “plan” directed at least in part to the jurisdiction; sufficient related activity within the jurisdiction; and in-state effects of completely extraterritorial activity.

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a. A Plan Directed at the United States. The offending conduct may be “a part of a larger business plan purposefully directed at [the relevant jurisdiction].” Chloe, 616 F.3d at 167. In Chloe, the court had specific jurisdiction over a seller of counterfeit goods because a single sale was part of a larger “plan” directed at customers in New York. Here, petitioners’ overall “plan” was directed in material part at the United States. Terrorism is not mindless violence. By definition, terrorism is violent or dangerous criminal conduct that appears intended to “influence the policy” or “affect the conduct” of a government. 18 U.S.C. § 2331(1)(B). Petitioners’ political goal was to obtain territorial concessions from Israel, and—given their perception of U.S. leverage over Israel—one apparent goal of the terror campaign was influencing U.S. policy and affecting the conduct of the U.S. Government in favor of achieving those territorial objectives. The evidence reveals a two-pronged approach by petitioners: (a) carrying out a massive terror campaign in Israel in which many Americans were killed and injured, in order to influence the conduct and policies of the governments of the United States and Israel; and (b) arguing in the United States through their U.S.-based staff that the terror campaign would stop when petitioners achieved their political goals. Respondents repeatedly and openly stated their intention to use their terror campaign to influence U.S. policy. Here are some of their own words:  “There needs to be action and greater pressure, letting the United States of America know that the continuation of their flagrant bias toward the interests of the Zionist entity and against the rights of our people, will be an incentive for our Nation’s masses to move in earnest to threaten U.S. interests

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in the region in all their economic, political and security forms. The battle is open, bloody and fierce and nobody can escape its fire except by engaging in it side by side with our inalienable national rights . . . Let victory be achieved, God Willing.” Ex. M (Pls. Tr. Ex. 913) at 3.13  “[T]here must be a national, patriotic and Islamic message to the U.S. Administration in the form of a letter of a clearly defined position, placing on the palm scales, on the one hand American interests in the region, and on the other hand their bias and outrageous support of the fascist Zionist entity and the butcher Sharon, who brings to mind a picture of Nazism in the ugliest of its images.” Ex. L (Pls. Tr. Ex. 912) at 2.  “The European nations and the U.S., who have strategic interests in the region, are called upon to see the necessity of urgent and immediate action to stop Israeli practices against the Palestinian people. Without this, their vital interests shall be directly jeopardized, and this shall redound adverse- ly on their people and communities . . . .” Ex. F (Pls. Tr. Ex. 175) at 7.  “Wherever you are—kill those Jews and those Americans who are like them and those who stand with them. They are all together against the Arabs and the Muslims.” Ex. K (Pls. Tr. Ex. 644).  “The martyrdom seekers of today [i.e., the September 11 at- tackers] are the finest successors of the finest predecessors. These martyrdom seekers are the salt of the earth and the engines of history . . . . They are more honorable than us all . . . .” Ex. N (Pls. Tr. Ex. 1074). b. Activity in the United States. The District Court found that petitioners were continuously and systematically present in the United States. DE 87 at

13 Documents designated by respondents as trial exhibits are referred to as “Pls. Tr. Ex.”

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14-15.14 Petitioners used their U.S. office, U.S. lobbying firm, and U.S.-based officers and employees to publicize their message that the violence would end only if the government of Israel acceded to their political goals. Petitioners pressed that agenda not only through their terror campaign, but also in the United States. In one prominent example, PLO leader Marwan Barghouti wrote an op-ed piece in the Washington Post entitled “Want Security? End the Occupation.” Ex. J (Pls. Tr. Ex. 497). Examples of statements made by Yasser Arafat and other PLO and PA representatives between 2000 and 2004 (the period of the attacks) while in the

United States, which show the substance of this message, are attached at Ex. O (Pls. Tr. Ex. 1119). Where, as here, a defendant is systematically and continuously present in the

United States, that defendant may be subject to specific personal jurisdiction even if its conduct within the forum is merely “related to” the claim. See, e.g., Chew, 143 F.3d at 28; SEC v. Straub, 921 F. Supp. 2d 244, 253-54 & n.6 (S.D.N.Y.

2013); see also Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 128 (2d Cir. 2002) (“[W]hile these [New York] contacts may not have directly given rise to the plaintiff’s cause of action, they certainly ‘relate to’ it.”); Chloe,

616 F.3d at 167. Here, petitioners’ U.S.-based media campaign was not merely “related to”

14 The District Court found (consistent with findings by every other court to have considered the issue) that the D.C. office and employees “simultaneously served as an office for the PLO and the PA,” and that the activities of the D.C. office were “attributable to both the PLO and the PA.” DE 87 at 8-9.

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the terror acts giving rise to this case; it was directly tied to the terror campaign. Petitioners’ publicity and lobbying campaign within the United States sought to achieve the same goals as their terror campaign. Petitioners’ demands for policy changes in the U.S. “related to” violence in Israel in the same way a protection racket’s demands for money in one state would “relate to” violence in another state in furtherance of the racket. Terror abroad was intended to influence U.S. policy. c. Effects on the United States and its Citizens. “The effects test is a theory of personal jurisdiction typically invoked where . . . the conduct that forms the basis for the controversy occurs entirely out-of-forum.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 173 (2d Cir. 2013). This Court has repeatedly upheld the exercise of jurisdiction where petitioners “expressly aimed” their conduct at U.S. citizens or U.S. interests. This Court has upheld specific jurisdiction against Fifth Amendment challenges where the defendant engaged in insider trading abroad,15 attended a price-fixing meeting in a foreign country,16 as- sisted from abroad in the evasion of U.S. tax laws,17 placed a bomb on a non-U.S. airliner traveling between non-U.S. cities,18 and even conspired to sell arms abroad “with the understanding that they would be used to kill Americans and destroy

U.S. property.” Al Kassar, 660 F.3d at 118. The United States has a strong inter-

15 SEC v. Unifund SAL, 910 F.2d 1028, 1033 (2d Cir. 1990). 16 Magnetic Audiotape Antitrust Litig., 334 F.3d 204. 17 In re Grand Jury Subpoena, 707 F.2d 663. 18 United States v. Yousef, 327 F.3d 56 (2d Cir. 2003).

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est in asserting jurisdiction over those who kill and injure U.S. citizens. Congress has expressed that interest by passing extraterritorial legislation imposing criminal and civil legal consequences for such conduct. Moreover, the injured included family members physically present in the United States at the time of their injuries, because “[c]ourts that have considered this issue universally allow ATA claims based on the emotional distress that U.S. nationals experience as a result of the death or injury of their family members.” Ex. B (DE 646) at 8, n.8. As discussed above, to hold that those who perpetrate such crimes are immune from jurisdiction in the United States unless their violent actions physically occur on U.S. soil would have serious unintended consequences. ***

At minimum, this Court’s consideration of specific jurisdiction should be de- ferred until after trial. Where, as here, the evidence on specific jurisdiction is “in- terwoven with the underlying merits” of a claim, this Court leaves genuinely disputed jurisdictional issues for trial. Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 86-87 (2d Cir. 2013); Alliance For Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 87-89 (2d Cir. 2006) (“If . . . the overlap in the evidence is such that fact-finding on the jurisdictional issue will adjudicate factual issues required by the Seventh Amendment to be resolved by a jury, then the Court must leave the jurisdictional issue for the trial.”).

2. Petitioners Waived Their Jurisdictional Arguments Petitioners waived the jurisdictional arguments they now seek to raise. They expressly waived by giving written consent to the District Court’s jurisdiction; they

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waived by continuing to litigate the case for two years after the Goodyear argument they now raise was available to them; and they again waived by failing to raise the argument in a motion for judgment on the pleadings at a time when the argument was available to them. Fed. R. Civ. P. 12(h). First, in their 2011 letter to the District Court, petitioners gave written consent “to allow the case to proceed before this [District] Court” solely to avoid a decision on respondents’ motion to change venue. DE 476-#3. Petitioners had argued that lack of venue precluded personal jurisdiction over them; they then volun- tarily consented to have the case continue in the Southern District of New York. Their waiver of objections to venue also waived objections to personal jurisdiction. Richardson Greenshields Secs., Inc. v. Metz, 566 F. Supp. 131, 133 (S.D.N.Y.

1983) (“A waiver of objection to venue would be meaningless . . . if it did not also contemplate a concomitant waiver of objection to personal jurisdiction.”) (citing Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Lecopulos, 553 F.2d 842, 844 (2d

Cir. 1977)); CA, Inc. v. Stonebranch, Inc., 2014 WL 917269 at *6 (E.D.N.Y. Jan. 27, 2014), adopted in relevant part 2014 WL 931223 (E.D.N.Y. Mar. 7, 2014) (federal courts consistently hold that an agreement to submit to venue necessarily serves as consent to personal jurisdiction) (collecting cases).19

19 Accord CV Holdings, LLC v. Bernard Technologies, Inc., 14 A.D.3d 854, 855 (3d Dept 2005) (“Although defendant now contends that this clause cannot be deemed a consent to personal jurisdiction because it uses the word ‘venue’ instead of ‘jurisdiction,’ we agree with plaintiff that to interpret the provision as defendant urges would render it meaningless inasmuch as a court that lacks jurisdiction cannot, at the same time, be the proper venue for an action.”). While this question usu- Footnote continued on next page

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Second, petitioners waived the “essentially at home” argument they now assert by failing to raise it in 2011 promptly after it was established in Goodyear, and by instead continuing to litigate the case. Goodyear unambiguously held that a court “may assert general jurisdiction over foreign (sister-state or foreign-country) corporations . . . when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” 131 S. Ct. at 2851 (emphasis added). Daimler itself said that Goodyear was the “pathmarking opinion” and that “the Court made plain in Goodyear and repeats here [that] general jurisdiction requires affiliations ‘so “continuous and systematic” as to render [the foreign corporation] essentially at home in the forum State.’” 134 S. Ct. at 758 n.11, 760 n.16 (quoting Goodyear). This Court too has confirmed that the “essentially at home” standard was “set forth in Goodyear” and merely “clarified in Daimler.” In re Roman Catholic Diocese of Albany, New York, Inc., 745 F.3d at 37. Thus, everything that petitioners argued in their motion for reconsideration in

2013 was available in 2011, after Goodyear. Petitioners knew this. They not only cited Goodyear to the Supreme Court in 2011,20 they moved to dismiss another case for lack of personal jurisdiction prior to Daimler, arguing that they were not “at home” in the United States. See Mem.

Footnote continued from previous page ally arises in the context of pre-litigation contracts, a stipulation during litigation is merely a form of contract. The fact that the stipulation here was drafted and executed by experienced litigation counsel means the cases regarding pre-litigation contracts apply here a fortiori. 20 Mohamad v. Rajoub, 2011 WL 3664462, at *17.

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in Supp. of Mot. to Dismiss, dated June 5, 2013, Livnat v. Palestinian Authority, 13-cv-00498 (E.D. Va.), Docket Entry #6 at 19-20 (arguing that, in Goodyear, “the Court explained that general jurisdiction permits a court to hear any and all claims against a foreign entity ‘when their affiliations with the State are so “continuous and systematic” as to render them essentially at home in the forum state.’”) (emphasis added). Petitioners’ recognition in 2011 that Goodyear had created a new standard was similar to that of other litigants, courts and commentators.21 Previously unavailable defenses must be raised “as soon as their cognizability is made apparent.” Holzsager v. Valley Hosp., 646 F.2d 792, 796 (2d Cir. 1981). Otherwise, the new defense is subject to waiver “by failure to assert it seasonably, by formal submission in a cause, or by submission [to the court’s jurisdiction] through conduct.” Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 (1939). The “at home” defense created by Goodyear became available in June 2011. But instead of invoking that defense seasonably, petitioners

21 See, e.g., Lindsey v. Cargotec USA, Inc., 2011 WL 4587583, at *1 (W.D. Ky. Sept. 30, 2011) (requesting supplemental briefing on personal jurisdiction in light of Goodyear); Holocaust Victims of Bank Theft v. Magyar Nemzeti Bank, 807 F. Supp. 2d 699, 704 (N.D. Ill. 2011) (citing Goodyear in argument that court should reconsider prior personal jurisdiction ruling); Russell v. SNFA, 987 N.E.2d 778, 783-84 (Ill. 2013) (directing reconsideration of earlier jurisdictional decision in light of Goodyear); Colony Nat'l. Ins. Co. v. DeAngelo Bros., Inc., No. 13–0401, 2014 WL 1315391, at *4 n. 3 (M.D.Pa. Mar. 28, 2014) (“[I]n the years since Goodyear, Pennsylvania district courts have indeed treated the ‘at home’ language as a precedential requirement, and not illustrative.”); Allan R. Stein, “The Meaning of ‘Essentially at Home’ in Goodyear Dunlop,” 63 S.C. L. Rev. 527, 532 (2012) (“[T]he essentially at home standard does not appear in any prior federal or state judicial decision”).

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participated aggressively in the action for years—repeatedly invoking the District Court’s power for their own benefit—without raising an “at home” defense to the assertion of the court’s jurisdiction after it became available in 2011. See Hamil- ton v. Atlas Turner, Inc., 197 F.3d 58, 61-63 (2d Cir. 1999) (defendant forfeited its objection to personal jurisdiction by failing to litigate objection over a four-year period and engaging in extensive pre-trial litigation).22 Other courts have confirmed that, by waiting until after Daimler to raise their Goodyear-based “essentially at home” defense while continuing to litigate, these petitioners waived that defense. In Gilmore v. Palestinian Interim Self- Government Authority, 8 F. Supp. 3d 9, 14-18 (D.D.C. 2014), the Court held that the PLO and Palestinian Authority waived this defense by failing to “invoke the ‘at home’ rule as soon as Goodyear made that argument cognizable,” and by instead litigating “this case on its merits for more than two and a half years,” and noting that “defendants themselves, represented by the same counsel as in this case, twice invoked Goodyear’s “at home” standard before Daimler was decided.” See also Am. Fidelity Assurance Co. v. Bank of New York Mellon, No. Civ-11-1284-D, 2014 WL 4471606, at *3 (W.D. Okla. Sept. 10, 2014) (defendant waived objection to personal jurisdiction based on the “essentially at home” test after Daimler because “the standard Defendant relies upon was not pronounced by the Supreme

22 See, e.g., Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994, 996-97 (1st Cir. 1983) (by participating in extensive discovery and waiting to move for dismissal, defendant waived objection based on lack of personal jurisdiction); Burton v. N. Dutchess Hosp., 106 F.R.D. 477, 480-82 (S.D.N.Y. 1985) (same).

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Court in Daimler, but was pronounced more than two years earlier in [Good- year].”). Third, petitioners are barred from now asserting a personal jurisdiction defense because they failed to include that defense in their Rule 12(c) motion for judgment on the pleadings, filed in January 2012—seven months after Goodyear was issued and five months after petitioners cited Goodyear in the Supreme Court.23 Rule 12(g) provides in relevant part that “a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.” Fed. R. Civ. P. 12(g). And Rule 12(h) provides that a party waives any defense based on personal jurisdiction that is omitted from a Rule 12(c) motion. Fed. R.

Civ. P. 12(h). After Goodyear, the “essentially at home” defense was unquestion- ably “available,” as the petitioners themselves raised it in other cases starting in August 2011. Gilmore, 8 F. Supp. 3d at 14-18. 3. These Respondents Have No Due Process Rights Goodyear and Daimler are also irrelevant (and there is no basis for mandamus) because, as foreign governmental bodies, respondents have no due process rights.24 This Court has held that foreign States do not have due process rights.

23 Mohamad v. Rajoub, No. 11-88, 2011 WL 3664462, at *17 (Aug. 19, 2011). 24 Respondents concede that they are a “foreign government.” See Letter from Mark Rochon to Hon. George B. Daniels (Feb. 26, 2014) at 4, DE 433. As the District Court has also noted in this case, respondents acknowledge that they are “performing core governmental functions.” Sokolow v. Palestine Liberation Or- ganization, 583 F. Supp. 2d 451, 457 (S.D.N.Y. 2008).

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Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393, 398-400 (2d Cir. 2009). In Frontera, the Court explained that “a ‘foreign State lies outside the structure of the Union.’” 582 F.3d at 399 (quoting Principali- ty of Monaco v. Miss., 292 U.S. 313, 330 (1934)). The Court therefore held that “we ‘are unwilling to interpret the Due Process Clause as conferring rights on foreign nations that States of the Union do not possess.’” Id. (quoting Price v. Social- ist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 99 (D.C. Cir. 2002)). This reasoning applies to petitioners. Two cases have held that the PLO does not have constitutional rights. In Mendelsohn v. Meese, 695 F. Supp. 1474, 1480-81 (S.D.N.Y. 1988), the court held that the PLO is “a foreign power with no constitutional rights.” The court explained: “A ‘foreign state lies outside the structure of the Union.’ The same is true of the PLO, an organization whose status, while uncertain, lies outside the constitutional system. It has never undertaken to abide by United States law or to ‘accept the constitutional plan.’” Id. at 1481

(quoting Principality of Monaco, 292 U.S. at 330). Similarly, in Palestine Inf. Of- fice v. Shultz, 674 F. Supp. 910, 919 (D.D.C. 1987), aff’d, 853 F.2d 932 (D.C. Cir. 1988), the district court held that a “foreign political entity” such as the PLO “has no due process rights under our Constitution.”25

25 On appeal, the D.C. Circuit affirmed. It held that the appellants—a group of U.S. citizens and resident aliens—had no constitutional right “to represent the PLO.” 853 F.2d at 941. It allowed that as “American citizens,” appellants had limited due process and associational rights (which were not violated), id. at 942, but it did not disturb the district court’s holding that a foreign political entity has no constitutional rights.

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Similarly, the Palestinian Authority is a non-sovereign, local government created by an agreement between the PLO and Israel. See Ungar v. PLO, 402 F.3d 274, 288-92 (1st Cir. 2005); Knox v. PLO, 306 F. Supp. 2d 424, 430-48 (S.D.N.Y. 2004). It is well established that governmental entities are not “persons” within the meaning of the due process clause. 26 Thus, the Palestinian Au- thority is simply not a “person” entitled to due process rights. The reason for excluding a governmental entity from the definition of “person” in the due process clause is equally valid and compelling whether the entity is foreign or domestic, sovereign or non-sovereign.27 Indeed, courts have applied this rule to governmental entities such as Puerto Rico and the Virgin Islands which—

26 See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966) (states are not “persons” under the Fifth Amendment), abrogated on other grounds by Shelby Cnty., Ala. v. Holder, 133 S. Ct. 2612 (2013); City of E. St. Louis v. Circuit Ct. for Twentieth Judicial Circuit, St. Clair Cnty., Ill., 986 F.2d 1142, 1144 (7th Cir. 1993) (“Municipalities cannot challenge state action on federal constitutional grounds because they are not ‘persons’ within the meaning of the Due Process Clause.”); In re Scott Cable Commc’ns, Inc., 259 B.R. 536, 543 (D. Conn. 2001) (“Government entities have no right to due process under the Fifth Amendment’s due process clause.”); El Paso Cnty. Water Imp. Dist. No. 1 v. Int’l Boundary and Water Comm’n, 701 F. Supp. 121, 123-24 (W.D. Tex. 1988) (dismissing plaintiff’s constitutional claim because the Fifth Amendment was “inapplicable”). 27 While a few cases have used language to the effect that municipal governments created by the States of the Union do not have due process rights because the States cannot confer a status which they themselves lack, this rationale has been criticized as erroneous because “constitutional rights are supposedly non- transferrable (read ‘inalienable’) and, therefore, cannot be imparted on an individual or organization by the state, a citizen or anything else, aside from the Constitu- tional provisions.” Water Works & Sewer Bd. of the City of Birmingham v. U.S. Dept. of Army, Corps of Engineers, 983 F.Supp. 1052, 1063 n.7 (N.D. Ala. 1997).

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like the Palestinian Authority—are not foreign states, States of the Union, or crea- tures of the latter. See Puerto Rico Pub. Hous. Admin. v. U.S. Dep’t of Hous. & Urban Dev., 59 F. Supp. 2d 310, 325 (D.P.R. 1999); Virgin Islands v. Miller, 2010 WL 1790213, at *5 (V.I. Super. May 4, 2010).28

II. MANDAMUS IS NOT APPROPRIATE IN THE CIRCUMSTANCES OF THIS CASE Mandamus is not appropriate under the circumstances of this case, for two reasons. First, petitioners are guilty of inexcusable delay in seeking relief. Having waited eight months following the denial of their motion to reconsider to bring their petition (on top of their delay of over two years after Goodyear), petitioners now seek to impose on the parties and this Court a one-month sprint, all in an ef- fort to derail the trial. They have used their Petition as a grounds for seeking to stay the trial, which would wreak havoc with Judge Daniels’ docket and the sched- ules of witnesses around the world who have made travel plans for the trial.

That the Petition is merely a delay tactic is apparent from petitioners’ scan- dalous attacks on Judge Daniels. Contrary to the representations of petitioners, Judge Daniels, an experienced and diligent trial judge, has issued multiple summary judgment and in limine rulings narrowing the issues for trial and providing extensive pre-trial guidance excluding or admitting evidence, excluding or permitting witnesses, dismissing claims and parties, and otherwise charting the course of

28 Though courts have exercised personal jurisdiction over the petitioners after applying a traditional due process analysis, none of these courts ruled on whether petitioners are entitled to due process protections in the first place.

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trial. Even a cursory review of the docket reveals the extensive pre-trial guidance Judge Daniels has provided to the parties. Defendants may not like the rulings they have received, but their criticism of Judge Daniels as behind on his work in this case is blatantly false. These falsehoods are particularly ironic because it is petitioners themselves who have tarried—waiting until they lost their summary judgment motion to sand- bag the District Judge with a last-minute mandamus petition. The only reason the impending trial date leaves so little time for briefing and decision of the Petition is that petitioners elected not to file the Petition earlier. Their alleged emergency is entirely of their own making, and this Court should not reward them for their delay tactics, which threaten to disrupt the lives of many individuals who are planning to attend the trial. Petitioners have known since March that the trial would begin in January. DE 435. The courts routinely deny tardy mandamus petitions. For example, in In re

Telular Corp., 319 F. App’x 909, 911 (Fed. Cir. 2009), the court denied mandamus where the petitioner waited five months after the district court’s decision. Accord United States v. Braasch, 542 F.2d 442, 444 (7th Cir. 1976) (denying writ after five-month delay); United States v. Olds, 426 F.2d 562, 566 (3d Cir. 1970) (denying writ after three month delay); United States v. Carter, 270 F.2d 521, 524 (9th Cir. 1959) (denying writ after four-month delay).

Petitioners try to justify their eight-month delay by arguing that their summary judgment papers included a “new declaration” that gave the District Court a more complete factual record for re-re-considering their personal jurisdiction de-

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fense. The declaration does not even purport to provide the District Court with any new facts that did not exist earlier; it therefore could not support a motion for reconsideration (much less a motion for re-re-consideration) because such a motion, if based on factual matters, must point to “new evidence.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). Moreover, the few facts that the declaration contains could have been submitted with petitioners’ initial motion for reconsideration three months earlier. The principal case on which petitioners rely involved a petition for mandamus filed within 38 days of the denial of a motion for certification under 28 U.S.C. § 1292(b). In re Roman Catholic Diocese, 745 F.3d 30. That case underscores just how dilatory petitioners have been here. The petitioners in Roman Catholic Dio- cese moved to dismiss for lack of personal jurisdiction based on Goodyear in Feb- ruary 2012—nearly two years before Daimler was decided—and when the district court denied their motion, they quickly sought mandamus. By contrast, petitioners here ignored Goodyear for over two years and did not seek mandamus until the eve of trial. Second, the most petitioners could hope for would be a remand to the

District Court to consider specific jurisdiction, which must be evaluated at trial in the event of genuinely disputed facts. The two cases on which petitioners rely, in which mandamus was granted to reverse district court decisions on personal jurisdiction, arose where there was no claim whatsoever of specific jurisdiction, much less of consent, waiver or lack of due process rights. In re Roman Catholic Diocese of Albany, 745 F.3d at 38 (plaintiff conceded that there was no specific

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jurisdiction); Abelesz v. OTP Bank, 692 F.3d 638, 651 (7th Cir. 2012) (“specific personal jurisdiction does not apply here”). Here, the District Court does have specific jurisdiction and the evidence of specific jurisdiction is intertwined with the merits. Petitioners have failed to even address, much less rebut, specific jurisdiction or the other bases for exercise of jurisdiction.

III. PETITIONERS WILL SUFFER NO IRREPARABLE HARM Finally, petitioners have failed entirely to show that they will suffer irreparable harm by waiting to appeal until after final judgment. Petitioners offer two excuses for their sudden desire for the attention of this Court. Both fall apart on analysis.

A. GIS Documents Petitioners argue that expedited consideration is necessary to prevent the disclosure at trial of documents from their intelligence files, which they claim are protected by some vaguely articulated privilege. The documents are not privileged. On July 26, 2013, Magistrate Judge Ellis ruled that petitioners had “failed to justify” any claim of privilege. DE 327 at 5. Petitioners did not object to that order. Instead, they produced heavily redacted documents, in violation of Judge Ellis’s order, prompting a second order by Magis- trate Judge Ellis requiring full production. DE 380. Again, petitioners failed to object to that order. Having twice lost in their attempt to avoid producing these documents, and having twice failed to seek timely review by the District Judge, petitioners have waived those arguments. See Fed. R. Civ. P. 72(a); Caidor v. Onon- daga Cnty., 517 F.3d 601, 605 (2d Cir. 2008) (“litigant who fails to object timely

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to a magistrate’s order on a non-dispositive matter waives the right to appellate review of that order”). Moreover, petitioners’ failure to file objections simply cannot be squared with their current claim that the documents are highly sensitive. On this point, petitioners again cite In re Roman Catholic Diocese, 745 F.3d at 36. In that case, however, the Court granted mandamus to protect non-party victims of abuse from the burden of painful and highly personal discovery. The trial court had entered an order that required the defendant to provide discovery about all allegations of sexual abuse by any priest in New York over a 38-year period, and this Court found that such discovery would threaten serious injury to potentially innocent priests and “(more alarmingly) other victims (and their families) who would likely be subjected to distressing depositions, revisiting pasts that would not otherwise be revisited in a case solely against” the priest at issue. Id. at 36. Here, discovery is long over. There is no threat of harm to other victims or innocents—the intelligence files petitioners seek to hide relate to the actual perpetrators of the terrorist attacks, many of whom are either dead or in jail serving multiple life sentences for murder. The documents were produced pursuant to multiple orders by the Magistrate Judge finding that petitioners failed to justify withholding them—orders to which petitioners never objected. Tellingly, petitioners make no attempt to justify their claim that these documents will disclose confidential investigative information or techniques. The reason for this omission is simple: the documents disclose no such thing. We provide one example of the documents at issue (concerning Ahmed Barghouti, a corporal in the PA’s Civil Police force). Barghouti conspired with at

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least four other PA employees to plan and perpetrate one of the terror attacks in this case—a shooting on January 22, 2002 on Jaffa Street in downtown Jerusalem. One of the conspirators used an M-16 assault rifle to shoot 19-year old Shayna Gould of Chicago in the chest and 20-year old Shmuel Waldman of Brooklyn in the leg. Gould was listed as dead on arrival at the hospital, but physicians resusci- tated her. Both Gould and Waldman were hospitalized for lengthy periods and suffer serious effects to this day. In a public criminal proceeding in Israel, Barghouti was convicted (following a guilty plea) of murder and attempted murder for his role in the attack. Ex. G (Pls. Tr. Ex. 357 at Counts 26-28); H (Pls. Tr. Ex. 358). Immediately before he was sentenced for his crimes, Barghouti said “I have no regrets.” Ex. I (Pls. Tr.

Ex. 359) at 5. Petitioners have since his arrest and conviction. Ex. P (Pls. Tr. Ex. 1121). The documents that petitioners claim are so highly sensitive that their use at a public trial would cause irreparable harm are reports about from petitioners’ own intelligence service. The one about Barghouti states that

Ex. E (Pls. Tr. Ex. 142 at 2). That is just not the kind of information whose disclosure would cause irreparable harm—and it is not privileged.

B. Alleged Political and Financial Harm Petitioners claim that adverse publicity at trial will threaten peace in the

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Middle East because the evidence will lead the public to think that petitioners sponsor terrorism. But even without a trial, there is already plenty of evidence of petitioners’ own making to support such a conclusion. In 1987, Congress made statutory findings, which remain in force, “that the PLO and its affiliates are a terrorist organization and a threat to the interests of the United States, its allies, and to international law.” Pub. L. 100-204, § 1002 (codified at 22 U.S.C. § 5201). Not- withstanding the PLO’s periodic renunciation of terrorism, its addiction continues. On April 23, 2014, the PLO and Hamas—a designated terrorist organization— announced a “unity pact.”29 News photographs of the event showed PLO and Ha- mas delegates smiling and holding hands as they announced the “historic” agreement. Id. A “unity pact” with Hamas does not reflect that the PLO has renounced terrorism, and prosecuting this case to judgment will not undermine any U.S. foreign policy goals. To the contrary, this Court can and should follow the foreign policy decisions of the political branches of our government in this case by enforcing the statute as written. Petitioners’ claims that a large judgment would destabilize the PA are pure speculation. They have asserted the same dire “financial ruin” argument for years, and courts have rejected it. See Estate of Ungar v. Palestinian Authority, 715 F. Supp. 2d 253, 269 (D.R.I. 2010) (finding defendants had ability to pay and order- ing installment payments up to full amount of $116 million judgment); Knox v.

29 http://www.reuters.com/article/2014/04/23/us-palestinian-israel-unity- idUSBREA3M14420140423.

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PLO, 628 F. Supp. 2d 507, 510 (S.D.N.Y. 2009) (rejecting defendants’ objections, based on lack of revenues, to posting $120 million post-judgment bond). Petition- ers also pressed the same argument on the U.S. Secretary of State in 2006.30 The Secretary plainly expressed the view that these petitioners should participate in the litigation process in good faith, even if it subjects them to large judgments. Ex. S (January 12, 2007 letter from Sec. of State Rice to Abbas). This Court has rejected similar speculation about the nation of Jordan, and denied mandamus in another ATA case, Linde, 706 F.3d 92.

A claim of poverty rings particularly hollow from petitioners, because they millions of dollars each month in salaries to convicted terrorists.31 Most fundamentally, Congress has already decided that combating terrorism and compensating its victims requires potentially large awards against those who support international terrorism. Petitioners’ argument—that the Anti-Terrorism Act may work in this case precisely as Congress intended—is not the kind of harm that can justify granting mandamus. This Court should not countenance petition-

30 Ex. R (April 27, 2006 letter from Afif Safieh to Secretary of State Condoleeza Rice, requesting that the Department of State request that the Department of Justice file a Statement of Interest and seek release of funds frozen based on an order in Gilmore v. Palestinian Self-Government Authority, et al., 01-Civ.-0853 (D.D.C.)) at 2. 31 Ex. T (Palestinian Authority Ministry of Finance Monthly Report for Septem- ber 2014: Fiscal Operations—Revenues, Expenditures and Financing Sources, available at http://www.pmof.ps/documents/10180/332541/Sep.2014.Eng+.upd.pdf/4d1e6f46- 9994-4c19-840b-8cda75c3cbf1) at 18 (reflecting “functional expenditures” of Pal- estinian Authority between January and September 2014).

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ers’ last-ditch efforts to avoid their day of reckoning.

CONCLUSION The Petition should be denied.

Dated: New York, New York December 17, 2014

ARNOLD & PORTER LLP

By: /s/ Kent A. Yalowitz Kent A. Yalowitz [email protected] Philip W. Horton [email protected] Sara K. Pildis [email protected] Lucy S. McMillan [email protected] Ken L. Hashimoto [email protected] Carmela T. Romeo [email protected] Tal R. Machnes [email protected]

399 Park Avenue New York, New York 10022 (212) 715-1000

Attorneys for Respondents