Department of Justice says Americans can’t challenge the legality of U.S. aid to Israel

By Grant F. Smith, Director of Research, IRmep

The U.S. Department of Justice once again insisted that individual citizens do not have standing to sue the U.S. federal government over foreign aid to Israel. Several Americans from Fagan Dickson in 1975 to author Isaac Asimov in 1991 have tried. But their claims, based on Establishment Clause separation of church and state appeals, failed.

But what about challenges to U.S. foreign aid to Israel through the Administrative Procedure Act? IRmep has filed a case that breaks into new territory. (PDF) As summarized in the Justice Department’s November 8, 2017 Appellee brief filed in the US Court of Appeals for the District of Columbia.

“Plaintiff Grant F. Smith brought suit against the United States, the President, and other senior officials alleging that each defendant, and his or her predecessor since 1978, has violated federal law by distributing foreign aid to Israel. A statute prevents the distribution of aid to any country that the President determines has engaged in certain activity related to nuclear technology. Plaintiff asserts that Israel has engaged in such activity, and that the President should so determine. Plaintiff contends that the United States has avoided applying the statute to Israel by refusing to release information to the public confirming Israel’s alleged nuclear status. Plaintiff brought suit and sought to enjoin the distribution of foreign aid to Israel. He also sought to compel the government to end so-called “nuclear ambiguity” and release unspecified information regarding Israel’s alleged nuclear status.”

The Department of Justice says the appellant does not have standing to sue for two principal reasons.

1.       “The Plaintiff suffers no individualized or concrete harm by the continued distribution of aid to Israel” or regarding “dispute regarding his entitlement to receive any particular piece of information. In this case, the information in question is US government information about Israel’s nuclear weapons.”

2.       The president alone, not facts or previous disclosures, determine whether Israel has a nuclear weapons program subject to Arms Export Control Act provisions. The President alone has discretion as to whether that determination must be made public. “The statute contains no cause of action for a private citizen to seek judicial review.”

The Appellant, Grant F. Smith of IRmep, disagrees. Enormous quantities of U.S. government information that should be released under the Freedom of Information Act and Mandatory Disclosure Review are instead withheld because they deal frankly with the subject of Israel’s nuclear weapons. In 2012 the Obama administration, not the Congress, implemented a federal gag order with the force of law to punish any federal employee or contractor who releases such information to the public. The plaintiff suffered many enumerated injuries from an unlawful “legislative rule” designed solely to protect illegal aid deliveries to Israel.

Similar to the legal challenges overturning the Obama administration’s legislative rules on immigration, known as DACA, the Appellant does have the right to seek judicial review of the unlawful legislative “Israel nuclear gag” rule, known as WPN-136. IRmep will file its response on November 22, 2017. This could clear the path for an injunction against further U.S. foreign aid disbursement to Israel.

Read case filings at the Center for Policy and Law