The government pushed back on claims that it is engaged in discrimination by actively removing U.S. citizens from Israel but not Palestinian Americans from Gaza. It said that the two groups of U.S. citizens do not find themselves in the same circumstances, as one is within Israeli territory and the other is in territory being attacked by Israeli forces.
"U.S. citizens trapped in Gaza are not similarly situated to those in Israel due to a real difference in armed hostilities, and, among other practical limitations, the air, land, and sea access restrictions of Gaza," the government said in its opposition motion.
The government's core argument is that the courts can't wade into any details of the evacuation operation underway in Israel because the safety and welfare of citizens in foreign conflicts is a job that the U.S. Constitution "squarely" puts at the discretion of the executive branch, according to its filing.
But it also noted that dangers faced by Americans in Israel are not nearly as perilous as those in Gaza, which is under "ongoing naval access restrictions, closed borders, and active fighting that is blocking routes to border crossings."
"An order compelling the government to conduct an evacuation operation now could subject [Americans trapped in Gaza] and those participating in such efforts to grave danger," the government said.
The American-Arab Anti-Discrimination Committee and the Arab American Civil Rights League filed suit against the government on Monday, claiming Secretary of State Antony Blinken and Secretary of Defense Lloyd Austin's policy of evacuating Israeli Americans from the region but not Palestinian Americans is discriminatory.
James P. Allen Sr., counsel for the organizations and attorney at Schenk & Bruetsch PLC, called the government's arguments are nonsense adding that "anyone with a brain and a history book" would realize that.
"Our complaint cites just a few instances of the dozens where U.S. forces have been deployed to rescue Americans trapped in the ravages of war," He told Law360 on Wednesday. "Is Gaza any less secure than Saigon in 1975? Gaza is also a coastal city. The only naval blockade of its shores in the way of the mightiest naval force on earth is one imposed by the country we are repeatedly told is 'America's greatest ally.' The truth is that when the U.S. government decides that a life is worth saving, she has a history of putting the resources to use in saving it. This is not a question of relative danger. This is a question of will."
The lawsuit says the Israel Defense Forces has laid siege to Gaza, engaging in an "indiscriminate bombing campaign" which has hit civilian facilities, following a terror attack on Oct. 7, when Hamas fighters killed civilians and soldiers and took Israeli hostages.
The organizations claim that the government's evacuation order violates the Constitution's equal protection clause because it seeks to save Israeli Americans but not Palestinian Americans who are in the same war zone. They further claim that the action is both arbitrary and capricious as the government failed to offer "ANY" reason as to why it would not pull all noncombatant U.S. citizens out of the region.
But the government said there are "no judicially manageable standards" it could apply to this circumstance to support claims that it has breached a duty to evacuate citizens. Specifically, when the secretary of state, under the direction of the president, chooses to evacuate citizens, it is a purely "political question" that can not be overseen by the courts.
"Whether, when, and how to evacuate U.S. citizens in Gaza is one of many objectives the executive branch is currently pursuing amidst the rapidly developing geopolitical situation and active military operations in Gaza," the government said.
The plaintiffs are represented by James P. Allen Sr. of Schenk & Bruetsch PLC and Zachary A. Hallman of Meroueh & Hallman LLP.
The government is represented by Brian M. Boynton, Diane Kelleher, Jean Lin and Jonathan D. Kossak of the U.S. Department of Justice.
The case is Alarayshi et al. v. U.S. Secretary of State et al., case number 4:23-cv-12599, in the U.S. District Court for the Eastern District of Michigan.
--Editing by Linda Voorhis.
This story has been updated to include comment from the plaintiffs' counsel.
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