Federal prosecutors said Monday in a motion to dismiss the lawsuit lodged by two U.S. Arab American advocacy organizations that the groups couldn't point to any authority allowing the court to order a swift evacuation of Palestinian Americans caught up in the latest war between Israel and Hamas — because "there is none."
Prosecutors said the groups also couldn't seek the evacuation order because the groups' claims involve political matters.
The federal government's motion describes the suit as "an invitation to override the executive branch's policy-based judgments in the midst of ongoing diplomatic negotiations and active hostilities on the ground."
The American-Arab Anti-Discrimination Committee and the Arab American Civil Rights League filed their lawsuit Oct. 13, naming U.S. Secretary of State Antony Blinken and Defense Secretary Lloyd Austin as defendants. The suit alleges that the officials' departments discriminated against Palestinian Americans by denying U.S. citizens in Gaza any evacuation services while at the same time offering humanitarian flights to U.S. citizens out of Israel.
Following Hamas' Oct. 7 attack on Israel, the groups said, the Israeli Defense Forces planned to intensify attacks on Gaza's population, emphasizing that the population has been shut out of receiving water, electricity, food and medical supplies, and is facing closed, damaged and overcrowded hospitals.
An estimated 1,400 Israelis have been killed, the vast majority in the Oct. 7 attack, and roughly 5,000 people have been killed in Gaza, according to a United Nations report yesterday.
The complaint states that two Palestinian Americans who are also plaintiffs in the case were in Gaza visiting family, that they were unsuccessful in escaping Gaza through Egypt, and that the house next to them had been bombed.
The complaint urges the court to order the federal government to initiate evacuations using "all resources at their disposal that are necessary and available," such as military ships, vessels, airplanes, or contracts with private commercial shipping and airline carriers. In response, the government said Oct. 16 that conducting an evacuation operation could subject Americans in Gaza to "grave danger."
It reasoned that U.S. citizens in Gaza were "not similarly situated" to U.S. citizens in Israel due to a "real difference in armed hostilities," as well as different restrictions in access via air, land, or sea.
In Monday's motion to toss the groups' lawsuit, the government said the organizations also failed to point to any challengeable agency action regarding an evacuation or any basis for their claims of disparate treatment allegation.
"Nothing suggests that the government's current posture about the evacuation of U.S. citizens in Gaza is due to those citizens' Palestinian origin, as opposed to the difficulty and danger associated with such evacuation efforts, among other impediments," the motion says.
In any case, the government argues, the organizations lack standing to sue because their latest amended complaint fails to identify by name any members who are U.S. citizens currently trapped in Gaza.
James P. Allen of Schenk & Bruetsch PLC, an attorney for the plaintiffs, told Law360 that he was "saddened, but certainly not surprised" at the federal government's inaction as to the safe exit of U.S. citizens in Gaza.
He compared Palestinian Americans' plight to U.S. citizens who have been evacuated throughout history and said the administration is "lying when it says it cannot rescue U.S. citizens from Gaza, a coastal region."
"If we can evacuate Saigon in 1975, Baghdad in 2003, and Kabul in 2021, surely we can ask our Israeli friends to lift their blockade to allow the mightiest navy on the planet to rescue the people it swore an oath to defend," Allen said.
He further suggested that a choice by the administration not to order a swift evacuation could be a setback in the upcoming 2024 presidential elections.
"The presidential race will be decided by Michigan's Arab vote," Allen said. "When our neighbors, friends and family members come home in coffins, his platitudes won't win him any of our votes."
The U.S. Department of Justice, which represents the government, did not immediately respond to a request for comment Tuesday.
The plaintiffs are represented by Nabih H. Ayad and William D. Savage of Ayad Law PLLC, and James P. Allen of Schenk & Bruetsch PLC.
The government is represented by Jean Lin and Jonathan D. Kossak of the U.S. Department of Justice's Civil Division.
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 Amy French.
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