AMY GOODMAN: This is Democracy Now!, democracynow.org. We’re “Breaking with Convention: War, Peace and the Presidency.” I’m Amy Goodman.

We turn now to Gaza. A three-judge panel of the U.S. Ninth Circuit Court of Appeals has rejected a lawsuit accusing President Biden of being complicit in genocide in Gaza. The judges agreed with a lower court that the courts cannot review foreign policy decisions made by the executive branch.

The Center for Constitutional Rights has sued President Biden, accusing him of failing to prevent genocide. The legal group sought an emergency order to block Biden, as well as Secretary of State Antony Blinken and Defense Secretary Lloyd Austin, from providing further military funding, arms and diplomatic support to Israel, the lawsuit filed on behalf of a group of Palestinian plaintiffs.

We go now to Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights.

Can you talk about the significance of the court dismissing your case, Kate?

KATHERINE GALLAGHER: Good morning, Amy, and thank you very much for having us on this very busy morning and for bringing attention back to Gaza, where there is an ongoing genocide against the Palestinian people. And so, it is against that backdrop that we are really deeply not only disappointed, but troubled by the unanimous decision of the Court of Appeals from the Ninth Circuit to dismiss our case.

Just to step back and explain what this case is, back in November, Defense for Children International-Palestine, Al-Haq, three Palestinians in Gaza living under the genocidal assault and five Palestinian Americans brought forward this case, framing U.S. conduct as complicity or aiding and abetting genocide and failing to prevent what was already in November a serious risk of genocide. So, they filed the case in federal court invoking clearly established law — the duty to prevent genocide and the prohibition against aiding and abetting genocide, which is codified in U.S. criminal law. It is in the Genocide Convention. And it has been recognized, including by the Biden administration, as binding customary international law. So, the plaintiffs turned to the courts and asked the courts to, please, put an injunction to stop the flow of two-ton bombs falling on Palestinian children, women, the entire population across the Gaza Strip, to stop the weapons being used in an aerial bombardment to maintain a total siege, denying food, fuel, energy, electricity, and decimating the health infrastructure, bombing hospitals and doctors. This is the case that was filed in November.

And it has been supported over the many months of litigation by a robust factual record, including findings by the International Court of Justice that there is plausible genocide in Gaza, supported by statements and reports from U.N. experts, affidavits by former State Department officials, expert opinions by the world’s leading genocide expert, William Schabas, and by historians of genocide and Holocaust studies here in the United States, that this is indeed a plausible unfolding genocide in Gaza.

And so, it is against that backdrop where there is a strong factual and legal case and unambiguous legal obligations on President Biden and Antony Blinken and Secretary of Defense Austin to not aid and abet genocide — it’s against that backdrop that the court yesterday abdicated its role and said that whenever foreign policy is invoked, the courts need to step back. They essentially said that foreign policy and conditions of war — they did not mention genocide, they did not say that this is an unfolding genocide in Gaza — but that conditions of war are ones where there really has to be deference to the executive branch, and that there isn’t a role for the courts to hold executive conduct against black-letter law and make declarations when executive conduct has exceeded what the president and his cabinet members are permitted to do. And so, they have said that this case needs to be dismissed, and essentially given the blank check to carry out any kind of conduct that the executive wants in times of genocide, in times of war, the blank check that the Supreme Court warned against and said did not exist back in the post-9/11 days in a series of cases.

AMY GOODMAN: I want to play for you — before we get to the end of this show, I want to play for you a clip of Scott Anderson, director of the U.N.'s refugee efforts in Gaza, talking about the aftermath of Israel's bombing on Saturday of al-Mawasi. That was designated as a safe zone in Khan Younis. The attacks killed at least 90 Palestinians and injured hundreds more. CNN reports at least one U.S.-made munition was used in the airstrike, identifying the tail fin of a joint direct attack munition — that’s a JDAM — a Boeing-manufactured GPS-guided kit. This is Scott Anderson.

SCOTT ANDERSON: On Saturday, I visited Nasser Hospital after a strike in the safe zone of Mawasi, and the hospital itself was in Khan Younis. I’ve been in Gaza for nine months, and I’ve witnessed some of the most horrific scenes I’ve seen in the nine months that I’ve been here. The health facility was overstretched. There were more than a hundred people injured. The air was filled with the smell of blood. And one health worker was mopping up pools of blood on the floor using only water, because there aren’t sufficient supplies of disinfectant material or other cleaning supplies to stop the spread of infection. There’s not enough beds, hygiene supplies, sheeting, mattresses or scrubs. And many patients were treated on the ground or on waiting room benches without disinfectant. And this puts even treatable injuries at risk of sepsis and much more significant complications. Now, ventilator systems were not working due to electrical problems.

And as I walked through the hospital and talked to families and children, we saw toddlers who were double amputees, children paralyzed and unable to receive treatment because they don’t have the equipment at the hospital in Khan Younis, and others who were separated from their parents. And we also saw mothers and fathers searching frantically within the hospital for their children, unsure if they were alive. One mother I talked to told me that she was told to move to Rafah because it would be safe there, and then she was told to move to al-Mawasi because it would be safe there. And unfortunately for her and her family, that was not true. And I think the words of this mother are a reminder that nowhere is safe in Gaza, and no one is safe in Gaza. That family had three children impacted by the blast. One child was completely uninjured, miraculously. Another child was paralyzed, and the other son was killed.

I mentioned that there’s nowhere safe in Gaza. And I think we saw that over the weekend both with what happened in Mawasi, but also the incident at the Beach camp, where 25 other people were killed. And what’s urgently needed is a complete ceasefire, for all parties to the conflict to protect the civilians wherever they are, but especially in U.N. schools and hospitals.

AMY GOODMAN: That’s Scott Anderson, director of the U.N.'s refugee efforts in Gaza, director of UNRWA affairs in Gaza. Katherine Gallagher, you're a senior staff attorney at the Center for Constitutional Rights. Your case was just dismissed. Talk about what your efforts are now going to be, and how what he’s describing, that happened, you know, well after you brought your lawsuit, in al-Mawasi, an Israel-designated safe zone, that killed nearly a hundred Palestinians and injured 300 more, means.

KATHERINE GALLAGHER: Amy, I wish that the clip that we just heard was an unprecedented account, but, unfortunately, it is stories like that, accounts like that, that we’ve been hearing for nine months, of Palestinians being forced from one supposed safe area to another and being bombed, whether women, children, and in this case, there have been almost 15,000 children that have been killed and 20,000 that are disappeared, that we don’t know if they are buried under rubble, if they are detained in Israeli prisons. We don’t know where they are. So, over the course of these nine months, where that account, time and time again, has been heard, what we’ve also heard is that indication that U.S. weapons are being used. And U.S. weapons continue to be sent.

So, if we have not yet succeeded through the courts — and we will consider our next options, whether in domestic courts or in foreign courts or before international bodies, where we continue to press this case — we will also be bringing the case to those who are complicit. I think it’s time for weapons companies — you mentioned Boeing in that clip — to stop sending weapons. There are legal responsibilities and, frankly, moral responsibilities.

AMY GOODMAN: We have five seconds.

KATHERINE GALLAGHER: We call on the Biden administration to heed its at least moral responsibility and stop aiding and abetting genocide.

AMY GOODMAN: Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights.

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Democracy Now! is produced with Mike Burke, Renée Feltz, Deena Guzder, Sharif Abdel Kouddous, Messiah Rhodes, Nermeen Shaikh, María Taracena, Tami Woronoff, Charina Nadura, Sam Alcoff. Special thanks to Denis Moynihan. I’m Amy Goodman.