LAWFARE PROJECT VICTORY! U.S. Department of Transportation Finds that Kuwait Airways Operates in Violation of U.S. Law

The Lawfare Project has been working for several months to call attention to, and to prohibit and penalize, the discriminatory commercial conduct of Kuwait Airways Corporation (KAC) in its refusal to sell airline tickets to Israeli passport holders flying out of U.S. airports. A lawsuit was filed in 2013 by Eldad Gatt, an Israeli national attempting to purchase a ticket on a direct KAC flight from JFK International Airport in New York to London Heathrow Airport, who was denied due to his Israeli national origin. After the U.S. Department of Transportation (DOT)initially found that KAC had not violated any U.S. anti-discrimination laws, Mr. Gatt’s attorney, Jeffrey Lovitky, Esq., filed a petition for review with the U.S. Court of Appeals for the D.C. Circuit. Mr. Lovitky also reached out to The Lawfare Project for cooperation in the matter.

The D.C. Circuit requested that DOT reopen its investigation, and The Lawfare Project promptly sent a letter attaching our comprehensive legal analysis to DOT Secretary Anthony Foxx. This communication has received much attention, and was the basis for Michael Krauss’s article in Forbes discussing the contemptible discriminatory conduct of Middle East airlines operating throughout the United States.

Yesterday, in a complete reversal of its previous determination, DOT sent a letter to Mr. Lovitky announcing that “Kuwait Airways unreasonably discriminated against Mr. Gatt in violation of 49 U.S.C. § 41310.” DOT’s analysis is heavily reliant on the arguments put forth in The Lawfare Project’s legal analysis and its new conclusions mirror those that were put forth in The Lawfare Project’s letter to Secretary Foxx. 

Specifically, DOT’s letter states that although “Mr. Gatt’s complaint against Kuwait Airways was based on 49 U.S.C. § 40127” … “[DOT has] nonetheless decided to consider Mr. Gatt’s claim upon an alternative ground, i.e., 49 U.S.C. § 41310.” This avenue of liability against KAC was brought to the attention of the Secretary in The Lawfare Project’s legal analysis in Section II(A) and footnote 3. DOT further commented on KAC’s potential violation of federal anti-boycott laws and regulations promulgated to “prohibit and/or penalize cooperation with international economic boycotts in which the U.S. does not participate. The Kuwait law at issue here was enacted pursuant to the Arab League’s boycott against persons doing business with Israel. U.S. policy has opposed such economic boycotts.” The Lawfare Project’s letter and analysis (Section II(B) and II(C)) argued fervently that KAC’s conduct contravened longstanding federal anti-boycott laws established explicitly to combat the Arab League boycott of Israel.

The Lawfare Project wrote to Secretary Foxx that, “in concluding that KAC’s intentional discriminatory commercial conduct was not unlawful because Kuwaiti law requires KAC to refuse to offer its services to Israeli passport holders, it seems that the Secretary’s determination is based more on KAC’s obligations under Kuwaiti law than under U.S. law.” DOT yesterday responded by stating that it “do[es] not find the interest of Kuwait in the enforcement of its laws in this case to be greater than the interest of the United States in the enforcement of its laws.”

DOT’s findings are very welcome, but further action will be necessary to properly rectify the situation. As Mr. Lovitky told The Lawfare Project: “I welcome the Secretary’s decision. However, it is imperative that the Secretary commence formal proceedings to revoke Kuwait Airway’s permit to fly between New York and London, unless that airline immediately agrees to accept Israeli citizens as passengers. I also call on the Secretary of Commerce to launch a formal investigation into whether Kuwait Airways has violated U.S. anti-boycott laws.” The Lawfare Project will continue to work with Mr. Lovitky to take all available actions to have these avenues pursued and these goals accomplished.

The Lawfare Project is pleased to have been heard on this important issue and proud of the work we continue to undertake to fight the venomous and unlawful commercial discrimination aimed at the delegitimization of the State of Israel. We look forward to the elimination of this heinous conduct by KAC and all Middle East airlines operating out of U.S. airports. All travelers within the United States should and must expect equal treatment in our nation’s airports, no matter their ethnicity or national origin.