Americans Stuck in Gaza Sue the U.S. for Leaving Them “Trapped in a War Zone”

Salsabeel ElHelou, an American citizen stuck in Gaza, wakes up everyday and checks that her three children are still breathing. In August, an Israeli airstrike shredded her teenage son’s back — leaving him with an open and untreated wound. Her three kids — 7-year-old Ayham, 12-year-old Banan and 15-year-old Almotasem — are suffering from painful skin conditions caused by drinking and bathing in unclean water; their pus-filled wounds attract flies and mosquitoes. Two of them have lost teeth from malnutrition.

ElHelou is one of nine plaintiffs — a combination of U.S. citizens, permanent U.S. residents, and Americans with immediate family trapped in Gaza — who sued the Biden administration on Thursday in a bid to compel the government to help the families leave. The Council on American-Islamic Relations and the law office of Maria Kari alleged that the American government violated the civil rights of these Palestinian Americans by abandoning them in a war zone. 

The lawsuit, filed in federal court, stressed that the U.S. government has promptly evacuated other American citizens and their immediate relatives in similar, dangerous situations. 

“There is absolutely no reason for us to have Americans or their immediate relatives still on the ground.”

“There’s a long history and precedent of the Department of State and Department of Defense working in tandem to do evacuations out of conflict zones,” said Kari. That includes more recent operations in Israel and Lebanon, as well as Afghanistan — following the fall of the Taliban in 2021 — and Sudan, after a civil war that broke out last year shut down the airport.

The lawsuit accused the administration of violating the plaintiffs’ collective constitutional rights to due process and equal protection under the laws. 

“Defendants’ failure to extend similar evacuation efforts to Palestinian Americans has created a two-tier system sending a clear signal about the prioritization of its citizens, effectively endorsing discriminatory policies that disproportionately disadvantage Palestinian Americans,” the suit says.

All of the plaintiffs and their immediate family members have tried to leave and were even granted initial approval to do so by the State Department, according to Kari. They registered on a crisis intake form for evacuation assistance provided by the department and were told to monitor a Facebook page, which would publish a final list of names and what day they could appear at the Rafah crossing from Gaza into Egypt. 

The respective plaintiffs and their family members, who all already had initial approval from the State Department, remained in Gaza because either their name or the name of their eligible immediate family member did not appear on the final border crossing list. In May, Israel seized the Rafah border — making it nearly impossible for civilians to leave through the crossing. 

Rafah is not, however, the only way civilians have left Gaza. The lawsuit notes that the U.S. has facilitated the evacuation of about 17 American doctors in May and some injured and ill children, along with their caretakers, since June, through the Kerem Shalom crossing.

“There is absolutely no reason for us to have Americans or their immediate relatives still on the ground — and have the American government wash their hands of the situation and say: ‘Oh, we don’t control who comes and goes from the Gaza Strip,’” Kari said. “That’s just not true, based on what we’ve been watching happen — even since Rafah has closed.”

In ElHelou’s case, her name and that of her two youngest children appeared on the official crossing list, but her eldest son’s name was not included. So she stayed in Gaza — unwilling to leave him behind. In a video message shared with The Intercept by Kari, ElHelou urged the American government to help evacuate her family through the Kerem Shalom crossing “as has been done for other humanitarian cases.”

The U.S. State Department and military say that it is official policy to minimize the number of American citizens, nationals, and “designated other persons” who are “subject to the risk of death” in combat areas. This policy, however, doesn’t spur any legally binding action — a challenge for lawyers who brought the case. 

Kari noted, however, that while there’s no legal duty to act, there is a precedent of others being afforded help getting out of war zones. This status quo creates the need for the government to act or face allegations, as it does in the latest suit, that its selective inaction is discriminatory.

“Your constitutional protections don’t end when you leave the country,” she said. “The U.S. government has an obligation to citizens abroad.”

“Your constitutional protections don’t end when you leave the country.”

The State Department was not able to provide up-to-date numbers on how many U.S. citizens, green card holders, and immediate family members of Americans remain in Gaza. Jessica Doyle, a spokesperson for the State Department, said the agency believes “the vast majority” of American citizens who were in Gaza and wanted to leave have done so, adding that the U.S. helped more than 1,800 U.S.-linked people leave Gaza before the Rafah border closed. Doyle said that the agency’s ability to currently confirm information about citizens in Gaza is “extremely limited because of the security situation.” 

Doyle added that the U.S. “does not control the border crossings or who is permitted to depart Gaza or enter other countries in the region.” She said the State Department will communicate “available exit procedures from Gaza” with American citizens as the American Embassy in Jerusalem receives information on how to do so. 

ElHelou’s isn’t the only family involved in the case dealing with an untreated medical condition or facing difficult decisions about separating or staying together. 

The State Department approved Khalid Mourtaga, an American citizen of Palestinian origin, to leave Gaza last December — along with his parents. Only Mourtaga’s mother’s name, however, appeared on the official crossing list. She refused to leave without her son and husband. 

Days before Israel seized the Rafah crossing, Mourtaga pleaded on CNN for the U.S. to evacuate them, according to the lawsuit.

Since then, he has contacted multiple U.S. senators to help them leave but to no avail. Mourtaga has already fled for his life, becoming internally displaced at least seven times. Mourtaga and his parents lack clean water, and the little rice and flour that is available to them is often infested with worms. He has contracted Hepatitis A. 

Other medical conditions faced by the plaintiffs include diabetes, sciatica, potential amputation, and a severe kidney condition.

Kari was among a group of lawyers across the nation that filed similar lawsuits between October and December 2023 for Americans and their immediate family members stuck in Gaza; that legal pressure resulted in the evacuation of about 60 to 80 people, they say. 

Ghassan Shamieh, an immigration attorney and partner at the firm Shamieh, Shamieh, and Ternieden filed a similar lawsuit on behalf of two American citizens in the Bay Area on November 1. He dropped the case about a week later because his clients were evacuated. 

“I don’t think that timing was a coincidence,” he said. “A majority of those cases between October and December resulted in those people being evacuated, and I am sure that these lawsuits had a role to play in that, because it puts pressure on the government to have to defend its position — and it’s much easier to evacuate them than to defend this discriminatory position.”

While the case plays out in courts, the plaintiffs are worried for their lives. While working on the case, Kari heard from one of them, Sahar Harara, that Israeli bombing had killed her father and severely injured her mother. Both are permanent U.S. residents who were visiting Gaza to meet family when Israel began its assault in the wake of the October 7 attack.