[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]





    ENSURING LEGAL REDRESS FOR AMERICAN VICTIMS OF STATE-SPONSORED 
                               TERRORISM

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 17, 2008

                               __________

                           Serial No. 110-144

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov




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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel















                            C O N T E N T S

                              ----------                              

                             JUNE 17, 2008

                                                                   Page

                           OPENING STATEMENT

The Honorable Steve Cohen, a Representative in Congress from the 
  State of Tennessee, and Member, Committee on the Judiciary.....     1
The Honorable Daniel E. Lungren, a Representative in Congress 
  from the State of California, and Member, Committee on the 
  Judiciary......................................................     2

                               WITNESSES

The Honorable Bruce L. Braley, a Representative in Congress from 
  the State of Iowa
  Oral Testimony.................................................     4
  Prepared Statement.............................................     6
The Honorable Joe Sestak, a Representative in Congress from the 
  State of Pennsylvania
  Oral Testimony.................................................     8
  Prepared Statement.............................................     9
Ambassador John Norton Moore, Co-Counsel, Acree v. Republic of 
  Iraq
  Oral Testimony.................................................    13
  Prepared Statement.............................................    16
Captain Larry Slade, USN (Ret.), Plaintiff in Acree v. Republic 
  of Iraq
  Oral Testimony.................................................    25
  Prepared Statement.............................................    27
Mr. Daniel Wolf, Counsel, Vine v. Republic of Iraq
  Oral Testimony.................................................    31
  Prepared Statement.............................................    32
Mr. George Charchalis, Plaintiff in Vine v. Republic of Iraq
  Oral Testimony.................................................    34
  Prepared Statement.............................................    36

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Darrell Issa, a 
  Representative in Congress from the State of California, and 
  Member, Committee on the Judiciary.............................    12

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Committee on the Judiciary.....................................    57

 
    ENSURING LEGAL REDRESS FOR AMERICAN VICTIMS OF STATE-SPONSORED 
                               TERRORISM

                              ----------                              


                         TUESDAY, JUNE 17, 2008

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Committee met, pursuant to notice, at 2:06 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Steve 
Cohen presiding.
    Present: Representatives Scott, Cohen, Lungren, Issa, King 
and Gohmert.
    Staff Present: Diana Oo, Majority Counsel; and Paul B. 
Taylor, Minority Counsel.
    Mr. Cohen. I call the Committee to order. Good morning. As 
Chairman Conyers is unable to be here, he has asked me to Chair 
this hearing in his stead.
    We are here today to consider how to ensure fair redress to 
the American POWs and civilians who were brutalized at the 
hands of the Iraqi Government during the Gulf War. The soldiers 
were starved, denied sleep, exposed to extreme temperatures, 
then severely beaten, threatened with castration and 
dismemberment and subjected to mock executions. As a result, 
they have sustained lasting physical and emotional injuries.
    The civilians, Americans who had the misfortune to be in 
Iraq at the time it invaded Kuwait, were taken captive and held 
as human shields, put directly in harm's way in an attempt to 
make it harder for the United States and its allies to use 
military force against Iraq. The long-standing efforts of these 
Americans to hold Iraq responsible in U.S. courts for this 
ordeal has unfortunately, thus far, not been appropriately 
supported by our own government. Some of us are hoping that 
that is now about to change.
    When Congress passed the 1996 amendment to the Foreign 
Sovereign Immunities Act, it intended to create a Federal 
statutory cause of action that would allow American victims of 
terrorism to hold foreign states to that commitment or provide 
material support for terrorist acts accountable in U.S. courts. 
Repeated efforts by this Administration to persuade the courts 
to disregard congressional intent compelled Congress to add 
section 1083 to the fiscal year 2008 National Defense 
Authorization Act. That provision reaffirms the right of an 
American victim to sue a foreign state sponsoring terrorism in 
a U.S. court for, quote, ``personal injury or death that was 
caused by an act of torture, extrajudicial killing or hostage 
taking,'' unquote.
    President Bush, however, vetoed that bill, based solely on 
that provision, asserting that Iraq must be shielded from 
liability in order to protect Iraqi reconstruction efforts; 
shielded, that is, from liability to the American soldiers who 
were brutally tortured as POWs and shielded from liability to 
the innocent civilians who were used as defensive pawns.
    Congress was forced to repass the defense reauthorization 
bill with a provision permitting the President to waive the new 
provision as to Iraq. The President exercised that waiver 
within months of signing the bill into law.
    Under well settled international law, a successor regime 
remains liable to the bad acts of its predecessor. Furthermore, 
under the Geneva Convention, no nation may absolve another from 
liability for torturing POWs.
    The President has not satisfactorily explained why these 
fundamental principles should be disregarded here. Nor has he 
satisfactorily explained why all of Iraq's assets must be 
shielded, even while it is reaping billions upon billions of 
dollars from its oil fields and it is readily paying off prewar 
commercial debts to foreign corporations totaling $5.4 billion.
    It would have been helpful to hear from someone in the 
Administration today, but the Departments of State, Justice and 
Treasury all declined the Committee's invitation to testify on 
this matter. Nonetheless, I look forward to having an 
insightful discussion, which I hope will illuminate the reasons 
we must help these innocent Americans obtain justice.
    Coupled with the new waiver authority we gave the 
President, we also expressed the sense of the Congress that he 
should work with Iraq to get fair compensation to these 
victims. That provision is nonbinding, but we maintain hope 
that the President will take up our invitation, and perhaps 
today we will discuss possible ways to further encourage him in 
that direction.
    I should caveat that my remarks are those also of Chairman 
Conyers.
    Now we have two Members. But before we recognize them, I 
want to recognize the Ranking minority Member, the Honorable 
Dan Lungren of California, for an opening statement.
    Mr. Lungren. I thank the Chairman, and I appreciate being 
the Ranking Member today. So thank you very much, Mr. Chairman.
    In 1996, as you said, Congress amended the Foreign 
Sovereign Immunities Act to allow U.S. victims of terrorism to 
sue designated state sponsors of terrorism for their terrorist 
acts. The courts have handed down large judgments against the 
terrorist state defendants generally in default, and successive 
Administrations have intervened to block the judicial 
attachment of frozen assets to satisfy judgments.
    In 2001, Congress directed President Bush to submit no 
later than the time he submitted the proposed budget for fiscal 
year 2003 a legislative proposal to establish a comprehensive 
program to ensure fair, equitable and prompt compensation for 
all United States victims of international terrorism or 
relatives of deceased United States victims of international 
terrorism that occurred or occurs on or after November 1, 1979. 
As explained in the conference report for that legislation, and 
I quote, ``Objections from all quarters have been repeatedly 
raised against the current ad hoc approach to compensation for 
victims of international terrorism. It is imperative that the 
Secretary of State in coordination with the Departments of 
Justice and Treasury and the other relevant agencies develop a 
legislative proposal that will provide fair and prompt 
compensation to all U.S. victims of international terrorism.'' 
However, as has been stated, no such plan was put forward.
    In this Congress, a rider to the National Defense 
Authorization Act for fiscal year 2008 provided a Federal cause 
of action against terrorist states and to facilitate 
enforcement of judgments. After the President vetoed the bill 
based on the possible impact the measure would have on Iraq, 
Congress passed this new version, H.R. 4986, authorizing the 
President to waive its provisions with respect to Iraq. Again, 
the President signed the bill into law and promptly issued a 
waiver with respect to Iraq.
    The exercise of the waiver with respect to Iraq will likely 
prevent POWs from the first Gulf War from reopening their 
claims. On the day the President signed the waiver, he issued a 
statement justifying the exercise of the waiver authority, 
stating that without a waiver, the provisions would have a 
potentially devastating impact on Iraq's ability to use Iraqi 
funds to expand and equip the Iraqi security forces, which 
would have serious implications for U.S. troops in the field, 
acting as part of the Multinational Force-Iraq and would harm 
antiterrorism and counterinsurgency efforts.
    The President also stated that if applied to Iraq, the 
provision would redirect financial resources from the continued 
reconstruction of Iraq and would harm Iraq's stability contrary 
to the interest of the United States.
    In light of the waiver's likely effects on pending cases, 
Congress included the following sense of Congress in the 
provisions creating a private cause of action, quote, ``The 
President acting through the Secretary of State should work 
with the Government of Iraq on a state-to-state basis to ensure 
compensation for any meritorious claims based on terrorist acts 
committed by the Saddam Hussein regime against individuals who 
were United States nationals or members of the United States 
Armed Forces at the time of those terrorist acts.'' And those 
claims cannot be addressed in the United States due to the 
exercise of the waiver authority.
    So I look forward to this hearing about the progress of 
those efforts and support efforts to help provide redress for 
victims of torture by foreign states in the past. But I remain 
mindful of executive branch concerns regarding how similar 
proposals might unduly restrict the ability of the President to 
negotiate and exercise leverage over foreign states to achieve 
redress outside the courts.
    These are difficult issues; especially difficult are 
proposals that contemplate using U.S. taxpayer dollars to pay 
for damages caused by terrorists. As the Congressional Research 
Services pointed out, the use of U.S. funds to pay portions of 
some judgments has drawn criticism. Calls for more effective 
and fair means to compensate victims of terrorism have not 
yielded an alternative mechanism.
    It is our hope that this hearing and consideration of the 
various bills before this Committee might reach some conclusion 
to this problem. So I hope this hearing today will come closer 
to finding such, a fair and effective means of compensation, 
and I thank the Chairman for the time.
    Mr. Cohen. Thank you.
    Does anyone else want to make an opening statement? If not, 
without objection, other Members' opening statements will be 
included in the record.
    This hearing will consist of two panels. First, we will 
hear from two of our house colleagues, Bruce Braley of Iowa and 
Joe Sestak of Pennsylvania.
    Bruce Braley was elected to Congress in 2006. Previously he 
worked as an attorney, holding corporations accountable to 
their employees and consumers. He serves on the Committee on 
Transportation and Infrastructure and on Oversight and 
Government Reform. As the son of a World War II veteran who 
fought at Iwo Jima, he has been a passionate advocate of the 
POWs.
    Joe Sestak was also elected to Congress in 2006, a rather 
splendid year. He spent 31 years serving our Nation in the U.S. 
Navy, rising to the rank of three-star admiral. Congressman 
Sestak serves on the Armed Services, Education and Labor and 
Small Business Committees.
    Mr. Braley, please begin.

TESTIMONY OF THE HONORABLE BRUCE L. BRALEY, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF IOWA

    Mr. Braley. Thank you, Mr. Chairman, Ranking Member 
Lungren. It is my honor to be here today with my good friend, 
Joe Sestak, who certainly brings a lot more professional 
expertise to this issue than I do.
    I was at home with my family on Christmas Eve when I heard 
the surprising news that the President had vetoed the Defense 
Authorization bill of 2008. I was then shocked to learn that 
the reason he vetoed that bill was because it did provide a 
mechanism to allow tortured POWs from the first Gulf War to 
receive compensation that had long been denied them.
    I was outraged, and I immediately contacted my staff 
because I wanted to do something about it. And my reason goes 
to a much deeper level than just my interest in this as a 
Member of Congress.
    Iowa has a long history of hostages and prisoners of war 
who have been held captive, including Kathryn Koob, who is a 
constituent of mine, who teaches at Wartburg College in 
Waverly, Iowa, held 444 days as a hostage in Iran; Terry 
Anderson, the longest-held captive in Lebanon, spent 7 years 
there, a graduate of Iowa State University, my alma mater; 
Thomas Sutherland, who was Dean of the Agricultural School at 
American University in Beruit, the second-longest-held hostage 
in that crisis; Talib Sube, who was a resident of LeClaire, 
Iowa, who was captured in Kuwait and used as a human shield. 
And that is why this is a very personal issue for me, in 
addition to one that concerns me as a Member of Congress.
    I would like to put this in perspective by reading from a 
book, The Gulf Between Us, Love and Terror in Desert Storm, by 
Colonel Cliff Acree, United States Marine Corps, and his wife, 
Cynthia, who unfortunately were unable to be with us today. But 
I think this tells us what we are talking about.
    This is from page 88 in a chapter titled The Trip to Hell; 
it is located at the Iraqi interrogation center in Baghdad in 
January 1991, and I am quoting from Colonel Acree.
    ``Before I blacked out, the interrogators had started 
hitting me with a club like a nightstick, thick and rubberized 
with a solid top and a spring at the bottom. The blow 
accelerated just before it hit.
    ``After a couple of hours, I got to the point where I quit 
flinching. My captors had broken my nose several times and hard 
lumps were accumulating on my head, but I was not going to tell 
them any plans for the amphibious landing in Kuwait. Ninety-
four thousand Marines deployed in the Gulf area, including 
18,000 aboard amphibious assault ships, counted on me not to 
jeopardize their lives.
    ``I had been knocked out many times. When I saw flashes of 
stars, I recognized relief coming. I would lose consciousness 
until they'd rouse me again. I drifted into the welcomed 
darkness of unconsciousness many times. Each time they roused 
me, I wished for that natural escape again. The body somehow 
adapts to release you from pain and you fall quicker into that 
blessed peace.
    ``After that last blow, I must have been unconscious a long 
time. Before they would wake me quickly with a slap in the face 
or a kick in the ribs. `Stand up,' they would yell. Shaking and 
gasping I would come back to life hearing the same voice and 
remembering the last blow, but this time my tormentors poked 
and prodded me as if wondering, `Did we kill him?' I was alive 
but with a shattered nose and a fractured skull.''
    That is one of many examples from Gulf War POWs who were 
tortured under the brutal regime of Saddam Hussein. When they 
were released as prisoners of war, they were welcomed home by 
their government, including Secretary of Defense Cheney, who 
welcomed them with these words, quote, ``Welcome home. Your 
country is opening its arms to greet you.''
    And that is exactly the spirit in which they were welcomed 
back, as people who had gone through a tremendous ordeal and 
needed to be taken care of. And yet this country has 
consistently failed to live up to its obligations under the 
Foreign Sovereign Immunities Act to provide these tortured POWs 
and human shields with the compensation that they deserve.
    One of the rationales offered for the President's veto was 
that it would expose Iraq to billions of dollars of liability 
and harm reconstruction efforts, which is clearly a ridiculous 
claim when you look at what has happened as these POWs and 
human shields and their attorneys have attempted to negotiate, 
first with the Government of Iraq and then with the 
Administration.
    This is also evidenced by the fact that the Government of 
Iraq has entered into compensation dispute resolution with the 
Governments of Korea and Japan on behalf of companies like 
Hyundai and Mitsubishi, settling billions of dollars of 
commercial claims while people who suffered torture like I just 
described have gone without compensation.
    The fact that Iraq is predicted to make $100 billion in oil 
revenues in 2008 and the fact that the Administration is 
currently working with Iraq to resolve its commercial debt 
shows why it is important to stand up for these victims of 
torture. That is why I introduced H.R. 5167, the Justice for 
Victims of Torture and Terrorism Act, in January to eliminate 
the waiver that was granted and then revised in the fiscal year 
2008 DOD bill.
    At that same time, I have also been working closely with 
the victims' attorney on an alternative proposal that would 
give the Government of Iraq 90 days to resolve the claims of 
American victims of torture and terrorism before that waiver 
that was put into the last DOD bill would be terminated. The 
alternative that I am proposing would eliminate any fears of a 
flood of expensive lawsuits because it specifies the plaintiffs 
against Iraq and specifically offers relatively modest amounts 
in spite of a judgment that already is on the books for the POW 
torture victims.
    The total amount that Iraq would have to pay under this 
compromise agreement would be approximately $415 million. To 
put that into perspective, we spend $338 million a day in Iraq 
right now and about $2.4 billion every week. Since there would 
be no threat of future claims, since Iraq is no longer 
designated as a state sponsor of terrorism, it would 
effectively cap any liability claims against the Government of 
Iraq. So it is the type of proposal that should have broad, 
bipartisan support. It will eliminate the claims as a concern 
of the Iraqi Government, and it will finally--finally provide 
compensation to these victims of torture and terrorism who have 
been putting up with this ordeal for far too long.
    Under the proposal that we are speaking about, POWs and 
family members would be waiving approximately 77 percent of the 
entire judgment forgoing all punitive damages awarded by the 
court, which is almost $306 million, and two-thirds of all 
compensatory damages awarded over $435 million. And it would be 
the type of result that I think would make everyone walk away 
from this terrible tragedy with a very positive feeling about 
their country and how it stood up for these victims of torture 
and terrorism.
    And I would just like to close with a poem that Colonel 
Acree wrote, his own ballad to freedom. He called it What 
Freedom Means to Me.
    To walk without being blindfolded,.
    To raise my arms without handcuffs,.
    To see the sky and feel the warmth of the sun,.
    To speak my own thoughts,.
    To sleep without fear,.
    To know I will eat today, a day without terror and pain,
    To stand in defense of freedom and win.
    On behalf of Colonel Acree, Captain Slade, who is here 
today, and all the victims of torture and terrorism, it is time 
that we put this matter to rest and give them the compensation 
that they deserve.
    Thank you.
    Mr. Cohen. Thank you.
    [The prepared statement of Mr. Braley follows:]
 Prepared Statement of the Honorable Bruce L. Braley, a Representative 
                   in Congress from the State of Iowa
    Thank you, Chairman Conyers, Ranking Member Smith, and Members of 
the Committee for holding this important hearing on ensuring legal 
redress for American victims of state-sponsored terrorism. And thank 
you for inviting me to testify on this issue which is very important to 
me and, I believe, to our country.
    I know that many members of Congress shared my shock and 
disappointment when they learned in December of last year that 
President Bush was vetoing H.R. 1585, the Fiscal Year 2008 National 
Defense Authorization Act--with no prior warning, and while Congress 
was not in session--in order to deny Americans tortured under Saddam 
Hussein's regime from pursing justice in U.S. courts. In fact, several 
members of this Committee, including Chairman Conyers, are co-sponsors 
of the Justice for Victims of Torture and Terrorism Act, which I 
introduced this January in response to President Bush's veto and the 
waiver that was subsequently granted to Iraq.
    I believe that the Bush Administration's willingness to allow 
torture of American citizens--including 17 prisoners of war who were 
beaten and starved by Hussein's regime, and hundreds of victims who 
were used by Iraq as ``human shields''--is outrageous. Preventing these 
victims from seeking justice is also a direct violation of our 
obligations under Article 131 of the Third Geneva Convention relative 
to the Treatment of Prisoners of War, which prohibits the United 
States, as a party to that treaty, from absolving the Government of 
Iraq of any liability incurred due to the torture of prisoners of war.
    The President's rationale for the veto--that the bill would expose 
Iraq to billions of dollars of liability and harm reconstruction 
efforts--is clearly a ridiculous claim, as there are a very limited 
number of plaintiffs with claims against Iraq. The argument that Iraq 
cannot afford to pay its debts to torture victims is also ridiculous 
when you consider that Iraq is expected to make around $100 billion in 
oil revenues for 2007-2008.
    I believe that Iraq's threat to withdraw billions of dollars out of 
U.S. financial institutions if H.R. 1585 was signed into law is 
offensive, considering the incalculable sacrifices that American troops 
have made for Iraq and the staggering amount of money that the United 
States has poured into Iraq. It is also hypocritical of Iraq to refuse 
to compensate American victims of Iraqi torture and terrorism while 
simultaneously working to resolve its debt to foreign corporations like 
Mitsubishi of Japan and Hyundai of Korea. This clearly sends the 
message that it is more important to Iraq and to the Administration to 
settle Iraq's debt with corporations than with tortured American 
prisoners of war and hostage victims.
    Despite working with Iraq to resolve its commercial debt, and 
despite language that was put into the revised Department of Defense 
bill urging the President to ensure compensation for claims which 
cannot be resolved in U.S. courts because of the waiver, the Bush 
Administration has still not worked to resolve the claims of the 
American victims of Saddam Hussein's regime. That is why I believe it 
is essential that Congress acts soon to ensure that these victims are 
compensated for the torture and terrorism that they were subjected to 
by Iraq.
    H.R. 5167, the Justice for Victims of Torture and Terrorism Act, 
the bill which I introduced in January, would eliminate the waiver for 
Iraq that was put into the revised 2008 Defense Bill. Since introducing 
that bill, I have also been working closely with the victims' attorneys 
on an alternative proposal which would give the Government of Iraq 90 
days to resolve the claims of American victims before the waiver would 
be terminated.
    This alternative proposal should quell any alleged fears of a flood 
of expensive lawsuits against Iraq because it specifies plaintiffs 
against Iraq and specifies relatively modest amounts which would 
constitute adequate settlements for these claimants. There is also no 
threat of future claims, since Iraq is no longer designated as a state 
sponsor of terrorism.
    In fact, Iraq would be getting a good deal with this proposal. For 
example, the overall judgment against Iraq in the POWs' case, Acree v. 
Republic of Iraq, was $959 million. However, as a concession to Iraq, 
under the formula in my proposal, the POWs are waiving approximately 77 
percent of their entire judgment. The POWs and their family members are 
forgoing all punitive damages awarded to them, and two-thirds of all 
compensatory damages awarded to them by the court. Additionally, as a 
concession to Iraq, the American victims who were held as human shields 
have also been willing to establish a cap on their settlements. 
Previous judgments paid in a similar case before the beginning of 
Operation Iraqi Freedom had no such cap.
    I believe that passing legislation allowing these American victims 
to be compensated for torture and terrorism is essential to upholding 
the rule of international law and to upholding our international treaty 
obligations. I also believe that it is critical to upholding the intent 
of Congress, which passed unanimous resolutions during the Gulf War 
stating an intention to hold Iraq accountable for the torture of 
American POWs. Giving victims of torture and terrorism access to U.S. 
courts also provides another important tool for deterring terrorism and 
holding perpetrators of torture and terrorism accountable.
    Ensuring redress for these victims is also crucial to protecting 
our current and future troops from torture by holding all state 
sponsors of terrorism accountable and by allowing all American victims 
of terrorism and torture recourse in the U.S. court system. We can 
already see that allowing one country to torture and terrorize 
Americans with immunity is a slippery slope: Libya is currently seeking 
a similar waiver based on the waiver that was put into the Fiscal Year 
2008 Defense Authorization Act, and the State Department is actively 
negotiating with Libya to grant this waiver.
    I am strongly committed to securing justice for these American 
victims, and I believe that all of you will share my commitment after 
hearing the compelling testimony of the witnesses today. I hope that 
the Judiciary Committee will act quickly to move my legislation to the 
House floor for a vote. Enacting legislation allowing these victims to 
be compensated will send a strong signal to the world that the United 
States will not allow perpetrators of terrorism and torture to operate 
with immunity, and that we will never put the interests of any foreign 
state over the interests of American victims of torture.
    Thank you again for holding this important hearing. I am happy to 
answer any questions that you may have.

    Mr. Cohen. Mr. Sestak from Pennsylvania.

  TESTIMONY OF THE HONORABLE JOE SESTAK, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF PENNSYLVANIA

    Mr. Sestak. Thanks, Mr. Chairman, Ranking Member Lungren. I 
am very honored to speak today to the Committee.
    I did, as you mentioned, Mr. Chairman, spent 30-odd years 
in the U.S. military, the best years of my life. And so I think 
I want to speak initially on behalf of those whom I served with 
at this Congress and Presidents have sent into harm's way. But 
I want to speak about it in terms of the rule of law.
    After World War II, as was initiated among us, particularly 
those who led our sons and daughters of this Nation into harm's 
way, in 1949, the United States agreed to the third great 
Geneva Convention, that on prisoners of war, that we would 
never absolve any state of its liability for what is illegal 
torture.
    It did not make death illegal, killed on the battlefields--
we knew we would go out there, ready for the ultimate 
sacrifice--it made torture illegal after the horrific evidences 
of it in World War II.
    But I also come today speaking because I have been part of 
another institution, before I came to Congress--having served 
at the White House and having seen a commander in chief that 
was the President, but also had responsibility under the rule 
of law to the presidency and a legacy by how well he adhered to 
national and international law, the legacy he would leave 
behind in the presidency.
    Now, as a Member of Congress, I am very conscious that we 
are Congress people, but more, we are an institution. Congress. 
It actually does make the laws. Under the Constitution, the 
rules and regulations of our military, we are the ones that 
send them to war. We are the ones, as an institution, that 
declare war.
    I bring this out because, having been to 80-odd countries 
over these many years, I saw how much we were respected for the 
power of our military and the power of our economy, but how 
much we were admired by the values of our ideals, the power of 
our ideals, which ultimately rest not on a man or a woman, but 
on the rule of law.
    In 1991, we had 17 prisoners of war tortured, illegal under 
the rule of law of this globe we live on, that the United 
States said was illegal. You train us because you provide for 
the rules and regulations never to stain our Nation by doing 
torture to others and holding our Nation liable to other 
countries. We expected the same contract with this institution 
if we were to be tortured.
    After they were tortured, they waited until 2002 before 
they sued under the rule of law, international law, not just 
national. Whatever the real reason was that the commander in 
chief decided to veto that defense authorization bill in 
December of this past year, if it did have to do with the 
threat allegedly of pulling $25 million out of our private 
markets, as has been reported, that the Iraqi Government said 
it would do, I have little understanding of how that could even 
compare with what we asked these men to do.
    Under law, we asked them to go and under law we promised 
them, if tortured, that that country would be held liable. The 
cost of what they are asking for is about a fourth of a day of 
the cost in Iraq.
    But I don't think that is the major issue here. I come back 
that this is an institution that I believe, on the day we voted 
to give this President a waiver, those who served us so well, 
when we asked--``here am I, send me''--that under a contract 
with them, of the rule of law, not to torture, and if you were, 
we would hold that country liable, that now we say--or said in 
January, but we can waiver it--there is no higher power that we 
have than the power of our ideals.
    So I ask this institution to remember that we are Congress 
people, but more, this is an institution that I am proud to 
serve in, just as I was in the institution of our armed 
services or at the White House. Under that rule of law, that 
principle, we need to remember, yes, to support our troops whom 
we send out under the rule of law. That's what our Nation's 
bedrock is based upon.
    Thank you.
    [The prepared statement of Mr. Sestak follows:]
  Prepared Statement of the Honorable Joe Sestak, a Representative in 
                Congress from the State of Pennsylvania
    Mr. Chairman and members of the Committee, thank you for taking the 
time today to address an issue that is very personal to me, having 
served for 31 years in the United States Navy.
    As a Veteran, I believe I can speak for many who served abroad in 
harms way, who believe there is no place for torture in Iraq or 
anywhere else in the world.
    America is respected in the world for the might of its economy and 
strength of its military, but we are admired for the power of our 
ideals. And that is why we must respect human rights, and why we must 
oppose the use of torture in the face of terror and tyranny.
    In 1991, American prisoners of war (POWs) serving during the first 
Persian Gulf War were tortured in Iraq under the regime of the former 
President Saddam Hussein.
    In April 2002, 17 American POWs and 37 of their family members 
filed a law suit against the Republic of Iraq, Saddam Hussein, and the 
Iraqi Intelligence Service seeking compensatory damages for the torture 
they sustained. And, on July 7, 2003, Judge Richard Roberts ruled that 
Iraq, Saddam Hussein, and the Iraqi Intelligence Service are liable for 
$653 million in compensatory damages and $306 million in punitive 
damages for the torture of the POWs and for the lingering injuries 
suffered by them and certain close family members.
    The judge found that: No one would subject himself for any price to 
the terror, torment, and pain experienced by these American POWs,'' and 
that ``there must be a premium on protecting POWs [because] POWs are 
uniquely disadvantaged and deterring torture of POWs should be of the 
highest priority.''
    While July 7, 2003, marked a great triumph toward bringing justice 
for American POWs, it was only the beginning of a long journey for them 
to receive their awarded claims.
    I am here testifying today in front of the House Judiciary 
Committee today to help my brothers and sisters who have worn the cloth 
of our nation as well as others who were used as human shields during 
the Persian Gulf War.
    I became involved in this issue after President Bush vetoed the 
National Defense Authorization Bill (H.R. 1585), in late December 2007. 
The widely supported legislation would have provided a scheduled 3.5% 
military pay raise and bonuses, critical veterans' health care 
initiatives, and necessary funding for our troops abroad. I was deeply 
concerned with President Bush's action to veto the legislation, not 
only because it overwhelmingly passed both the House and Senate, but it 
also jeopardized the safety of our troops abroad.
    As I am sure you know, the President vetoed the Defense 
Authorization bill over a provision that would remove some immunity 
from the Iraqi government regarding the payment of Court awards to 
service members that had been tortured during the First Gulf War.
    The President apparently objected to this provision, because it was 
claimed that it could allow plaintiffs to freeze Iraqi government 
assets in the United States as part of litigation over actions 
committed during the rule of former dictator Saddam Hussein, and that 
the provision would disrupt the Iraqi reconstruction efforts.
    During that time, the Iraqi Government reportedly placed intense 
pressure on President Bush, through its lawyers, by saying it would 
withdraw $25 billion worth of assets from the U.S. capital markets 
unless the President vetoed the bill.
    I strongly disagreed with the President's position to veto the 
Defense Authorization Bill and to demand a waiver that would allow for 
a Court's judgment to be overruled, thereby shutting out service 
members from attaining their already won monetary judgment for torture 
they sustained during the first Persian Gulf War.
    Under international law, even when a government changes, the new 
government is responsible for the actions of the government it 
superceded.
    Each month we spend almost $12 billion for the War in Iraq, and 
because Iraq has now threatened to pull its $25 billion invested in the 
U.S. market--the cost of two months of the war--the President refused 
to support the men and women who wore the cloth of this nation, who 
were tortured during a war, and who had already won a judgment against 
the Iraqi government.
    I also believe the Congressional action taken on January 16, 2008 
was wrong. We should have voted to override the President's veto, 
supporting not just the men and women who are serving today by such 
items in the bill as the 3.5 percent pay raise, but also for those who 
served previously and have legitimately brought a claim against the 
Iraqi government because of torture.
    In May 2008, my efforts to introduce an amendment to the National 
Defense Authorization Act to repeal the President's waiver to allow 
Iraq to maintain immunity unless the Government of Iraq settles these 
outstanding claims with American POWs tortured in Iraq within 90 days 
were ruled not germane to that bill.
    I am here today in conjunction with my colleague Congressman Bruce 
Braley, a champion of this issue, to bring a much needed resolution to 
claims filed by both American POWs and those who suffered as Human 
Shields.
    I believe that any effort to absolve Iraq of liability for this 
torture would violate the POW Convention obligations of both the United 
States and Iraq and would put at enhanced risk of torture American 
service men and women held as POWs in the future.
    Nor is it appropriate to ask American POWs tortured in Iraq or 
Human Shield claimants to personally pay for the reconstruction of the 
country which tortured them.
    Settlement of this debt of honor would also serve as a model 
encouraging settlement of other claims against Iraq. Moreover, Iraq's 
recognition of its legal obligations would be a concrete sign of Iraq's 
commitment to the rule of law and would be greeted warmly by the 
American people.
    This provision also serves the interests of the reconstruction of 
Iraq by forgiving as much as 77% of the judgments awarded against Iraq, 
including forgiving all punitive damages and two-thirds of compensatory 
damages awarded against Iraq in federal court.
    The bottom-line--and what America stands for--is doing what is 
right--particularly with regard to those who defend our nation. Without 
any question, what is right is to ensure that these individuals receive 
their settlements which were adjudicated by impartial courts under the 
rule of law in the U.S.
    Thank you again for providing me this opportunity to testify before 
you regarding this issue of utmost importance to American service 
members, Veterans, and POW/MIA community.

    Mr. Cohen. I want to thank each of you for your testimony 
and for taking time out of your day to share with us your 
unique perspectives on this issue, a very important subject.
    And we will excuse you with our thanks and impanel our next 
group to come forward and be seated. Thank you, Mr. Sestak, Mr. 
Braley.
    Mr. Issa. I would ask unanimous consent to have my opening 
statement placed in the record.
    Mr. Cohen. If done so, it will be granted. Thank you.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Cohen. Is it tunc pro, whatever--without objection. You 
know, always trust, but verify.
    [The prepared statement of Mr. Issa follows:]
 Prepared Statement of the Honorable Darrell Issa, a Representative in 
                 Congress from the State of California


    Mr. Cohen. Our first witness on the panel is Ambassador 
John Norton Moore, co-counsel in Acree v. Republic of Iraq. He 
is a Professor of Law at the University of Virginia and directs 
the Center for National Security Law and Oceans Law on policy. 
He has previously served as the Counselor on International Law 
to the Department of State and as Ambassador and Deputy Special 
Representative of the President for the Law of the Sea.
    His representation of the POWs is solely in his personal 
capacity.
    Our next witness will be Captain Lawrence Randolph Slade, a 
plaintiff in the Acree case. Captain Slade's F-14 aircraft was 
hit by missile during the Gulf War, which prompted him to eject 
into Iraq.
    During his captivity as a POW, he endured violent 
interrogations during which he was blindfolded, handcuffed, 
beaten with wooden bats and subjected to four mock executions. 
As a result, Captain Slade suffered very serious injuries, 
including broken vertebra, abnormal liver functions and extreme 
pain caused by scar tissue resulting from repeated trauma to 
his abdomen.
    Thank you for your service.
    Next we have Dan Wolf, counsel in Vine v. Republic of Iraq 
and Hill v. Republic of Iraq. He has, for more than two 
decades, garnered experience litigating human rights in 
sovereign immunity issues both as an attorney in the office of 
legal advisor and in private practice. He has played a leading 
role in numerous cases involving the interpretation of the 
Foreign Sovereign Immunities Act.
    Our final witness today will be George Charchalis, a 
plaintiff in the Vine case. As a young man, Mr. Charchalis 
served in the Third Infantry Division and saw combat in the 
Korean War.
    In 1989, he was recruited by Kuwait's Institute of 
Scientific Research to manage an ambitious plan to install 
parks, gardens and freeway landscaping throughout the country. 
A year later, Mr. Charchalis was taken hostage by the Iraqi 
regime and held in captivity for more than 4 months as a human 
shield.
    We welcome each of you. Without objection, your written 
statements will be made a part of the record in their entirety.
    We would ask each of you to summarize your testimony in 5 
minutes or less. There will be a red light that goes on and 
becomes yellow and gives you a warning. When 1 minute remains, 
the light will switch to yellow and then to red when the 5 
minutes are up.
    We thank you all for being with us.
    Ambassador Moore, please begin.

          TESTIMONY OF AMBASSADOR JOHN NORTON MOORE, 
             CO-COUNSEL, ACREE V. REPUBLIC OF IRAQ

    Mr. Moore. Chairman Cohen, Ranking Member Lungren and 
Members of the Committee, it is an honor to appear----
    Mr. Cohen. There is a button there that gives you 
amplification.
    Mr. Moore. It is an honor to appear before the Judiciary 
Committee today as co-counsel representing 17 American former 
prisoners of war tortured by Iraq during the 1991 Gulf War, and 
37 of their close family members, in support of the Braley-
Sestak proposal. With your permission, I will place in the 
record not only my written testimony, but also the decision of 
the district court holding Iraq accountable for their torture.
    It is also an honor to appear on a panel with one of the 
lead POWs in the Acree case, Captain Larry Slade. I have been 
privileged to work with Captain Slade for the past 6 years in 
his historical effort to hold his torturers accountable, and I 
am very aware of his extraordinary courage under brutal 
torture.
    Captain Slade is quite simply one of the finest Americans 
it has been my privilege to know. But I would like to share 
with the panel something else I just learned yesterday about 
Captain Slade, which I think this Committee might want to know. 
It is that Captain Larry Randolph Slade is a direct descendent 
of Thomas Jefferson and Larry's mother is buried at Monticello.
    Justice for American POWs and taking effective action to 
implement the word of the Congress, the President and the 
Nation to ensure that future American POWs held by the enemy 
will not be tortured is, of course, not a partisan matter. 
There is no party, only country when it comes to the protection 
of American POWs.
    As the representative of these courageous American POWs, 
tortured by Iraq, let me share with you the compelling story 
for recognizing their rights and national security interests in 
protecting POWs from torture. That story simply reflects 
bedrock American values.
    First, America keeps its word. This House, as well as the 
Senate of the United States, repeatedly warned Iraq that it 
would be held accountable for the torture of our American POWs 
in three unanimously adopted resolutions. In addition to that, 
we have already discussed the provision in the POW Convention 
that says that no state may absolve a torturing state of any 
liability, a pledge of the nation itself.
    The word of the Congress and the Nation is clear, those who 
torture Americans will be held accountable. There is no if, and 
or but attached to those pledges.
    Second, America supports its POWs. The POWs tortured by 
Iraq during the Gulf War were welcomed home by a grateful 
American people. But if the record of a courageous action of 
tortured American POWs to enforce the rule of law is erased 
because of silence now, future generations of American POWs, 
held by the enemy, will receive even more enthusiastic torture.
    Third, America is fair. Americans do not believe that POWs 
tortured by Iraq should personally pay for the reconstruction 
of the country which tortured them. Clearly, any such expense 
of reconstruction is a public purpose to be borne by the Nation 
as a whole. Indeed, to ask our POWs and family members to pay 
with their legal rights for the reconstruction of the country 
which tortured them is morally repugnant.
    Similarly, Americans do not believe that it is right for 
Iraq to resolve a minimum of 20 to 30 billion in commercial 
claims of foreign corporations while ignoring the valid claims 
of American POWs and American civilian hostages. Surely, the 
debt owed to American POWs is a debt of honor which should come 
before commercial claims and certainly should not be ignored 
while commercial claims are paid.
    Fourth, America defends its honor. After the POWs had 
brought their action against Iraq, 20 distinguished former 
high-level national security officials wrote to the President 
about the historic opportunity in this case. In discussions 
concerning this letter, I have never forgotten the wise summary 
of this matter volunteered by Anthony Lake, a former Assistant 
to the President for National Security Affairs. He noted that 
supporting our POWs was simply a matter of national honor. 
Surely he is correct and perhaps this profound statement 
captures it all.
    Mr. Chairman and Ranking Member Lungren, these courageous 
POWs and their family members and the Nation owe a debt of 
gratitude have struggled now for 6 years in their efforts to 
hold their torturers accountable. Surely, 6 years in their 
efforts to support the rule of law again as volunteers for 
their country is enough. From my heart, I urge you to support 
these wonderful Americans.
    Thank you for the opportunity to appear before you and 
testify on this matter of national honor.
    Mr. Cohen. Thank you, Ambassador Moore.
    [The prepared statement of Mr. Moore follows:]
                Prepared Statement of John Norton Moore



    Mr. Cohen. Captain Slade.

  TESTIMONY OF CAPTAIN LARRY SLADE, USN (RET.), PLAINTIFF IN 
                   ACREE V. REPUBLIC OF IRAQ

    Captain Slade. Good afternoon, Chairman, Ranking Member 
Lungren and Members of the Committee. It is an honor to appear 
before the Judiciary Committee today on behalf of myself and 16 
other American former prisoners of war, tortured by Iraq during 
the 1991 Gulf War and 37 of our close family members.
    For my colleagues for whom I appear, the issue at stake in 
this hearing is clear: Will the Congress, the President and the 
Nation adhere to their word to hold accountable those who 
torture American prisoners of war? Failure to do so, will 
dramatically raise the risk that Americans held as POWs by the 
enemy will continue to be tortured.
    The Braley-Sestak proposal now before this Committee will 
honor that national commitment and reduce the risk that future 
American POWs will be tortured as we were. We strongly support 
its prompt passage.
    On April 4, 2002, I joined with 16 of my fellow Gulf War 
POWs who had been brutally tortured by Iraq during that war and 
37 of our family members in filing a historic suit in Federal 
court. We brought this suit to add deterrents against the 
torture of American POWs through enforcing the rule of law and 
holding accountable the torturing state.
    On July 7, 2003, Judge Richard Roberts of the Federal 
District Court for the District of Columbia, after a careful 
review of the facts and the law, awarded substantial judgments 
to each of the 54 affected American POWs and close family 
members. He found that, quote, ``No one would subject 
themselves for any price to the terror, torment and pain 
experienced by these American POWs,'' unquote; and that, quote, 
``There must be a premium on protecting POWs because POWs are 
uniquely disadvantaged, and deterring torture of POWs should be 
of the highest priority.'' Despite these judgments for us, 
however, to date, we have been unable to obtain closure on this 
matter.
    My fellow POWs and I, who brought this historic case, were 
tortured by Iraq through brutal beatings, starvation, electric 
shock, whipping, burning, mock executions, threatened 
dismemberment, threats to our families, subjection to bombing 
and breaking of bones and eardrums. For our spouses and other 
family members in the United States, Iraq's refusal to permit 
notification of capture, its public statements about using us 
as human shields and its coerced propaganda tapes of beaten 
POWs produced severe mental anguish. The horrifying specifics 
for each of us and our family members are set out in detail in 
the opinion of the Federal district court in Acree v. The 
Republic of Iraq.
    On January 23, 1991, during our period of captivity, the 
House adopted Concurrent Resolution 48 by a vote of 418 to 0 
condemning, quote, ``the abuse by the Government of Iraq of 
captured United States and allied service members, including 
the apparent use of physical and mental coercion, Iraq's stated 
intention to disperse prisoners of war to potential military 
targets, and Iraq's flagrant and deliberate violations of the 
Third Geneva Convention.''
    The Senate followed with Concurrent Resolutions 5 and 8 by 
unanimous vote declaring, quote, ``The United States condemns 
the Government of Iraq for brutal mistreatment of American and 
other prisoners of war for deliberately placing their lives in 
danger and for other violations of the Third Geneva 
Convention.''
    These were powerful and important statements that Iraq 
would be held accountable, statements for which we are grateful 
to the Congress. But these statements will ring hollow for the 
future unless backed with action now.
    My fellow POWs also appreciate that on February 7, 2002, 
President George W. Bush issued an executive order in which he 
stated, quote, ``The United States will hold states, 
organizations and individuals who gain control of United States 
personnel responsible for treating such personnel humanely and 
consistent with applicable law,'' unquote.
    Our Nation has also pledged its word in this matter, as has 
Iraq, for Article 131 of the Third Geneva Convention creates a 
binding treaty obligation never to absolve a torturing state of 
any liability for the torture of POWs. This treaty is enforced 
for every nation in the world, including Iraq and the United 
States. It embodies one of the core deterrent mechanisms built 
into the treaty against the torture of POWs, that of 
nonabsolvable liability.
    In turn, President George W. Bush has pledged to the Nation 
that America will abide fully by the Geneva Conventions. The 
record is clear, Congress, the President and, by solemn treaty 
obligation, America and Iraq have pledged that those who were 
tortured--who torture American POWs will be held accountable. 
This treaty obligation, as it binds both Iraq and America, is 
nonabsolvable.
    Mr. Chairman, we are also mindful that our historic effort 
to deter torture of American POWs is rooted in the rule of law. 
With the support of this Committee, which is dedicated to the 
rule of law, we are hopeful that future generations of American 
POWs will not have to endure our ordeal.
    The rule of law is a key bulwark against tyranny and evil. 
At a not inconsiderable risk to ourselves, have sought to 
ensure that the rule of law can make a difference in the 
struggle against torture of American POWs held by the enemy. 
With the help of this Committee, it can and it will.
    I would like to thank this Committee on behalf of all the 
POWs and family members for your steadfast support and for the 
opportunity to appear before you and testify on this matter of 
national honor. Thank you.
    Mr. Cohen. Thank you, Captain Slade.
    [The prepared statement of Captain Slade follows:]
             Prepared Statement of Lawrence Randolph Slade



    Mr. Cohen. And now the Chair recognizes Mr. Wolf.

              TESTIMONY OF DANIEL WOLF, COUNSEL, 
                    VINE V. REPUBLIC OF IRAQ

    Mr. Wolf. Mr. Chairman, Members of the Committee, thank you 
for affording me the opportunity to present my views regarding 
this important matter of justice for American victims of 
terrorism.
    I represent George Charchalis, who is sitting here with me 
today, and as lead counsel in two lawsuits brought by 400 other 
American victims of Iraqi terrorism known as Hill and Vine v. 
Iraq. These suits arose out of the decision in 1990 by Saddam 
Hussein to detain all American citizens in Iraqi occupied 
territory----
    Mr. King. Mr. Chairman, would you ask the witness to turn 
on the mic, please?
    Mr. Wolf [continuing]. To detain all American citizens in 
Iraqi-occupied territory for the avowed purpose of deterring 
U.S., the United States, and its coalition allies, from taking 
military action to liberate Kuwait.
    Like Mr. Charchalis, many of these Americans were rounded 
up, relocated to strategic sites where they were detained for 
up to 130 days as human shields in deplorable conditions, and 
subjected to cruel and degrading treatment. The others remained 
in hiding or were trapped inside diplomatic properties.
    All of the hostages lived each day in fear for their lives. 
Many witnessed unimaginable atrocities. Some were beaten, 
raped, tortured and subjected to mock executions. After 
Congress made it possible to do so, 180 of those former 
hostages filed the Hill case against Iraq. And a couple of 
years later, 240 more filed the Vine case. By mid-2002, all 180 
of the plaintiffs in the Hill case had obtained judgments in 
their favor, totaling $94 million in the aggregate.
    In March 2003, literally on the eve of Operation Iraqi 
Freedom, President Bush issued an order directing that all of 
the Hill judgments be paid in full from blocked Iraqi assets. 
At the same time, however, the Administration confiscated all 
of Iraq's remaining blocked assets, transferred them to the 
Coalition Authority in Iraq where they were mostly squandered. 
Acknowledging that these actions left the 240 Vine plaintiffs 
out in the cold, the Bush administration gave public assurances 
their rights would be protected, promising, quote, ``to make 
sure that people who secured judgments find some 
satisfactions,'' assurances that came from as high up as 
Secretary State Powell. For the next 4 years, however, the Bush 
administration and State Department did nothing to honor that 
promise.
    Finally, in December of 2007, Congress amended the law in a 
matter that would have given the American victims of Saddam's 
brutality the right to obtain compensation for monies that Iraq 
had deposited in U.S. banks, but that was not to be. Acting at 
the behest of the State Department, President Bush vetoed that 
bill. The State Department has tried to justify that veto on 
the specious argument that the new FSIA amendments would put 
billions of dollars of Iraqi money at risk, imperiling the 
reconstruction efforts.
    On the basis of that gross exaggeration, the Bush 
administration managed to convince Congress to enact a 
compromise bill under which the President was given the 
authority to exempt Iraq from the reach of the new law in 
exchange for the Administration's promise to use its best 
efforts to resolve the claims of American victims of Iraqi 
terrorism. Last month, the State Department showed just how 
much that promise was worth.
    They informed us that the Administration fully agreed that 
the former hostages had valid claims, but they said that now is 
not the right time to raise it with Iraq as the United States 
did not have sufficient leverage. The Department has no 
intention of ever doing anything to vindicate the rights of 
Iraq's American victims as has recently become apparent from 
news reports. According to those reports, the U.S. has told 
Iraq that it will continue to protect Iraqi assets from these 
and other claims only if Iraq agrees to a strategic alliance 
with the United States giving the United States long-term 
basing rights in Iraq and affording U.S. Servicemen and 
contractors immunity from Iraqi judicial process.
    The irony could not be greater. Having once had their 
physical selves held hostage by the Iraqi Government to extract 
concessions from the United States, Iraq's former American 
victims are now having their claims held hostage by their own 
government so that it can extract the concessions from Iraq.
    At this point, I would ask the Committee to consider the 
moral implications of what the State Department is doing. One 
of the primary duties of the Department is to defend and 
protect the rights of America's citizens to be free from abuse 
by foreign governments. Yet, instead of lifting so much as a 
finger to protect those rights, the Department is offering to 
trade them away in exchange for bases and other concessions in 
Iraq.
    Why does the State Department need to use the rights of 
these American victims as leverage? Aren't we buying enough 
leverage with the blood of American soldiers dying every day in 
Iraq? Isn't the expenditure of hundreds of billions of dollars 
enough to purchase leverage with the Iraqi Government? Or is it 
just that the Department is tired of being bothered by these 
claims and is looking for a convenient opportunity to end them 
forever?
    The only way that the Bush administration's promise to the 
former hostages will ever be fulfilled is if Congress fills the 
void. The Braley-Sestak proposal will do just that.
    Thank you for the opportunity to testify in this matter.
    Mr. Cohen. Thank you, Mr. Wolf.
    [The prepared statement of Mr. Wolf follows:]
                   Prepared Statement of Daniel Wolf
Mr. Chairman and members of the committee:

    Thank you for affording me the opportunity to present my views 
regarding this important matter of justice for American victims of 
Iraqi terrorism. Those views have been shaped by more than two decades 
of experience litigating cases against foreign states under the Foreign 
Sovereign Immunities Act (the ``FSIA''), both as an attorney in the 
Office of the Legal Adviser of the Department of State and in private 
practice.
    Since 1999, I have been serving as lead counsel on behalf of George 
Charchalis and more than 400 other American victims in two lawsuits 
that have become known as Hill v. Republic of Iraq and Vine v. Republic 
of Iraq. As you have heard from Mr. Charchalis, these suits arose out 
of a decision Saddam Hussein made in August 1990 to detain all American 
citizens in Iraqi occupied territory for the avowed purpose of 
deterring the US and its coalition allies from taking military action 
to liberate Kuwait.
    Like Mr. Charchalis, many of those Americans were rounded up and 
forcibly relocated to strategic sites, where they were detained for up 
to 130 days as ``human shields'' in inhumane conditions and subjected 
to cruel and degrading treatment. The others remained in hiding or were 
trapped inside diplomatic properties. All of the hostages lived each 
day in fear for their lives; many witnessed unimaginable atrocities; 
some were beaten, raped, tortured and/or subjected to mock executions.
    For the first five years after their release, the former hostages 
had no means of obtaining justice because American law afforded 
terrorist countries like Iraq immunity from suit even when they 
tortured, kidnapped and otherwise terrorized American citizens. This, 
however, all changed in 1996 when Congress amended the FSIA to allow 
American victims of terrorism to seek redress against rogue nations.
    Following the enactment of this amendment, more than 400 American 
victims of Saddam's ``human shield'' policy filed suit against Iraq. 
The claims of the 180 victims who filed earliest were all consolidated 
in the Hill case and the claims of the 240 victims who filed later were 
consolidated in the Vine case.
    By mid-2002, all 180 of the plaintiffs in the Hill case had 
obtained judgments in their favor. The amount of these judgments 
totaled just over $94 million or about $500,000 per plaintiff on 
average, ranging from a high of $1.75 million to a low of $50,000.
    In March 2003--literally on the eve of Operation Iraqi Freedom--
President Bush issued an order directing that all of these judgments be 
paid in full from blocked Iraqi funds. At the same time it was 
authorizing payments to the Hill plaintiffs, however, the Bush 
Administration confiscated all of Iraq's remaining blocked assets-
converting them to US assets and, thereby, placing them out of reach of 
any collection efforts. And, despite the Vine plaintiffs' request that 
the President reserve sufficient funds to satisfy any judgments they 
might obtain, the assets were subsequently transferred to the Coalition 
Authority in Iraq, where they were mostly squandered.
    Acknowledging that its actions unfairly left the 240 Vine 
plaintiffs out in the cold, the Bush Administration gave numerous 
public assurances that their rights would be protected, promising, for 
example, to ``make sure that people who secure judgments find some 
satisfaction.'' These assurance came from as high up as Secretary of 
State Colin Powell, who came to Capitol Hill to testify about the State 
Department's commitment to setting up a ``victims of terrorism fund'' 
to accomplish that goal.
    For the next four years, however, the Bush Administration and its 
State Department did nothing to honor its promise to the victims--
refusing even to meet with them or their representatives. Finally, in 
December 2007, Congress amended the FSIA to strip current and former 
terrorist states, including Libya and Iraq, of the immunities that 
protect their assets from attachment and execution. These amendments, 
which were passed as part of the National Defense Authorization Act, 
would have enabled the American victims of Saddam's brutality to obtain 
compensation from monies Iraq has deposited in US banks.
    But that was not to be. Acting at the State Department's behest, 
President Bush vetoed the defense bill just before the New Year. The 
State Department tried to justify that veto on the specious argument 
that the new FSIA amendments would put ``billions'' of Iraqi dollars at 
risk--imperiling its reconstruction effort.
    On the basis of that gross exaggeration, the Bush administration 
managed to convince Congress to enact a compromise bill. Under that 
compromise, the President was given the authority to exempt Iraq from 
the newly enacted amendments to the FSIA in exchange for an 
Administration promise to use its best efforts to resolve the claims of 
American victims of Iraqi terrorism. Congress codified this compromise 
in a ``sense of Congress'' resolution in which it expressed its 
expectation that the Administration would act swiftly to fulfill its 
promise to the victims through state-to-state negotiations.
    In reality, it took four more months before the Administration 
agreed to meet with the victims or their representatives. At that 
meeting, Administration officials made clear that they had come only to 
listen--not to make any proposals of their own. Ten days later, the 
State Department delivered us the Administration's response. They said 
that the Administration fully agreed that the former hostages all had 
valid claims for which Iraq was duty-bound to compensate them. As much 
as they would like to be helpful, however, they said that they would 
not raise the matter with Iraq because the present state of the 
bilateral relationship between the two countries made it pointless to 
do so.
    In other words, they claimed that, despite the expenditure of 
hundreds of billions of dollars and the deaths of more than 3,000 
American servicemen, the US does not have leverage with the Iraqi 
government at this time. Asked why this was not the right time and what 
would have to change before they felt they would be in a position to 
exert such leverage, the State Department simply said that there may 
never be a right time to raise this matter.
    That the State Department has no intention of ever doing anything 
to vindicate the rights of Iraq's American victims has recently become 
apparent from news reports, which reveal a cynical effort by the 
Department to use their claims as a bargaining chip to extract 
unrelated concessions the Administration is seeking from Iraq. 
According to those reports, the US has told Iraq that it will continue 
to protect Iraqi assets from these and other claims only if Iraq agrees 
to enter into an ``alliance'' agreement, giving the U.S. long term 
basing rights in Iraq and affording U.S. servicemen and contractors 
immunity from Iraqi judicial process. The irony could not be greater. 
Having once had their physical selves held hostage by the Iraqi 
government to extract concessions from the United States, Iraq's former 
American victims are now having their claims held hostage by their own 
government so that it can extort concessions from the Iraqis.
    The State Department's callous refusal to raise the victims' claims 
on the ground that, 18 years after their ordeal, the time is ``not 
right'' is unconscionable. It is the latest, and perhaps final, chapter 
in the story of the Department's abdication of its responsibility to 
American citizens who were abused, terrorized and tortured by Saddam 
Hussein during the First Iraq War.
    As you have just heard from Mr. Charchalis, this story began when 
the Department advised those Americans that the Iraqi troop buildup 
along the Kuwait border was of no concern--thus sealing his fate and 
that of hundreds of others who ended up stranded in the middle of a war 
zone. Following their release, the Department had the opportunity to 
hold the Iraqi regime accountable by compensating the former hostages 
from frozen Iraqi funds on deposit in US banks. But it refused to do 
so. Then, when the victims tried to obtain justice by pursuing their 
claims in U.S. courts, the Department took every opportunity to 
obstruct them. Indeed, showing no shame, the Department and their 
allies within the Administration have gone so far as to impugn the 
patriotism of these American heroes by publicly stating that they were 
``jeopardizing our troops in the field'' and handing ``a propaganda 
victory'' to our enemies in Iraq.
    The only way the Bush administration's promise to the former 
hostages will ever be fulfilled is if Congress steps into the void. The 
Braley-Sestak proposal would do that by ensuring that they are afforded 
the same rights to pursue their claims in American courts as are all 
other victims of state-sponsored terrorism and without further 
interference by the State Department. At the same time, it gives Iraq 
the ability to limit its liability by settling the claims of the Vine 
plaintiffs for reasonable amounts based on a simplified version of the 
formula used to compensate the Hill plaintiffs, but under which the 
award for any single individual would be capped at no more than 
$900,000. As the claims of the Vine plaintiffs are identical to those 
of their fellow hostages who participated in the Hill case, there is no 
justification for the failure to treat them in similar fashion. 
Enactment of the Braley-Sestak will bring them the justice that they 
seek and that is so long overdue.
    We who have been representing these American heroes in their quest 
for justice thank you and the Committee for its interest in this matter 
and look forward to working with you to enactment a statute that 
assures that these claims are paid, at reasonable amounts, by the party 
that is responsible and liable under international law.

    Mr. Cohen. Mr. Charchalis--and I hope I pronounced it 
correctly; if not, correct me--you're recognized.
    Mr. Charchalis. It's Charchalis.
    Mr. Cohen. I was close. Thank you.
    Mr. Charchalis. Can you hear me clearly?
    Mr. Cohen. I can hear you.
    Mr. King, can you hear him? You're my hear test.
    Mr. King. Yes, I can.
    Mr. Cohen. Thank you, sir.

                TESTIMONY OF GEORGE CHARCHALIS, 
             PLAINTIFF IN VINE V. REPUBLIC OF IRAQ

    Mr. Charchalis. First of all, let me--Mr. Chairman, Members 
of the Committee--let me thank you for the opportunity to come 
in and offer testimony today. I am an American citizen, a 
lifelong resident of Nevada and a veteran of the Korean War 
where I served in combat with the Third Infantry Division.
    I would like to say that I believe this hearing to be a 
single event in the effort to resolve the question of 
compensation for prisoners of war and human shields. Following 
my discharge from the Army, I completed my studies at Utah 
State and then embarked on a career in city planning and 
management, ultimately established my own consulting business.
    In 1989, I was recruited by the Kuwait Institute for 
Scientific Research. They hired me to manage an ambitious plan 
to install parks, gardens, fountains and freeway landscapes 
throughout the country. It was to be a long-term effort.
    After selling my business, I moved to Kuwait with my wife 
and commenced what turned out to be the most rewarding work of 
my life. That work, however, came to abrupt end when the Iraqi 
Army invaded Kuwait on the morning of August 2, 1990. Within 
hours, troops were forming all over the neighborhood; and in 
the next few days, we began to hear horrifying reports of 
atrocity, including rape, torture and summary executions.
    The Iraqi Army soon set up a command post directly across 
from our apartment building. Very quickly, the fighting came 
very close to our building. Several of the windows in our flat 
were shot out by machine gun fire. Scared to death, my wife and 
I huddled in the basement, piling mattresses around us for 
protection.
    In August, Saddam Hussein issued an edict that allowed 
security forces to round up American citizens so they could be 
used as human shields to deter a bombing. We moved into the 
basement on a permanent basis and then to a safe house. We 
lived in a state of constant anxiety and fear knowing that the 
Iraqi soldiers could storm the door any minute.
    We struggled to keep up our spirits. The stress and tedium 
wreaked havoc with us. Worst of all was a feeling of utter 
hopelessness that I could do nothing to protect my wife and 
comfort my daughters at home. Fortunately, in September, Saddam 
was shamed into allowing the release of women and children. 
Saying goodbye to my wife, knowing I might never see her again, 
was a heartbreaking experience for me.
    Two days later, what I had feared most came to pass. The 
Iraqi soldiers kicked down the door and struck me in the face 
with a rifle butt, knocking me down to the ground and kicking 
me in the stomach. One of those kicks broke an abdominal hernia 
that had been repaired prior to my departure for Kuwait. I 
sustained a dislocated denture, a bleeding gash over my eye 
that left a nasty scar; I had a bruised tailbone, and I had a 
disintegrated disc that has given me pain ever since.
    I was taken to an underground car park, convinced I was 
going to be shot. There was an argument about my passport. An 
Iraqi officer looked at it and said something in Arabic and 
they put me back in the car. I was taken to a Kuwaiti police 
station and put in jail with my hands tied behind my back. I 
could hear horrifying screams all night long.
    The next morning I was taken to a hotel and then handed 
onto a bus with a number of hostages and then taken to Baghdad. 
We were driven north to a chemical complex near Samarra. To 
locate that for you in your mind, it is where the Golden Dome 
Mosque that was blown up several years ago is located.
    Where we were held was a rat infested--roach, desert flies. 
And apart from an hour each day, when we were allowed to walk, 
we were confined in these awful huts almost around the clock. 
The kitchen was disgusting and unsanitary. We developed all 
kinds of skin sores, suffered from chronic diarrhea that became 
so debilitating I had to be taken to a hospital. The stress was 
almost unbearable.
    We were surrounded by armed guards and had the creepy sense 
of being watched every minute, which made me feel like a caged 
animal. We lived in constant knowledge that any moment we could 
be executed or we could be killed by a bombing raid.
    If necessary, we were prepared to die for our country; and 
the Iraqis tried to pressure us to go on television and 
denounce my President and country. I told them to go to hell. I 
began to succumb to anxiety, developed chronic hand tremors, 
lost my ability to concentrate. I could barely read a page. 
Suffering from insomnia, I felt a state of perpetual fatigue.
    As the war went on, I was totally distraught, feeling that 
my captivity would last forever and I would never be able to 
maintain my grip on reality.
    Finally, on December 2nd, the nightmare came to an end when 
a list of hostages to be evacuated with Mohammed Ali's peace 
mission when he came to Iraq.
    Upon returning to the States, I was hospitalized for 
several days, received treatment for my hernia and internal 
bleeding.
    In the following months, I was plagued by intense anxiety 
attacks, flashbacks, was unable to recover my appetite, 
suffered from recurring bouts of depression that plagued me. My 
difficulty concentrating forced me to retire at what would have 
been the height of my career.
    I have an ex--I live with an exaggerated state of response 
to loud noise, I have been diagnosed with post traumatic stress 
disorder and am still haunted by personal memories.
    I would like to recommend and urge the Committee to help us 
to do that by adopting the Braley-Sestak proposal. And on 
behalf of my wife and myself and all of our fellow hostages, I 
would like to thank you for taking the time to listen to us and 
consider our plea. Thank you.
    Mr. Cohen. Thank you, Mr. Charchalis.
    [The prepared statement of Mr. Charchalis follows:]
                Prepared Statement of George Charchalis
Mr. Chairman and members of the committee:

    My name is George Charchalis. I am an American citizen, a lifelong 
resident of Nevada, and a veteran of the Korean War, where I saw combat 
with the Third Infantry Division.
    Following my discharge in 1953, I completed my studies at the Utah 
State University, then embarked on a career in city planning and 
management, and ultimately established my own consulting business. In 
1989, I was recruited by Kuwait's Institute of Scientific Research, 
which hired me to manage an ambitious plan to install parks, gardens, 
fountains and freeway landscaping throughout that country. After 
selling my consulting business, I moved to Kuwait with my wife and 
commenced what turned out to be the most rewarding work I had ever 
done.
    That work, however, came to an abrupt end when the Iraqi army 
invaded Kuwait on the morning of August 2, 1990. Within hours, Iraqi 
troops were swarming all over our neighborhood and, over the next few 
days, we began hearing horrifying reports of Iraqi atrocities, 
including rape, torture and summary executions.
    The Iraqi army soon set up an operational headquarters on the beach 
just across from our apartment complex and, with each passing day, the 
fighting got closer to us. Explosions and bombing became a terrifying 
concern. Several of the windows in our flat were shot out by machinegun 
fire. Scared to death, my wife and I huddled together in the basement, 
piling mattresses around us for protection as we struggled to sleep at 
night.
    In mid-August, we learned that Saddam Hussein had issued an edict 
to his security forces to round up all American citizens in Kuwait, so 
that he could use them as ``human shields'' to deter the United States 
from bombing Iraqi strategic sites. Worried that they would come to get 
us, we moved to the basement of a Kuwaiti friend and then to a safe-
house where another American citizen was already hiding out.
    We lived in a state of constant anxiety and fear, knowing that the 
Iraqi soldiers could storm through the door at any moment. We struggled 
to keep our spirits up, but the stress, tedium, confinement and 
uncertainty played havoc with our emotions. Worst of all was my feeling 
of utter helplessness that I could do nothing to protect my wife or 
comfort our daughters at home who I knew would be worrying themselves 
sick.
    Fortunately, in early September, Saddam was shamed into allowing 
the release of women and children. Saying good-bye to my wife, knowing 
that I might never see her again, was the most heartbreaking thing I 
have ever done.
    Two days later, the moment I had feared most finally came. Iraqi 
soldiers kicked down the door of the flat where I was hiding. They 
struck me in the face with a rifle butt, knocked me down on to the 
ground, and kicked me mercilessly in the stomach. One of those kicks 
broke an abdominal hernia that had been repaired prior to my departure 
for Kuwait. In addition, I sustained a dislocated denture, a bleeding 
gash over my eye that left me with a nasty scar, a bruised tailbone 
that has led to a disintegrated disc and given me pain ever since, and 
the loss of hearing in my ear. I was in terrible pain and feared for my 
life.
    I was taken to an underground car park, where I was made to stand 
against a wall. I was convinced that I was about to be shot, but after 
arguing about my passport, my Iraqi captors loaded me back into their 
car and took me to a Kuwaiti police station.
    I was held overnight in a hot, fetid cell with my hands tied behind 
my back. Throughout the night, I could hear the terrifying screams of 
my fellow prisoners and wondered when my turn would come. The next 
morning, I was taken to a hotel and then herded onto a bus with a 
number of other hostages. After being taken to Baghdad, we were put on 
another bus and driven northward for most of the night until we arrived 
at a huge chemical complex near Samarra.
    The next three months were almost like a living hell. We were 
housed in dilapidated huts that had long ago served as the living 
quarters for the workers who had constructed the facility. They were 
infested with rats, roaches and desert biting flies. Apart from an hour 
or so each day when we would be allowed to walk outside for exercise, 
we were confined to these awful huts almost around the clock.
    The kitchen was disgustingly unsanitary, the water was foul, and 
what meager food we were given was totally unappetizing. We all 
developed skin sores and I suffered from chronic diarrhea, which became 
so debilitating that I had to be hospitalized. I was afflicted by 
numerous other physical ailments as well, including a very bad skin 
rash, and continued to struggle with pain from my ruptured hernia. By 
the time of my release, I had lost more than 20 pounds and was just a 
shell of my former self.
    The stress was almost unbearable. We were surrounded by armed 
guards and the creepy sense of being watched every minute made me feel 
like a caged animal. We lived with the constant knowledge that at any 
moment we could be executed or killed in a bombing raid. If necessary, 
however, we were prepared to die for our country and, when the Iraqis 
tried to pressure me to go on television to denounce my president and 
my country, I told them to ``go to hell.''
    I soon began succumbing to anxiety attacks, developed chronic hand 
tremors and lost my ability to concentrate to the point that I could 
barely read a page. I suffered from insomnia that left me in a state of 
perpetual fatigue. When I did manage to sleep, I would often awake to 
terrible nightmares of being hunted down and tortured. As the weeks 
wore on, I became totally distraught, feeling as if my captivity would 
last forever and wondering how much longer I would be able to maintain 
my grip on reality.
    Finally, on December 2, my nightmare came to an end when I was 
placed on a list of hostages to be evacuated with Muhammad Ali, who had 
come to Iraq on a humanitarian mission. Upon returning to the States, I 
was hospitalized for several days, while I received treatment for my 
hernia and internal bleeding.
    In the months following my release, I was plagued by intense 
anxiety attacks and had flashbacks of being captured and beaten. I was 
unable to recover my appetite and suffered from recurring bouts of 
depression, which plague me to this day. I had great difficulty 
concentrating and was forced to retire at what should have been the 
height of my career. I have an exaggerated startle response to loud 
noises and grind my teeth so hard when I sleep that I am forced to wear 
a mouthpiece. I have been diagnosed with post-traumatic stress disorder 
and am still haunted by painful memories of my ordeal in captivity.
    Today, 18 years after that ordeal, I am deeply saddened and 
bitterly disappointed at the treatment I have received from my own 
government and, in particular, the Department of State. I believe that 
the Department bears at least some of the responsibility for my plight, 
having assured me and many other Americans who had contacted the U.S. 
Embassy that the Iraqi buildup along the Kuwaiti border was just 
``saber rattling'' and that there was nothing for us to be concerned 
about. Subsequently, after the invasion, Embassy officials refused my 
pleas to allow my wife and I to seek refuge within the Embassy compound 
at the same time they were granting safe haven to American diplomatic 
and military personnel. And, finally, ever since my release, the 
Department has done everything in its power to derail the lawsuit that 
my wife and I, along with more than 200 other former hostages, have 
brought against Iraq in an effort to obtain some measure of justice for 
the injuries we have suffered.
    In March 2003, about 180 of our fellow hostages who had filed an 
identical lawsuit managed to obtain such justice when President Bush 
ordered that their judgments be paid from blocked Iraqi bank accounts. 
I am very pleased that these victims were able to get the justice they 
so greatly deserved. At the same time, however, I find it grossly 
unfair that a second group of victims who were held captive at the same 
time and under the same conditions have received not one dime. I cannot 
understand how the State Department can believe this situation is 
acceptable. I know that I never will and, unless and until something is 
done to right this wrong, I know that my wife and I will never be able 
to close the door on this horrific chapter in our lives.
    I urge this Committee and this Congress to help us do that by the 
Braley-Sestak proposal. On behalf of my wife, myself and all of our 
fellow hostages, I thank you for taking the time to listen and to 
consider our plea.

    Mr. Cohen. We will now have a round of questions for our 
witnesses, and the Chair will proceed first.
    First, I would like to ask Ambassador Moore and Mr. Wolf, 
had section 1083 of the 2008 defense bill passed in its 
original form, how would it have helped your cases?
    Ambassador?
    Mr. Moore. Thank you, Mr. Chairman.
    The POWs in working with the Congress on that bill sought 
to do nothing but restore the original intent of the Congress 
and provisions of law that had been badly distorted.
    For example, one provision dealing with cause of action in 
a case, a technical legal issue, as you know, Mr. Chairman. And 
this is one in which the Committee itself had stated in its 
report that the provision was intended to create a Federal 
statutory cause of action. That was later held by a court as 
something that--cause of action that created a problem for the 
POWs in the case.
    So it would have simply returned--restored the original 
intent of the Congress. So that is all the POWs sought. They 
did not, by the way, seek anything to go against the funds of 
Iraq in United States banks. They sought no such provisions 
whatsoever.
    What they would have done--indeed, we had it prepared 
already--was to file a motion back in the Federal district 
court pursuant to the provisions of the defense authorization 
bill that simply would have quickly restored our judgment 
instead of leaving it there, as it is currently under a motion 
in the Federal district court, a technical legal motion under 
section 60(b) of the Federal Rules of Civil Procedure.
    So, actually, what it would have done, it would not have 
taken a penny at that point from Iraq. It simply would have 
restored the original judgment which is still pending before 
the Federal district court at present.
    Thank you, Mr. Chairman.
    Mr. Cohen. Mr. Wolf, do you have anything to add?
    Mr. Wolf. Yeah, I guess.
    Quite simply, I believe if the bill had been enacted, we 
would have moved to judgment in the case. We would have 
proceeded no doubt against Iraqi money in U.S. banks, and we 
would have obtained--enforced those judgments, I believe, in 
modest amounts and in amounts that were far less than the 
billions of dollars that the Administration said that were at 
risk here. It would have been probably about $120 million or 
so.
    Mr. Cohen. Thank you.
    Ambassador Moore, can you explain how our obligation under 
the Geneva Convention never to absolve the torturing state of 
any liability with regard to POWs makes this a particularly 
unique case?
    Mr. Moore. Yes, Mr. Chairman, this is one of the few, if 
not the only, settings in the world in which there is a treaty 
obligation binding on every nation in the world. The POW 
Convention is one of very few conventions accepted by every 
nation in the word, not simply customary international law. And 
one of the core deterrent mechanisms in that to prevent torture 
of POWs is the provision that not only the torturing state, but 
no other state to reflect either a victor in a war or a loser 
in a war, no one, can absolve a torturing state for any 
liability for torture.
    So we have a fundamental principle here indicating that the 
judgment that had been won by the POWs--determined, by the way, 
after a full hearing on the facts in the law by a judge who was 
a former assistant attorney general of the United States of 
America, and, by the way, in a procedure in which--even when 
the other side doesn't show up, you have to have a full hearing 
and go through it in any event.
    So--and in a setting, as well, in which they have had to 
turn down international arbitration, which they did about the 
case for us initially.
    So this is an absolutely unique setting for the POWs in 
which there is a clear obligation that their liability cannot 
be absolved.
    I might add, it is also very, very clear in the sense that 
you already have had a Federal judgment indicating in every 
single case what the damages should be after reviewing careful 
damages in all of the other cases. We also have a Presidential 
statement in 2002 that has pledged that the United States of 
America will hold torturing states accountable; they will be 
held accountable for mistreating Americans.
    So you have a whole series of provisions, including three 
unanimous resolutions of the Senate and the House, all 
basically indicating that there should be liability in this 
case.
    I might add, Mr. Chairman, that we understand that there is 
a new government in Iraq and a war still going on. Since you 
have asked a narrow question on this other one, a very 
important one, I would like to just hold that one for a moment; 
and we will come back to it, if that is all right.
    But I would like to talk to some of the points that I think 
Mr. Lungren has appropriately raised.
    In relation also the interest of this and serving the war 
effort, because we believe very strongly that this bill, this 
proposal does serve the war effort as well.
    Mr. Cohen. Would you like to proceed in that matter.
    Mr. Moore. Yes, actually I would. Thank you very much, Mr. 
Chairman. I appreciate it.
    Mr. Cohen. Permission granted.
    Mr. Moore. Thank you, sir. The POWs and family members that 
I served were all volunteers. They went in harms way, and many 
of their colleagues and friends still are going in harms way. 
They would not support anything that they believe would harm 
the war effort in any way, shape or form. And I would not be 
here testifying on their behalf if I believed that. When the 
President of the United States vetoed the defense authorization 
bill, it was because at that time I do not believe the 
Administration had a sense or Iraq had a sense of what the 
liabilities might be in relation to provisions in that bill 
which had not been sought were not put in by the POWs. But I 
think realistically, they didn't know at that time what those 
liabilities were.
    Thanks to the action of the Congress in putting in a 
provision indicating this should be something that the 
Administration tries to resolve, the Justice Department held a 
meeting on April 22nd for all of the claimant groups that are 
now reflected in the Braley-Sestak matter, because we believe 
these were the claims that were looked at and thought to be 
valid claims of victims of terror, all under the provisions 
that were then in court. These were the critical ones that had 
been addressed in the 2008 defense bill at that point.
    In that setting, all of the claimants made a very 
substantial presentation, putting on the table in the case of 
the POWs an illustrative settlement offer that is largely 
reflected in the Braley-Sestak bill that would waive all 
punitive damages, $306 million in punitives, that would waive 
two-thirds of all of the compensatory damages. Over $400 
million waived of compensatory damages. These damages are not 
awarded by an out-of-control jury, for example, in some case a 
jury that doesn't like Iraq. These damages are awarded by a 
Federal District Judge in the same setting for trials against 
the United States of America looking at the law and the facts 
very carefully. That was a rather extraordinary effort to 
basically waive, in the interest of trying to resolve this 
matter, over $700 million in the judgments.
    Now, why do I believe that this bill, Braley-Sestak, and I 
believe this from the bottom of my heart, is something that 
should be strongly supported on a bipartisan basis and serves 
the war effort as well as serving justice for these POWs. The 
first point is that this would dramatically get rid of and 
reduce the most important and politically supported claims 
against the Government of Iraq today. And it would do so on 
terms that are very close to the commercial debt arrangements 
that Iraq is basically working out.
    Iraq is largely settling those commercial debts which it 
has been doing for about $0.20 on the dollar, though some have 
held out for more, and Iraq is doing the same thing roughly for 
sovereign debts under what are called Paris Club terms for 
approximately $0.20 on the dollar. That is roughly what has 
been put on the table here for debts of honor, something that 
we think are far more important to this country and to these 
POWs and what their entitled to, than are commercial debts; 
such as those of Mitsubishi of Japan and Hyundai of Korea that 
have already been settled with approximately 20-30 billion 
being settled.
    So this would remove at one fell swoop the remaining core 
principal claims that have a strong constituency in the 
Congress of the United States; claims that will have to be 
resolved appropriately at some point.
    The second reason why this is in the war effort, Mr. 
Chairman, is that this will simplify the work of the 
Administration in trying to conduct two important negotiations 
at this point with Iraq. The first of those is the status of 
forces negotiation. I served as a former counselor on 
international law in the State Department, and I know about the 
SOFA negotiations and they are also engaged in doing sort of a 
strategic overview agreement as well in which they are 
negotiating with Iraq. These are difficult negotiations. It 
will absolutely unequivocally serve those negotiations to 
remove these issues in a way that are very favorable to Iraq 
and provide fair justice and are honorable to POWs. That is 
exactly what the Braley-Sestak proposal would do.
    Thirdly, Mr. Chairman, in relation to this serving the war 
effort, I believe that this is potentially an enormously 
important issue with the American people. I think some 
anonymous advisors are giving Iraq very bad advice. The issue 
of fair treatment of American POWs resonates with the American 
people. This issue needs to be resolved in the interest of 
support for the new government of Iraq. And I think that 
government is now getting terribly mistaken advice.
    If I were they, I would immediately resolve this and not 
even wait for the Congress to pass this bill. This is a very 
good deal for Iraq in terms of what is in here.
    And finally Mr. Chairman, the last point as to why this 
serves the war effort is that one of the objectives of the 
United States of America in this war is to promote a democratic 
rule of law government in Iraq. It does not serve that 
objective for the United States to simply avert our eyes primly 
while Iraq seeks to basically violate a fundamental treaty 
obligation. Nor do I think it is fair to American honor to have 
a setting in which Iraq is being told by these anonymous 
advisors to go out and settle the debts, $20 billion to $30 
billion in debts with foreign corporations of other countries, 
while they are basically ignoring the debt of honor owed to 
these American POWs. Thank you for that opportunity, Mr. 
Chairman.
    Mr. Cohen. You are welcome, Ambassador and thank you. I 
would now like to recognize the Ranking Member, Mr. Lungren.
    Mr. Lungren. Thank you very much, Mr. Chairman, and thank 
all four of you for your presentations. You know when you first 
look at this or when you just look at it it appears to be an 
easy decision. I mean, when you hear the testimony of Captain 
Slade and the testimony that we received from Mr. Charchalis, 
how can you dispute the experiences the two of you went 
through, and how can you dispute that it violates every idea of 
international law and civil conduct. And so you wonder why do 
Administrations not just immediately allow these lawsuits to go 
forward and these assets that basically have been frozen to be 
exposed to these kinds of judgments.
    And so I mean, I think, you have made compelling testimony 
here, Ambassador and Mr. Wolf. So let me just ask you if you 
would respond, because this is not just a position that this 
Administration has taken in this circumstance. And maybe Mr. 
Wolf, what you are talking about is the State Department. We 
could really argue about that. But let me just articulate or 
quote from a statement that a previous Administration had used 
with respect to another country involved in the same situation. 
And they said, first blocking the assets of terrorist states is 
one of the most significant economic sanction tools available 
to the President.
    The proposed legislation, this again was a previous 
Administration, but the proposed legislation would undermine 
the President's ability to combat international terrorism and 
other threats to national security by permitting, in this case, 
they talked about the wholesale attachment of blocked property, 
thereby depleting the pool of blocked assets and depriving the 
U.S. of a source of leverage in ongoing and official sanctions 
programs such as was used to gain release of our citizens held 
hostage in Iran in 1981 or gaining information about POWs and 
MIAs as part of the normalization process with Vietnam. In 
other words it seems that they are establishing a principle 
that they are concerned about, not only in terms of current 
conditions, but future conditions. And I could argue with that, 
but I wish the two of you would address that.
    Mr. Wolf. Congressman Lungren, the most immediate response 
to that is that this country doesn't negotiate with terrorists. 
And what we are talking about here are countries that are 
engaged in brutal acts of terrorism. Their assets are then 
attached. And the question is are we going to use those assets 
in some future negotiation 20 years, 10 years, 5 years down the 
line as some type of negotiation, while those countries have 
absolutely no respect for our assets or the rights of our 
citizens. Or are we going to use those assets at least in part 
to provide some redress for the victims who suffered so 
terribly.
    Now, the State Department and the successive 
Administrations have had every opportunity to resolve these 
claims on a state-by-state level providing reasonable amounts 
of compensation. They have the power to do that under 
international law to espouse claims. But the problem is that in 
general--and I do direct most of my criticism of this to the 
State Department because I know that it is essentially a 
bureaucratic problem.
    Essentially what the State Department is doing is they look 
at sort of international relations or their mandate is one 
essentially of keeping things calm between the United States 
and other countries. And they have that sort of mind set, which 
sometimes is, of course, appropriate. But they also have a 
mandate to protect the rights of American citizens.
    And when you are talking about reasonable amounts of 
compensation from someone like Saddam Hussein or from the 
Iranian regime, there is just no reason, there is no basis to 
keep assets tied up for 10, 15, 20 years on the basis of some 
future speculation that you might be able to use those 
negotiations and stuff, those assets and stuff for some sort of 
leverage. I think that the true fact is that the Department 
thinks of those assets as kind of theirs, as their sort of 
bailiwick to do what they want with. And for that reason, they 
view this sort of more as a turf issue than anything else, and 
I think that is why they are so opposed to it.
    And I would note that in the case of the Hill plaintiffs, 
for example, you have a situation here where you had reasonable 
judgments. We didn't go in there looking for the stars and the 
moon. We were looking for reasonable amounts of compensation, 
$500,000 per claim on average, some of them were higher, some 
of them were lower. And ultimately, the Bush Administration did 
make the decision to license blocked Iraqi assets to pay for 
those claims of those 120 victims. And yet here we are sitting 
here today with Mr. George Charchalis and 200 other Americans 
detained under the same conditions at the same time in the same 
circumstances, and the Department somehow feels that it is 
appropriate that these individuals should not get a single 
dime. They are making no effort.
    We have talked about, Congressman Lungren, about the kind 
of proposal that the State Department could have put forward or 
was asked to put forward years ago. We have gone to the 
Department time and time again asking them to put forward a 
proposal. We have proposed alternatives to them. We have 
proposed various means of addressing these claims and other 
claims. And every time we are met with one response, and that 
response is deafening silence. And so the time is now here that 
Congress has to act. If they do not, nothing will happen and no 
one is going to get compensated, and that is the truth of the 
matter.
    Mr. Lungren. Thank you. Ambassador.
    Mr. Moore. Yes, sir. Thank you, Congressman. I think the 
points you have raised, I would say as a former counselor on 
international law, has, in a variety of settings, some very 
important credence, and it is certainly something that we have 
always looked at in the Department of State. I think in this 
particular case, however, it does not apply for some very good 
reasons. Indeed, I think it is actually for the converse in 
this case.
    The first thing I would note on that is in this case the 
$1.7 billion in blocked Iraqi assets which were there when we 
began this case on behalf of the POWs before the war were 
earmarked by the Congress of the United States itself to pay 
these judgments. And so the Congress itself had taken action in 
this case to say where those funds went. Indeed, when the funds 
were seized by the President, $100 million of that was used to 
play the first tranche of the hostage plaintiffs.
    So the hostage plaintiffs, the first group, at least, 
received $100 million with the approval of the Administration 
from the blocked assets. POWs have received absolutely nothing. 
The second point, and this is the one why I think, Mr. 
Chairman, it is really the converse in this particular case. 
And that is that right now the Administration is in a very 
difficult set of negotiations with Iraq. I really think this is 
an extremely important set of negotiations and very important 
for the war effort.
    They are the SOFA negotiations and the strategic 
relationship negotiation. I believe that these are settings in 
which Iraq actually is in a position to use this because it 
knows that the President cannot come home without having 
something probably trying to deal with this. Iraq can use this, 
the government against the President of the United States and 
against the executive branch in relation to leverage the other 
way. I think it is very significant that the Administration 
chose not to testify at this hearing. If the Administration 
were clearly in opposition or the President thought that this 
was a bill that he was worried about or needed to veto, they 
would have opposed.
    Again, going back to my experience in the State Department, 
we would never permit a hearing with something of this sort 
that we felt would compromise our interest and not come up and 
testify on behalf of the executive branch. I think what this is 
signaling, and this is exactly what all of us as the counsel 
after the April 22 Justice Department meeting felt, is that the 
executive branch of the United States, now that it knows there 
is a very limited amount, a settlement that has been put on the 
table that is very favorable to Iraq as well as honorable to 
the hostages and our people, that is a good deal, it is easier 
to have Congress deal with it and, in my judgment, they are 
standing aside for the Congress of the United States to deal 
with this.
    Mr. Lungren. So you view the April meeting or consultation 
as a positive step?
    Mr. Moore. Absolutely. Indeed, let me say I appreciate very 
much the fact that we had this interagency meeting, Mr. 
Lungren. I think the Administration was very good in putting on 
that meeting, was responsive to the question that the Congress 
had asked them to look at this. I am sorry, they then didn't 
choose to actually resolve the whole thing. But I think frankly 
the reason they didn't is because they felt they would have 
better leverage in the other issue if Congress resolved this 
issue and they stepped aside.
    Mr. Lungren. Would you say that the consultation helped to 
narrow the issue or the parameters or the size of the potential 
recovery or the size of the challenge to the Congress and the 
Administration?
    Mr. Moore. Yes, sir, I think it did.
    Mr. Lungren. Thank you.
    Mr. Moore. I think the Administration saw very clearly that 
what we were faced with now was a very discrete amount. In 
fact, let me put it in context. At the time of the presidential 
veto, they were concerned about the possibility of risk to $20 
to $50 billion in Iraqi assets in American banks. The entire 
amount in the Braley-Sestak approach, which is basically all of 
the valid claims, again and how we know that, this is the group 
vetted, selected by the Justice Department itself for these 
meetings, and in that setting, what does it amount to? It is 
$415 million for the total amount, including something in the 
mid two hundreds for the POWs, but that total amount is 
considerably less than 1 percent interest for 1 year on Iraq's 
funds in United States banks today, which are about $50 
billion, ignoring altogether the additional oil windfall of the 
doubling and tripling of the price of oil.
    We are all seeing the prices at the pump today, that are 
going into Iraqi coffers. Iraq itself is saying over and over 
today we have the money to do what we want to do. They can't 
possibly spend the money they have now on reconstruction. So we 
are talking about for an issue of national honor in fairness to 
these people something that is considerably less than 1 percent 
of 1 year's interest on Iraq's bank accounts only in the United 
States.
    Mr. Cohen. Thank you, Mr. Lungren. Mr. Scott from Virginia 
has joined us. Do you have any questions.
    Mr. Scott. Could I defer at this time and be called on 
later?
    Mr. Cohen. Yes, sir. Are there questions from Mr. King of 
Iowa.
    Mr. King. Thank you, Mr. Chairman. I also want to thank the 
witnesses. And this has been a hearing that has been 
informative to me. I have a series of questions that 
accumulated as I listened to the testimony. And I think I might 
try to work backwards through this in this fashion. I don't 
understand the reluctance on the part of Iraq. As I listen to 
your numbers in the way you describe it, it does appear to be a 
prudent business decision on their part to resolve this.
    And so the question I would have for you, Ambassador, would 
be is there a chance that the Iraqis are looking at this could 
potentially set a precedent that might open up more liabilities 
in their country to perhaps nationals from other countries that 
have been tortured in Iraq under different circumstances?
    Mr. Moore. Congressman, that is an excellent question. 
Before I start, let me just extend my condolences for the 
terrible flood for the people of Iowa. I am terribly saddened, 
and I know this whole country is.
    Mr. King. Thank you very much. We all appreciate that.
    Mr. Moore. The precedent actually works in favor of 
settlement. Because to be able to settle what is the debt of 
honor that is something that is far more important than any 
commercial debt, and they have to know that, for terms that are 
basically the settlement terms for commercial debts, would give 
them enormous leverage in relation to removing the rest of the 
sovereign debts that they have. I believe that there are some 
anonymous advisors for Iraq. I don't know who they are, I don't 
know where it is coming from, and I don't know the reason, 
Congressman. I think they are receiving terribly bad advice in 
their own interest and in the interest of the war effort.
    Mr. King. And I thank you. So another component of this, 
and I would think that probably everybody on the panel knows 
this, but I will stick with you Ambassador, and then is there a 
precedent for American POWs who were tortured receiving 
compensation from the Nation? I am thinking particularly, of 
course, John McCain who might be an expert on this and probably 
has an opinion.
    Mr. Moore. There is precedent, Congressman, but 
unfortunately it has been for what I say are kind of the 
equivalent of a used car. And I think that is absolutely the 
wrong precedent. And if that is what the United States does and 
how it responds every country in the world is simply going to 
continue to torture Americans in war after war as they have 
been doing.
    Mr. King. So how might I understand whether there have been 
Americans compensated who were tortured in previous wars? Has 
that ever happened?
    Mr. Moore. Yes, some of them have been. Small amounts in 
World War II. I do not believe anyone from Vietnam was. By the 
way, I might add that one of the reasons this case was brought 
to get serious about deterring torture of POWs and one of the 
most effective ways to do it was to implement that provision in 
the POW Convention. I brought this case with a former legal 
advisor of the Department of State. We gave a heads up to the 
Government of the United States before we filed this case. The 
principal witness for the POWs was the top Army expert on 
protection of POWs and understanding of the laws of war who 
testified for them in the court. We courier'd copies of the 
complaint the day it was filed to the Vice President of the 
United States and the Deputy Secretary of Defense. This case 
was fully known by the Administration at the time we filed with 
them and they supported it.
    Mr. King. Let me ask this question. This is the one that 
actually troubles me. And that is when I am looking at a Braley 
amendment, it is actually number 65, and the language here is, 
or an unqualified and unconditional guarantee made by a United 
States depository institution to pay within 30 days, and then 
it lists the claims individually. I expect you are familiar 
with this language. Is there any precedent for a nation who was 
at war to take on a liability in place of a nation who was 
committing the torture?
    I mean, this language binds the United States taxpayer, and 
I think that is an entirely different question. Could you tell 
me if there is a precedent in that regard?
    Mr. Moore. Congressman, with due respect, I know the intent 
of the Braley-Sestak bill is not to, in any way, shape or form, 
have any liability or obligation for the United States 
taxpayer. So I believe that option in the bill is actually a 
provision that lets Iraq either pay immediately from its funds 
or Iraq, not the United States, to get a bank obligation at 
that point. And if that is an issue we certainly have no issue 
or problem at all in changing that.
    We seek and have always sought to hold Iraq accountable. We 
want the torturers to be held accountable, and we have to start 
somewhere. Frankly, if we could have started with our Vietnam 
POWs we probably would have done so.
    Mr. King. Well, I appreciate your position, Ambassador, and 
I share that position that I think it would be an unfortunate 
precedent to hold the U.S. taxpayers accountable for a 
liability that is likely created by a foreign government, enemy 
government, a terrorist nation. And that is an important point. 
And I can't support it if it is going to bind American 
taxpayers and what is, according to the Braley amendment says, 
an unqualified and unconditional guarantee made by a United 
States depository institution, unless, of course, that refers 
to a bond that might be posted with U.S. currency, and that is 
a possibility. I see Mr. Wolf leaning forward.
    Mr. Wolf. I think the intention there is at the direction 
of the Iraqi Government, the bank would release funds to pay 
the judgments. It is not a mandate that a bank holding U.S. 
taxpayer funds would pay them money.
    Mr. King. Under that description and understanding, I 
appreciate that. And then could you then, just a final 
question, Mr. Chair, if you will indulge me here under the 
protocol we have been using, the precedence, could you list, 
again, Ambassador, could you list some of the precedents 
historically that have, and I am thinking of war reparations, 
that have been levied against perhaps Germany post World War I, 
and then just going from memory, when a liability that was 
incurred by, let me say an evil empire, a terrorist nation, 
that was transferred then to the peaceful and good people of 
the legitimate government that was the successor and the result 
of successful liberation of Iraqi people, are there precedents 
historically aside from that one I just mentioned?
    Mr. Moore. Congressman, I can give you some examples, but 
indeed, I will talk about one in a second. But let me just say 
that that is not what we are about, that is not, to my 
knowledge, what this bill is about. I couldn't agree more with 
you. What we are about here is holding Iraq accountable. We 
want Iraq, the torturing state, to be held accountable. And if 
there is any question about the language at all that needs to 
be, as I have understood it all along, to be something that is 
only either Iraq either pays within the 90 days or Iraq has a 
bank pledged to pay, Iraq does, but not the United States.
    Mr. King. I think, Ambassador, my point wasn't clearly 
stated. But when you have a nation that was a terrorist nation 
that committed acts of atrocity against the individuals sitting 
here on this panel included, then that nation is liberated as 
they were with the help of individuals on this panel and 
ultimately the successors in that government now are 
representing the people of Iraq who were not culpable in the 
actions that were ordered by Saddam Hussein. And so the 
transfer then of the liability that goes from the evil empire 
over to the peaceful moderate Islamic nation that I hope and 
believe today is an ally of ours, shifts a liability on to 
them. What are the historical precedents for something like 
that?
    Mr. Moore. Thanks for clarifying it. I misinterpreted your 
statement, Congressman, and I don't know any examples of that. 
But let me tell you why it is right in this case. It is right 
in this particular case, one, because the United States 
Government has always held, and it is standard international 
law, that debts go with states not with governments. And if we 
change that rule, it would basically harm financial markets 
enormously. The second reason that it is right in this 
particular case is this is a unique setting in which there is 
an obligation that you can never absolve the torturing state of 
liability. That treaty obligation from Article 131 of the POW 
Convention would trump anything else. And the third, if you 
simply looked at this in fairness terms, Mr. Chairman, and you 
said you know the people of Iraq had nothing to do with this, 
we now have a very fine new government in Iraq, then what you 
are dealing with is the innocent people of Iraq versus the 
innocent American POWs who were innocent and injured. That is a 
standard setting in tort law, frankly, in which you go with the 
innocent and injured.
    Mr. King. Let me say, Ambassador, I do not disagree with 
your response at all, and I appreciate it. It was succinct, and 
I believe it was correct and I will follow up with a written 
question. And I yield back and thank the Chairman.
    Mr. Wolf. I just want to give you a couple of examples. 
Because as I understand it, after World War II, American POWs, 
some of our POWs tortured by Japan were paid out of blocked 
Japanese assets. Obviously, the Nazi government in Germany paid 
a lot of foreign nationals for years to come after the 
Holocaust, and there are, in fact, a series of other examples. 
I think that the problem that we have here, and I do totally 
agree with Professor Moore's statement, as you do as well, I 
understand, that the successor government is liable or 
responsible for the acts of the prior government.
    But the problem that we really have here is that with our 
current institutions, our State Department making these 
decisions on an ad hoc basis, concerned as they are with the 
foreign policy exigencies of the moment as they perceive them, 
the justice that is delivered is hardly uniform. And the 
problem here is that the decision of our government is just 
simply to ignore these claims for 18 years.
    Mr. King. I would submit also it is very difficult to sort 
out the reality of the history post World War II. There were 
orders that the court issued that were not followed. The 
American public believes one thing, reality is another. So it 
is hard to track that. But I think your point is well made and 
well taken. I appreciate all the witnesses' testimony. I thank 
Mr. Chairman and I yield back.
    Mr. Cohen. Thank you, Mr. King. Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman. I want to follow 
through on the idea of what precedents we are setting that the 
gentleman from Iowa started. But first Ambassador Moore let me 
get just background. These judgments that you obtained were 
against the Republic of Iraq?
    Mr. Moore. Yes, Congressman Scott, they were against the 
State of Iraq, they were against the Iraqi intelligence service 
and they were against Saddam Hussein initially. They were also 
joint and several. So actually the survivor of all that, of 
course, today is the State of Iraq, so they are all against the 
State of Iraq.
    Mr. Scott. The money that is being held is money owned by 
the Republic of Iraq?
    Mr. Moore. Yes, sir.
    Mr. Scott. And just following through on some of the 
comments made. We are over in Iraq presumably right now trying 
to help Iraq, and they are refusing to settle for what is a, as 
you have indicated, fairly modest portion of what is being held 
in Iraq--I mean, held here in the United States. Just what 
rationale are they giving for failing to settle?
    Mr. Moore. Sadly, Congressman, they are giving none. They 
have not talked to us and we have not heard any discussion. The 
only official statement we have heard from our own government, 
and we do appreciate that statement, was one read at a White 
House presidential press conference in which the press 
secretary said on behalf of the President of the United States, 
``there is no amount of money that can adequately compensate 
these brave Americans for the terrible torture that they went 
through.''
    Mr. Scott. In terms of precedents, we have had examples of 
prior lawsuits, but it seemed to me that we are talking about 
those that are lost in a war. Are these kinds of judgments 
recognized internationally?
    Mr. Moore. Congressman, yes we believe so. That this is a 
setting in which it is virtually impossible to find a clearer 
provision of international law than we have in this case. That 
is you don't torture POWs. By the way, this is a very clear 
question of POWs, very, very narrowly limited, torture of POWs. 
Every single nation in the world is a member of that 
convention, and therefore every nation in the world follows 
that obligation. And they not only have the obligation, but an 
obligation in Article 131 never to, ``absolve'' a torturing 
state of, ``any liability'' for the torture of POWs.
    Mr. Scott. Well, if you have a precedence it could work 
both ways. In this case, the judgments were obtained in the 
United States?
    Mr. Moore. Yes, sir.
    Mr. Scott. If another country were to find say the United 
States had tortured someone, would the same principle apply?
    Mr. Moore. Congressman, it applies only in a setting, of 
course, in our case, as a precedent when you are actually 
dealing with a prisoner of war, recognized prisoner of war 
under the Convention. I am aware that there is a detainee issue 
that we have had and discussed in the United States. I do not 
believe that that is a comparable one to the setting we have 
because here it is a matter of clearly state-directed torture 
of clear prisoners of war. And in that case any such setting, 
if we did that, yes, there would be liability and there should 
be.
    Mr. Scott. Well, and that would be a determination of fact 
in the appropriate tribunal?
    Mr. Moore. That is correct.
    Mr. Scott. And if in another country they so found, what 
would our reaction be to their lawsuit?
    Mr. Moore. Well, I think the question here again is one of 
a particular--finding of a particular court and what the court 
is and how it worked. If what we are talking about is a sham 
trial in some country that is a terrorist country, I think we 
would properly say this not the rule of law. If what we are 
talking about is a serious review of the issues--for example, 
there has been another setting in which the government of the 
United Kingdom in relation to a finding that certain of its 
individuals had gotten involved in certain of these things, 
said it volunteered, that it owed compensation in that setting.
    And I might add that when the Secretary of Defense of the 
United States testified before the Congress in relation to the 
Abu Ghraib setting, he said the United States owed appropriate 
compensation to those. So what we find is it is rather strange 
to have the----
    Mr. Scott. But in that case, if they were to actually have 
a lawsuit in Iraq and come up with a judgment amount, would we 
recognize it?
    Mr. Moore. Congressman, the United States, to my knowledge, 
has not had a setting in which we are engaged in command 
directed torture against prisoners of war.
    Mr. Scott. Well, that is a finding, that would be a matter 
of finding of fact.
    Mr. Moore. Yes, but the findings of fact are essential and 
critical in terms of the rule of law as to what it is.
    Mr. Scott. And the finding of fact would be a determination 
of the tribunal where it is?
    Mr. Moore. Yes, but it would have to be a fair setting in a 
fair tribunal in terms of what the setting is.
    Mr. Scott. And if both sides have the opportunity to 
present evidence and the tribunal decided against us, would we 
recognize or not recognize it, depending on whether we agreed 
with their determination?
    Mr. Moore. I think that would be an issue for, as it always 
is, for looking at individual settings in individual cases, 
Congressman. But let me just say that I realize we can talk a 
variety of hypotheticals. But this is a very real case we have 
here in which we have an absolutely clear, absolutely fair 
determination with a Federal Judge, former Assistant Attorney 
General for Human Rights in the United States Department of 
Justice finding absolutely clearly with a fair hearing on the 
law and the facts in a court, I think, all of us would agree is 
completely fair, and perhaps the clearest of all obligations 
that we see that are agreed among nations around the world of a 
setting of torture, command directed torture of clear prisoners 
of war.
    Mr. Scott. Do you think we would have similar exposure in 
Guantanamo Bay or in Abu Ghraib?
    Mr. Moore. Congressman, I don't think it is my place to 
speculate about those settings at this point. Let me just say 
that in this case we have a very clear setting, and at least, 
our obligation here is to fundamentally adhere to the rule of 
law in this particular case.
    Mr. Scott. Well, I agree with you. My question was what 
precedence might we be setting that could be used both ways?
    Mr. Wolf. Congressman, could I just speak to that first for 
a moment?
    Mr. Scott. My time is expired, so you have the last word.
    Mr. Wolf. Okay, thank you. These arguments allowing 
American victims of terrorism to hold foreign states 
accountable in American courts would lead to the American 
government being hailed into court abroad have been made by the 
State Department and various Administrations since the 1990's 
when these proposals were first made years ago. And Congress 
has passed a series of pieces of legislation having heard those 
arguments and rejected them. So that bridge in a way had 
already been crossed. And the issue that we are dealing here 
today with is whether we are going to make a single exception 
for one terrorist state that terrorized American victims and we 
are going to treat that state differently than we are treating 
other state sponsors of terrorism, and there is simply no 
justification for that. The policy decision has been made by 
Congress. They would have to--Congress would have to undo the 
entire decision before there could possibly be justification 
for exempting one terrorist state.
    Mr. Scott. Well, where are the other examples where 
terrorist states have been sued by people in another country 
using their courts, getting judgments in the local courts and 
those judgments have been actually enforced?
    Mr. Wolf. Well, I mean----
    Mr. Scott. You say this is the exception. Where are the 
others?
    Mr. Wolf. What I am saying Congressman is that, for 
instance, there have been judgments against the Iranian 
government in our courts, judgments against the Libyan 
government, judgments against the Sudanese government, all 
terrorist states, one by the way a former terrorist state 
Libya. And the question here today is are we going to exempt.
    Mr. Scott. And those judgments were enforced?
    Mr. Wolf. They were enforced, absolutely. Pan Am 103. 
Judgments on behalf of Terry Anderson and various others. And 
just to be complete on the answer, it is true that there have 
been some cases brought in the Islamic Republic of Iran against 
the United States. And I think that basically our government 
does with those judgments, or treats those judgments with the 
dignity that they deserve. We just ignore them because we don't 
have any real faith in the Iranian judicial system. But our 
foreign policy I don't believe has been compromised by those 
judgments.
    Mr. Moore. May I add to that Congressman, if you would. 
This is a setting also in terms of the question as to the rule 
of law. We have a number of different ways to engage with 
countries around the world. We have to protect ourselves with 
military force. We have to--we have economic sanctions to some 
extent. One of the most powerful tools we have that we must use 
that is enormously effective in the fight against terror, we 
are the 2,000 pound gorilla when it comes to the rule of law 
and when it comes to financial institutions around the world, 
is the rule of law.
    It is in our interest to have fair trials, terror states 
will not. It is in our interest working with our allies to 
promote the rule of law in this area. By the way we are talking 
here also about national law. All of these actions were brought 
under laws that were authorized by the Congress of the United 
States in the 1996 anti terror amendments. None of the actions 
that we brought, while they are fully consistent with 
international law, none of these actions were brought under 
international law. They were filed under national law as 
authorized by the Congress of the United States. And this is 
another one of the issues for us in the rule of law.
    Because we think it is very important when we file these 
actions that Congress has made available for a series of 
wonderful Americans, it is very important that Congress stand 
by its word in relation to moving forward on these, not just 
simply the word also of the unanimous resolution saying we are 
going to hold accountable those who torture American POWs. So 
this is really American law that we are talking about in 
American court. And it is most broadly, you are absolutely 
right in asking this question of how does it work in terms of 
what comes around goes around, et cetera. The answer is that is 
in our interest, unequivocally in our interest.
    And I would like to join my colleague, Mr. Wolf, in saying 
one of the sad things here is the Department of State has been 
caught in old thinking for too many years in relation to that 
broad issue. This is not just important for us in this case, 
this is important, for example, in actions against Iran in 
relation to the war on terror. It is one of the most effective 
tools that we have.
    Mr. Cohen. Thank you. Let me ask a question of Mr. Wolf and 
Ambassador. Are there any other groups of victims who you know 
of with pending lawsuits against the Iraqi Government.
    Mr. Wolf. There are two cases, or actually one pending case 
of which I am aware. It involves a continuation of what was 
known as the Dalaberti case involving two American citizens or 
three American citizens who had strayed too close to the Iraqi 
border or strayed close to the Iraqi border and they were 
taken, imprisoned, held in horrible conditions and really held 
hostage. And these are suits by the children. Those suits 
were--the initial suits were successfully resolved. The 
continuation are suits by the children. And that is the only 
pending suit right now that I am aware of.
    Mr. Cohen. Are there analogous cases with the Libyan 
government where American service men might have been injured.
    Mr. Wolf. I am glad you asked the question concerning the 
Libyan government. There are cases concerning the Libyan 
government. I don't know whether any of those cases involve 
American service men, but therecertainly are cases against the 
Libyan government involving American citizens. And it is 
interesting, especially in light of Congressman King's comment 
about former governments and whether, former terrorist 
governments and whether the United States has ever held those 
accountable. Apparently, the United States Government today is 
involved in state-to-state negotiations with Libya in an effort 
to try and obtain compensation for some of the American victims 
that were killed or families that were killed and otherwise 
abused, tortured, by the Libyan government. So we are doing 
that with respect to Libya, but with respect to Iraq it seems 
like our government wants to let them off the hook.
    Mr. Cohen. Let me ask you one last question, and I will 
recognize Mr. Gohmert. As I understand it, we have got a goodly 
number of amount of assets of Iraq on hold here in America, 
right.
    Mr. Wolf. That is correct. More than $50 billion.
    Mr. Cohen. And these were assets of the previous 
government, the Saddam Hussein government, right?
    Mr. Wolf. I believe that some of them may be residue of the 
Saddam Hussein government, but I am not 100 percent sure of 
that fact. I think some of the money has to do with proceeds 
from oil sales that have been made since then, but yes, I 
believe some of that money is from the former government. It 
was transferred to accounts in New York.
    Mr. Cohen. And to some extent, the issue is whether or not 
those assets that were of the previous terrorist government 
should be used to satisfy the claims against the government or 
held for the successor government?
    Mr. Wolf. In a sense, although we would argue, and I 
believe correctly, that the successor government is liable.
    Mr. Cohen. Would you argue that the assets that are 
existent that were there because of the previous government, 
the terrorist government, really aren't the terrorist 
government's assets in that they committed tortious acts, 
terror, murder, whatever, and that because of those tortious 
acts, that money is really the money of the plaintiffs and 
never should have been considered the money of the previous 
government, since they had a liability that they incurred and 
that that liability that they incurred even prior to judgment 
was a liability toward these plaintiffs, that the monies really 
were not the monies of the previous government and should go to 
the successor government, but should go to the people they 
harmed in their tortious conduct, and accordingly would be a 
windfall to the new government to get the assets and not to 
have the liabilities also accrued to them? Would that be an 
accurate statement?
    Mr. Wolf. I like that argument, and I think it would be 
correct.
    Mr. Cohen. I thought you might. The gentleman from Texas is 
recognized.
    Mr. Gohmert. Thank you. It is interesting to hear 
discussion about the rule of law when we can't even follow 
proper procedure here in our Committee. We are in the second 
round, and now I am getting my first round. So I appreciate 
finally being recognized. I have a number of questions. And 
really I agree with you, Ambassador, that it is important to 
hold people accountable. It is also important to hold the right 
people accountable. I agree that using a tort system can be an 
effective means of holding people accountable. I don't agree 
that it would be more effective than the criminal law 
enforcement and the punishment of war crimes where you actually 
get into individual culpability. I think that is the greatest 
tool we have, is to hold individuals accountable. Because if we 
go in and we take money from people who had no complicity in a 
war crime, and, in fact, they were victims as well being in a 
country and being made to suffer under ruthless leadership and 
then we take their money somehow, they don't get the idea of 
how this fair system we are trying to introduce them to really 
works.
    But I was intrigued, a statement was made basically, as I 
understood it, that we had always recognized the subsequent 
country as being responsible for debts. And I was under the 
impression that Washington didn't buy that, otherwise the 
United States would have been broke. And I was not aware that 
Germany actually paid. I was under the impression that that is 
why we came so much out-of-pocket with the Marshall Plan to 
rebuild Europe. What exactly did Germany pay toward these types 
of claims?
    Mr. Wolf. They clearly paid for years, and are still 
paying, the compensation on behalf of those who were victims of 
the Nazi Holocaust.
    Mr. Gohmert. And who is paying that?
    Mr. Wolf. The German government.
    Mr. Gohmert. The German government is paying that to whom?
    Mr. Wolf. To the direct victims of the Holocaust. And that 
happened for years and years after.
    Mr. Gohmert. How do you get to become a part of that class?
    Mr. Wolf. There wasn't a lawsuit. It was just a system of 
compensation that was, I suspect, enacted by the German 
legislature.
    Mr. Gohmert. Do you know how you would get to be a part of 
those who were appropriated?
    Mr. Wolf. Well, certainly if you were a former internee at 
a Nazi concentration camp.
    Mr. Gohmert. Well, that would qualify you, but it wouldn't 
necessarily get you compensated.
    Mr. Wolf. I suspect they had some sort of administrative 
claim process. I really can't answer that.
    Mr. Gohmert. Well, see, you all are testifying here under 
basically penalties of perjury. And one of the things that 
troubles me as a former judge is people come in and make these 
statements so broadly which really is supposed to be truth 
basically with culpability for false statements. Anyway, I get 
troubled with broad----
    Mr. Wolf. I know that is a fact. I am not speculating. I 
just don't know the system, that is why I am giving you the 
answer I don't know. I don't think I am perjuring myself.
    Mr. Moore. Congressman, could I respond to part of that 
question that you have asked?
    Mr. Gohmert. Yes. Because you are using ``always,'' and I 
would have thought somebody in your position would, especially 
an attorney, would advise clients don't ever say ``always.''
    Mr. Moore. I think, Congressman, we are talking about a 
number of different things. One issue is sort of reparations 
and whether there are war reparations, et cetera.
    Mr. Gohmert. Well, I called you on the fact that you said 
that we have always recognized the subsequent country's 
obligation to pay the prior country's debts, and I am not sure 
that is the case.
    Mr. Moore. I stand by the point that as a matter of 
international law, it is, to my knowledge, consistently and 
always has been the view of the United States Government that a 
change of government does not change liability. And let me just 
note on that point that all of the commercial claims that are 
being paid, the $20 billion to $30 billion, or whatever this 
figure is, we don't know the precise figure, that is being paid 
to these commercial foreign corporations instead of anything to 
the POWs are prewar commercial debts of Iraq.
    Mr. Gohmert. I agree with you, the victims should be 
compensated even before corporations are. I would agree with 
that. I have handled cases as a plaintiff's attorney, as a 
defense attorney and had them come before me. What is the going 
rate for a contingency on a case of this type?
    Mr. Moore. I think as a judge, you would have a pretty good 
idea of contingency fees.
    Mr. Gohmert. We had them go from 10 to 45 percent.
    Mr. Moore. They tend to raise from I suppose 20 to 45 or 
whatever. We are under a privacy agreement in relation to the 
clients in this case. And let me also say, sir, that there is 
nothing that I have ever done in my entire career as an 
attorney that has made me feel more honored in relation to what 
we are doing.
    Mr. Gohmert. I am not casting aspersions. I am one of those 
conservative Republicans that believe that contingency fees 
have allowed for people to have legal assistance that couldn't 
otherwise get it.
    Mr. Moore. Whatever the form of fees I think they have been 
very helpful in this case for the clients though.
    Mr. Gohmert. And one final matter with regard to Abu 
Ghraib. If those individuals who were imprisoned there who were 
unfairly abused, being required to disrobe, some of them had 
undergarments put on their heads, do you know of any system 
that has ever been set up to set off what kind of damages would 
be available to someone in that circumstance as compared to the 
persons they may have blown their inner guts out, how those 
kind of claims might offset each other if they do?
    Mr. Moore. Congressman I have not studied the legal 
questions that you have raised so I don't know the answer. But 
I would like to just add a point in relation to, I think, the 
issue you are asking that is a very significant one of what are 
some of the better remedies here to try to deal with this 
problem, the criminal side, for example, or civil liability.
    Mr. Gohmert. I think you can have both. I am not saying 
either one should be mutually exclusive.
    Mr. Moore. I appreciate that very much. And one of the 
problems here is we have never pursued the criminal liability. 
Typically, you don't have the people involved. Let me just say 
that----
    Mr. Gohmert. I think Saddam Hussein has paid a pretty 
significant price through the criminal system.
    Mr. Moore. Sadly Congressman, to my knowledge----
    Mr. Gohmert. Oh, is he still alive?
    Mr. Moore. Saddam Hussein was never charged with any of the 
actions concerning the torture of American POWs. So he was 
charged with a variety of things. And, of course, we know that 
Saddam Hussein died.
    Mr. Gohmert. That is my understanding.
    Mr. Moore. If you are looking at the question of the 
criminal system being applied, to my knowledge it was not 
applied in this case. And, by the way, I think it is rather 
interesting as tyo why among all the various charges against 
Saddam Hussein there was no charge for the torture of American 
POWs. And one of the reasons that you have, the double 
provisions in the POW Convention for accountability for 
torture, is because they know it is very rare to actually apply 
any of the criminal justice provisions and to get the 
individuals and apply it. So the state liability is a 
critically important issue.
    Mr. Gohmert. Well, I would submit to you that when you have 
the death penalty that is being applied because of one charge, 
it is not really necessary to try thousands of other charges. 
That is what I have observed. My time has expired. Thank you.
    Mr. Cohen. Are there further questions of the panel? Let me 
ask one. Does anybody know if there is a CBO score on the 
Braley-Sestak proposal.
    Mr. Moore. Yes, sir, I know the answer to that.
    Mr. Cohen. You are recognized.
    Mr. Moore. I am delighted to say I know the answer to that, 
Mr. Chairman. This issue has been put to the CBO and to the 
Budget Committee. And I am informed that they have ruled that 
there are no United States monies at stake whatsoever in the 
Braley-Sestak proposal.
    Mr. Cohen. Thank you, sir. Mr. Charchalis, let me ask you 
one question. Were you or any of the other people in Kuwait to 
the best of your knowledge given any notice by the State 
Department of the impending jeopardy in which you were placed 
when the Iraqis invaded Kuwait.
    Mr. Charchalis. No, sir, and that is an interesting 
question. We had Kuwaiti television and, to some extent, we got 
Iraqi news, and we knew that there were troops massing on the 
border. A figure that was given about 125. And I called the 
embassy. And you know, I was concerned about it. And they said 
there isn't any problem, don't worry about it. I went to the 
Director General of the Institute and told him I would like to 
take my wife to Bahrain. And he said no, the Crown Prince is 
meeting in Taif and there is no problem. And we found out that 
there was a problem. That the Iraqis invaded on August 2nd.
    We tried to contact the embassy and the phone, nobody 
answered the phone. It was busy. We finally got through late 
and they said don't bother us we are too busy to talk to you. 
So there was really nothing that we got from the embassy and/or 
the Kuwaiti government that gave us any kind of indication that 
we were in jeopardy. I will tell you this, that we found out 
later on, that the road from Kuwait to Saudi Arabia was open 
for 3 days, because we were told it was closed. We could have 
got in, my wife could have got in our car and driven there and 
been out of harms way. We would have had to leave everything, 
but that is a lot better than jeopardizing your life.
    Mr. Cohen. Thank you, sir. Captain Slade, do you know from 
your own personal recollection or from any hearsay any effect 
that the failure of the United States to honor and to help with 
these claims, any effect it has had on the morale of soldiers, 
our military?
    Captain Slade. Mr. Chairman, I don't have data on that, 
although anecdotally I have had obviously many, many peers over 
the years who have looked to us and wondered why this hasn't 
moved and where it has gone and why it appears to have 
dissolved at the behest of government.
    So there is a lot of confusion, and those are people who 
have returned to theater. In fact, I returned to theater in 
1998 for another deployment in Iraq, as have many of the former 
POWs from the first Gulf War.
    Mr. Cohen. Thank you. If there are no other questions, I 
would like to thank each of the panelists for their service to 
this Committee, to their service for our country and to the 
scholarly works and to the bar which they have exhibited here 
and for your testimony.
    Without objection, Members will have 5 legislative days to 
submit any additional written questions for you, which we will 
forward and ask that you answer as promptly as you can. They 
will be made a part of the record. And without objection, the 
record will remain open for 5 legislative days for the 
submission of any other additional materials.
    This hearing has helped illuminate the many twists and 
turns in the POWs' and human shields' quest for justice. The 
Chairman and I look forward to working with our colleagues in 
the Committee and in the Congress to find a way to get a fair 
measure of justice to these victims for all that they have 
endured. I believe that we should be able to do so in a way 
that does not unduly burden the present Government of Iraq. The 
Committee will consider the next appropriate steps accordingly.
    And with that, the hearing is adjourned.
    [Whereupon, at 4:04 p.m., the Committee was adjourned.]

                            A P P E N D I X

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               Material Submitted for the Hearing Record

       prepared statement of the honorable sheila jackson lee, a 
    representative in congress from the state of texas, and member, 
                       committee on the judiciary




                                 
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