[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
JUSTICE AGAINST SPONSORS OF TERRORISM ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
AND CIVIL JUSTICE
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
ON
H.R. 2040
__________
JULY 14, 2016
__________
Serial No. 114-87
__________
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR S. SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on the Constitution and Civil Justice
TRENT FRANKS, Arizona, Chairman
RON DeSANTIS, Florida, Vice-Chairman
STEVE KING, Iowa STEVE COHEN, Tennessee
LOUIE GOHMERT, Texas JERROLD NADLER, New York
JIM JORDAN, Ohio TED DEUTCH, Florida
Paul B. Taylor, Chief Counsel
James J. Park, Minority Counsel
C O N T E N T S
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JULY 14, 2016
Page
THE BILL
H.R. 2040, the ``Justice Against Sponsors of Terrorism Act''..... 3
OPENING STATEMENTS
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Chairman, Subcommittee on the
Constitution and Civil Justice................................. 1
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Ranking Member, Subcommittee on the
Constitution and Civil Justice................................. 12
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 13
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 14
WITNESSES
Anne W. Patterson, Assistant Secretary of State for Near Eastern
Affairs, U.S. Department of State
Oral Testimony................................................. 16
Prepared Statement............................................. 19
The Honorable Brian Egan, Legal Adviser, U.S. Department of State
Oral Testimony................................................. 23
Prepared Statement............................................. 25
The Honorable Michael B. Mukasey, Of Counsel, Debevoise &
Plimpton LLP
Oral Testimony................................................. 34
Prepared Statement............................................. 37
Richard D. Klingler, Partner, Sidley Austin LLP
Oral Testimony................................................. 43
Prepared Statement............................................. 45
Paul B. Stephan, Professor of Law, University of Virginia Law
School
Oral Testimony................................................. 60
Prepared Statement............................................. 62
Jimmy Gurule, Professor of Law, Notre Dame Law School
Oral Testimony................................................. 72
Prepared Statement............................................. 75
JUSTICE AGAINST SPONSORS OF
TERRORISM ACT
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THURSDAY, JULY 14, 2016
House of Representatives
Subcommittee on the Constitution
and Civil Justice
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 10 a.m., in room
2237, Rayburn House Office Building, the Honorable Trent
Franks, (Chairman of the Subcommittee) presiding.
Present: Representatives Franks, DeSantis, Goodlatte,
Jordan, Cohen, Conyers, Nadler, and Deutch.
Staff Present: (Majority) Zachary Somers, Parliamentarian &
Chief Counsel, Committee on the Judiciary; Tricia White, Clerk;
(Minority) James Park, Chief Counsel; Susan Jensen, Senior
Counsel; Matthew Morgan, Professional Staff Member; and
Veronica Eligan, Professional Staff Member.
Mr. Franks. The Subcommittee on the Constitution and Civil
Justice will come to order, and without objection, the Chair is
authorized to declare a recess of the Committee at any time.
Welcome to all of you here. The subject of today's hearing is
the Senate-passed version of the Justice Against Sponsors of
Terrorism Act, or JASTA for short. Earlier this year, this
legislation was unanimously reported out of the Senate
Judiciary Committee, and in May, passed the Senate by a voice
vote.
However, despite the broad bipartisan support for this
legislation in the Senate, the State Department has raised
concerns with JASTA, and we have called this hearing to examine
those concerns. JASTA essentially makes two changes to Federal
law.
First, it amends the Foreign Service Immunities Act to add
the existing exceptions to the foreign sovereign immunity and
exception for terrorist attacks that cause physical injury or
death in the United States. Under current law, there appears to
be some confusion or disagreement in the courts as the whether
the Foreign Sovereign Immunity Acts tort exception waives the
immunity of foreign governments that provide material support
to foreign terrorist organizations that cause damage in the
United States.
JASTA makes clear that a foreign government that aids and
abets a foreign terrorist organization in carrying out a
terrorist attack on U.S. soil will not be immune from the
jurisdiction of our court.
Second, JASTA amends the Antiterrorism Act to clarify that
those who aid, abet, or conspire with a foreign terrorist
organization are subject to civil liability. There is currently
a split in the Federal Courts of Appeal on the question of
whether the Antiterrorism Act permits lawsuits based on aiding
and abetting terrorists.
JASTA provides that if a person aids and abets a State
Department-designated foreign terrorist organization by
knowingly providing that organization with substantial
assistance, that person will be subjected to civil liability.
By making these two changes to existing law, JASTA seeks to
ensure that those, including foreign governments, who sponsor
terrorist attacks on U.S. soil are held fully accountable for
their actions. In addition, JASTA attempts to enhance the
effectiveness of U.S. efforts at combatting terrorism and
combatting terrorist financing by making those who provide
financial support to foreign terrorist organizations liable for
their conduct.
JASTA would appear to be consistent with existing U.S.
principles of foreign sovereign immunity, which permits
lawsuits against foreign governments in U.S. court cases in the
following instances--in which a foreign government has waived
its immunity, that are based on a commercial activity carried
out in the United States or which causes a direct effect in the
United States, or in which the rights and property taken in
violation of international laws are at issue, or in which money
damages are sought against a foreign state for personal injury
or death, or damage or loss of property occurring in the United
States, and finally that are brought against designated state
sponsors of terrorism.
Despite the numerous, longstanding exceptions to foreign
sovereign immunity already provided under U.S. law, the State
Department and others have expressed concerns with JASTA and
its potential ramifications on U.S. foreign policy. Out of
respect for those concerns, we have invited the State
Department here to testify before the Committee, and we have
also invited a second panel of witnesses to appear and provide
additional perspective on the issues the State Department has
raised with JASTA.
I look forward to the witnesses' testimony on this
important subject, and I would now recognize the Ranking Member
of the Subcommittee, Mr. Cohen, for his opening statement.
[The bill, S. 2040, follows:]
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Mr. Cohen. Thank you, Mr. Chair. I welcome today's hearing
on Senate Bill 2040, the ``Justice Against Sponsors of
Terrorism Act.'' The specific text was passed by the Senate,
unanimous consent, May 17, 2016, but it did not receive a
hearing or other formal vetting, so it is good that in the
House we have a hearing, which is somewhat unusual for us.
S. 2040 would amend the Foreign Sovereign Immunities Act of
1976 to allow suits against foreign states for physical entry
resulting from the act of international terrorism in the United
States, and a tortious act on the part of the foreign state or
its official employee or agent acting within the scope of his
or her employment, wherever that act occurs.
The legislation also amends the Antiterrorism Act to
explicitly provide for aiding and abetting liability. Finally,
the bill contains a state provision allowing court to stay a
case against a foreign state defender for up to 180 days; the
possibility of an extension to go to a full year to allow the
State Department to negotiate in good faith with the foreign
state defendant to resolve the claims issued.
We have two panels of distinguished witnesses before us
today, two folks from, I believe, both the diplomatic corps and
the Mr. Mukasey, an outstanding former United States attorney,
and then a buddy of Bob Brady's, which is almost equally in
dignity to being a great former U.S. attorney.
And I hope that we can use this opportunity to learn about
the bill to understand the detail of the arguments in its favor
and the other potential conflicts. This is a difficult bill.
You want to get justice for the victims of 9/11, but you also
want to protect our national security.
The legislation arises from the litigation against various
defendants concerning 9/11. Legislation is drafted in general
terms. We consider it in that light as both the supporters and
opponents seem to agree.
I am for access to justice and always have been, and it is
my inclination to support such measures, and it is also my
inclination to support, in any way I can, the victims of the
dastardly deeds of 9/11. And it is particularly strong in that
case, because that is something that we all experienced and
should not get out of our psyches and our minds.
The bill supporters argue that it is needed to update laws
to address cases where foreign states facilitate terrorist
strikes in the United States through financing and other kinds
of material support for foreign terrorist organizations like
Al-Qaeda. They also assert the bill would deter such conduct in
the future, thereby enhancing counterterrorism efforts.
They further contend that the Senate-passed language is
narrow in scope, and the concerns about any reciprocal effects
from enacting this legislation are exaggerated. The Obama
administration, however, continues to raise concerns, even in
the admitted form that we consider today, and I take that
seriously as well.
In addition to the reciprocity concern, the Administration
contends enactment of Senate Bill 2040 could undermine
counterterrorism efforts, raise serious foreign policy
concerns, and lead to a reduction of foreign investment in the
United States. Some opponents further argue that enacting this
bill could subject U.S. allies to liability in the U.S. courts,
including countries like Britain and Israel.
Both sides have come forth with seemingly strong arguments,
and while I appreciate the fact the Senate passed this language
by voice vote, I think it is worth our while to have a
discussion about the merits of S. 2040, and I thank the
Chairman for having that hearing. I thank our witnesses for
being here. I am looking forward to the testimony.
Mr. Franks. And I thank the gentleman, and I would now
yield to the Chairman of the Committee, Mr. Goodlatte, from
Virginia.
Mr. Goodlatte. Well, thank you, Mr. Chairman, and I want to
begin by thanking Ambassador Patterson and Mr. Egan for
appearing before the Committee today on behalf of the State
Department. I know that the department has some foreign policy-
related concerns with this legislation, and we wanted through
this hearing to give the department the opportunity to express
those concerns.
The Justice Against Sponsors of Terrorism Act has been
introduced over several successive congresses, and has twice
unanimously passed the Senate. Over the years that this
legislation has been considered, we have worked with its
sponsors and the Senate Judiciary Committee to make the bill's
language more precise in order to ensure that any unintended
consequences are kept to a minimum.
In particular, I have worked to make sure that JASTA's
extension of secondary liability under the Antiterrorism Act
closely tracks the common-law standard for aiding and abetting
liability and is limited to State Department-designated foreign
terrorist organizations.
Aiding and abetting liability should only attach under the
ATA to persons who have actual knowledge that they are directly
providing substantial assistance to a designated foreign
terrorist organization, in connection with the organization's
commission of an act of international terrorism. JASTA, as
revised in the Senate Judiciary Committee, ensures that aiding
and abetting liability is limited in this manner.
Beyond the Antiterrorism Act, JASTA amends the Foreign
Sovereign Immunities Act in order to waive the sovereign
immunity of any foreign government that sponsors an act of
international terrorism that both causes physical injury in the
United States, and occurs on U.S. soil.
JASTA makes this change because under current law, a
foreign Nation can provide financing and other substantial
assistance to a terrorist organization that attacks our country
and escape liability so long as all of the material support is
provided overseas.
For example, under current law, if a foreign state or any
official or employee of that foreign state sets off a bomb on
U.S. soil, injuring our citizens, the country would be liable
under the Foreign Sovereign Immunities Act's tort exception.
However, if we change the fact pattern slightly, so that rather
than directly setting of the bomb, the foreign state instead
gives a foreign terrorist organization the money it needs to
attack the United States, the foreign state will not be subject
to liability in U.S. courts.
This is a troubling loophole in our antiterrorism laws.
When Congress enacted the Foreign Sovereign Immunities Act in
1976, it put in place a broad set of exceptions to sovereign
immunity, including an exception for tort claims involving
injuries occurring in the United States.
However, the courts have not consistently interpreted those
exceptions in such a manner that they cover the sponsoring of a
terrorist attack on U.S. soil. JASTA attempts to address this
inconsistency with a concrete rule.
I am interested to hear, however, from the State Department
as to why JASTA's amendments to the Foreign Sovereign
Immunities Act present a threat to our relationships with
countries that are important partners in combatting terrorism.
Certainly, we do not want to make it more difficult for the
State Department, the Department of Defense, and other agencies
to combat global terrorism, but at the same time, we do not
want to have laws in place that make it impossible for U.S.
citizens who are victims of terrorist attacks on U.S. soil to
seek judicial redress against those who seek to harm us. I look
forward to our witnesses' testimony on this important subject,
and yield back the balance of my time.
Mr. Franks. And I thank the gentleman, and I would now
yield to the Ranking Member of the Committee, Mr. Conyers from
Michigan.
Mr. Conyers. Thank, Mr. Chairman. Members of the Committee,
without question, the victims of the September 11 terrorist
attack deserve our sympathy and our help, and this Committee
has worked to enact interlaw measures that attempt to provide
some relief to these victims. As we consider S. 2040, the
Justice Against Sponsors of Terrorism Act, we must keep in mind
that this legislation is written in general terms, and we
should consider its impact beyond one case, however compelling
that case may be.
Among other things, S. 2040 amends the Foreign Sovereign
Immunities Act to create a new exception to the Act's general
grant of foreign sovereign immunity. The exception would apply
to claims arising from physical injury as a result of an act of
international terrorism in the United States, as well as to a
tortious act of a foreign state or its official, employee, or
agent acting within his or her official capacity, regardless of
where the tortious act took place.
The House has not previously held a hearing on this
proposal, and neither chamber has held a hearing on this
particular version of the legislation, so I approach this
measure with an open mind. That being said, there are three
overarching points that should inform our discussion today.
To begin with, the purpose of sovereign immunity is to
ensure that disputes among Nations are ultimately resolved
through diplomatic efforts rather than litigation. Customary
international law provided absolute immunity for states in the
courts of other states.
Nevertheless, in the last century, many countries,
including the United States, came to realize that it was unfair
to provide immunity in cases where countries were engaged in
non-sovereign activities, such as ordinary commerce.
For this reason, countries began recognizing certain
limited exceptions to sovereign immunity. The Foreign Sovereign
Immunities Act codified the customary law of sovereign immunity
recognized by our country at the time of the Act's enactment in
1976, including certain exceptions to sovereign immunity.
The Act also removed the need for, and the ability of the
State Department, to make case-by-case determinations of
whether a foreign state defendant was entitled to sovereign
immunity and left such determination to courts as a matter of
statutory interpretation, which in theory depoliticized such
determinations.
In light of this history, we should consider what impact
changing the scope of exceptions to sovereign immunity may have
on United States interests. The Administration, some allied
Nations, and others have raised the concern that the enactment
of S. 2040 may lead to retaliation by other countries against
the United States, given the breadth of our interests and
expansive reach of our global activities.
For example, they contend a country like Afghanistan or
Pakistan, under a future hostile regime, may enact legislation
abrogating sovereign immunity to allow suits against the United
States, against United States officials, or even our military
personnel in response to drone strikes, or other activities in
their countries.
The bill's supporters, on the other hand, argue that the
already-existing exceptions to sovereign immunity, including
the current state-sponsored terrorism exception, and the prior
understanding of the tort exception, that this bill purports to
restore, have not resulted in any meaningful retaliation
against the United States.
So, finally, we should consider the impact this measure may
have on our Nation's counterterrorism efforts. The bill's
proponents argue that it will enhance such efforts by raising
the prospect of depriving terrorists of resources, and
deterring future terrorism financing.
On the other hand, others say that it will hamper
cooperation from other countries because they may become more
reluctant to share sensitive intelligence in light of the
greater risks that such information may be revealed in
litigation.
While this bill and the underlying litigation that spawned
it arose from an emotionally searing event, I hope that we can
be both respectful and clear-eyed as we consider the arguments
to be presented by our distinguished witnesses. And so
accordingly, I look forward to an engaging debate, and I thank
our witnesses for being with us to share their thoughts on
these important issues. I thank the Chair.
Mr. Franks. And I thank the gentleman, and without
objection, other Members' opening statements will be made a
part of the record.
So, let me now introduce our witnesses. We have two very
distinguished panels today. I will begin by the first panel.
Our first witness is Ambassador Anne Patterson, the
Assistant Secretary of State for Near East Affairs. Ambassador
Patterson has served as the U.S. ambassador to four countries,
and in 2008 was promoted to the rank of career ambassador, the
highest rank in foreign service. She has served as Assistant
Secretary of State for International Narcotics and Law
Enforcement Affairs, and has served as Deputy Permanent
Representative at the U.S. mission to the United Nations.
Our second witness is Brian Egan, the legal adviser to the
State Department. Prior to being appointed as legal adviser,
Mr. Egan served as legal adviser to the National Security
Council, Deputy Assistant to the President, and Deputy Counsel
to the President, and as Assistant General Counsel for
Enforcement Intelligence at the Department of the Treasury.
Each of the witnesses' written statements will be entered
into the record in its entirety, and I would ask that each
witness summarize his or her testimony in 5 minutes or less. To
help you stay within the time, there is a timing light in front
of you. The light will switch from green to yellow, indicating
that you have 1 minute to conclude your testimony. When the
light turns red, it indicates that the witness' 5 minutes have
expired.
So, before I recognize the witnesses, it is the tradition
of the Subcommittee that they be sworn. So, if you would please
stand and be sworn.
Do you solemnly swear that the testimony that you are about
to give will be the truth, the whole truth, and nothing but the
truth, so help you God? You may be seated.
Let the record reflect that the witnesses answered in the
affirmative, and I welcome both of you. And I now recognize our
first witness, Ambassador Patterson; and Ambassador, if you
might turn that microphone on before speaking.
TESTIMONY OF ANNE W. PATTERSON, ASSISTANT SECRETARY OF STATE
FOR NEAR EASTERN AFFAIRS, U.S. DEPARTMENT OF STATE
Ms. Patterson. Okay, thank you, Chairman Franks, Ranking
Member Cohen, Members of the Subcommittee. Thank you for
inviting us to appear before you today to discuss the Justice
Against Sponsors of Terrorism Act. I welcome the opportunity to
testify with my colleague, Brian Egan, the Department of
State's legal adviser.
I understand the motivation for this legislation, and all
of us in the Administration deeply sympathize with the victims
of terror and their families. I can personally attest that
unprecedented resources have been dedicated to our national
security to ensure that no other Americans will suffer the same
fate as the victims of the September 11th attacks.
From the successful efforts against Al-Qaeda leadership in
the Pakistan-Afghanistan border, to the vast improvement in our
intelligence about terrorist leaders, and to our successes in
rooting out sources of funding for terrorism, we have worked
every day to protect the homeland. We all know that the
families of the 9/11 victims have suffered grievously, and
nothing will ever be sufficient to alleviate their suffering.
However, the 9/11 attacks were, and have continued to be the
subject of intense and exhaustive investigation by U.S.
government agencies and commissions.
While these efforts will continue, I am here today to
explain why the Administration believes that JASTA is not the
right path forward. Most importantly, the passage of JASTA
could undermine our critical fight against terrorism, and
particularly against ISIL, by limiting our flexibility in
operating overseas, and thereby threaten our national security
interests.
JASTA represents a sea change in longstanding principles,
and would allow private litigations against foreign governments
in U.S. courts, based on allegations that such countries'
actions abroad made them responsible for terrorism-related
injuries on U.S. soil. This legislation would allow suits
against countries that have neither been designated by the
executive branch as state sponsors of terrorism, nor taken
direct action in the United States to carry out an attack here.
JASTA would hinder our ability to protect our national
security interests by damaging relationships with countries
that are important, critical partners in combatting terrorism
at a crucial time when we are trying to build coalitions, not
create divisions. We cannot win the fight against ISIL without
full international cooperation to deny ISIL safe haven, disrupt
its finances, counter its violent messaging, and share
intelligence on its activities.
Numerous European and Middle Eastern governments have
reached out to the department to express their concerns about
this bill. The Dutch Parliament unanimously passed a motion on
July 6th calling JASTA a breach of Dutch sovereignty that could
expose the Netherlands to astronomically high damages via
exposure to liability in U.S. courts.
I have seen firsthand throughout my career that the United
States benefits significantly from the protection afforded by
foreign sovereign immunity given its extensive diplomatic
security and assistance operations.
We believe, just as importantly, that this legislation
opens the U.S. to litigation abroad. As Members of this
Committee know, some actions the United States takes overseas
can be controversial, and if JASTA is enacted, it could erode
our sovereign immunity protections abroad. Even if they are not
eager to do so--and in many cases foreign governments are fully
supportive of the counterterrorism steps the United States has
taken--such governments will come under intense public pressure
to create rights for their citizens to soothe the United
States.
As you know, the United States funds, trains, and equips
numerous groups around the world. Exposing the United States to
lawsuits in foreign courts could open the door to litigation
seeking claims against the U.S. government and reduce our
ability to work with groups that have been vital to achieving
our national security objectives.
U.S. counterterrorism strikes that have been a crucial and
successful component of our counter-Al-Qaeda and counter-ISIL
efforts do occasionally, tragically, and despite all
safeguards, cause civilian casualties. If foreign courts were
to take a similar approach in a country where such a strike
took place, they might allow suits to be brought against the
United States for such actions.
Additionally, men and women working on such operations
could face the risk of being brought to trial or compelled to
provide evidence if they travel to the country where the
operation occurred. We have deep concerns about exposing this
broad range of U.S. national security-related conduct to
scrutiny in foreign courts. These risks could ultimately have a
chilling effect on our own counterterrorism efforts.
Finally, I want to mention the possibility that JASTA may
cause foreign governments to reconsider their investments here
because they may have concerns that their money would be at
risk of being attached in connection with a lawsuit. Before
proceeding with this legislation, we believe there needs to be
additional consideration of the potential unintended
consequences of its enactment.
We welcome opportunities to engage with the Subcommittee on
that discussion. I also want to thank the Subcommittee for your
ongoing support as we continue to advance our national security
interests, and I look forward to answering your questions.
[The prepared statement of Ms. Patterson follows:]
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Mr. Franks. And I thank the gentlelady, and I will now
recognize our second witness, Mr. Egan. Sir, if you will turn
that microphone on before speaking, as well.
TESTIMONY OF THE HONORABLE BRIAN EGAN,
LEGAL ADVISER, U.S. DEPARTMENT OF STATE
Mr. Egan. Thank you, Chairman Franks, Ranking Member Cohen,
and Members of the Subcommittee. I also appreciate the
opportunity to appear before you with my colleague, Assistant
Secretary Anne Patterson, to discuss the Justice Against
Sponsors of Terrorism Act.
At the outset, I would like to express my deep sympathy for
the families whose loved ones perished in the attacks on
September 11th. I grew up in a community in New Jersey that was
deeply affected by the World Trade Center attacks, and for much
of my career in government at the Departments of State and
Treasury, and at the National Security Council, I have worked
on mechanisms that would enable our government to confront
terrorism, including financial sanctions, and the use of
military force where appropriate.
I am going to focus my comments today on the importance of
the concept of sovereign immunity to the United States, and our
concern that passage of JASTA will lead to harmful,
reciprocal--excuse me--legislation and lawsuits against the
United States overseas.
The principle of sovereign immunity, which restricts
lawsuits against foreign governments, is well-accepted in
international law, and was long recognized by U.S. courts as a
matter of common law. The United States benefits greatly from
the protection afforded by foreign sovereign immunity, and the
Department of Justice regularly and vigorously defends our
sovereign immunity overseas.
Over the years, Congress and the executive branch have
worked together to approach issues of foreign sovereign
immunity and exceptions with great caution. The Foreign
Sovereign Immunities Act, or FSIA, was enacted in 1976,
following many years of study and consultation between Congress
and the executive branch, academics, the American Bar
Association, and private practitioners.
The act focuses on the narrow instances in which a foreign
state's immunity is denied. For example, a foreign state's
commercial activities in the United States or having direct
effects here.
The narrow, noncommercial tort exception to immunity was
aimed primarily at the problem of traffic accidents, and it
provides jurisdiction for torts committed by foreign
governments inside the United States that result in injuries
here.
Later enacted provisions relating to terrorism prudentially
restrict the ability to sue foreign governments in U.S. courts
for acts undertaken abroad to those states that have been
designated by the executive branch as state sponsors of
terrorism: currently Iran, Sudan, and Syria.
JASTA would represent a significant departure from this
carefully crafted framework. JASTA would strip any foreign
government of its sovereign immunity, and expose the relevant
country to lawsuits in U.S. courts based on allegations in the
lawsuit that the country's actions abroad made it responsible
for an attack on U.S. soil. As Ambassador Patterson noted, a
number of U.S. partners and allies have raised concerns about
the potential consequences of this change.
The adoption of legislation like JASTA likely would have
reciprocal consequences for the United States and increase our
country's vulnerability to lawsuits overseas. Reciprocity plays
a substantial role in foreign relations. JASTA could encourage
foreign courts to exercise jurisdiction over the United States
or U.S. officials for allegedly causing injuries overseas
through groups we support as part of our counterterrorism
efforts, circumstances in which we properly would consider
ourselves to be immune.
Notwithstanding the care with which the United States
operates to ensure that its actions overseas are appropriately
calibrated, exposing U.S. national security-related conduct and
decision-making to scrutiny in foreign courts would present
significant concerns. Such litigation would have the potential
for intrusive requests for sensitive U.S. documents and
witnesses that we would not be willing to provide. There is a
risk of sizeable monetary damages awards in such cases, which
could then lead to efforts to attach U.S. government property
in far-flung places.
Given the broad range of U.S. activities and presence
around the world, the United States is a much larger target for
such litigation than any other country. We stand ready to work
with this Subcommittee and other Members of Congress to
consider these important issues further, and I look forward to
taking your questions. Thank you.
[The prepared statement of Mr. Egan follows:]
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__________
Mr. Franks. Well, I thank you both for your testimony. We
will now proceed under the 5 minute rule with questions, and I
will begin by recognizing myself for 5 minutes.
Ambassador, I will begin with you. In my opening statement,
I mentioned several of the nine exceptions to foreign sovereign
immunity that are provided for in the Foreign Sovereign
Immunities Act, including the exception for lawsuits against a
foreign state for personal injury or death occurring in the
United States. From a foreign policy perspective, what is the
difference between the already existing exceptions, especially
the tort exception, and the new exceptions proposed by JASTA?
And Mr. Egan, if you will prepare, I would like to ask you
the same question afterwards. Ambassador? You are going to
defer to him? All right.
Mr. Egan. Mr. Chairman, thanks for that question. I think
that the primary difference between the existing exception that
you referenced and the change that JASTA would make would be
twofold. One would be under the tort exception now. The
activity that caused the tort in the United States would have
to take place within the United States itself.
And as I mentioned in my testimony, I think this exception
was originally created by Congress to address torts that occur,
such as traffic accidents, here in the United States.
The change here would be subjecting decisions that may take
place overseas and actions overseas in a way that they are not
currently covered by current law, and that is the nature--the
focus of our concern is on that change.
Mr. Franks. Well, let me just follow up on that. I would
like to ask you a question that was posed to me by the family
of a victim of the September 11th terrorist attack. And
essentially if a foreign state, such as Saudi Arabia, knowingly
plays a substantial role in a terrorist attack on U.S. soil, do
the victims of such an attack not deserve to be able to bring a
lawsuit against that foreign state in U.S. courts?
I mean, why would the victims of a terrorist attack on U.S.
soil be given less access to justice for their claims than is
granted, for example--under the example that you used, sir, to
the victims of a car wreck caused by a foreign government, for
which the foreign state may be held accountable under the
FSIA's tort exception?
Mr. Egan. Mr. Chairman, first of all, I do not pretend to
stand in the shoes of the 9/11 families, and I understand the
need to do everything we can for those families. I think our
concern is really the breadth that this expansion of the
exception could cause. By subjecting decision making and other
operations overseas to our courts, we would be inviting other
countries to do the same. We know that other countries follow
what we do under the FSIA and with respect to sovereign
immunity with great interest, and our concern is that that sort
of change could lead to reciprocal actions that would affect
our own operations and decision making.
Mr. Franks. Reciprocal actions are your primary fear?
Mr. Egan. I will let Ambassador Patterson speak to the
foreign policy and national security concerns we have from our
partners. And I am happy to say more about the reciprocal
concerns that we have.
Ms. Patterson. Mr. Chairman, in the case of Saudi Arabia,
let me say that neither the 9/11 Commission nor the review that
was undertaken of the 9/11 Commission in 2015 found any link
between the 9/11 attack and the government of Saudi Arabia.
But if such a link should, of course, arise at any point--
and again I stress that there is absolutely no evidence there
was such a link--the U.S. government would pursue that
vigorously through all kinds of methods--law enforcement,
intelligence, seizure of assets. I believe there is sort of the
undercurrent here that we do not have tools existing to go
after these cases.
And over the past 15 years, we have employed a very broad
range and aggressive range of tools to go after these 9/11
perpetrators and to change the international system that allows
terrorist financing to prosper. So, I think the presumption is
mistaken, but I also think if that were proven to be true, we
would do everything in our power to seek redress.
Mr. Franks. And do you have any examples of going after a
sovereign Nation that supported terrorism on a civil action in
the U.S. courts?
Mr. Egan. So, Mr. Chairman, as you know, under the existing
terrorism exception, cases are allowed against countries that
are designated as state sponsors of terrorism, and that
exception has been used. Our view is that that is a prudential
approach to this very difficult program.
Mr. Franks. Let me just expand on that. Why would the law
treat such an act of terrorism that kills people on U.S. soil
differently depending on whether the substantial assistance was
provided by a designated state sponsor of terrorism or a Nation
that is not so designated?
Mr. Egan. The existing exception was crafted between
Congress and the executive branch to allow for a decision and
evidence to be looked at by the executive branch as to whether
the relevant government has repeatedly provided support for
acts of international terrorism. We think that is an important
check on the process, and it is one that would change with this
law.
Mr. Franks. All right, I now recognize the Ranking Member
for his 5 minutes for questioning.
Mr. Cohen. Thank you. Mr. Egan, Saudi Arabia is not on the
list, right?
Mr. Egan. That is correct, sir.
Mr. Cohen. And if change this law, and they are subject to
liability, might we find out that they should have been on the
list? I mean, it is just asking a question, you know. And my
colleagues on the Republican side, they had some law this year
that said that if you have gone to certain countries and you
come here, you cannot do it unless you go through all this kind
of security checks because it is such a danger, and they did
not put Saudi Arabia on that list either.
Ms. Patterson. Mr.----
Mr. Cohen. Sure, anybody can answer it.
Ms. Patterson. Mr. Cohen, again, I would stress that there
is absolutely no evidence that the Saudis have been involved in
the 9/11 attacks, and we have a very close----
Mr. Cohen. But if they are not, are they not going to win
the lawsuit?
Ms. Patterson. The lawsuit----
Mr. Cohen. Ms. Patterson, go ahead.
Ms. Patterson. So, I think our concerns about this
legislation are broad, and that this is--first of all, Saudi
Arabia and many other countries in the Middle East are very
important partners in our fight against terrorism----
Mr. Cohen. I am going to interrupt you for a second because
they are as threatened, if not more threatened, by ISIL as we
are. They are right there with them. They have been knocking
off Saudis, and they have got no love for them either. Are you
submitting that if we pass this that the Saudis are going to
stop fighting ISIL and stop working with us? I think they have
got an interest in fighting ISIL, too, do they not?
Ms. Patterson. Absolutely.
Mr. Cohen. So if they absolutely had this right, but they
are going to--it is going to harm our abilities to fight ISIL,
then it is just not such a good partner we got.
Ms. Patterson. Mr. Cohen, the Saudis, over the past 15
years, have instituted a very broad range of steps that have
cut off financing for terrorists, and I could outline those
here. They have cooperated with us very extensively on
intelligence exchanges and intelligence tips that have
protected American citizens, and again, they are on the
forefront of this fight against terrorism, as you mentioned.
They are a very important partner in our fight against
terrorism.
Mr. Cohen. What leads you to believe that they would not
be? It's in their self-interest to be. They do everything for
their self-interest, including selling us oil, which we have
been slaves to, and that is why they are not on the list.
Ms. Patterson. Sir, I would take issue with that. They are
not on the list, because they are not a state sponsor of
terrorism, and the process of designating state sponsors of
terrorism is an exhaustive and analytical one. There is a very
significant difference between Saudi Arabia and the countries
that are on the list of state sponsors of terrorism.
Mr. Cohen. Okay, I agree with you on that. Cuba is on the
list, did they not?
Ms. Patterson. No longer.
Mr. Cohen. They just came off, right? And they were a real
threat to us. Great list. And I understand the difference, but
at the same time we did pass this bill on the folks that wanted
to come here to visit, and the Saudis were not on it, and the
only folks that we know that we came here from a foreign
country that did us some damage, who we should have kept out,
were from there. And you may totally be right, and I do not
know.
I am not going to comment on the 28 pages, and that might
influence people pro, con, I do not know what. Who knows? But
the lawsuit is only going to bring that information, and it is
real limited, is it not?
Ms. Patterson. Sir, I think the 28 pages will be very
shortly released, and Members of this Committee and members of
the public can judge for themselves. But it is not just Saudis
who have come to this state to commit terrorist attacks.
When I was ambassador to Pakistan, we had two very dramatic
events. One, the so-called Times Square bomber, who was a
Pakistani, and an Afghan in Colorado who was going to bomb the
New York subway station. And in both cases, the cooperation of
foreign intelligence agencies was absolutely vital in running
down and analyzing and preventing these attacks. So, yes, we
have certainly the terrorist threat, but it is much broader
than Saudi Arabia.
Mr. Cohen. Let me ask you one other question. You talked
about litigation abroad that we could be subject to. Basically,
is that State Department talk for drones?
Ms. Patterson. It is not just drones, sir.
Mr. Cohen. What else do we do that we could be sued?
Ms. Patterson. Okay, then let me outline, then, if I could.
It is drones. Certainly, it is drones. It is some of these
organizations, these law enforcement and intelligence and
military organizations that we support, but it is also the
fact--when I was in Egypt in 2011, International Republican
Institute and National Democratic Institute were prosecuted in
Egyptian courts on criminal charges.
It is also because we do not trust, in many cases, the
legal systems and the prosecutors and the kangaroo courts in
these other countries, and we could easily have a lawsuit
brought about by corrupt or intimidated judges or by the public
that could prejudice U.S. interests. It is not just people that
get killed. It is a whole range of other activities that we
engage in.
Mr. Cohen. My time has expired, and I yield back the
balance of it.
Mr. Franks. And I thank the gentleman. It is interesting to
note that only after we had moved to normalize relations with
Cuba did we take them off the terrorist list. I now recognize
the Ranking Member of the Committee, Mr. Conyers, for 5
minutes.
Mr. Conyers. Thank you, Mr. Chairman, and I thank the
witnesses. Let me begin with the ambassador and the--I wanted
to ask about--Egan first--all right, I will start with Mr. Egan
first. Sir, the bill's supporters assert about reciprocal
behavior by other countries and subjecting our countries to
suits are overblown, especially given that existing exceptions
under FSIA have been in place 40 years without any meaningful
retaliation, or a flood of litigation against the United
States. How do you feel about that?
Mr. Egan. Congressman Conyers, I think we actually have
seen some litigation in response to the terrorism exception,
for example, where we are faced with default judgement from
Iranian and Cuban courts in the billions of dollars in
retaliatory action that they took in the 1990's and 2000's in
response to our creating the terrorism exception.
We do face litigation overseas in the context of contracts
and other activities that we would say foreign governments here
are not immune from, and we vigorously defend ourselves in that
litigation. The change here would be something that would be an
additional exception that is not recognized by others in the
world at this point, and that is why we are----
Mr. Conyers. What impact has that had on us? Has it been
minimal?
Mr. Egan. I am sorry, sir. The litigation that we are
currently facing?
Mr. Conyers. The foreign judgments.
Mr. Egan. So, for example, with respect to Iran and Cuba,
in trying to resolve claims with those countries, including our
own claims, these judgements are put forward by those countries
as things that we must resolve before they will consider
resolving our claims.
Of course, we believe very strongly that our claims have
merit. Theirs do not, but they definitely become impediments in
moving forward, including in collecting compensation for our
property and other claims.
Mr. Conyers. Ambassador Patterson, the bill supporters
argue that if we enact this measure, it could help
counterterrorism activities because it would help to deter
future financing and other material support for terrorist
attacks in the United States, and through enhanced public
scrutiny of these countries that potentially may support
terrorism. Do you think that that is a logical----
Ms. Patterson. I do not agree with that, Mr. Conyers,
because I think what this would do--that suggests that the
sources of these terrorist acts are countries like ours, where
public transparency might have an impact, and I can assure you
in many of the countries that I have served, that would not be
an issue.
What I think it will do is limit our own freedom of action
overseas as lawsuits proliferate in places like Pakistan and
Egypt and other countries in the Middle East. So, I think it
would reduce cooperation among countries, particularly in the
Middle East, but also in South Asia, that work with us closely
on counterterrorism activities.
Mr. Conyers. Well, Madam Ambassador, what Nations might be
concerned about exposure to possible litigation in American
courts if this legislation were to become law?
Ms. Patterson. I think in American courts, I think there
are a number of countries quite apart from Saudi Arabia that
would be concerned about exposure in U.S. courts, and I think
it would not only be related to the 9/11 attack. As I
mentioned, we had potential terrorist attacks from Pakistan. We
had potential terrorist attacks from Afghanistan. They could
also be subject to this. We think the reach of this legislation
is quite broad.
Mr. Conyers. Thank you, Mr. Chairman.
Mr. Franks. And I thank the gentleman, and I now recognize
Mr. Nadler for 5 minutes for questioning.
Mr. Nadler. Thank you, Mr. Chairman, for holding this
hearing today. I have a number of questions, but I want to note
that I am proud to be the lead Democratic sponsor of this bill,
alongside Mr. King of New York. I represent Lower Manhattan,
where thousands of Americans were brutally murdered in the
September 11th, 2001, terrorist attacks. JASTA would help
ensure that those responsible for aiding and abetting these
attacks are held accountable for their actions.
Unfortunately, because of certain court decisions that
misinterpreted the Foreign Sovereignty Immunities Act and the
Antiterrorism Act, 9/11 victims and their families have been
unable to pursue their claims in court against some of the
parties they believe were responsible for funding the attacks.
JASTA simply reinstates what was understood to be the law
for 30 years--that foreign states may be brought to justice for
aiding and abetting acts of international terrorism that occur
on American soil, whether or not the conduct that facilitated
the attack was conducted in the United States.
Let me be clear--this bill does not prejudge the merits of
any particular case. It simply ensures that the 9/11 families,
or anyone else who may be similarly situated can plead their
case in court.
We have various objection to this, and we will hear various
objections to this legislation today, primarily centered around
the fear that other Nations may pass reciprocal legislation in
retaliation, which would subject Americans or the United States
itself to liability in those countries.
I find this argument unpersuasive. Unless the United States
engages in international terrorist activity, which is carefully
defined in law, it would face no legal jeopardy if another
country passed an identical law. And given that no countries
have retaliated in the 40 years since the Foreign Sovereignty
Immunities Act, and it's well established tort exception was
enacted into law, it is hard to understand why this very narrow
classification should now raise alarms.
To the extent that one particular country may fear being
held to account for its actions and might be threatening
retaliation of some sort, there is no--that is no reason to
deny justice to the victims of 9/11 and their families.
The Foreign Sovereignty Immunities Act was intended in part
to ensure that the President would not be put in the position
of determining which claims could be heard, and which would be
protected by sovereign immunity. Although JASTA enables the
executive to stay court proceedings if it is engaging in good-
faith diplomatic negotiations to resolve a claim, it places the
final determination of legal claims in the courts, where it
belongs.
JASTA is a narrow bill that has been carefully negotiated
over the last 6 years and which passed the Senate unanimously
for the second time in May. It deserves swift passage in the
House of Representatives, as well, and I appreciate your
holding this hearing today so that we can begin this process.
Now, Ambassador Egan--Mr. Egan, rather--I am sorry--as I
understood your argument, if a foreign government writes a
million-dollar check to Al-Qaeda in a cafe in New York to fund
a terrorist attack in the United States, the existing tort
exception to the Foreign Sovereign Immunities Act provides
jurisdiction to sue that government in a U.S. court.
But if that same government agent wrote the same million-
dollar check in a cafe in Geneva, his government should be
immune from liability for causing the very same terrorist
attack. What is the rationale for that argument?
Mr. Egan. Thank you, Congressman. I think if we were to
look back at the enactment of the tort exception that you
referenced, I think that the legislative history shows that the
focus and the driving force behind that exception was to allow
for lawsuits against foreign governments in New York and in
Washington, D.C., primarily, for activities that they took--
that they undertook here in the United States.
Mr. Nadler. Right, but if a government--a foreign
government--conspires with some international terrorist
organization to conduct an attack in the United States, and
writes the check to finance that activity in a cafe in New
York, why should it be a different situation than if the same
government conspires with the same international terrorist
organization for the same attack but writes the check in London
or Geneva? What is the difference?
Mr. Egan. I think under that hypothetical, sir, if a
foreign government were to take that clear of an action, I
think we would have very clear grounds to designate them as
state sponsors of terrorism, and they would be subjected to
liability under that framework.
Mr. Nadler. If they were designated after the fact?
Mr. Egan. Yes, if the reason for their designation was the
act that is taking place in your hypothetical it would be
liability.
Mr. Nadler. But what you are really saying is if they wrote
the check in New York, they would be subject to legal action,
and a court would determine the facts.
If they wrote the check in Geneva to finance the terrorist
attack in New York, it would be up to the executive branch to
make a political determination whether we wanted to designate
them as a state sponsor of terrorism, which may be, A, fact-
based, but B, politically determined, rather than leaving it--
rather than having the court have jurisdiction to make the same
determination, that it would, if the check was written in New
York. What is the justification for that, and why should we
stand for such a distinction?
Mr. Egan. I think when the terrorism exception was passed
in 1996, Congressman, it was passed because I think there was a
recognition that national security and foreign policy decision-
making must be worked into a process like this.
Mr. Nadler. Yes, but foreign policy decision-making
presumably has the same considerations whether the foreign
government wrote the check in New York or wrote the check in
Geneva. Why the distinction that one has executive
determination with possibly political and foreign policy
considerations and the other is up to a court?
Mr. Egan. I think that the state sponsor process, which is
a fact-driven, intelligence-driven process----
Mr. Nadler. And politically driven.
Mr. Egan [continuing]. Was seen as one that was the
appropriate check that would allow for executive branch input
into the process.
Mr. Nadler. Well, and the question is why there should be
executive branch into the process depending on where the check
was written for the same act, the same actors, et cetera. And
my time has expired, unfortunately, because I have a number of
other questions, but I will simply reserve that I do not think
that that distinction makes much sense.
Mr. Nadler. I yield back.
Mr. Franks. I thank the gentleman, and I would also now
like to thank Ambassador Patterson and Mr. Egan for their time
and expertise. Thank you for coming, and I would like now to
invite the members of our second panel of witnesses to come
forward. While you are being seated, I will go ahead and
introduce our witnesses.
Our first witness on this panel will be Michael Mukasey.
From 2007 until 2009, Judge Mukasey served as the Attorney
General of the United States, and from 1988 to 2006, he served
as district judge in the United States District Court for the
Southern District of New York, becoming Chief Judge in the year
2000.
Our next witness is Richard Klingler, a partner at Sidley
Austin. Mr. Klingler has served as the general counsel and
legal advisor on the National Security Council, and a special
assistant and Senior Associate Council to the president.
Our third witness is Paul Stephan, the Jeffries
distinguished professor of law at the University of Virginia
Law School. Professor Stephan has served as counselor on
international law, and at the U.S. Department of State, and as
a law clerk to U.S. Supreme Court Justice Louis Powell.
Our final witness is Jimmy Gurule, a professor of law at
Norte Dame Law School. Professor Gurule has served as the
undersecretary for Enforcement at the Department of Treasury,
and assistant attorney general for the Office of Justice
Programs at the Justice Department. Thank you all for being
here.
Each of the witnesses' written statements will be entered
into the record in its entirety. And I would now ask that each
witness summarize his or her testimony in 5 minutes or less,
and to help you stay within that time, there is a timing light
in front of you. The light switch will switch from green to
yellow, indicating that you have 1 minute to conclude your
testimony.
When the light turns red, it indicates that the witness' 5
minutes have expired. And before I recognize the witnesses, it
is the tradition of the Subcommittee that they be sworn, so if
you will please stand to be sworn.
Do you solemnly swear that the testimony that you are about
to give will be the truth, the whole truth, and nothing but the
truth, so help you God? Thank you, you may be seated. Let the
record reflect that the witnesses answered in the affirmative.
And I will now recognize our first witness, Mr. Mukasey.
Mr. Mukasey, welcome back, sir. And if you will please turn
that microphone on before you speak.
TESTIMONY OF THE HONORABLE MICHAEL B. MUKASEY,
OF COUNSEL, DEBEVOISE & PLIMPTON LLP
Mr. Mukasey. Thank you, Mr. Chairman, and thanks to the
ranking number, and thanks in particular to the Committee for
having this hearing. I do not want to simply run through the
statement that I submitted to the Committee; it is in the
record.
I am particularly pleased to see that the Committee is
holding this hearing because, you know, the founders thought
that the Senate would be the saucer in which the passions that
might be unleashed in the House would be cooled. This bill, as
was pointed out earlier, went through the Senate by a voice
vote with no hearing. So, it is a pleasure to see the House
serving as the saucer that the founders thought the Senate
would be.
There are two principal problems with this bill: one is
reciprocity and the other is futility. Reciprocity, I think,
has been an alluded to. It is not that it would open U.S.
courts--that is, it would open liability of foreign governments
in U.S. courts--it is that it would open U.S. personal overseas
to retaliation overseas. We are the most present country in the
world. We are in more places with more people than anybody else
in the world; we are the only superpower in the world right
now. We want to stay that way.
I think that passing a bill like this which chips away at
the concept of sovereign immunity can only hurt us; because we
are the most present country in the world, it cannot help us.
And there are not only hostile countries, but friendly
countries, where there are people who would like to see us held
to account for things that they think we ought to be held to
account for.
The former Secretary of Defense, Donald Rumsfeld, was
threatened with prosecution in Belgium of all places, until it
was pointed out that we could pull are NATO headquarters out of
Brussels, and they came to their senses. There have been
prosecutions of our armed forces in Italy; there are threats to
do, as it was pointed out by the State Department, some of our
people in Egypt were prosecuted in those courts.
And the courts in foreign countries, where people have an
interest in doing this, are much less controlled, and much less
fair than our own courts. And there is no indication
necessarily that this would be limited to court proceedings,
that they would pass an identical statute. They are going to
use this as an excuse to chip away at sovereign immunity.
From what I can think of, there are only really two
countries--three countries that have anything terrible to lose
here. One is the United States, the other is the U.K., and the
third is Israel. And those three countries have the most to
lose from chipping away at that content.
As to futility, I cannot do really any better than Judge
Royce Lamberth of the D.C. District Court in a case called in
Iranian terrorism cases, in which he called those cases against
Iran, which is already on the foreign terrorist sponsor list,
unsustainable, because in essence, sovereign assets are not
subjected to attachment; and what you create is essentially a
bridge to nowhere.
This is not going to help the people it is intended to
help. The only people I think it can help are trial lawyers.
And I do not see passing a bill in aid of that.
I would also like to respond to a couple of questions that
were raised in the course of the questioning before. One
actually was in the initial comments of Chairman Goodlatte who
said that, you know, if a foreign government gives a bomb to a
terrorist organization, and they drop it, here, why should they
not be subject to suit here? That is an act of war under any
standard of international law. And when FDR went in front of
Congress on December 8, 1941, he did not ask Congress to strip
the sovereign immunity of Japan, and open it up to lawsuits for
what they did at Pearl Harbor; he asked for a declaration of
war.
There are obviously steps short of war that we can take,
and those were outlined by the State Department. But that is
the way we respond to conduct like that. As to the question of
why it is that courts should not respond, I think Judge Lambert
said specifically that courts are not suited to respond to
this, and the Constitution says why courts should not respond.
The Constitution places in the hands of the executive the
exclusive right to conduct foreign relations. It does not give
it to Article III courts. And having been in an Article III
court, I know that Article III courts take on a lot of
reasonabilities, but I do not think that ought to be one. Thank
you.
[The prepared statement of Mr. Mukasey follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Franks. Thank you, Judge Mukasey, and I would now
recognize our second witness, Mr. Klingler. And, sir, if you
would turn that microphone on.
TESTIMONY OF RICHARD D. KLINGLER, PARTNER,
SIDLEY AUSTIN LLP
Mr. Klingler. Thank you, Chairman, Ranking Member Cohen for
this opportunity to appear before you. My legal practice and
service in government have focused on counterterrorism and
related constitutional and statutory issues.
Although I represent certain victims of the September 11th
attacks, in ongoing litigations that JASTA would assist, my
comments address the broader benefits and operation of this
important legislation, as elaborated in my written submission.
JASTA modernizes the FSIA's treatment of claims directed
against state-facilitated terrorism striking the United States.
As we painfully learned, terrorist attacks here are often
the tragic conclusion of a course of conduct that originates
abroad. Officials and agents of various foreign states in the
Middle East, South and Central Asia and elsewhere, have various
dealings with terrorist organizations, with international
capabilities, and deeply-held hostility to Americans.
Courts have addressed state-facilitated terrorism under the
FSIA for decades, but risks of adverse state action are
increasing. At the same time, our Nation's capabilities to
address these risks through civil litigation have proven
inadequate. The principal statute designed to deter and remedy
acts of terrorism, the ATA, generally does not apply to foreign
states.
Two FSIA provisions already permit certain terrorism-
related claims against foreign states, but one depends on the
rarely used power to designate foreign states sponsors of
terrorism, and the other, the tort exception, is not designed
for terrorism in particular, and has at times has been applied
narrowly.
JASTA enhances the ability of U.S. courts to address acts
of terrorism, but only narrowly expands existing exceptions to
foreign sovereign immunity. It slightly adjusts the tort
exception, which has long supported claims against state-
sponsored terrorism.
JASTA supports only claims that concern a state facilitated
attack on U.S. soil. Any sovereign has the ability and
obligation to remedy such injuries; as the Supreme Court cases
made clear, Congress is the appropriate body to discharge that
obligation, by enabling legal claims.
Expanding the scope of civil litigation can ensure justice
for victims, deter and redress specific attacks and enhance our
Nation's counterterrorism efforts. The prospect of litigation
can prompt sovereigns to disentangle their operations from
terrorist networks, or to provide justice to victims. Judicial
processes, or state-to-state negotiated settlements, can
provide a reckoning with history, demonstrate current
commitment to right conduct, and enhance relationships with the
U.S. government and financial community.
JASTA also claims the FSIA's strategy of depoliticizing
immunity determination by transferring responsibility from the
executive to the judiciary, but it maintains important roles
for the executive. JASTA does not disturb the president's
exclusive role to determine which foreign states maybe subject
to sue for claims of injury abroad.
For terrorist attacks here, JASTA draws upon a different
presidential power, to suspend claims to effectuate state-to-
state agreements that would provide comparable redress. For
claims under Section 1605(b), the executive can limit suits
against foreign sovereigns, but must do so while also fostering
the interest of the victims. Nor does the possibility that
foreign states might mirror JASTA's jurisdiction pose risk to
U.S. activities.
JASTA narrowly focuses on state-facilitated acts of
international terrorism, based on a narrow, established
definition. Its exception does not extend to self-defense and
like actions, and does not concern claims against individuals.
If the concern is instead that foreign states will use
JASTA simply as an excuse to implement broader exceptions to
immunity, that has little to do with JASTA. Any state seeking
to do so could point to the FSIA's existing tort exception, and
its provisions related to state-sponsored terrorism.
As the Supreme Court Salman Khan decision confirms, the
FSIA and JASTA's amendments, therefore, have nothing to do with
claims against individual officials, and provide no basis for
foreign states to expand claims against American officials. The
scope of sovereignty administered by the executive is unchanged
with respect to those individuals.
But the relative exception to sovereignty related to claims
against foreign states was created in 1976, and expanded in the
1980's and 1990's. JASTA is no sea change. Its opponent's real
quarrel is with Congress' earlier policy judgements, which have
produced no dire consequences over decades.
Instead, considerations of military, political and economic
power, and our diplomacy, have determined, and will continue to
determine, whether foreign Nations foster legal claims against
the United States, just as they do for other potential foreign
state actions adverse to our interests. JASTA would not change
that calculus.
It does, though, empower and encourage our diplomats to use
those traditional tools more effectively, to include the
interests of victims of terrorism among our highest foreign
policy objectives.
And if I might add just a quick observation about the State
Department presentations we just heard--you know, they failed
to acknowledge how existing FSIA provisions could be used as
the pretext for expanded foreign state jurisdiction that the
State Department fears. They failed to point to any adverse
consequences arisen from decades of cases applying 1605, 85 and
Section 1605A, to foreign states for facilitating terror, other
than the Cuban and Iranian judgments, which frankly are a
political issue, and would be dealt with on a political basis
just as any others would.
The Department failed to note that the Administration's own
prominent exaggerations of the changes reflected in JASTA have
contributed to certain confusion and discomfort on the issue
abroad.
And it failed to address, altogether, the Department's role
in fostering state-to-state settlements and securing
accountability for wrongful foreign state actions directed at
U.S. citizens.
All these characteristics of the Department's response
indicate why JASTA is needed, rather than why it is not, and
explains why the Senate unanimously rejected the
Administration's arguments. So JASTA confirms Congresses'
initial policy judgments reflecting the FFSI, and generally
seeks to ensure the Department will place a much higher
priority on terrorism. Thank you.
[The prepared statement of Mr. Klingler follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Franks. I thank you gentlemen. And I would now
recognize our third witness, Mr. Stephan. And, Mr. Stephan, if
you would please turn that microphone on.
TESTIMONY OF PAUL B. STEPHAN, PROFESSOR OF LAW, UNIVERSITY OF
VIRGINIA LAW SCHOOL
Mr. Stephan. Thank you, Mr. Chairman Franks, Ranking Member
Mr. Cohen, and other Members of the Committee; I am very
grateful for the opportunity to testify here. I have devoted my
entire professional life to the foreign relations law of the
United States, both in the academy and in government service. I
have no clients; I represent no one in this case. I am here to
try and help the Committee if I can.
I speak in opposition to the bill under consideration. I
wish to make three points. First, this bill, were it adopted as
law, would likely harm the United States, as well as our allies
by increasing exposure to litigation abroad.
Second, this bill is not likely to achieve its stated aim,
which is to whole foreign states accountable for material
support for terrorism and to provide justice for their victims.
Third, this bill would privatize the national security of
the United States, contrary to any sensible antiterrorism
policy.
Existing law already provides a right for victims of state-
sponsored terrorism to seek compensation through litigation.
What this bill would do is strip the executive branch of its
proper authority, provided by this Congress, to determine which
states sponsor terrorism, and to give that power instead to
private litigants. Such a grave matter as identifying states
that are mortal threats to U.S. interests should not be left to
private lawsuits. To put it bluntly, if Saudi Arabia did
provide material support for the 9/11 attacks, we should be
responding with cruise missiles, not with plaintiff's
attorneys.
And if they did not, seeking to extract money from them for
the victims of those attacks may be justified on principals of
charity and compassion, but not by justice. As you already have
heard today, no country benefits from the international law of
sovereign immunity more than the United States.
Moreover, our worldwide interests and responsibilities mean
that we do many things that foreign lawyers and judges do not
like, and might consider illegal, especially when we fight
terrorism. At the end of the day, increasing the exposure of
our antiterrorism effort to foreign legal liability does not
seem like a sound way to fight terrorist threats.
Let me make this point concrete--in response to the
judgement of the International Court of Justice requiring
sovereign immunity, the Italian courts proved defiant. They
struck down an act of their Parliament that had implemented
this judgement, declaring that the rights of persons to
litigate their claims in Italian courts overrides core
principals of international law.
Italy, as already has been noted today, is also a country
where courts have brought criminal prosections against U.S.
officials involved in apprehending suspected terrorists. These
prosecutions arguably violate Italy's treaty commitments to us.
Enactment of this bill will encourage the Italian courts,
already inclined to disregard specific rules of international
law, as well as treaties, to create even more exceptions to
sovereign immunities. This would expose the United States to
severe litigation risks for counterterrorism activates.
Other countries will notice and respond accordingly, not
only against us, but against our allies in this struggle,
including the United Kingdom and Israel.
Next, it is very unlikely that this bill will achieve its
stated purpose. Most states, when confronted with lawsuits in
foreign courts that they regard as violating their rights under
international law, refuse to appear. When default judgements
result, they refuse to pay. This bill does not affect the
incentives of foreign states to do exactly this.
As a result, the lawsuits the bill would permit are
unlikely to unearth evidence that would identify, much less
punish, state sponsors of terrorism, or to produce
acknowledgement of culpability accompied by compensation.
Finally, there is something seriously wrong with
privatizing American national security policy. Although Section
5 of the Senate bill allows the judge to stay the suit at the
request of the executive, it does not require this. It still
leaves it to the court and the litigants to decide when to do
so. If they regard the efforts of the executive to unearth
evidence of state support for terrorism is unsatisfactory, this
bill gives them a green light to go forward.
It is therefore completely unlike the Iranian claims
litigation, where the executive could require courts to stay
lawsuits. Thank you for your attention; I am happy to take
questions.
[The prepared statement of Mr. Stephan follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Franks. I thank the gentleman, and now recognize our
fourth and final witness, Mr. Gurule. Sir, if you would turn
that microphone on, too.
TESTIMONY OF JIMMY GURULE, PROFESSOR OF LAW,
NOTRE DAME LAW SCHOOL
Mr. Gurule. Chairman Franks, Ranking Member Cohen, and
other distinguished Members of the Subcommittee, I would like
to thank you for holding this important hearing on the Justice
Against Sponsors of Terrorism Act, and inviting me to testify
on the value of this legislation in combating the threat of
global terrorism.
As we approach the 15 year anniversary of the 9/11
terrorist attacks that tragically took the lives of
approximately 3,000 innocent civilians, it is imperative that
the U.S. Government continue to strengthen the effectiveness of
its counterterrorism efforts, including depriving terrorists of
funding, as well as deterring and punishing their financial
sponsors, including foreign states.
The enactment of JASTA is critical to achieving that
objective. I would like to just briefly comment on three
points--the first is the important goals advanced by JASTA;
second, the fact that JASTA is narrowly drafted, narrowly
tailored; and third, debunking the reciprocity arguments that
are clearly, in my opinion, overstated. First, on the goals of
JASTA--civil tort actions that seek large monetary damages
provide an invaluable supplement to the criminal justice
process and administrative blocking orders.
These civil tort actions--claims, excuse me--advance five
important goals--first, private lawsuits brought by victims of
terrorism can have a deterrent effect against foreign
governments that support acts of terrorism. While the threat of
large civil monetary judgment may have little or no deterrent
effect against the terrorists themselves, the same may not be
true for foreign governments that lend financial support and
direction to foreign terrorist organizations.
These foreign states are likely to have substantial assets
in the United State that may be attached to enforce civil
terrorism judgments. We have seen that recently with the
Islamic Republic of Iran, that recently has been sued by the
victims of the 1983 terror attacks in Beirut, and their assets
in the United States, approximately $1.7 billion in assets in
the United States, have been attached to enforce the terrorism
judgement against Iran.
No one can tell me that that type of action, seizing those
types of assets against a foreign state, is not going to have
any deterrent effect against that foreign state with respect to
its future activities, with respect to supporting acts of
terrorism.
Second, civil actions targeting the assets of foreign
states that support terrorism can reduce the ability of
international terrorists to carry out their deadly attacks.
Money is the life blood of terrorists. While terrorists seldom
kill for money, they always need money to kill. Depriving
terrorists of funding, especially from foreign state sponsors
of terrorism, is critical to preventing terrorist attacks and
saving innocent lives.
Third, foreign states that sponsor terrorism, including
through government charities, should be held accountable for
their action. That is a very fundamental principal and
proposition.
Fourth, victims of international terrorism should be
compensated for their unimaginable loss, pain and suffering.
And the foreign states responsible for these physical and
emotional injuries should be held responsible for that
compensation.
And finally, the JASTA strengthens the statutory framework
of the Foreign Sovereign Immunities Act and the Antiterrorism
Act, and confirms the importance of civil litigation as an
important tool in combating terrorism. With respect to JASTA
itself, it is a very narrowly-tailored statute, and applies
extremely limited and extraordinary circumstances, and does not
permit U.S. nationals to routinely sue foreign states, as some
critics of the legislation have maintained.
First, it has a geographic limitation; it only applies to
acts of terrorism that occur in the United States. As a subject
matter limitation, it only applies to acts of international
terrorism, not other acts of violence; and international
terrorism is a well-defined term in the Federal U.S. Statute 18
U.S.C. 2331.
Fourth, the term international terrorism excludes any act
of war, so that would not be covered in this legislation; it
would not justify the cause of action for such actions. It is
limited to actions that are aided and abetted by foreign
terrorist organizations--that is another limitation. There is
approximate cause limitation on the statutes, so these would be
acts of international terrorism that were caused by the foreign
state that aided and abetted the terrorist organization.
Further, the statute provides that it does not extend to
negligent acts--negligence by the foreign state--but only
intentional or knowing conduct involving the state.
And with respect to aiding and abetting, the statute
provides that the foreign state must have provided substantial
assistance to the foreign terrorist organization.
With respect to the last point, on the overstatement
regarding the reciprocity concerns, let me just simply say
countries with the greatest potential for such lawsuits against
the United States have authoritarian regimes that do not permit
their citizens to bring civil suits against foreign governments
for acts of international terrorism. In those countries, such
actions are the exclusive purgative of the authoritarian
government.
For example, the private civil terrorism lawsuit filed
against Iran for its complicity in the 1983 terrorist attack in
Beirut, Lebanon, killing over 200 American servicemen, did not
result in retaliatory lawsuits be filed against the United
States by private citizens in Iran.
Furthermore, the civil terrorism case did not undermine the
U.S. Government's efforts to finalize the joint comprehensive
plan of action with the Islamic Republic of Iran. The civil
terrorism lawsuit was pending when the United States and its
allies were negotiating and finalizing the terms of the
multilateral agreement with Iran to limit the country's ability
to develop nuclear weapons.
So it had no effect--the fact is the pending terrorism suit
had no effect on that. So I think that the statement regarding
retaliation is largely overstated.
And finally, in conclusion, the JASTA eliminates sovereign
immunity for foreign states that intentionally, knowingly, aid
and abet terrorist organizations in carrying out deadly attacks
on U.S. soil; in my opinion that is good U.S. policy, and as a
result, the JASTA should be enacted into law by Congress. Thank
you.
[The prepared statement of Mr. Gurule follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Franks. And I thank you all for your testimony, and we
will now proceed under the 5 minute rule of questions, and I
will begin by recognizing myself for 5 minutes. And, Judge
Mukasey, I will start with you sir. First, thank you for your
gallant service to the country.
Mr. Mukasey. Thank you very much.
Mr. Franks. Judge Mukasey, JASTA essentially calls on
Congress to strike a balance between providing U.S. victims of
terrorism with access to judicial redress for terrorist attacks
on U.S. soil that our sponsored by foreign governments, and
subjecting foreign governments to lawsuits is U.S. courts--at
least that is the attempt, I think, of the legislation.
Why do you think JASTA strikes this balance incorrectly?
Can you help us understand that?
Mr. Mukasey. I think the principal problem with that
analysis is that JASTA does not itself determine its own
application. There was a philosopher a long time ago named
Ludwig Wittgenstein who stated that principal--no rule
determines its own application. This can be applied, and
invoked, by anybody who wants to sue.
It is not going to be established that a country was not
involved in aiding and abetting terrorism unless and until a
complaint is filed, discovery is engaged in, the country's
diplomatic and national security matters are probed into in a
United States court, and they are subjected to all the
processes of discovery in a United States court that, frankly,
interfere with the ability of this country to conduct its
foreign relations, and terrify foreign governments, and I think
justly. That is the problem.
Mr. Franks. So, Mr. Klingler, I will turn to you, sir.
Recently, Bloomberg editorialized that in the event that
foreign Nations respond to an enactment of JASTA by passing
reciprocal measures of their own, ``The entirety of U.S.
foreign policy could be put on trial in foreign courts under
the guise of seeking monetary justice.'' Now, do you think this
is a potential result of the enactment of JASTA? If not, what
are your assurances that you might state? That microphone, sir.
Mr. Klingler. Thank you very much. Two principal
reactions--one is the scope of JASTA itself. I mean, if the
theory is that there is actual mirroring of JASTA's terms
abroad, then the scope of our exposure arising from JASTA is
limited to our undertaking acts of international terrorism. And
the additional exposure of reciprocal retaliation would only be
what JASTA extends beyond the current FSIA limitations.
In other words, a foreign state that is actually motivated
and seeks to do that could do it today. They could say, ``The
United States has Section 1605A. That allows a suit in our
court based on a designation by the executive, and we designate
the United States,'' they could do that. Or they could point to
the tort exception, and say the United States Courts are
divided over the scope of the tort exception, they all agree,
and the State Department even agrees that acts of Americans
abroad--or I am sorry--acts of a foreign state in America,
would fall within the current exception. So we are going to
extend or immunity exception to acts of Americans abroad.
So, JASTA itself contains a set of limitation, and does not
extend current law particularly broadly. The other principal
response, and I think what has driven this area for the last 40
years is that this is handled by the United States Government
in an exceptionally professional and effective way. It is a
political, military and diplomatic issue.
When a foreign country begins to restructure its judicial
processes to direct their actions at the United States, we take
a broad range of action. Judge Mukasey's point about Belgium,
and our threatening to shift NATO, shows actually that we do
have the capability to respond to this, that we can meet both
sets of objectives. We can ensure that injuries in the United
States can be redressed by our courts, and that inappropriate
extensions of jurisdiction elsewhere can be met appropriately
by our diplomatic forces. They have the tools to do that.
Mr. Franks. Professor Gurule, some have argued that the
enactment of JASTA will violate international law, as you know.
Do you believe or do you not believe that the exception to
foreign sovereign immunity included in JASTA will cause the
United States to violate international law?
Mr. Gurule. No, I do not. I do not believe that it would
violate international law, and the reason that I say that is
that foreign sovereign immunity is not absolute, and we know
that. An exception, again, has been highlighted in the Foreign
Sovereign Immunities Act for torts committed within the United
States.
Further, 1605A creates another exception, and foreign
states have also recognized exceptions to foreign sovereign
immunity for torts committed in their territory. So again, I do
not believe that sovereign immunity is an absolute principal
without exception. And other states besides the United States
have recognized exceptions to foreign sovereign immunity.
Mr. Franks. Well, thank you. My time has expired, and I
will now recognize the Ranking Member for 5 minutes.
Mr. Cohen. Mr. Klingler, let me ask you, how many clients
do you have in this case?
Mr. Klingler. Very few. I represent an association of
insurers. I work with co-council, who represent, you know, a
much broader range. And at times, when I have, say, argued in
the second circuit on this issue, it is on behalf of the
broader range of plaintiffs.
Mr. Cohens. How many victims of 9/11 are involved?
Mr. Klingler. In the case generally, oh, the class action
extends into, you know, the several hundreds.
Mr. Cohen. Did they not get compensated? Did they have to
not except compensation to participate here?
Mr. Klingler. Certain of the victims have been compensated.
The extent of the compensation, though, is quite limited. And
even for the ones who were compensated, others have not been
compensated at all. And even for the ones that have been
compensated, both the extent of the injury, but particularly
the process--the justice element--that what a number of the
plaintiffs want more than anything else is an accounting.
Someone to actually delve into the fact----
Mr. Cohen. I accept that, and the people that have not been
compensated at all, is that because they are not direct victims
or----
Mr. Klingler. Because they are not necessarily eligible
under the particular compensation scheme. For example, for, you
know, the massive property damage.
Mr. Cohen. All right, so it is property, not personal.
Mr. Klingler. Well, I think even some of the personal, but
I am not familiar with how that line is drawn.
Mr. Cohen. Okay. Mr. Stephan, and I might have missed it in
your address, but what is the harm, if you say that these
people--foreign governments--will not appear; they just will
not come to court jurisdiction just will not permit, and they
will not pay off the judgement and it just kind of--so what is
the harm in letting folks bring an action in court?
Mr. Stephan. Sir, the harm is, first, that you do not get
the reckoning that people are looking for; you get no
acknowledgement, you get no information.
Mr. Cohen. All right.
Mr. Stephan. Secondly, those default judgements, in turn,
become problematic. We have talked about Iran; we have talked
about legislation that this Congress has adopted that extended
the scope of assets associated with Iran that might be used to
pay off some of those judgments. Iran has initiated a claim in
the International Court of Justice based on a treaty we have
with them.
And it is possible--I am not saying it is likely--but it is
possible that the United States will end up being on the hook
for the money paid to Iran. We have seen something like that
happen with our terrorism judgments supposedly collected
against Cuba. So, there are consequences. It is not an empty
gesture.
Mr. Cohen. Mr. Mukasey you talked about--I believe it was
your statement--about other countries wanting to sue us--maybe
it was Mr. Stephan--but that other folks want to sue us or
bring action against us.
Mr. Mukasey. It is not a question of suing us; it is a
question of using this as a pretext, either for lawsuits, which
would be, you know, one thing; but for other kinds of
harassment of our people--military, diplomatic, and so on, it
is a pretext, not that their going to enact identical
legislation. That is not the way it works. They do things that
interfere with our sovereign immunity, whether by harassing our
diplomats or our soldiers. And then when we - - -
Mr. Cohen. But could they not do that now?
Mr. Mukasey. They would not have the pretext of this
statute that does not even depend on an executive determination
of status as a foreign sponsor of terrorism. We are letting
basically anybody walk into court and say, ``We think this
entity is a foreign sponsor of terrorism.''
Mr. Cohen. I do not know that they need a pretext, but
whatever. They have got all these problems abroad where we
could be sued, and the drones we have killed at least a 100
people. Our litigation, we think, where there is a wrong, there
is a remedy--in this case you are saying there is not a remedy,
or are you saying this is the type of situation where
mysteriously people appear and give somebody a bunch of money
and do not say where it comes from, and then they leave?
Mr. Mukasey. I am not sure I understand the question.
Mr. Cohen. Well, I understand that maybe it is nothing
classified--it is something I read in the paper--that some of
these victims of drone attacks, the heirs of the victims of
drone attacks, somebody mysteriously shows up, gives them a
whole bunch of money, and did they disappear. Is that the way
we are supposed to remedy our errors?
Mr. Mukasey. No.
Mr. Cohen. But we do that.
Mr. Mukasey. Not necessarily, but if that is the reality of
international relations then it is a whole lot better then
airing our----
Mr. Cohen. Dirty laundry.
Mr. Mukasey [continuing]. National security secrets in a
tribunal overseas. Do I think it is desirable? No. Do I think
it is better than the alternative?
Mr. Cohen. Let me get in my last question. You said
something about Belgium, and there was a possible prosecution
of Rumsfeld?
Mr. Mukasey. Yes.
Mr. Cohen. What was that for?
Mr. Mukasey. It was for war crimes.
Mr. Cohen. That makes me be more in favor of this. Thank
you.
Mr. Franks. I now recognize the Ranking Member of the
Committee, Mr. Conyers, for 5 minutes.
Mr. Conyers. Thank you, sir, and I thank you for your
testimony, gentlemen. Let me start with Mr. Stephan. Mr.
Klingler and Professor Gurule argue that concerns about
reciprocal actions against our country in response to the
enactment of this S. 2040 are overblown, noting that exceptions
to sovereign immunity over the last 40 years have not resulted
from a flood of litigation against the United States. What is
your response, sir?
Mr. Stephan. Thank you for the question, congressman. My
response is, first of all, until very recently, the tort
exception in the Sovereign Immunities Act has been used for
what Congress thought it was doing; cases like the Makharadze
automobile accident here in D.C. 20 some years ago. It has not
been used as a way of dealing with what are fundamentally
national security issues, although also issues of justice.
As to the antiterrorism provision that we have had on the
books for 20 years now, in essentially every case where claims
have been brought, there has been retaliation by the countries
involved. Our response is we do not care what Cuba does, we do
not care what Iran does, and I suppose you could say that law
does not ultimately matter one way or the other. Our power will
get us where our power gets us.
But if you believe that law matters, I think changing our
law in the way that is proposed by the Senate bill will have
implications in the laws in other countries, and I think those
legal changes will have consequences.
Mr. Conyers. Thank you very much. Let me turn now to Mr.
Klingler. Professor Stephan contends that the Justice Against
Sponsors of Terrorism Act would allow a private litigant to
leapfrog the political branches just to allege that a certain
particular state sponsor, or sponsors of terrorism, based on
the belief and hope rather than proof, leaving the decision of
when to discard sovereign immunity to private litigants acting
on incomplete information, and whose interests do not
necessarily match those of our Nation as a whole. How do you
respond to that, Mr. Klingler?
Mr. Klingler. Thank you very much. I think that rests on
just a fundamental misunderstanding of how the Foreign
Sovereign Immunities Act has been structured by the political
branches.
Congress made the initial determinations, in both the tort
exception and in 1605A, that there would be a series of
judicial determinations related to--in the former case injury
arising just in the United States; in the latter case, it would
be injury arising anywhere subject to the executive
determination. And what JASTA is seeking to do is really to
restore that basic understanding that tort exception passed in
1976 by a political branch, that indicated that we do not want
a politicized executive process to be the focus of determining
when victims of a whole range of injures including terrorism,
can get relief.
Instead, we will create narrow categories that are
internationally recognized where the judiciary is the
appropriate forum for that. That was the basic decision in
1976, and JASTA just carries that forth.
Mr. Conyers. Professor Stephan, do you support that view?
Mr. Stephan. I would like to distinguish, sir, between the
1976 decision and the 1996 decision. As to the creation of the
antiterrorism exception in 1996--and that was what I was
referring to in my written remarks--that does require a
separate judgment by the executive branch using criteria set
out by this Congress. And what 1605(b) would do is eliminate
that step. That was what I was referring to.
Mr. Conyers. Ah. Well, would you have a final comment, sir?
Mr. Klingler. If I could. The 1605 executive power is
preserved for all injuries overseas. And I think that we cannot
underestimate the fact that there have been state-facilitated
terrorism cases brought under the tort exception.
Let's go back decades--that is Liu in the ninth circuit,
that is Letelier in the district court, and that is for the 9/
11 cases apart from the Saudi case. Since 2008, the theory of
JASTA is what underlies the claims against the Afghans that
have been brought in the DDC and at least allowed to go into
discovery by the Second Circuit.
Mr. Conyers. Thank you sir, thank the Chair.
Mr. Franks. I thank the gentleman, and I now recognize Mr.
Nadler for 5 minutes.
Mr. Nadler. Thank you. I think it was Mr. Klingler just
mentioned the Letelier case. In the early 1970's, Orlando
Letelier, the former Chilean Ambassador to the United States,
was murdered in Washington, D.C. by operatives and senior
officials of the Chilean Intelligence Services and two Cuban
exiles. His survivors were permitted to sue the Chilean
Government in American courts.
And the widow of Henry Liu, a Chinese journalist and critic
of the Taiwanese Government, was permitted to sue Taiwan after
her husband was murdered in California by agents of the former
director of Taiwan's Defense Intelligence Bureau.
Yet that, I suppose I should ask Attorney General Mukasey,
those cases did not resolve in any kind of retaliation or a
flood of litigation against the United States. Why do you think
that having JASTA restore the law as it was understood then, in
this situation, would result in such retaliation?
Mr. Mukasey. Because we are talking about far different
scale, and a far different kind of involvement. Those were
narrow acts focused on particular people, where a lawsuit took
place on United States soil. This is something----
Mr. Nadler. The orders were given abroad.
Mr. Mukasey. Understood, but this is something far
different. The scale is far different, the alleged involvement
is far different.
Mr. Nadler. Mr. Gurule, would you answer the same question?
Mr. Gurule. Yeah, I disagree. I do not see the distinction.
I think that, again, when a foreign state aids and abets a
terrorist attack, whether it is against a single individual in
the case of an assassination of Letelier, or a terrorist attack
on a much larger scale, the foreign state should be held
accountable for its criminal conduct. Second, the victims of
the attack should be afforded a remedy, a judicial remedy. They
should be afforded their opportunity to litigate the cause of
action in court. And so I find that distinction----
Mr. Nadler. The essential question I am asking is not on
the equities, which I think are clear--people ought to have a
remedy. But, on the prudential question of if we were to enact
this, would that not invite retaliation by foreign governments?
Mr. Gurule. I think, again, it is overstated, and I go back
to the case involving the Islamic Republic of Iran. I mean it
is been sued in the United States for acts of international
terrorism that resulted in a large terrorist attack in Beirut,
killing over 200 American servicemen. That litigation has been
ongoing for over 10 years. It was brought to conclusion by U.S.
Supreme Court----
Mr. Nadler. And this did not affect the JCPOA?
Mr. Gurule. There has not been a flood of litigation.
Mr. Nadler. Let me ask, Mr. Klingler Attorney, Attorney
General Mukasey expressed concern in his testimony that
enacting JASTA was almost certain to invite retaliation against
our own government officials, soldiers, and diplomats in
reference that the countries that would be most threatened by
that would be the U.S., the U.K. and Israel in terms of
individuals.
But JASTA only provides jurisdiction to sue foreign
governments not individuals. And, if foreign governments were
looking for an excuse to sue American Government officials,
soldiers, and diplomats, would the existing tort exception not
provide a sufficient excuse? First, Mr. Klingler, and then
Attorney General Mukasey.
Mr. Klingler. You are absolutely right that JASTA does not
apply to claims against individuals. The entire Foreign
Sovereign Immunities Act does not apply to claims against
individuals.
So, to the extent that there would be foreign governments
that want to initiate jurisdiction to pursue individual
Americans, that has nothing to do with reciprocating against
either the Foreign Sovereign Immunities Act, or JASTA itself.
Mr. Nadler. So let me ask Attorney General Mukasey
essentially the same question, but is your argument not really
that any change to the--what is it, the Foreign Tort Act--even
if it is a limited change, would give foreign governments the
excuse to make bigger changes? And even if what we are doing
would not evolve into claims against individuals, some foreign
government might?
Mr. Mukasey. That is a large part of it. I mean, one of the
questions raised before was what if they passed legislation
that mirrored what we are doing here? The issue is not mirror;
the issue is caricature.
Mr. Nadler. So, your argument basically is that we should
not make any change to the Foreign Sovereign Immunities Act,
because it might lead to foreign governments to have an excuses
to make worse changes?
Mr. Mukasey. Only with a lot of hesitation and a lot of
study, neither of which has been present here. This thing flew
past the Senate with no hearings.
Mr. Nadler. Well we do not duplicate the Senate's
practices.
Mr. Mukasey. I understand that, and I commend you for it.
Mr. Nadler. Mr. Gurule, my last question since my time is
running out. There was reference to Americans being arrested in
Rome, I think it was, and subject to prosecution. But was that
not a case where the allegation was that American CIA agents
had, without any color of authority, kidnapped someone off the
streets of Rome, and shipped him off to Syria to be
interrogated and tortured by the Hafez al-Assad regime, and
what happened to that litigation? Do you know?
Mr. Gurule. As far as I know, I think it is still pending.
You know there were criminal charges that were filed against
the Americans, and efforts are being made to in Italy bring
them to justice.
But again, I would go back to the point--if there is a
hostile foreign government, a hostile foreign government does
not need any pretext, does not need any excuse, to bring
criminal charges against the United States or it is citizens.
And this legislation is not going to change that one way or the
other.
Mr. Nadler. My time has expired. Thank you very much.
Mr. Franks. I thank the gentlemen, and I now recognize Mr.
Deutch for 5 minutes.
Mr. Deutch. Thank you Mr. Chairman. Judge Mukasey, I just
want to go back to something you said earlier about the role
that a court would actually play here. I mean, there is a
terrorism exception currently, right, under the foreign
sovereign immunities?
Mr. Mukasey. There is terrorism exception when the United
States Government has designated a foreign state as state
sponsored terror.
Mr. Deutch. State sponsor of terror, right.
Mr. Mukasey. So that takes care of the issue of who decides
initially that this lawsuit should even go on, because----
Mr. Deutch. Right, right, I understand. And that is where I
am going. So, when the proposed statute refers to a tortious
act, a foreign state or its official employee agent acting
within the scope of her office, regardless of whether the
tortious conduct took place, that is what requires, I think as
you suggested--and this is what I do not understand just from
your years of experience--that is what you suggest requires a--
before determining whether there is an exception, before
knowing that the country was actively involved in terrorism,
the only way--I guess you are suggesting the only way we are
going to know that is if it is determined. And the only way to
determine that under this statute would be in court.
Mr. Mukasey. Correct.
Mr. Deutch. And how would you expect that would play out?
That is what I am trying to get at.
Mr. Mukasey. A complaint gets filed.
Mr. Deutch. Yeah.
Mr. Mukasey. That complaint is judged solely on its four
corners. In other words, do the allegations in the complaint
allege a claim? Not is there any evidence to support the claim,
et cetera. You then go through what is known fondly as
discovery, which is an exercise that involves probing into the
documents and the witnesses on each side. In a civil case, that
is an unexceptional exercise.
When you are talking about litigating, with respect to the
involvement of a foreign government, you are talking about
subjecting their internal deliberations, their national
security documents, their documents that may very well involve
cooperation with the United States, to public scrutiny in a
court, and it becomes a very different matter, and there are
very different considerations. That can be done by anyone,
regardless of whether it serves the interest of the United
States or disservices them, and that is what I think is
objectionable.
Mr. Deutch. Mr. Klingler, how do you respond to the
suggestion that a case gets filed, and suddenly in discovery,
there are requests for the production of all kinds of documents
that might be used to show a connection that for a whole host
of national security reasons, let alone the concern of
retaliation that have been discussed, should not be part of an
extensive court case?
Mr. Klingler. Right, a couple of points. I mean, one is
that foreign sovereigns are in U.S. courts every day under the
various exceptions. Some of those manners are extremely
sensitive--a number of--both on the tort exception and
expropriations, and some commercial matters. And judges have
developed a whole range of doctrines, some of which are very
favorable to foreign sovereigns to make sure that discovery, if
it even takes place, is limited; that there is direct appeal in
cases of the unnecessary invasion of the foreign interest.
And frankly, we should kind of keep in mind what the
national security context is here. And judges manage this issue
everyday. I do not have the experience obviously of Judge
Mukasey, but the issue here is whether the state facilitated a
terrorist attack on U.S. soil. That may implicate various
correspondence, it may implicate various correspondence with
other governments.
The United States has the ability to enter appearances and
help to manage that issue, but the national security
sensitivity is going to be whether the Nation attacked us or
not, or facilitated those who did.
Mr. Deutch. Right. Mr. Stephan, right, so there is an
argument that I think a lot of people would make just listening
to this; understand we are concerned about what maybe brought
out in court, but if what we are talking about bringing out in
the course of litigation under this statute is an active role
played by a foreign government in a terrorist attack, why would
we not expect that to be the result?
Mr. Stephan. Congressman Deutch, let me play law professor,
if you will allow me, and put before you a hypothetical. In
many parts of the world----
Mr. Deutch. As long as I do not have to answer your
question.
Mr. Stephan. Yes, sir, I will try to answer my own. In many
parts of the world--not only in the Islamic world, but in
Europe--it is believed that Israel is the real perpetrator of
the 9/11 attacks. Suppose a victim of that attack files suit
against Israel under this law.
Under the current bill as I see it, there is no barrier at
which point discovery ensues, in which Israel will have to try
and prove a negative; that in spite of its obvious interest in
concealing under this--if I may so, paranoid account--but still
one that is commonly believed. What is discovery going to look
like, in that case? That, in a nutshell, is my concern.
Mr. Deutch. If I can just ask Professor Gurule, so should
we would be concerned that if we pass this, suddenly cases are
going to be brought all over alleging the most outrageous
things that ultimately would not just be outrageous, but would
actually start to compromise our national security?
Mr. Gurule. Again, I think this is highly speculative. And
anything is possible, but just because something is possible
does not make it true, that it is going to happen. And the
possibility that someone may seek to sue is real with respect
to the 9/11 attacks, again is so highly unlikely, so
speculative, that it does not undermine all of the good, all of
the value, and the positive purposes, value that would be
brought by enacting this legislation.
Mr. Deutch. Thanks. Mr. Chairman, I yield back. I thank the
panel. This was very helpful, very instructive.
Mr. Franks. Well, this concludes today's hearing and,
without objection, all Members will have 5 legislative days to
summit additional written questions for the witnesses or
additional materials for the record.
And I just want to especially thank the witnesses and the
Members and the audience for being here today. I appreciate all
of you taking the time to be here. And with that, this hearing
is adjourned.
[Whereupon, at 11:56 a.m., the Subcommittee was adjourned
subject to the call of the Chair.]
[all]