[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
         
         
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]         


      Available via the World Wide Web: http://judiciary.house.gov
      
      
                                __________
                                
                                
                           U.S. GOVERNMENT PUBLISHING OFFICE
20-724 PDF                        WASHINGTON : 2016                           
                       
_______________________________________________________________________________________ 
For sale by the Superintendent of Documents, U.S. Government Publishing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, 
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).
E-mail, [email protected].  
                      
                       
                       
                       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

                              ----------                              

                             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

                              ----------                              


                        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:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
   
                       __________
                            
                               
    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:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
                               __________
                               
    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:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
                               __________
                               
    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]