[Congressional Record Volume 151, Number 80 (Thursday, June 16, 2005)]
[Senate]
[Pages S6746-S6747]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (for himself and Mr. Lautenberg):
  S. 1257. A bill to amend title 28, United States Code, to clarify 
that persons may bring private rights of actions against foreign states 
for certain terrorist acts, and for other purposes; to the Committee on 
the Judiciary.
  Mr. SPECTER. Mr. President, along with my colleague, Senator 
Lautenberg, I am introducing the Justice for Marine Corps Families--
Victims of Terrorism Act. I am submitting this legislation on behalf of 
the families of the brave servicemen who died when terrorists--with the 
support of the Government of Iran--sent a suicide bomber into the 
Marine Corps Barracks in Beirut, Lebanon, on October 23, 1983, killing 
241 U.S. servicemen--18 sailors, 3 soldiers, and 220 marines.
  This legislation clarifies a private right of action, in Federal 
courts, for U.S. citizens against state sponsors of terrorism and will 
ultimately make it easier for victims of such acts to collect court-
ordered damages against state-sponsors of terrorism. The specific 
provisions of the legislation have been drafted to harmonize existing 
statutory law with the recent decision by the District of Columbia 
circuit in Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 
D.C. Cir. 2004, which held that ``neither 28 U.S.C. Sec. 1605(a)(7) nor 
the Flatow Amendment to the Foreign Sovereign Immunities Act. . . ., 
nor the two considered in tandem, creates a private right of action 
against a foreign government.'' 353 F.3d 1024, 1032-33 (D.C. Cir. 
2004). This bill will permit the families of the brave servicemen who 
died at the Marine Corps Barracks in Beirut, Lebanon, to collect court-
ordered damages against state-sponsors of terrorism such as Iran.
  The initial section of the bill clarifies that victims of a state-
sponsored terrorist attack are permitted to bring a private suit 
against the sponsoring foreign terrorist government. Congress first 
allowed U.S. citizen victims of state sponsored terrorism to pursue 
private actions against a foreign terrorist government when we passed 
the Flatow Amendment in 1996. Now, some 9 years and over 50 successful 
cases later, the Federal Appellate Court for the District of Columbia 
Circuit in Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 
D.C., 2004, has held that the Flatow amendment did not create a private 
right of action against a foreign terrorist government. Accordingly, 
the initial section of this bill will correct Cicippio-Puleo by 
explicitly inserting language into the Flatow amendment enabling U.S. 
citizens to once again bring private suits against foreign terrorist 
governments who have murdered or maimed their loved ones.
  The second section of the bill eliminating many of the barriers which 
have prevented U.S. citizens from collecting on court ordered damages 
against state sponsors of terrorism. The bill does this by changing the 
legal standard of the Bancec doctrine from day to day-managerial 
control to those under the beneficial ownership of the state. The 
Supreme Court enunciated the so-called Bancec doctrine in First Nat'l 
City Bank v. Banco Para EI Comercio Exterior de Cuba, 462 U.S. 611, 
626-27, 1983. In this case, the U.S. Supreme Court created a 
presumption against a party that seeks to satisfy an outstanding 
judgment against a foreign government by seizing the foreign 
government's assets. This section of the bill will ease the burden on 
the families of victims of terrorism by permitting them to attach the 
hidden assets of terrorist states held within the United States. 
Finally, the remaining portions of the bill would create a mechanism 
whereby a lien could be filed in any jurisdiction in the United States 
where a state sponsor of terrorism directly or indirectly owns assets. 
This would prevent foreign state sponsors of terrorism from removing 
these assets from the country after the passage of this legislation.
  On October 23, 2004, in Philadelphia, I was privileged to take part 
in a memorial service held in honor of the servicemen killed in the 
1983 Beirut attack. Some of the family members of those killed attended 
the event. Their moving comments about how they had been denied the 
ability to seek legal redress, despite clear findings implicating Iran 
in the attacks, were both poignant and persuasive. It is vitally 
important to victims' families that they have a private right of action 
against the state sponsor itself, not just against its officials, 
employees, or agents acting in their official capacity. These victims 
and their families deserve not only a day in court but also the ability 
to recover damages from these terrorist states that commit, direct, or 
materially support terrorist acts against American citizens or 
nationals. This bill reaffirms that the United States will not tolerate 
state-sponsored terrorism. Accordingly, I urge my colleagues to join us 
in support of this

[[Page S6747]]

bill. I yield the floor. I ask unaminous consent that the text of the 
bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1257

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. CLARIFICATION OF PRIVATE RIGHT OF ACTION AGAINST 
                   TERRORIST STATES; DAMAGES.

       (a) Right of Action.--Section 1605 of title 28, United 
     States Code, is amended--
       (1) in subsection (f), in the first sentence, by inserting 
     ``or (h)'' after ``subsection (a)(7)''; and
       (2) by adding at the end the following:
       ``(h) Certain Actions Against Foreign States or Officials, 
     Employees, or Agents of Foreign States.--
       ``(1) Cause of action.--
       ``(A) Cause of action.--A foreign state designated as a 
     state sponsor of terrorism under section 6(j) of the Export 
     Administration Act of 1979 (50 U.S.C. App. 2405(j)) or 
     section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 
     2371), or an official, employee, or agent of such a foreign 
     state, shall be liable to a national of the United States (as 
     that term is defined in section 101(a)(22) of the Immigration 
     and Nationality Act (8 U.S.C. 1101(a)(22)) or the national's 
     legal representative for personal injury or death caused by 
     an act of that foreign state, or by that official, employee, 
     or agent while acting within the scope of his or her office, 
     employment, or agency, for which the courts of the United 
     States may maintain jurisdiction under subsection (a)(7) for 
     money damages. The removal of a foreign state from 
     designation as a state sponsor of terrorism under section 
     6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 
     2405(j)), section 620A of the Foreign Assistance Act of 1961 
     (22 U.S.C. 2371), or other provision of law shall not 
     terminate a cause of action arising under this subparagraph 
     during the period of such designation.
       ``(B) Discovery.--The provisions of subsection (g) apply to 
     actions brought under subparagraph (A).
       ``(C) Nationality of claimant.--No action shall be 
     maintained under subparagraph (A) arising from an act of a 
     foreign state or an official, employee, or agent of a foreign 
     state if neither the claimant nor the victim was a national 
     of the United States (as that term is defined in section 
     101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 
     1101(a)(22)) when such acts occurred.
       ``(2) Damages.--In an action brought under paragraph (1) 
     against a foreign state or an official, employee, or agent of 
     a foreign state, the foreign state, official, employee, or 
     agent, as the case may be, may be held liable for money 
     damages in such action, which may include economic damages, 
     damages for pain and suffering, or, notwithstanding section 
     1606, punitive damages. In all actions brought under 
     paragraph (1), a foreign state shall be vicariously liable 
     for the actions of its officials, employees, or agents.
       ``(3) Appeals.--An appeal in the courts of the United 
     States in an action brought under paragraph (1) may be made--
       ``(A) only from a final decision under section 1291 of this 
     title, and then only if filed with the clerk of the district 
     court within 30 days after the entry of such final decision; 
     and
       ``(B) in the case of an appeal from an order denying the 
     immunity of a foreign state, a political subdivision thereof, 
     or an agency of instrumentality of a foreign state, only if 
     filed under section 1292 of this title.''.
       (b) Conforming Amendment.--Section 589 of the Foreign 
     Operations, Export Financing, and Related Programs 
     Appropriations Act, 1997, as contained in section 101(a) of 
     Division A of Public Law 104-208 (110 Stat. 3009-172; 28 
     U.S.C. 1605 note), is repealed.

     SEC. 2. PROPERTY SUBJECT TO ATTACHMENT EXECUTION.

       Section 1610 of title 28, United States Code, is amended by 
     adding at the end the following:
       ``(g) Property Interests in Certain Actions.--
       ``(1) In general.--A property interest of a foreign state, 
     or agency or instrumentality of a foreign state, against 
     which a judgment is entered under subsection (a)(7) or (h) of 
     section 1605, including a property interest that is a 
     separate juridical entity, is subject to execution upon that 
     judgment as provided in this section, regardless of--
       ``(A) the level of economic control over the property 
     interest by the government of the foreign state;
       ``(B) whether the profits of the property interest go to 
     that government;
       ``(C) the degree to which officials of that government 
     manage the property interest or otherwise control its daily 
     affairs;
       ``(D) whether that government is the real beneficiary of 
     the conduct of the property interest; or
       ``(E) whether establishing the property interest as a 
     separate entity would entitle the foreign state to benefits 
     in United States courts while avoiding its obligations.
       ``(2) United states sovereign immunity inapplicable.--Any 
     property interest of a foreign state, or agency or 
     instrumentality of a foreign state, to which paragraph (1) 
     applies shall not be immune from execution upon a judgment 
     entered under subsection (a)(7) or (h) of section 1605 
     because the property interest is regulated by the United 
     States Government by reason of action taken against that 
     foreign state under the Trading With the Enemy Act or the 
     International Emergency Economic Powers Act.''.

     SEC. 3. APPOINTMENT OF SPECIAL MASTERS.

       (a) Victims of Crime Act.--Section 1404C(a)(3) of the 
     Victims of Crime Act of 1984 (42 U.S.C. 10603c(a)(3)) is 
     amended by striking ``December 21, 1988, with respect to 
     which an investigation or'' and inserting ``October 23, 1983, 
     with respect to which an investigation or a civil or 
     criminal''.
       (b) Justice for Marines.--The Attorney General shall 
     transfer, from funds available for the program under sections 
     1404C of the Victims of Crime Act of 1984 (42 U.S.C. 10603c), 
     to the Administrator of the United States District Court for 
     the District of Columbia such funds as may be required to 
     carry out the orders of United States District Judge Royce C. 
     Lamberth appointing Special Masters in the matter of 
     Peterson, et al. v. The Islamic Republic of Iran, Case No. 
     01CV02094 (RCL).

     SEC. 4. LIS PENDENS.

       (a) Liens.--In every action filed in a United States 
     district court in which jurisdiction is alleged under 
     subsection (a)(7) or (h) of section 1605 of title 28, United 
     States Code, the filing of a notice of pending action 
     pursuant to such subsection, to which is attached a copy of 
     the complaint filed in the action, shall have the effect of 
     establishing a lien of lis pendens upon any real property or 
     tangible personal property located within that judicial 
     district that is titled in the name of any defendant, or 
     titled in the name of any entity controlled by any such 
     defendant if such notice contains a statement listing those 
     controlled entities. A notice of pending action pursuant to 
     subsection (a)(7) or (h) of section 1605 of title 28, United 
     States Code, shall be filed by the clerk of the district 
     court in the same manner as any pending action and shall be 
     indexed by listing as defendants all named defendants and all 
     entities listed as controlled by any defendant.
       (b) Enforcement.--Liens established by reason of subsection 
     (a) shall be enforceable as provided in chapter 111 of title 
     28, United States Code.

     SEC. 5. APPLICABILITY.

       (a) In General.--The amendments made by this Act apply to 
     any claim for which a foreign state is not immune under 
     subsection (a)(7) or (h) of section 1605 of title 28, United 
     States Code, arising before, on, or after the date of the 
     enactment of this Act.
       (b) Prior Causes of Action.--In the case of any action 
     that--
       (1) was brought in a timely manner but was dismissed before 
     the enactment of this Act for failure to state of cause of 
     action, and
       (2) would be cognizable by reason of the amendments made by 
     this Act, the 10-year limitation period provided under 
     section 1605(f) of title 28, United States Code, shall be 
     tolled during the period beginning on the date on which the 
     action was first brought and ending 60 days after the date of 
     the enactment of this Act.
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