[Congressional Record Volume 155, Number 200 (Wednesday, December 23, 2009)]
[Senate]
[Pages S13885-S13886]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (for himself, Mr. Schumer, and Mr. Graham):
  S. 2930. A bill to deter terrorism, provide justice for victims, and 
for other purposes; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, l have sought recognition to urge support 
for the legislation I have just introduced, the Justice Against 
Sponsors of Terrorism Act. The legislation would amend the Foreign 
Sovereign Immunities Act, FSIA, and the Anti-Terrorism Act, ATA, to 
ensure that foreign sponsors of terrorism are held accountable to their 
American victims in our courts. These amendments are necessary because 
some lower-court decisions have deprived victims of terrorism, 
including most recently 9/11's victims, of the legal remedies Congress 
intended to confer on them when it enacted the FSIA and ATA, and 
thereby removed a critical deterrent to the financing and sponsorship 
of terrorism. Congressional inaction would leave the victims of 9/11 
without recourse against the sponsors of al-Qaeda and, more importantly 
perhaps, render the FSIA and the ATA ineffective deterrents to future 
terrorist attacks.
  Recent news reports serve as a reminder that al-Qaeda and other 
foreign terrorist organizations remain dedicated to their declared goal 
of carrying out large-scale terrorist attacks within the U.S. In our 
continuous efforts to prevent such attacks, we have appropriately 
focused our attention on stemming the flow of money to terrorists 
through deterrence. As the Treasury Department's Undersecretary for 
Terrorism and Financial Intelligence has observed, ``the terrorist 
operative who is willing to strap on a suicide belt is not susceptible 
to deterrence, but the individual donor who wants to support violent 
jihad may well be,'' Testimony of Stuart Levey, Under Secretary for 
Terrorism and Financial Intelligence, before the Senate Committee on 
Finance, April 1, 2008. Holding them liable for civil damages in courts 
may be the most effective--and, given the absence of effective criminal 
sanctions, often only--way to deter them from sponsoring terrorist 
attacks. ``Suits against financiers of terrorism can,'' as renowned 
federal judge Richard Posner recently emphasized, ``cut the terrorist's 
lifeline.'' Boim v. Holy Land Foundation for Relief and Development, 
549 F. 3d 685 (7th Cir. 2008).

  As carefully written by Congress, the FSIA abrogates the sovereign 
immunity of foreign countries and permits suit against them in Federal 
court when, among other things, a foreign country commits terrorists 
acts or other tortious conduct that results in injury on our soil. The 
ATA authorizes suit in Federal court by any U.S. national injured ``by 
reason of an act of international terrorism'' and permits the recovery 
of ``threefold the damages he or she sustains'', that is, treble 
damages, as well the costs of suit and attorneys' fees. ``18 U.S.C. 
Sec. 2333(a).
  But a number of lower Federal courts have frustrated Congress's 
intent by erecting unfounded jurisdictional barriers to suit. No such 
decision is more significant in its effect than the Court of Appeals 
for the Second Circuit's In re Terrorist Attacks on September 11, 2001, 
538 F. 3d 71 (2d Cir. 2009). That decision arose from litigation 
brought by the victims of the 9/11 attacks, including family members of 
the nearly 3,000 innocent people killed and commercial entities that 
suffered in excess of $10 billion in damage to their property. The 
plaintiffs sought damages against, among other defendants, the Kingdom 
of Saudi Arabia, several Saudi officials, and a purported charity under 
the control of the Kingdom known as the Saudi High Commission for 
Relief of Bosnia and Herzegovina. Substantial evidence establishes that 
these defendants had provided funding and sponsorship to al-Qaeda 
without which it could not have carried out the 9/11 attacks. Even the 
Second Circuit acknowledged that plaintiffs had offered a ``wealth of 
detail, conscientiously cited to published and unpublished sources,'' 
as to the defendants' sponsorship of al-Qaeda.
  None of the plaintiffs had their day in court, however, for the 
Second Circuit ruled that the Federal courts have no jurisdiction over 
the principal defendants. As for Saudi Arabia and its official state 
agencies, the Second Circuit held that they were not subject to suit 
under the FSIA's tort exception because, having not been designated by 
the United States as a state sponsor of terrorism, Saudi Arabia was not 
covered by a separate FSIA exception for suits against designated state 
sponsors of terrorism. Suits arising from terrorist activities, the 
court concluded, can only be brought under the FSIA's exception 
governing designated state sponsors of terrorism. As for the Saudi 
princes, the Second Circuit held that the courts lacked personal 
jurisdiction over them because, though they ``could and did foresee 
[that] the recipients of their donations would attack targets in the 
United States,'' they did not themselves ``direct'' any terrorist 
attacks or ``command'' any ``agent'' to ``commit them.''
  Both conclusions are wrong. The former is especially troubling 
because it establishes an immunity from suit under the FSIA that 
Congress did not intend. A foreign state is subject to suit for its 
terrorist activities under the FSIA's tort exception without regard to 
whether it is subject to suit under the separate exception for 
designated state sponsors of terrorism--that is, without regard to 
whether the

[[Page S13886]]

United States has designated it as a state sponsor of terrorism. The 
Second Circuit effectively read into the tort exception an exception 
for terrorist-related torts. Even the Solicitor General, who has 
adopted an unduly restrictive interpretation of the FSIA's exceptions, 
concluded that the Second Circuit misread the statute on this critical 
point.
  The Second Circuit's and other lower courts' decisions on these 
seemingly technical jurisdictional points not only deprive the victims 
of terrorism the compensation to which they are entitled but also 
remove a powerful weapon in our arsenal against foreign terrorism. We 
can no longer wait for the Supreme Court to correct these errant 
decisions. The Court's refusal earlier this year to hear the 
plaintiffs' appeal of the Second Circuit's decision in In re Terrorist 
Attacks, despite the importance of the case and the conflicts among the 
lower courts on the key issues it presents, suggests that the Court may 
well never do so.
  That is why I have introduced the Justice Against Sponsors of 
Terrorism Act. The act is main provisions would amend FSIA to make 
clear that, as Congress originally intended, a foreign state may be 
sued under the torts exception if it sponsors terrorists who commit 
terrorist attacks on our soil, without regard to whether it is a state-
designated sponsor of terrorism, and amend the ATA to ensure that its 
anti-terrorism provisions, like FSIA's, are given the meaning Congress 
intended. I urge my colleagues to support these modest, but critical, 
amendments.

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