[Congressional Record Volume 162, Number 171 (Wednesday, November 30, 2016)]
[Pages S6611-S6613]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  Mr. GRAHAM. Mr. President, I would like to address the body for just 
a moment. Senator McCain is on his way. We are talking about a problem 
we are trying to solve that is an important problem for our Nation as a 
whole and I think eventually for all of those who serve our Nation 
  Recently, we passed a bill 99 to 1--I cannot remember the number--
that would allow victims of the 9/11 attack to bring a lawsuit under a 
claims act basically against a foreign entity, a government, for any 
complicity they may have had in the 9/11 attack.
  I just want people to understand that basically here is the deal: 
Sovereign immunity exists for us. It exists for sovereign governments, 
but it is waived. If you get hurt by a Federal Government employee, 
even though sovereign immunity is available to the U.S. Government, we 
have a Federal Tort Claims Act, and you can bring a claim if somebody--
if a postal truck hits you, you can bring a claim under the Federal 
Tort Claims Act. We waive sovereign immunity in limited circumstances. 
The same is true if you are in New York or Washington and someone 
driving a car, working for a

[[Page S6612]]

foreign government, hits you. You can actually bring a lawsuit. If 
there is a tort committed against you or your family by a foreign 
entity, just as long as the people are within the scope of their 
employment, you can sue.
  What about terrorism? We are not talking about car wrecks. We are not 
talking about slip-and-falls. We are talking about something that 
nobody really thought of when they created the exception to foreign 
immunity; that is, an act of terror.
  So here is where Senator McCain and I come out. We want 9/11 families 
and other people who may be victims of state-sponsored terrorism to 
have the ability to take the perpetrator to court. What we don't want 
is our government or any other government sued for a discretionary 
planning function, an exercise of sovereignty in the normal course of 
  Let me tell you why this is important. We are using drones all over 
the world to go after terrorists. We went inside Pakistan to kill bin 
Laden. Sometimes these drone attacks are designed to kill terrorists 
and unfortunately civilians are injured and sometimes killed. The 
United States is not intentionally trying to kill these civilians. We 
are not joining with a terrorist organization to kill innocent people. 
We are actually exercising national security discretion. You don't want 
countries that are involved in making political decisions to defend 
themselves to be exposed in court.
  So what we have done to amend the law that was passed overwhelmingly 
is to create a caveat to the law. You can sue a foreign state for 
tortious acts, but when it comes to terrorism, when a terrorist entity 
takes innocent lives, the only time you can sue that country is if the 
foreign state knowingly engaged in the financing or sponsorship of 
terrorism, whether directly or indirectly. Why is that important? That 
protects us as we go throughout the world trying to kill terrorists who 
are trying to kill us all, and sometimes we hit innocent people. It 
protects the United States in its efforts to defend itself in a very 
dangerous world. We don't want to be sued under those circumstances. We 
try to do right by innocent people, but we don't want to expose the 
Federal Government or its employees to being hauled into foreign courts 
or international tribunals to be accused of war crimes.
  So we are trying to work with Senator Schumer and Senator Cornyn, who 
deserve a lot of credit for trying to help the 9/11 families. Here is 
what we are asking: We are asking that we put a caveat to the law that 
just passed, saying that you can bring a lawsuit, but if you are suing 
based on a discretionary function of a government to form an alliance 
with somebody or to make a military decision or a political decision, 
the only time that government is liable is if they knowingly engage 
with a terrorist organization directly or indirectly, including 
financing. I am OK with that because our country is not going to fall 
in league with terrorists and finance them to hurt other people.
  If we don't make this change, here is what I fear: that other 
countries will pass laws like this. They will say that the United 
States is liable for engaging in drone attacks or other activity in the 
War on Terror and haul us into court as a nation and haul the people to 
whom we give the responsibility to defend the Nation into foreign 
  The fix is not the following: The statutes say that military members 
and CIA officers and other people cannot ever be sued or held liable. 
That won't work. I don't want any nation state, including ours, to be 
sued for a discretionary act unless that discretionary act encompasses 
knowingly engaging in the financing or sponsorship of terrorism, 
whether directly or indirectly.
  You can not fix this problem without making this change. Here is the 
problem: Every time a drone is launched, every time Americans go in 
harm's way, every time a diplomatic engages in activity abroad, we are 
subjecting them and our Nation to lawsuits, potential imprisonment. We 
need to fix this because if we don't fix this, it will come back to 
haunt us.
  So the right to sue exists, but when it comes to a discretionary act, 
such as launching a drone, the only way a country can be sued when 
terrorism is involved is if you can prove the country knowingly engaged 
in supporting that terrorist network directly or indirectly. That fixes 
the problem we face as a nation. That would send a signal to the world 
that we are not opening a Pandora's box. It would allow the 9/11 
families to move forward, but their burden would have to be that any 
government they sued knowingly engaged in activity with a terrorist who 
launched 9/11. I think this is the right compromise. If we don't change 
the law along the lines I have just indicated, we are going to create a 
new class of victims--those who serve on foreign shores under the 
banner of the United States--and that is not helping the 9/11 families.
  I hope that these negotiations will bear fruit and that we can get 
this fixed this year. If not, next year Senator McCain and I will 
introduce legislation along the lines I have described. We are not 
going to stop until we have this problem fixed because it is a real 
problem for people serving the United States in real time.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I ask unanimous consent to engage in a 
colloquy with the Senator from South Carolina.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. My friend is correct. He and I were both Members of this 
body the day the 9/11 attacks took place as we fled the Capitol and 
watched the Pentagon. Of course, none of us will ever forget the horror 
and terror of that day, nor will we ever stint in our commitment to 
making sure the families of those who sacrificed their lives and were 
wantonly murdered on that terrible day are adequately compensated in 
every possible way for the tragedy--and we can never fully repay them. 
But it is a reality. None of us will ever forget it. But that does not 
mean, that cannot mean that we would endorse legislation that would 
hold the government of a nation responsible for an act that was 
committed from that country.
  We know that today as we speak, in Iraq, in Mosul, there are weapons 
factories. There are chemical weapons factories designed to attack 
different places in the world.
  I would ask my friend, if there is an attack from Mosul and lives are 
lost, and of course the government of Iraq doesn't know anything about 
it, is the government of Iraq now liable, held responsible for the 
actions of terrorists within their country without them knowing that 
those activities are taking place?
  Unfortunately, there are terrorist organizations in many nations 
throughout the world, as Al Qaeda has metastasized and terrorism has 
spread throughout the regions. Acts of terror are committed and 
innocent people are killed every single day. Does that mean the 
governments of those countries are to be held responsible? Obviously, I 
think the answer is no.
  What we are doing with this well intentioned legislation, which all 
of us are supportive of--but what we do not intend and should not 
intend is to hold a foreign government responsible for actions that 
were taken by a terrorist or terrorist organizations. We know that some 
of those who committed the attacks of 9/11 were Saudi citizens, but 
that does not then necessarily mean the Saudi Government is responsible 
for the actions of terrorists. Unfortunately, this legislation does not 
define that. That is why it is so important.
  There are several aspects of this legislation that need to be fixed, 
but the most important aspect is the phrase that says that this nation 
has to ``knowingly'' assist a terrorist group. If you can prove that 
any government was behind a terrorist attack of the United States of 
America, that government, that nation, should be held responsible. 
Those who are injured or harmed should be compensated in every possible 
way, but to hold a nation's government responsible for acts of terror 
that were taken by individuals or organizations within that country, 
without them even knowing about it, then that opens a Pandora's box of 
incredible proportions.
  For example, is the Government of Saudi Arabia responsible for the 
acts that took place on 9/11? Is the government of other Middle Eastern 
citizens from other Middle Eastern nations? For example, are 
organizations that exist within--again, I use Iraq and

[[Page S6613]]

other countries where terrorist organizations exist, and there are 
many. Libya is another example.
  The Government of Libya is not responsible for acts of terror 
committed by terrorist organizations that exist and are functioning 
today within Libya.
  All the Senator from South Carolina and I are saying is, we do not in 
any way want to prevent the families, loved ones, and those who have 
suffered so much agony and pain over this horrendous and horrific 
attack that took place on 9/11--in fact, I am proud of our record of 
support of everything we could possibly do for those families, but we 
are going to invoke the law of unintended consequences.
  For example, if we are going to sue--if a nation that has significant 
investments in the United States of America, whether it be in the stock 
market or other investments, and that country knows it is going to be 
sued and possibly have its assets frozen, any thinking government is 
going to withdraw those assets so they cannot be frozen as the court 
proceedings go on. That is just a small example.
  The other example is our Middle Eastern friends doubt us. They doubt 
us because when the redline was crossed and we said we would act, we 
didn't. They doubt us when we see the rise of terrorist organizations, 
Al Qaeda, ISIS, and their spread. They doubt our commitment. If they 
believe that because of the actions of an organization or citizens from 
within their country they are going to be brought to court, prosecuted, 
sued for damages and held liable, obviously, I think their course of 
action would be to withdraw.
  We don't want our friends to withdraw from the United States of 
America nor do we want to see long, drawn-out legal cases which, 
frankly, don't benefit them nearly as much as the trial lawyers.
  The changes that Senator Graham and I are proposing are modest. 
Logically, I think you should not pursue or prosecute a government that 
did not knowingly--the word isn't ``abetted'' or ``orchestrated''--but 
knowingly stand by and assist a terrorist group. They shouldn't be 
dragged into our courts. If we don't fix it, our ability to defend 
ourselves would be undermined.
  I just wish to emphasize one point the Senator from South Carolina 
made. We have had drone strikes in many countries in the world. 
Pakistan is another example. All of us have supported the efforts, many 
of them successful, in destroying those leaders who were responsible 
for the deaths of American servicemen and servicewomen. It is a weapon 
in the war against terror, but sometimes, as in war, mistakes were made 
and innocent civilians were killed along with those terrorists. Does 
that mean the United States of America, the government, is now liable? 
I am afraid that some in the tort profession would view this as an 
opening to bring suits against the United States of America. In fact, 
we are already hearing that is being contemplated in some places.
  I hope Senator Schumer and Senator Cornyn will look at these concerns 
that we and our friends have, especially in the Middle East, and make 
these very modest modifications, which are modest in nature but of the 
most significant impact.
  Mr. GRAHAM. If I could add to what Senator McCain said, the language 
we are talking about putting back into the statute was originally 
there. Somebody took the discretionary function language out of the 
original bill. I guess a lot of them missed it. The more you think 
about what we are trying to do, we are trying to make sure foreign 
governments that intentionally engage in acts of terrorism are held 
liable at every level in the courts, the courts of public opinion, and 
could suffer reprisals from the United States.
  Let's go back to Libya, the Lockerbie bombing. It is clear to me, the 
Libyan Government orchestrated the downing of that aircraft. Over time, 
evidence was developed and lawsuits were brought. I think Qadhafi's 
people did that.
  Right now Libya is just a mess. Whatever government they have cannot 
be held responsible for what ISIL is doing in Libya, unless they 
knowingly engage in the financing and sponsorship of terrorism.
  Here is the point. We are supporting the YPG Kurds in Syria to help 
destroy ISIL. They are a Kurdish group who are sort of the ideological 
cousins to the PKK inside Turkey who are defined by Turkey and most 
everybody else as a terrorist organization. With some reservations, I 
support trying to get the YPG Kurds to help us destroy ISIL, but I 
don't want that help to expose us if, for some reason, unbeknownst to 
us, they fall in league with the PKK and attack somebody in Turkey.
  We didn't knowingly do that. We are trying to sign them up, a 
discretionary function, to get allies to go after ISIL. I don't want to 
be responsible for anything they may do in the future unless we were 
knowingly part of it.
  This is what I will tell Senators Schumer and Cornyn. I appreciate 
what you have done on behalf of 9/11 families. This was the original 
language that I think needs to be put in because here is where we stand 
right now. As a nation, we are opening ourselves to lawsuits all over 
the world. It will be not enough in this statute to exempt soldiers and 
CIA operatives because down the road another country may not do that. 
Once you expose yourself to liability, who can be sued is in the hands 
of another country.
  What I want to do is let the United States be clear in two areas. To 
any country that engages in acts of terror against us, we are coming 
after you--not just through the courts but hopefully militarily. To our 
allies and people around the world who are having to make hard 
decisions, such as Saudi Arabia and Yemen, trying to form alliances to 
deal with Houthis sponsored by Iran, we don't want to open Pandora's 
box, that when a country has to make alliances with people--such as we 
are doing with the Kurds--that we own everything they do. It has to be 
for a liability, to attach ``knowing.''
  In the case of 9/11, if the Saudi Arabian Government knowingly 
engaged in the financing or sponsorship of terrorism, whether directly 
or indirectly, they could be held liable under the law we just passed--
if you adopt our language. Without our language, there is no 
``knowing'' requirement. That is not fair to them, it is not smart for 
us, and we need to get this fixed while we still have time because as I 
speak, people are engaged in combat, diplomacy, and the dark art of 
espionage all over the world.
  If we don't fix this, we are going to create a new class of victims. 
We are going to put people at risk of being captured, killed, tortured, 
and imprisoned abroad. That doesn't help the 9/11 families.
  The war started there. It is still very much going on. As we try to 
make sure that we look backward to address the wrongs of the past and 
help the 9/11 families, which we should, we also owe it to those who 
are in the fight today not to unnecessarily expose them.
  If you want allies--which we desperately need--we need to think long 
and hard about the exposure they have here at home because we could be 
in the same boat over there.
  All we are saying to any ally of the United States is, you can't be 
sued in the United States for an act of terrorism unless you knowingly 
were involved, and the same applies to us in your country.
  Because it could be interpreted that someone from that country or 
someone in that country committed an act of terror, therefore, the 
government of that country is held responsible. That is not right. That 
is not what this should be all about. Certainly, there are a number of 
government sponsors of terrorism, but the people who are affected by--
the governments that are affected by this legislation are also not 
worthy, or not necessarily, and certainly they will react in a rather 
negative fashion. We will be opening a Pandora's box, which we will 
have to close with great difficulty and certainly with great regret.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mrs. FISCHER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.