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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 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

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 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

TED DEUTCH, Florida 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

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 

(1) 

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 Senatepassed 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 at-
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tack on U.S. soil will not be immune from the jurisdiction of our 

court. 

Second, JASTA amends the Antiterrorism Act to clarify that 

those who aid, abet, or conspire with a foreign terrorist organization are subject to civil liability. There is currently a split in the 

Federal Courts of Appeal on the question of whether the 

Antiterrorism Act permits lawsuits based on aiding and abetting 

terrorists. 

JASTA provides that if a person aids and abets a State Department-designated foreign terrorist organization by knowingly providing that organization with substantial assistance, that person 

will be subjected to civil liability. 

By making these two changes to existing law, JASTA seeks to 

ensure that those, including foreign governments, who sponsor terrorist attacks on U.S. soil are held fully accountable for their actions. In addition, JASTA attempts to enhance the effectiveness of 

U.S. efforts at combatting terrorism and combatting terrorist financing by making those who provide financial support to foreign 

terrorist organizations liable for their conduct. 

JASTA would appear to be consistent with existing U.S. principles of foreign sovereign immunity, which permits lawsuits 

against foreign governments in U.S. court cases in the following instances—in which a foreign government has waived its immunity, 

that are based on a commercial activity carried out in the United 

States or which causes a direct effect in the United States, or in 

which the rights and property taken in violation of international 

laws are at issue, or in which money damages are sought against 

a foreign state for personal injury or death, or damage or loss of 

property occurring in the United States, and finally that are 

brought against designated state sponsors of terrorism. 

Despite the numerous, longstanding exceptions to foreign sovereign immunity already provided under U.S. law, the State Department and others have expressed concerns with JASTA and its 

potential ramifications on U.S. foreign policy. Out of respect for 

those concerns, we have invited the State Department here to testify before the Committee, and we have also invited a second panel 

of witnesses to appear and provide additional perspective on the 

issues the State Department has raised with JASTA. 

I look forward to the witnesses’ testimony on this important subject, and I would now recognize the Ranking Member of the Subcommittee, Mr. Cohen, for his opening statement. 

[The bill, S. 2040, follows:] 
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Mr. COHEN. Thank you, Mr. Chair. I welcome today’s hearing on 

Senate Bill 2040, the ‘‘Justice Against Sponsors of Terrorism Act.’’ 

The specific text was passed by the Senate, unanimous consent, 

May 17, 2016, but it did not receive a hearing or other formal vetting, so it is good that in the House we have a hearing, which is 

somewhat unusual for us. 

S. 2040 would amend the Foreign Sovereign Immunities Act of 

1976 to allow suits against foreign states for physical entry resulting from the act of international terrorism in the United States, 

and a tortious act on the part of the foreign state or its official employee or agent acting within the scope of his or her employment, 

wherever that act occurs. 

The legislation also amends the Antiterrorism Act to explicitly 

provide for aiding and abetting liability. Finally, the bill contains 

a state provision allowing court to stay a case against a foreign 

state defender for up to 180 days; the possibility of an extension 

to go to a full year to allow the State Department to negotiate in 

good faith with the foreign state defendant to resolve the claims 

issued. 

We have two panels of distinguished witnesses before us today, 

two folks from, I believe, both the diplomatic corps and the Mr. 

Mukasey, an outstanding former United States attorney, and then 

a buddy of Bob Brady’s, which is almost equally in dignity to being 

a great former U.S. attorney. 

And I hope that we can use this opportunity to learn about the 

bill to understand the detail of the arguments in its favor and the 

other potential conflicts. This is a difficult bill. You want to get justice for the victims of 9/11, but you also want to protect our national security. 

The legislation arises from the litigation against various defendants concerning 9/11. Legislation is drafted in general terms. We 

consider it in that light as both the supporters and opponents seem 

to agree. 

I am for access to justice and always have been, and it is my inclination to support such measures, and it is also my inclination to 

support, in any way I can, the victims of the dastardly deeds of 9/ 

11. And it is particularly strong in that case, because that is something that we all experienced and should not get out of our psyches 

and our minds. 

The bill supporters argue that it is needed to update laws to address cases where foreign states facilitate terrorist strikes in the 

United States through financing and other kinds of material support for foreign terrorist organizations like Al-Qaeda. They also assert the bill would deter such conduct in the future, thereby enhancing counterterrorism efforts. 

They further contend that the Senate-passed language is narrow 

in scope, and the concerns about any reciprocal effects from enacting this legislation are exaggerated. The Obama administration, 

however, continues to raise concerns, even in the admitted form 

that we consider today, and I take that seriously as well. 

In addition to the reciprocity concern, the Administration contends enactment of Senate Bill 2040 could undermine 

counterterrorism efforts, raise serious foreign policy concerns, and 

lead to a reduction of foreign investment in the United States. 
13 

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. 
14 

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 
15 

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 alreadyexisting 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 
16 

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, 
17 

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 
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risks could ultimately have a chilling effect on our own 

counterterrorism efforts. 

Finally, I want to mention the possibility that JASTA may cause 

foreign governments to reconsider their investments here because 

they may have concerns that their money would be at risk of being 

attached in connection with a lawsuit. Before proceeding with this 

legislation, we believe there needs to be additional consideration of 

the potential unintended consequences of its enactment. 

We welcome opportunities to engage with the Subcommittee on 

that discussion. I also want to thank the Subcommittee for your ongoing support as we continue to advance our national security interests, and I look forward to answering your questions. 

[The prepared statement of Ms. Patterson follows:] 
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Mr. FRANKS. And I thank the gentlelady, and I will now recognize our second witness, Mr. Egan. Sir, if you will turn that microphone on before speaking, as well. 

TESTIMONY OF THE HONORABLE BRIAN EGAN, 

LEGAL ADVISER, U.S. DEPARTMENT OF STATE 

Mr. EGAN. Thank you, Chairman Franks, Ranking Member 

Cohen, and Members of the Subcommittee. I also appreciate the opportunity to appear before you with my colleague, Assistant Secretary Anne Patterson, to discuss the Justice Against Sponsors of 

Terrorism Act. 

At the outset, I would like to express my deep sympathy for the 

families whose loved ones perished in the attacks on September 

11th. I grew up in a community in New Jersey that was deeply affected by the World Trade Center attacks, and for much of my career in government at the Departments of State and Treasury, and 

at the National Security Council, I have worked on mechanisms 

that would enable our government to confront terrorism, including 

financial sanctions, and the use of military force where appropriate. 

I am going to focus my comments today on the importance of the 

concept of sovereign immunity to the United States, and our concern that passage of JASTA will lead to harmful, reciprocal—excuse me—legislation and lawsuits against the United States overseas. 

The principle of sovereign immunity, which restricts lawsuits 

against foreign governments, is well-accepted in international law, 

and was long recognized by U.S. courts as a matter of common law. 

The United States benefits greatly from the protection afforded by 

foreign sovereign immunity, and the Department of Justice regularly and vigorously defends our sovereign immunity overseas. 

Over the years, Congress and the executive branch have worked 

together to approach issues of foreign sovereign immunity and exceptions with great caution. The Foreign Sovereign Immunities 

Act, or FSIA, was enacted in 1976, following many years of study 

and consultation between Congress and the executive branch, academics, the American Bar Association, and private practitioners. 

The act focuses on the narrow instances in which a foreign 

state’s immunity is denied. For example, a foreign state’s commercial activities in the United States or having direct effects here. 

The narrow, noncommercial tort exception to immunity was 

aimed primarily at the problem of traffic accidents, and it provides 

jurisdiction for torts committed by foreign governments inside the 

United States that result in injuries here. 

Later enacted provisions relating to terrorism prudentially restrict the ability to sue foreign governments in U.S. courts for acts 

undertaken abroad to those states that have been designated by 

the executive branch as state sponsors of terrorism: currently Iran, 

Sudan, and Syria. 

JASTA would represent a significant departure from this carefully crafted framework. JASTA would strip any foreign government of its sovereign immunity, and expose the relevant country to 

lawsuits in U.S. courts based on allegations in the lawsuit that the 

country’s actions abroad made it responsible for an attack on U.S. 
24 

soil. As Ambassador Patterson noted, a number of U.S. partners 

and allies have raised concerns about the potential consequences of 

this change. 

The adoption of legislation like JASTA likely would have reciprocal consequences for the United States and increase our country’s 

vulnerability to lawsuits overseas. Reciprocity plays a substantial 

role in foreign relations. JASTA could encourage foreign courts to 

exercise jurisdiction over the United States or U.S. officials for allegedly causing injuries overseas through groups we support as 

part of our counterterrorism efforts, circumstances in which we 

properly would consider ourselves to be immune. 

Notwithstanding the care with which the United States operates 

to ensure that its actions overseas are appropriately calibrated, exposing U.S. national security-related conduct and decision-making 

to scrutiny in foreign courts would present significant concerns. 

Such litigation would have the potential for intrusive requests for 

sensitive U.S. documents and witnesses that we would not be willing to provide. There is a risk of sizeable monetary damages 

awards in such cases, which could then lead to efforts to attach 

U.S. government property in far-flung places. 

Given the broad range of U.S. activities and presence around the 

world, the United States is a much larger target for such litigation 

than any other country. We stand ready to work with this Subcommittee and other Members of Congress to consider these important issues further, and I look forward to taking your questions. 

Thank you. 

[The prepared statement of Mr. Egan follows:] 
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Mr. FRANKS. Well, I thank you both for your testimony. We will 

now proceed under the 5 minute rule with questions, and I will 

begin by recognizing myself for 5 minutes. 

Ambassador, I will begin with you. In my opening statement, I 

mentioned several of the nine exceptions to foreign sovereign immunity that are provided for in the Foreign Sovereign Immunities 

Act, including the exception for lawsuits against a foreign state for 

personal injury or death occurring in the United States. From a 

foreign policy perspective, what is the difference between the already existing exceptions, especially the tort exception, and the 

new exceptions proposed by JASTA? 

And Mr. Egan, if you will prepare, I would like to ask you the 

same question afterwards. Ambassador? You are going to defer to 

him? All right. 

Mr. EGAN. Mr. Chairman, thanks for that question. I think that 

the primary difference between the existing exception that you referenced and the change that JASTA would make would be twofold. 

One would be under the tort exception now. The activity that 

caused the tort in the United States would have to take place within the United States itself. 

And as I mentioned in my testimony, I think this exception was 

originally created by Congress to address torts that occur, such as 

traffic accidents, here in the United States. 

The change here would be subjecting decisions that may take 

place overseas and actions overseas in a way that they are not currently covered by current law, and that is the nature—the focus of 

our concern is on that change. 

Mr. FRANKS. Well, let me just follow up on that. I would like to 

ask you a question that was posed to me by the family of a victim 

of the September 11th terrorist attack. And essentially if a foreign 

state, such as Saudi Arabia, knowingly plays a substantial role in 

a terrorist attack on U.S. soil, do the victims of such an attack not 

deserve to be able to bring a lawsuit against that foreign state in 

U.S. courts? 

I mean, why would the victims of a terrorist attack on U.S. soil 

be given less access to justice for their claims than is granted, for 

example—under the example that you used, sir, to the victims of 

a car wreck caused by a foreign government, for which the foreign 

state may be held accountable under the FSIA’s tort exception? 

Mr. EGAN. Mr. Chairman, first of all, I do not pretend to stand 

in the shoes of the 9/11 families, and I understand the need to do 

everything we can for those families. I think our concern is really 

the breadth that this expansion of the exception could cause. By 

subjecting decision making and other operations overseas to our 

courts, we would be inviting other countries to do the same. We 

know that other countries follow what we do under the FSIA and 

with respect to sovereign immunity with great interest, and our 

concern is that that sort of change could lead to reciprocal actions 

that would affect our own operations and decision making. 

Mr. FRANKS. Reciprocal actions are your primary fear? 

Mr. EGAN. I will let Ambassador Patterson speak to the foreign 

policy and national security concerns we have from our partners. 

And I am happy to say more about the reciprocal concerns that we 

have. 
28 

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—— 
29 

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 
30 

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? 
31 

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 
32 

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 milliondollar 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., pri-
33 

marily, 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 factdriven, 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 
34 

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 
35 

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 
36 

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:] 
37 
38 
39 
40 
41 
42 
43 

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 
44 

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. 
45 

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:] 
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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 
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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:] 
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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. 
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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. 
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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:] 
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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. 
87 

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—— 
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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 
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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 
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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. 
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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 
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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 
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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 liti-
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gation 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.] 

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