[House Report 110-844]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-844
======================================================================
JUSTICE FOR VICTIMS OF TORTURE AND TERRORISM ACT
_______
September 15, 2008.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 5167]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 5167) to amend the National Defense Authorization Act for
Fiscal Year 2008 to remove the authority of the President to
waive certain provisions, having considered the same, reports
favorably thereon with amendments and recommends that the bill
as amended do pass.
CONTENTS
Page
The Amendments................................................... 1
Purpose and Summary.............................................. 5
Background and Need for the Legislation.......................... 5
Hearings......................................................... 9
Committee Consideration.......................................... 10
Committee Votes.................................................. 10
Committee Oversight Findings..................................... 10
New Budget Authority and Tax Expenditures........................ 10
Congressional Budget Office Cost Estimate........................ 10
Performance Goals and Objectives................................. 11
Constitutional Authority Statement............................... 11
Advisory on Earmarks............................................. 12
Section-by-Section Analysis...................................... 12
The Amendments
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Justice for Victims of Torture and
Terrorism Act''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) During the Gulf War against Iraq in 1991, Americans
serving in the United States Armed Forces were captured, became
Prisoners of War (POWs), and were subsequently tortured,
beaten, starved, hooked to electrical shock devices, and
subjected to other horrendous acts by Saddam Hussein's regime.
(2) CBS News reporter Bob Simon and cameraman Roberto Alvarez
were kidnapped while on assignment during the 1991 Gulf War and
were held and tortured, along with the American POWs.
(3) Following the Iraqi invasion of Kuwait in August 1990,
many United States citizens were detained by Iraq, beaten,
subjected to cruel, inhumane and degrading treatment, confined
under deplorable conditions, and used as ``human shields'' for
the avowed purpose of preventing the United States and its
coalition allies from using military force to liberate Kuwait.
(4) At the time these acts occurred, the Department of State
had classified Iraq as a state sponsor of terrorism.
(5) The brave American POWs and American civilian hostages
have suffered long-term physical, emotional, and mental damage
as a result of this brutal, state-sponsored torture and
terrorism.
(6) When the American POWs returned home after the Gulf War
ended, they were given a hero's welcome by then Secretary of
Defense Dick Cheney, who told them, ``Your country is opening
its arms to greet you''.
(7) During the Gulf War, the Congress unanimously passed
resolutions condemning the brutal treatment by the Government
of Iraq of captured United States service members, demanding
that the Government of Iraq abide by the Geneva Convention
regarding the treatment of prisoners of war, and stating an
intention to hold Iraq accountable for the torture of American
POWs.
(8) In 1996, Congress passed an amendment to the Foreign
Sovereign Immunities Act (FSIA) provisions of title 28, United
States Code, so that torture victims like the American POWs and
the American ``human shield'' victims from the Gulf War could
seek compensation for their injuries from terrorist countries,
including Iraq.
(9) On April 4, 2002, 17 Gulf War POWs and their families
filed claims in the United States District Court for the
District of Columbia seeking compensation for damages related
to their torture and abuse by the Government of Iraq. The POWs
included Colonel Clifford Acree, USMC (Ret.); Lieutenant
Colonel Craig Berryman, USMC (Ret.); Former Staff Sergeant Troy
Dunlap, US Army; Colonel David Eberly, USAF (Ret.); Lieutenant
Colonel Jeffrey D. Fox, USAF (Ret.); Chief Warrant Officer 5
Guy Hunter, USMC (Ret.); Sergeant David Lockett, US Army;
Colonel H. Michael Roberts, USAF; Colonel Russell Sanborn,
USMC; Captain Lawrence Randolph Slade, USN (Ret.); Major Joseph
Small, USMC (Ret.); Staff Sergeant Daniel Stamaris, US Army
(Ret.); Lieutenant Colonel Richard Dale Storr, Air National
Guard; Lieutenant Colonel Robert Sweet, USAF; Lieutenant
Colonel Jeffrey Tice, USAF (Ret.); Former Lieutenant Robert
Wetzel, USN; and Former Commander Jeffrey Zaun, USN.
(10) In 2003, after the Government of Iraq repeatedly refused
to participate in arbitration on the damage claims, and after
hearing evidence of how the former POWs had been repeatedly
tortured, a judge awarded them a judgment for damages, stating
that ``deterring torture of POWs should be of the highest
priority''.
(11) Despite this ruling, the POWs and their families have
not received payment, and are unable to further pursue their
claims in United States courts because of the waiver that was
granted for Iraq by the President under authority established
in the National Defense Authorization Act for Fiscal Year 2008.
(12) In December 2001, after conducting an evidentiary
hearing, the United States district court held, in Hill v.
Republic of Iraq, that Iraq was liable for having taken United
States citizens hostage following the Iraqi invasion of Kuwait
and subsequently awarded 180 of those former hostages and their
spouses a judgment for damages.
(13) On March 20, 2003, on the eve of Operation Iraqi
Freedom, the President of the United States directed that all
of the judgments that had been awarded in Hill v. Republic of
Iraq be paid from moneys held in blocked Iraqi accounts.
(14) On that same date, the President issued an Executive
order confiscating all remaining blocked assets of Iraq and
ordering them to be deposited into the United States Treasury
to be used for Iraq reconstruction.
(15) The claims of more than 200 United States citizens who,
at the same time and in the same manner as the Hill plaintiffs,
were held hostage in territory occupied by Iraq are currently
pending in a United States district court in the case of Vine
v. Republic of Iraq.
(16) The plaintiffs in Vine v. Republic of Iraq have not been
compensated and are unable to enforce any judgment they may
obtain in United States courts because of the waiver that was
granted for Iraq by the President under authority established
in the National Defense Authorization Act for Fiscal Year 2008.
(17) Article 131 of the Third Geneva Convention relative to
the Treatment of Prisoners of War (August 12, 1949) prohibits
the United States as a party to that treaty from absolving the
Government of Iraq of any liability incurred due to the torture
of prisoners of war, such as the American POWs referred to in
this section.
(18) The United States has a moral obligation to protect its
past, present, and future members of its Armed Forces, and all
United States citizens, from torture and hostage-taking, and
the Congress is committed to holding state sponsors of
terrorism accountable for such horrendous acts.
SEC. 3. RESOLUTION OF CERTAIN CLAIMS AGAINST IRAQ.
(a) Resolution by Iraq of Certain Claims.--
(1) In general.--Unless the President, before the end of the
90-day period beginning on the date described in paragraph
(2)(A), certifies to the Congress that the Government of Iraq
has adequately settled the claims in the cases referred to in
subsection (b), then, upon the expiration of that 90-day
period, the waiver authority granted to the President in
section 1083(d) of the National Defense Authorization Act for
Fiscal Year 2008 (Public Law 110-181; 122 Stat. 343), and any
waiver granted before the end of that 90-day period under such
authority, shall terminate.
(2) Date described.--
(A) In general.--The date described in this paragraph
is--
(i) 30 days after the date of the enactment
of this Act, unless the President has certified
to the Congress, before the end of that 30-day
period, that--
(I) the Government of Iraq has not,
before, on, or after the enactment of
this Act, compensated any foreign
persons or entities for claims or
liabilities incurred by or under the
control of the Saddam Hussein regime,
including, but not limited to,
commercial or financial claims, and
claims for acts against individuals
similar to those described in section
1605A(a)(1) of title 28, United States
Code; or
(II) negotiations are ongoing with
the Government of Iraq to settle the
claims in the cases referred to in
subsection (b), and the President
believes that those negotiations are
being conducted in good faith and could
lead to a satisfactory settlement of
those claims; or
(ii) if a certification is made under clause
(i), the day after the date on which that
certification terminates or, if a subsequent
certification is in effect under subparagraph
(B), the day after the date on which the last
such certification terminates.
(B) Duration of certifications.--A certification
under subclause (I) or (II) of subparagraph (A)(i)
terminates 180 days after it is made. The President may
make subsequent certifications under subclause (I) or
(II) of subparagraph (A)(i) for periods of not more
than 180 days each.
(b) Cases.--The cases referred to in subsection (a)(1) are cases
numbered 99:00CV03346 (TPJ), 1:01CV02674 (HHK), CIV.A. 02-632 (RWR)
(July 7, 2003), 1:03CV00691 (HHK), and 1:03CV00888 (HHK), in the United
States District Court for the District of Columbia.
(c) Adequate Settlement.--For purposes of subsection (a)(1), adequate
settlement means payment by the Government of Iraq of, or an
unqualified and unconditional guarantee made by a United States
depository institution to pay within 30 days after the end of the 90-
day period described in subsection (a)(1), at least the following
amounts to the following persons:
(1) To any person--
(A) whose claim in the applicable case referred to in
subsection (b) arose from an act of hostage taking or
from being held in hostage status, and
(B) who has not obtained a judgment on the claim
before the date of the enactment of this Act,
$150,000, plus $6,000 for each day the person was held as a
hostage, but in no event more than $900,000.
(2) To any person--
(A) whose claim in the applicable case referred to in
subsection (b) arose from an act of hostage taking or
from being held in hostage status,
(B) who, while a hostage, was subjected to torture,
and
(C) who has not obtained a judgment on the claim
before the date of the enactment of this Act,
$2,500,000, plus $6,000 for each day the person was held as a
hostage.
(3) To a plaintiff in the applicable case referred to in
subsection (b) who is the spouse or child of any person who
qualifies for receipt of payment under paragraph (1) or (2),
one third of the amount that such person qualifies for receipt
under such paragraph.
(4) To any person who, before the date of the enactment of
this Act, obtained a judgment for compensatory damages in a
case referred to in subsection (b) (regardless of whether such
judgment was subsequently vacated)--
(A) payment of the unsatisfied amount of such
judgment, in an amount that is the lesser of $1,000,000
or the unsatisfied amount of the award; and
(B) if the amount of the judgment exceeds $1,000,000,
one third of the unsatisfied amount of such excess.
(d) Additional Condition in Case of Guarantee of Payment.--If the
claims in the cases referred to in subsection (b) are adequately
settled for purposes of subsection (a)(1) because of a guarantee of
payment by a depository institution within the 30-day period specified
in subsection (c), and such payment is not made within that 30-day
period, then upon the expiration of that 30-day period, the waiver
authority described in subsection (a)(1), and any waiver granted before
the end of that 30-day period under such authority, shall terminate.
(e) Definitions.--In this section:
(1) Foreign person or entity.--The term ``foreign person or
entity'' means--
(A) an individual other than a national of the United
States; and
(B) a person or entity, other than an individual,
that is organized under the laws of a country other
than the United States.
(2) Hostage.--The term ``hostage'' means an individual in
hostage status or an individual seized or detained in the
commission of an act of hostage taking.
(3) Hostage status.--The term ``hostage status'' has the
meaning given that term in section 599C(d)(1) of the Foreign
Operations, Export Financing, and Related Programs
Appropriations Act, 1991 (Public Law 101-513).
(4) Hostage taking.--The term ``hostage taking'' has the
meaning given that term in section 1605A(h)(2) of title 28,
United States Code.
(5) National of the united states.--The term ``national of
the United States'' has the meaning given that term in section
1605A(h)(5) of title 28, United States Code.
(6) Torture.--The term ``torture'' has the meaning given that
term in section 3 of the Torture Victim Protection Act of 1991
(28 U.S.C. 1350 note).
(7) United states.--The term ``United States'' means the
several States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.
(8) United states depository institution.--The term ``United
States depository institution'' means a depository institution
organized under the laws of any State, the District of
Columbia, or the United States, including a branch or agency of
a foreign depository institution.
SEC. 4. LIMITATION ON CERTAIN CLAIMS.
No funds of the United States Government may be used to pay any
claim--
(1) that is cognizable under section 1605A of title 28,
United States Code, as added by section 1083 of the National
Defense Authorization Act for Fiscal Year 2008, for money
damages against Iraq for personal injury or death that was
caused by acts committed by an official, officer, or employee
of the Iraqi Government under Saddam Hussein; and
(2) with respect to which the waiver authority under section
1083(d) of the National Defense Authorization Act for Fiscal
Year 2008 has been or may be exercised.
Amend the title so as to read:
A bill to terminate the authority of the President to
waive, with regard to Iraq, certain provisions under the
National Defense Authorization Act for Fiscal Year 2008 unless
certain conditions are met.
Purpose and Summary
H.R. 5167, the ``Justice for Victims of Torture and
Terrorism Act,'' would enable American POWs and civilians to
hold the Government of Iraq liable for the physical and
emotional injuries they sustained while held captive by Iraqi
officials during the Gulf War. Unlike previous legislative
proposals to compensate these victims, this bill would allow
them to recover only a portion of the judgments rendered or
claims made.
Background and Need for the Legislation
THE AMERICAN VICTIMS
This legislation addresses two groups of Americans who
suffered at the hands of the Government of Iraq during the 1991
Gulf War, when it was a designated foreign state sponsor of
terrorism.
The first is a group of 17 prisoners of war (POWs) who were
part of the international coalition led by the U.S. which
initiated military action against Iraq on January 16, 1991,
after Iraq attacked and occupied Kuwait. All but one of these
POWs were pilots in aircraft downed over Iraq or Kuwait.
Believing these POWs to be in possession of sensitive
military information, the Iraqi government targeted them for
particularly brutal treatment. They were beaten, threatened
with castration and dismemberment, subjected to mock
executions, and shocked with electrical devices. They were also
starved, denied sleep, and exposed to extreme temperatures.
They were denied medical care, intentionally further
aggravating serious physical injuries that included broken
bones, perforated eardrums, nerve damage, infections, nausea,
and severe weight loss. The POWs and 37 of their immediate
family members are plaintiffs in Acree v. Republic of Iraq.\1\
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\1\ Acree v. Republic of Iraq, 276 F. Supp. 2d 95 (D.D.C. 2003).
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The second group comprises 237 civilians who were working
in Iraq and Kuwait during the period leading up to the Gulf
War. Shortly after Iraqi armed forces invaded Kuwait on August
2, 1990, Saddam Hussein issued a directive prohibiting foreign
nationals from leaving the region. On August 19, 1990,
President George H.W. Bush declared all U.S. citizens in Kuwait
and Iraq to be hostages, held by Saddam as ``human shields'' to
make it more difficult for the U.S. and its allies to push back
Iraq and liberate Kuwait.
These hostages were held in ``harsh, cruel, degrading, and
often terrorizing'' conditions.\2\ They ``lived in constant
fear for their lives and suffered from fatigue, depression,
severe anxiety and stress.'' \3\ Some were also subjected to
more severe forms of physical torture. They were eventually
released by Hussein in December 1990. They are plaintiffs in
Vine v. Republic of Iraq \4\ and Hill v. Republic of Iraq.\5\
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\2\ Vine v. Republic of Iraq, 459 F. Supp. 2d 10 (2006).
\3\ Id.
\4\ Id.
\5\ Hill v. Republic of Iraq, 2003 U.S. Dist. LEXIS 3725 (D.D.C.
2003).
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THE FOREIGN SOVEREIGN IMMUNITIES ACT
Under international law, sovereign nations have generally
been immune from liability in the courts of other nations, in
recognition of the independence of each nation. As the level of
international interactions has increased, the principle of
absolute sovereign immunity has been gradually modified. This
evolving principle is reflected in the Foreign Sovereign
Immunities Act of 1978 (``FSIA''), P.L. 94-538, which provides
that a foreign state is immune from the jurisdiction of U.S.
courts, with specified exceptions.
The Anti-Terrorism and Effective Death Penalty Act of 1996
added an exception to allow U.S. victims of a terrorist act
such as torture, extrajudicial killing, or hostage taking to
bring civil suit against a foreign state responsible for the
act, if the foreign state is designated as a state sponsor of
terrorism by the State Department at the time the act occurred,
or is later so designated because of the act.\6\ It also
allowed the commercial property of a foreign state in the U.S.
to be attached in satisfaction of a judgment, regardless of
whether the property was involved in the act on which the claim
was based.\7\
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\6\ P.L. 104-132, Title II, Sec. 221 (April 23, 1996); 110 Stat.
1241; 28 U.S.C. Sec. 1605(a)(7).
\7\ 28 U.S. C. 1610(b)(2).
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In 1998, after a court held that the exception to sovereign
immunity did not in and of itself create a private right of
action,\8\ Congress passed the ``Flatow Amendment'' to clarify
that a cause of action existed against the officials,
employees, and agents of foreign states who commit the
terrorist act ``while acting within the scope of'' their
employment if a U.S. government official would be liable for
similar actions.\9\ Section 201 of the Terrorism Risk Insurance
Act, enacted in 2002,\10\ reaffirmed that, and broadened the
circumstances under which, frozen assets of terrorist states
are available to judgment holders for compensatory damages.
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\8\ Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C.
1998).
\9\ P.L. 104-208, Title I, Sec. 101(c) (Sept. 30, 1996), 110 Stat.
3009-172; codified at 28 U.S.C. Sec. 1605 note.
\10\ P.L. 107-297 (November 26, 2002), 116 Stat. 2322.
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Courts initially interpreted the Flatow Amendment as
creating a cause of action against a foreign state, as well as
against its agencies and instrumentalities, despite the fact
that the statute referred only to officials, employees, and
agents of foreign states. In 2004, however, the D.C. Circuit
held that neither the terrorism exception to FSIA nor the
Flatow Amendment created a private right of action against the
foreign state or its agencies and instrumentalities.
In response, victims have turned to U.S. State laws,
obtaining judgments totaling almost $18 billion in damages,
most of them against Iraq. Victims have had difficulty
enforcing these judgments, however, due to the scarcity of
assets in the U.S. belonging to the foreign state defendants,
and by Executive Branch actions immunizing these assets from
attachment.
While Congress has supported giving terrorism victims the
right to obtain relief and to enforce judgments, the Executive
Branch has been less supportive. Both the Clinton and Bush
Administrations have opposed allowing the use of frozen assets
of foreign states to satisfy judgments, variously citing treaty
obligations to protect foreign diplomatic and consular
properties, a desire to maintain the frozen assets for
diplomatic leverage, and the fear that allowing the attachment
of frozen assets would subject U.S. assets in foreign states to
similar treatment.
ACTIONS BY PRESIDENT BUSH IN 2003 TO EXEMPT IRAQ FROM JUDGMENTS
In conjunction with the 2003 war against Iraq, President
Bush took a series of actions that, in combination, had the
effect of making Iraq's assets in the U.S. unavailable to
terrorism victims who, after March 20, 2003, obtained
terrorism-related judgments against Iraq.
On March 20, 2003, as the war began, President Bush issued
an executive order placing those assets--then totaling
approximately $1.73 billion--which had previously been frozen,
into a dedicated Development Fund for Iraq, to be used in the
post-war reconstruction of Iraq.\11\
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\11\ E.O. 13290, 68 Fed. Reg. 14,305-08 (March 24, 2003). Assets
that had previously been ordered attached in satisfaction of judgments
against Iraq were excluded from the Executive Order, as was Iraq's
diplomatic and consular property.
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Six weeks later, on May 7, he declared, based on general
authority Congress had recently granted him to exempt Iraq from
laws governing terrorist-supporting states,\12\ that neither
the terrorism exception to FSIA nor section 201 of the
Terrorism Risk Insurance Act would apply to Iraq.\13\
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\12\ Emergency Wartime Supplemental Appropriations Act for FY2003,
P.L. 108-11, Sec. 1503 (April 16, 2003).
\13\ Memorandum for the Secretary of State (Presidential
Determination No. 2003-23) (May 7, 2003), 68 Fed. Reg. 26459 (May 7,
2003).
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Two weeks later, on May 22, he issued another executive
order, prohibiting attachment of any assets in the Development
Fund for Iraq.\14\
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\14\ E.O. 13303, 68 Fed. Reg. 31, 931 (May 28, 2003).
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EFFECT OF 2003 PRESIDENTIAL ACTIONS ON LAWSUITS AGAINST IRAQ
The POW and human shield victims have brought the following
Federal lawsuits:
Acree v. Republic of Iraq (POWs): The 17 Gulf War POWs--
many of whom had returned to active duty following their
release from captivity--and their immediate families filed suit
in April 2002. They obtained a default judgment in July 2003.
The district court awarded them and their families $653 million
in compensatory damages and $306 million in punitive damages.
The Department of Justice then sought to intervene in the case,
arguing that Iraq's sovereign immunity had been restored by
presidential determination pursuant to authority granted by
Congress.
The district court denied the Government's motion to
intervene, but ruled that the presidential determination
precluded the plaintiffs from enforcing their judgment against
the $1.73 billion in frozen Iraqi assets that had been
confiscated pursuant to the President's March 2003 executive
order.\15\ The court of appeals later vacated the default
judgment, holding that the plaintiffs had failed to state a
cause of action against Iraq. Although the terrorism exception
to the FSIA, combined with the Flatow Amendment, created a
private right of action against officials, employees, and
agents of a foreign government for their private conduct, the
court held, it did not create a cause of action against the
foreign government itself, including its agencies and
instrumentalities in their official capacity.
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\15\ E.O. 13290, 68 Fed. Reg. 14,305-08 (March 24, 2003).
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In 2005, plaintiffs filed a Rule 60(b) motion asking the
court to consider further argument regarding the causes of
action that plaintiffs had pled under State law but were not
considered in the court's previous ruling. The court denied the
motion in July 2008. Plaintiffs have filed a notice of appeal,
and the case remains pending.
Hill v. Republic of Iraq (human shields): This Federal case
was filed in December 1999 by 180 U.S. civilians who had been
held by the Iraqi government as human shields after the
invasion of Kuwait in 1990. In December 2001, they obtained a
default judgment and were awarded more than $94 million in
compensatory damages. They received full payment. In March
2004, 24 of them obtained increases in their judgments to
reflect lost property. These 24 now seek payment of the
remainder of their judgments, totaling approximately $70
million.
Vine v. Republic of Iraq (human shields): This case
involves 237 human shields and their families who were unable
to join the Hill case for technical reasons. They filed suit in
December 2001. Although their claims are identical to those of
the Hill plaintiffs, they have not been awarded a judgment in
their favor because the 2003 presidential order--issued after
the Hill ruling--blocked their case. The case has been
temporarily suspended.
Simon v. Republic of Iraq (human shields): This case
involves CBS News reporter Bob Simon and CBS cameraman Roberto
Alvarez, who were kidnapped in January 1991, while on
assignment during the Gulf War and held and tortured along with
the U.S. POWs in Acree. They were released in March 1991. Their
case was filed in March 2003. The district court, stating that
the statute of limitations had run, dismissed the case. The
court of appeals reversed the dismissal, stating that the claim
was timely. The appellate court also rejected Iraq's argument
that the President had the authority to waive all claims
against Iraq, thereby removing U.S. courts' jurisdiction over
pending claims, under the FY08 NDAA. Iraq is now seeking
Supreme Court review.
Seyam v. Republic of Iraq (human shield): This case
involves Nabil Seyam, a U.S. national who was working as a
safety engineer for the Kuwait Metal Pipe Industries Company
prior to the Gulf War. After hiding from Iraqi forces for 2
months, he was taken hostage and tortured by Iraqi soldiers
before being released in October 1990. Mr. Seyam filed suit in
April 2003. He was killed in a car accident in 2006, and his
estate is pursuing his case. The district court consolidated
the Seyam case with the Simon case. It was therefore dismissed
along with Simon, on the same grounds that the statute of
limitations had run. The appellate court then reversed the
dismissal. Iraq has moved for a stay pending Supreme Court
review in Simon.
SECTION 1083 OF THE FY08 NATIONAL DEFENSE AUTHORIZATION ACT
Section 1083 of the FY2008 National Defense Authorization
Act (``FY08 NDAA''), P.L. 110-181, amends the Foreign Sovereign
Immunities Act of 1978 to enable victims whose claims were
dismissed for lack of a Federal cause of action to re-file
their claims under new 28 U.S.C. Sec. 1605A, a new FSIA
terrorism exception and explicit cause of action against
terrorist states. Section 1083 also facilitates victims'
efforts to enforce judgments by attaching a defendant state's
assets.
Section 1083 also states, in subsection (c)(4), that the
general authority Congress conferred on the President in 2003
has never authorized, directly or indirectly, making any
provision of FSIA inapplicable to Iraq or removing U.S. court
jurisdiction.
President Bush vetoed the FY08 NDAA, solely on the basis of
section 1083. Asserting that the section as originally drafted
would jeopardize Iraq's economic development and security, he
insisted that it be rewritten to give him authority to waive it
with respect to Iraq, retroactively as to all pending cases, if
he determined that a waiver would serve the United States'
national security interest, promote U.S.-Iraq relations, and
facilitate reconstruction and political development in Iraq,
and that Iraq continued to be a reliable ally and partner in
combating terrorism. Congress passed the revised version of the
FY08 NDAA, and the President signed it into law January 28,
2008,\16\ exercising his waiver authority that very day.\17\
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\16\ P.L. 110-181, Sec. 1083(d).
\17\ White House Memorandum of Justification for Waiver of Section
1083 of the National Defense Authorization Act (January 28, 2008),
available at [http://www.whitehouse.gov/ news/releases/2008/01/
20080128-12.html].
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EFFECT OF PRESIDENTIAL WAIVER ON LAWSUITS
The 2008 waiver effectively bars the refiling of the Acree
lawsuit and, therefore, any relief for the POWs and their
families. The other pending suits against Iraq would all appear
to be subject to dismissal as a result of the waiver.
Anticipating the detrimental impact a waiver would have on
pending suits, Congress inserted a provision in Section 1083
urging the President to work with the Iraqi government to help
the American victims of Iraqi terrorism during the Gulf War
obtain relief for the emotional and physical injuries they
sustained. To date, the President has not indicated to Congress
that any efforts have been made to do so.
H.R. 5167
Representatives Bruce Braley (D-IA)and Joe Sestak (D-PA)
responded to the veto and revision of section 1083 by
introducing legislation to facilitate the settlement of the
claims against Iraq. Under the legislation, developed in close
consultation with the victims, the POWs would agree to forego
punitive damages and two-thirds of the compensatory damages
awarded, and the human shields to forego all punitive damages.
Iraq would be required to pay approximately $415 million.
The amount of recovery sought is de minimus relative to the
$20-$32 billion in commercial claims that Iraq has reportedly
settled with Mitsubishi of Japan and Hyundai of Korea. It
amounts to perhaps 1 percent of the Iraqi government assets
held in U.S. banks.
Hearings
The Committee on the Judiciary held an oversight hearing on
``Ensuring Legal Redress for American Victims of State-
Sponsored Terrorism'' on June 17, 2008. Testimony was received
from the Honorable Bruce Braley; the Honorable Joe Sestak; John
Norton Moore, co-counsel, Acree v. Republic of Iraq; Larry
Slade, plaintiff, Acree v. Republic of Iraq; Daniel Wolf,
counsel, Vine v. Republic of Iraq; and George Charchalis,
plaintiff, Vine v. Republic of Iraq. The Departments of State
and Justice were invited, but declined to appear. The purpose
of the hearing was to examine the nature of the harms
underlying the claims pending against Iraq by the U.S.
prisoners of war and civilians, and the proposal by Rep. Braley
and Rep. Sestak to facilitate the settlement of those claims.
Committee Consideration
On July 30, 2008, the full Committee met in open session
and ordered the bill H.R. 5167 favorably reported, with an
amendment, by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 5167.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill H.R. 5167, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 9, 2008.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5167, the Justice
for Victims of Torture and Terrorism Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Sunita
D'Monte, who can be reached at 226-2840.
Sincerely,
Peter R. Orszag,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 5167--Justice for Victims of Torture and Terrorism Act.
H.R. 5167 would, under certain conditions, rescind the
President's authority to exempt Iraq from the jurisdiction of
U.S. courts in cases related to acts of terrorism, hostage-
taking, or torture. CBO estimates that enacting H.R. 5167 would
have no significant effects on the Federal budget.
Most foreign states that have been designated as state
sponsors of terrorism have no immunity from the jurisdiction of
U.S. courts in cases filed by U.S. nationals, members of the
armed forces, or Federal employees seeking compensation for
state-sponsored acts of terrorism, hostage-taking, or torture.
However, the President is authorized to provide such immunity
to Iraq on the basis of national security.
Unless the President certifies that Iraq has adequately
settled, or is making good-faith negotiations to settle, claims
against it from pending court cases, H.R. 5167 would rescind
that authority, thereby permitting the administrative expenses
of special masters appointed for claims against Iraq to be paid
from the Crime Victims fund. We estimate that direct spending,
if any, from the fund would be insignificant because of the
small number of cases likely to be affected.
H.R. 5167 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contacts for this estimate are Sunita
D'Monte, who can be reached at 226-2840, and Mark Grabowicz,
who can be reached at 226-2860. This estimate was approved by
Theresa Gullo, Deputy Assistant Director for Budget Analysis.
Performance Goals and Objectives
The Committee states, pursuant to clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, that H.R.
5167 is intended to ensure fair redress to the American POWs
and civilians who were brutalized at the hands of the Iraqi
government during the Gulf War.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article 1, section 8 of the Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 5167 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
Sec. 1. Short title. This section sets forth the short
title of the bill as the ``Justice for Victims of Torture and
Terrorism Act.''
Sec. 2. Findings. This section contains findings related to
the history of this issue.
Sec. 3. Resolution of Certain Claims Against Iraq.
Section 3(a). Resolution by Iraq of Certain Claims. This
subsection provides for the termination of the presidential
waiver authority granted in section 1083 of the FY08 NDAA
unless the President certifies to Congress that Iraq has
``adequately settled'' the cases listed in section 3(b) before
the expiration of the 90-day period beginning 30 days after the
bill's enactment, unless the President certifies to Congress,
before the end of that 30-day period, that:
Lthe Government of Iraq has not settled
foreign commercial debts or claims by foreign persons
or entities similar to the claims brought in those
cases;
Lthere are ongoing good-faith negotiations
with the Government of Iraq to settle the claims
brought in those cases.
Certifications made under subsection (a) terminate after
180 days, but can be renewed for additional 180-day periods.
Section 3(b). Cases. This subsection provides that the
cases referenced in Sec. 3(a) are the Acree, Hill, Vine, Simon,
Alvarez, and Seyam cases.
Section 3(c). Adequate Settlement. This subsection defines
``adequate settlement'' as payment by Iraq, or an unconditional
guarantee made by a U.S. depository institution to make payment
from Iraqi funds within 30 days after the end of the 90-day
period described in subsection (a), to specified classes of
victims under specified terms:
Lto any person who was held hostage but not
subjected to torture, and who has not obtained a
judgment on the claim, $150,000 plus $6,000 for each
day held as a hostage, but not to exceed a total of
$900,000.
Lto any person who was held hostage and
subjected to torture, and who has not obtained a
judgment on the claim, at least $2,500,000 plus $6,000
per day for each day held as a hostage.
Lto a spouse or child of any person who
qualifies for compensation above, one-third of the
amount which the person who so qualifies is entitled to
receive.
Lto any person who obtained a judgment for
compensatory damages in one of the aforementioned cases
(regardless of whether It was later vacated), the
unsatisfied amount of that judgment up to $1,000,000,
plus one-third of any unsatisfied amount in excess of
$1,000,000.
Sec. 3(d). Additional Condition in Case of Guarantee of
Payment. This subsection provides that if claims in the
specified cases are settled by guarantee of payment by a U.S.
depository institution to pay within 30 days, and the payment
is not actually made within that period, the presidential
waiver authority granted in the FY08 NDAA will terminate.
Sec. 3(e). Definitions. This section contains definitions
of ``foreign person or entity,'' ``hostage,'' ``hostage
status,'' ``hostage taking,'' ``torture,'' ``United States,''
and ``United States Depository Institution.''
Sec. 4. Limitation on Certain Claims. This section
prohibits any funds belonging to the United States Government
from being used to pay any claim covered under this Act.