Goodlatte Statement at Constitution and Civil Justice Hearing on S. 2040, the “Justice Against Sponsors of Terrorism Act”

Chairman Goodlatte: 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 Anti-Terrorism Act (ATA) 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 that 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 Anti-Terrorism 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. JASTAmakes 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 Immunity Act’s tort exception. However, if we change the fact pattern slightly, so that rather than directly setting off 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. 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 combating 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. Click here to learn more about today’s hearing. ###