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Full text of "The Foreign Sovereign Immunities Act : hearing before the Subcommittee on Courts and Administrative Practice of the Committee on the Judiciary, United States Senate, One Hundred Third Congress, second session on S. 825 ... June 21, 1994"

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S. Hrg. 103-1077 



y 4. J 89/2; S. HRG. 103-1077 

The Foreign Sovereign Innunities Ac... a -pyn^p 







S. 825 


JUNE 21, 1994 

Serial No. J-103-62 

Printed for the use of the Committee on the Judiciary 

22-729 CC WASHINGTON : 1996 

For sale by the U.S. Government Printing Office 

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 

ISBN 0-16-052352-4 


Y 4. J 89/2; S.HRG, 103-1077 


Tfce Foreign Sovereifn Innunities ftc. . . a -pj-^jp 







S. 825 


JUNE 21, 1994 

Serial No. J-103-62 


Printed for the use of the Committee on the Judiciary 

/ -^ ■:> -. - 

22-729 CC WASHINGTON : 1996 

For sale by the U.S. Government Printing Office 

Superintendent of Documents. Congressional Sales Office. Washington. DC 20402 

ISBN 0-16-052352-4 


JOSEPH R. BIDEN, Jr., Delaware, Chairman 
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah 









Cynthia C. Hogan, Chief Counsel 

Catherine M. Russell, Staff Director 

Mark R. Disler, Minority Staff Director 

Sharon Prost, Minority Chief Counsel 

Subcommittee on Courts and Administrative Practice 

HOWELL HEFLIN, Alabama, Chairman 

HERBERT KOHL, Wisconsin STROM THURMOND, South Carolina 


Winston Lett, Chief Counsel 

Darrin Foster, Minority Chief Counsel 





Heflin, Hon. Howell, U.S. Senator from the State of Alabama 1 

Grassley, Hon. Charles E., U.S. Senator from the State of Iowa 18 

Specter, Hon. Arlen, U.S. Senator from the State of Pennsylvania 21 

Thurmond, Hon. Strom, U.S. Senator from the State of South Carolina 86 


S. 825, a bill to amend title 28 of the United States Code to permit a 
foreign state to be subject to the jvuisdiction of Federal or State courts 
in any case involving an act of international terrorism 26 


Panel consisting of Stuart Schiffer, Deputy Assistant Attorney General, civil 
division, U.S. Department of Justice; and Jamison S. Borek, deputy legal 
adviser, Department of State 8 

Panel consisting of Hugo Prinz, former hostage; Hon. Frank Pallone, a Rep- 
resentative in Congress from the State of New Jersey; David P. Jacobsen, 
former hostage; Joseph Cicippio, former hostage; CUnton A. Hall, former 
hostage; and Abraham D. Sofaer, Hughes, Hubbard and Reed 31 


Borek, Jamison S.: 

Testimony 10 

Prepared statement 12 

Cicippio, Joseph: 

Testimony 67 

Prepared statement 69 

HaU, CUnton A.: 

Testimony 77 

Prepared statement 77 

Jacobsen, David P.: 

Testimony 55 

Prepared statement: 

Various letters 61 

Newsnaner articles: 

USA Today, "ANighrwithTortiired'Thoughts,^ Friday, Aug. 

11, 1989 64 

USA Today, "Wake up! International Terrorism Is Here," 

Wednesday, Jul. 7, 1993, 66 

Mazzoli, Representative Romano L.: 

Testimony 2 

Prepared statement 5 

Pallone, Representative Frank: Testimony 55 

Prinz, Hugo: 

Testimony 31 

Prepared statement: 

Summary 33 

Addendum 36 

Various letters concerning the Prinz case 40 

Schiffer, Stuart: 

Testimony 8 




Schiffer, Stuart — Continued 

Prepared statement 9 

Sofaer, Abrsiham D.: 

Testimony 81 

Prepared statement 82 


Questions and Answers 

Questions of the Subcommittee on Courts and Administrative Practice for: 

Jamison Borek 89 

Abraham D. Sofaer 89 

Questions of Senator Strom Thurmond for the U.S. Department of Justice 90 

Additional Submissions for the Record 

Prepared statement of Allan Gerson, Prof of International Law and Trans- 
actions, the George Mason University: 

Letter to Senator Howell Heflin from Allan Gerson 92 

Various articles — Attachment A.I., Attachment A.2., Attachment A.3., 

and Attachment A.4 98 

Attachment B — Remarks of Allan Gerson delivered at the 88th annual 
meeting of the American Society of International Law, Washington, 

DC, Apr. 8, 1994 102 

Attachment C — International Law Reporter, Vol. 9, Issue 9, Sep. 1993 108 


TUESDAY, JUNE 21, 1994 

U.S. Senate, 
Committee on the Judiciary, 
Subcommittee on Courts and Administrative Practice, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 10:09 a.m. in room 
SD-226, Dirksen Senate Office Building, Hon. Howell Heflin 
(chairman of the subcommittee), presiding. 

Present: Senators Grassley, and Specter (ex officio). 


Senator Heflin. The hearing will come to order. This hearing 
has been called as a forum by which representatives from the U.S. 
Government, as well as U.S. citizens, can discuss the current state 
of law regarding jurisdictional immunities of foreign States. 

I understand the sensitive nature of any change in this law due 
to the effect that it may have on international policies of this or 
any other administration. Nevertheless, it cannot be ignored that 
acts of terrorism have been inflicted upon U.S. citizens by agents 
of governments in foreign countries in increasing number and se- 

The dramatic changes in the world today and the globalization 
of our economy should be taken into account as we consider modi- 
fications which can influence international laws. With the end of 
the cold war in Europe and emerging Third World countries, there 
have materialized many new alliances and political extremists 
which may affect the safety and security of U.S. citizens who par- 
ticipate in the growing world markets abroad. 

This emergence of political extremists is not only visible in the 
more volatile regions of the world, but also within our own borders, 
as witnessed by the bombing of the World Trade Center in New 
York. Several of the witnesses who will testify today have survived 
some of the most psychologically and physically painful ordeals 
that one can imagine. These outrageous events were supported by 
governments which flagrantly disregarded international laws and 
basic human rights. 

Unfortunately, the victims have very few legal remedies avail- 
able to them. Presently, Federal law does not permit a U.S. citizen 
to pursue a civil action against a foreign government in a State or 
Federal court in the United States in cases in which torture or 
other egregious violations of human rights have occurred outside 
the United States. 


The Foreign Sovereignty Immunities Act only allows claims to be 
decided by Federal and State courts for actions which arise outside 
the United States in the form of commercial disputes. The bill in- 
troduced by Senator Specter would expand exceptions in the 
present act. It would enable a U.S. citizen or permanent resident 
to pursue cases which involve terrorist actions against them which 
are violent to human life and violate the criminal laws of the Unit- 
ed States. 

Senator Specter has introduced a bill in the Senate which ad- 
dresses the issue of foreign immunity and terrorist actions. First, 
this legislation would permit a foreign State to be subject to the ju- 
risdiction of Federal or State courts for acts which occur outside 
the United States. It would create a new exception to jurisdictional 
immunity in cases which involve an act of international terrorism 
by a foreign State linked to that specific act. Also, the country 
which is linked to the terrorist act must be designated by the Sec- 
retary of State as a country which supports terrorism. 

This legislation would expand the present jurisdiction of courts. 
Therefore, it falls within the purview of the Subcommittee on 
Courts and Administrative Practice. I acknowledge that in the past 
it has been almost exclusively the executive branch, through the 
State Department which has the responsibility to pursue remedies 
for kidnap and torture victims through diplomatic channels. But 
with the passage by the Congress of the Torture Victim Protection 
Act last year, more jurisdiction has been granted to the judicial 
branch to allow victims due process through our courts. 

It is with this idea in mind that we focus our attention on today's 
hearing. I look forward to your sharing with me and my colleagues 
your expertise and your own experiences. I thank all of the wit- 
nesses for taking the time to be with us here today and for their 
thoughtful testimony. 

At this time, Congressman Mazzoli, if you will come forward? 
Congressman Mazzoli is a Representative from Kentucky in the 
U.S. House of Representatives. We are glad to have you. Congress- 


Representative Mazzoli. Thank you very much. Senator Heflin. 
I appreciate the opportunity to join you and I would ask that my 
full statement be made a part of the record. 

Senator Heflin. It will be so made. 

Representative Mazzoli. Mr. Chairman, I wish to commend you 
for holding this hearing on S. 825, which is Senator Specter's bill 
to amend the Foreign Sovereign Immunities Act, and also to com- 
mend Senator Specter, though he is not yet here today, for his ex- 
cellent work on this subject. 

The Senator and I are both interested in amending the Foreign 
Sovereign Immunities Act in slightly different ways, but the es- 
sence is to provide U.S. citizens who have been subjected to griev- 
ous physical abuse, whether, as in Senator Specter's bill, by acts 
of terrorism, or in the House version which I have more or less au- 
thored, by torture, extrajudicial killing or genocide, sponsored by 

officers of a foreign government, an opportunity to obtain remedy 
for these injuries. 

Unfortunately, Mr. Chairman, there are still too many countries 
which engage in gross violations of human rights — once again, tor- 
ture, kilUng, terrorism. In recent years, several U.S. citizens have 
been victimized abroad by agents of foreign governments engaged 
in these kinds of practices. 

Often, Senator Heflin, judicial remedies are not available in the 
country where the harm occurs. Unlike our own legal system which 
is characterized by due process, right to counsel, an independent 
judiciary, and respect for human and civil rights, many countries 
have legal systems which do not provide these protections to their 
own citizens, and certainly not to visitors from other countries. 

U.S. citizens who are physically abused by a foreign government 
can, of course, attempt to enlist the help of the U.S. State Depart- 
ment in pursuing remedies through diplomatic channels. Often, 
citizens have their injuries and grievances redressed with assist- 
ance from the State Department, but because the State Depart- 
ment must often execute foreign policy with the very governments 
and the very people who are accused of mistreating our citizens, 
the State Department often cannot effectively protect and enforce 
the rights of these citizens. 

Simply stated, its stance is compromised because of foreign policy 
considerations in too many instances. At least in one case, the 
State Department actually sided with a foreign sovereign against 
an aggrieved U.S. citizen, and that is a case recently decided by the 
U.S. Supreme Court which overturned an eleventh circuit court of 
appeals decision involving the Kingdom of Saudi Arabia. 

Our constituents should not have to be treated like pawns in 
some larger game of global diplomacy. Our constituents who have 
been injured by a foreign government should have their grievances 
heard in a court which offers them suitable protections rather than 
having to rely upon diplomatic efforts mounted by the executive 
branch of our Government. 

Senator in fact, this is the original reason for the FSIA which 
was passed back in 1976, and that is to have the courts, not the 
executive branch, determine whether or not a foreign sovereign 
should be entitled to immunity from suit in the United States. The 
Foreign Sovereign Immunities Act currently allows U.S. citizens to 
sue foreign governments for commercial disputes that arise outside 
the United States, but it does not allow suits for physical violence, 
such as torture or murder or, in the case of Senator Specter's bill, 
terrorism which occurs abroad. 

If we allow a businessman or woman to bring suit under the 
FSIA against a foreign government which has breached a contract, 
it seems logical that we should allow a citizen who was tortured 
or otherwise physically mistreated by the very self same govern- 
ment to bring suit under the act. 

I do not believe that the United States has the right to impose 
all of its domestic laws and constitutional rights on the rest of the 
world. However, if a Nation violates international law by torturing 
or murdering a U.S. citizen, that Nation has an obligation under 
international law to provide a remedy, and if the Nation fails to 

provide such a remedy, the U.S. citizen should be entitled to bring 
suit against the foreign government in a U.S. court. 

This, of course, is the driving principle behind the House bill, 
H.R. 934, which was approved by the subcommittee I am privileged 
to chair, the House Subcommittee on International Law, Immigra- 
tion and Refugees, and that approval came in September of 1993. 
A bill, I might say, Senator, virtually identical to this bill was 
adopted by the full committee in the previous Congress, but it did 
not reach the House floor. 

Our bill, H.R. 934, will ensure that a U.S. citizen who has been 
tortured or murdered abroad by agents of a foreign government 
will have a remedy against the foreign government for damages ei- 
ther in the country where the conduct occurred or here in the U.S. 
H.R. 934 would add a new exception to the FSIA which would 
allow U.S. citizens who' are subjected to torture, extrajudicial kill- 
ing, summary execution, as it is called, or genocide abroad by a for- 
eign sovereign to bring suit against the foreign sovereign, but only 
if the citizen is denied adequate remedies in the country where the 
conduct occurred. In effect, we have an exhaustion of remedies pro- 

The bill is limited to causes of action for torture, extrajudicial 
killing, and genocide, all of which are violations of international 
law. Therefore, under H.R. 934, we will not be imposing our own 
law on other countries, but will simply be providing a forum to re- 
dress an internationally-recognized wrong. 

I applaud Senator Specter for his work on S. 825, the bill before 
you. Senator Heflin. His bill differs from ours in that it focuses 
more on terrorism, where ours is somewhat broader in the nature 
of the grievances to the U.S. citizens. But he and I are of a mind 
that some action needs to be taken where citizens come into legal 
collision with foreign sovereigns. 

I would certainly be open to examining whether it might be pos- 
sible to include acts of terrorism in our bill. Senator Specter's bill 
allows suits only against countries, and you said this earlier, Mr. 
Chairman, which are on the State Department's terrorism list. 
That seems to be somewhat limited because it seems to me once 
again that to allow the executive branch of Government to make 
the decision of which countries would be subject to the foreign sov- 
ereign immunity sort of flies in the face of the FSIA and its under- 
lying premise, which is to allow the courts to make the decision of 
which countries could be subject to these suits. 

However, I am confident that our differences, such as they are 
and minor as they are, can be worked out, and I look forward to 
cooperating with Senator Specter and you, Mr. Chairman, and all 
members of your distinguished subcommittee to see foreign sov- 
ereign immunities legislation enacted into law this Congress. 

Governmental torture and killing will not go away. Abuse of our 
citizens could probably increase, rather than decrease, as our econ- 
omy becomes more globalized and increasing number of our citizens 
have contact with foreign governments. The United States is a 
leading Nation in the world and now it is time for the United 
States to demonstrate that international law indeed means some- 
thing and that the right of our citizens to be free from government- 
sponsored torture and killing will be enforced. 

Again, Senator, I thank you very much for the opportunity and 
commend you for having the hearing and wish you good fortune on 
adopting some form of legislation. 

Senator Heflin. Congressman, a later witness, Mr. Hugo Princz, 
will testify. I understand that he and his family were American 
citizens residing in Europe during World War II. In 1942, the 
Nazis arrested him, ignoring his and his families' valid U.S. pass- 
ports, which would have made them part of an International Red 
Cross civilian prisoner exchange then underway on the grounds 
that they were Jewish Americans. Instead, they deported them to 
concentration camps where they were all exterminated, except for 
Mr. Princz. He was liberated in 1945 bv U.S. Army personnel, who 
recognized him as an American by the 'USA" that was stenciled on 
his camp garb by the German authorities. 

He has undertaken, as I understand it, a number of efforts to try 
to be able to get remedies through the German courts, but because 
of the language of the German courts he was a rare exception and 
therefore could not come under their criteria. 

Your bill would, in effect, remedy his situation and would give 
him a cause of action, as well as any others who were American 
citizens who were subject to that type of treatment. 

Representative Mazzoli. I would have to check with the staff, 
Mr. Chairman, but I think there is a statute of limitations in our 
bill that could apply in Mr. Princz' case. Of course, he suffered 
quite grievously, to say the least, and our hearts go out to the suf- 
fering that he has had, and his whole family. 

It would seem to me that we do need to be somewhat cautious 
in framing a bill to make sure that we don't open gigantic chapters 
of world history again. Again, I believe that our bill does have a 
10-year statute of limitations which possibly could bar Mr. Princz 
from pursuing his claim. 

Senator Heflin. All right, sir. Well, we appreciate your testi- 
mony. Senator Specter is being delayed by action on the floor. He 
is on the floor right now today, and so I am sure that if he gets 
through with his activity there, he will come and participate in this 
hearing, since he has pressed me very hard to have this hearing. 

Thank you. 

Representative Mazzoli. Thank you, Mr. Heflin, and give my 
best to Senator Specter. 

[The prepared statement of Representative Romano L. Mazzoli 

Prepared Statement of Representative Romano L. Mazzoli 

Mr. Chairman, I want to commend you for holding this hearing on S. 825, Senator 
Specter's bill to amend the Foreign Sovereign Immunities Act, and also want to 
commend Senator Specter for his work on this issue. 

Senator Specter and I are both interested in amending the Foreign Sovereign Im- 
munities Act (FSIA) to provide to U.S. citizens who have been subjected to grievous 
physical abuse by officers of a foreign government an opportunity to obtain a rem- 
edy for their injuries. 

Unfortunately, there are still too many countries which engage in gross violations 
of human rights such as torture, extrajudicial killing and genocide. In recent years, 
several U.S. citizens have been victimized abroad by agents of foreign governments 
engaging in these types of practices. 

Often judicial remedies are not available in the country where the harm occurred. 
Unlike our own legal system, which is characterized by due process, right to coun- 

sel, an independent judiciary, and respect for human and civil rights, many coun- 
tries have legal systems which do not provide these protections to tiheir own citizens, 
much less to citizens of other countries. 

U.S. citizens who are physically abused by a foreign government can, of coiirse, 
attempt to enlist the help of the U.S. State Department in pursuing a remedy 
through diplomatic channels. Often these citizens have their injuries and grievances 
redressed with assistance from State Department intervention. 

But, because the State Department must execute foreign poUcy with the very gov- 
ernments which are accused of mistreating our citizens, it often cannot effectively 
protect and enforce the rights of these citizens. Simply stated, its stance is often 
compromised because of foreign policy considerations. 

And, remarkably enough, the State Department will even side with the foreign 
sovereign against the citizen interest. In one recent case, the State Department filed 
a brief before the U.S. Supreme Court asking the Court to overtiun an 11th Circuit 
Court of Appeals decision which had allowed a U.S. citizen to sue the Kingdom of 
Saudi Arabia for torture-related damages under the FSIA. 

Our constituents should not have to be treated like pawns in some larger game 
of global diplomacy. Our constituents who have been injured by a foreign govern- 
ment should have their grievances heard in a court which offers suitable protections 
rather than having to rely upon diplomatic efforts mounted by the executive branch 
of our government. 

In fact, this was the original reason the FSIA was passed back in 1976 — to have 
the courts, and not the executive branch, determine whether or not a foreign sov- 
ereign should be entitled to immunity from suit in the United States. 

As the House Judiciary Committee's Report to the FSIA states: 

A principal purpose of this bill is to transfer the determination of sov- 
ereign immunity from the executive branch to the judicial branch, thereby 
reducing the foreign poUcy implications of immunity determinations and as- 
suring Utigants that these often crucial decisions are made on purely legal 
grounds and under procedures that insure due process. The Department of 
State would be freed from pressures from foreign governments to recognize 
their immunity from suit and from any adverse consequences resulting 
fi-om an unwillingness of the Department to support that immunity. 

The FSIA currently allows U.S. citizens to sue foreign governments for commer- 
cial disputes that arise outside the United States. But it does not allow suits for 
Ehysical violence, such as torture or murder, which occurs abroad. If we allow a 
usinessman to bring suit under the FSIA against a foreign government which has 
breached a contract, why should we prevent a citizen who was tortured or otherwise 
physically mistreated by the very same foreign government fi*om bringing suit? 

I do not believe that the United States has the right to impose aU of its domestic 
laws and constitutional rights on the rest of the world. However, if a nation violates 
international law by torturing or murdering a U.S. citizen, that nation has an obli- 
gation under international law to provide a remedy. If the nation fails to provide 
such a remedy, the U.S. citizen should be entitled to bring suit against the foreign 
government in a U.S. court. 

This is the driving principal behind my bill, H.R. 934. H.R. 934 was approved by 
the House Subcommittee on International Law, Immigration, and Refugees, which 
I chair, on September 8, 1993. A bill virtually identical to H.R. 934 was approved 
by the House Judiciary Committee last Congress, but never reached the House floor. 

H.R. 934 will ensure that a U.S. citizen who has been tortured or murdered 
abroad by agents of a foreign government will have a remedy against the foreign 
government for damages either in the country where the conduct occurred or here 
in the United States. 

H.R. 934 would add a new exception to the FSIA which would allow U.S. citizens 
who are subjected to torture, summary execution, or genocide abroad by a foreign 
sovereign to bring suit against the foreign sovereign, but only if the citizen is denied 
adequate remedies in the country where the conduct occurred. 

H.R. 934 is narrowly tailored. The bill only applies to persons who were U.S. citi- 
zens at the time that tiiey were abused by the foreign government. 

The bill is limited to causes of action for torture, extrajudicial killing, and geno- 
cide, all of which are violations of international law. Therefore, under H.R. 934 the 
U.S. will not be imposing its own law on other countries, but will simply be provid- 
ing a forum to redress an internationally-recognized wrong. 

The exhaustion of remedies requirement in the bill requires the plaintiff to prove 
that there are no adequate and available remedies in the country where the conduct 
occurred, or to prove that he or she has exhausted all available remedies, before the 

plaintiff can file sviit in the United States. Therefore, if the foreign country provides 
an adequate remedy, it will not have to submit to the jurisdiction of U.S. courts. 

H.R. 934 is modeled after the Torture Victim Protection Act (TVPA), which was 
signed into law last Congress. The TVPA only provided a cause of action against 
officials of foreign states — it did not address the liabiUty of the foreign state itself 
Many U.S. citizens will not be able to use the TVPA because they will not be able 
to obtain personal jurisdiction over their individual torturers. 

Like the TVPA, H.R. 934 defines tortvire in accordance with the Convention 
against Tortiire. The United States signed the Convention in 1988, the Senate ap- 
proved it in 1990, and just recently, April 30, 1994, President Clinton signed into 
law the implementing legislation for the Convention. Likewise, extrajudicial killing 
is defined in accordance with the TVPA and the Geneva Conventions of 1949. 

H.R. 934 contains the same 10 year statute of limitations as the TVPA. Although 
the amendments made by the bill will apply to causes of action that arise before 
the bill's enactment, causes of action arising before the bill's enactment will still 
have to meet the statute of limitations. 

At Subcommittee, at the vu-ging of Congressman Chuck Schumer, the bill was 
amended to include acts of genocide committed by a foreign sovereign. Although not 
part of the TVPA, Genocide is also a grievous violation of international law. Under 
the bill, genocide is defined in accordance with the Genocide Convention and the 
criminal provisions of U.S. law which implement that Convention. Acts of genocide 
are not subject to the 10 year statute of limitations. 

Incidently, I think at some point Congress should examine the possibility of har- 
monizing some of these various statutes which impose civil and criminal Uability for 
various human rights violations. Currently on the books we have the Foreign Sov- 
ereign Immunities Act, the Tortiire Victim Protection Act, laws implementing var- 
ious treaties such as the Torture and Genocide Convention, as well as several oth- 

I think Congress should examine aU of these various laws and consider whether 
they could be combined into one single, comprehensive statute. While I will not be 
around Capitol Hill to help make this happen, I think it is something that Congress 
should seriously pursue. 

I applaud Senator Specter for his work on S. 825. Senator Specter's bill differs 
from H.R. 934 in that his bill focuses more on terrorism whereas my biU focuses 
on torture and extrajudicial killing. But we are of a mind that some action needs 
to be taken where citizen come into legal collision with foreign sovereigns. I would 
certainly be open to examining whether it might be possible to include acts of terror- 
ism committed against U.S. citizens within the framework of my bill. 

One provision in Senator Specter's bill that does concern me is the provision 
which edlows suits only against countries who are on the State Department's terror- 
ism list. For reasons I gave earlier, I think we should let courts, not the executive 
branch, make immunity determinations. If we allow the executive branch to make 
immunity determinations by placing or taking countries off Usts we will defeat the 
original purpose of the FSIA. 

However, I am confident our differences can be worked out and I look forward to 
working with Senator Specter and you, Mr. Chairman, and all the Members of the 
Subcommittee, to see foreign sovereign immunities legislation enacted into law. 

Governmental torture and killing will not soon go away. Abuse of our citizens will 
probably increase, not decrease, as our economy becomes more globalized and in- 
creasing numbers of our citizens have contact with foreign governments. 

In the aftermath of the Cold War, the United States is unquestionably the leading 
country in the world. Now is the time for the United States to demonstrate that 
international law means something and that the right of ovu* citizens to be free from 
governmental torture and killing wll actually be enforced. 

Chairman Heflin, I want to thank you once again for holding this hearing and 
inviting me to testify. 

Senator Heflin. Next is a panel of Mr. Stuart Schiffer, who is 
Deputy Assistant Attorney General, U.S. Department of Justice, 
and Ms. Jamison Borek, who is the deputy legal adviser for the 
U.S. Department of State. 

Mr. Schiffer, I understand you don't have too much testimony, 
but go ahead, sir. , "t. 




Mr, SCHIFFER. I won't even have to summarize. It was short 
enough, but I will make just a few remarks, if I may. 

I want to emphasize at the start that we share fully the values 
and the concerns that underlie S. 825. While I don't appear here 
in my personal capacity, I think I do have to say that my heart 
goes out to the witnesses who are going to appear before you short- 
ly who indeed did suffer. 

It was in the spirit that we worked with the Congress in 1991 
and 1992 on legislation which became law to protect victims of un- 
conscionable violence abroad. This legislation created civil remedies 
for acts of terrorism and acts of torture. At the same time, I must 
note that we concurred in the views of the Department of State, 
and ultimately of the Congress, that extension of these civil rem- 
edies to the foreign governments themselves in our courts would go 
beyond recognized international practice and would have created 
substantial foreign relations concerns. 

Congress, as I said, excepted from the reach of these civil actions 
suits against the foreign governments, as opposed to individuals. 
We continue to believe that the State Department is correct in its 
view that it would be no less unwise to expand such causes of ac- 
tion now to foreign governments. 

Again, I emphasize that we are steadfast in our resolve to act 
against terrorism. We have shown that, I think, not only in our co- 
operation with the Hill, but in prosecutions that have been brought 
and continued to be brought in our courts. We simply, if we ques- 
tion anything, question the efficacy of the cause of action that this 
bill would create. Again, we share in the concerns that my col- 
league, Ms. Borek, can address about the foreign relations prob- 
lems this remedy might create. 

Let me make only two brief points before I conclude and defer 
to my colleague. First, the Foreign Sovereign Immunities Act was 
indeed very progressive legislation when it was enacted in 1976. 
We believe that it remains so today. As Congressman Mazzoli sug- 
gested, it replaced what was essentially ad hoc justice where the 
courts deferred to State Department determinations with rules of 
law that were to be applied by our courts and have been applied 
in dozens and dozens of cases since enactment. 

The drafters recognize and we continue to recognize that the act 
was not intended to create domestic judicial remedies for all inju- 
ries which might be suffered by potential plaintiffs. The principal 
purpose of the act was to codify the so-called restrictive theory of 
sovereign immunity under which foreign Nations would continue to 
enjoy immunity for sovereign acts, but would be liable for commer- 
cial activities carried out in this country or having significant ef- 
fects in this country. 

Remedies for tortious conduct really were not at the heart of the 
bill. In factj^ the drafters, working with the executive branch, hesi- 
tated before Cx'eating any jurisdiction in our courts over torts. When 

they did so, they made clear in the legislative history that they had 
in mind essentially garden-variety torts, such as automobile acci- 

That brings me to my second and final point. It is very important 
to keep in mind that no Nation has abroad as much property and 
the significant numbers of personnel that we do. As we create new 
jurisdiction in our courts, we have to bear in mind that we expose 
ourselves to the creation of new remedies which will be used 
against us in foreign courts. 

I emphasize we obey the rule of law abroad just as we do in this 
country. We presently have pending well over 1,000 suits in about 
80 countries of every stripe throughout the world, and I simply 
think we have to keep in mind that not all foreign countries are 
as careful in tailoring legislation as we are. But reciprocity plays 
a very strong role in foreign relations, in general, and it specifically 
does so in the area of foreign State immunity. Our bill has served 
as a model for other governments and I think we have to give at 
least some pause before we become too innovative in enacting such 

At this point, I will defer to my colleague, Ms. Borek, 

[The prepared statement of Stuart Schiffer follows:] 

Prepared Statement of Stuart Schiffer 

Mr. Chairman and members of the Committee: I am pleased to appear before 
you today in response to your request for the views of the Department of Justice 
on S. 825, a bill to amend the Foreign Sovereign Immunities Act. 

S. 825 would amend the Foreign Sovereign Immunities Act to permit a foreign 
state to be subject to the jurisdiction of courts in the United States in suits based 
upon an act of international terrorism, committed or aided or abetted by certain for- 
eign states, when the suit seeks money damages for personal injury or death to a 
United States citizen or permanent resident alien. The bill also permits pre-judg- 
ment attachment and execution of foreign state property when a suit is filed and 
judgment obtained pursuant to its provisions. 

The Department of Justice has been and remains in the forefront in the fight 
against international terrorism. We have vigorously prosecuted, and continue to 
prosecute, those subjecting our citizens to terrorist acts. We have also worked in 
partnership with the Congress in crafting legislation to protect victims against un- 
conscionable violence. The provision of civil remedies for acts of terrorism, which 
was contained in the Federal Courts Study Committee Act of 1992, codified at 18 
U.S.C. §2333 et seq., and the Torture Victim Protection Act of 1991 signal the joint 
commitment of Congress and the Executive Branch to provide to our injured citizens 
means of legal redress if they are the victims of terrorism or torture. 

To the extent that S. 825 would affect the foreign relations interests of the United 
States by expanding the jurisdiction of our courts over foreign states, the Depart- 
ment of Justice defers to the comments of the State Department on the substance 
of the bill. The Foreign Sovereign Immunities Act provides for jurisdiction in suits 
against foreign states in which the action is based upon a commercial activity car- 
ried on in the United States by the foreign state, or upon an act performed in the 
United States in connection with a commercial activity of the foreign state else- 
where, or upon an act outside the territory of the Unites States in connection with 
a commercial activity of the foreign state elsewhere and that act causes a direct ef- 
fect in the United States. Jurisdiction over torts not meeting these conditions exists, 
subject to certain exceptions, only when both the tortious act and the injury occur 
within the United States. Jurisdiction over suits alleging acts of dehberate govern- 
ment wrongdoing would have political significance and consequences with foreign 
policy ramifications which are best addressed by the Department of State. 

In evaluating S. 825, we note the risk of reciprocal treatment by foreign states 
if we expand our jurisdiction over them. While the current bill is carefully limited 
to terrorist acts, we could not be confident that legislation enacted by other states 
would be as carefully and finely drawn. If other states were to expand the jurisdic- 


tion of their own courts, they might sweep more broadly into areas which we con- 
sider to be properly immune from their jurisdiction. 

Ftirthermore, S. 825 seeks to limit the immunity from pre-judgment attachment 
and execution of foreign state property by making property of the foreign state, used 
for a commercial activity in the United States, available to satisfy tort judgments 
obtained under the bill. Due to foreign relations concerns, the availability of pre- 
judgment attachment against property of foreign states is extremely limited. In ad- 
dition, the Act presently allows for execution of judgments on foreign state property 
"used for the commercial activity upon which the claim is based." The bill proposes 
to extend execution under the Act to reach any commercial property of the foreign 
state, and to do so in the context of a tort judgment. 

We should be aware that enlarging the category of property available for pre-judg- 
ment attachment and execution in the United States in the United States invites 
similar treatment by other countries where our assets may be located. The breadth 
of our government's involvement in litigation in foreign courts and the vast amounts 
of U.S. government property located abroad give us greater risk of exposure than 
any other country in the world. 

Once again, let me emphasize the resolve of the Department of Justice to combat 
terrorism, and to do so with all the appropriate tools at our disposal. I appreciate 
the opportunity to present the Department's views, and will be pleased to answer 
any of your questions. 

Senator Heflin. Ms. Borek? 


Ms. BOREK. Thank you, Mr. Chairman. We appreciate the oppor- 
tunity to present our views on S. 825 today and this difficult ques- 
tion. I will give only a summary of my testimony and would ask 
that the full testimony be accepted for the record. 

Senator Heflin. It will be so entered. 

Ms. Borek. We share very much the concerns of the subcommit- 
tee and others who will speak today over State-sponsored terrorism 
and the other grievous acts which may be committed. Nonetheless, 
as Mr. Schiffer has indicated, we do not believe it would be wise 
to enact this amendment to the Foreign Sovereign Immunities Act. 
Despite its appeal, the bill raises substantial concerns in several 

At present, the Foreign Sovereign Immunities Act provides for 
jurisdiction over certain noncommercial torts that occur within the 
United States. This cautious approach is consistent with inter- 
national law and with the practices of other States. We are not 
aware of any case in which a State permits jurisdiction over such 
tortuous conduct outside its own territory. 

I might add on the commercial exception, as well, this is not wide 
open. It conforms to the general understanding of when jurisdiction 
is permissible over commercial acts, and this requires that there be 
a direct effect on the United States. So it is not a wide open excep- 

S. 825 would permit actions against certain foreign States for 
terrorist acts committed anywhere in the world. We recognize and 
appreciate that a great effort was made to craft this very narrowly. 
Nonetheless, it still goes well beyond our existing statute and di- 
verges significantly from State practice. 

This expansion beyond established international practice would 
tend to erode the credibility and workability of the Foreign Sov- 
ereign Immunities Act. In the beginning, one of the great efforts, 
and it continues to be an effort, is to convince foreign governments 
that they really do have to go into our courts and defend them- 
selves against charges. In the international view, the courts of a 


country may be regarded as not very much different from the gov- 
ernment of the country, and in many countries this may be much 
more fair than it is in the United States. 

The problems could be exacerbated where alleged deliberate gov- 
ernmental wrongdoing is involved. It is very difficult ultimately to 
get a government to admit and pay for deliberate governmental 
wrongdoing, and this is true whether you are pursuing the claim 
in diplomatic channels or whether you create a cause of action. 

Civil suits could also inject an unpredictable element into deli- 
cate relationships and could complicate the achievement of U.S. 
counter-terrorism objectives. When you have a delicate negotiation 
with a terrorist country— for example. North Korea or Syria— 
which has a significant number of issues which are presented and 
which are very important in the overall foreign policy scheme, 
threatened litigation, actual litigation, problems of discovery, and 
ultimately judgments can complicate the achievement of U.S. objec- 

Fundamentally, as well, I would note that there is really a ques- 
tion about the efficacy of such a remedy. These countries are not 
countries which are likely to have assets in the United States, and 
if they do, they may very well be frozen with thousands of other 
U.S. citizen claims also outstanding against them. Even in the case 
of nonterrorist countries, there is a difficulty that exposure to liti- 
gation and to execution and attachment can encourage countries 
not to leave money in the United States. 

The execution provision therefore also presents concerns. Execu- 
tion of foreign State property is an area of particular sensitivity. 
At present. State property is generally not available for execution 
to satisfy noncommercial tort judgments against a foreign State it- 
self S. 825 would open this up for execution in terrorism cases. 

The potential difficulties created by having worldwide jurisdic- 
tion are compounded by this expanded execution. Moreover, in 
cases involving deliberate governmental wrongdoing, domestic 
measures directed against property will involve likely particular 
sensitivity, given the potential for retaliation and disruption of re- 

We have concerns also about the provision for prejudgment at- 
tachment as one of the countries which has so many assets 
throughout the world. At present, we and other countries have re- 
quired that there be an actual waiver in order to attach property 
prior to litigation or waiver from the foreign government which 
owns the property. S. 825 would eliminate the need for waiver. 
Again, the problems that are associated with the worldwide juris- 
diction compound this difficulty. Most countries will regard this as 
extreme, and to add attachment to it will make it only more ex- 
treme, especially since attachment occurs in a case at a point in 
which there is no determination as to liability. 

In short, we do believe that people should have remedies. We do 
try to pursue remedies in these cases. The fundamental difficulty 
is that governments are often not willing to pay or expose them- 
selves to paying for alleged deliberate wrongdoing, especially when 
it carries a label, such as terrorism, torture, genocide. Unfortu- 
nately, this is one of the difficulties that is inherent in the nature 
of the situation and in the nature of international politics. 


Having this remedy will be very difficult, I think, from the legal 
point of view. Even countries which are sympathetic to the objec- 
tives will fmd the extraterritoriality quite extreme and it will make 
it more difficult to work with the Foreign Sovereign Immunities 
Act and with other countries to consolidate the established con- 
cerns that we have reflected in the act today. 

Thank you. 

[The prepared statement of Jamison S. Borek follows:] 

Prepared Statement of Jamison S. Borek 

Mr. Chairman and Members of the Subcommittee: I appreciate the oppor- 
tunity to appear before you today to discuss the views of the Department of State 
on S. 825. This bill would amend the Foreign Sovereign immunities Act of 1976 (the 
FSIA) to provide for jurisdiction in U.S. courts in certain cases involving acts of 
international terrorism. ^roi^i. 

At the outset, I would like to emphasize the resolve of the Department ot btate 
in combatting state-sponsored terrorism. Important tools under U.S. law include the 
cutoff of foreign assistance and other strong economic sanctions against countries 
designated as state sponsors of terrorism. We are a leader at the United Nations 
and elsewhere in marshalUng international efforts to combat state-sponsored terror- 
ism, including the unprecedented economic sanctions imposed on Libya by the UN 
Security Council for its role in the Pan Am 103 bombing. In addition, working close- 
ly with the Department of Justice and with numerous cooperative foreign govern- 
ments, we are vigilant in bringing to justice individuals who commit acts of terror- 

The bill this Subcommittee is considering would amend a statute that was en- 
acted in 1976 after several years of work by the Executive Branch and both Houses 
of Congress. The effort that went into the formulation of the FSIA reflects both the 
political sensitivity and the legal complexity involved in the area of foreign sov- 
ereign immunity. . ,.,,., 

Fundamental principles of sovereignty and international law are implicated in de- 
termining the extent to which foreign states should be responsible to private per- 
sons in the courts of other states. Moreover, our treatment of foreign states here 
can have an impact upon the treatment of the U.S. Government abroad. Not only 
do we look to the FSIA as a guide in asserting our own immunity abroad, but for- 
eign states themselves may well apply our standards against us as a matter of reci- 
procity. For these reasons, we have always considered the proper treatment of for- 
eign sovereigns in ovu" courts to be a matter of great importance to the conduct of 
our foreign relations. /. „ . i 

In crafting the FSIA, Congress and the Executive Branch created a carefully bal- 
anced structure that provides immunity in some cases and exceptions to immunity 
in others. The statute reflects not only a recognition of the foreign relations inter- 
ests involved but also a fundamental concern for international law and practice. One 
of the main purposes of the FSIA, in fact, was to codify the "restrictive" principle 
of sovereign immunity as recognized in international law. This principle, which per- 
mits suits in commercial matters, is important to our international economic inter- 


The FSIA has been largely successful in achieving its objectives. We believe revi- 
sion of the statute should be approached with great caution. Of course we have sup- 
ported proposals to amend the statute when we believed they were warranted, and 
some of those proposals were ultimately enacted. This was the case, for example, 
with the provisions that now address the enforcement of arbitration agreements and 
awards. However, we have also opposed suggested revisions of the FSIA when we 
believed that they could have an uncertain or potentially damaging effect on our 
broader interests and the need for the changes had not been adequately dem- 
onstrated. Two years ago, for example, we opposed an amendment that would have 
expanded the jurisdiction of our courts to reach cases involving tortious acts or 
omissions committed by a foreign state or its officials within its own territory. 

We recognize that some proposed amendments to the FSIA have a special appeal 
because they reflect deeply held values and important policies that we seek to pro- 
mote in other ways in our foreign relations. S. 825, which focuses on terrorism, is 
an example. Another example is the bill presently pending in the House, H.R. 934, 
which focuses on tortiu-e, extrajudicial killing and genocide. In evaluating these or 
other proposed amendments, however, we believe we should keep in mind the fun- 


damental interests that our law on foreign sovereign immunity is designed to ad- 
vance and the careful balances reflected in that law. 

With this background, I would like now to address S. 825. This bill would amend 
Section 1605(a) of the FSIA to provide for the jurisdiction of U.S. courts in cases 
in which the action is based upon an act of international terrorism which occurs 
within the United States or which occurs outside the United States if certain condi- 
tions are met. These conditions include the requirements that the action must be 
one for injury or death to a United States citizen or permanent resident alien and 
that the foreign state involved must be one that has been designated by the Sec- 
retary of State as a state which has repeatedly provided support for acts of inter- 
national terrorism. 

The bill would also amend Section 1610(a) of the FSIA to provide for execution 
against property of the foreign state in such cases; no nexus between the cause of 
action and the property would be required. In addition, the bill would amend Sec- 
tion 1610(d) of the FSIA to provide for pre-judgment attachment of the foreign 
state's property in such cases even in the absence of an explicit waiver by the for- 
eign state. 

I would Uke to address each of these aspects in turn. 


The proposed amendment to Section 1605(a) of the FSIA presents serious con- 
cerns. Our concerns are best understood by considering first the scope of the excep- 
tion for torts which are not of a commercial nature, as it is presently contained in 
the FSIA, as well as general international practice in this area. 

The non-commercial tort exception was enacted as Section 1605(a)(5) of the FSIA 
in 1976. It is only available for torts occvuring in the United States. When the FSIA 
was being drafted, there was some question as to whether even this Limited excep- 
tion to immunity provided a new remedy not available under international law. In 
supporting the denial of immunity for many torts that occur in the United States, 
however, the Department's Legal Adviser observed that the tort provision, as draft- 
ed, had a substantial basis in international practice. 

The House Report (No. 94-1487) that accompanied the FSIA specifically noted 
(pp. 20-21) that the tortious act or omission of the foreign state must occur within 
the jurisdiction of the United States. The Report made clear the narrow focus of 
Congressional concern in this area: "Section 1605(a)(5) is directed primarily at the 
problem of traffic accidents * ♦ *. The purpose of section 1605(a)(5) is to permit the 
victim of a traffic accident or other noncommercial tort to maintain an action 
against the foreign state to the extent otherwise provided by law." 

The territorial limitation of this exception to immunity was also emphasized by 
the Supreme Court in its 1989 decision in Argentine Republic v. Amerada Hess 
Shipping Corp., 488 U.S. 428, 439-40 (1989). The Court stated that "Section 
1605(a)(5) is limited by its terms, however, to those cases in which the damage to 
or loss of property occurs in the United States. Congress' primary purpose in enact- 
ing § 1605(a)(5) was to eliminate a foreign state's immunity for traffic accidents and 
other torts committed in the United States, for which liability is imposed under do- 
mestic tort law." (emphasis in original) 

The cautious approach reflected in the present non-commercial tort exception is 
consistent with general state practice in this area. We are not aware of any instance 
in which a state permits jurisdiction over such tortious conduct of a foreign state 
without territorial limitations. The sovereign immunity statutes of Australia and 
the United Kingdom, for example, expressly require that the tortious act or omission 
for which immunity is denied must occur in the forum state. Article 1 1 of the Euro- 
pean Convention on State Immunity, to which a number of European states are 
party, denies immunity "if the facts which occasioned the injury or damage occurred 
in the territory of the State of the forum, and if the author of the injury or damage 
was present in that territory at the time when those facts occurred." 

The International Law Commission's Draft Articles on Jurisdictional Immunities 
of States and their Property, which has been considered by a Working Group of the 
Sixth Committee of the United Nations General Assembly, is also instructive on the 
issue of state practice. Article 12 of the International Law Commission's Draft pro- 

Unless otherwise agreed between the States concerned, a State cannot in- 
voke immunity from jurisdiction before a court of another State which is 
otherwise competent in a proceeding which relates to pecuniary compensa- 
tion for death or injury to the person, or damage to or loss of tangible prop- 
erty, caused by an act or omission which is alleged to be attributable to the 
State, if the act or omission occurred in whole or in part in the territory 


of that other State and if the author of the act or omission was present in 
that territory at the time of the act or omission. 

The International Law Commission's Commentary to Article 12 specifically 
stressed territoriality as the basis for the assumption and exercise of jurisdiction in 
cases covered by this provision. 

It is against this backdrop that the proposed amendment to Section 1605(a) of the 
FSIA must be considered. That amendment would permit actions in the United 
States against certain foreign states for terrorist acts committed anywhere in the 
world. I^t only does such a provision extend well beyond the reach of our existing 
statute, but it also diverges significantly from the general practice of states, as de- 
scribed. We fully share the concerns over terrorism that underlie this proposal, but 
we do not believe such an expansion of the jurisdiction of oiu* courts would be pru- 

Consistency of the FSIA with established international practice is important. If 
we deviate from that practice and assert jurisdiction over foreign states for acts that 
are generally perceived by the international community as failing within the scope 
of immunity, this would tend to erode the credibility of the FSLA. We have made 
substantial efforts over the years to persuade foreign states to participate in our ju- 
dicial system — to appear and defend in actions against them under tne FSIA. That 
kind of broad participation serves the interests of all. If we expand our jurisdiction 
in ways that cause otiier states to question our statute, this could uncfermine the 
broad participation we seek. It could also diminish our ability to influence other 
countries to abandon the theory of absolute immunity and adopt the restrictive view 
of sovereign immunity, which the United States has followea for over forty years. 

These problems could be exacerbated where the divergence from state practice 
concerned alleged deliberate governmental wrongdoing. Domestic judicial proceed- 
ings designed to respond to such action would necessarily involve particular sen- 
sitivity, especially when a violation of important rules of international or domestic 
law was aUeged. States are generally reluctant to enter into the domestic courts of 
another state to defend themselves against charges of serious violations of law. 

This bill could also lead to other undesirable consequences for our foreign rela- 
tions. Current U.S. law allows the U.S. Government to fine-tune the application of 
sanctions against state-sponsors of terrorism, increasing them or decreasing them 
when in the national interest. In addition, the U.S. Government frequently coordi- 
nates closely with other nations at the UN and elsewhere on the imposition of sanc- 
tions and the development of joint positions vis-a-vis acts of terrorism. The possibil- 
ity of civil suits and potential judgments against state-sponsors of terrorism would 
inject a new unpredictable element in these very delicate relationships. Such pro- 
ceedings could in some instances interfere with U.S. counter-terrorism objectives. 
They could also raise difficult issues involving sensitive intelligence and national se- 
curity information. 

We recognize that S. 825 contains some elements that would limit the adverse ef- 
fects we have described. In particular, only those few countries designated by the 
Secretary of State as supporters of terrorism would be directly affected. These limi- 
tations, however, do not eliminate the concerns I have described. Moreover, we be- 
lieve that such an expansion of our jurisdiction could set a harmfiil precedent. As 
the Subcommittee is aware, other amendments have also been proposed, and still 
others could be proposed in the future, that would expand the jurisdiction of our 
courts in other ways ^at could significantly affect our foreign relations. 


The proposed amendment to the execution provisions of Section 1610(a) of the 
FSIA also presents concerns. Execution on foreign state property has always been 
an area of particular sensitivity. In enacting the FSIA, Congress made clear that 
the execution provisions were designed to remedy only in c£irt the predicament of 
a plaintiff who has obtained a judgment against a foreign state. Execution against 
the property of a foreign state (as contrasted with the property of an agency or in- 
strumentality) is narrowly circumscribed by Section 1610, which permits execution 
against the property of a foreign state only if the property is used for a commercial 
activity in the United States, and then only in specifically defined circumstances. 

Non-commercial torts were reco^zed by Congress as presenting issues of special 
concern — and the execution provisions of tne FSIA reflect that concern. Section 16 10 
only permits execution against the assets of state agencies and instrumentalities 
that lose non-commercial tort cases. State property is generally not available for 
execution to satisfy non-commercial tort judgments against a foreign state itself 

This bill would open up foreign state assets for execution in cases based upon acts 
of international terrorism. While the FSIA currently requires a nexus between the 


property and the claim in most other instances involving execution against foreign 
state property, no such nexus would be required here. We believe that this execution 
provision would raise difficulties. 

As I have indicated, the substantive jxuisdictional provisions of the bill would ex- 
pand the reach of our courts beyond generally accepted state practice and could give 
rise to other undesirable consequences as well. In circumstances such as these, 
where the underlying assertion of jurisdiction over the action is itself problematic, 
it is difficult to see how the provision for execution (especially without any nexus 
requirement) could be acceptable. In short, the potential difficulties created by ex- 
panded jurisdiction under Section 1605 would be compounded by expanded — execu- 
tion under Section 1610, especially since many of these cases would likely involve 
default judgments. In cases involving deliberate governmental wrongdoing, more- 
over, domestic measures directed against state property could involve particular 
sensitivity, given the potential for retaliation and aisruption of relations. 


Finally, we are also concerned about the proposed amendment to the pre-judg- 
ment attachment provisions of the FSIA. Having in mind the foreign relations prob- 
lems to which pre-judgment attachments had sometimes given rise in the era before 
the FSIA, the drafters of the FSIA carefully circumscribed the availability of such 
attachments. Under the FSIA, pre-judgment attachments against foreign state prop- 
erty may be obtained only if the purpose of the attachment is to secure satisfaction 
of a judgment and only if the foreign state has explicitly waived its immunity from 
such attachment. In effect, such measures are permitted only where the foreign 
state could be said to have consented to them. 

S. 825 would eliminate the need for explicit waiver in cases based upon acts of 
international terrorism in which the foreign state is not immune from jurisdiction. 
The provision would appear to require a court to make a determination on immunity 
as a prerequisite for a pre-judgment attachment in such instances, and W3 recognize 
that this limits to some extent the reach of the provision. Nevertheless, we believe 
the provision still raises difficulties. 

As in the case of execution, the problems associated with the underlying assertion 
of jurisdiction over these actions are compounded by the provision for pre-judgment 
attachments, since these are designed essentially to enforce the assertion of jurisdic- 
tion. As a general matter, moreover, pre-judgment attachments carry potential for 
disruption m our relations with other states. With this consideration in mind, and 
given the exposure of U.S. Gk)vemment property abroad, we have viewed the FSIA's 
curtailment of such measures as wise. Consistent with this view, in the context of 
the UN Sixth Committee Working Group we have opposed proposals that would per- 
mit pre-judgment attachment without a waiver. S. 825 would represent a loosening 
of the existing regime under the FSIA that could once again in particular instances 
lead to irritations in our foreign relations. 


Finally, I would like to draw your attention to an issue to which I referred at the 
outset. Restrictions on immunity have a reciprocal dimension. If the United States 
extends the jurisdiction of its courts to embrace cases involving alleged wrongdoing 
by a foreign state outside the United States, we would have to expect that some 
other states could do likewise. However, there is of course no guarantee that any 
action taken by other states would precisely mirror our own. If other states were 
to expand the jurisdiction of their own courts, they might not limit such action to 
terrorism, for example, but could seek to include as well other kinds of alleged 
wrongdoing that comd be of concern to us. The Department of Justice, which has 
responsibility for litigation against the United States abroad, may be in a position 
to provide further comment concerning the reciprocity aspects of this bill. 


The Department of State fully shares the concern of this Subcommittee with 
state-sponsored terrorism and its devastating effects on individual Americans. For 
the reasons described, however, we do not believe it would be wise to enact S. 825. 

I appreciate the opportunity to present our views. 

Thank you, Mr. Chairman. 

Senator Heflin. The State Department has, of course, expressed 
concern that it would be inappropriate for the courts of this country 
to inquire into whether or not it would be proper for a U.S. citizen 


to pursue his claim in the courts of a foreign State. Yet, the Tor- 
ture Victim Protection Act mandates this inquiry. 

What is the basis for permitting this inquiry under the Torture 
Victim Protection Act but prohibiting it under the Foreign Sov- 
ereign Immunities Act? 

Ms. BOREK. Well, it is in either case a very difficult inquiry and 
one which is likely to create a great deal of sensitivity and poten- 
tial difficulty. From that point of view, it is a difficulty in either 
case. It would be worse, I guess, under the Torture Victim Protec- 
tion Act not to have that requirement because that is an estab- 
lished requirement under international law that you first try to use 
whatever remedies are available in the country itself. It would be 
difficult to proceed without this. So while I think it causes signifi- 
cant difficulties, to still go ahead and provide the cause of action, 
yet to leave out this requirement, would be even worse. 

Senator Heflin. Alliances in the world are constantly shifting. 
An ally 1 year can become a terrorist the next year. The peace- 
keeping actions of the United States 1 year could well later be con- 
strued as terrorist — Haiti, for example. Keeping in this mind, how 
could fears of reciprocity through S. 825 influence U.S. foreign pol- 

Ms. BoREK. Well, I think you are right to point to this concern. 
The United States has a very active foreign policy in many ways 
and is the last remaining super power. It is in some ways more ac- 
tive than that of other countries, and there has always been a 
great deal of debate over what terrorism is or what other things 
might be done that would be accused of being in violation of inter- 
national law. 

That is a calculation that would have to be made in a particular 
case. I think we also would tend to reject the idea that a foreign 
government can judge in its own courts sovereign actions which we 
are taking, for example, for national security reasons. That is one 
of the sort of fundamental problems with the question here. If you 
are doing something for national security reasons and you believe 
it is important to your vital interests, do you really think that an- 
other country should be able to judge you in its courts as to wheth- 
er this was legal and insist that you pay for it? Countries have 
tended to resist that. 

Senator Heflin. If the United States takes the position that it 
can enforce its criminal laws against those who act under the color 
of authority, such as Manuel Noriega in Panama, why should 
American citizens be unable to pursue civil remedies under similar 

Ms. Borek. Well, the criminal laws do apply against individuals 
and we do have the possibility of civil suits under the Torture Vic- 
tim Protection Act or under Senator Specter's amendment against 
individuals. We have not believed in the criminal behavior of 
States and foreign governments committing criminal behavior, and 
similarly we would see difficulties with subjecting them to civil 
suits, so they are parallel in that sense. 

Senator Heflin. Well, you might have a different situation in 
Panama with an existing government, but to take Iraq where you 
have got Saddam Hussein, in the event that he would come under 
the jurisdiction of U.S. authorities and could be tried, civilians who 


might have suffered matters pertaining to which this proposed bill 
covers would not be allowed to pursue their remedies. Is that some- 
what of an inconsistent position? 

Ms. BOREK. Well, if you were suing Saddam Hussein as an indi- 
vidual, that would be a different question and that would be cov- 
ered by existing law. 

Senator Heflin. But I was speaking about suing the government 
of Iraq in that instance. In the Panama illustration, you had the 
situation of whether he was the valid holder of power of the recog- 
nized government, but within the scenario that I have put forth 
that element wouldn't be present. Was that a distinction? 

Ms. BoREK. Well, not under this amendment. We don't go into, 
when you are suing the whole country, what we think about the 
particular government. There was a case, for example, where the 
government of the Philippines was sued after the departure of Fer- 
dinand Marcos for actions which had been taken while he was 
president, allegedly at his direction. It was the new government 
that was in place when they were sued, but the suit is really 
against the country and not the individual who happens to be in 

Senator Heflin. Well, as I understand it the United Nations is 
attempting to develop some type of standards by which this would 
occur. I was just trying to remember the specific thing. Do you 
know what I am referring to? 

Ms. BOREK. Well, there is the effort to develop the international 
criminal court which would provide for international prosecutions 
of individuals in certain cases, and that is ongoing in the United 
Nations International Law Commission. Of course, the most strik- 
ing example there is the Yugoslav War Crimes Tribunal which has 
been recently created. 

There is another effort, the Draft Code of Crimes, which is trying 
to define criminal behavior. We have some difficulties with that, I 
think, in the substance and the political nature of it. 

Senator Heflin. Well, I was speaking of the International Law 
Commission's Draft Articles on Jurisdictional Immunities of States 
and Their Property, which has been considered by a working group 
in the United Nations. 

Ms. BOREK. Yes. 

Senator Heflin. How would that come into play relative to this? 

Ms. BOREK. Well, that illustrates, I think, where we are in terms 
of international law. When we first adopted the Foreign Sovereign 
Immunities Act, the effort was really to codify the view that States 
could be sued at all in any circumstances, and the area of greatest 
concern was in commercial dealings, especially with so many gov- 
ernments actively involved in commercial dealings on their own. 

Today, although you might think things had progressed quite a 
lot, that is still a big issue and there are still a number of countries 
which believe that governments shouldn't be sued at all or that the 
ability to sue them in commercial matters should be highly re- 
stricted. In terms of what we are talking about now, suing for torts 
generally, that is still far beyond the existing international practice 
and the views of other countries as to what the law might be. 

Senator Heflin. The liability in S. 825 is limited by the State 
Department's Hst of Nations which sponsor terrorism, such as 


Libya and Iran. In the spirit of reciprocity, these Nations have 
often tried to impose criminal penalties on U.S. officials within 
their domestic systems. Given that these criminal charges were ig- 
nored by the United States, why would civil charges be of concern? 
There have been some instances in which we have ignored those. 

Ms. BOREK. I am not specifically aware of these instances. If you 
want, I can try to provide a fuller answer on that basis. I would 
say, in terms of financial liability, two things. One is I think what 
we are concerned about here is the impact on international law and 
it might not be one of the terrorist countries that decides that they 
would like to execute against some of our assets. We are less in a 
position to ignore that sort of thing throughout the world than 
many countries might be because we have such a wide presence 
and so many assets abroad. 

Senator Heflin. Senator Grassley, do you have an opening state- 
ment or any questions you want to ask the witnesses? 



Senator Grassley. I have no opening statement. I would explain 
my absence, if you would allow me to, by saying I was across the 
hall at a markup of health care reform. I do want to participate in 
this discussion for a short period of time because I have had an in- 
terest in this legislation, as well as some legislation I got passed 
in other Congresses. 

As you know, it was 1992 when Congress enacted the 
Antiterrorist Act which allows American victims of terrorism to sue 
groups that commit the terrorism. The case that we had in mind 
at that time was the one of Leon Klinghoffer murdered by a faction 
of the PLO. His family is barred from suing by a short statute of 
limitations, but at least we have got a mechanism set up so if there 
is another such tragedy there can be a remedy. 

Now, this bill that we are dealing with, would have in mind spe- 
cifically, at least from the past, Pan Am 103 victims, as well as 
hostages held in Lebanon. It would allow them to sue the country 
of Libya, Lebanon, or Iran for damages. It seems unfair to allow 
a remedy for victims of a terrorist group, but not victims of State- 
sponsored terrorism against the Nation that is committing the ter- 

So my question to you is how would you distinguish the two that, 
from your point of view, one approach is all right, but not from the 
other point of view as far as the relief for a person to sue? 

Ms. BOREK. Well, the biggest, I guess, and obvious difference is 
that you are not affecting foreign sovereign immunity in the case 
where you sue the individuals. There are two aspects, I guess, to 
the thing. One is the extraterritoriality of jurisdiction and the other 
is the impact on foreign sovereign immunities, and it is when you 
have both present, I think, that we have to say that internationally 
this is going to be regarded as extreme and not consistent with 
international law. 

In terms of actually recovering, I don't think there is probably 
very much chance either way, either suing the individuals — obvi- 
ously, the difficulty is that they don't have money. With the gov- 
ernments, the difficulty is that it is not available, or if you might 


recover once they would take steps to make sure that was the last 

Senator Grassley. But your attention is focused upon the Nation 
that caused the problem. My attention is focused on the poor vic- 
tims and some sort of relief that they have. You are right. Maybe 
as a practical matter, it is very difficult to collect in these in- 
stances, but whatever tool it is, it is one more tool that is available. 

It would seem to me that if it is very doubtful anybody would col- 
lect, then what is the bad aspect of putting such a provision on the 
books so that we have another tool available to our people? 

Secondly, why does the State Department believe that allowing 
private individuals to sue foreign governments for barbaric acts of 
terrorism would create a potential national security threat? 

Ms. BOREK. Well, national security threat potentially is perhaps 
a colorful way of putting it, but basically we have negotiations 
going with many countries on the terrorist list over important is- 
sues, such as the Middle East peace process, nonproliferation, and 
in some cases active hostage-taking and the release of the hostages. 
The prospect of litigation and threatened or existing judgments is 
very Hkely to become an issue in these negotiations, which could 
complicate it in unpredictable ways. So I mean that is a concern. 

Senator Grassley. From the standpoint of the State Department 
or our Government generally, if a person who has been harmed 
isn't permitted to sue a foreign government, then how would our 
Government propose that these victims receive compensation for 
their injury and their pain and their continuous loss, or should that 
not be a concern of our Government? 

Ms. BOREK. Well, different things have been pursued in different 
cases. As a minimum sort of benefit, there is, of course, the hostage 
legislation. In some cases, we have been able actively to pursue and 
even achieve remedies. In the case of Pan Am 103, for example, we 
are vigorously pursuing both criminal justice and compensation for 
the victims against the perpetrators of this terrorist act. 

Senator Grassley. I would like to pick up on the reciprocity 
issue that Senator Heflin discussed with you. As I understand it, 
the State Department's main concern about this legislation is they 
fear that foreign States will take reciprocal action, resulting in the 
U.S. being brought into foreign courts to account for the actions of 
U.S. law enforcement agencies taken on U.S. soil. 

However, since the Letelier case decision in 1980, U.S. law en- 
forcement agencies can be held accountable for their activities 
abroad. It is my understanding that there has not been a flood of 
such litigation. Therefore, what is the basis for the Department's 
reciprocity concerns? 

Mr. SCHIFFER. I would emphasize that Letelier, Senator, is a good 
example of a case where indeed it took time, but the State Depart- 
ment, working with the new government of Chile, was able to as- 
sist in obtaining relief for Letelier, and that was an act that oc- 
curred in this country. Our concern is really at its height when we 
talk about imposing responsibility on foreign governments in our 
courts for acts that occur abroad. 

While we certainly would not say that we engage in any of the 
types of conduct that this act is designed to address, we do have 
massive presence of law enforcement personnel and others abroad 


and we have people who interact in this country with foreign na- 
tionals. It is those concerns, not the precise type of conduct, but the 
fact that the Foreign Sovereign Immunities Act currently conforms 
to what we think are international norms, and when we start going 
beyond that, that is when we create exposure for our property. 

Senator Grassley. Don't we believe, though, that if a U.S. citi- 
zen or even our own officials have engaged in such conduct else- 
where, they should be held accountable as well? 

Mr. SCHIFFER. We certainly observe the rule of law, but what we 
are concerned about is submitting to the jurisdiction of foreign 
courts to interpret for themselves the validity of actions that we 
take in our national interest. 

Senator Grassley. This bill grants the State Department control 
over determining which countries can be held liable for their ac- 
tions. These are Nations that repeatedly receive public condemna- 
tion by our country. In fact, these are Nations that have tried to 
impose criminal penalties upon U.S. officials within their domestic 
systems. As you know, Libya indicted Reagan and others. In every 
instance, it was to no avail and of no concern to the United States. 
Therefore, what realistic concern of reciprocity could S. 825 truly 

Ms. BOREK. Well, I think the potential here is not on a — well, in 
some cases it could be on a tit-for-tat basis, but the greater poten- 
tial is to create a precedent which anyone can take advantage of. 
We have had complaints — they haven't become really serious mat- 
ters, luckily, to date — about the behavior of law enforcement ac- 
tions, attempts to sue people for carrying out routine law enforce- 
ment actions that we don't think involve any individual responsibil- 

People can be, for domestic reasons, quite interested in pursuing 
some of these cases and we will be providing a clear precedent 
which they can take advantage of. So with the exposure that the 
United States has throughout the world, it might not be Libya 
today because we have relatively few dealings with them, but it 
could be another country, or even some day it could be Libya. 

Senator Grassley. Well, isn't there some inconsistency when our 
State Department doesn't object to U.S. citizens suing foreign gov- 
ernments for an act of terrorism on U.S. soil, and yet an act of ter- 
rorism created by another country against our citizens not on U.S. 
soil — we object to that? 

Ms. BOREK. It is much more common for countries to permit tort 
suits for things which occur within their own countries, although 
even though even that is not universal. I mean, important coun- 
tries such as France don't allow tort suits against foreign govern- 
ments at all. 

Under current law, there have been a few cases allowing actions 
for murder. It wasn't necessarily styled as terrorism, and that may 
be desirable because it is a little less inflammatory from the point 
of view of the government that is sued. But it is clearly much less 
troublesome in terms of international law and practice to allow 
suits for activities that occurred within the United States. 

Senator Grassley. Thank you, and thank you, Mr. Chairman. 

Senator Heflin. Senator Specter, do you have an opening state- 
ment or some questions? 


Senator Specter. Mr. Chairman, I thank you. I regret being late 
for the hearing. We are debating the Whitewater resolution on the 
floor this morning and the Republican Leader, Senator Dole, asked 
me especially to be there so, I must return to the floor. 

I am the sponsor of the bill and I have some testimony to pro- 

Senator Heflin. Yes, that is right. 

Senator Specter. So the question is whether I do it here or there 
and I think it would be 

Senator Heflin. Which would you like to do? Whatever you 
would prefer, we will accommodate your schedule. 

Senator Specter. Well, I think I would prefer to do it as a wit- 
ness, if I might, Mr. Chairman. 

Senator Heflin. All right. Do you want to ask these witnesses 
some questions? 

Senator Specter. No, I do not intend to ask them questions. 

Senator Heflin. Well, let me, before we leave, ask one question 
of Mr. Schiffer. Making a hypothetical case, we will say in Iraq a 
U.S. Government official is subject to being detained and suffers 
some loss. It doesn't come within the purview of this torture act or 
immunity, but he receives substantial damages. Then you have, on 
the other hand, a person who is a nongovernment employee. What 
is the distinction between remedies that could be recovered by the 
U.S. Government official as opposed to a U.S. citizen who is not a 
government employee? 

We could use the same situation in regard to some of the hos- 
tages and things of that sort. I am making the distinction between 
a Government employee who is apprehended by a country that is 
the terrorist Nation list and an American citizen who is not a U.S. 
Government employee. I am trying to make the distinction between 

those two. 

Mr. Schiffer. I am not sure that there is a distinction. 

Senator Heflin. I would assume that the U.S. Government em- 
ployee would have certain workers compensation rights and things 
like that, or else some remedies that would be available to him for 
monetary damages that he would suffer. 

Mr. Schiffer. He or she might well have workers compensation 
rights, but in terms of actions in the courts, I am not sure that 
there would be a distinction. 

Senator Heflin. Well, it could well be that there are some other 
remedies. I am not sure about this. The thought just occurred to 

Thank you for your testimony. We appreciate it. 

Mr. Schiffer. Thank you, Mr. Chairman. 

Senator Heflin. We will now hear from Senator Specter. 


Senator Specter. Thank you very much, Mr. Chairman. At the 
outset, I thank you. Senator Heflin, for convening these hearings, 
which were postponed once because of conflicting schedules. 

I believe this is very important legislation because of the basic 
rights of American citizens to sue foreign governments for abso- 
lutely outrageous, barbaric, brutal treatment. I also beHeve that 


the provisions of the existing statute ought to be amended to pro- 
vide expanded jurisdiction. The reasons for governmental immunity 
and the concerns over reciprocity are really minimal compared to 
what is involved in seeking to punish the illegal conduct of foreign 

The Foreign Sovereign Immunities Act precludes these suits at 
the present time. My bill, S. 825, would give the Federal courts ju- 
risdiction over suits for damages for personal injury or death 
brought against a foreign government if that country has commit- 
ted, caused or supported an act of terrorism against an American 
citizen or resident alien. The foreign country could be sued only if 
the State Department has listed it as a supporter of international 

Mr, Chairman, as you know, I have introduced legislation in the 
past on the issue of diplomatic and foreign immunity. I understand 
the concerns which the State Department has expressed, but the 
problem of terrorism is an international plague. 

In my floor statement when I introduced the bill, I summarized 
some of the statistics. In the past 10 y2 years more than 6,500 
international terrorist incidents have been reported worldwide, 
leaving more than 5,100 people dead and 12,500 wounded, and 
about 2,500 of those attacks were against American targets. As of 
May 1992, American casualties since 1980 totaled 587 dead and 
627 wounded. 

I cite with some particularity the incident of Joseph Cicippio, 
who is with us today. Mr. Cicippio is a neighbor of mine who lives 
up Ridge Avenue. It is a short ride from East Falls, where I live, 
in the city of Philadelphia across the county line to Norristown. 

Mr. Cicippio was taken hostage on September 12, 1986, while 
serving as the deputy comptroller of the American University in 
Beirut. He was kidnapped by a group self-styled the Revolutionary 
Justice Organization and he was held until December 2, 1991. 
There are other hostages — ^Alan Steen, Terry Anderson, David Ja- 
cobsen, and many, many others. 

Without going into the details of Mr. Cicippio's case, because he 
is going to be a witness and provide his own testimony, the reports 
are that the treatment he and the other hostages received was just 
absolutely barbaric. Hostages were chained and bound, left out to 
the elements, taunted, threatened with execution, starved, beaten. 
Any kind of mistreatment that can be conceived of, these hostages 
have been subjected to it. 

The situation is exacerbated by the fact that foreign governments 
provide support, both political and financial. The Hezbollah, the 
umbrella organization for many militant Shiite Muslim terrorist 
groups in Lebanon, including the Revolutionary Justice Organiza- 
tion, collaborates with the political leaders of Iran. It is reported 
that Iran has spent $30 million during 1985 and more than $64 
million in 1987 in Lebanon mainly in the form of donations to 
Hezbollah and other terrorist organizations. 

These foreign governments that support terrorism have assets in 
the United States, and there is just no reason whatsoever why they 
shouldn't be subject to suit. There is a category of international 
crime where there is jurisdiction in a criminal context wherever the 
offense occurs. As you know. Senator Heflin, Chief Justice Heflin, 


Judge Heflin, criminal jurisdiction customarily attaches only where 
the crime occurs, so that if a crime occurs in Washington, DC, only 
the District of Columbia has jurisdiction. There are a few excep- 
tions, like piracy, which is an international crime. A pirate may be 
prosecuted criminally wherever he may be found. 

Torture is similarly an exception to the customary law on juris- 
diction. Somebody who commits torture may be prosecuted wher- 
ever that person may be found and if found in this country can be 
sued under the Torture Victim Protection Act, which I sponsored, 
where a foreign government is a co-conspirator, an accessory before 
the fact or an accessory after the fact, it is just unconscionable that 
we should not allow our citizens to utilize our courts. They would 
have to prove their case against the foreign government in order 
to sustain a judgment and collect on it, but I think our courts 
ought to be open to hear such claims. 

I thought it preferable, in custom with our general rules, Mr. 
Chairman, to come down here to the witness table. That will not 
stop me from lobbying you appropriately in the corridors or on the 
Senate floor, or making arguments when the matter comes before 
the Judiciary Committee. 

I do thank you for conducting the hearing. I know how crowded 
your schedule is, but I think this is an important matter. 

Senator Heflin. Well, thank you, Senator Specter. If you want 
to come back up and question the other witnesses, we would be de- 
lighted for you to do so. 

Senator Specter. Thank you very much. 

[The prepared statement of Senator Specter follows:] 

Prepared Statement of Senator Arlen Specter 

Mr. Chairman, from 1984 to late in 1991, American citizens were held hostage 
in Lebanon by terrorist groups sponsored and funded by the Government of Iran. 
Since their release, many of these former hostages have continued to suffer from 
the physical and emotional trauma that their periods in captivity thrust upon them. 
Were a similar situation to occur in this country, the injured party would have ac- 
cess to the judicial system to seek redress in the form of monetary damages in addi- 
tion to any criminal kidnapping charges. Because the perpetrator behind these acts 
of terrorism in Lebanon was a foreign government, however, the aggrieved parties 
cannot seek redress in American courts because of the immunity granted to foreign 
nations under the Foreign Sovereign Immunities Act. To remedy this travesty for 
future victims, I am today introducing legislation to amend the Foreign Sovereign 
Immunities Act. , i j 

Since 1980, more than 6500 international terrorist incidents have occmred world- 
wide, leaving more than 5100 people dead and 12,500 wounded. About 2500 attacks 
were' against American targets. As of May, 1992, American casualties since 1980 
have totaled 587 dead and 627 wounded. 

Of particular concern and notoriety was the taking of American hostages in Leb- 
anon. On September 12, 1986, Joseph James Cicippio, of Norristown, Pennsylvania, 
deputy comptroller of the American University of Beirut, was kidnapped by some 
group self-styled the "Revolutionary Justice Organization." He was held until De- 
cember 2, 1991, when, in the span of a few remarkable days, the ordeal of the Amer- 
ican hostages ended with the release of the last three hostages, Mr. Cicippio, Alann 
Steen, and Terry Anderson. ^ , 

"Ended," however, is a relative term, for the ordeal is still not really over for the 
former hostages. Released hostages reported that they were tortured by their cap- 
tors. The torture took many forms. Hostages report that they were beaten, starved, 
chained and bound, exposed to the elements, blindfolded, taunted, subjected to 
threatened executions, and denied medical and hygiene facilities. Some former cap- 
tives still suffer from the pain of numerous beatings, especially to their feet. Alann 
Steen is reported to suffer still from beating-related seizures. Lost time with friends 
and famiUes cannot be replaced: Terry Anderson's daughter was bom and had 


turned foiir before he was released from captivity; Joseph Cicippio's older sister, and 
his son, Joseph Jr., died while he was held hostage. The pain of their ordeals may 
never end; the suffering in their hearts may never cease. 

What exacerbates any feeling of antipathy is the knowledge that a foreign govern- 
ment provided the support, both politically and financially, for the captors to keep 
their victims. Hezbollah, the umbrella organization for many militant Shia Moslem 
terrorist groups in Lebanon, including the "Revolutionary Justice Organization,' 
closely coUaborates with the leadership in Iran. The collaboration is reflected in the 
financial support which it receives from Iran. It is reported that Iran spent $30 mil- 
lion during 1985 and more than $64 milUon during 1987 in Lebanon, mainly in the 
form of donations to Hezbollah. Iran's control over the hostage-takers remains un- 
clear, but Government officials have estimated that their control ranged from gen- 
eral to complete. Regardless, Iran's role in the taking and keeping of American hos- 
tages underscores the need for this legislation, because under the Foreign Sovereign 
Immunities Act as it now stands, the former hostages are probably precluded from 
successfully pursuing legal action against Iran or any other foreign sovereign for 
sponsoring terrorist activity. 

This legislation would amend the Foreign Sovereign Immumties Act by giving 
Federal courts jurisdiction over any suit brought in this country against any foreign 
country that has been formally listed by the State Department as a supporter of 
international terrorism, if that foreign state has committed, caused, or supported an 
act of terrorism against an American citizen. The legislation would also enable the 
court to freeze all assets of the defendant country located within the United States 
sufficient to satisfy a judgment. The bill also provides for a six year statute of limi- 
tations. ,J /. ,1 iV TT -1. J 

This legislation is important for several reasons. It would further the Umted 
States policy of opposing domestic and international terrorism and would dem- 
onstrate to the world that the United States and its people are prepared to act to 
combat and respond to terrorist acts. It also reinforces our commitment to the rule 
of law, and in so doing makes clear the contrast between our nation which abides 
by the principles of international law and outlaw nations such as Iran, which do 

not. , ... .• i. 

This legislation would let foreign sovereigns know that states which practice ter- 
rorism or actively support it will not do so without consequence. When there is 
ample evidence that a foreign state supports terrorism so that the State Department 
has placed that nation on a hst of nations that sponsor terrorism, this legislation 
will allow United States citizens, acting according to lawful process in our courts, 
to protect their interests and seek compensation for the harm done to them. 

State-sponsored terrorism has become a hallmark of certain regimes seeking to 
influence the political decisions made by the elected representatives of the people 
in our democracy. None of these nations that actively support state-sponsored ter- 
rorism is itself democratic. Countries such as Libya, Iran, Cuba, North Korea, and 
Iraq will be less likely to support terrorism directed against the citizens of this 
country when they know that their actions will lead to damages paid to the victims 
of their terrorism who are United States citizens. 

Iran reportedly paid $1 to $2 million for each hostage released to the various fun- 
damentalist groups under its control, after paying for the up keep and confinement 
of those hostages. This money would be better spent aiding the former hostages as- 
similate back into their lives and would create a real, measurable cost to Iran for 
supporting their captivity. 

This amendment would also provide additional incentive to other nations to com- 
ply with the principles of international law, which condemn terrorism and attacks 
on innocent citizens of another nation. When a nation's refusal to comply with inter- 
national law leads to compensation to the victims of its actions, those nations that 
violate international law will see it as more practical, and beneficial, to change their 
policies. As demonstrated by the success of combatting terrorism during the height 
of the Gulf War when the international comm.unity agreed to work together to pre- 
vent terrorism, much can be accomplished. Supporting this legislation will allow 
Americans to play a role in enforcing international law by giving them redress 
against those nations that actively violate international law. 

United States counter-terrorism poUcy is based on three principles: first, the Unit- 
ed States makes no concessions to terrorists holding official or private American citi- 
zens hostage; second, the United States cooperates with friendly countries in devel- 
oping practical measures to counter terrorism; and third, the United States works 
with other countries to put pressure on terrorist-supporting states to persuade them 
that such support is not free. While these principles serve the policy of the United 
States government, they do little to address the concerns of individuals who have 
been the victims of international terrorism. In order to address the individual prob- 


lems and results of terrorism, individuals must be able to seek redress for them- 
selves. United States lawr should aid American citizens in this pursuit, not hinder 
them. Supporting this legislation would serve the purpose of aiding American citi- 
zens, while supporting America's counter-terrorism goals. 

I note flnalfy that the purpose of the Foreign Sovereign Immunities Act was to 
shield foreign nations, as opposed to foreign nationals, from the jurisdiction of 
American courts for sovereign acts. This is a salutary policy that promotes the pur- 
suit of American foreign policy interests and goals. I nave no desire to attack this 
policy projecting foreign nations from suit. This legislation is very narrowly crafted 
to create a slight breach in the immunity enjoyed by foreign governments. Only 
those nations formally recognized by the State Department as active supporters of 
state-sponsored terrorism could be sued. Thus, this legislation should have no effect 
on the ability of the President and officers of the Executive to control U.S. foreign 
policy. While I understand the possible reluctance to open the door to suing foreign 
nations at all, I beheve that the circumstances here are compelling. Terrorism vio- 
lates all principles of international law. If a nation is formally recognized by the 
United States Government as a sponsor of terrorism, there can be no valid argu- 
ment allowing that nation to retain its immunity under American law for the harm 
committed in pursuit of its terrorist policies. 

I ask unanimous consent that a copy of my legislation be printed in the Record 
at the conclusion of my remarks. I thank the Chair and I yield the Floor. 

[Text of S. 825 follows:] 



103d congress 
1st Session 


To amend title 28 of the United States Code to permit a foreig:n state 
to be subject to the jurisdiction of Federal or State courts i'.\ any 
case invoh-ing an act of international terrorism. 


April 27 (legislative day, April 19), 1993 

Mr. Specter introduced the following bill; which was read twice and referred 

to the Committee on the Judiciar\- 


To amend title 28 of the United States Code to permit 
a foreign state to be subject to the jurisdiction of Federal 
or State courts in anj^ case invohnng an act of inter- 
national terrorism. 

1 Be it enacted hy (lie Senate and House of Representa- 

2 tives of the United States of America in Congress assembled, 




6 (a) Definition.— Section 1603 of title 28, United 

7 States Code, is amended by adding at the end the 

8 follo\ving: 



1 "(f) The term 'act of international terrorism' 

2 means an act — 

3 "(1) which is violent or dangerous to 

4 human life and that is a violation of the crimi- 

5 nal laws of the United States or of any State 

6 or that would be a criminal ^^olation if commit- 

7 ted \\ithin the jui-isdiction of the United States 

8 or any State; and 

9 "(2) which appears to be intended — 

10 "(A) to intimidate or coerce a ci\ilian 

1 1 population; 

12 "(B) to influence the policy of a gov- 

13 ernment by intimidation or coercion; or 

14 "(C) to affect the conduct of a gov- 

15 • ernment by assassination or kidnapping. 

16 "(g) The term 'permanent resident alien' means 

17 an alien who has been laAxfull}' admitted to the 

18 United States for permanent residence.". 

19 (b) Additional Exception to Foreign State Im- 

20 MUNiri'.— Section 1605(a) of title 28, United States 

21 Code, is amended — 

22 (1) by striking "or" at the end of paragi-aph 

23 (5); 

24 (2) by striking the period at the end of para- 

25 graph (6) and inserting "; or"; and 

•S 825 IS 



1 (3) b}- adding at the end the following new 

2 paragraph: 

3 "(7) in which the action is based upon an act 

4 of international terrorism — 

5 "(A) A\ithin the United States, or 

6 "(B) outside the United States if money 

7 damages are sought against a foreign state for 

8 personal injuiy or death to a United States citi- 

9 zen or permanent resident alien, 

10 whicli act occurred not more than 6 years previously 

11 and which was committed or aided or abetted by a 

12 foreign state that was designated by the Secretary of 

13 State as a state repeatedly providing support for 

14 acts of international terrorism under section 40(d) 

15 of the Arms Export Control Act.". 

16 (c) Property Subject to Execution Upon a 

17 Judgment.— Section 1610(a) of title 28, United States 

18 Code, is amended — 

19 (1) by striking "or" at the end of paragi-aph 

20 (5); 

21 (2) by striking the period at the end of para- 

22 graph (6) and inserting "; or"; and 

23 (3) by adding at the end the following new 

24 paragi'aph: 

•S 825 IS 



1 "(7) the execution relates to a judgment en- 

2 tared in a case based upon an act of international 

3 terrorism — 

4 "(A) \\ithin the United States, or 

5 "(B) outside the United States if money 

6 damages are sought against a foreign state for 

7 personal injurj' or death to a United States eiti- 

8 zen or permanent resident alien, 

9 which act occurred not more than 6 years previously 

10 and which was committed or aided or abetted by a 

1 1 foreign state that was designated by the Secretary of 

12 State as a state repeatedly providing support for 

13 acts of international terrorism under section 40(d) 

14 of the Arms Export Control Act.". 

15 (d) Attachment of Property Prior to Entry 

16 of Judgment. — Section 1610(d) of title 28, United 

17 States Code, is amended — 

18 (1) by redesignating paragraph (1) as para- 

19 graph (1)(A); 

20 (2) by striking "and" at the end of paragraph 

21 (1)(A) and inserting "or"; and 

22 (3) by inserting after paragi'aph (1)(A) the fol- 

23 lowing: 

•S 825 IS 



1 "(B) the foreign state is not immune from ju- 

2 risdiction by virtue of the operation of section 

3 1605(7); and". 


•S 825 IS 


Senator Heflin. Our panel is composed of Mr. Abraham Sofaer, 
who is the former legal adviser for the State Department; Mr. Chad 
Hall, a former hostage; Mr. Joseph Cicippio, a former hostage; Mr. 
David P. Jacobsen, a former hostage; and Mr. Hugo Princz, a 
former hostage. 

If you all would come forward to the table, your prepared state- 
ments will be admitted into the record, and if you would summa- 
rize in 5 minutes, the light will come on, the caution light at 4, and 
the red light is the ending at 5 minutes. 

Mr. Princz, since you are there first, we will start with you and 
we will go right down the list. 



Mr. Princz. Mr. Chairman and members of the subcommittee, 
thank you for the opportunity to tell my story as an American holo- 
caust survivor denied reparation by the Federal Republic of Ger- 
many for 40 years precisely because of my U.S. citizenship. 

My experience underscores why the Foreign Sovereign Immuni- 
ties Act should permit suits by Americans injured abroad by for- 
eign governments. Senator Specter deserves credit for his bill's sup- 
port of this principle. I also want to thank my Senators, Lauten- 
berg and Bradley, and Senators Lieberman, Kerry of Massachu- 
setts and D'Amato of New York, and my Congressman, Frank 
Pallone of New Jersey, for their outstanding leadership in my fight 
for compensation. 

Mr. Chairman, my name is Hugo Princz. I am 71 years old and 
I live in Highland Park, NJ. I was bom in what is now the Repub- 
lic of Slovakia in 1922 to an American businessman. I was a U.S. 
citizen at birth. In 1942, my family was arrested by the Nazis, who 
ignored our valid U.S. citizenship papers because we were Jewish 
Americans. Those papers should have made us part of the Red 
Cross civilian prisoner exchange then ongoing. Instead, we were de- 
ported to the Maidanek camp. 

My parents and older sister and her three children were sent to 
the Treblinka death camp. I never heard from them again. I found 
out in the summer of 1942 that the whole camp at Treblinka was 
annihilated. Believe it or not, I was relieved. I was almost happy 
that they didn't have to suffer anymore. Can you imagine how a 
mind can work, even mine? 

My brothers and I were sent from Maidanek by cattle car to 
Auschwitz, where we were formally registered as American Jews 
on our identity cards. We worked as slave laborers. On my first day 
arriving there, I collected dead bodies, stacking them like lumber 
for later incineration. Both of my brothers were intentionally 
starved to death after suffering work-related injuries. Mr. Chair- 
man, I will never forget the sight of my 14-year-old brother in that 
so-called hospital as long as I live, a living and then dying skeleton. 


From Auschwitz, I was sent to the Warsaw Ghetto. This was a 
couple of months after the uprising. From there, I went on a death 
march to Camp Dachau. I was enslaved in a Messerschmitt under- 
ground airplane factory. In 1945, the Nazis, seeking to erase evi- 
dence of war crimes, placed surviving inmates on a death train 
headed toward the Swiss Alps. It was intercepted by U.S. armed 
forces and I was liberated. The plan was to annihilate everybody. 
This evidence was admitted by Eichmann at the trial in Israel. 

The Army saw "USA" on my camp jersey and sent me to a U.S. 
military hospital for treatment. I was in bad shape. While that ac- 
tion saved my life, it later affected my ability to receive reparations 
from Germany. With my entire family exterminated, I arrived in 
Pennsylvania in 1946 to try and rebuild my life. 

In 1955, the Federal Republic of Germany initiated its conipensa- 
tion program for survivors, to which I made timely application. 
However, I was refused because I was an American citizen when 
captured and later rescued and was sent to the U.S. Army hospital. 
I did not meet the criteria for reparations eligibility. 

The Federal Republic of Germany has steadfastly denied me my 
pension in the intervening 40 years, despite the best efforts of the 
Congress and the State Department, and even though I believe I 
am the only known survivor in my situation and seek merely the 
same reparations as Germany has provided others who were Ger- 
man or European nationals during the Holocaust. Why am I less 
deserving just because I am an American? Up to this point $74 bil- 
lion was paid out to survivors. I never received a cent because I 
was an American citizen. 

After exhausting diplomatic remedies, I sued the Federal Repub- 
lic of Germany in Federal district court in Washington. In Decem- 
ber 1992, Judge Sporkin denied Germany's motion to dismiss for 
lack of jurisdiction under the Foreign Sovereign Immunities Act. 
Germany's appeal of that decision is now pending in court. 

Mr. Chairman, the House and Senate have both passed unani- 
mous resolutions on my behalf and continue to support me in var- 
ious ways. Such press on CBS, CNN, and the Washington Post 
have run major pieces on my plight. The American Jewish commu- 
nity has rallied 

Senator Heflin. Mr. Princz, we do have a time problem and if 
you would summarize in about a minute, Congressman Pallone, I 
understand, has come in and he was going to introduce you. Maybe 
we will give him a word or two, so if you will summarize in about 
a minute, please. 

Mr. Princz. OK; perhaps most important, the President and Vice 
President have each personally appealed to the German Chancellor 
on my behalf, while the Secretaries of State and Treasury have 
raised my case with their German counterparts. I am gratified by 
those efforts and that the U.S. calls my claim legitimate and com- 
pelling, beUeves I deserve to be quickly compensated, and will keep 
the case high on the U.S. -German agenda. 

Regrettably, the Chancellor brazenly rebuffed President Clinton's 
appeal in late January 1994, and Germany has indicated to the 
U.S. in the courts that it has no interest in resolving my case. I 
believe they want me to die first. Mr. Chairman, they couldn't kill 
me before and they are not going to succeed now. 


I expect the D.C. court to uphold jurisdiction, but this worry and 
uncertainty, combined with the lack of diplomatic movement, high- 
lights the need for a legislative fix to permit my case to proceed 
and thereby provide the State Department leverage to bring Ger- 
many to the negotiating table or face a public trial. 

The Schumer language from H.R. 934, the comparable House 
bill, should be added to S. 825 to permit American genocide victims 
to bring suit under the Foreign Sovereign Immunities Act against 
the perpetrators of such crimes. Only for this genocide exception is 
there no statute of limitations. The only criterion is that the victim 
be a U.S. citizen at the time of injury. 

Mr. Chairman, even such a provision became law so that my suit 
went forward, it would never bring back my family, nor relieve my 
nightmares of the camps and the physical pain I still suffer. It 
would never change that. I have spent 40 years fighting for justice, 
time in which my family has suffered greatly because Germany 
continues to wage war against me because I am an American citi- 

But this bill, Mr. Chairman, would, if amended, help correct a 
terrible injustice, an injustice inflicted upon me as an American 
Jew whose citizenship did not protect him from the Nazis in 1942 
when it should have, and which perversely continues to be used by 
Germany as a shield to shirk its responsibility to me today. 

Thank you. 

[Hugo Princz submitted the following materials:] 

Prepared Statement of Hugo Prinz 


Mr. Hugo Princz appreciates the opportunity to comment on the need for amend- 
ments to the Foreign Sovereign Immunities Act. Mr. Princz has engaged in a 40- 
year effort to obtain reparations from the Federal Republic of Germany for crimes 
against humanity committed against him while incarcerated in Auschwitz and Da- 
chau as a U.S. national. 

The President, Vice-President and Secretary of State of the United States have 
personally interceded, to no avail, at the highest levels of the German government 
on behalf of Mr. Princz. Their thwarted efforts demonstrate the necessity for amend- 
ments to the Foreign Sovereign Immunities Act ("FSIA ") which would support the 
Department of State in its efforts to obtain compensation for U.S. nationals 
extralegally injured by foreign states in the course of state-sponsored genocidal and 
terrorist activities. 

Mr. Princz and his family were American citizens residing in Europe during 
World War II. In 1942, they were arrested by the Nazis who, ignoring tneir valid 
U.S. passports — which should have made them part of an International Red Cross 
civilian prisoner exchange then underway — on the ground that they were Jewish 
Americans, instead deported them to concentration camps where all were 
exterminated except for Mr. Princz. He was liberated in 1945 by U.S. Army person- 
nel which recognized him as an American by the "USA" stenciled on his camp garb 
by German authorities. 

Having come to the U.S. in 1946, Mr. Princz made timely application in 1955 to 
the reparation program set up by Germany post-war. However, the German govern- 
ment refused him a survivor's pension or other reparations in 1955 and throughout 
the intervening 40 years solely because, as an American survivor of the camps, he 
did not — and does not — fit the German criteria for reparations eligibility. Having ex- 
hausted diplomatic remedies, he was therefore forced to sue Germany in Federal 
District Court in Washington in March, 1992. 

This testimony is divided into two parts. The first part is a statement from Mr. 
Princz telling the story of his capture, incarceration and attempts to obtain repara- 
tions after the war. The second part is a statement from Mr. Princz' co-counsel, Ste- 
ven R. Perles, Esq., of Steven R. Perles, P.C. and William R. Marks, Esq., of Powell, 


Goldstein, Frazer & Murphy, discussing the legal, diplomatic and historical back- 
ground of the Princz case and the deficiencies in the FSIA which warrant a "geno- 
cide" exception. Also discussed by counsel are suggested technical changes related 
to the application of the collateral order doctrine and Federal Rule of Civil Proce- 
dure 60(b) to Foreign Sovereign Immunities Act litigation which, although unrelated 
to the problem of jurisdiction, the Subcommittee may wish to consider concurrently 
with the proposed amendments. 

Mr. Chairman and Members of the Subcommittee: Thank you for giving me 
the opportunity to tell my story before this Subcommittee and to state why I believe 
the Foreign Sovereign Immunities Act ("FSIA ") needs to be changed, based upon 
my experience as an American Holocaust survivor seeking reparations from the Fed- 
eral Republic of Germany ("FRG "). 

As you may know, after the Department of State exhausted all then-available dip- 
lomatic remedies, I sued the FRG in Federal District Court here in Washington be- 
cause of my enslavement by the Nazis in a series of concentration camps during 
WWII, the murder of my entire American family, and the refusal of the FRG to pro- 
vide me with reparations as it has others who were German or European nationals 
during the Holocaust. Some 50,000 survivors who becanie naturalized U.S. citizens 
after the War have been receiving the benefits I am seeking. 

I also want to commend Senator Specter for his leadership in crafting S. 825 and 
his support of the principle that American citizens who suffer serious injury abroad 
at the hands of foreign governments should have recourse, under certain cir- 
cumstances, in U.S. courts. Finally, I want pubhcly to thank your colleagues and 
my two Senators, Senators Lautenberg and Bradley, for their outstanding and long- 
standing leadership on mv behalf, and Senators Lieberman, Kerry of Massachusetts, 
D'Amato and Dole for their strong and consistent support of my cause. On the 
House side, my Congressman, Frank Pallone, also deserves special mention for lead- 
ing my fight for compensation. 

Following my prepared statement, I have attached a statement from my co-coun- 
sel, Steven Perles of Steven R. Perles, P.C, and William R. Marks of Powell, Gold- 
stein, Frazer & Murphy, who discuss the legal, historical and diplomatic background 
of my case against Germany, as well as the deficiencies in the FSIA which warrant 
a "genocide" exception. 

Mr. Chairman, my name is Hugo Princz. I am 71 years old, and live in Highland 
Park, New Jersey. I was born in what is now Slovakia on November 20, 1922, to 
an American businessman who, as was the style of the time, resided permanently 
abroad. My father took all of the necessary procedural steps to assure my U.S. citi- 
zenship at birth. At the time of the bombing of Pearl Harbor, I was an American 
teenager resident in German-occupied-Europe and considered a "neutral alien" by 
the Nazis. My family Hved a comfortable hfe. My father was a successful importer 
of agricultural equipment, held extensive fairm and other real estate holdings and 
owned a general store. 

The bombing of Pearl Harbor changed our residency status in Slovakia from neu- 
tral alien to enemy alien. Some ninety days later, we were arrested by the Nazi SS. 
My father showed our captors our valid U.S. passports and other official papers 
proving our American citizenship. These papers should have made us immediately 
eligible for an International Red Cross civilian prisoner exchange then underway. 
Instead, a Nazi officer tore up our papers, spit on them and said, "You are just 
Jews. The Americans don't want you back anyway." As a result, we were all de- 
ported to the Maidanek Concentration Camp. From there, my parents and sisters 
were sent to Treblinka, an extermination center. I never heard from them again. 

My two younger brothers and I were found fit enough to be slave laborers and 
were sent by cattle car to Auschwitz, where we were formally "registered" as Amer- 
ican Jews. My nationality, "USA", was stenciled across the chest of my prison garb. 
We were put to work as slave laborers at the Auschwitz-Birkenau synthetic fuels 
plant. One of my chores, among others, was collecting dead bodies and stacking 
them like lumber for subsequent incineration. Both brothers — including one who 
was only 14 years old — were intentionally starved to death in the so-called "hos- 
pital" at Auschwitz after suffering work-related injuries. Mr. Chairman, I will never 
forget the sight of my 14-year-old brother in that hospital as long as I live * * ♦ 
a living — and then dying — skeleton. 

From Auschwitz, I was sent to the Warsaw Ghetto to help "clean" it up after the 
uprising and salvage from the rubble whatever could be of use for the Nazis. After, 
I would participate in one of the War's "death marches"— from Warsaw to Dachau. 

At Dachau, I was enslaved in a Messerschmitt underground aircraft factory. We 
had little news of the War, except that the factory was being bombed nightly. One 


day I was selected for a work detail on the surface repairing bomb damage; it was 
still light outside. To my surprise, I heard bombers. I then realized the Germans 
had run out of ammunition — Allied day-time bombing had begun. I knew the war 
would soon be over. As the bombers approached, I saw they were American. In an 
act of euphoria, I started cheering and dancing about as my own countrymen 
dropped bombs on me. ^ , . 

Near the War's end, the Nazis — seeking to obUterate all evidence of their war 
crimes — selected me for execution. I was loaded onto cattle cars with others who had 
been selected and sent toward certain execution near the Swiss Alps. This train, mi- 
raculously, was intercepted by U.S. Armed Forces; I will never forget the day, the 
hour nor the minute of my rescue. 

The Army, recognizing me as an American by the "USA" stenciled on my camp 
garb— the Nazis throughout my incarceration knew I was an American Jew, for ex- 
ample having identified me as such on my Auschwitz identity card, which is now 
in Yad Vashem in Israel— sent me to a U.S. military hospital for immediate treat- 
ment. While that action probably saved my life, it would later pose a serious prob- 
lem for my ability to receive reparations from Germany. 

My entire family having been exterminated, I arrived in the U.S. in 1946 in order 
to try and rebuild mv Hte. With the help of relatives in Pennsylvania, I was able 
to find a footing, and ultimately married my lovely wife, Delores, in Pittsburgh in 

As a matter of historical note, while my Pennsylvania relatives were canng for 
me, the Czech Communists were busy stealing my father's real estate holdings and 
other assets that survived the war. The United States Foreign Claims Settlement 
Commission provided me with prorated compensation for that loss — some $12,000. 
I have never received anything for my family's loss at the hands of the Germans. 

In 1955, the Germans initiated its compensation programs for survivors of the 
camps, as a condition of the return of its sovereignty. I made timely application for 
that pension program. However, I was refused because, as an American citizen 
when capturea and later rescued, I was not considered a "stateless" person, was not 
processed through a Displaced Persons Camp and was not present in Germany on 
the qualifying date of January 1, 1947, all of which were mandatory German cri- 
teria for reparations eligibility. The fact that they could have expected me, after all 
I had been through, to remain in Germany almost two years after I had been liber- 
ated is absolutely astounding; I wanted to leave that country as fast as I possibly 

The FRG has steadfastly denied me my pension in the intervening 40 years, de- 
spite the best efforts of (Jongress— including, as early as 1984, Senator Bradley— 
the State Department and others, and even though I believe I am the only known 
survivor in my situation. Germany has thrown up as many procedural roadblocks 
as it possibly can, and continues to this dav to blame me for failure to obtain com- 
pensation, an assertion totally contradicted by the facts. 

After exhausting every conceivable diplomatic avenue, and in consultation with 
my litigation attorney, Mr. Perles, I decided to sue the FRG in 1992 in Federal Dis- 
trict Court here in Washington. I simply felt I had no other alternative. In Decem- 
ber, 1992, United States District Court Judge Stanley Sporkin denied Germany's 
motion to dismiss for lack of jurisdiction under the FSIA. Germany immediately ap- 
pealed that decision, and I am awaiting the decision of the United States Court of 
Appeals for the District of Columbia Circuit. 

I consider myself fortunate, Mr. Chairman, because my case has caught the atten- 
tion of Congress and the current Administration in ways I could never have 
dreamed of just a few months ago. Indeed, thanks in large part to the tireless efforts 
of Mr. Perles and Mr. Marks, the House and Senate have both passed unanimous 
resolutions on my behalf and continue to support me through letters and in other 
ways; the American Jewish community has rallied behind me; and, perhaps most 
important, the President and Vice President of the United States have each person- 
ally appealed to the Chancellor of Germany on my behalf, while the Secretary of 
State and Secretary of the Treasury have raised my case with their German coun- 
terparts. Indeed, the U.S. has taken the position that my claims are "legitimate and 
compelling", that I deserve to be "quickly compensated , and that the case will re- 
main "high" on the U.S. -German bilateral agenda until it is resolved. 

Regrettably, Mr. Chairman, Germany refuses to budge. The Chancellor brazenly 
rebuffed President Clinton's appeal in late January, 1994, and Germany has basi- 
cally told the U.S. and the court that it has no interest in negotiating a settlement 
in, or otherwise resolving, my case. Indeed, we believe they are counting on winning 
their appeal before the court so that the case is dismissed and they can then ignore 
me completely; either that or they want to drag it out so long that I die. Let me 
say this emphatically: they couldn't do it before, and they're not going to do it now. 


We remain confident that the court will uphold the finding of jurisdiction. None- 
theless, the very uncertainty associated with the process suggests that there should 
be a specific legislative "fix" to this problem, which would not only permit me to 
bring my case to trial, but would also provide the State Department with the lever- 
age necessary to try and force Germany to come to the negotiating table now so that 
it avoids a very public trial later. Such a fix would simply take the language from 
the comparable House version of Senator Specter's bill, H.R. 934, to permit Amer- 
ican victims of genocide to bring suit, under the FSIA, against the perpetrators of 
such ci*iiri6S. 

Mr. Chairman, even if such a bill were to pass and be signed into law, it would 
never bring back my family. It would never relieve my nightmares of Auschwitz, Da- 
chau, the Warsaw Ghetto and what I saw there. And it would never change the fact 
that i have spent forty years fighting for justice, forty years in which my family has 
suffered greatly because of Germany's continuing callousness toward me. But it 
would, Mr. Chairman, help correct a terrible injustice, an injustice inflicted upon 
me, as an American Jew, whose citizenship did not protect him from the Nazis in 
1942 when it should have, and which perversely continues to be used by Germany 
as a shield to shirk its responsibility to me today. 

Thank you. 


We represent plaintiff-appellee Hugo Princz in an action against the Federal Re- 
public of Germany ("FRG ") currently pending before the United States Court of Ap- 
peals for the District of Columbia Circuit. Mr. Princz seeks to recover compensation 
from the FRG for the injuries inflicted upon him while he was enslaved in the noto- 
rious Nazi death camps of Auschwitz and Dachau. This compensation has been re- 
peatedly denied him by the FRG because of his American citizenship at the time 
of his capture by the Nazis and later rescue by the U.S. Army. In addition to the 
litigation, we have been actively involved in efforts with the Legislative and Execu- 
tive branches to facilitate a settlement in the case. 

The Department of State has characterized Mr. Princz' claim for compensation as 
"legitimate and compeUing". However, in spite of the personal efforts of President 
Clinton, Vice President Gore and Secretary Christopher, the German government 
remains stalwart in its refusal to accept financial responsibility for the consequences 
of that nation's violations of all norms of international law against a U.S. national. 
Although we are confident that the Court of Appeals will affirm the decision of the 
U.S. District Court below finding jurisdiction in the case, the inability of the best 
United States diplomatic efforts to sway the FRG underscores the necessity of 
amending the Foreign Sovereign Immunities Act ("FSIA ") to provide judicial relief 
if diplomacy fails. Without it, the Department of State is relegated to the role of 
the well-intentioned but ineffectual "paper tiger". 

Mr. Princz' statement describes in detail the circumstances of his capture and 
subsequent enslavement by the Nazis, and his liberation by the U.S. Army. We 
therefore will not go into that here, except to underscore that his ability to survive 
such horrors helps explain why, forty years after liberation, he continues fiercely to 
fight for what is rightfully due him as a Holocaust survivor. 

Mr. Princz made timely appUcation in 1955 to the reparations program set up by 
Germany, as a condition of the return of its sovereignty. However, his claim for a 
survivor's pension was denied because when his U.S. Army liberators recognized 
him as an American and sent him to a U.S. Army hospital— and ultimately to the 
United States— instead of to a "Center for Displaced Persons", he no longer met 
Germany's mandatory criteria for reparations eligibility: he was not considered a 
"stateless" person, was not processed through a Displaced Persons Camp and was 
not present in Germany on the qualifying date of January 1, 1947. The FRG has 
steadfastly denied Mr. Princz his pension in the intervening 40 years, despite the 
best efforts of Congress, the State Department and others, and even though we be- 
lieve he is the only known survivor in nis situation. 

Following the exhaustion of diplomatic remedies, Mr. Princz filed suit against the 
FRG in March 1992. In December 1992, Judge Stanley Sporkin of the U.S. District 
Court for the District of Columbia denied Germany's motion to dismiss for lack of 
jurisdiction under the FSIA. Germany immediately appealed that decision, pursuant 
to the collateral order doctrine; a decision from the Court of Appeals for the D.C. 
Circuit is currently pending. In Diplomatic Notes and Executive Branch correspond- 
ence introduced into the record of the judicial proceedings, the Department of State 
has repeatedly described Mr. Princz' claims as "legitimate and compeUing, and 


stated that he deserves to be "quickly compensated" and that the case will remain 
"high" on the U.S. -German bilateral agenda until it is resolved. 

Germany's failure to accept financial responsibility towards Mr. Princz simply be- 
cause of his American citizenship at the time of his capture and later rescue, when 
it has distributed biUions in compensation to other Nazi death camp survivors, led 
to the introduction of S. Res. 162, a resolution relating to Mr. Princz, in early No- 
vember 1993, by Senator Lautenberg and Senators Bradley, D'Amato, Lieberman 
and John Kerry, later joined by Senator Dole. H. Res. 323, a companion resolution, 
was introduced in the House on November 21st by Rep. Frank Pallone (D-NJ) and 
a number of co-sponsors. 

S. Res. 162 passed the Senate by unanimous consent on November 21, 1993. H. 
Res. 323 passed the full House unanimously on January 26, 1994. Both resolutions 
called upon President Clinton and Secretary of State Cluistopher to raise the Princz 
case witn the Chancellor and Foreign Minister of Germany, respectively, and to take 
all appropriate steps necessary to ensure that fair reparations are expeditiously pro- 
videa Mr. Princz. The same message was communicated by the American Jewish 
community on December 27, 1993, when a letter signed by the presidents of a dozen 
maior Jewish organizations urged President CUnton to discuss the Princz matter 
with Chancellor Kohl at the January 1994 NATO Summit. A number of bipartisan, 
bicameral Congressional letters, initiated by Senators Lautenberg, Bradley and 
Lieberman and Congressman Pallone, and signed by numerous other Senate and 
House members, have since gone out to the President and Secretary of State urging 
forceful Administration action on behalf of Mr. Princz. Several of these letters are 
attached for the Subcommittee's review. 

In response to these entreaties, the Clinton Administration renewed attempts to 
achieve a diplomatic resolution of this matter, including conducting face-to-face dis- 
cussions between President Clinton and Chancellor Kohl. The D.C. Circuit entered 
an order effectively issuing an administrative stay of proceedings during the CUn- 
ton-Kohl discussions and me broader U.S. -German diplomatic dialogue and ordered 
the parties to report on the outcome of that acti-"ity. Chancellor Kohl rebuffed the 
President's request at their luncheon held here in Washington on January 31, 1994. 
Germany affirmed its decision to rebuff President Clinton oy sending its Diplomatic 
Note of February 2, 1994 to the State Department, indicating that it had no inten- 
tion of negotiating a settlement in, or otherwise resolving, the Princz case. Both we 
and the Germans independently reported to the Court the failure of these diplo- 
matic discussions. As of this date, the German Government persists in its refusal 
to be held accountable for the injuries it admittedly inflicted on Mr. Princz. 

The Administration and especially the Department of State deserve the highest 
praise for their repeated and forceful advocacy of Mr. Princz' claim. Unfortunately, 
this diplomacy has not yielded the desired results and, in light of continued German 
intransigence, seems unlikely to succeed. This reality therefore underscores the ne- 
cessity tor clarifying amendments to the FSIA to permit suit against foreign govern- 
ments which have committed crimes against humanity against United States citi- 
zens, yet refuse to negotiate reparations in good faith with the Department of State 
or, in this case, the President of the United States. 

Under international law, individuals have a right not to be deliberately and wan- 
tonly injured by a foreign state's commission of a crime against humanity, even 
while within that state's territory. This is recognized as jus cogens — a peremptory 
norm of international law. The United States Constitution specifically incorporates 
such rules into the law of the land. Since U.S. law recognizes this right, remedv 
in the form of a civil cause of action against the off'ending state should also be read- 
ily available to similarly-injured American citizens. 

The current language of the FSIA, as it has been interpreted by the federal 
courts, leaves the proper avenue for relief unsettled. As Judge Edwards has written, 
the Foreign Sovereign Immunities Act is "an area of the law that cries out for clari- 
fication by the Supreme Court. We confront at every turn broad and novel questions 
about the definition and appUcation of the 'law of nations"'. Tel-Oren v. Libyan Arab 
Republic, 726 F.2d 774, 775 (D.C. Cir. 1984), cert, denied, 470 U.S. 1003 (1985). A 
decision of the Second Circuit Court of Appeals further unsettled the issues and un- 
derscores deficiencies in the FSIA's current language. Even egregious actions such 
as Iran's taking of diplomatic hostages has been found insufficient for the invocation 
of jurisdiction. See Persinger v. Islamic Republic of Iran, 729 F.2d 835, 843 (2nd 
Cir.), cert, denied 469 U.S^ 881(1984) ("The heinousness of Iran's actions, however, 
is not sufficient to give this court jurisdiction to hear the plaintiffs' claims. "). 

In the Princz matter, for example, the only issue in contention is whether Ger- 
many enjoys immunity from suit in tort before U.S. Courts for its outlaw acts during 
the Nazi regime. Given that Grermany does not deny the factual allegations of Mr. 
Princz' complaint, the sole impediment to Mr. Princz receiving federal court-ordered 


reparations is Germany's belief that it enjoys absolute immunity from suit in the 
United States, even for jus cogens violations committed against a United States na- 
tional. Thus, the question which ultimately remains after Persinger, Tel-Oren and 
now Princz is whether the U.S. will continue to allow outlaw nations — or in Ger- 
man's case, a former outlaw nation— to rebuff the efforts of the Executive Branch 
to negotiate reasonable compensation for American victims of jus cogens violations, 
secure in the knowledge that their obstreperous conduct is of inconsequential legal 
effect in the United States. . 

Public policy would be well-served by the amendments to the FSIA proposed in 
S. 825. First, it would clarify an area of the law which, at best, could be presently 
described as muddled and uncertain. . ,. . 

Second, the effect of clarifying the law and affirming federal jurisdiction over 
Princz-type actions would be to give real "teeth" to the State Department m restitu- 
tion negotiations. If the Department of State had the ability to certify a restitution 
claim for judicial review, it would significantly enhance its negotiating leverage with 
the foreign sovereign. Currently, the State Department has Uttle leverage; for all 
its efforts, it still has not been able to get Germany to approach the bargaining 
table. German officials have rebuffed the efforts of all those working on Hugo 
Princz' behalf, including President Clinton, Vice President Gore, Secretary of State 
Christopher, and many members of Congress, aware that their refusals to negotiate 
will not have adverse legal consequences for them in the United States. 

Third, these amendments would also reinforce the United States' strong stand 
against terrorism. By assuring the remedy of a civil cause of action against any for- 
eign state engaged in such outlaw activities, they might cause the forei^ state to 
give pause prior to embarking on a course of egregious conduct. At a minimum, the 
amendments would serve as a tool of deterrence in the State Department's diplo- 

To strengthen these salutary effects, we would suggest that the Subcommittee 
consider revising these amendments to assure a remedy for Americans injured dur- 
ing foreign state-sponsored genocidal activities, as was Mr. Princz. Germany's con- 
duct during WWII was a far more outrageous violation of the norms of international 
law than are today's terrorist acts. Such changes might parallel the amendments 
sponsored by Representative Schumer of New York in H.R. 934, which have been 
adopted by the House Judiciary International Law Subcommittee, chaired by Con- 
gressman Mazzoli. u- u • 

We would also draw to your attention two procedural developments which impose 
significant obstacles, in the form of delays, increased costs, and uncertainty, to all 
plaintiffs in litigation involving the FSIA, including commercial claims. Although 
not directly related to the problems of jurisdiction, these developments may be rel- 
evant to the Subcommittee as it considers amending the Act. 

First, the D.C. Circuit in the Princz matter, consistent with other Circvut Courts 
of Appeals, ruled that under the collateral order doctrine, a foreign sovereign may, 
as a matter of right and without regard to the merits, appeal an adverse foreign 
sovereign immunity determination prior to trial (at the time normally reserved for 
interlocutory appeals). The effect is to delay every FSIA trial on the merits pending 
lengthy and expensive appeals on the issue of jurisdiction. This is facially inconsist- 
ent with the intended purpose of the FSIA— to put foreign government litigants on 
an equal footing with private party litigants. If Congress were to amend the Act to 
prohAit collateral order doctrine appeals, foreign governments, like private party 
litigants, could still appeal the denial of their motion to dismiss on an interlocutory 
basis, with the certification of the trial judge. If the trial judge refuses to certify, 
relief may be obtained at the appellate level under the All Writs Act, whereunder, 
upon a showing of error, the appellate court may grant a writ compelling the trial 
judge to certify the issue. Mexico, for example, has obtained such relief in the Ninth 
Circuit. See, Compania Mexicana de Aviacion. S.A. v. United States District Court 
for the Central District of California, 859 F.2d 1354 (9th Cir. 1988). 

To put this problem in perspective, before the Circuit Court of Appeals began to 
apply the collateral order doctrine to foreign sovereign immunity determinations, 
the question of immunity ordinarily could be appealed only after trial. For example, 
Germany, in a case arising out of a tree falling from its Embassy's property onto 
a public right-of-way and killing a passerby, lost the initial foreign sovereign immu- 
nity determination in the district court, was denied the opportunity for interlocutory 
appeal because the questions presented were not novel nor concerned unsettled 
questions of law, and promptly thereafter settled the case. 

In the Princz matter, however, Germany lost the initial immunity determination, 
took an appeal of that adverse decision as of right under the collateral order doc- 
trine, and in spite of the entreaties of the State Department and the President of 
the United States, still refuses even to begin negotiating in good faith to settle this 


claim. There is a clear correlation between the German change in attitude towards 
settlement negotiations and the D.C. Circuit's change in philosophy, in the interven- 
ing years, regarding the application of the collateral order doctrine to immunity de- 

Although not an issue in Princz, the Subcommittee should also be aware that in 
cases where a foreign state chooses not to appear and assert the defense of foreign 
sovereign immunitv. Federal Rule of Civil Procedure 60(b) (4) and (6) have been in- 
terpreted to provide a vehicle to set aside a default judgment in FSIA cases. The 
normal time limitation of one year for a Rule 60 motion does not apply to subpara- 
graphs 4 and 6. Thus, Rule 60 has been interpreted to provide relief for foreign 
states which initially declined to appear at any time after the default judgment had 
been entered against it, thereby rendering supposedly "final" judgments subject to 
rehtigation on tne issue of immunity at the whim of the foreign state. 

The availability of both the collateral order doctrine and Rule 60(b) relief from 
judgments to foreign state defendants entrenches perverse incentives to use the 
issue of immunity as a dilatory tactic. These procediu-al advantages place opposing 
private party litigants at a severe disadvantage — uncertainty, delay, and significant 
expense. In the Princz matter, for example, even though the case is being heard on 
expedited consideration, we have been litigating in excess of two years, have won 
the sovereign immunity determination at the trial level, had a trial scheduled, had 
the time wnen most disputes settle (between the time of the ruling on dispositive 
motions and the trial date) eclipsed, and now face the prospect of protracted appel- 
late and possibly Supreme Court review. Private party litigation would have already 
gone to trial. As a result of these procedural advantages, Germany has no interest 
in settling this matter. 

In a situation such as Mr. Princz', as with cases involving state-sponsored terror- 
ist attacks against U.S. nationals, a foreign state has committed an extralegal act 
against a United States national. There is no logical reason why the United States 
should be concerned with the possibility of offending that sovereign when causing 
it to be subject to the jurisdiction of the federal courts to answer for such heinous 
conduct. 'The comity between nations giving rise to foreign sovereign immunity con- 
templated by Justice Marshall in the Schooner Exchange v. M'Faddon & Others, 11 
U.S. (7 Cranch) 116 (1812), would already have been breached. 

■rhe extralegal act committed against Mr. Princz constitutes a fundamental breach 
of international comity. Germany's subsequent refusal to cooperate with the State 
Department to resolve the matter amicably only exacerbates the breach. If the per- 
sonal suasion of the President, Vice President, and Secretary of State have no im- 
pact on a reformed outlaw state such as the FRG, how could diplomacy be expected 
to have any efTect on those states which actively support terrorist activities? Mr. 
Princz' unfortunate case history serves as a chilling example of the need for legisla- 
tive action. 


United Sum D«paran*«t of Sui« 
tTuJUAgtca. D.C 20S20 

APR 2 094 

DSar Senator Laute.-iberg: 

The Secretary has askcfl n« to reply to your letter of A?ril 
«, 1994, urging that th« State Dapartment cooslder filing a 
stsceraent of interest la auppoct of Mr. Huqo Prlncs in the cace 
at Pringg V. Tha Federal BennnH^ nf a«r.n,ny the Departnef-t 
■ppceclatas the concerns reflected in your latter *na sharei 
your desire ta tind a way to obtain for Mr. Princr just 
cerpanaation <or hla claim. 

Since the enactment ot the Foreign sovereign Iconoinltlea Act 
in 1976, determinations of irmualty of foreign otatss are eiade 
by Che courts, and cot the Departnant ot State. While the 
United States soinetinea files amirua briefs ezpraiging its 
viewa as to the Intercret at Ion of tha FSIA, such ciSea are 
lelatively Infrequent. We have carefully reviewed the issues 
Involved in this case and have discussed tn« case en varioua 
occasions with counsel Cor both parties. Mo have alao 
conauiced closely with the Department of Juetice. Having 
conaldered tha Batter, however, we do not plan to participate 
In the appeal presently pending before the U.S. Court ef 
Appeals tot the District of Colunbio. Our attorneys In rhe 
Office of the Legcl Adviser have dlecusBeC with your stiff the 
itaues presented 1& the court case. 

Revertbelesi, I wlah to acsuce you that notwithstanding our 
decision not to file a statenent of interest in this case, we 
continue to vigorously pursue other avenuei to assist Nr. 
Pclaez. Specifieally> we are etlll pressiof et the highest 
levels of tha cernan goveronent our view that Mr. Princz should 
be quickly conpeAsated through a subntBBtiil ax-gratla 
payment. Zn this regard, on April 5, AAbassador Holbrooke 
ur««4 la • ■••tin4 with MFA istace Secretary Kaatrup that 
Germaa^jieefc to fashion a settleaient with Kr. frlaes* coxiaaal , 
The 6*o»itkr7 will advocate tu. Prince' Xegitlaate and 
coapvlltUs clalia la a Beetia^ with Poretgn Minister XinJcel 
April 31. Is addition, should the Deputy Secretary see Cerman 
Flnanc* Minister Waigel during the latter 's attendance at the 
IBRD/IMT talRS In WaahingbOD, we egalA plaa to raise the Prince 

The Honorable 

rra&k S. Lautenb«rg> 

United States Senate. 


Wa ire alao racocnandinq tbat Aro«rlctn ptrliiBABttrliaK 
tttending th« north Atlantic Att«rujly gBthatlnj in Mir Mpr«ti auppcrt foe a Juat resolution ot Hr . PilMa" cUlm to 
thalr GacwJB counterparta . Th« Prinoa caoe will renaln biflh on 
out dioloMtic agenda with GBrmany until auch tlma thare la i 
satisfactory aettlemant . 

W« hopa thia inJotmatlon has b««n useful to you. PJaiea Oo 
not haaitata to contact ua If we can ta of fuTthar asalsttnca. 


Wendy C. Qharmsr. 
Assistant Sacratary 
Laglslitlva ACfeirs 






Bnited States ^tnm 


April 4, 1994 

The Honorable Warren Christopher 
Secretary of State 
Department of State 
Washington, D.C. 20520 

Dear Secretary Christopher: 

We are writing to urge the State Department to consider 
filing a "statement of interest" in support of Mr. Hugo Princz in 
the case of Princz v. The Federal Republic of Germany , which is 
pending before the United States Court of Appeals for the 
District of Columbia Circuit. If you conclude that this action 
is appropriate, we believe it would complement the United States 
Government's significant diplomatic efforts on this case and help 
ensure that Hugo Princz 's claim will" be fairly resolved. 

As you know, Hugo Princz is an American citizen who has been 
unable to obtain fair reparations from the Government of Germany 
in compensation for his time in Nazi death camps. In 1992, Mr. 
Princz filed suit against the German Government in the United 
States District Court for the District of Columbia. The District 
Court subsequently denied Germany's motion to dismiss the suit 
for reason of foreign sovereign immunity and set the case for 
trial. Germany appealed to the United States Court of Appeals 
for the District of Columbia Circuit, where the matter is now 
pending . 

Meanwhile, with our support, you and others in the 
Administration have actively pursued diplomatic opportunities to 
resolve this matter. As you know. President Clinton raised the 
matter with Chancellor Kohl during their luncheon meeting here on 
January 31. We commend you for your efforts and commend the 
President for taking up Hugo Princz 's case directly with the 
Chancellor. We know from Assistant Secretary Sherman's response 
to our February 16 letter to you that you share our profound 
disappointment over the Chancellor's rebuff of the President on 
this issue. 

Like the Administration, we are frustrated that the German 
Government has not been more forthcoming. Both the Senate and 
the House of Representatives have unanimously passed resolutions 
calling on the President to intercede on Mr. Princz 's behalf with 
the German Chancellor and on the German government to provide 
fair reparations. In the wake of the President's unsuccessful 
intercession with the Chancellor, Assistant Secretary Sherman's 
letter assures us that this case remains on the diplomatic agenda 
"MIT TO and that "Mr. Princz 's legitimate and compelling claims should be 

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The Honorable Warren Christopher 
April 4, 1994 
Page 2 

speedily resolved." Unfortunately, the German Government is not 
responding to our country's diplomatic efforts. 

We believe the Administration should, despite the German 
Government's apparent unwillingness to right this vnrong, continue 
its efforts on Mr. Princz's behalf. In this regard, we hope the 
State Department will look carefully at the possibility of urging 
the Justice Department to file a -statement of interest" in the 
case and, if the facts warrent, file such a statement. We hope 
the Justice Department will agree, and we have written Attorney 
General Reno in this regard. 

Please let us know how you decide to proceed. We appreciate 
your attention to this matter. 



Robert G. Torricelli 

Bill Bradley 

'Howard L. Herman 

bh 1 . Cleberman 


Charles B. Schumer 

Paul Simon 



The Honorable Warren Christopher 
April 4, 1994 
Page 3 


Kon WydST 

Lot L. Qigel 

Elioc L. Ehge 


Michael R. 

. Andrews 




March 30, 1994 



Dear Senator Licbcrman: 

ifianlc you for your letrer concerning Mr. Hugo Princz and fiis 
claim for compensation from Germany for the suffering he endured 
in Nazi death camps . 

We believe Mr. Princz deserves compensation and have repeatedly 

urged Bonn to maka a BignificanC ex gratia payment to resolve the 
case. As you know, the President personally raised the issu* 
with Chancellor Kohl in January, We are disappointed that the 
German Government has yet to settle Mr. frincz's reparation ciaitr 
despite these official and other representations on his behalf 

I can assure you that Mr. Princz 's case is an important issue on 
our bilateral agenda with Germany and that ve will continue to 
pres.o; TMf. view that his legitimate and compelling claims should 
speedily be resolved. 

Samuel R. Berger 
Deputy Assistant to the President 
for National Security 

The Honorable Joseph I . Lieberman 
United States Seoace 
Washington, D.C. 20510 


Umwd States Department of State 
FaiKingtox D.C 20520 

D«ar Senator Liebaman: 

Thank you for your letter cf February 16 regarding t^e 
claim by American citi?«n Hurjo Princi for comp«n«ation from 
Germany for his suffering in Nazi concentration camps. 

The Sta^e Department's firm position is that Mr. Princi 
should be compensated for the persecution he suffered at the 
hands of the Naiis. we have repeatedly recommended that Bonn 
malce a significant ex gratia paj-ment to resolve this case, and 
have offered our good offices to promote resolution. 

We are very disappointed that the German Government has 
yet to settle Mr. Princi' reparation claim despite repeated 
higtv-l«v«l diplomatic repreoentationSr including one by 
President Clinton January 31, urging them to do so. 

This tragic case remains on our diplomatic agenda witn 
Germany. We will continue to press the view that Mr. Princi' 
legitimate and compelling claims should be speedily resolv«d. 

We hope this information is helpful to you. If you need 
further aa^iftance in this or any other fflaccec, please let us 


Wendy R. Sherman 
Ajsistanc Secretary 
Legislative Affairs 

The Honorable, 

Joseph Lieberman, 

United States Senate. 



■- * __ ^^ IMVmONMINt ANO HJ»lK WC«i 


United ^tmi Senate 

«T*T»«. CMMM WASHINGTON. DC 20 510-3002 


Pearuary 16, 1994 

The Honorable Warr«n ChrlBtophar 
Secr*t.«x-y of Stare 
The State Deparunent 
Waahington, D.C. 20520 

D«ar Secretary Christopher: 

We are writing to you about t)i« case of Mr. Hugo Princz, an 
American citizen who has been unabi.e to obtain fair reparations 
froa the Govammont of Carmany in <:oinp«n»aticn Cor hia time in 
Nazi death caaipe . This case haa long been the subject of high- 
level diecuasion between the governments of the United States and 
Germany, aott recently between Preuident Clir.ton and Chancellor 
Kohl during their luncheon meeting here. We Jcnow that you and 
Anbassadbr Holbrooke have also been deeply ir.voLved in this. 

First, we want, to expresa our appreciation to the President 
for raising this Issue with the Chancellor, we know how cro-jded 
the agenda was for that short meeting, and we deeply appreciate 
the Preaident's responsiveness to cur request.. We also know how 
very much it meant to' Mr. Prlncx. 

Unfortunately, Chancellor Kohl did not respond to President 
Clinton's re<;uest for a more reaaonaile Germ«u.T response to Mr. 
Princz '8 pUciht. Nor did he respond to our direct plea for fair 
reparations.' By handing the President a "Note Verbale' simply 
reiterating the German OoveriuBent ' • rigid refusal to pay Mr. 
Princz fair reparations, we believe Germany insulted both the 
President and the Dnlted States. Certainly, It was an additional 
insult to Hugo Princz. 

Hugo PrinCB's caee deserves a setter reoponse. To that end, 
w« *«iuld liXa to know how the United States Government intends to 
respond to Germany's lack of meaainjful response to President 
Clinton's request concerning Mr. PrLnez. 

Hugo Princt and his family livjd in Europe at the outbreak 
of World War II. Although United 6 --ates citixenn Md. civilians 
at the time, Mr. Princz and his fam-cly were arrested as enemy 
aliens of the German Government in .jarly 1942. Despite the 
prote6t« of Mr. Prtnc«'a father, thu government of Germany 
refused to honor the validity of th.j Prlncs family's United 
States passports. 


M k4»« Slwen Or«eCI »V^m*^ 


^^-^OJm i.ri-r-i I HJ M 


The Honorabl* Hacran Chriat.oph*r 
February 1£, 1994 
Page 2 

The Princz faoily were Jewish American*. Consequently, the 
Government o£ Geos&ny would not re -Um them to t:h*.Unlt»d States 
although a civilian prisoner excha.ige program was available 
through. the International Red Croe.j: Instead, the Princa family 
was' sent to the Maidanek concentra :lon cunp in Fol&nd. Kr. 
Princz 's father, mother &nd sister were shipped to Treblinka 
death camp and exterminated. 

Mr. Princz and his two younge:: brothers were transported by 
cattle car to Auschwitz to serve aii slave laborers. At. 
Auschwitz, Mr. Princz was forced tt> watch as his two brothers 
were starved to death while they l<iy injured in a camp hospital. 
Mr. Princz was subsequently transft^rred to a camp in Warsaw and 
then, by death mairch, to the Oachavi slave labor facility. 

In the closing days of the war, Kr. Princz and other slave 
laboz-era w«xe selected for extermiiJition by Germany in an effort 
to destroy Incriminating evidence c£ war crioies . Fortunately, 
hours before Kr. Princz 's schedulec execution, hie deatit train 
wsa Intercepted and liberated by United States armed forces 
personnel . 

U.S. personnel recognized Kr. Princz as an American by the 
designation 'USA* stenciled by the Germans on his concentration 
camp garb, and he was' sent to an Aaierican military hospital for 
ijtanedlate treatment. . 

Because Kr. Princz was given lamediate medical treatiaent, he 
was never processed through a 'Centtr for Displaced Persons." 
This process would later affect his eligibility to racaive 
reparations for hla suffering. 

Following his hospitalization, Mr. Prtnci was pecaJLtted to 
eoter tben-communlst-occupied CzechoslovaJda to search for family 
members. After determining that he was the sole survivor, Mr. 
Princz traveled to America. 

In the early 1950's, the Federal Republic of G«niiany 
established a reparations program for 'survivors.' Mr. Prince's 
application was rejected because had not been classified as a 
*at.iteles8* person or 'refugee.* 

Had he been processed tbrough (he 'Center For Displaced 
Persona' instead of receiving immediate medical care in a U.S. 
facility, Mr. Princz would have rectiived tliia designation. 
Instead, he has be«n considered a Oii-ted States national and, 
therefore, ineligible for fair repajations. 


Th« Honorabl* Warren Christophar 
Februdry 16, 1994 
Page 3 


Although th« Federal Rapublic of G«niiany has provided 
reparations to thouaar.da of holoco ist survivors, Mr. Princz 
haan't raceiv«d a dime. 

. wa believe the reUeral Republ tC of Germany should recognize 
tha injuBtice against Mr. Princa ajid pay him fair reparationa . 
Mx. Princz has suf fared enough. 

Last year, the Senate approval a resolution calling on the 
German govarrunent to provide fair •.-eparatlon* to Mr. Hugo Princz. 
A siTOiiar resolution passed the Housa of Representatives in late 
January of this year. 

The Federal Republic of Germany cannot bring back Hugo 
Princz 's family or erase the painful memories of the tragic years 
he spant in slava labor ciunpa of tlio previous German government. 
But, the Federal Republic of Germany can and should acknowledge 
Kr. Princz '8 tragic story and hijn with fair reparationa 
which are long overdue . 

PLeaea let us know what optlor.fl the Aflmlnl stration intends 
to puiaue. to Btove this case along inflight of Chancellor Kohl's 
refusal to provide fair repajrationt .' Thank you for your 
attention to this matter. 

Sir cerely 

Frank R.\ Lautenberg 

Frank Pallona, Jr. * 

liy^>>t G . TarrKJalU 1/ Bill Bradley © 

^lA^t L 


Th« Honorable Warrer Christopher 
February 16, 1994 
Page 4 

Banjarein *. Giim*n 
Daniel Pacrick. MoyCihan 

Henry A. Uaxnai*' 




January 28, 19$ 4 

Deir Joe .- 

Thank you for your letter regarding the case 
or Hugo prlncz. 

I am aware of Mr. Princz's caE« and th« 
interest it has generated among those who 
seek its satisfactory resolution; I 
understand that a legal decision is pending 
As you may know, this Administration has had 
several discussions with the government of 
Germany regarding the case of Mr. Princz. 
Most recently. Vice President Gore raised 
this issue with Chancellor Kohl during their 
December conversaticna Id Germany. 

Thanic you tor bringing your Interest in 
Mr. Princz's situation to my attention. 


The Honorable Joseph I . 
United StAteo Senate 
Washington, DC 20510 



December 27, 1993 

The Honorable Bill Clinton 
President of the United States 
The White House 
Washington, D.C. 20500 

Dear Mr. President: 

In advance of the KATO Summit in Brussels in mid- 
January, and your meeting thisre wi-h Chancellor Kelir.ut 
Kohl, we wanted to bring to your a-tention the case of 
American Holocaust survivor Hugo Princz and to ask that 
you raise this natter — of deep concern to the 
American Jewish conmunity -- with Chancellor Kohl 

Mr. Princz and his family were U.S. citizens residing 
in Europe during World War II. In 1942, they were 
arrested by the Nazis who, ignoring their valid U.S. 
passports on the grounds that they were Jewish 
Americans, instead deported them to ccncentration camps 
where Mr. Princz's entire family was ir.urdered. Mr. 
Princz survived, but only after interrjuent as a slave 
laborer at Auschwitz and Dachau. He was ultimately 
liberated in 1945 by U.S. Armed Forces while on a train 
heading toward certain execution. The Army sent him to 
a U.S. military hospital for treatment because it 
recognized him as an American by the "USA" stenciled by 
the Germans on his camp garb. While that action 
probably saved Mr. Princz' life, it had troubling 
consequences for his later ability to receive 
reparations . 

Mr. Princz, having come to the U.S. in 194 6, made 
timely application in 1955 to the reparations program 
set up by Germany post-war. However, his claim was 
denied, as was his participation in a pension program 
for survivors, solely because -- as a U.S. natio.ial 
when captured and later rescued who did not go through 
a DP Camp — he did not "fit" the German criteris for 


The Honorable Bill Clinton 
December 27, 199 3 
Page 2 

The German Government has steadfastly denied Mr. Princz 
his pension in the intervening 40 years, despite the 
best efforts of Congress, the Stato Department and 
others, and even though he is the only known survivor 
in his situation. He was therefore forced to sue 
Germany in March, 1992, in Federal Court in Washington. 
Germany's motion to dismiss the suit was denied by 
the District Court, and its appeal of that decision was 
recently heard by the D.C. Circuit. 

Mr. President, Germany's failure to accept financial 
responsibility to Mr. Princz simply because of his 
American citizenship at the time of his capture and 
later rescue — when it has distributed billions in 
compensation to other Nazi death camp survivors and is 
also providing pensions to farmer members of the 
Latvian SS — is a serious injustice. Indeed, it 
prompted introduction of S. Res. 162 in early Novem.ber 
by Senator Lautenberg and Senators Bradley, D'Amato, 
Lieberroan, and Kerry, later joined by Senator Dole. 

This resolution passed the senate by unanimous consent 
on November 20, 1993. It calls upon you and Secretary 
of State Christopher to raise the Princz case with the 
Chancellor and Foreign Minister of Germany, 
respectively, and to take all appropriate steps 
necessary to ensure that fair reparations are 
expeditiously provided Mr. Princz. H. Res. 323, a 
companion resolution, was introduced in the House on 
November 21. Congressman Steny Hoyer did raise the 
Princz matter with Secretary Christopher at a November 
24 breakfast just prior to the Secretary's departure 
for Europe, and we understand that it was raised with 
German officials by a member of the Secretary's party. 

We believe that your personal intervention and that of 
Secretary Christopher — in conjunction with Concress 
— is essential to produce some tangible measure of 
relief for Mr. Princz's suffering, especially in light 
of Germany's continuing obduracy on this subject. 


The Honorable Bill Clinton 
December 27, 1993 
Page 3 

In sum, we urge you to seizir. the opportunity presented 
by the forthcoming NATO summit personally to press 
Chancellor Kohl on the Princz matter, and to right a 
terrible wrong inflicted upon an ^jnerican Jew whose 
citizenship did not protect him from the Nazis in 1942, 
and which perversely continues to be used by GerT.any as 
a shield to shirk its respoi-.sibility to him today. 


Rabbi Morris Sherer 


Agudath Israel of Ajierica 

Robert K. Lifton 


American Jewish Congress 

Alfred H. Moses 


American Jewisih Coxnittee 

Melvin Salberg 
National Chaiiinan 
Anti -Defamation League 

Deborah Kaplan 
National President 

Lester Pollack 

Jewish Community Centers 

Nathan Lewin 


International Association 

of Jewish Lawyers and Jurists 

Edward D. Blatt 

National Caminander 

Jewish War Veterans of the USA 

Sylvia Lewis 

Susan Katz 

National President 

National Coucil of Jewish Women 

Maynard I. Wishner 

National Jewish Convmunity 
Relations Advisory Council 

Alexander H. Schindler 

Union of American Hebrew 


Senator Heflin. Congressman Pallone, you were going to intro- 
duce him, but we are well ahead. 
Mr. Pallone. Do you want me to just speak? 
Senator Heflin. Yes, sir, if you would, just briefly. 


Representative Pallone. Mr. Chairman, when I was here earlier 
I was somewhat concerned, and now I am even more concerned 
about the fact that Mr. Princz' case really involves a situation of 
genocide, as you heard him speak about his being a victim of the 
Holocaust. He mentioned the House equivalent of the bill that is 
before the subcommittee today and an amendment that was intro- 
duced by Mr. Schumer that would basically include his case for vic- 
tims of genocide. 

My concern is that — and, again, I don't know too much about all 
of the individuals here, but my concern is that the way the legisla- 
tion is framed now in the Senate version, it would take care of vic- 
tims of terrorism, but not necessarily victims of genocide in the 
Holocaust situation like Mr. Princz. So I wanted to point that out 
to the subcommittee. It may be necessary to change the language 
to make sure that his case and those like him who are victims of 
genocide are included. I am concerned that the language, the way 
it is now, is not exactly the same as the House bill in that respect, 
if that could be looked into, with your permission. 

Senator Heflin. Well, we appreciate your testimony. Senator 
Specter is the author of the bill and he will be the one moving it. 
If you want to speak with him, you can do that. 

Representative Pallone. OK, I will do that. You should know, 
and I will just say this for my last comment, that we really have 
had a lot of people from within the administration — even the Presi- 
dent has brought this up to the attention of the Chancellor of Ger- 
many, and the Secretary of State and also Mr. Bentsen have all 
tried through diplomatic channels to try to deal with the situation 
and have so far been rebuffed by the German government. So it is 
really crucial that we put something in the legislation to take care 
of his exception because we have really tried every other diplomatic 
or negotiated means to try to deal with Mr. Princz' case, which is 
why we are really before the subcommittee today asking that they 
do some legislation similar to the House version so that he can 
have his day in court. 

Senator Heflin. Thank you, sir. 

Representative PALLONE. Thank you. 

Senator Heflin. Mr. Jacobsen, will you go ahead with your testi- 
mony, please? 


Mr. Jacobsen. Yes, Mr. Chairman. Thank you so very much for 
allowing me to speak to this group today. Perhaps it is the most 
important 5 minutes of my 62 years of life here on this earth. 

I was the American chief executive officer of the American Uni- 
versity of Beirut in Lebanon. I was kidnaped on May 28, 1985, and 
held for 17 months and released on November 2, 1986. I am here 


today asking and pleading for justice and closure for all victims 
and the families of victims of international terrorism. 

I am here asking on behalf of Bill Buckley, with whom I was 
held hostage, both of us blindfolded, stripped to our underwear, 
chained to the floor. I listened to Bill Buckley die, his last words 
saying, I think I will have my hot cakes now with blueberry syrup. 
Bill deserves justice. 

My friend, David Collett — the last image he had of his father. 
Alec, was on a videotape with his dad swinging slowly on the end 
of a rope. David and Alec and his sister deserve justice. William 
Higgins deserves justice, and that gentle librarian from AUB who 
died with a bullet in his forehead — he and his family deserve jus- 
tice. So I am here today asking that justice and closure be per- 
mitted for all the victims of international terrorism. 

Rodney King was guaranteed his legal civil rights when harmed 
by agents of our Government, but every American citizen and fam- 
ily member victimized by international terrorists or Nations that 
sponsor terrorism have been denied the right to seek justice by our 
own very Government. That is a violation of our basic civil rights 
and the intent of the U.S. Constitution. 

In January of 1980, the release of the hostages at the U.S. em- 
bassy in Tehran was accomplished by the Iranian acceptance of the 
Algerian Accords. Unfortunately, that agreement contained the 
seeds of a violent epidemic of bloody international terrorism that 
continues to this very day. 

The conditions in that agreement for the return of the Iranian 
frozen assets permitted legal and procedural delays of nearly 12 
years, thus inciting Iranian retaliation bombings and hostage-tak- 
ing. The murder of 241 U.S. Marines by Iranian surrogates — a det- 
onator smuggled into Lebanon by the Iranian charge d'affaires — 
did not encourage an expeditious settlement of the dispute on the 
return of the frozen assets. 

The Algerian Accords also waived the rights of all hostages in 
the Tehran embassy to sue Iran for damages. The Iranians viewed 
this concession as an official abdication by the U.S. Government to 
protect the legal civil rights of all of its citizens. Thus, Iran and 
other Nations involved in terrorism against the United States were 
led to believe that they could murder, injure and kidnap American 
citizens with impunity, and they have done so. That belief was re- 
inforced by our own Foreign Sovereign Immunities Act that in es- 
sence says terrorist Nations may harm American citizens at will 
and the U.S. Government will not intercede, provide a remedy, or 

What were the consequences of the Iranian interpretation? At 
the Beirut airport 241 Marines died; 257 passengers blown out of 
the sky over Lockerbie, Scotland; 20 Americans kidnapped in Leb- 
anon, of which 4 were murdered; 3 American embassies car- 
bombed, with many deaths; our post exchange bombed in West 
Germany; my friend, Ian Spiro, and his family murdered in San 
Diego, CA, by Iranian hit squads; the Marine casualties in Somalia 
by Iranian surrogates that were smuggled in from the training 
bases in Sudan; and the World Trade Center bombing, with 7 
deaths and over 1,000 people injured. 


If these violent acts had been conducted by Americans or had 
been conducted in this country, we would be allowed to seek justice 
in our courts, but when we are harmed overseas we are denied our 
basic constitutional rights, and that is wrong. 

The scope of international terrorism will expand as advance- 
ments in nuclear, chemical and biological warfare become available 
to wealthy States with evil motives. We are all fully aware of the 
lethal chemicals that are available now out of Russia, and a small 
amount put into the air handling system of any major building in 
this country, including any building in this city, would murder 
thousands upon thousands in a few minutes. Fewer operatives are 
now required to carry out massive acts of terrorism. 

The Foreign Sovereign Immunities Act must be amended to per- 
mit any American, with reasonable cause determined by a Federal 
judge, to sue any foreign Nation which is on or has ever been on 
the Department of State's Ust of Nations that sponsor and/or con- 
duct international terrorism. I throw that in as a compromise be- 
cause I recognize the bureaucrats are afraid that we are going to 
sue the Irish or sue the French, and so I throw that in as a com- 
promise for a Nation that has ever been on the list of terrorism, 
as determined by our DOS. 

But the most important thing that can be done, and it is crucial 
and it is critical, is that the statute of limitations be without time 
limits because the covertness of international terrorism does not 
readily allow the identification of the terrorists or their sponsors. 
In less than 6 weeks, the statute of limitations runs out on the peo- 
ple that murdered Colonel Higgins. Since that awful day on July 
31, 1989, 5 years have gone by and our bureaucracy has moved 
slow, slow, slowly. 

The constitutional rights of American citizens should not be 
abridged by diplomatic considerations, bureaucratic bias, and par- 
tisan politics. The United States of America, as I was taught in ele- 
mentary school, is a Nation governed by the rule of law. Congress 
must amend the Foreign Sovereign Immunities Act, and they must 
also remove restrictions on the statute of limitations. Failure to do 
so will only encourage foreign Nations to continue international 
terrorism on a larger scale. 

Most experienced expatriates recognize the limitations of our bu- 
reaucratic institutions and their wilHngness and their ability to 
help Americans who get in trouble overseas. The failure of the De- 
partment of State's counter-terrorism tactics is well documented. It 
is not in their standard of reference to handle those problems. 
There are some in the Department of State who support our posi- 
tion. There are many who oppose it, but judges, not bureaucrats, 
should determine our legal rights. 

Congress must act to amend the Foreign Sovereign Immunities 
Act, and do it now. Failure to do so will only send a confirmation 
to Nations that engage in international terrorism that they may 
continue to do so with impunity. Passage of this legislation just 
might be the most significant act of counter-terrorism ever imple- 
mented by our Government. Please let terrorist Nations know 
today that we will no longer tolerate violence against any American 
citizen in our country or overseas. 

Thank you. 

[David P. Jacobsen submitted the following materials:] 

Prepared Statement of David P. Jacobsen 

Rodney King was guaranteed his legal rights when harmed by agents of our Gov- 
ernment; but every American citizen and family member victimized by international 
terrorists has been denied the right to seek justice by his own government. That 
is a violation of the intent of the United States Constitution. 

The January 1980 release of the hostages at the United States Embassy in 
Tehran was accomplished by the Iranian acceptance of the "Algerian Accords". Un- 
fortunately, that agreement contained the seeds of a violent epidemic of bloody 
international terrorism that continues to this day. The conditions in that agreement 
for the return of the Iranian frozen assets permitted legal and procedural delays of 
nearly twelve years, thus, inciting Iranian retailiation of bombings and hostage tak- 
ing. The murder of 241 US Marines by Iranian surrogates did not encourage expedi- 
tious settlement of the dispute on our part. The Algerian Accord also waived the 
rights of all the hostages to sue Iran for damages. The Iranians viewed this conces- 
sion as an official abmcation by the United States Government to protect the legal 
rights of its citizens. Thus, Iran and other nations involved in terrorism against the 
United States were led to believe that thev could murders injure or kidnap Amer- 
ican citizens with impunity and they have done so. 

That belief was reinforced by our Foreign Sovereigns Immunity Act that, in es- 
sence, says terrorist nations may harm .^Snerican citizens at will and the United 
States Government will not retaliate. What were the consequences of this interpre- 
tation? 241 Marines dead at the Beirut Airport, 257 passengers blown out of the 
sky over Scotland, 20 Americans kidnapped in Lebanon of which four were mur- 
dered, three American Embassies car-bomoed with many deaths, one Post Exchange 
fatally bombed, my friend Ian Spiro and his family murdered in San Diego in 1992, 
the Marine casualties in Somalia and the World Trade Center bombing with 7 
deaths and over 1,000 injured. If these violent acts had been conducted by Ameri- 
cans, the victims and their families would have been allowed to seek justice in the 

The scope of international terrorism will expand as the advancements in nuclear, 
chemical and biological warfare become avaiilable to wealthy states with evil mo- 
tives. Fewer operatives will be required thus reducing the chances of interception 
and prevention. 

The Foreign Sovereigns Immunity Act must be amended to permit any American, 
with reasonable cause determined by a Federal Judge, to sue any foreign nation 
who is on or has ever been on the Department of State's list of nations that sponsor 
and/or conduct international terrorism. It is critical that the statutes of limitations 
be without time limits because the covertness of international terrorism does not 
readily allow identification of the terrorist or their sponsors. 

The Constitutional rights of American citizens snould not be abridged by diplo- 
matic considerations, bureaucratic bias or partisan politics. The United States of 
America is a nation governed by the "Rule of Law". Congress must amend the For- 
eign Sovereigns Immunity Act. Failure to do so will only encourage foreign nations 
to continue international terrorism on a larger scale. 


On the morning of May 28, 1985, while crossing the intersection between the cam- 
us of the American University of Beirut where I resided and the University's 241 
_ed Medical Center where I was the Chief Executive Officer, I was kidnapped by 
members of Islamic Jihad, an Iranian-sponsored terrorist group. I was held for sev- 
enteen months and released on November 2, 1994 which was the day that the Soviet 
KGB and their Syrian allies leaked the information regarding the sales of arms for 
the release of American Hostages. My day of release to freedom was one of great 
joy * * * joy that was soon to be diminished by the vicious partisan politics of Iran/ 
Contra and the creation of a nightmare from knowing that the remaining hostages 
would be abandoned for pairtisan political considerations. My friends, Terry Ander- 
son, Tom Sutherland and Joe Cicippio, spent another five years in hell because all 
efforts to free them were put on hold. Later in my testimony, I will discuss that 
situation and how my personal efforts to free those men and the other hostages was 
thwarted by the State Department bureaucracy. 

Throughout my hostage captivity, I was held in the same room with Bill Buckley, 
Terry Anderson, Tom Sutherland, Reverend Ben Weir and Father Lawrence Martin 
Jenco. In adjoining rooms were French, English, Irish and South Korean Hostages. 
At times, we were joined in the building by the Saudi Arabian hostage and his wife. 
Death was a constant ceU mate that sleep never dispatched. I shall never forget 


being chained a few feet from Bill Buckley and being unable to comfort him in his 
fmai moments of life. His last words, "I think I'll have my hotcakes now, with blue- 
berry S3Tup," will never be forgotten. 

Our captivity was not a vacation at Club Med. We were totally isolated from the 
outside world, constantly living with the threat of death or torture, brutally as- 
saulted physically and psychologically, malnourished, chained like animals to the 
floor, blmdfolded, denied every voluntary activity of daily living and stripped of 
every right to privacy. Everyone conducted themselves with dignity, honor ana great 
patriotism throughout the ordeal. We never flinched in loyalty to our moral and eth- 
ical principles. Ino one exhibited any signs of the "Stockholm Svndrome." We £ill be- 
came men of conviction, not consensus. Our values did not change, but only how 
we expressed them. We survived mentally strong. There are no flashbacks, night- 
mares or excessive reactions to sudden noises and moments. We are all fairly well 
adjusted and able to function as normal human beings. 

During this ordeal, most of us learned that Iran had ordered our kidnapping. The 
demand by Islamic Jihad to exchange us for the "Dawa Prisoners" held in Kuwait 
was a clever smoke screen. None of us will ever forget "Ali" the Iranian liaison offi- 
cer to Islamic Jihad. The leadership role of Iran in hostage-taking is irrefutable. Our 
government has the evidence. Iran paid millions to their Lebanese surrogate to kid- 
nap and hold Americans hostage. They even paid a bonus at the time of release. 
In the case of Ben Weir, Martin Jenco and myself, they demanded missiles which 
added the new dimension of "commercial terrorism" which is believed by many legal 
scholars to be clearly a violation of the Foreign Sovereigns Immunity Act. Iran has 
never been punished for their acts of terrorism, and our government forbids the vic- 
tims and their families to seek justice in our courts. That injustice must be cor- 

What happened to tarnish the joy of being free? I quickly and painfully learned 
that our government consists of five, not three, branches. They are the following: 

1. Executive 

2. Legislative 

3. Judicial 

4. Media 

5. Bureaucracy 

The day of my release was tarnished by the media and political feeding frenzy 
of the news of Iran/Contra. The Soviets and the Syrians fully understood the politi- 
cal and media response to the news of arms sales to Iran. The media and, perhaps, 
most members of Congress did not realize that Iran/Contra put the release of the 
remaining hostages on hold for five long torturous years. The deal that resulted in 
the freedom of the remaining hostages in December of 1991 could have been made 
anytime between the years 1982 and 1991 without political controversy. At the time 
of my release, a personal friend in one of the intelligence agencies told me that "it 
is going to be a lone time before your friends come home." And he was right, but 
I could not accept that statement. It was then that I learned of the independence 
of the fifth branch of government * ♦ * the bureaucracy. 

Through a representative of a major Christian Church, I was introduced to Ian 
Spiro, a contract agent for the CIA. Ian probably was British MI6 and told a con- 
vincing story that he had been brought in by our State Department. Certain actions 
on his part partially reaffirmed that fact. The project that we worked on was the 
IsraeU concept of creating a not-for-profit educational foundation to teach Lebanese 
militia men the various artisan tracles. This project involved my soliciting five mil- 
lion dollars in seed money from weadthy Lebanese Americans. I had some reserva- 
tions regarding this project and knew that it could be a cunning sting operation. 
Church officials said that it was legitimate. I asked friends in the CIA and, after 
checking, they responded, "He is from deep within the system and has done wonder- 
ful things for us in the past. But, Dave, be careful. People do change." The State 
Department refused to comment on the project although they had previously issued 
a policy statement supporting independent humanitairian efforts. I had gained the 
commitment of private money, and the donor wanted confirmation of the Depart- 
ment of State's support. It was not immediately forthcoming, and I withdrew from 
the project. I will never know if I could have been successful in bringing the hos- 
tages home at Christmas of 1987. 

I was involved in another personal effort to free the hostages. It involved expand- 
ing the number of students in nursing and physician assistants at the American 
University of Beirut with the intent of opening medical clinics for the Shi-ite refu- 
gees in South Lebanon. Sheik Fadlallah could take credit, and perhaps the hostages 
would be released in exchange for this humanitarian aid. Guess who probably dis- 
couraged this project? It wasn't the University or the CIA. 


Most experienced expatriates recognize the limitations of the Department of 
State's willingness or ability to help them if they ever get into trouble overseas. 
Some of the Department bureaucrats will oppose the proposed amendments to the 
Foreign Sovereigns Immunity Act for philosophical reasons. But we live in the real 
world. Judges, not bureaucrats, should determine the legal rights of the citizens of 
the United States. 

I survived that hostage ordeal only to find that my freedom was filled with pain, 
frustration, discouragement and anger. Upon my return to the United States from 
Lebanon, I, like other released hostages before and after me, was literally dropped 
on the streets of Washington DC without money, credit cards or identification. I 
could have been homeless in Washington DC. Like a released felon, all I had was 
a new suit given to me by the Department of State. I did not expect a golden para- 
chute nor have I ever asked for anything other than justice ana an opportumty to 
have a meaningful life. The criminals who harmed me are still unpunished. 

Even though I was in relatively good emotional and physical shape, I could not 
resume my career for several years. I sent out over three hundred resumes without 
a single response and I had to resort to the lecture circuit. My career seemed ru- 
ined, retirement plans destroyed and my planned marriage to the love of my life 
never to be. I never qmt as a hostage and I never quit as a free man. I have re- 
stored my professional life as a hospital administrator, but I paid dearly by using 
most of my savings and cash value of various insurance policies. 

Iran destroyed my life! I want justice! As an American citizen, I should be entitled 
to my day in court. Amending the Foreign Sovereigns Immunity Act will protect the 
rights of every American. It will also guarantee that those rights cannot be pre- 
vented by the bureaucracy. 

Iran has used the Foreign Sovereigns Immunity Act to avoid punishment for the 
murder of 241 US Marines, 257 passengers of Pan Am 103, the kidnapping of 20 
Americans and the murder of four of them in Lebanon, the bombing of three US 
embassies, the November 1992 murder of my friend Ian Spiro and his family in San 
Diego, the bombing of the World Trade Center Building that resulted in 7 dead and 
over 1,000 injured, the counterfeiting of bogus $100 bills that two years ago totaled 
over 2 billion dollars and now is much more, the murders of Bill Buckley, Peter 
Kilburn, Alex Collet, Malcolm Kerr, Robert Stethem, Charles Hegna and WilUam 
Stanford. The number of victims is increased many fold when you consider all of 
the family members who, in their own way, are more traumatized. 

The end of this statement contains four documents. Three from USA TODAY and 
a letter from Dr. Adnan Mroueh, AUB Dean of Medicine and a close personal friend 
of Sheik Fadlallah who is the spiritual leader of all the Lebanese terrorist groups. 
The Sheik says, "only the Iranian Charg'es D'affaires can do anything to release the 

The Foreign Sovereigns Immunity Act must be amended to permit United States 
citizens who are victims of international terrorism to sue the foreign government 
that sponsored, directed and/or participated in the act of terrorism. In order to in- 
sure the orderly conduct of diplomatic business, only nations that have ever been 
or are on the Department of State list of countries that sponsor or participate in 
terrorism should be excluded from the protection of the Foreign Sovereigns Immu- 
nity Act. In addition, there should be no statute of limitations on starting legal ac- 
tions because of the multi-year delays in identifying the terrorist parties. 

International terrorism is not over. The war continues and things are only going 
to get worse. 

Nations that sponsor terrorism do not fear military retaliation or economic sanc- 
tions. What they fear is being hit at the bank. Without friends, their civilian popu- 
lations grow restless not against us but their own leaders. 

With the military budget cut-backs and uncertainties of our own foreign policy, 
terrorism will only increase. Experienced expatriates know too well the limitations 
of our own State Department and the political considerations of our partisan lead- 

I ask you, I plead with you to amend the Foreign Sovereigns Immunity Act to 
allow any American with reasonable cause to sue for damages in our FederaJ Courts 
the nation that sponsored and/or conducted the act of terrorism. In order to main- 
tain the orderly process of diplomacy, only nations identified as ever being, past or 
present, on the United States Department of State's list of nations that sponsor ter- 
rorism should be sued. The time limitations on the Statute of Limitations must also 
be removed in all terrorism cases because covert operations hinder the ability to 
readily reveal the identity of the terrorist party. 

Congress must act to amend the Foreign Sovereigns Immunity Act. Failure to do 
so will only send a confirmation to nations that engage in international terrorism 
that they may continue to do so with impunity. Passage of this legislation just 


might be the most significant act of counter-terrorism ever implemented by oiir gov- 
ernment. Please do not fail in this effort. There are two difficult davs in our week 
♦ * * yesterday and tomorrow. Let terrorist nations know today, that we will no 
longer tolerate violence against our citizens. 

Family members of victims of international terrorism are also victims. Nothing 
can more eloquently express this fact more than the following letter sent by my son 
to President Clinton. 

Eric D. Jacobsen, 

P.O. Box 1784, 
Lake Arrowhead, CA, May 2, 1994. 

The President, 
The White House, 
Washington, DC. 

Dear Mr. President: I am the son of David Jacobsen, one of the Americans held 
hostage in Lebanon by Islamic fundamentalists in the 1989's. During the seventeen 
months he was imprisoned, I worked diligently on seeking his release through every 
conceivable means, including meeting on numerous occasions with US government 
officials, lobbying through the national news media, and even involving myself with 
"covert" operations outside the normal channels of diplomacy. I would like to take 
credit for my father's eventual freedom, but I can't; his release was a result of the 
Reagan Administration's sale of T.O.W. missiles to the government of Iran in Octo- 
ber 1986. He is alive and free today because ovu- country traded "arms for hostages" 
with another nation, Iran, who aft^r receiving the ransom, ordered his release. 

Six years have passed since then, and a great deal of healing has occurred, not 
only for the families of these victims of international terrorists, but also for our na- 
tion. That period of my life seems hke a long time ago, however, for our family, this 
crisis has not been resolved fully. We have yet to see a satisfactory close to this hor- 
rible, unjust crime committed against my father and other Americans by Lebanese 
extremists under the influence and direction of Iran. This is the reason I am writing 
you today. I would like to ask for your help in bringing this to a just conclusion. 

In 1992 several ex-hostages, my father included, brought civil action against the 
nation of Iran in the federal district court of Washington, DC. This case (Docket 
#92-2300) was a multi-miUion dollar suit based on the notion of "commercial terror- 
ism", that is, terrorist acts in which a nation (Iran) benefits financially; in our situa- 
tion, from the kidnapping and imprisonment of my father and others. The judge on 
the case felt that commercial t-errorism was valid grounds for a suit, but he denied 
jurisdiction, and the case didn't go to trial. He did not rule in favor of the Iranians; 
instead, he felt it was advantageous to my father and the other plaintiffs to get a 
ruling on "commercial terrorism" from the appellate court first, rather than nile in 
favor and then see the case lost for years in the appeal process. This case is cur- 
rently before the appellate court (Docket #93-7047) and is scheduled to be heard 
shortly, on May 19, 1994. 

While visiting with my father last weekend, he mentioned that the Department 
of State has not supported us in this effort. Having struggled for nearlv a year and 
a half with the State Department during my father's captivity, this doesn't really 
surprise me. But it does stir up an old familiar feeling of frustration and aggrava- 
tion similar to what I experienced in my dealings with State dvuing the time I was 
the son of a hostage. 

I am fully aware of the Foreign Sovereign Immunities Act, and can understand 
its intent. This is the basis for the State Department's opposition to my father's suit. 
Apparently they feel that if my father and the others were successful, it would open 
the floodgates for a huge number of American citizens to bring legal action against 
numerous forei^ countries. While this may appear sound reasoning, it fails to ad- 
dress the positive long-term effects that tnis case could establish. This precedent 
would not only be beneficial to our nation, but would serve justice and demand ac- 
countability of those nations that support such grievous crimes as terrorism. As it 
stands today, they are virtually free irom accountability because of the Foreign Sov- 
ereign Immunities Act. It has, in essence backfired on us. 

This is not a frivolous lawsuit. Plenty of hard evidence exists to prove that my 
father was kidnapped, held hostage, and suffered physical and emotional torture at 
the hands of terrorists in Lebanon. Sufficient evidence also exists, including the tes- 
timony of US government officials, to establish Iran's link to and influence over 
those who held my father. The fact that T.O.W. missiles were delivered to Iran and 
my father was released immediately is irrefutable. Was this merely a coincidence? 
I think any court of law would find that hard to believe. 


True, my father gained his freedom. He is not emotionally or physically disabled 
by the experience. He is working again as a hospital administrator and from all ap- 
parent indicators survived his ordeal quite well. However, those who perpetrated 
this offense against him and his family have, I hate to say it, gotten away with it. 
Is that justice? 

Once again, I can hear the official State Department response to this, one that 
I heard many times eight years ago: "We don't know who was responsible for your 
father's kidnapping. They're a mysterious group, with mysterious motives, hving in 
a mysterious part of the world." That wasn t true then; it's not true now. As it came 
out through the efforts of hostage families, the State Department finally did concede 
publicly that it did know who was responsible — not only the group (Hizb'allah) but 
the family (Mousawi) and even the individual in charge (Imad Muhgniya). And be- 
hind all of those just mentioned was the government of Iran. No matter what the 
State Department claimed then, or says today, it is not a mystery, it is a fact. Iran 
is responsible to a large degree for the crime against my father, my family, other 
Americans and their families. 

Are we motivated by vengeance in seeking punitive and compensatory damages 
from Iran? No. Surprisingly, we have been able to for^ve those who were respon- 
sible. In writing this letter, I am not driven by anger. I am not controlled by a de- 
sire to "get the people who did this." But, forgiveness does not dismiss accountabil- 
ity for actions. Just the opposite-— justice requires forgiveness but demands account- 
ability. Unfortunately, because the individual kidnappers have not been appre- 
hended (but thanks to my father's cooperation, they have been identified), we are 
not yet able to make them accountable for their criminal actions. However, Iran is 
equally identifiable, and to release them of their accountability because of a law in 
this country is unfair, morally wrong, and another injustice committed against the 
human rights of my father. He deserves to be treated with dignity, and that trans- 
lates into punishing those who broke his legal and moral rights. 

If the appellate court rules that commercial terrorism is valid grounds for a suit, 
my father stands a good chance of winning his case. Being successful not only bene- 
fits my father and the others, it sends a clear message to nations around the world 
that state-sponsored terrorism will cost them dearly in a way that they will feel and 
respect the most — ^money. It wasn't too long ago that the World Trade Center bomb- 
ing let us know that terrorist acts aren't confined to the Middle East anymore. The 
security of our borders has already been threatened by terrorists who receive fund- 
ing from other nations. As someone who has suffered first-hand experience of terror^ 
ism, I want to see every step taken to prevent others from suffering as I, my family, 
my father and other Americans have. 

I ask you, Mr. President, I urge you, please support us in our efforts to bring jus- 
tice to the hostage crisis. It may be over, but it's not forgotten. I ask that you would 
encourage the Department of Justice to continue in any efforts to apprehend the in- 
dividuals responsible for my father's kidnapping and imprisonment, and I request 
that you instruct the Department of State not to oppose my father's lawsuit against 
Iran, but to support it. 

The biggest objection I ever heard to negotiating with terrorists for my father's 
release was that it would only encourage further acts of terrorism. I don't agree. 
I think the greatest encouragement to those considering terrorism as a means of po- 
Utical blackmail is the fact that you can do it and get awav with it. Please, Mr. 
President, the facts of this case should be determined on the basis of the same laws 
that would be applied to anyone accused of such crimes in this country. Let's allow 
the courts to determine culpability on the basis of law and evidence, not the State 
IDepartment on the basis of diplomatic convenience. 

I am hoping and praying that you will support us in this effort. I regret that this 
comes to you on such short notice, but I didn't realize the extent of this problem 
until only a few days ago. 
Yours Truly, 

Eric D. Jacobsen. 


American University of Beirut 


^\ /^Ij <__kJl ^K-^\ i-^ ^^ 
Ollice ol the Vice President lor Health Allairs 
Dean. Faculty ol Medicine A Medical Center 

L- . ^ i__*--L^ ^ . r- I 

Cable Address : Amunob , Beirut 


I ' l ' X ' zii^ ih^rrinii' a -^ gO -a«yK 







"USA TODA"!' hoivi 10 
serve as a foaiin for boi- 
ler understanding ano 
unJly 10 help make the 
USA truly one nation. " 
— Allen H. Niuliarili 
Foujidcr, Scpl. 15, 19a2 

I'clcr S. Pridiard 

Ed nor 

Karen Jurgcnscn 

hduor of Lhc 

Editorial Page 

Thomas Curlcy 

President and Publisher 


Wake up! International ten'orism is here 

After a decade of anti-U.S. 
assaults, why is there still 
no sense of urgency? 

"We can gel you an>Tjme" is not an idle 
lerrorist boasL The low level of iniema- 
tionai terrorism ;n tlic United Slates has 
been due lo a combination of good luck 
and law enforcement. Eventually, stale- 
sponsored fanatics wiil be successful. 

Rep. Bill McCo:ium's llouse Republican 
Task Force on Terrorism and Unconven- 
tional Warfare, which pr::dicted Iraq's in- 
vasion of Kuwait, continues to publish re- 
ports that are ignored. Sheik Omar Abdel- 
Rahman"5 links lo lerrorism were exposed 
long ago. Why did we wail so long to act? 

Ii is strongly suspected by many special- 
ists Ihat Iran is the insugator. Sudan the ex- 
ecutor and Iraq a diversion that distracts 
our attention from the real source and pur- 
pose of anti-U.S. aciivities. It's been widely 
reporied that Iran has counierfeiled and 
distributed over S2 billion in 5100 bills, and 
ihai Sudan now provides a logistical base 
for training and exporting terrorism. 

There are nearly 3.000 Iranian revolu- 

tionary guards in Sudan, 
and if you think they're 
there as a "peace 
corps," you'd beticr 
read some of the con- 
gressional reports on 
the subjecL You might 
even care lo visit Afnca 
to talk with Sudanese 
and Somali refugees. I 

Has all-out terrorist 
war been declared 
against the United 
States, and we aren'i be- 
ing told? Axe we going 
lo delay responding un- 
til a smuggled nuclear 

bomb is exploded in 

Washington:' Do 250 million Americans 
deserve as much proieclion as the spotted 
owl? Congress eagerly holds hearings on 
partisan issues like Iran<ontra; why the 
political silence on the quesiion of Iranian. 
Syrian and Sudanese involvcmenl in ler- 
ronst events, both .currcni and pasP 

A bipariisan eflori is needed: 

► Hold congressional hearings lo public- 
ly identify the stale sponsors and purposes 


By David Ja- 
cobsen, a hos- 
pital admmis- 
tralor who was 
held hostage in 
Beirut (or 1 7 
months in 

of lerrorism. 

► Confiscate all assets of any nation 
tdenufied as sponsoring anU-U.S. violence. 

► Develop a military reaction plan that, 
when iniiiated, won't stop until the total 
mission is completed. 

► Amend i^e law to make it easier to de- 
lain and deport aliens with a terrorist taint 
and to remove protection for terrorist ac- 
tivmes of foreign embassies and missions. 

► Repeal the stanjie of limitabons on ^. 
terrorism and mandate federal court juris- ^'v 
diction for all claims by victims. 

► Return Lhe 300 FBI agents diverted to 
urban gang investigations to the FBI's orig- 
inal task of fighting terrorists. 

► Designate a Defense-Justice-CIA in- 
teragency anii-terrorism group, and play 
by new rules of counterierrorism. 

Humanir>' has many wonderful traits, 
but a sense of urgency is not one of them. 
Are we ever going to learn that history 
prophesies the future? Remember the 
deaths of the Marines in Beirut, the Pan 
Am 103 passengers and Islamic Jihad hos- 
tages Buckley, Kilburn. Collen and Hig- 
gins. Wake up. America! 


Senator Heflin. Mr. Cicippio? 


Mr. Cicippio. Thank you, Mr. Chairman. In 1986, while I was at 
the American University of Beirut working, a group of Islamic fun- 
damentalists, under the actual direction and control of the Islamic 
Republic of Iran, abducted me while I was at work. I was held for 
1,908 days. During those 56 years, I was moved from one area to 
the other. I was beaten. They were going to cut my personals off. 
I was up against the wall half a dozen times, or more. Guns were 
to my head, saying this is your last moment that you have on this 

I was also put into automobiles, trunks of cars. The fear at the 
beginning was where was this car going? Will I be going off a hill? 
Will I be going into the ocean? But then you begin to live with 
those fears because there are just too many of them. Days become 
longer, and also your mind begins to go and go and go, turn and 
turn and turn. 

There were many, many times that I actually felt it was my last 
moment on earth, but they always used to tell me, no matter where 
you are, if we have to go after you, if anything happens, we will 
go, no matter where it is in the world. They often while I was held 
gave me this information. They had also told me that, you are held 
captive because you are an American, because you are very valu- 
able to us, and then by holding you we could do the things that 
we would not be able to do otherwise. 

I come here today and I ask you to work on this new bill to add 
those things to it that will also help the American while he is over- 
seas so that he has some remedies that he can fall back on, so that 
he can come home and then know that he has not been forgotten. 

While I was sitting here today, I just happened to be thinking, 
it is my turn to come up, and yet I noticed that those who were 
here prior who actually represent me in my own Government did 
not have the time to hear my remarks. I felt very, very hurt about 
that, and if they do it here, what will happen overseas? Will they 
also walk out on us overseas? I was very appalled at that. It really 
hurt that those who were here to represent the U.S. State Depart- 
ment and also the U.S. Justice Department did not have time to 
hear us, the Americans, but they had time to let you know that 
what happens to us cannot interfere with their relationships to oth- 
ers around the world, countries around the world. This is not in my 
prepared remarks. I feel very hurt about it. 

I put 5 years of my life, 4 of it chained to a wall — my whole life 
was just 3 feet for that whole 5 years. I did not see the sun, day- 
light. I did not know what was happening in the outside world. I 
did not know, also, that my oldest boy died. I was not told any of 
these things, but I had been told time and time again, don't worry, 
you will be going home if you don't do anything. 

We used to ask those who held us, what is happening on the out- 
side, what is the American Government doing to protect us or to 
talk for us. So they used to come back and say, there is no news, 
no one wants to actually talk on your behalf. I would hear this for 
month after month, year after year; the Americans will not talk to 
us, so you will have to remain here. 


Then over the years you begin to reaHze, are we forgotten? Are 
we on the back pages? What has happened to those who are in of- 
fice to protect us? Your mind begins to wonder and wonder and 
wonder. Thank goodness for the American people when I was re- 
leased that, you know, we were not forgotten. The whole world 
came to me and said, we were with you and we prayed for you ev- 
eryday that you were held, and that was such encouragement to 
me to know that I had the support at home. Yet, those who could 
have helped more were not there to give it. 

Thank you, Mr. Chairman. 

[The prepared statement of Joseph Cicippio follows:] 



On September 12, 1986 a group of Islamic fundamentalists under 
the direction and control of the Islaunic Republic of Iron abducted 
me £ro«n the American University of Beirut were I had been working 
as Deputy controller. My captivity lasted for a period of 1908 
days during which time I was subject to continuous beatings, 
lnh\iinane treatment as well as medical experiments. During my 
captivity I was pziraded In front of the world press and forced to 
read prepared statements condemning the very country I call home. 
I was not alone. David Dodge, Prank Reiger, Jeremy Lovin, Rev. 
Benjamin Weir, Rev. Lawrence M. Jenco, Thoraas Sutherland, Frank 
Reed, Bdward Tracy, Robert Polhill, Alann Steen, Jon Turner, and 
Charles Glass were all subject to the same fate. I hesitate to 
call myself and my brothers lucky however at least we escaped with 
our physical well being. Many were not as fortunate. Lt. Col. 
William Higgina, William Buckly, Dennis Hill, Peter Kilburn, Leigh 
Douglas, Philip Padfield, Alec Collett and Michel Seurat all lost 
their lives while being held captive in Beirut, Lebanon.'' 

The question lingers, why suoh a long list of shattered lives 
and who was responsible for these atrocities. The Answer has 
become increasingly clear: The Islamic Republic of Iran directed, 
financed and controlled the abduction, confinement and torture of 
the above men In an effort to coerce the United States Government 
into releasing Iranian funds held In United States Banks as well as 
to force the Government into the sale of TOW mioles and other 
armaments. This io not speculation or fantasy this is the cold 
hard truth supported by Special Prosecutor Lawrence Walsh in the 
Iran Contra-Hearlngs. To support these facts one need only look to 
the flow of money and weapons between this country and Iran and its 
relationship to the release of the above individuals. 

Despite the grotesque and repugnant character of the Iranian 
Governments actions in all likelihood the Foreign Sovereign 

1 The author realizes that many of these men ore not American 
citizens and would not have standing to sue under the proposed 
?hang« to the FSIA however, they can not and will not be 


iBmunltiea Act as currently enacted does not allow any type of 
recovery for myself and the others who were held captive. 2 we are 
here today to persuade the members of the panel that an amendment 
to the Foreign Sovereign Immunities Act la necessary in order to 
prevent the future abduction and confinement of United States 
Citizens who are working abroad. 

2 Myself as well as David Jacobaon currently have an Appeal 
pending before the United States Court of Appeals for the District 
of Columbia Circuit. The main issue is whether the current Foreign 
Sovereign Immunities Act permits recovery for confinement ant 
torture of myself an Mr. Jacobson. 



AS I made my way to work on morning of September 12, 1986 on 
the campus of the American University of Beirut three men 
approached from the rear, pushed me to the ground, pistol whipped 
my 8k\xll zmd threw me into the back seat of an adjacent vehicle. 
This was the beginning of five (5) years of cruel confinement, 
where the tortures of beating and hunger were secondary to those of 
loneliness rage, and bewilderment. Maddening boredom alternated 
with stark terror. I would be totally cut off from my loved ones, 
never see the sun or the stars, never read a newspaper or receive 
a letter. And for four years of my captivity, I would be chained 
to a tragic American Hostage, whose rapidly deteriorating mental 
condition often made him a burden to reside with. 

During my confinement I was subject to the moot inhumane 
conditions possible. I was chained to a radiator for the majority 
of my confinement and forced to reside on the balcony of a building 
were the temperatures often fell below freezing. I was subject to 
constzmt Interrogation and the customary beatings that went along 
with these sessions. 

I became ill in September of 1991, violently and painfully 
ill. I was stricken with terrible aibdominal pain that left me weak 
and trembling. I couldn't stand or eat or sleep. Eventually my 
captors summoned a surgeon who performed an examination. It was 
determined that surgery would be necessary and I was immediately 
taken in a trunk of a vehicle to the Hospital. Surgery was 
performed and I remained in the Hospital for a period of five days. 
I mention this experience because it made me realize that the party 
responsible for my abduction was no mere rogue organization. They 
were part of a vast highly skilled, government supported network. 
They had been financially well supported, with excellent 
communications and aocesa to anything they pleased. 


On November 4, 1991, I was unejqpectedly moved to anobher 
location. It vaa a great improvement over the "hate House", where 
the walls had been blackened over with what I suspect had been a 
stove fire, leaving a lingering atench in the air. On November 25, 
1991 I was moved again, my captors had little problem handling m© 
as my weight had shrunk to 130 pounds. Finally, upon reaching my 
destination I was told that I would be going home, I did not 
believe my captors at first as this had been told to me numerous 
times in the past only to be rejected. I was permitted to bathe 
and was supplied with shoes, slacks and a sweater. Eventually 1 
was loaded into a large cardboard appliance box and placed in the 
back of a vehicle. I still did not know if I was going to be free 
or dumped into the Mediterranean Sea. On a deserted stretch of 
road, outside of Beirut, I finally encountered freedom for the 
first time. My captors unloaded me from the box and instructed me 
not to open my eyes until they left or risk being shot. I complied 
with their request. I heard the sound of an approaching automobile 
and soon heard an individual call my name. It was an envoy from 
the Syrian government who quickly shuttled me away to Damascus. 
Freedom had finally come. 

The purpose behind recalling these events is to allow the 
members of the committee to understand, in a personal and up close 
fashion, the pain and suffering all of the Hostages had to endure 
at the hands of the Iranian Government. The same feelings of 
isolation are being relived once again as we seek reparation for 
our years of confinement. I wish to turn the committee's attention 
to the following analysis of the current Foreign Sovereign 
immunities Act as well as the reasons why it is imperative to amend 
the Act. 



In The Schooner Exohange v. McFaddon , 11 U.S. 116, 136, 3 
L.Bd. 287 (1812), the Supreme Court adopted the common law doctrine 
of foreign sovereign immunity. As noted in The Schooner Exchzmqe , 
the doctrine of foreign oovereign immunity rests upon comity 
between nations, id. at 135-36; Verllnden B.v. v. Central Bank of 
Miaaria . 461 U.S. 480, 486, 103 S. Ct. 1962, 1967, 76 L.Ed. 2d 81 

This doctrine began to erode when the State Department 

declared that matters regarding foreign sovereign immunity were 

executive issues best handled by the State Department. In what has 

been deemed the now famous "Tate Letter", the Acting Legal Advisor 

of the Department of State to the Acting Attorney General stated, 

"it will hereafter be the Department's policy to follow the 

restrictive theory of sovereign Immunity in consideration of 

requests of foreign governments for a grant of sovereign Immunity. 

26 Dept. St. Bull. 984, 985 (1952). According to this modem 

theory : 

A state may be held liable in the courts of another 
nation if it engages in an industrial, commercial, 
financial or other business enterprise in which private 
persona may there engage, or does am act there in 
connection with such an enterprise wherever conducted, 
and the proceeding is based upon the conduct of such 
enterprise or upon such act. Article II, Draft 
Convention on Competence of Courts in Regard to Foreign 

In 1976, Congress codified what was at the essence of the 1952 

Tate letter. Congress' efforts led to the creation of the Foreign 

Sovereign Immunities Act. The FSIA grants sovereign states 

Immunity unless their activities fall under one of the five 

exceptions. However, sovereign immunity should be regaxdad as the 

exception rather than the rule, and should be confined to a foreign 

sovereign 'd truly governmental acts and not e-xtended to strictly 

commercial activities. McDonnell Douglas Corp. v. Isla mic Republic 

of Iran . 758 F.2d 341 (8th Cir. 1985). Further, a commercial claim 

against a foreign state on the merits does not affront the 


11315 Before the Subcomm. on Administrative Law and Governmental 
Relatione of the House Comm. on the Judiciary, 94th Cong., 2d Sess. 
31 (1976) (Testimony of Bruno A. Ristau)]. 

The Act reflects Congress's solicitude for the "rights of both 
foreign states and litigants in United States Courts. 28 U.S.C. 
Section 1602. Its history takes note of, among other things, "the 
growing number of disputes" between American citizens and foreign 
states and "expresses the desire to ensure" that "our citizens will 
have access to the courts in order to resolve ordinary legal 
disputes ." (emphasis supplied) See H.R, Rep. No. 1487, 94th Cong., 
2d Sess. 6-7 (1976), reprinted in 1976 U.S. Code Cong. & Admin. 
News 6604, 6604-06 (hereinafter "House Report"). 

It is important to note that when the FSIA was enacted United 
States Citizens were not being systematically abducted throughout 
the world by foreign governments to be used bartering chips. In 
1976 Congress and in turn the state Department was dealing with a 
much different world than we are faced with today. It was not 
until the late 1970*3 early 1980'8 that the middle eastern nations 
began fostering aggression towards united States Citizens. Before 
thio time the democratic governments of the West as well as Eastern 
Block countries of Europe did not engage in the abduction of United 
States Citizens. Perhaps the most memorably example of the 
changing of the world order came from Iran itself when In 1979 a 
militant student coalition under the direction of the Ayatollah 
Khomcnl, seized control of the United States Embassy in Tehran. 
Clearly these problems were not prevalent or foreseeable when they 
act was drafted. It is the intention of the Hostages to persuade 
this committee to allow the proposed changes to the Act to prevent 
this type of aotivity from occurring again. If the nations of the 
World are placed on notice that they will be held financially 
accountable for their actions against United States Citizens 
traveling abroad it will act as a positive deterrent. I wish now 
to turn my analysis towards the benefits to the proposed changed in 
the Act. 


AMENDwgrrrs to the fsia 

A3 stated previously it has loag since been the concern of law 
makers as well as the State Deportroent to persuade private 
individuals from suing Foreign Governments when they are acting In 
a piirely Sovereign Capacity. As hostages we undersfciind the 
reasoning behind that policy and why it is necessary to have 
safeguards to that effect in place. However, the proposed changes 
to the FSIA will not impede upon that "sacred" area. What we are 
looking to do is deter the arbitrary detention, torture and 
confinement of United States Citizens abroad. We know of no 
government that has an established national policy that allows for 
hostage taking. Further, any Nation that does engage in conduct of 
this nature surely could not call their actions "sovereign." The 
acts which were committed upon us were purely of a private nature 
and were not done to protect any national security interest of the 
Iranian Government nor to promote an estsiblished national policy. 
These were cruel hard acts of terrorism. By allowing the proposed 
changes to the FSIA to become law this country will be sending a 
clear message to the world community: If you decide to arbitrarily 
abduct, confine and torture United States Citizens you will be held 
fln^mcially accountable in the courts of this country. 

By holding foreign governments financially accountable for 
their actions it will in all likelihood deter this type of conduct 
from happening again in the future. This committee can not change 
what has happened to the Beirut Hostages but it can prevent this 
type of conduct from occurring again as well as give those who were 
aggrieved an opportunity to be compensated. 

With any change in the laws of this country there is an 
overriding concern that the new cause of action will create a 
"flood of litigation" which will overburden the courts. These 
proposed changes will not have that effect. The number of 
individuals who would fall into the subject classification would be 
limited to U.S. Citizens who were arbitrarily abducted and tortured 


wno oppose tnese proposed amendments can not point to an 
overwhelming number of individuals who would have standing to 
proceed under the Act. Accordingly, we submit the act would bo 
confined to those individuals who have a legitimate justiciable 

The final area we would like to address deals with the State 
Department's potential opposition to the proposed amendments. The 
State Department has continuously resisted our efforts to seek 
reparation from our captors. As stated previously the State 
Department believes that matters dealing with foreign nations 
involve national interest and are best handled by the Government 
and that our Court system should not become involved. We believe 
that when an individual spends five years of his life arbitrarily 
confined at the hands of a foreign nation that person has a right 
to know the reasons behind his detention. A foreign Sovereign that 
engages in the type of conduct as alleged herein should 
automatically loose the privilege of Sovereign Immunity. The 
determination of what an aggrieved party has the right to know 
should not lie in the hands of our State Department but rather In 
the capable hands of the Judges of this Country. if a Foreign 
Sovereign wants to systeraatioally abduct U.S. Citizens working, 
living or traveling abroad they must be held accountable for their 
actionfl and no alleged risk of National Security should prevent the 
aggrieved party from having their chance at reparation. 

In Conclusion the present version of the FSIA does not give us 
any chance of reparation against our captors nor does it provide a 
deterrent to these men from performing these gross atrocities in 
the future. Unless these proposed Amendments become law the 
actions of our captors will continue. In recent years we have seen 
terrorism first hand in this Country it is time to put an end to 
this madness. We urge you to turn the proposed amendments of the 
FSIA into law. Joseph Cicippio 


Senator Heflin. Mr. Hall? 


Mr. Hall. Thank you, Mr. Chairman. I appreciate having the op- 
portunity to be here today. There is little I can add to the testi- 
mony that has already been given. I would like to characterize 
what happened to me. 

My name is Clinton Hall. I am a retired major in the U.S. Army. 
What led up to my abduction by the government of Iraq is I was 
working in the State of Kuwait helping to clear up the munitions 
and things left behind by the coalition forces and by the Iraqis. In 
the process, I was abducted at gunpoint by military personnel from 
the Iraqi government within the territory of Kuwait. 

I was taken to Baghdad, placed in a prison cell, removed of my 
clothing, subjected to being in a closed cell, 8-by-8, no lights, no 
windows, no facilities of any kind, water or toilet facilities, and ba- 
sically deprived of any humane treatment. Although I wasn't phys- 
ically injured in any way, I was told in graphic detail of the things 
that would happen to me in order to obtain information — removal 
of fingernails, cutting off of joints, subjection to electrical shock of 
personal parts. 

In the process of interrogation, I was asked everything about me 
personally that I could possibly be asked, including, you know, who 
my relatives were, where they lived, telephone numbers, addresses. 
There is not anything about me now that the government of Iraq 
does not know. I also am concerned about the long-term effect, as 
Mr. Cicippio pointed out, with this information. 

I think that the bill that is before the Senate and the one that 
has passed in the House subcommittee are very important to Amer- 
ican citizens and I urge the Senate and the Congress of the United 
States to pass those bills to give Americans their rights. 

[The prepared statement of Clinton Hall follows:] 

Prepared Statement of Clinton A. Hall 

Clinton A. Hall, also known as Chad Hall, is a retired Major in the United States 
Army. During his active duty time he worked as an Explosive Ordnance Disposal 
Officer. After his retirement from the Army he worked as a General Manager and 
Vice President for a General Contractor and was self-employed as owner of a sand 
and gravel company. 

On June 1991, Mr. Hall traveled to Kuwait to become employed by Environmental 
Health Research & Testing. He commenced working in Kuwait desert and did so 
until October 8, 1992, at which time he was abducted out of the Kuwait desert by 
Iraqi military officers. 

Prior to his abduction, Mr. Hall was aware of several "border incidents" involving 
citizens of other nations, including Britain, Sweden, Pakistan and the Philippines. 
He was aware of two British subiects who were arrested at the Iraq-Kuwait and 
Iraq-Turkish borders several months prior to Mr. Hall's abduction. Both British sub- 
jects were imprisoned in Baghdad ana only recently released. 

On the 8th day of October, Mr. Hall was working in the Demilitarized Zone 
(DMZ), approximately one kilometer from the Kuwait-Iraq border and about 1 and 
one-half kilometers from the town of Umqsar and about 200 meters from the United 
Nations (UN) outpost of Camp Cohr. Mr. Hall had two work crews in that area 
which were working in the southern edge of the DMZ removing barb wire entangle- 
ments and dismantling trunk lines and bunkers that had been left behind by the 
Iraqis during their occupation of Kuwait. 

In another area, about a 1000 meters south of Kuwait-Iraq border, Mr. Hall had 
a second work force doing very much the same work but included removal of explo- 
sive munitions. During the day of 8 0>;tober, Mr. Hall would go back and forth be- 
tween these two work elements to supervise their work and check on their progress. 


At about 10:00 a.m. in the morning, while returning from visiting his element in 
the South of the DMZ, Mr. Hall approached the work crew closest to the border and 
found aU of his people and equipment standing idle. Mr. Hall observed an Iraqi Pa- 
trol Vehicle. Concerned about the welfare of nis work force, Mr. Hall approached 
the group with caution and then noted there was also an U.N. Patrol Vehicle. Pre- 
suming tnat, with the presence of the UN representative, there would not be a prob- 
lem, Mr. Hall approacned the group, dismounted from his vehicle and introduced 
himself as the Proiect Manager and Supervisor for the people that were working in 
that area. His work group consisted of nationals from Syria, Nepal, Bangladesh, and 
Pakistan; all of which had moderate understanding of English. After introductions, 
the senior Iraqi Officer asked Mr. Hall why his work force was inside Iraq and what 
authorization ne had to be there. Mr. Hall advised the Iraqi Officer that his people 
and equipment were not in Iraq but in Kuwait as verified by the United Nations 
Sub-Polar Survey Team and coordinated and verified by independent survey using 
the Global Positioning System. The Iraqi Officer did not accept either basis. Mr. 
Hall asked verification by the U.N. Officer who concurred that Mr. Hall and his peo- 
ple were in fact inside of Kuwait. The Iraqi Officer did not accept this explanation 
either and insisted that Mr. Hall accompany him and the other Iraqi Officer to Iraq 
to meet with his commanding officer. Mr. Hall advised that he could not do so since 
he did not have an entry visa, at which time he was assured that it was not nec- 
essary and that would only be gone for a short while and Mr. Hall would be re- 
turned immediately thereafter. Mr. Hall refused to go but suggested that possibly 
the two Iraqis could accompany himself and the U.N. Officer to the U.N. outpost 
on Camp Cohr and seek resolution by the U.N. The Iraqi Officer refused. Mr. Hall 
then suggested that possibly their commander would come to the border where he 
and Mr. Hall could discuss the problem of location. The Iraqi Officer stated that his 
commander would not do that. 

With a last hope of negotiation, Mr. Hall stated he would accompany the Iraqis 
to see their commander only if the U.N. Officer "a Bangladesh Officer" also go along. 
Turning at that moment to talk to the U.N. Officer for approval of his reauest, Mr. 
Hall found the U.N. Officer had departed the area. Presuming that the U.N. Officer 
had gone for help, Mr. Hall conducted a dialogue with the Iraqi Officers to assure 
that nis personnel and construction equipment would not be taken across the bor- 
der. This exchange lasted approximately 30 minutes at which time Mr. Hall became 
aware that the U.N. Officer was not going to return. 

At this point in the conversation, one Iraqi Officer advised Mr. Hall that he was 
a Major and the other Officer a Colonel. Mr. Hall's Pakistani Supervisor, that was 
working for him, intervened in the conversation and advised that Mr. Hall was a 
General. At this point the Iraqi Colonel stepped over to his parked Patrol Vehicle 
and removed a 9mm pistol. Standing about three feet from Mr. Hall, he pointed the 
pistol at him and stated "you will come with me or I have the authority to shoot 
you". At this point. Mr. Hall again entered into negotiations with the Iraqi, under 
duress with a pistol being pointed at him, and obtained agreement from the Iraai 
that they would let his people and equipment go if he would go with them. Mr. Hall 
agreed and got into his vehicle with the Iraqi Colonel. Mr. Hall as driver with the 
Iraqi Colonel sitting next to him in the passenger seat with the cocked pistol in his 
rib cage. As Mr. Hall started the vehicle he observed the Iraqi Maior directing his 
people to get on the equipment and point it north towards Iraq. Mr. Hall turned 
to the Iraqi Colonel and asked why the Major was taking that action since they had 
agreed to take only him and let his people go. The Iraqi Colonel stated very frankly 
"f have changed my mind". At that time Mr. Hall turned off the ignition to his 
truck, told the Iraqi Colonel he could not accept that and would not go with them. 
As he opened the door to get out of the vehicle, the Iraqi Colonel warned him not 
to get out or he would shoot him. As Mr. Hall stepped around the door of the vehicle 
the Iraqi Colonel got out of the other side of the truck, laid the weapon across the 
hood, told Mr. Hall to get back in the vehicle immediately or he would be dead. At 
this point the Iraqi Major observed what was taking place, came forward and asked 
the Colonel what was happening. The Colonel appraised him of the situation in Ara- 
bic. After a short discussion between the two, the Major turned to Mr. Hall and said 
"if we do as we had agreed, would you go with us?" Mr. Hall said "yes,_ but only 
after my people have got on the equipment and left the immediate area." The two 
Iraqis again consulted and agreed. Mr. Hall called his supervisor over, directed him 
to get the men and equipment immediately out of the area and as soon as he ob- 
served the Iraqis taking Mr. Hall toward the border that he go immediately to the 
U.N. outpost at Camp Cohr and report Mr. Hall's abduction to the U.N. 

When Mr. Hall got back in the vehicle again with the Colonel, the Colonel again 
placed the cocked pistol in Mr. Hall's side and directed him to drive into Iraqi, ap- 
proximately 1 kilometer away. The Iraqi Major followed in their Patrol Vehicle. 


After crossing at the border check point the Iraqi Colonel directed Mr. Hall to pixU 
over and that the Major would drive Mr. Hall's vehicle. At this point there was a 
large group of Iraqi personnel standing around and as the Major exited his Patrol 
Vehicle he was asked who had they captured. He responded that they had an Amer- 
ican. The group started to approach Mr. Hall's vehicle, all talking very loudly. At 
this point Mr. Hall was outsioe his vehicle and became ever more concerned about 
his welfare and moved very quickly to the vehicle and got in the passenger side, 
closing, locking the door and rolling up the window. At this point tne Colonel had 
pushed himself into the back seat of the vehicle directly behind Mr. Hall and as Mr. 
Hall sat down in the passenger seat, the Colonel placed the cocked pistol into the 
base of his head and advised him not to do anything or he would be shot. Still as- 
suming that liiey were just suppose to go to the border and talk with their com- 
manding officer, nowever, the two Iraqis continued into Iraq. It soon became evident 
to Mr. Hall that their command base was not where the Iraqi Officer said it would 
be. This became even more evident as they drove through the town of Umqasr and 
continued north. Shortly after crossing the 10 kilometer Line that marked amount 
of damage of the DMZ on the Iraq side they proceeded to the town of Basra which 
was approximately 90 kilometers north of where Mr. Hall was abducted. The route 
along the road was very rugged and uneven caused by the severe damage imposed 
by the coalition forces. Mr. Hall was very concerned about the cocked pistol that was 
being held on him. 

Upon arriving at Basra, Mr. Hall was confined in a small room which had no toi- 
let, no water and no bed. He was seated in a chair and told to wait for someone 
to speak with him. He was questioned in English by an Iraqi who said he was a 
graduate of the University of Illinois. That man said they had made a mistake but 
that the decision to release Mr. Hall could only be made in Baghdad. Not withstand- 
ing that admission, Mr. Hall was confined for eleven hours without food, water, 
bathroom privileges or a bed. 

Needing to use bathroom facilities. Mr. Hall cried for help or for the attention of 
a guard. No one responded. He tried the door to his room and found it unlocked. 
He left the room in search of a bathroom and possible escape. However, he encoun- 
tered an Iraqi soldier armed with an AK— 47 who told him to stop in Arabic. The 
guard allowed Mr. Hall to use the bathroom and returned him to the room which 
was now locked, where he spent the night in a chair. He was confined for a total 
of 27 hours without any food or water. The next day he was transported, again at 

Tne Iraqis decided to transport Mr. Hall to Baghdad and since air transport could 
not be used, he was transported in a civilian car, a small two-door Fiat, and on the 
trip was accompanied by three Iraqis. The total trip took approximately 12 hours 
and during the trip Mr. Hall was told by these three Iraqis that any information 
that they wanted from him he would give them or they would take whatever meas- 
ures were necessary to gather that information. Included in their comments were 
"removal of fingernails", "cutting off fingers and toes", "peeling his skin off" and the 
application of ' electrical shocks to his personal parts". Mr. Hall assured these per- 
sons that it was not necessary to torture him. Within the bounds of propriety, he 
would provide whatever information was required. Dvuing this period ihe Iraqi also 
described what they would do to President Bush if they could get their hands on 
him. All during these conversations Mr. Hall tried to engage his captors in talking 
about their families, their welfare, general conditions in Iraq, the fact that Iraq and 
America had been allies before the war with Kuwait and would probably be alUes 
in the not too distant future aft«r the hostilities. 

In Baghdad, he was taken to a converted parking garage which was used as a 
jail. The floor and walls were concrete. There were no windows and the door was 
soUd. There was no electricity, food, water, or toilet facilities in his jail cell. He was 
required to strip naked in the presence of five Iraqi officers. He was then given pris- 
on striped pajamas to wear. He was confined in total darkness for four days. He 
was fed only once a day during his confinement. Upon entering the cell, he was con- 
fined from 2:00 p.m. to 9:00 a.m. the next day without bathroom facilities. 

During the early part of this stay in the prison in Baghdad, Mr. Hall was blind- 
folded and taken from his cell. He was told that he was oeing taken to the interro- 
gation room for questioning. 

During this interrogation Mr. Hall was questioned extensively daily as to how and 
what he was doing in Kuwait; who he worked for; and was he in the military; had 
he ever been to Iraq before? They asked about his family to include names, address- 
es, and telephone numbers. They asked about the status and conditions of living in 
Kuwait and the general feeling of U.S. people about the Iraq-Kuwait conflict. They 
stated that on the basis of illegal entry that Mr. Hall could expect up to 20 years 


When Mr. Hall was taken to the toilet facilities, he was not given toilet paper and 
told to use his hand. After this was done he was denied the right to wash his hands. 
Something he was given, presumably the water, caused him to have diarrhea which 
made the situation even more uncomfortable. 

During Uie time he was in jail he heard other prisoners, including females, 
scream as if in pain. From the sounds he heard it sounded as if people were being 
tortured. Mr. Hall feared for his life at that point. 

On the foiu-th day of his confinement Mr. Hall was told he would be shaved. He 
was allowed to wash at a sink and then was seated and a portion of each side of 
his face was shaved. He was then taken to a room where an Iraqi in civilian clothes 
asked him if he had been mistreated. His response was that it was what he had 
expected. Then three people were brought into the room; a Russian Colonel, a Ken- 
yan Major and an Australian female civilian. These three United Nations represent- 
atives and an Iraqi Colonel flew from Baghdad to Umqasr in a Russian aircraft. 

On tiie afternoon that Mr. Hall was turned over to the U.N. in Baghdad, they 
were supposed to fly out that afternoon but due to failing light conditions and due 
to the fact that there were no lights at the airfield in Umqasr. It was decided that 
Mr. Hall would remain overnight again in Baghdad. 

The Iragi wanted to take Mr. Hall back into their custody but thanks to the as- 
sistance of the Russian Colonel with the U.N., Mr. Hall was placed in accommoda- 
tions with other U.N. personnel to be transported the following morning to the Iraq 

Apparently, during the evening, the news media was able to locate the hotel 
where Mr. Hall was being kept and in the morning prior to his departure the media 
occupied the lobby in order to acguire pictiu*es. The U.N. shpped Mr. Hall out the 
back door of the hotel into a waiting car but one news team from the BBC had an- 
ticipated this and took pictures of Mr. Hall coming out the back of the hotel. This 
was the first pictures released that showed he was in good condition and being re- 
leased. During Mr. Hall's stey in the hotel the room was guarded bv two Iraqi sol- 
diers who accompanied him and stood guard during a dinner which was attended 
by the senior U.N. Mission personnel and the Polish Ambassador who was respon- 
sible for the U.S. interests in Iraqi. 

The following morning the U.N. personnel drove Mr. Hall to Iraqi's airfield, placed 
him on a U.N. plane to transport him to Umasar. During this trip and until Mr. 
Hall was turned over to the U.N. at Umqasr Mr. Hall was escorted and in custody 
of an Iraqi Colonel. 

At Umqsar Mr. Hall was officially turned over to the U.N. where he was adminis- 
tered a cursory physical, was placed back on the airplane which then transported 
him to Kuwait where the U.N. turned him over to the U.N. Ambassador at Kuwait. 

After debriefing by the U.S. Embassy security, Mr. Hall was allowed to call his 
family and then attend a briefing for newspapers. Later that afternoon Mr. Hall 
flew to the U.S. to Washington, D.C. 

Since that time a suit has been filed on behalf of Mr. Hall against the Republic 
of Iraq in Cause No. 92-2842^HG in the United States District Court for the Dis- 
trict of Columbia. The Head of Ministry of Foreign Affairs was served by agents of 
the Polish government in Baghdad, thi'ough diplomatic channels required by the 
United States Code, Foreign Sovereign Immunities Act. For many months no action 
was taken in that suit, it being the advice of Mr. HaU's attorney to wait until the 
pending legislation in both the House and the Senate was acted upon to clarify the 
issue of foreign sovereign immunity. However, in February 1994, Mr. Hall's attorney 
was contacted by an attorney who has been retained by the Republic of Irao to con- 
test the jurisdiction of the court. The default of Iraq had been taken in that suit 
in as much as the Republic of Iraq had not responded within the requisite sixty 
days allowed by United States law. 

The Republic of Iraq has now filed a Motion to Set Aside Default, which is pend- 
ing in the court and has lodged a Motion to Dismiss for lack of Jurisdiction, which 
will be heard in the event the court sets aside the default. 

The pending bill introduced by Senator Specter clarifies the issue of jurisdiction 
of the court which will allow persons who are mistreated either physically or men- 
tally, as was Mr. Hall, to seek redress in the U.S. courts. It further provides for 
levy and execution on assets of a foreign country found in the Unites States in order 
to satisfy any judgment rendered. The Specter bill is restricted to those specifically 
designated terrorist nations, including Iraq and Iran, with whom the United States 
does not have diplomatic relations. Passage of the bill will assure Americans who 
are mistreated by foreign governments, particularly those which operate outside 
their territorial boundaries as have Iraq and Iran, the right to pursue an appro- 
priate remedy in the United States Courts and to seek and receive compensation 
for their injuries. 


Mr. Hall continues to suffer today from the effects of his confinement and the ter- 
rorist tactics employed by the Iraqis. He continues to remain under the care of a 
physician for the severad symptoms which he experiences now which he did not ex- 
perience prior to his abduction and confinement including insomnia, claustrophobia, 
and sexual dysfunction. Mr. Hall urges passage of the hill. 

Senator Heflin. Mr. Sofaer? 


Mr. Sofaer. Good morning, Senator. It is a pleasure to be here 
with you, sir, and an honor to be at this table with these gentle- 
men. Thank you for inviting me to present my views on this bill 
and its counterpart in the House of Representatives, H.R. 934, 
which would amend the Foreign Sovereign Immunities Act by mak- 
ing an exception to that immunity for certain cases in which Amer- 
ican citizens are the victims of State-sponsored torture or other 
abuse of human rights. 

Without such an amendment. Senator Heflin, it is quite clear 
that victims such as are at this table today — Mr. Cicippio, Mr. Ja- 
cobsen, Mr. Hall, Mr. Princz — and such as the clients of my firm, 
Scott Nelson and James Murkowski, and of the firm of Mudge 
Rose — and Mr. Garment is here, as well, today, Mr. Heflin — will 
never get any kind of relief 

It is clear that the act doesn't apply to this sort of conduct when 
it occurs overseas. It does apply to the similar torts that are com- 
mitted here, so conceptually tnere is no difference in that sense. In 
fact, torts committed here can raise the same sensitivities for the 
U.S. State Department and our executive branch that torts that 
are committed abroad raise, and we have to deal with those sen- 
sitivities. We are learning to, but we are not learning very fast. 

The Torture Victim Protection Act is limited to individual defend- 
ants and you will have lawsuits only when you can get an individ- 
ual defendant who committed torture here in the United States, 
and then you would be limited in what you could collect. 

We know that espousal simply does not work in these cases. Sen- 
ator, I was here many times with you as a State Department offi- 
cial. We have our duties and we are competent, and the people who 
appeared before you today are exceptionally competent, but they 
are playing a certain role. Their interests are limited to the office, 
as Madison so eloquently wrote in the Federalist Papers. We need 
something other than espousal. 

Senator Heflin, you would not, and none of us would entrust our 
rights, our health, our lives to the hands of individuals such as who 
testified here today. Their purpose, their aims are too broad; they 
are not directed to the protection of the individual Americans that 
are affected. It takes a lot in the State Department, Senator, to 
fight for an individual American when a foreign State is involved. 
We have been waiting years for a decision on espousal in the Nel- 
son case and we have not yet received it. 

Of course, there are dangers to amending the Foreign Sovereign 
Immunities Act, but those dangers can be overcome by careful 
analysis and responsive testimony. The testimony you received 
today was not responsive to the relatively few dangers that are in 
this legislation. I think that as long as it is limited to American 
citizens, I believe it should be amended to eliminate the reference 
to international terrorism as a standard and we should include in 


that law hostage-taking and other clearly defined acts of inter- 
national terrorism. 

So long as we have an exhaustion requirement — and the one ad- 
ditional suggestion I would have, Senator Heflin, is a requirement 
that an international tribunal be convened in the event the State 
objects to our courts. So long as those changes are made, I simply 
don't see any reason why the United States cannot cope with the 
resentment that might occur in a foreign country, even a friendly 
foreign country. I would not limit this bill to States on the terror- 
ism list. I don't think that that is a principled way to go about this. 

So having experience with these issues for many, many years, in- 
cluding having settled. Senator Heflin, the case of the Letelier 
bombing myself — I led the negotiation on that — and having settled 
the Starr claim with Iraq and the claims in The Hague with the 
Iranians, I can tell you I have no doubt that the United States has 
the moral strength and the means to make this kind of a declara- 
tion stick so long as it is carefully drafted and implemented with 
the sort of commitment to human rights that I have no doubt the 
present President of the United States has. 

Indeed, I am really surprised that this administration, which 
says, and I believe it is true, it is committed to the advancement 
of human rights in the world, would not take this bill and use it 
as a practical and constructive means for implementing that com- 

I thank you, Mr. Chairman, for inviting me to testify here today. 

[The prepared statement of Abraham D. Sofaer follows:] 

Prepared Statement of Abraham D. Sofaer 

Mr. Chairman and members of the Committee: Thank you for inviting me to 
present my views on S. 825. Like its counterpart in the House of Representatives, 
H.R. 934, this legislation would amend the Foreign Sovereign Immunities Act 
("FSIA") by making an exception to sovereign immunity in certain cases in which 
American citizens are the victims of state sponsored torture and other egregious vio- 
lations of human rights. Legislation is necessary to ensure that when such viola- 
tions occur, American citizens are not denied the right to a fair hearing in a neutral 

In 1976, Congress enacted the FSIA to ensure that oiu- citizens have access to the 
courts in this country to resolve ordinary legal disputes involving foreign states. 
While the focus of the FSIA was on commercial disputes, the Act also provided an 
important exception to the general principle of immunity in cases involving personal 
injury and death as a result of the tortious conduct of a foreign state occurring in 
the United States. This "non-commercial tort" exception to sovereign immunity ap- 
plies to gross abuses of human rights perpetrated by foreign states on U.S. territory, 
as in Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980), and more re- 
cently in Liu V. Republic of China, 892 F.2d 1419 (9th Cir. 1989), cert, dismissed, 
111 S. Ct. 27 (1990). . 

The FSIA did not provide a remedv in U.S. courts, however, for torts committed 
outside the United States. In general, this remains sound policy. Foreign states in 
which such torts are committed ordinarily provide an adequate and more appro- 
priate forum for such cases. Moreover, in the absence of a substantial nexus with 
the United States, providing a forum in the United States for such cases could rep- 
resent an extra-territorial extension of the jurisdiction of our courts to adjudicate 
that is not warranted by international law. The time has come, however, to adopt 
a limited exception to this general policy. 

The proposed legislation would, in effect, expand the non-commercial tort excep- 
tion to certain egregious human rights violations perpetrated against U.S. citizens, 
even where the conduct occurs outside U.S. territory. Permitting such cases to be 
heard in our courts is justifiable under international law because the prohibition 
against torture and similar abuses is so fundamental and so widely accepted among 


nations as to render inapplicable the normal rules against extra-territorial asser- 
tions of jurisdiction. 

The proposed legislation properly incorporates certain safeguards. First, the ex- 
ception applies only to American citizens. While it is appropriate that we provide 
a forum for our citizens when their most basic human rights are violated and no 
other remedy exists, we have neither the duty nor the capability to open our courts 
to any person who complains of human rights violations involved anywhere in the 
world. Second, the exception in H.R. 934 recognizes that, where the domestic courts 
of the foreign state in which a covered injury occurs provide an adequate and effec- 
tive remedy, the aggrieved person, although a U.S. citizen, must pursue that rem- 
edy. The extension of extraterritorial jurisdiction contemplated should be limited to 
cases where a new forum is needed, not merely convenient. 

In fact, the coverage attempted by S. 825 is too broad even with these important 
limitations, and could undermine its legitimate purposes. The acts that are tne sub- 
ject of H.R. 934^torture, extra-judicial Killing and genocide — are clearly defined and 
condemned in several international instruments that have nearly universal support 
among states. No state claims a right to torture or summarily execute the citizens 
of another state. S. 825, however, attempts to provide a forum to American citizens 
who are the victims of "international terrorism," a term subject fc intense debate 
and conflicting interpretation. In view of the absence of consensus in this area, 
international law provides no support for asserting the jurisdiction of U.S. courts 
against a foreign state in cases involving allegations of an offense so vague and po- 
litically charged as "international terrorism." Moreover, an attempt to assert juris- 
diction in such cases could subject the United States to suit in foreign courts for 
conduct that it considers to be wholly lawful in character. 

No need exists for incorporating so broad and politically charged a basis for juris- 
diction. Many of the most serious cases that S. 825 seeks to redress would be cov- 
ered by the widely accepted definitions of torture and extra-judicial killing contained 
in H.R. 934. The most glaring exception involves acts of hostage-taking, but that 
conduct could also be covered in the bill by adding hostage-taking to the hst of inter- 
national delicts for which a foreign state could be subjected to suit in U.S. courts. 
The statute should be revised accordingly. 

Another, even more important revision should be made, in order to enable states 
that differ on the adequacy of an existing remedy to agree to an international forum. 
It seems safe to predict that no state will accept the proposition that its remedies 
are inadequate, and many foreign states will take offense at the proposition that 
they must litigate charges against them in the courts of the nation whose citizens 
make those charges. The consequences of allowing American citizens to pursue such 
claims in U.S. courts without first exhausting more traditional options could ad- 
versely affect U.S. foreign poUcy interests. 

The way to respond to these concerns is to require the U.S. citizen who sues in 
our federal courts to accept adjudication of his or her claim before a neutral and 
fair international tribunal, if the other nations involved is prepared to do so. The 
International Court of Justice and other existing institutions could readily provide 
an adequate international remedy for the internationally recognized offenses to be 
covered by appropriate legislation. Where a foreign state is found both to refuse an 
adequate domestic remedy, and in addition to refuse to agree to adjudicate or arbi- 
trate the dispute in accordance with one of several available forms of dispute resolu- 
tion, the U.S. will be in a far stronger position internationally to provide a domestic 
remedy, and the foreign state will be in a much weaker position to object. 

My experience in the Letelier case is particularly instructive in this regard. After 
years of attempting to force Chile to respond to civil suits brought against it in the 
U.S., we decided to try to resolve the dispute by proposing an international arbitra- 
tion under a treaty we had with Chile that one had to strain to apply. Chile re- 
sponded positively to this proposal. While the Chilean Government was unprepared 
to subject itself to the jurisdiction of the U.S. courts, it was prepared to accept an 
international arbitration with binding results. The U.S. should similarly be pre- 
pared to deal with such claims in some recognized tribunal or through some widely 
accepted arbitral procedure. 

Like the claimants in Letelier, other victims of human rights abuses can, of 
course, petition the Department of State to espouse their claims. Unfortunately, 
however, for most American citizens whose human rights have been abused by a 
foreign state, espousal is an inadequate option. One of the reasons that the FSIA 
was enacted in 1976 was that, owing to the diplomatic pressures that are brought 
to bear by foreign states, the Department cannot be relied upon to make sovereign 
immunity decisions "on purely legal grounds and under procedures that insure due 

Erocess." Similarly, the Department's decision with respect to espousal is likely to 
e influenced, not only by the merits of the case, but by the Department's concern 


for offending a foreign state and creating a potential irritant in its dealings with 
that state. This is particularly likely to occur where the claimant alleges that es- 
pousal is necessary because local remedies in the state that is alleged to have in- 
jured him are ineffective and unavailable. My firm's cUent, Scott J. Nelson, has 
waited over nine years for a decision as to the espousal of his claim of tortvu"e 
against Saudi Arabia. 

Our courts, on the other hand, are not subject to the same pressures as the State 
Department. They have long and routinely examined the effectiveness of foreign ju- 
dicial remedies in the context of motions to dismiss based on the doctrine of forum 
non conveniens. Moreover, the exhaustion of remedies requirement embodied in this 
legislation is precisely the same as that which is contained in the Tortvire Victim 
Protection Act, which was enacted in 1991 and which provides a remedy against an 
individual who commits acts of torture, though not against the foreign state which 
may be responsible for the torturer's conduct. 

In the past, the Department has objected to legislation giving U.S. citizens a judi- 
cial remedy in U.S. courts for essentially three reasons. First, the Department has 
asserted that, under the restrictive theory of sovereign immunity, the activities of 
government law enforcement agencies and their proxies are always sovereign in na- 
ture and, hence, entitled to immunity from suit in our courts. Second, the Depart- 
ment has feared that adoption of this legislation would trigger retaliatory lawsuits 
in which U.S. law enforcement authorities are hauled into the courts of foreign 
states to answer for their activities. Third, the Department has been concerned that 
the legislation would lead to unenforceable default judgments against foreign states 
that refuse to submit themselves to the U.S. judicial system in cases involving alle- 
gations of human rights abuses. 

The argument that the activities of government law enforcement agencies are nec- 
essarily sovereign" ignores the decisions in Letelier and Liu, which hold that no 
state has the discretion to commit acts that violate basic "precepts of humanity as 
recognized in both national and international law." These decisions are consistent 
with a uniform body of case law holding that torture and other universally recog- 
nized abuses of himian rights cannot be characterized as official acts of state in view 
of the extraordinary degree of codification and consensus condemning such acts as 
violations of international law. The Department has never taken the position that 
the decisions in Letelier and Liu are incorrect or that the principles that they 
espouse are inconsistent with U.S. obligations under international law. If such acts 
are not regarded as protected sovereign acts when committed in the United States, 
they cannot consistently be regarded as "sovereign" — and therefore immune — when 
committed abroad. 

The fear that adoption of this legislation would result in U.S. law enforcement 
agencies being hauled into foreign covuls to account for their actions is unfounded. 
Following the decision in Letelier, foreign states have been subject to suit in the 
United States for human rights abuses perpetrated by their intelligence and law en- 
forcement agencies in this country. Yet, I am unaware of a single case in which an 
action alleging torture, assassination, or any similar abuse has been brought against 
the CIA, the DEA, or any other agency of the U.S. Government based on its activi- 
ties abroad. Even less reason exists to fear that the U.S. law enforcement agencies 
will be hauled into foreign courts based on their maltreatment of foreign nationals 
on American soil. Few such cases occur in the U.S., and adequate and effective rem- 
edies exist for foreigners who might claim to have suffered such violations. While 
the danger of a retaliatory action is real, it seems insubstantial and well worth ac- 
cepting as the price for ensuring a fair forum for the egregious acts involved, wheth- 
er they occur on foreign or American soil. 

The concern that this legislation will result in unenforceable default judgments 
is equally unpersuasive. When the FSIA was adopted in 1976, we faced a far more 
substantial risk that Soviet bloc and other countries that adhered to the absolute 
theory of sovereign immunitv would not appear in our courts. Eventually, however, 
we were able to persuade those countries that it was in their interest to appear. 
In most instances, therefore, a foreign state will appear and assert its rights, rather 
than exposing its property to attachment. Even if a foreign state chooses not to ap- 
pear, the imposition of a default judgment will create pressure on it to settle the 
dispute. In my experience, while a judgment may be oisregarded when it is ren- 
dered, the issue is eventually addressed and some form of relief is obtained. 

For the reasons described above, therefore, and with limitations which I believe 
are essential, I support the proposed legislation. And I thank you, Mr. Chairman, 
and this Committee, for inviting me to testify. 



Mr. Sofaer supports legislation that would amend the FSIA by making an excep- 
tion to sovereign immunity in certain cases in which torture and other egregious 
violations of human rights are perpetrated against American citizens. He believes 
that such legislation is necessary to ensure that when such violations occur, Ameri- 
cans are not denied the right to a fair hearing. , ■ r 

Mr. Sofaer's support for this legislation is premised on the inclusion of certain 
safeguards that would ensure its consistency with international standards and mini- 
mize the risk of causing offense to foreign states. First, the legislation should apply 
only to conduct that is clearly defined and universally condemned by the inter- 
national community. He, therefore, opposes inclusion of an offense so vague and po- 
litically charged as "international terrorism" and would propose instead that the 
amendment cover acts of hostage-taking, in addition to torture, extra-judicial kilhng 
and genocide. Second, the legislation should require that an American citizen pur- 
sue his claim in the domestic courts of the foreign state in which the injury occurred 
whenever those courts provide an adequate and effective remedy. Finally, the legis- 
lation should give American citizens a remedy in U.S. courts only when the foreign 
state refiises to adjudicate or arbitrate the dispute before a neutral international tri- 

In Mr. Sofaer's view, legislation incorporating these safeguards would represent 
a prudent expansion of existing law that will safeguard the rights of American citi- 
zens. He points out that the FSIA already strips a foreign state of immunity from 
suit in cases involving gross abuses of human rights perpetrated on U.S. territory. 
If such acts are not regarded as protected sovereign acts when committed in the 
United States, they cannot consistently be regarded as "sovereign"— and hence im- 
mune — ^when committed abroad. Moreover, in view of the fundamental and univer- 
sal nature of the prohibition against torture and similar abuses, the normal rules 
against extra-territorial assertions of jurisdiction are not applicable. 

Mr. Sofaer also beUeves that the fear that this legislation will result in U.S. law 
enforcement agencies being hauled into foreign courts to account for their actions 
is unfounded. Though foreign states are currently subject to suit in the United 
States for human rights abuses perpetrated by their agents in this country, no ac- 
tions alleging torture, assassination or any similar abuse have been brought in for- 
eign courts against the CIA, the DEA or any other agency of the U.S. Government 
based on their activities abroad. Moreover, allegations by foreign citizens of human 
rights abuses perpetrated by U.S. law enforcement agencies on U.S. soil are rare 
and adequate and effective remedies are available in this country when such abuses 
do occur. 

Senator Heflin. Mr. Sofaer, your recommendation is that the 
designation of victims of international terrorism is too subjective 
and should be removed and be more specific, like "hostages" and 
specific types of terrorism that was inflicted on them. Is that your 

Mr. Sofaer. Yes, it is. Chairman Mazzoli testified earlier today, 
and his legislation has that in it and I commend him. I commend 
Senator Specter and this committee for all the work being done, 
but I think on that particular issue the House bill is the better ver- 

Senator Heflin. Now, you have also stated that Americans wish- 
ing to pursue a claim under this proposal should be required to ex- 
haust all forums provided through international channels, such as 
the International Court of Justice. How realistic is that proposal? 
Moreover, how important is it for the Foreign Sovereign Immuni- 
ties Act to be consistent with established international practice, 
and if it is important, will the proposed legislation meet this cri- 

Mr. Sofaer. No, I don't condition my support on the exhaustion 
of international remedies such as the ICJ. I do condition it on a 
finding by the Federal court involved or the international tribunal 
involved, if one is convened, that there was an exhaustion of an 

22-729 - 96 - 4 


available and effective remedy in a foreign country, as it now pro- 

I would add to that permission, in effect, for the foreign country 
involved to say to the United States, to say to the plaintiff, instead 
of going to your courts, we will agree to an international hearing 
on this matter; each of us will appoint an arbitrator, they will pick 
a neutral, and we will agree under the established rules of inter- 
national adjudication to have a hearing and to pay any judgment 

I think that is how we got — in fact, I have no doubt that is how 
we got the Chilean government to agree to adjudicate the Letelier 
case. They were not willing to come here and adjudicate that claim 
in the Federal courts, but the Chilean government — and not just 
the new government. Senator, but the old government — this was 
agreed to by the predemocratic government in Chile. As soon as we 
came up with the idea of using the 1914 Treaty on the Settlement 
of Disputes as a vehicle for doing this, setting up an international 
tribunal, they accepted it. 

We didn't have to run in their faces the use of the Federal courts 
in the United States, and I don't think we have to in this legisla- 
tion. If a foreign government is prepared to submit itself to an 
international tribunal, I say we ought to be ready to accept that 
as well. In fact, this principle undercuts many of the objections 
raised by the U.S. Government representatives here because we 
would not have to go to a foreign court and subject our people to 
an adjudication there. We could insist on an international tribunal, 
as well, to have claims lodged against the Government of the Unit- 
ed States adjudicated. 

So I think it would be a very good way to break this logjam that 
is created around the world over these heinous activities. It is in- 
credible to me, Senator, that the legal establishment of this world 
has gone about its business and established exceptions to foreign 
sovereign immunity for commercial activities, which I fully support, 
and has been so reluctant and incapable of establishing meaningful 
remedies for heinous human rights violations. 

I say that because I think it is related to this question of where 
will the trial occur. If we come to grips with the need to allow an 
international tribunal in cases like this, I think we will have over- 
come a large part of the reticence that seems to exist both within 
this Government and in foreign governments over this issue. 

Senator Heflin. Thank you. We appreciate your testimony. Each 
of you gave very moving testimony and our sympathy goes out to 
each of you that has suffered, as well as your friends that suffered. 
Thank you. 

We have a statement from Senator Thurmond that we will in- 
clude in the record. 

[The prepared statement of Senator Strom Thurmond follows:] 

Prepared Statement of Senator Strom Thurmond 

Mr. Chairman: The hearing this morning focuses on S. 825, which would amend 
the Foreign Sovereign Immunities Act to provide jurisdiction over foreign countries 
in certain cases involving acts of international terrorism. Senator Specter is to be 
commended for his effort to provide recourse to those who suffer from international 


There is no doubt that international terrorism is a scourge of modem society. Ter- 
rorism is cowardly conduct which targets innocent civilians for undeserved harm or 
death. Clearly, we should give serious consideration to any measure which would 
be effective in reducing international terrorism. We should also seek to provide re- 
dress whenever possible for Americans who are improperly injured by foreign coun- 

On the other hand, we must be prudent and realistic in considering legislation 
if it is unlikely to be effective in achieving the desired benefits. We must recognize 
that this legislation, even if adopted, cannot force other countries to appear in our 
courts. Thus, private actions may not be as effective to provide redress to injured 
Americans or to deter international terrorism as we would wish. Further, while this 
legislation is aimed at a small number of nations, we also must be cognizant of the 
impact it may have on our relations with the rest of the international community. 
We live in a world of sovereign nations and any standard of jurisdiction that the 
United States applies to foreign countries is likely to be applied to us in return. 
Therefore, it may be counterproductive to try to assert our jurisdiction over foreign 
nations beyond the limit that we can hope to achieve in practice. 

Mr. Chairman, I look forward to hearing from the witnesses this morning to clar- 
ify these issues, and thank each of them for their time and effort in being here. In 
particular, we should recognize the individuals appearing before us who have suf- 
fered at the hands of foreign governments for their bravery. 

Senator Heflin. We are adjourned. 

[Whereupon, at 11:45 a.m., the subcommittee was adjourned.] 


Questions and Answers 

Questions From the Subcommittee on Courts and Administrative Practices 

TO Jamison Borek 

Question 1. Could you both please discuss your views on whether private litigation 
as permitted by S. 825 would provide any deterrence to international terrorism? 
Would this legislation send a helpful signal to foreign countries which are involved 
in international terrorism? 

Answer 1. Terrorists and their sponsors are typically motivated by political causes 
or a desire for retaliation against their targets. They clearly recognize the possibility 
of diplomatic, criminal justice, or even military responses to their actions. Yet they 
are still willing to undertake terrorist attacks. Consequently, we are skeptical that 
concern about private litigation in the United States would be a meaningful deter- 
rent to terrorism. 

For the reasons detailed in the testimony, it is the view of the Department of 
State that, regardless of any hypothetical effects such legislation might have in se- 
lected cases, counterterrorism policy and reactions to international terrorist threats 
and incidents are best coordinated in a unified manner by the federal government. 

Question 2. Could you both please discuss your views on how effective S. 825 
would be, if it became law, in providing actual recoveries to injured American plain- 

Answer 2. We do not beUeve that this legislation would provide an effective rem- 
edy for American plaintiffs. It is likely that foreign states would refuse to partici- 
pate in many such cases, giving rise to default judgments that would be difficult 
or impossible to enforce. States that sponsor terrorism are not likely to have signifi- 
cant assets in the United States that could be used to satisfy judgments, nor could 
it be expected tiiat judgments obtained under such legislation could be enforced 

Questions From the Subcommittee on Courts and Administrative Practice to 

Abraham D. Sofaer 

Question 1. Mr. Sofaer, I understand that you would support a provision which 
gives iurisdiction in courts in the United States only when foreign countries do not 
proviae adequate remedies for American citizens who have been injured. In your 
view, who would determine whether a foreign remedy is adequate? 

Answer 1. In my view, the courts of the United States are well equipped to deter- 
mine whether the courts of a foreign state provide adequate and available remedies 
for American citizens who have been injured in those states. This is an inquiry that 
our courts have routinely made in the context of motions to dismiss based on the 
doctrine of forum non conveniens. Recognizing the competence of our courts to make 
determinations of this nature, the Congress included an exhaustion of remedies pro- 
vision when it enacted the Torture Victim Protection Act of 1991 (PL 102-256), 
which is identical to that contained in H.R. 934. 

While the courts can be counted upon to resolve the adequacy of remedies issue 
in a manner that accords with due process. Congress has recognized that the State 



Department cannot be trusted to the same degree. The State Department is under 
constant pressiire from foreign states and may be reluctant to risk causing any of- 
fense by making a determination that it wovild be futile to pursue local remedies 
in their coiuls. ft was because of the State Department's inability to make sovereign 
immunity determinations "on purely legal grounds and under procedures that in- 
sure due process" that Congress transferred the immunity determination to the 
courts when it adopted the FSIA in 1976. 

Question 2. Mr. Sofaer, in your view is "torture" likely to be a broader category 
than "international terrorism. „ 

Answer 2. "Torture" is a much narrower category than "international terrorism ; 
it is also much more easily defined and widely accepted than the latter phrase. The 
term "torture" is defined in the Torture Victim Protection Act of 1991 as follows: 

[T]orture" means any act, directed against an individual in the offender's 
custody or physical control, by which severe pain or suffering (other than 
pain or suffering arising only from or inherent in, or incidental to, lawful 
sanctions), whetJier physical or mental, is intentionally inflicted on that in- 
dividual for such purposes as obtaining from that individual or a third per- 
son information or a confession, punishing that individual for an act that 
individual or a third person has committed or is suspected of having com- 
mitted, intimidating or coercing that individual, or for any reason based on 
discrimination of any kind * * *. 

This definition of torture derives from the United Nations Torture Convention, 
which has received the endorsement of a wide segment of the international commu- 
nity. Moreover, the experience of courts both in the United States and abroad has 
demonstrated that this definition is manageable and confined. , ^ . 

In contrast, the term "international terrorism" is politically charged and its defini- 
tion is subject to intense debate and little agreement among states. Admittedly, the 
definition of "international terrorism" in S. 825 is reasonably narrow. Nevertheless, 
in view of the absence of consensus in this area, if that phrase is inserted in the 
legislation being considered, the United States could find itself subject to suit in for- 
eign courts for conduct that it considers to be wholly lawful in character. 

Question 3. Mr. Sofaer, how effective do you think S. 825 would be, if it became 
law, in providing actual recoveries to injured American plaintiffs? 

Answer 3. For the reasons specified in my June 21, 1994 testimony, it is essential 
that any legislation that seeks to amend the FSIA provide a remedy to American 
victims of state sponsored torture and other egregious abuses of human rights incor- 
porate adequate safeguards. A carefully drawn amendment would lead to actual re- 
coveries in a number of cases for several reasons. First, in most cases foreign states 
will agree to international arbitration or to a settlement rather than litigating meri- 
torious human rights claims in U.S. courts. Second, experience demonstrates that, 
when foreign states do litigate in U.S. courts, they generally_pay the judgments ren- 
dered against them. Recovery will, of course, be most difficult in those cases in 
which a foreign state defaults. In some such cases, however, the foreign state may 
have non-diplomatic assets in the United States against which a plaintiff can exe- 
cute. In all cases, the default judgment will be a thorn in the side of the foreign 
state that will increase pressure to resolve the matter. 

Questions From Senator Thurmond to the U.S. Department of Justice 

U.S. Department of Justice, 
Office of Legislative Affairs, 
Washington, DC, September 30, 1994. 

Hon. Howell Heflin, 

Chairman, Subcommittee on Courts and Administrative Practice, 

Committee on the Judiciary, U.S. Senate, 

Washington, DC. 

Dear Mr. Chairman: Thank you for your letter of July 20, 1994, regarding the 
testimony of Stuart Schiffer before the Senate Judiciary Subcommittee on Courts 
and Administrative Practice regarding S. 825, as introduced, a bill to amend the 
Foreign Sovereign Immunities Act. Your letter also requests a response to some ad- 
ditional questions submitted by Senator Thurmond. We appreciate this opportunity 
to present the views of the Department of Justice on S. 825, as introduced, both at 
the Subcommittee hearing and in response to Senator Thurmond's questions. 

The Department of Justice is totally committed to the fight against international 
terrorism by all effective means. Senator Thurmond's questions go directly to the 
core issue of the effectiveness of S. 825 as a remedy to victims of state-sponsored 


terrorism. In our view, S. 825, by extending the jurisdiction of U.S. courts over suits 
alleging deliberate wrongdoing by foreign states, and by authorizing prejudgment 
attachment of foreign state property in such suits, would not be an effective remedy 
for state-sponsored terrorism because it goes well beyond the current international 
consensus regarding jurisdiction over foreign states in tort suits. In response to 
suits proceeding under S. 825, foreign states are likely not to appear in U.S. court, 
and not to honor judgments rendered against them. Foreign states which sponsor 
international terrorism also are unlikely to have significant assets in the United 
States which might be attached. Conversely, we may be exposed to reciprocal treat- 
ment by foreign states for our deliberate policies which may be unpalatable abroad. 

We wish to respond to Senator Thurmond's questions as follows: 

Question 1. Could you please discuss your views on whether private litigation as 
permitted by S. 825 would provide any deterrence to international terrorism? Would 
this legislation send a helpml signal to foreign countries which are involved in inter- 
national terrorism? 

Answer 1. We believe there are more effective deterrents to international terror- 
ism than private litigation. These include criminal prosecution of individuals who 
commit acts of terrorism and economic sanctions against countries designated as 
state sponsors of terrorism. Moreover, because of the sensitivity of such suits, we 
beUeve that foreign states will be reluctant to appear to defend themselves in this 

Question 2. Could you please discuss your views on how effective S. 825 would 
be if it became law, in providing actual recoveries to injured American plaintiffs? 

Answer 2. We do not beUeve that S. 825 would be effective in providing actual 
recoveries to American plaintiffs. As noted above, foreign states are reluctant to 
enter the courts of other countries to defend themselves against charges of viola- 
tions of law stemming from conduct within their own borders. This makes the tort 
area one with particularly high potential for default judgments, and the problems 
associated with them. In addition, states which sponsor terrorism are unlikelv to 
have assets in the United States to satisfy judgments pursuant to S. 825. Further- 
more, because S. 825 departs from the current international consensus, it is unlikely 
that judgments based on it will be recognized and enforced in foreign jurisdictions, 
or that terrorist states would have significant assets in any jurisdiction which might 
honor our judgments under S. 825. Thus, we view S. 825 as providing little chance 
of realistic relief to U.S. plaintiffs while it exposes the United States to adverse-con- 
sequences overseas. 

Question 3. You raise a concern in your written testimony about exercising pre- 
judgment attachment on foreign governments' commercial property, because of the 
reciprocal exposure of the United States. What alternative provision, if any, would 
you suggest? 

Answer 3. We do not see any practicable alternatives which fulfill the same func- 
tions as prejudgment attachment. As outUned in our testimony, enlarging the pre- 
judgment attachment limitations in the Act poses foreign relations concerns and in- 
vites reciprocal treatment by foreign states where United States assets are located 
abroad. 'Die United States, which has more overseas assets than any other country, 
is most exposed in this regard. We are wary that, while well-intentioned, S. 825 will 
lead to the entanglement in judicial proceedings of United States property overseas, 
while creating little real benefit to U.S. plaintiffs because state sponsors of terror- 
ism will have little or no property which might be subject to attachment in this 

I hope this letter is responsive to Senator Thurmond's questions. I am happy to 
respond further to any additional questions or thoughts that you, or other members 
of the Subcommittee, may have on this subject. 

Sheila F. Anthony, 
Assistant Attorney General. 


Additional Submissions for the Record 


Allan Gerson 

SUITE 230 


WASHINGTON. OC 20036-6804 



June 16, 1994 

Senator Howell Heflin 

Subcommittee on Courts & Administrative Practice 

U.S. Senate Judiciary Committee 

223 Hart Senate Office Building 

Washington, D.C. 20510 

Dear Senator Heflin: 

We are grateful for the opportunity to submit our views for the 
written record of the Subcommittee on Courts & Administrative 
Practice of the Senate Judiciary Committee on the proposed amendments 
to the Foreign Sovereign Immunities Act of 1976 (hereinafter "FSIA")/ 
28 U.S.C. §§ 1602-1611, addressed by S.825 and H.R.934. Our interest 
in this matter stems as lawyers for the family of a victim of what 
can only be categorized as an atrocious, inhumane act: the terrorist 
bombing of Pan Am Flight 103 in which 270 innocent men, women and 
children, including 189 Americans, were killed. 

International law, as advanced by the United States and the 
international community for over thirty years, forbids and condemns 
attacks upon, hijacking of, or the deliberate targeting and 
destruction of, civilian aircraft, no matter what the underlying 
reason.' In order to seek justice and obtain accountability, we 
have filed on behalf of our client, Bruce Smith, the first American 
civil suit against the government of Libya for the December 21, 1988 
bombing of Pan Am Flight 103.^ 

' For example, see The Convention on Offenses and Certain 
Other Acts Committed on Board Aircraft (Tokyo Convention), 
20 U.S.T. 2941, T.I.A.S. No. 6768 (1963); The Convention for the 
Suppression of Unlawful Acts Against the Safety of Civil 
Aviation, (Montreal Convention) 24 U.S.T. 564, T.I.A.S. No. 7570 
(1971) . 

' Smith v. Libva et al .. Civil Action No. 93-2568 (D.D.C. 
December 15, 1993 ) (Sporkin, J.). The action also names as 
defendants: the Libyan External Security Organization, Libyan 
Arab Airlines, and the two indicted suspects, Abdel Basset Ali 


Page 2 

Senator Howell Heflin 
Re: S.825 & H.R.934 
June 16, 1994 

For the benefit of the record. Attachment "A" contains several 
newspaper articles pertaining to our case and surrounding issues. 
Unfortunately, in pursuing this quest, we are hindered, rather than 
helped, by the arcane and anachronistic concepts that predominantly 
overwhelm the FSIA. 

We, therefore, welcome this opportunity for Congress to revise 
the FSIA so that justice can be served in our case and in the cases 
of other families affected by the wanton destruction carried out by 
state sponsors of terrorism in violation of international law. To go 
over basics, because basics are what this revision is all about, 
justice requires in cases such as Pan Am Flight 103 the punishment of 
the perpetrator. But criminal punishment — assuming it is a 
realistic prospect — is by no means the sole remedy. Nor is it, in 
this particular case for that matter, a means by which all 
responsible individuals could be punished for terrorist acts 
committed against Americans and their family members. 

One only has to review the captions in the criminal indictments 
filed in the United States and United Kingdom to realize that the 
only named defendants are two Libyan nationals. Yet, by the factual 
allegations outlined in these very same indictments the government of 
Libya, and several named high level officials, allegedly employed 
these individuals as intelligence agents and purposefully directed 
their actions. 

In the case of Pan Am Flight 103 the murder trail, as repeatedly 
affirmed by the American and British governments, leads straight to 
the Libyan government leadership, including Colonel Mu'ammar 
al-Qadhafi himself. But, because it is accepted international 
practice that states and their leaders are generally immune from 
criminal proceedings in other countries, Libya's leadership has been 
able to, and likely will, evade punishment. Justice will not be 
accomplished absent a total military defeat of Libya which would then 
create an opportunity for a trial such as those held at Nuremburg and 
Tokyo following the Second World War. The fact remains that it is 
impossible given our current state system to haul a foreign 
government or its leaders into a United States court for the purpose 
of criminal punishment. 

There is, however, an important alternative which can serve as 
an effective remedy. In the case of terrorist states, the prospect 
of a substantial civil judgment should be seen as a twin pillar to 
criminal prosecution. Governments or their officials have, in the 

Al-Megrahi and Lamen Khalifa Fhimah. Mr. Smith's wife, Ingrid, 
perished in the bombing. 


Page 3 

Senator Howell Heflin 
Re: S.825 & H.R.934 
June 16, 1994 

past, been held accountable in our domestic courtrooms for civil 
damages resulting from acts of torture or massive deprivation of 
human rights.' At least one pending' action seeks civil remedies 
based on circumstances that fall within the category of crimes 
against humanity.' Still, especially in the area of human rights, 
victories under the FSIA have been rare and almost impossible to 
obtain due to the increasingly constrictive interpretation of the 
FSIA given by the American judiciary. 

Thus, for example, in the case of Saudia Arabia v. Nelson ' the 
United States Supreme Court held that even though the government of 
Saudia Arabia, through its police officials, may have engaged in acts 
of torture against an American citizen — after that citizen was 
induced to travel to and take employment in Saudia Arabia by virtue 
of actions that that government took in recruiting him, through 
advertisements in American newspapers — the government of Saudia 
Arabia was nevertheless held to be beyond the reach of United States 

E^ven in the rare instance where a state could be held 
accountable under the present interpretation of the FSIA by a United 

' See generally Filartiaa v. Pena-Irala . 630 F.2d 876 (2nd 
Cir. 1980) (Paraguayan official can be held liable for deliberate 
torture perpetrated under the color of official authority); Forti 
v. Suarez-Hason . 672 F.Supp. 1531 (N.D.Cal. 1987) (Allegations of 
murder and torture against former Argentinean general allowed to 
proceed under Alien Tort Claims Statute); Von Dardel v. Union of 
Soviet Socialist Republics . 623 F.Supp. 246 (D.p.C. 1985)(Soviet 
Union denied immunity for violation of diplomatic immunity 
arising from arrest, imprisonment and possible death of Swedish 
diplomat Raoul Wallenberg); Letelier v. Republic of Chile . 
488 F.Supp. 665 (D.D.C. 1980 ) (Chilean government does not possess 
iauBunity for government executed assassination that occurred in 
the United States ) . 

• Princz v. The Federal Repu blic of Germanv.813 F.Supp 22 
(D.D.C. 1992) (American nazi concentration camp survivor seeking 
deuaages for nazi atrocities committed during World War Two) . 

'113 S.Ct. 1471 (1993). Although the claim was based on 
Nelson's injuries arising from his alleged detention and torture, 
due to the restrictive language of the FSIA Nelson was forced to 
bring suit under the "commercial activity" exception of § 1605 
(a)(2) and not the "non-commercial tort" exception of § 1605 
(a)(5). H.R.934 would allow actions such as Nelsons to proceed 
to the merits. 


Page 4 

Senator Howell Heflin 
Re: S.825 & H.R.934 
June 16, 1994 

States court for an act of state sponsored terrorism, it is difficult 
if not unlikely that collection of the judgement will ever occur. 
The most telling example is that of "the widow of former Chilean 
diplomat Orlando Letelier and her unsuccessful attempt to attach 
Chilean state property to satisfy a judgment obtained against Chile 
for the 1976 assassination of her husband.' That case amply 
demonstrates the dilemma and illustrates the need to adopt the 
language proposed by the present amendments with respect to execution 
of judgments. After all, what benefit is the prospect of achieving 
civil accountability against a state if an aggrieved plaintiff can 
not execute upon the verdict? 

S.825 and H.R.934 are designed to overcome these and other 
problems. Most importantly, they would enable American citizens, or 
their survivors, to seek civil damages from states responsible for 
the most blatant contravention of internationally guaranteed human 
rights — no matter where the act occurred. Furthermore, the 
amendments would ensure those rights are more than window dressing 
but, in fact, substantive and actionable rights. 

The matter of Pan Am Flight 103 is a case in point. Although it 
is not essential for the purposes of our suit that the FSIA be 
amended, in so far as we allege that Pan Am Flight 103, as an 
American flagship aircarrier, was — for all intents and purposes 
under American law — part of United States territory (the Congress 
may, depending upon the language adopted in its final revision, wish 
to avail itself of the opportunity to more clearly define the 
definitional parameters as to what constitutes United States 
territory under the FSIA'), we nevertheless would welcome the 

' Letelier v. The Republic of Chile . 748 F.2d 790 (2nd Cir. 
1984) (Plaintiffs not permitted to attach assets of Chilean state 
airlines to satisfy judgment obtained against government for 
assassination of former Chilean diplomat) . The Court explicitly 
recognized the true problem as it opined that "Congress did in 
fact create a right without a remedy." Id. at 798. 

'It would be helpful if the Congress clarified the meaning 
of the phrase "in the United States" as it is used in § 1605 
(a) (5) (non-commercial tort exception). The Supreme Court, while 
noting the different territorial limitations imposed by 
§ 1605 (a)(2) and (a)(5), passed on the opportunity in Argentine 
Republic v. Amerada Hess Shipping Corp .. 109 S.Ct. 683 (1989). 
For example, at the very least, the FSIA should be made to 
comport with the territorial language of the Antiterrorism Act of 
1991, 18 U.S.C. §§ 2333 et seg . ■ which was expanded to include 


Page 5 

Senator Howell Heflin 
Re: S.825 Sr H.R.934 
June 16, 1994 

proposed amendraents in order to enable ourselves and other families 
of victims to have a more clearcut basis for suit. There is no 
rational basis for a distinction between a case in which an American 
is killed by a terrorist attack while working at his desktop computer 
in the World Trade Center from that in which an American is killed 
while working on a laptop computer in an American aircraft 31,000 
feet above the ground over Europe or elsewhere. 

We understand that the Department of State has, as they have in 
the past, expressed opposition to these amendments. Their reasoning 
stems primarily out of a perceived fear that the dictates of 
reciprocity might create a situation whereby American officials would 
be increasingly brought to account in foreign courts, including that 
of Libya or other terrorist states. There is, of course, much to be 
said for symmetry in the law. But it can be taken to an excess. 

Here symmetry — and by that we mean the equal application of 
the law — is assured in so far as whatever system would bring 
officials to account would have to be acknowledged as one capable of 
fair, impartial judgments by an independent judiciary. There are 
few, if any, jurists in the world today who would be willing to 
subscribe to the idea that Libya's courts, or those courts of states 
that would be affected by S.825, would meet that standard. For that 
reason, the much touted reciprocity arguments pertains more to 
abstractions than reality. Its only real effect is to prevent the 
achievement of justice — that is, holding the ultimate perpetrator 
of atrocities like Pan Am Flight 103 to account by methods that are 
within our means, namely civil damages. 

The FSIA must also be allowed to evolve with the transformation 
of international law and not continue to be interpreted merely by its 
legislative history. By its very nature, customary international law 
is transitory and the FSIA must be allowed to expand with the 

the Special Maritime or Territorial Jurisdiction of the United 
States, 18 U.S.C. S 7. 

In order to afford greater protection to toerican citizens 
overseas, this Congress may also wish to review whether the 
grounds of an American Embassy should constitute United States 
territory for the basis of a civil action against foreign states 
filed under this proposed legislation. The courts have clearly 
decided otherwise as illustrated by the string of cases arising 
from the Iranian hostage situation of 1979-80. See Persinoer v. 
Islamic Republic of Iran . 729 F.2d 835 (D.C.Cir. 1984); HcKee], v. 
Islamic Republic of Iran . 722 F.2d 582 (9th Cir. 1983); 
Ledoerwood v. Islamic Repu blic of Iran. 617 F.Supp. 311 (D.D.C. 
1985) . 


Page 6 

Senator Howell Heflin 
Re: S.825 & H.R.934 
June 16, 1994 

development of the norms of customary international law held to 
beoutside the scope of a state's claim of immunity. The Ninth 
Circuit stated it aptly: "if violations of ius cogens [i.e., 
slavery, torture, piracy, genocide, attacks on civil aviation] 
committed outside the United States are to be exceptions to immunity, 
Congress must make them so."* 

Since the adoption of the FSIA in 1976, amendments to the FSIA 
have been regularly proposed and defeated on the recommendations of 
the Department of State. In an era in which innocent Americans are 
targeted by terrorists specifically because they are Americans, 
Congress must act to afford the victims and their families some 
manner of recourse in which justice and accountability can be 
achieved. To fail to do so twice punishes those victimized; first by 
the terrorists who caused them harm, and secondly by the country 
that, after having failed to protect them from harm, precluded them 
from the opportunity to seek punishment of the perpetrators, often by 
the only means available in these situations: civil damages. Our 
views on the general subject of civil remedies against terrorist 
states and on the pending bills have been more fully presented in our 
speeches and writings, examples of which are submitted herein for 
your review as Attachments "B" and "C" respectfully. 

We thank you for your attention to this most important subject 
and urge you to amend the FSIA to allow Americans or their surviving 
family members to hold foreign states civilly liable for their 
terrorist acts committed abroad. Should the Committee wish for us to 
expound further on any of the views presented in this letter or the 
attachments, please do not hesitate to contact us at (202) 785-9281. 


/Zi^^-iCr^ ^^^^.a^r^ 

Allan Gerson Mark S. Zaod 

Professor of International Law Member of the N.Y., 

and Transactions, C.T., and D.C. bars 
The George Mason University 


•Siderman de Blake v. Rep ublic of Argentina . 965 F.2d 699, 
719 (9th Cir. 1992) . 



Wednesday. December 15, 1993 

Sued Over 
Flight 103 

■ A victim's husband is 
demanding $15 million, to prove 
state-sponsored terrorism is "too 


AHany Borcaa 

A former Pan Am pilot whost m!e 
»-as killed in the bombing of Flight 103 
is suing Libya for $15 million for its al- 
leged role in the 1988 terrorist attack 
over Lockerbie, Scotland. 

The lawsuit could result in a civil 
trial on many of the same issues 
spelled out in a 1991 criminal indict- 

"Libya hasn't been penalized for 
sponsoring the attack." said Bruce M. 
Smith, now a pibt »-ith Delta Airlines. 
"This gives us the chance to have a 
trial where we can determine, in the 
eyes of the world, yes, ihey did it: yes. 
they're guilty." 

Smith's lawsuit, expected to be filed 
today in U.S. District Court in Wash 
(See MAN, Page B-2) 

Man Sues Libya over Bombing 

(MAN, from Page B-1) 
ingtort, D.C., name* as defendants 
the Libyan government; its intelli- 
gence agency^ Libyan Arab Air- 
lines, the government-run airline 
whose offices in Malta allegedly 
were used to store the bomb's ex- 
plosives: and two Libyan intelli- 
gence agents accused of carrying 
out the attack. 

A spokesman for the Libyan mis- 
sion to the United Nations Hid not 
immediately return a telephone call 
seeking comment. 

Libya has refused to produce the 
two agents for trial, and the UN's 
effort to force their surrender 
through sanctions has been unsuc- 

"We're at an impasse." said 
Mark S. Zaid. a Washington. D.C.. 
lawyer who is handling the case 
along with Allan Cerson. former 
chief counsel to the U.S. mission to 
the UN. "This is one way lo move 
fonn'ard. This is one way to achieve 
accountability and to receive com- 

The Dec. 21. 1988. bombing 
killed 270 people, including 35 stu- 
dents enrolled in a S>Taajse Uni- 
versity study abroad program and 
five others with ties to Central 
New York. 

Smith's suit makes many of the 
same allegations Outlined in the 
U.S. Department of Justice's No- 
vember 1991 indictment accusing 
Libya of masterminding the attack. 
It alleges that Libyan leader Muam- 
mar Qaddafi ordered the bombing, 
and that two Libyan agents. Abdel 
Basset AJi al-Megrahi and Ijmen 
tChalifa Fhimah. used their connec- 

tions to Libyan Arab Airlines to 
carry it out. 

Smith filed > similar lawsuit 
against Libya in Winburgh. Scol- 
bnd, about seven weeks ago. Zaid 

Smith. 57, is one of a relatively 
small number of family members 
who accepted $100,000 from Pan 
Am's insurance carrier to settle po- 
tential lawsuits against the airline. 
Another 225 families sued Pan Am 
and won a verdict that said the air- 
line's poor security contributed to 
the attack. The airline is appealing. 

Smith said he used his $100,000 
to fund a successful tobbying cam- 
paign in Washington. D.C.. aimed at 
establishing an anti-terrorism re- 
ward program. The program, ad- 
ministered by the State Depart- 
ment, offers up to $4 million for 
information that helps track down 
airline terrorists. 

Smith's wife, Ingrid. died while 
traveling from the couple's home in 
England to New York, where the 
31-year-old podiatrist planned lo 
meet her husband for Christmas. 
Today, Smith lives in a suburb of 
Daytona Beach. Fla. 

Smith said he hopes to win an 
award against Qaddafi's govern- 
ment that is large enough lo con- 
\Hnce other countries not to engage 
in state-sponsored tetrorism. 

"I want to teach any country 
that uses terrorism as a way of in- 
fluencing foreign policy that it's too 
expensive." Smith said. "They 
might enjoy it. but they can'l afford 




Pan Am Sues Libya 

Pan American World Airways Inc. and 
a lormcr Pan Am pllol filed spparale civil 
siills scpkinf lo hold Ihe eovernmcnl of 
Ubya liable tor damaces in connecllon 
wilh Ihe I9R8 bomblncol Pan Am niRhl 10.1 
over Lockerbie. Scolland. 

The lawsulls are Ihe first apilnst Mhya 
slemminf from Ihe disaster, which killed 
270 people. But ihe Icjal aclinn.s face 
enormous legal and polUical hurdles. Some 
families of crash victims also said Ihcy 
were concerned thai Ihe would divert 
altcnilon from cfforls to recover damaees 
dircclly from Pan Am In suits currenlly 
pending In New Vnrk. 

Pan Am's sull. which was filed In 
Edinhirrph, Scotland, seeks UTS million for 
loss of business and for the value of the Inst 
aircraft ;n Rocklelgh. N.J., Gregory 
Buhler, a l.iwyer tor Pan Am, which ceased 
night operations and sought federal bank- 
ruptcy-law protection jn 1991, .said the sull 
was part of the normal course of winding 
up Ihe company's affairs for credllors 

Bruce Smith, a former Pan Am pilot 
whose wife died In Ihe crash Hied a 
separate lawsiul In U.S. District Qiurl In 
Wa.shlngtnn, seeking J15 n.llllnn Mr 
Smith previously filed a similar scllon In 

Under Ihe doctrine of sovereign Immu- 
nity, foreign nations generally can'l he 
sued In U.S. courts, and the law Is believed 
to be only slightly more plalntlfffrlendly 
n Scotland. The cases are likely lo require 
he cooperallon and support of U.S. and 
United Kingdom aulhorllles, who so far 
have focused on pursuing sanctions and 
criminal charges agaiasl ihe Uhyans 
rather than civil relief. " 

'This raises more quesllons with me 
than It answers," said Ue Krelndler a 
lawyer who Is currently suing Pan Am' In 
mZT "," l^hA" »f » number of Pan A m 
103 victims families, "None of Ihe families 
know of anywhere support whal Ihey are 
U7 log to do." Mr. Krelndler said of Mr 
Smith s sulL Ubya has made a number of 

<dcl ms families, but many have rejected 
the Idea of accepting any money wlihout a 
resolution of the criminal charges. 
. rx^l'"!! *?,^™"' " 'S"yfr for M'r. Smith 
said he believes foreign nations should not 
be Immime from suits In cases of alleged 
terrorism, and he said pursirlng damages 
was appropri.ite while Ihe criminal 
proceeded. He added, "I believe the Issue 
of compensation can stand apart from the 
issue of punishment." 





EilKtil In rari> %Vciliit>il»y, January IJ, IW'' rritilril in Nrw Vnrk 


Taking L'hya Ip TVinl 

I( hw been more Ihsn five yean 
since llic lerrorisl bomhing of Pan 
Am nighi 103 over LnclcciMc, 
Scoll.intl. an ac( of prcnifdilnfetj 
nmriler ih.-vi ciujcd (he ile«lhs of 
270 ncrsnn.t, T\ui despite eihaus- 
live invf,^li(^.Tlioiis we rcniain no 
do«r to iolving ihsl crime Ih-in 
We were in November 1991. when 
llic Uniccd .Sl.ilci and Uriuin an- 
nounced the inriiclincnl of l«-fl 
Uhynn intcHijencc oflicerx as Ihc 
allcjtcd Sonihcn. 

l;il>y« coniiniit^ to de/y Ihe 
UniicrfNitlrtni .S^iyiy-Crtilncll 
rdJOhllioni inllinjt'fn: it lo UAiid 
over llic iitcnit. And even if prnj. 
eoilion of Ihe two l.ihy.-jns in «n 
American or Hriiish court were 
poisihic, it vcntUl hnrdly provide 
• nadcqintefinnic lo this tragedy. 
SiirJi 3 trmild not be JiVcly to 
fcid to inditpiitahlc proof of Ub- 
Van complifjiy. Or the two coiil<I 
plead jiidty and avert a trisl. 

With no proof and no full •€- 
oniniin^ xnrKlinni ngiinil IJhyn 
would be lifted and nihcr .ttnlc 
AM)n5ori of terrorUm would sec 
tne ini«ll price they wonid pay 
for their lets. 

On anything he done to force 
"Libya's hand. lo insure acconnt- 
ahilily and (he aiciimption of re- 
iponjihiliiy? The US. gnvernmcht 
JCcmi convinced lHal criminal 
^iinix]im^hl Vi the Jofe means of 
Abtaining jmlicc. lint there arc 
"other paihi to juslice, including 
JiviJ darriajrct in a court ot Ut*. 
IwjcrH. Dvil damagct. pnrsiiant to 
idvil trial on merits, apncant to be 
Ihc bcjl way, if not a perfect one. to 
achieVc accniinuhiiily. 

A dvil jiiji cloa not ircV to re- 
place the pmspcct of criniinal pun- 

ishment httt to reenynlT/. in Hmita- 
lioris, SovcTcipn nnlions cannot be 
niini.thftj n^ if tticy ^«xreindi\idu«lT. 
Ibry ^cnn. hon-cvcr, I< dclmrd 
from future .VU of i\\rj.n\ conduct 
by being held acrmmtahle. 

To cn.Mirc arcounl.ibilily (hroticb 
A dvil .mil t*'o hurdler mm( oe 
overcome. I.ihy.i nerdt to be 
Stiippr<I i>f any vrslige of JO'.Trnjtn 
immunity that it hmindn U^*^, Inw. 
In a crrrmony at Ailinstrtn Nation- 
al C'cnv.iery on t>cr. 21. Trc^'dcnt 
nill Ointon Mated thai the atlAclc 
on r»n Am nithi in.\ wait a df Mkt- 
aic niiftcV on iiw. UnilctI Si^in. A:* 
nirli.-I ibya drvTiT* n<* ptntc^Un 
fmrii I civil siiii in iXjJi. fOtKt. Yet. 
in tlic p.vtt Ihe WS. gnvenimenl hai 
joined forces «-i(h offendrr jfnie* 
to prolfct their right lo intnumity 
from civil .tiiit. 

Ttie US. go\-crnment «-otdd nUn 
nerd lo stop refining to jhare evi- 
dcncc implicaiihg 0*bp on the 
grour^I that il woidd compromise 
the tttr. of jlich evidence in a crinii* 
nal prmcoition. Today, the p*os- 
p«n of criminal prrLtmilion icenu 
incrciMngly remoJe. 
■ Altlioiigh the cvidenre prr.tenletl 
ifi the U,*;. criminal trvtirJment ij 
said to be corvrlinlve. il fnlls to 
name the gosTrnmeol ot Ijbya. 
Only itj tn-o allrgrtl agcnLt arc 
narnrri as defcndanl^ A riWI tri-tl 
wmild remetly that by frrmint at- 
lenlioo on thego^Tjntnmi of Unya. 
And. unlike a crinunal trial, it only 
rcrjiiircs ptnftf of a prcpondcranre 
of evidence; not Ihc mo»c ezading 
lest — "beyond a reasonable 
rJoaht" — ittcfl in a criininaJ trial, 

Al.T^M OF.R.^ON. 

MARK ?:. 7Ain. 


On Dec. }S. ihe yrriters ftUitsuit 

in ihe f/.V. Phln'cJ Cnurl ylv lh( 
Dtiin'a a/ Ce/tmtfiLi n^ninst lite 

%t7temntrnt of h'hytt, m f^km// af 
the htnhn'ui **/ IntriA Smii\ vh^ 

iTie^an ton Am llij^ht 10}. 


rnn Ni-w voff/c tm^/uS EDITORIALS/LETTERS Monday, apuu. m. ^^9^ 

What Other Choices? 

Tn llic F.diior: 

"LUiyn niliiks nn l.iK-krrltlr" (r«tl- 
Inrlnl. Mnrrh 2R). sup.p.PMlnp, that llw 
Unllctl Sl.TlCS and Ilrltntn acrcpl l.lli- 
yn'.i offer nf a trial nt llw llitntw of 
two Libyan nRcnts susr^-rird of 
iHimhinr. Pan Am I'llpjil iu;i p<iluis In 
n way out of the hnpassr and llic 
piisslIillUy of achirvhif; sonic niras- 
nic nf nrcotintal)lliiy. 

Unforlunalcly. Ilir plan, whirli w.-is 
widely dlscusKcd by tin: .<;rotlisli 
piT„« la?;! January. Itns apparcnlly 
hern rcjrrteil by nilllsh and Ainrri- 
ran nfflciMs as unarrrptalilr, A simi- 
lar plan was prrsrntrd by tbe r.p.yp 
linn Govprnn^rnl lo every Srrtirily 
Council mcmlvr. lurbidinR Ihr Unit 
ed Stales, lasi l>cccinl»rr. and was 
also rejeclcd. 

Does It Indy matter where a rrimi: 
nal trial takes place, as Ionf» as tl>c 
prcsUllng rotirt cnhtorms to Amci I- 
can or nrlli-sh' ktnmiards o( due pro- 
cess and evidentiary fnlrnrjs? 

Opponmis of Tlin plan ar- 
pjic that )( Is iKit consislrni willi llnll 
e<i Nations Scnirily Cmincil rcsohi- 
linns (hat call for surrender n( Ihe l\"u 
named IJhynn iiaiinnals osicnslltlt 
rcspnnsildc for Ibc lKimblnp„ even 
ihimpb (here is no exlradlilnii treaty 
l)riwccn Libya and tiie United Slaicf 
or nrltnin. 

nul Justice In such an Iniernatinnal 
slaml-nff mnv require uimliflcation nf 
pnsiilnn-s nl Ibc Uullr<l Nations. 

Should Ihc Clinlnn Administration 
continue refusing In endorse sucl| 
plans for n criminal trial wiisidr of 
Ihe Unilcfl Stales or llrllain. il wmild 
l>e placing Its hope.s on less Iban nir- 
liRbt snncllnns and Ihe Intp'lril Ibreal 
of armed force against Libya. n»ere 
Is another option — support of civil 
litigation ap.alnst Libya. 

Tlial mule might nol carry the 
same rlnjt nf vindlcailon as criminal 
- convictions, hul h has ibe ndvaninnrs 
of iKing In the realm of Ihe possible 
and of providing some measure nf re- 
lief lo the victims and tlicir families. 

Allan gf.hson. mark s. 7aii» 

WnslifnRton. April 1. IM4 
The wrilerx. Ifm'>*rrs for the fniiUty of 
a l*nn Am riiphi lOH virf/m. Iin»«r 
filetl suit a^oinat l.ihyn in a rrtlcml 
court in Vl'nsiifn/ifon. 



Remarks by Dr. Allan Gerson 

(Professor of International Law and Transactions at 

George Mason University) 

Panel on "Sovereign Inununity: A Comparative Perspective" 

Delivered at the 88th Annual Meeting of the 
American Society of International Law 

Washington, D.C. 
April 8, 1994 

Poetry, wrote Nobel Prize winner Czeslaw Milocz, strives to 
instill order, rhythm and form as antidotes to chaos and 
nothingness. The Law has no less an aim. In the realm of the law, 
order and form has as its hallmark accountability. In criminal 
matters, this means punishment of the offender; in civil matters, 
it weans compensation to the victim or his family. Like Art, the 
law has to work with the materials -- the particular canvas and 
paints -- at its disposal. If the artist or the jurist attempts, 
for example, a composition larger than the canvas, the likely 
result is not order, rhythm and form, but more disorder. 

This is a truth which the law has sometimes ignored, not least 
in dealing with the subject of war crimes, terrorism and the like. 
As Professor Frank Newman, former Justice of the Supreme Court of 
California, put in his discussion yesterday on the establishment of 
a war crimes tribunal for the former Yugoslavia, "We are witnessing 
an addiction to criminal punishment. In fact, civil remedies can 
often be the most effective remedy." 

I wish to emphatically endorse that view — that we can be 
addicted to criminal penalties at the expense of civil remedies — 
in the particular context of Pan Am 103, the airplane which 
exploded over Lockerbie more than five years ago, the victim of a 
terror attack which killed all 279 passengers and crew aboard and 
in the process led, or hastened, the death-knell of America's 
flagship carrier - Pan American Airlines.. 

I offer my remarks today not only in my academic capacity, as 
one who has pondered about the role of punishment as deterrence, or 
in my hat as an ex-U.S. government official who dealt, sometimes 
extensively, with international terrorism, but also as an attorney 
representing a family of a victim of the Pan Am 103/Lockerbie 
bombing. Although December 21st of last year marked the fifth 
anniversary of that tragedy, not a single family has, in the 
interim, seen a single penny in compensation from the government — 
Libya — deemed by the U.S., the U.K., and the U.N. Security 
Council as most directly responsible for the bombing. 

Unlike the other families of victims of Pan Am Flight 103 who 
chose to file suit exclusively against Pan American Airlines for 
its gross negligence in bomb detection procedures — a finding 


which has recently been affirmed over a strong dissent by the U.S. 
Court of Appeals for the 2d Circuit — the family which I represent 
viewed and continues to view Pan American Airlines more as victim 
than as victimizer. With this in mind, my client chose, instead, 
to bring suit against whom it perceived to be the true villain — 
the Government of Libya. On December 15, 1993, my client filed 
suit in Washington, D.C. against the two alleged Libyan agents 
named in the United States indictments of November 13, 1991; 
against Libyan Arab Airlines which ostensibly employed them under 
cover in Malta where the bomb was allegedly planted, and against 
the Government of Libya — their employer. 

Obviously, I am not at liberty to discuss any aspects of this 
currently pending case, in which I am involved as counsel. But, in 
more general terms, I should like to focus my remarks on the need 
that this case represents for greater adaptability in permitting 
civil suits to become a vehicle — not, surely, an exclusive one — 
for addressing state accountability for support of international 

First, let me offer some personal perspective on the 
difficulties of criminal prosecution of state-sponsored terrorism. 
In 1979, while serving as an appellate attorney with the U.S. 
Department of Justice, I was recruited to help establish its Office 
of Special Investigations (OSI); an office whose mission was to aid 
in continuing to bring to justice those deemed responsible for 
participation in the most horrific form of terrorism — the 
genocide of the Holocaust. Because the U.S. Government had no 
basis for assertion of criminal jurisdiction abroad over the 
perpetrators, OSI's efforts were tied to civil proceedings aimed at 
revoking the citizenship of naturalized Americans suspected of 
having collaborated in such actions. 

The gravamen of our complaints was fraudulent procurement of 
citizenship through misrepresentation of their pasts — a fact 
which, if disclosed, would have barred entry into the United 
States. As these were civil proceedings, the standard of proof was 
not that of a criminal trial — beyond a reasonable doubt. 
Perhaps, OSI, the Government of Israel, and the U.S. Government 
overlooked or undervalued that fact when, in the case of Ivan 
Demjanjuk, it was decided, after having stripped him of his U.S. 
citizenship, to deport him to Israel to stand trial on charges of 
having run the infamous Treblinka gas chamber. As we know, in the 
end Demjanjuk was acquitted — and not out of any lack of zeal by 
the Government of Israel to gain his conviction. Meeting the 
criminal standard of proof became simply too difficult an obstacle 
to surmount. 

I dare say that criminal conviction of the two Libyan agents 
indicted by the U.S. and U.K. may run into equally-formidable 


- 3 - 

obstacles. This very possibility demands, if justice be our true 
objective, that we consider alternatives. 

In this regard, let roe cite a defense similar to that raised 
by Nazi collaborators which, should there ever be a criminal trial, 
that these Libyan agents would be 'likely to raise in their defense 
— namely, that they should not be punished for acts that were the 
product of the times, of "a different era" when selective terrorism 
appeared to have been condoned by the international community. In 
a communique of late 1993 by Libya to the U.N. Secretary General, 
Boutros-Boutros Ghali, on the subject of its role in the Pan Am 103 
incident, the government of Libya had this telling remark to make 
about its support of terrorism: "The role played by the Jamahariya 
was necessary and normal at that stage and within the context of 
the international and regional circumstances prevailing at that 
time. This role was not meant at all to be a departure from the 
rules set by the international community to govern its dealings and 
moves" . 

At "that stage", Libya meant undoubtedly to encompass the fact 
that the international community had voted not long before the 
Lockerbie incident to condemn the U.S. legal system for the 
audacity of extraditing a purported terrorist — Abu Eain -- to 
Israel to stand trial for murder. Terrorism, the UN General 
Assembly declared by an overwhelming majority in response to the 
U.S. extradition, was to be applauded, not condemned, where 
conducted in the name of liberation from "alien, colonial and 
racist" rule. 

Can Libya or its agents contend that, in a criminal 
proceeding, they are being judged by an unfair standard, that even 
assistance in the destruction of a U.S. civilian airliner was not 
improper in the context of the politics of that period and that, 
moreover, it was a political crime? Yes, I believe Libya can be 
expected to raise this defense directly or indirectly — and to 
raise it as much for political as for legal effect. 

Surely, Libya could, for example, point to the case of the 
PLO. The FLO'S record reveals a long roster — certainly no less 
than that of Libya — of terrorist acts, acts deliberately 
committed against innocent Americans as well as Israelis. Yet, as 
soon as Israel opted for an accommodation with the PLO, the U.S. 
Administration adopted an attitude of open embrace. Syndicated 
journalist E.J. Dionne, Jr., heralded — not atypically. The 
presence of an array of past U.S. Presidents, Secretaries of State 
and a good portion of the U.S. Congress to witness the Rabin-Arafat 
handshake at the White House as a "triumph of politics over 

Libya may, indeed, ask why that triumph of politics over 
principle does not apply to Libya as it applied to the PLO. After 


- 4 - 

all, as far as I know, the U.S. Government's position continues to 
be that the PLO was responsible for the assassination of the U.S. 
Ambassador to Sudan in 1979, of which it purportedly has a tape 
recording of Chairman Arafat congratulating the killers for their 
perfornance. Of course, Leon Klinghoffer, the paraplegic who was 
pushed off the Achille Lauro in 1985, was an American citizen, and 
his death was just one reason why the U.S. Congress repeatedly 
deemed the PLO to be a terrorist organization. Yet every statute 
condemning the PLO and outlawing any financial assistance has been 
quickly repealed and replaced with declarations of support for 
massive foreign aid assistance. 

Is then state responsibility for terrorism — in the sense of 
criminal culpability — a matter to be handled by U.S. courts? Can 
one even vaguely speak of a single standard when it comes to such 
matters, and is not the application of a single standard the 
absence of the rule of law? Surely, the criminal case against the 
two indicted Libyan agents is a case against Libya, although Libya 
has not been named as a defendant. Libya, on behalf of or through 
these agents, would surely argue that we are dealing with a 
political question not deserving of a court's consideration. I am 
not suggesting that I sympathize with that position. My aim is to 
point out that a criminal proceeding may suffer a fate analogous to 
that of the Demjanjuk proceeding — going one step forward and two 
backwards . 

Let us be clear. International terrorism is the flip side of 
aggression. Aggression is directed against states; terrorism is 
directed against citizens. In situations like World War II, where 
nations decisively and totally defeated another, a trial for 
aggression is possible. In all other instances, it has proved an 
illusory goal. 

This brings us to the alternative to criminal prosecution — 
civil remedies against the perpetrators of aggression and 
terrorism. A civil suit does not seek to replace the prospect of 
criminal punishment, but to recognize's its limitations — the 
stretch of the canvas, if you will. 

In the case of Libya and Pan Am 103, it is the contention of 
the American and British governments, as set forth in their 
criminal indictments against the two Libyan intelligence officers 
alleged to have planted the bombs, that the government of Libya 
masterminded the bombing. For over two years now, the U.S. and the 
U.K. have sought the surrender of these two Libyans to stand trial 
here or in the U.K. Ostensibly, of course, it is not the U.S. and 
the U.K. that are making such demands but the "international 
community". But, clearly, the U.H. Security Council in passing 
resolutions dealing with this issue, were doing so upon the strong 
urging of the U.S. and U.K., with little support elsewhere. Yet, 
after more than two years, we still seem no closer today to 


realization of the goal of a criminal prosecution than we were when 
the indictments were handed down. Libya continues to defy U.N. 
Security Council resolutions calling for it to surrender the 
agents. And, the threat of increased sanctions seems unlikely to 
force Libya into a position o£ what it has termed national 
humiliation. Moreover, even if surrender of the two Libyans for 
trial in an American or British Court occurred, that, in itself, 
would hardly provide an adequate accounting. Insofar as such a 
trial is likely to lead to Libyan complicity, the two might choose 
to plea bargain to avert a trial. Without evidence or a full 
accounting, Libya might well escape sanctions and other state 
sponsors of terrorism would benefit from the lesson that in the 
final analysis they will not be held to account for their deeds. 

What remains is the possibility of a different kind of justice 
through imposition of civil remedies. Let me make some suggestions 
for ways in which this avenue might be pursued. 

1. On the macro-side, establishment of a U.N. Claims 
Commission to achieve compensation for the victims of international 
terrorism by those states determined by the U.N. Security Council 
to have played a role in sponsoring terrorism. This would conform 
with trends set in motion by the establishment of the U.N. Claims 
Commission for claims stemming from the Gulf War with respect to 
Iraqi SCUD missile attacks and would give victims of state 
terrorism the same new rights as the victims of aggression. Over 
100 nations on behalf of thousands of individuals have already 
filed for compensation. 

2. Amend the United States Foreign Sovereign Immunities Act 
of 1976 to clearly allow suits against nations for terrorist acts 
committed outside of the United States where Americans are 

Should there be a distinction between an American killed while 
working at his desktop computer in the World Trade Center from that 
of one killed while working on a laptop on an American aircraft 
31,000 feet above the ground in Europe or elsewhere? Legislative 
efforts are underway, notably by Senator Arlen Specter and 
Congressman Romano Mazzoli, to strip immunity from those nations 
that support or conduct terrorist activities, and for those that 
commit acts of torture or genocide, no matter where the conduct 
occurs. Such efforts are to be lauded. In a ceremony at Arlington 
Cemetery on December 21st, President Bill Clinton stated that the 
attack on Pan Am Flight 103 was a deliberate attack on the United 
States. As such, Libya deserves no protection from a civil suit in 
a U.S. court. 

Indeed, I believe that even without enactment of new 
legislation or revision of existing legislation, there exists 
sufficient, if not ample, ground for overcoming any sovereign 



- 6 - 

immunity defenses that may be raised by a state government charged 
with complicity in international terrorism. This is based, in 
part, on the elevation of state responsibility for terrorist acts 
against civilian aviation into a "jus cogens" - a binding norm of 
international law which overrides any limiting municipal 
legislation. Although the international community has been unable 
to arrive at a mutually-agreed-upon definition of "terrorism", 
certain acts are so clearly act's of terrorism, no matter what 
definition of terrorism one may employ. This certainly includes 
the act of aiding or abetting in the destruction of civilian 
airliner with passengers on board. A host of international 
conventions make this clear. 

3. Institutionalize cooperation of government intelligence 
and law enforcement agencies, with plaintiffs in civil suits, 
especially where the prospect of a criminal suit arising out of the 
same facts seems dubious. 

Even where sovereign immunity difficulties are surmounted, 
failure to obtain governmental cooperation in the sharing of 
evidence can be detrimental to successful litigating claims against 
governments. Nearly invariably in such instances, significant 
evidence is the possession of intelligence law enforcement agencies 
that is inaccessible to the public. Moreover, problems involving 
the sharing of evidence in terrorism cases with civil plaintiffs 
can be fairly easily resolved, where there is a will to do so. 
There are, after all, many cases where classified evidence can be 
protected as demonstrated, for example, by the U.S. Classified 
Information Procedures Act. 

The prospect of a substantial civil judgment against a 
terrorist state or its agencies should be seen as a twin pillar to 
criminal prosecution in the efforts of the law to combatting 
terrorism. One canvas is apprehension, trial and conviction of the 
perpetrator; the other is compensation of the victim or his family. 
These are avenues that should be pursued in tandem, complementing 
one another and without one being at the expense of the other. 

Fortunately, it appears that we are making progress in this 
direction and civil damages against state-sponsored terrorism may 
surrender into the realm of the possible to replace the sense of 
chaos and nothingness that has prevailed for too long in the law's 
effort to address this issue. 




approximaiely 14.000 undocumenicd immigrants in stale prisons and 10.00015.000 in country jails, about 75% 
from Meiico. 

A prisoner transfer treaty already exists between the U.S. and Mexico. Indeed a principal cause for the 
absence of larger numbers of prisoners to utilize the treaty for transfers is the shortage of personnel to process 
the requests^ and the discrcliunary rejection of many requests. 

Deportation would be a more expeditious means of disposing with foreign and Mexican persons 
convicted of serious crimes. However the expedition would occur at the expense of the civil and due process 
rights of foreign prisoners, since their views on whether they want to be deponed and whether they would 
suffer hardship would not be considered as it is in the prisoner transfer treaties. 


A. Terrorism and Foreign Sovereign Inimunily: The Time lias Come to 
Remove the Terrorist's Legal Cloak 

Pan I: A Call to Amend the Foreign Sovereign Imniuni..i:s Acl of 1976 to 
Permit Civil Suits Against Foreign States for Violations of Jus Cogens and 
Certain Acts of Terrorism. 

By Mark S. Zaid. Esq.-" 

In the field of international commerce the rules are rapidly changing to comport with the new realities 
of developing technology in communication and transportation. Not so. however, with regard to international or 
American law as it pertains to questions of foreign sovereign immunity. Should it. for example, make a 
difference for purpose.' of jurisdiction if one were killed by a bomb while working at a desktop computer in the 
World Trade Center or while using a laptop computer on an American airliner at 32.000 feet above the ground? 

The recent bombing of the World Trade Center harshly reminded the United States that international 
terrorism still continues and Americans are now vulnerable at home. Were it proven that a foreign government 
bore responsibility for the bombing a federal coun would likely accept jurisdiction and proceed to the merits of 
the claim." Not so in the case of 189 Americans killed above Ixickerbie, Scotland when Pan Am 103 violently 
exploijed nearly five years ago. And not so for those persons who have been tortured or held hostage at the 

^ For a discussion of the pfoblctn of absence of personnel to pfocess pnsoner innsfer requests and other prot>lems. jer MictucI 

Abbcll. Fiopoitil Policy for Unuid Suuts Pnsontr Tramftr Triaiies. 9 IKT'L EwronctMEKT L. REP. 308. 309 (1993t, 

- Mark S. Zaid practices law in Washinglon. D C. wtiere he specialues in Porcifn Sovereign Immunity issues and the Fieedum of 

Infumution/Pnvacy Acts 

t' Set 28 U.S C f t603faH3l. This secfum. cumminly referred to as the non-cofiunercial ton eiception. ot the Futeign Sovetetcn 

Immunities Act pcmiitk suits against foreign sutcs tut tons coinmtncd wuhin the United Sutcs. 

Intemaiionjl Enforcement Law Reponer. Volume 9. Issue 9. Septemhei 1993. p373 



hands of a foreign stale. s^ 

Justice requires (hat the individuals responsible for terrorist acts such as Pan Am 103 be sought out. 
captured and punished accordingly. Justice also demands thai the rights of compenMiion by the victims, or 
their survivors, be pursued with equal vigor. Yet dcspiic ihc fact ihai scvcrni crimes have been acknowledged 
as universal^ and iherefore within the criminal and civil jyrisdictiorf of ever)' nation. American law coiuuiues 
to allow terrorist slates to hide behind a cloak of immunity. 

Prompted by attacks upon Americans abroad and the Senates ratification of Tlie Convention Against 
Tonure and Other Cruel. Inhuman or Degrading Treatment of runishmcnl^. the Congress recently enacted 
legislation granting victims or their survivors the right to recover damages through the use of the U.S. jitdicial 
system for injuries incurred at the hands of individuals who committed act.'; of terrorism or tonure.^ Yet. 
dcspiic attempts to do othcru-' ihe sovereignty of offending nations was kcpi intact thereby rendering the 
legislation effeciivcly wonhless. After all. notwithstanding the difficulties associated with bringing the 
defendants before a civil court or effecting proper service- . what is Ihe likelihood that the responsible 
individuals would be in a position lo even compensate ihc claimants? 

The current Congress will soon have the opponunity to vault one of the last remaining jurisdictional 
hurdles in the race against terrorists: lo permit U.S. courts to adjudicate civil claims against foreign .-Jlatcs for 
their terrorist acts committed against Americans abroad. 

Two simultaneous efforts are underway lo remove ihc main obstacle by amending the Foreign 

f See Nclion «. Saudi Anbu. 113 SCt. 1471 (1993) (American wmticd in Saudi Anhta): l^fcrwood v. Sale of Iran. fil7 

F.Supp. 3 1 1 (D.D.C. 1 9851 (American hosu^c taken in Iran); Pcrsinger ». Islamic Repwhlic or Iran. 729 F.Jd 833 (D.C. Or. 1985) 
(Aracncan hosuge taken in Iran). 

- Thiie include piracy. jlav« trade, ifuckj on nr hijacking of aircraft, gcnncidc. Jnd war crimes. See Rfjtattmfnt (Tintn) OF 
HUE Law of FotElCM RFJ^nONS (heretrufter RESTaTEMF^H') f 404 comment a. Torrure Kas alto been recngnized as havmg unrrerul 
jurisdictioa. Foni v. Stjjrez-Mason. 672 F.Supp 1331. 1341 (N.D.Csl. t987XorriciaI Innurc is 'univerul. ohIt|ainry. and denruMe'). 

- *In fcneral. juriidictinn on (he hasis of univenal iniereus has hecneiercivd in ihe fnrm nf criminal law. hut inicmatinnal law 
does rKM preclude (he ipptkstion nf non-cnmirul law on this basis, for exarrrple. b^ providing a remedy in ton or resiituitnn for vtciims nf 
piracy.* RESTArEWENT. J 404 commem b. 

f 39 U.N. G.OA.R. Supp (No. 51). 23 I.L.M. 1027 (1984). 

' The Tonure Vktim Piwecbon Act nf 1991. 28 U.S.C. ( 1330. permits luiu against mdividuals Tor the crimes of trniure and 

extrajudicial killing, but only if (1) the perpetrator was acting under tcnul or apparcru authoriiy. or coior of law. [2] the claimam has 
eahausted adequate and available local remedies and (3) ctmuncnces the aaton within 10 years after the cause of action arose. 

The Antiierroriim Act of 1992. 18 U.S.C. S 2333-2338, allows U.S. nationals » seek treble danuges for acts of inlemarimal 
terrorism. The Act is not ivailabte against foreign sates and additionally grants the Anon»ey General the authohry to tmervene m any civil 
case and suy the action if it interferes with a criminal prosecution which invotves the same subject matter. Knnwn is the "Pan Am clause.* 
Use iusbce Department requested this provision in order to sull any of the family membera from obtaining evidence frrim the U.S. 
Covemmcni in a civil action. 

• Orte needs orJy examirte (he extreme difTiculties die United Suits aitd Uniled Kingdom continue ro face m their anempts tn bring 

to thai the two Libyan ituclligence ofricen ir»diaed on charges of destroying Pan Am 103 on behalf of the Libyan goverrwnem. 

Imenational EnfofceiTKnt Law Reporter, Volume 9, Issue 9. September 1993 p374 



Sovereign Immuniiies Act of 1976 (FSIAf bui Ihe chances of success are far from guaranleed due lo ilic 
likelihood of Slate Department objection* 

The key provisions of the bills are listed below. 


Imroduccd by Senator Arlen Specter, one of the leading proponents of aniiierrorisi legislation, in April. 
1993. the bill would amend sections 1603, 1605(a) and 1610. 

- Defines "act of terrorism' in line with that of the Foreign Intelligence Surveillance Act. 50 U.S.C. i 1801. and 
the Antiterrorism Act of 1992. 18 U.S.C. § 2331: 

- Extends provisions to include both American nationals and permanent resident aliens: 

- The act could have occurred within the United Stales or outside the United Slates if money damages are 

- Suit must have been brought within six years after the cause of aciion accrued; 

- Restricted to those nations designated by the Secretary of Stale as a stale repeatedly providing suppon for acts 
of international terrorism under scclion 40(d) of the Arms Export Control Aci^: 

- Allows for aiiachmeni of propeny based upon the above guidelines. 

11. R. 934 

The House version was introduced in February 1993 by Congressman Romano Mazzoli and seeks to 
amend sections 1605(a) and 1610. 

• Provides recourse only for citizens of the United States; 

- Personal injury or death must have occurred in the foreign state named as a dd'endant and as a result of 
•torture", -extrajudicial killing" or genocide. U" Officials or employees of the stale must have committed the 
act wiihin the scope of employment. The definitions for both terms are directly lifted from TVPA; 

■ Claimant must have first exhausted adequate and available remedies in the place in which the conduct 

- Action must have been commenced wiihin 10 years after the cause of aciion accnicd: 

- Propeny may be attached regardless of whether it was involved in the act upon which the claim is based; 

- Amendment is retroactive to any given lime. 

f 28 use. Si 1330. 1602161 1. FSIA scti (onh '&x lole ind ciduiivt sandards lo be uitd in rtiolyms quesiionj ot ioverci|n 

immuoi^ cjii«l by lulti bttorc Fcdctal >nd Sale coum in die Untied Suits.- ll.R. Rep. No H87. 94Ui Conj.. 2iJ Sesi.. 
repnnied m 1976 US Code Coof. i Ad.News 6604. 6610. 

r S825. 103d Coni.. luSeu. (1993) and H.R. 934.. 103d Conj.. In Sen (1993) For an illuuralion of the objeeliorj usually 

nbed by die U S. Depanmem of Sale, see Aniiicrronjni Acl of 1990: llearinis on S.2465 Before die Subcomm. on Coum and 
Adminijnihve Practice of the Senaie Comm. on die JodicUry. lOIsi Conj. 2d Sesi. 1125 (1990) (leiiiniony of Allan ). Krtczkol 

T As of diis wnirng. die lisi included Cuba. Iran. Iraq. Libya. Nonh Korea, die Sudan, and Syna. 

11 -Torture" and "exirajudicial kdling" draw dieir definHion from die Torture Vlciim Pmiecnon Acl. Genocide w>j recently added 

al die requca of Contieunun Schuniet in response lo penUinj luii>lian wrdiin die Dilirici of Columbia penainmi lo -rar crimes and Nan 

Iraenuaoiul Enfoicement Law Reponer. Volume 9, Issue 9. Sepumber 1993. p375 



Irrespective of ihe many problems that surround the adoption of an airandmcm to FSIA and regardless 
of the policy concerns that the Department of State may raise, we should recognize lerrorisis for what Ihey are. 
Iwsiis humani generis. Ainerica should no longer permit nations that sponsor terrorist attacks specifically 
designed 10 harm innocent civilians to protect themselves on the grounds of sovereign immunity as if they had 
the unquestionable discretion to undertake such activities 

Throughout the world incidents such as the destruction of Pan Am 103 or the hijacking of the Achillc 
Lauro have been condemned. Countless treaties have been adopted by the international community allegedly 
seeking to punish those who violate ihc jus cogens norm of international l.iw. Is there no substance underlying 
such decisions? When will the United States recognize the responsibilities outlined in the language that it has 
adopted and. in many circumstances, fought for? 

The Ninth Circuit recently expressed the problem outright: "if violations of;i/5 cogens committed 
outside the United States are to be exceptions to immunity. Congress must make Ihcm so."-' 

As defined in the Vienna Convention on the Law of Treaties. 3 jus cogens norm, also known .is a 
"peremptory norm' of inienialional law. "is a norm accepted and recognized by the international communiiy of 
states as a whole as a norm from which no derogation is permitted and which can be modified only by a 
subsequent norm of general international law having the same character."- Jus cogens is. of course, related 
10 customary international law. Customary law is defined in the Restatement as the "general and 
consistent practice of slates followed by them from a sense of obligation. "- 

Customary international law is ascertained by the courts "by consulting the works of jurists, writing 
professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing 
and enforcing the law.'i^'- |n dciemiining whether a norm of customary international law has risen to the level 
o( jus cogens, courts should examine the same sources but must also determine whether the international 
community recognizes the norm as one "from which no derogation is permitted. "- 

A brief review of some of the international treaties that recognize yi/s cogens which are part of the law 
of the United States^ clearly dictates that sovereign immunity should be removed at least in these specific 
instances. For example: 

!? SidcmunJc Blaltc» Rcpul>lic of Arjcniina. 965 F.2J 699. 719(9111 Clr 1992) 

!? Vitmu Conyeiuioii on die Ljw of Treadcs. in. 33. Miy 23. 1%9. 1155 U.N.T.S. 332. S 1 L.M. 679. Srr alsn RFjrrArTMEKT 

i 102 Rcponer'j Nole 6. 

IT RESTATtWEia J 102(2). 

i? Uniicd Sam T. Smilh. IS U.S. (5 Wtiul.) 153. I«0'6I (tS20): FOiniga >. Pemlnti. 630 F.2il 176. 880-81 (2il Cir. 1980). 

^ Sidcmundc Blile ». Republic of Argtminj. 965 F.2d699. 7l5(9lliCit. 1992). cKing Coimnintc of U.S Ciliiciu Uvinj in 

Nicinpa ». Reagan. 859 F 2d 929. 9<0 (D.D C.Cir. 1988). 

*~ S*e T)k Paquete Hatnna. 175 U.S. 677. 700 (1900) Ctntenutioflal taw is pan of our law. and must be ascenained ami 

admtniuend by liM couns of jyitice of apfirophale jurisdiction, at often as ()uestiocu of right depending upon it ate duly prewntcd fi>t dwu 
dcletinmaiion ') 

Inietiutional EtUnrcemem Ijw Repottet. Volume 9. Issue 9 Septemhet 1993. p37fi 



- The Tolcyo Convention ensures ilie Slate of Registration of an aircraft jurisdiction over any offense commitied 
on board regardless of where the acts occurred.— 

- The Montreal Convention defines specific offenses declaring, in Anicle 1(1), it unlawful if a person 
intentionally 'destroys an aircraft in service ... or places or causes to be placed on an aircraft in service, by any 
means whatsoever, a device or substance which is likely to destroy that aircraft. "-' 

- Article 14 of The Tonure Convention stipulates thai each state party also must ensure that tonure victims or 
their decedents 'obtain... redress and ha(vcl an enforceable right to fair and adequate compensation, includmg 
the means for as full rehabilitation as possible . 'S' 

- Also noiewonhy is the New York Convention^' and the Hostage Convention." both of which have 
relevance to several terrorist incidences that involved Americans. 

These Conventions, among others, and existing U.S. law have established the framework for protecting 
the rights of victims. Now all that is needed is the legislation to implement those protections rather than merely 
symbolize them. For those Americans who have suffered at the hands of torturers, for the family of Leon 
Klinghoffcr, and especially for the 189 families of those Amcficans who perished on Pan Am 103, this should 
be done. 

Pan 2 of this article will provide a suggested amendment to FSIA and more fully explore the 
application of civil remedies to terrorist attacks. 


A. International Criminal Investigations 

On October 14, ;993, the American Bar Association's (ABA) Committee on International Criminal 
Law, in cooperation with the Committee on International Criminal Ijw of the District of Columbi.i Bar. will 
host a brown-bag lunch program from 12:00 to 1:30 pm at the ABA, 1800 M St.. NW. 2d Ploor, Wash.. DC 
2(X)36. The panelists will be: Terry F. Lenzner, Esq., Chairman of the Investigative Group. Inc.. Wash., DC; 
Michael J. Hershman. Esq., President, The Fairfax Group. Falls Church. VA; and Mr. Donald S. Richards. 
President, The Richards Group, Tuxedo Park, NY. Interested persons should contact the ABA, CJS, at 
(202)33 1 -2260. There is no charge for attending the program. 

il- Tlw Convemion on OrTcnscl and Ccnjin Other Acts Commmcd on Board Ainrnfl (Toltyo Convention), opened tor tisnaniic 

Sept 14. 1943. 20 U.S.T. 294t. T.t.A.S. No. 676J1. 704 U.N.T S. 219. 

!T Tlw Convention for d»e Suppre«ion of Unlawful Acti Against the Safely of Civil Aviation (Momieal Convemiunl. opened for 

sijnanire Sept. 23. 1971. 24 U.S.T. 543. T.I.A.S. No. 7370. 

ff The CoDveniion Against Tonure and Odier Cnjet. Inhuman or Degrading Treatment or [*anishmenl (Tomjre ConveniinnJ. 39 

U.N. CAOR Supp. iNo. 311, 23 I.L.M. 1027 1 1984) (emphasis added). The section cnnlinuei to state 'hli^ die event of the death of the 
victim as a restjll of an act of lonute. his dependents shall be etuuled to compensation.' 

^' The Convention on the Prevention and Puntshmenf of Crimes Againn lntemailonalI)f Ptotected Persons, including Diplomatic 

Agents, opened for stgnanife Dec. U. 1973. 28 U.S.T. 1975. T.I.A.S. No. 8532. 

^ Tile IntemaliOfUt Convention agauut the Tailing of Hostages. U.N. Resolution 34/Mfi. annex 

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22-729 - 96 (120) 


3 9999 05982 507 3 

ISBN 0-16-052352-4 

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