Statement of the Honorable John Conyers, Jr. for the Hearing on “S. 2040, the Justice Against Sponsors of Terrorism Act” Before the Subcommittee on the Constitution and Civil Justice

Dean of the U.S. House
of Representatives
John Conyers, Jr.

Without question, the victims of the September 11, 2001 terrorist attacks deserve our sympathy and our help.  And, our Committee has worked to enact into law measures that attempt to provide some relief to these victims.

As we consider S. 2040, the “Justice Against Sponsors of Terrorism Act,” however, we must keep in mind that this legislation is written in general terms and we should consider its impact beyond one case, however compelling that case may be.

Among other things, S. 2040 amends the Foreign Sovereign Immunities Act of 1976 to create a new exception to the Act’s general grant of foreign sovereign immunity.  The exception would apply to claims arising from physical injury as a result of an act of international terrorism in the United States as well as to a tortious act of a foreign state or its official, employee, or agent acting within his or her official capacity, regardless of where the tortious act took place.

The House has not previously held a hearing on this proposal and neither chamber has held a hearing on this particular version of the legislation, so I approach this measure with an open mind.

That being said, there are three overarching points that should inform our discussion today.

To begin with, the purpose of sovereign immunity is to ensure that disputes among nations are ultimately resolved through diplomatic efforts rather than litigation.

Customary international law provided absolute immunity for states in the courts of other states.

Nevertheless, in the last century, many countries, including the United States, came to realize that it was unfair to provide immunity in cases where countries were engaged in non-sovereign activities, such as ordinary commerce.

           

For this reason, countries began recognizing certain limited exceptions to sovereign immunity.

The Foreign Sovereign Immunities Act codified the customary law of sovereign immunity recognized by the United States at the time of the Act’s enactment in 1976, including certain exceptions to sovereign immunity. 

The Act also removed the need for, and the ability of, the State Department to make case-by-case determinations of whether a foreign state defendant was entitled to sovereign immunity and left such determinations to courts as a matter of statutory interpretation, which, in theory, de-politicized such determinations.

In light of this history, we should consider what impact changing the scope of exceptions to sovereign immunity may have on U.S. interests.

The Administration, some allied nations, and others have raised the concern that enactment of S. 2040 may lead to retaliation by other countries against the United States given the breadth of our interests and the expansive reach of our global activities.

For example, they contend, a country like Afghanistan or Pakistan, under a future hostile regime, may enact legislation abrogating sovereign immunity to allow suits against the U.S., U.S. officials, or even U.S. military personnel in response to drone strikes or other activities in their countries.

The bill’s supporters, on the other hand, argue that the already-existing exceptions to sovereign immunity, including the current state-sponsored terrorism exception, and the prior understanding of the tort exception that this bill purports to restore, have not resulted in any meaningful retaliation against the U.S.

Finally, we should consider the impact that this measure may have on our Nation’s counterterrorism efforts.

The bill’s proponents argue that it will enhance such efforts by raising the prospect of depriving terrorists of resources and deterring future terrorism financing.

On the other hand, others say that it will hamper cooperation from other countries because they may become more reluctant to share sensitive intelligence in light of the greater risk that such information may be revealed in litigation.

While this bill and the underlying litigation that spawned it arose from an emotionally searing event, I hope that we can be both respectful and clear-eyed as we consider the arguments to be presented by our distinguished witnesses.

Accordingly, I look forward to a substantive and engaging debate and I thank the witnesses for sharing their thoughts on these important issues.

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