Opening Statement

Today, Ranking Member Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, for the House Judiciary Committee Markup of H.R. 4961, the “Ensuring Justice for Victims of Terrorism Act”:

"Mr. Chairman, I was proud to join the Gentleman from New Jersey, Mr. Van Drew, in introducing the Ensuring Justice for Victims of Terrorism Act.  This bipartisan legislation would make three technical corrections to the Justice Against Sponsors of Terrorism Act, or JASTA, to ensure that foreign state actors cannot exploit ambiguities or drafting errors in the original law to evade justice.

Congress enacted JASTA in 2016 to hold accountable foreign governments that knowingly provide substantial assistance to a designated foreign terrorist organization that launches an attack in the United States.

Among its provisions, it amended the Foreign Sovereign Immunities Act, or FSIA, to add a new exception to the general rule that foreign states are immune from suit in U.S. Courts.  This provision made explicit what was understood to be the law for 30 years—that foreign states may be brought to justice for aiding and abetting acts of international terrorism that occur on American soil, whether or not the conduct that facilitated the attack occurred in the United States.

Unfortunately, a series of misguided court decisions had stymied efforts by the victims of the 9/11 terrorist attacks and their families to seek justice in court against certain foreign states—primarily the Kingdom of Saudi Arabia—who they believe were responsible for the deadliest attack on our soil in this nation’s history. 

JASTA was enacted to address those decisions. Today, we are called upon to act, once again, to ensure that no ambiguities or drafting oversights in JASTA will stand in the way of these plaintiffs seeking the justice that they deserve.

The first provision would correct a drafting error that has enabled Saudi Arabia to claim that, as a foreign state, it is immune from aiding and abetting liability under JASTA.  The law provides that “any person” who aids and abets “the person” who commits an act of international terrorism may be held liable under the Anti-Terrorism Act. 

For purposes of aiding and abetting liability, JASTA defined “person” consistent with the Dictionary Act, which provides for an expansive definition of “person” to include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals, but does not expressly include foreign states.  Saudi Arabia has argued that it, therefore, cannot be held liable.  But the Dictionary Act’s definition of “person” is not an exhaustive list, and it defies reason to believe that Congress intended JASTA to exclude aiding and abetting claims against foreign states, when its expressed purpose was to facilitate such claims.

This legislation, therefore, makes clear that aiding and abetting liability under JASTA would remain available against a foreign state defendant regardless of the definition of “person” used in that provision.

The bill would also ensure that any judgment secured by the plaintiffs could be effectively enforced.  Under the Foreign Sovereign Immunities Act, the assets of foreign states are generally immune from attachment, but there is an exception for enforcing successful judgments secured under certain stated exceptions to sovereign immunity under the FSIA.  Because of a drafting error, the new exception to sovereign immunity created under JASTA was not included as an exception for which attachment is available. 

It makes no sense for Congress to have created this liability and then provided no means of enforcing a judgment.  This legislation, therefore, addresses this oversight to ensure that attachment is available to a successful plaintiff.

Finally, the bill clarifies the type of plaintiff that may sue under JASTA.  That law amended the Anti-Terrorism Act to ensure that a “national of the United States” injured by acts of international terrorism on U.S. soil could recover for their injuries.  Defendants have recently claimed that the law should be read to exclude U.S. corporations and other businesses because they are not natural persons and, therefore, are not “nationals of the United States”.

Although this appears to be a strained reading of the law, the bill would clarify the clear intent of Congress that an entity can be a plaintiff under the ATA to take this defense off the table.

Mr. Chairman, my former district, in New York, was the epicenter of the 9/11 attack, but its effects were felt across the country, including, of course, at the Pentagon and in Shanksville, Pennsylvania. 

This legislation makes a series of minor, but critically important, clarifications to the law to ensure that the 9/11 victims, and their families, can bring justice to anyone who was responsible for that vicious attack.

I want to thank Mr. Van Drew for introducing this legislation, I urge all Members to support it, and I yield back the balance of my time."