Statement of Ranking Member Nadler for the Markup of H.R. 5954, the “Anti-terrorism Clarification Act of 2018”

Jun 13, 2018 Issues: Foreign Affairs/Israel

WASHINGTON, D.C. -- Today, Congressman Jerrold Nadler (D-NY), Ranking Member of the House Judiciary Committee, delivered the following opening remarks during the Committee markup of H.R. 5954, the “Anti-terrorism Clarification Act of 2018.”

“Mr. Chairman, I am proud to be the lead Democratic cosponsor of H.R. 5954, the “Anti-terrorism Clarification Act of 2018.”  This bill amends the Antiterrorism Act, or ATA, to make it easier for American victims of international terrorism to have their day in court, to obtain some measure of justice for their injuries, and to hold terrorists accountable for their heinous acts.

“The ATA provides that United States nationals, or their survivors or heirs, may recover treble damages and attorneys’ fees and costs for any civil action arising from an injury sustained by an act of international terrorism.  H.R. 5954 seeks to minimize a number of procedural obstacles that ATA plaintiffs have encountered in their attempts to obtain full relief for their injuries. 

“For instance, the ATA contains an exception for injuries caused by an “act of war”, which it defines, in pertinent part, as including “armed conflict between military forces of any origin.”

“Unfortunately, this ambiguous statutory language has led to considerable confusion among federal courts as to the proper scope of the “act of war” exception, and even as to the proper kind of analysis to apply when the “armed conflict” at issue involves a terrorist group, such as Hamas or Hezbollah. 

“For example, in at least one case, a court found that the “act of war” exception prevented U.S. civilians injured by Hezbollah rocket attacks into Israel from pursuing their claims under the ATA.   Yet in another case, a different court concluded that gunshots fired into Israel by Hamas that resulted in injury to a U.S. civilian did not constitute an act of war.

“H.R. 5954 resolves this confusion by specifying, among other things, that a foreign terrorist organization or a Specially Designated Global Terrorist, as designated by the Executive Branch, is not a “military force” and, therefore, is subject to ATA liability. 

“This change makes it clear that violent actions targeted at U.S. civilians by a terrorist group are acts of terrorism that could give rise to liability under the ATA.  Indeed, to read the “act of war” exception otherwise, as some courts have done, threatens to undermine the ATA’s purpose.

“Even if victims successfully obtain a judgement under the ATA, many plaintiffs find it impossible to obtain full compensation for their injuries because there are not sufficient assets available to satisfy the judgment.  This bill would address that problem as well.

“Under current law, terrorism victims can reach assets blocked pursuant to the Trading with the Enemy Act or the International Emergency Economic Powers Act to satisfy terrorism-related court judgments.  This bill would simply allow terrorism victims also to attach assets that have been blocked pursuant to the Federal Narcotics Kingpin Designation Act.

“The final hurdle to bringing ATA claims that this bill helps overcome is an overly narrow reading of personal jurisdiction that some courts have applied, which has prevented some victims from bringing those responsible for their injuries to justice.  Most recently, this occurred in the Second Circuit’s misguided decision in Sokolow v. P.L.O.

“In Sokolow, several plaintiffs, including Morris and Eva Waldman, two of my constituents, sought relief under the ATA for injuries sustained resulting from various terrorist attacks in Israel that killed or injured U.S. citizens.  Although a district court jury awarded the plaintiffs $655.5 million in damages, the Second Circuit reversed, wrongly concluding, in my view, that the district court lacked personal jurisdiction over the defendants in that case­—namely, the Palestinian Liberation Organization and the Palestinian Authority.  The court reasoned that the defendants’ contacts—including maintaining offices in Washington and New York and the activities associated with those offices—were insufficient to support personal jurisdiction.

“This bill responds to the Second Circuit’s decision by deeming a party to have consented to personal jurisdiction if the party accepts foreign assistance from the U.S.  And, in the case of the P.L.O., or affiliated entities, it would also deem consent if the defendant maintains an office in a U.S. jurisdiction 120 days or more after the enactment date.   By undertaking one of these acts, a potential defendant is sufficiently on notice that it is consenting to personal jurisdiction in an ATA case.

“My understanding is that Chairman Goodlatte will offer an amendment to further clarify the bill’s personal jurisdiction provision so that it will provide even more due process for potential defendants while preserving the bill’s goal of giving terrorism victims the opportunity to have their day in court.

“My support for H.R. 5954 is part of my longstanding efforts to secure a measure of justice for terrorism victims, including leading House efforts to reauthorize the 9/11 Victims’ Compensation Fund.  I was also the lead House Democratic sponsor of the Justice Against Sponsors of Terrorism Act, which helped ensure that 9/11 victims and other victims of terrorism on American soil can bring their claims in court, regardless of where the foreign conduct occurred.  This bill is a natural extension of those efforts.

“Although nothing can ever bring back the lives lost to terrorism, or repair the emotional scars of the survivors, terrorism victims deserve the chance to achieve some justice through our courts.  Congress’s purpose in passing the ATA was to give them that chance.  And, H.R. 5954 will help further that purpose by addressing procedural barriers that have unfairly stood in their way.

“I thank Chairman Goodlatte for his leadership on this bill.  I strongly support it and I urge the Committee to report it favorably to the full House.”