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2000
JUSTICE FOR VICTIMS OF TERRORISM ACT
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
H.R. 3485
APRIL 13, 2000
Page 2 PREV PAGE TOP OF DOCSerial No. 129
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
Page 3 PREV PAGE TOP OF DOCMARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Page 4 PREV PAGE TOP OF DOCSubcommittee on Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
BILL McCOLLUM, Florida
ELTON GALLEGLY, California
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
JOE SCARBOROUGH, Florida
SHEILA JACKSON LEE, Texas
HOWARD L. BERMAN, California
ZOE LOFGREN, California
BARNEY FRANK, Massachusetts
MARTIN T. MEEHAN, Massachusetts
GEORGE FISHMAN, Chief Counsel
JIM WILON, Counsel
LORA RIES, Counsel
CINDY BLACKSTON, Professional Staff
LEON BUCK, Minority Counsel
C O N T E N T S
HEARING DATE
Page 5 PREV PAGE TOP OF DOCApril 13, 2000
TEXT OF BILL
H.R. 3485
OPENING STATEMENT
McCollum, Hon. Bill, a Representative in Congress From the State of Florida, and presiding chairman, Subcommittee on Immigration and Claims
WITNESSES
Anderson, Terry A.
Flatow, Stephen M.
Khuly, Maggie A.
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Anderson, Terry A.: Prepared statement
Cicippio, Joseph and Elham: Prepared statement
Page 6 PREV PAGE TOP OF DOCFlatow, Stephen M.: Prepared statement
Higgins, Robin L.: Prepared statement
Jacobsen, David P.: Prepared statement
Khuly, Maggie A.: Prepared statement
McCollum, Hon. Bill, a Representative in Congress From the State of Florida: Prepared statement
Reed, Frank and Fifi: Prepared statement
APPENDIX
Material submitted for the record
JUSTICE FOR VICTIMS OF TERRORISM ACT
THURSDAY, APRIL 13, 2000
House of Representatives,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
Washington, DC.
Page 7 PREV PAGE TOP OF DOCThe subcommittee met, pursuant to call, at 1:45 p.m., in Room 2226, House Office Building, Hon. Bill McCollum presiding.
Present: Representatives Bill McCollum, Edward A. Pease, Chris Cannon, Charles Canady, Sheila Jackson Lee, and Howard Berman.
Staff present: Cindy Blackston, professional staff member; Kelly Dixon, clerk; Leon Buck, minority counsel.
OPENING STATEMENT OF PRESIDING CHAIRMAN MCCOLLUM
Mr. MCCOLLUM. This hearing of the Subcommittee on Immigration and Claims will come to order. I would like to welcome everyone here today, especially the victims of terrorism who are with us today, who are seeking justice; and that is what we are all here about today. I would also like to thank Chairman Smith, who could not be with us today, for allowing us to hold this hearing and for giving us the opportunity to get this issue addressed.
I have, as a person, been dealing with the issue of terrorism for a long time. I co-chaired the House Terrorism Task Force on Terrorism and Unconventional Warfare for a number of years. I have watched what has happened in the great tragedies of the world, and I find that some of the things that have been happening lately, without and separate and apart from the terrorist acts themselves, are very disturbing, and that is what this hearing is about today.
Today's hearing is to seek justice for the victims of state-sponsored terrorism. These victims are entitled to compensation out of frozen assets of the guilty terrorist state once the victim obtains a legitimate judgment. That is the current state of the law technically in this country. Sadly, the administration is denying these victims the justice they deserve. H.R. 3485, the Justice for Victims of Terrorism Act, which is the subject of today's hearing, will remedy this.
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[The bill, H.R. 3485, follows:]
106TH CONGRESS
1ST SESSION
H. R. 3485
To modify the enforcement of certain anti-terrorism judgments, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 18, 1999
Mr. MCCOLLUM (for himself, Mr. DELAY, Mr. DIAZ-BALART, Mr. SAXTON, Mr. SMITH of New Jersey, Mr. FRANKS of New Jersey, Mr. ROGAN, Mr. FOLEY, Mr. TIAHRT, and Ms. ROS-LEHTINEN) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To modify the enforcement of certain anti-terrorism judgments, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. ENFORCEMENT OF CERTAIN ANTI-TERRORISM JUDGMENTS.
(a) SHORT TITLE.—This Act may be cited as the ''Justice for Victims of Terrorism Act''.
(b) DEFINITION.—
(1) IN GENERAL.—Section 1603(b) of title 28, United States Code, is amended—
Page 9 PREV PAGE TOP OF DOC(A) in paragraph (3) by striking the period and inserting a semicolon and ''and'';
(B) by redesignating paragraphs (1), (2), and (3) as subparagraphs (A), (B), and (C), respectively;
(C) by striking ''(b)'' through ''entity—'' and inserting the following:
''(b) An 'agency or instrumentality of a foreign state' means—
''(1) any entity—''; and
(D) by adding at the end the following:
''(2) for purposes of sections 1605(a)(7) and 1610 (a)(7) and (f), any entity as defined under subparagraphs (A) and (B) of paragraph (1), and subparagraph (C) of paragraph (1) shall not apply.''.
(2) TECHNICAL AND CONFORMING AMENDMENT.—Section 1391(f)(3) of title 28, United States Code, is amended by striking ''1603(b)'' and inserting ''1603(b)(1)''.
(c) ENFORCEMENT OF JUDGMENTS.—Section 1610(f) of title 28, United States Code, is amended—
(1) in paragraph (1)—
(A) in subparagraph (A) by striking ''(including any agency or instrumentality or such state)'' and inserting ''(including any agency or instrumentality of such state)''; and
(B) by adding at the end the following:
''(C) Notwithstanding any other provision of law, moneys due from or payable by the United States (including any agency, subdivision or instrumentality thereof) to any state against which a judgment is pending under section 1605(a)(7) shall be subject to attachment and execution, in like manner and to the same extent as if the United States were a private person.''; and
Page 10 PREV PAGE TOP OF DOC(2) by adding at the end the following:
''(3)(A) Subject to subparagraph (B), upon determining on an asset-by-asset basis that a waiver is necessary in the national security interest, the President may waive this subsection in connection with (and prior to the enforcement of) any judicial order directing attachment in aid of execution or execution against the premises of a foreign diplomatic mission to the United States, or any funds held by or in the name of such foreign diplomatic mission determined by the President to be necessary to satisfy actual operating expenses of such foreign diplomatic mission.
''(B) A waiver under this paragraph shall not apply to—
''(i) if the premises of a foreign diplomatic mission has been used for any nondiplomatic purpose (including use as rental property), the proceeds of such use; or
''(ii) if any asset of a foreign diplomatic mission is sold or otherwise transferred for value to a third party, the proceeds of such sale or transfer.
''(4) For purposes of this subsection, all assets of any agency or instrumentality of a foreign state shall be treated as assets of that foreign state.''.
(d) TECHNICAL AND CONFORMING AMENDMENT.—Section 117(d) of the Treasury Department Appropriations Act, 1999 (Public Law 105–277; 112 Stat. 2681–492) is repealed.
(e) EFFECTIVE DATE.—The amendments made by this section shall apply to any claim for which a foreign state is not immune under section 1605(a)(7) of title 28, United States Code, arising before, on, or after the date of enactment of this Act.
Mr. MCCOLLUM. Today, the subcommittee seeks to answer why the President said one thing and his administration insists upon doing another. It is my hope that our panel of witnesses will help us understand why the President and administration officials encourage victims to take terrorists to court under the 1996 Anti-terrorism Act yet now, in contradiction to the President's words, the administration refuses to allow compensation out of the frozen assets of terrorist states against whom judgments have been rendered. Rather than waging a war on terrorism, it appears the administration is fighting the victims of terrorism.
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In February 1996, two unarmed aircraft flown by the Brothers to the Rescue organization were shot down by Cuban fighter planes in international airspace over the Florida Straits. The Brothers to the Rescue mission was to search for refugees at sea, fleeing from Cuba, who had often risked their lives in inner tubes or precarious rafts to reach a free country. Four people, including three American citizens, were killed in the attack in violation of international law and apparently at the direction of Fidel Castro.
Immediately after this reprehensible incident, President Clinton called upon Congress to pass legislation ensuring that victims would have access to frozen Cuban assets to settle any claim for damages won in Federal court.
In 1996, Congress passed and the President then signed the Anti-terrorism and Effective Death Penalty Act, which allows American citizens injured in an act of terrorism to bring a private right of action against the terrorist state responsible for that act. However, the administration has prevented victims awarded damages by courts from collecting those damages from the frozen assets of the responsible government, those assets being present in the United States.
In response to an apparent reversal of policy by the administration, Congress passed section 117 of the fiscal year 1999 Treasury Department appropriations bill allowing Americans to attach the assets of terrorist states in the United States in order to collect judgments won against those states in Federal court. At the insistence of the administration, however, that legislation allowed the President to issue a waiver to block the attachment of assets if he deemed it to be in the interest of national security.
Page 12 PREV PAGE TOP OF DOCIn March 1999, a Federal judge upheld a $187 million judgment against Cuba for their attack against Brothers to the Rescue. In that judgment, Federal District Court Judge Lawrence King stated, ''The court notes with great concern that the very President who in 1996 decried this terrorist action by the government of Cuba now sends the Department of Justice to argue before this court that Cuba's blocked assets ought not to be used to compensate the families of U.S. nationals murdered by Cuba. The executive branch's approach to this situation has been inconsistent at best. It now apparently believes that shielding a terrorist foreign state's assets are more important than compensating for the loss of American lives.''
Even in the face of this judgment, the President issued a waiver that prevented the families of the victims from attaching Cuban funds held by the United States for more than 37 years.
In another tragic case, the family of Alisa Flatow won a judgment against the Government of Iran for its involvement in a bus bombing in Israel, in April of 1995, that took her life. The President once again issued a waiver to prevent the Flatow family from attaching certain Iranian assets in the United States.
Another example of this horrific story is that of Terry Anderson, who, as we all recall, was barbarically held by terrorists sponsored by Iran for over 7 years. Last month, Terry Anderson won a judgment against Iran, and he now joins other former Iranian hostages, some of whom are here today, in seeking compensation and justice.
I am concerned that the President has exercised what was intended to be a narrow national security waiver too broadly, and as a consequence, those who have committed acts of terror resulting in the death of American citizens are effectively going unpunished, and Americans are not receiving just compensation after favorable court verdicts. This is contrary to the clear intention of Congress both in the 1996 Anti-terrorism Act and in the fiscal year 1999 Treasury Department appropriations bill.
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The Justice for Victims of Terrorism Act stops this abusive interpretation of the law once and for all. This bill is a companion to one introduced in the other body by Senators Mack and Lautenberg to clarify the narrow current waiver authority being used by the administration to block the families in this case and in the other cases I have mentioned. The bill would ensure compensation in such cases while clearly allowing the President to protect the diplomatic property of foreign countries in unambiguous terms.
Treasury Deputy Secretary Stuart Eizenstat informed the subcommittee yesterday that he will unfortunately be unable to attend today's hearing, but will provide testimony at a later date. The administration has used a wide variety of evolving arguments to deny these victims the justice they deserve, and while we don't have Mr. Eizenstat here today, his record in previous statements is clear. The arguments that were presented before the committee hearing in the other body demonstrates what I am talking about.
It is my intention to forward detailed questions to Secretary Eizenstat for his review and timely response in light of the fact that he is unable to be with us today. Let me take a minute, though, to address a couple of those arguments that have been proffered in the other body.
The administration asserted there that this issue falls completely within the President's national security powers, but the right to seize assets is derived from the powers granted to Congress under the Constitution to define and punish piracies and felonies committed on the high seas and defenses against the law of nations, that is, article one, section 8, clause 10, and delegated by legislation to the executive branch. In addition, the President himself requested Congress send him the legislation to allow the victims of terrorism to seek compensation from frozen assets.
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Further, the administration argues in other testimony that this bill would lead to retaliation from terrorist countries against U.S. assets abroad. However, unlike the commercial and corporate assets that terrorist countries own and control in the United States, there are no U.S. government commercial or corporate assets outside the U.S.
In addition, this bill specifically allows the President to protect diplomatic property from attachment in order to assure that U.S. properties abroad will not be at risk. Even if the President chose to allow the attachment of diplomatic property, the U.S. has always maintained a policy that we may take, ''proportional and equivalent responses,'' to violations of international law.
The administration argues, finally, that allowing these victims to attach frozen assets will either hurt so-called innocent investors or other claimants.
It is important to note in this regard that the legislation only allows the attachment of corporate assets for countries on the State Department's terrorist list prior to the terrorist acts. If we normalize relations with such a country, the President may remove the country from the list. Additionally, the foreign state must be acting as an agency or instrumentality for terrorist acts. The corporate or commercial assets in the United States these victims seek to collect against are either 100 percent owned by the terrorist country or under the actual control of the terrorist country. If there is any valid argument, it should be with the Treasury Department's freezing assets in the first place, not with the collection on those assets.
In addition, the legislation is limited to allowing victims with judgments—not to the thousands with claims—to attach frozen assets; and I might add, there are a number here today in this audience who are victims, who do have claims that have not yet been fully adjudicated. They do not yet have the right to seize those assets, though they may very well in the near term.
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I am pleased that today's hearing will allow the subcommittee to hear testimony from the perspective of the victims. I would like to mention a fellow Floridian, Colonel Robin Higgins, who serves as Governor Jeb Bush's head of Veterans Affairs, who has a claim against Iran—not finished, not completed, as those who are here today to testify. Her husband, a U.S. Marine, was tragically killed in Beirut by Iran-sponsored terrorists, and she currently has a Federal court case pending. She asked that her testimony be submitted for the record, and it will be done today and so will that of any others who may be victims, who are here or who wish to submit their testimony into this record.
[The prepared statement of Mrs. Higgins follows:]
PREPARED STATEMENT OF ROBIN L. HIGGINS
Mr. Chairman, Members of the Subcommittee, distinguished guests:
Four years ago, I stood tall on the lawn of the White House with President Clinton, then-Senate Majority Leader Bob Dole, and other elected representatives as they signed the 1996 Anti- Terrorism law. Among other things this would finally give American victims of terrorism the right to sue foreign state sponsors of terrorism in U.S. courts.
I've learned that this Law gave the families the rights to sue, but not to collect. The Administration seems content to ensure that the rights of terrorist nations come before the rights of American victims.
Page 16 PREV PAGE TOP OF DOCIn 1988, while on an official peacekeeping mission with the United Nations in southern Lebanon my Marine husband Colonel William R. ''Rich'' Higgins was kidnapped, tortured, and eventually murdered, his lifeless body paraded in media worldwide by his captors. Those captors were led, trained, financed, and armed by the Government of Iran.
Almost four years after my husband was first brutally abducted, I received his badly decomposed body to bury on American soil. Ten years later, I still do not know when he was murdered, and no one has ever been brought to justice for this crime against an American serviceman.
On February 17, 1999, eleven years to the day that my husband was taken, I brought suit in The United States District Court in the District of Columbia against the Islamic Republic of Iran, The Islamic Revolutionary Guard Corps, and several named and unnamed Iranian citizens. The suit is for $150 million in compensatory damages as well as an additional $500 million in punitive damages.
Several other victims of state-sponsored terrorism have previously been awarded judgments in American courts against terrorist nations, but they have been blocked from collecting on those judgments. While the United States holds frozen assets of Iran and the law allows the use of these assets to settle court awards, the Administration has employed a waiver of that legislation.
As the widow of a military man who served over 22 years of his life for this country, who served two tours in Vietnam, and was ordered by the country he loved and served to try to bring peace to the Middle East—I would think our country's leaders would be the very first to lead the charge against these rogue murderers. One would expect the country's leaders to ensure my husband's family receives justice from nations that refuse to join the civilized world. Instead, I see my country's leaders blocking that justice, protecting the rights of these nations that would murder with impunity our men in uniform.
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I support the efforts of Congressman McCollum and the members of this subcommittee to take action, which would give victims of state-sponsored terrorism who have legal judgments against their tormentors a small measure of American justice. Thank you for your efforts.
Mr. MCCOLLUM. This afternoon we will hear from Terry Anderson, a former Iranian hostage in Beirut, held captive for over 7 years; Stephen Flatow, who lost his daughter in a bus bombing by Iran-sponsored terrorists while in Israel; and Maggie Khuly, whose brother was killed by the Cuban Government. In light of the fact the administration has failed to present a witness to testify, Ron Kleinman, a former State Department attorney and attorney for Maggie Khuly, will be available to answer questions from members of the subcommittee, along with the first panel. And we want to thank all of you for being here today.
Before moving to the witnesses, however, I want to show a brief piece of film that is up here. I am not going to do that yet. I am going to ask if any of the other members of the committee want to make a statement.
Mr. Cannon being the only one present at the moment, would you like to?
Mr. CANNON. Very briefly, Mr. Chairman.
First of all, I would like to thank you for holding this hearing on a subject that I believe is very, very important. Let me also say that I am honored to be in front of this panel of witnesses, many of whom are well known for the kind of suffering they have gone through; and I think they are a noble expression of what is best in America and how we respond to difficulty as Americans.
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I would also like to point out that in this time of globalization, which is driven largely by the technology that we are developing in America—overwhelmingly, let me say, by the technology and ideas that have come from America—that subjecting rogue states to some of the laws which have created the context for this kind of globalization of the world economy is a way to draw these countries back into the fold and away from their rogue and sometimes crazy activities, and then help them become decent members of the global community.
So I think your bill is very, very important. I appreciate your having this hearing and want to say thank you to the witnesses who have been so gracious as to come here today. Thank you.
Mr. MCCOLLUM. Thank you very much, Mr. Cannon. I would like now to show this very brief segment from President Clinton's press conference briefing on February 26, 1996, as a prelude to our witnesses being here today. If you would please roll the tape.
[Video played.]
[Transcript of a portion of the video played follows:]
STATEMENT BY THE PRESIDENT
The Briefing Room, The White House, February 26, 1996 4:00 PM
President Clinton: ''Today, I am also ordering the following unilateral actions. First, I am asking that Congress pass legislation that will provide immediate compensation to the families, something to which they are entitled under international law, out of Cuba's blocked assets here in the United States. If Congress passes this legislation, we can provide the compensation immediately.''
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Mr. MCCOLLUM. I think that speaks pretty straightforwardly of why we have a problem here today. That was the President's statement, and we are looking forward to the testimony today.
I would like to introduce our panel of witnesses. I really, in a way, already did the opening statement, but first I want to welcome Terry Anderson to the panel. In March 1985, he was an American journalist working in Beirut. He was kidnapped by agents of the Islamic Republic of Iran. He was held captive by kidnappers in deplorable conditions until early December 1991. His story was on national television many times, and we are very grateful for your coming here today, Mr. Anderson.
In April 1995, Alisa Flatow, a 20-year-old college student from New Jersey, was on a bus on the Gaza Strip going to a Passover holiday celebration. A terrorist from the Iranian-backed Islamic Jihad rammed a car, loaded with explosives, into the bus, killing Ms. Flatow and seven others. Her father is here today to be with us, Stephen Flatow.
And we are very appreciative of you doing this; this is not an easy thing for any parent to do.
And Maggie Khuly, whom I have introduced previously, is here with us today. She lost a brother in the Brothers to the Rescue operation. She is very courageous being here today and represents, actually, a whole host of folks who are very, very involved and interested in the judgment involving the Brothers to the Rescue case in the Cuban MiG shoot-down. We want to thank you for being here today.
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And, Mr. Kleinman, thank you again for coming and being present to answer our questions.
PREPARED STATEMENT OF HON. BILL MCCOLLUM, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA, AND PRESIDING CHAIRMAN, SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
I would like to welcome everyone to today's hearing, especially the victims of terrorism here with us who are still seeking justice. I would like to thank Chairman Smith for allowing us to hold this hearing. The focus of today's hearing is to seek justice for the victims of state sponsored terrorism. These victims are entitled to compensation out of the frozen assets of the guilty terrorist state once the victim obtains a legitimate judgment. Sadly, however, the Administration is denying these victims the justice they deserve. H.R. 3485, the Justice for Victims of Terrorism Act, which is the subject of today's hearing, will remedy this.
Today this Committee seeks to answer why the President said one thing and his Administration insists upon doing another. It is my hope that our panel of witnesses will help us understand why the President and Administration officials encouraged victims to take terrorists to court under the 1996 Anti-Terrorism Act, yet now in contradiction to the President's words, the Administration refuses to allow compensation out of the frozen assets of terrorist states against whom judgments have been rendered. Rather than waging a war on terrorism, it appears the Administration is fighting the victims of terrorism.
In February 1996, two unarmed aircraft flown by the ''Brothers to the Rescue'' organization were shot down by Cuban fighter planes in international airspace over the Florida Straits. The Brothers to the Rescue's mission was to search for refugees at sea fleeing from Cuba who would often risk their lives in inner tubes or precarious rafts to reach a free country. Four people, including three American citizens, were killed in the attack in violation of international law and apparently at the direction of Fidel Castro.
Page 21 PREV PAGE TOP OF DOC
Immediately after this reprehensible incident, President Clinton called upon Congress to pass legislation ensuring that the victims would have access to frozen Cuban assets to settle any claim for damages won in federal court. In 1996, Congress passed and the President signed the Antiterrorism and Effective Death Penalty Act which allowed American citizens injured in an act of terrorism to bring a private right of action against the terrorist state responsible for that act. However, the Administration has prevented victims awarded damages by courts from collecting those damages from frozen assets of the responsible government present in the U.S.
In response to an apparent reversal of policy by the Administration, Congress passed Section 117 of the Fiscal Year 1999 Treasury Department Appropriations Act, allowing Americans to attach the assets of terrorist states in the U.S. in order to collect judgements won against those states in federal court. At the insistence of the Administration, however, that legislation allowed the President to issue a waiver to block the attachment of assets, if he deemed it to be in the interest of national security.
In March 1999, a federal judge upheld a $187 million judgement against Cuba for their attack against the Brothers to the Rescue aircraft. In that judgment, Federal District Court Judge Lawrence King stated: ''The Court notes with great concern that the very President who in 1996 decried this terrorist action by the Government of Cuba now sends the Department of Justice to argue before this Court that Cuba's blocked assets ought not to be used to compensate the families of the U.S. nationals murdered by Cuba. The Executive branch's approach to this situation has been inconsistent at best. It now apparently believes that shielding a terrorist foreign state's assets are more important than compensating for the loss of American lives.'' Even in the face of this judgment, the President issued a waiver that prevented the families of the victims from attaching Cuban funds held by the U.S. for more than 37 years.
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In another tragic case, the family of Alisa Flatow won a judgment against the government of Iran for its involvement in a bus bombing in Israel in April 1995 that took her life. The President once again issued a waiver to prevent the Flatow family from attaching certain Iranian assets in the United States.
A final example is the horrific story of Terry Anderson, who as we all recall, was barbarically held by terrorists sponsored by Iran for over seven years. Last month, Terry Anderson won a judgment against Iran and he now joins other former Iranian hostages, some of whom are here with us today, in seeking compensation and justice.
I am concerned that the President has exercised what was intended to be a narrow national security waiver too broadly and, as a consequence, those who have committed acts of terror resulting in the death of American citizens are effectively going unpunished and Americans are not receiving just compensation after favorable court verdicts. This is contrary to the clear intention of Congress both in the 1996 Anti-Terrorism Act and in the FY99 Treasury Department Appropriations bill. The Justice for Victims of Terrorism Act stops this abusive interpretation of the law once and for all.
H.R. 3485 is a companion to one bill introduced in the other body by Senators Mack and Lautenberg to clarify and narrow the current waiver authority being used by the Administration to block the families of the Brothers to the Rescue victims, the Flatow family and potentially Terry Anderson from receiving justice. The bill would ensure compensation in such cases while clearly allowing the President to protect the diplomatic property of foreign countries in unambiguous terms.
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Treasury Deputy Secretary Stuart Eizenstat informed the Committee that he will unfortunately be unable to attend today's hearing, but will provide testimony at a later date. The Administration has used a variety of evolving arguments to deny these victims the justice they deserve. These arguments were presented before a Committee hearing in the other body. It is my intention to forward detailed questions to Secretary Eizenstat for his review and timely response in light of the fact that he was unable to be with the Committee today. Let me take a minute to address a few arguments proffered by the Clinton Administration.
The Administration asserts that this issue falls completely within the President's national security powers. But, the right to seize assets is derived from the powers granted to Congress under the Constitution to ''define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations'' (Art. I, Section 8, Clause 10) and delegate by legislation to the Executive Branch. In addition, the President himself requested that Congress send him legislation to allow the victims of terrorism to seek out compensation from frozen assets.
The Administration argues that this bill will lead to retaliation from terrorist countries against U.S. assets abroad. However, unlike the commercial and corporate assets that terrorist countries own and control in the U.S., there are no U.S. government commercial or corporate assets outside the U.S. In addition, this bill specifically allows the President to protect diplomatic property from attachment in order to assure that U.S. properties abroad will not be at risk. Even if the President chose to allow attachment of diplomatic property, the U.S. has always maintained a policy that we may take ''proportional and equivalent responses'' to violations of international law.
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The Administration also argues that allowing these victims to attach frozen assets will hurt either so-called innocent investors or other claimants.
It is important to note in this regard that the legislation only allows attachment of corporate assets for countries on the State Department's terrorist list prior to the terrorist acts. If we normalize relations with such a country, the President may remove that country from the list. Additionally, the foreign state must be acting as an agency or instrumentality for terrorist acts. The corporate or commercial assets in the U.S. these victims seek to collect against are either 100% owned by the terrorist country, or under the actual control of the terrorist country. If there is any valid argument, it should be with the Treasury Department freezing the assets in the first place, not with collection on those assets. In addition, this legislation is limited to allowing victims with judgments, not the thousands with claims, to attach frozen assets.
I am pleased that today's hearing will allow this Committee to hear testimony from the perspective of the victims and from the Administration. I would like to mention a fellow Floridian, Colonel Robin Higgins, who serves as Governor Jeb Bush's Head of Veteran's Affairs, who has a claim against Iran. Her husband, a U.S. Marine, was tragically killed in Beirut by Iran-sponsored terrorists and she currently has a federal court case pending. I will be submitting her testimony as a part of the Record.
This afternoon we will hear from Terry Anderson, a former Iranian hostage in Beirut held captive for over seven years; Stephen Flatow who lost his daughter in a bus bombing by Iran-sponsored terrorists while in Israel, and Maggie Khuly whose brother was killed by the Cuban government. In light of the fact the Administration has failed to present a witness to testify, Ron Kleinman, a former State Department lawyer and attorney for Maggie Khuly will be available to answer any questions from Members of the Subcommittee along with the first panel.
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Before moving on to the witnesses, I would like to show a brief segment from President Clinton's press briefing on February 26, 1996.
Mr. MCCOLLUM. With that in mind, I would like first to recognize Mr. Anderson and then go in the order of introductions. You may present your testimony. The subcommittee will take the written testimony in full for the record without objection.
Hearing none, it is so ordered, from every one of you on the panel; and you may present any or all of the testimony you desire, Mr. Anderson.
STATEMENT OF TERRY A. ANDERSON
Mr. ANDERSON. Thank you, Mr. Chairman, members of the subcommittee. Just for the record, my name is Terry Anderson. I live in Athens, Ohio, with my wife and daughter. I am a professor at the Scripps School of Journalism at the University of Ohio. As you know, I was Chief Middle East Correspondent for the Associated Press when I was taken hostage in Beirut on March 16th, 1985, by Hezbollah, a political and paramilitary terrorist organization operating in Lebanon, but sponsored, funded, directed and trained by the Islamic Republic of Iran.
Mr. Chairman, with your permission, I would like to introduce to the panel those victims of state-sponsored terrorism that you have not had a chance to meet. Of course, you know Mr. Flatow and Ms. Khuly. Also in the audience is Joe Cicippio and his wife Elham. Joe was a former Comptroller of the American Hospital in Beirut and at the American University of Beirut. He is currently a senior official with AID here in Washington. In addition to his own suffering in prison at the hands of Hezbollah, he was confined for years with Mr. Edward Tracy, who was immediately admitted to a VA hospital on his return to the United States and has never left.
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Also in the audience is Mrs. Fifi Reed, wife of Frank Reed, a civilian American hostage who I was confined with for years, who came home suffering from rat poisoning and has had mental and physical illnesses that have kept him in and out of hospitals for the past 10 years. He remains in the hospital at the moment in very serious condition and still in danger of his life.
Ms. Arlene Drucker is in the audience, whose daughter was a victim of a Hamas bombing attack in Jerusalem, funded and guided again by Iran.
You have heard, of course, from Retired Colonel Higgins, Robin Higgins, whose husband Rich, also a Marine colonel serving with the United Nations peacekeeping forces, observation forces, was murdered by his captors in Lebanon. I understand Colonel Higgins and Mr. Cicippio have submitted statements to the committee, and I beg the committee to accept them.
Mr. MCCOLLUM. They have, and we will, without objection, take those statements; they are entered in the record. As I indicated earlier, and I want to make it clear, if there are others who are here or others you know of who would like to submit statements for the record, the administration has requested we keep the record open for a brief time, and we will do that. So you may submit those statements, too.
[The prepared statement of Mr. and Mrs. Cicippio and Mr. and Mrs. Reed follows:]
PREPARED STATEMENT OF JOSEPH AND ELHAM CICIPPIO AND
Page 27 PREV PAGE TOP OF DOCFRANK AND FIFI REED
Today is an eventful day for all of the former hostages of Iran including Joseph Cicippio, Frank Reed, David Jacobsen and Terry Anderson. A hearing was held before Congress this afternoon regarding bill number 3485 which has overwhelming bipartisan support in the House and the Senate. This bill will attempt to bring closure to many years of hardship experienced by not only the former hostages, but each and every member of their families. Congressman McCollum and Senator Mack are making a coordinated effort to pass a bill which provides a direct method of recovery for victims of terrorism who have won judgments against terroristic foreign states. Although the original bill that Congressman McCollum's proposed would provide the former hostages with access to certain assets of Iran by eliminating the President's power to waive specific diplomatic assets, the former hostages strongly recommend and request that the House considers and adopts the amendments proposed by Senator Mack that are currently being coordinated with Congressman McCollum's office. These modifications provide not only a specific method of payment but also establish exact time deadlines with regard to payment. The hostages would recover 50% of their compensatory damages awarded within 30 days of signing over certain rights to the President and the remaining 50% in three years. The monies would not be paid from taxpayer funds. These modifications would facilitate payment to the hostages and avoid a potentially chaotic atmosphere with all of the former victims attempting to collect against Iranian assets. The proposed modifications also provide the President with sufficient time to continue pursuing a diplomatic relationship with Iran without jeopardizing any aspect of that relationship. These amendments have widespread support among the former hostages. We are pleased that Congressman McCollum and Senator Mack are working aggressively to secure compensation on behalf of the former hostages. Secretary of State Madeleine Albright previously testified before the Foreign Relations Committee and stated that the Administration was making this matter an utmost priority. We are hopeful that the Administration will continue to support this bill so that this regrettable chapter in the lives of the former hostages may finally be closed.
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[The prepared statement of Mr. Jacobsen follows:]
PREPARED STATEMENT OF DAVID P. JACOBSEN
INTRODUCTION:
While serving as the CEO of the American University of Beirut's Medical Center, I was kidnapped and held hostage by Iranian surrogates from May 28, 1985 until November 2, 1986. I was one of the ex-hostage plaintiffs in the first successful lawsuit against Iran. I have waited thirteen years for justice for my family and myself. The Clinton Administration has deliberately attempted to thwart collection of compensatory damages awarded to all victims of Iranian sponsored international terrorism.
THE ALGIERS ACCORDS—THE SOURCE OF IRANIAN TERRORISM:
The seeds of the acts of international terrorism in the 1980's were contained in the Algiers Accords that freed the American Embassy hostages from Iran. Unfortunately a condition of that agreement prevented the released hostages from suing the Iranian government for damages. The Islamic Republic of Iran and other nations that sponsor terrorism believed that U.S. foreign policy denied victims of terrorism legal rights for claiming personal damages. The Department of State's action led to a decade of terrorist acts because that agreement was interpreted by terrorist nations that they could harm U.S. citizens with impunity. And they did and continue to do so.
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Congress, in an effort to deter terrorism and punish terrorist nations, passed the Anti-Terrorism Act of 1997 to allow victims to sue nations that sponsored terrorism. The Department of State's obstruction of collecting court awarded judgments will again be interpreted by terrorist nations that the U.S. Government will deny justice to its own citizens who have been victims of terrorism. The State Department policies may unwittingly encourage continuing international terrorism against Americans. How anyone can conceive that the Presidential Waiver for National Security reasons can protect our nation boggles the mind. How could former hostages collecting court awarded damages threaten the security of our country? THE SECURITY OF OUR NATION IS THREATENED BY THE INEPTNESS OF STATE DEPARTMENT BUREAUCRATS WHOSE PAST AND PRESENT POLICIES REWARD TERRORIST NATIONS BY PREVENTING VICTIMS SEEKING JUSTICE. Isn't it strange that our government quickly paid restitution to Chinese Embassy employees and their families for the bombings in the Bosnian conflict while I have had to wait thirteen years?
As an ex-hostage of Iran, it is very discouraging that the present Administration cares more about future diplomatic relations with a terrorist nation than they do for the legal and ethical rights of U.S. citizens. The offer of a partial settlement is equally insulting and shameful. All hostages and their families were brutally harmed by the kidnapping experience. Careers were destroyed, children's education delayed, retirement plans destroyed, savings depleted, quality of life impaired, and physical and mental health devastated for some. Every one of us held hostage will always have a big ''H'' branded on our foreheads and in our hearts. We deserve fair and immediate compensation for the hell that we survived and the destruction of the quality of our lives. Perhaps Robert Pollhill and Father Martin Jenco would still be living if they had received medical attention for their illnesses while in captivity. We all lost years of freedom and time with our families. Lost time that will never be fairly and fully compensated. PLEASE DO NOT MAKE US LOSE ANYMORE TIME IN THE TWILIGHT OF OUR LIVES.
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THE ISLAMIC REPUBLIC OF IRAN—THE GREAT SATAN:
The Islamic Republic of Iran is the Great Satan of International Terrorism. Read the official reports of Rep. Bill McCollum's Republican Congressional Task Force on Terrorism and Unconventional Warfare. I know first hand the accuracy of those reports by my hostage experience in Lebanon and from humanitarian aid trips to Somalia and Sudan in late 1992. Iran's role in terrorism in those countries is well documented with even a trail of evidence implicating Iran in the bombing of the World Trade Center in New York City. Iran's current supplies of chemical and bacteriological weapons constitute the greatest threat to our nation's security.
Iranian surrogates murdered 241 U.S. Marines in West Beirut, bombed our embassies in West and East Beirut, murdered Bill Buckley, Peter Kilburn, Alex Collett, Col. William Higgins and Robert Stethem. Iran was responsible for kidnapping sixteen American citizens. There is evidence to implicate the Iranians in the murder of Ian Spiro and his family in San Diego, California on November 8, 1992. As a private citizen, I had worked with Ian Spiro on a project to free all of the hostages. If I had not moved from my residence, maybe I too would have been executed because a death threat had been made against another member of our group.
THE STATE DEPARTMENT—WHOSE SIDE ARE THEY ON?
Families were also victims of Iranian terrorism. Iran and its surrogates have brutalized several thousand U.S. citizens. The role of Iran in international terrorism is proven beyond all doubt. What has the Department of State done on behalf of the victimized Americans? NOTHING, ABSOLUTELY NOTHING. THEY HAVE OBSTRUCTED OUR SEEKING JUSTICE IN FEDERAL COURTS; THEY HAVE DELAYED THE VICTIM'S RIGHTS TO A SPEEDY TRIAL; AND NOW THEY ARE DELAYING AND PREVENTING COLLECTION OF COURT AWARDS.
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THE ALGIERS ACCORDS PROVIDED A MECHANISM FOR THE RETURN OF THE FROZEN IRANIAN ASSETS. NOT INCLUDED IN THE TERMS OF THE ALGIERS ACCORDS WAS THE INTEREST THAT ACCRUED ON SIX BILLION DOLLARS OF CASH DEPOSITS. THERE SHOULD BE A MINIMUM OF SIX TO TWELVE BILLION DOLLARS IN ACCRUED INTEREST. WHERE IS IT? IF NOT THERE, HOW WAS IT SPENT?
It is possible with patience and determination to obtain justice through the legislative and judicial branches of government. It is extremely difficult to get bureaucrats in the executive branch to do what is right and to carry out the will of Congress and the Courts.
Political reality may force ex-hostages to accept a partial advance payment with little or no hope of ever collecting the full amount awarded by the court. Due to the fact that the United States Government is the only party capable of collecting from Iran, the plaintiff's private legal counsel should be limited to a portion of their contingency contract percentage agreement. It is my understanding that the policy of Judiciary Chairman Henry Hyde is to limit legal counsel fees to ten percent. This reduction in contingency fees is fair because the attorney is being compensated for the trial portion and not for collections which he could never accomplish. If former hostages do not net a fair and adequate payment, then they are being victimized again, this time by their attorney.
THE WILL OF CONGRESS AND THE COURTS MUST NO LONGER BE IGNORED BY THE ADMINISTRATION. IT IS RELATIVELY EASY TO OBTAIN JUSTICE, BUT VIRTUALLY IMPOSSIBLE FOR THE BUREAUCRACY TO WILLINGLY DO WHAT IS RIGHT. YOUR DECISION MUST BE FOR FULL COMPENSATION FOR THE PUNITIVE DAMAGES PORTION OF THE COURT AWARD.
Page 32 PREV PAGE TOP OF DOCMr. ANDERSON. Thank you, Mr. Chairman. I welcome the chance to provide some background and a context which the committee members may find useful in their deliberations on this bill, this pending enforcement legislation. I believe that the experiences of my 7 years in captivity reflect those of my fellow hostages, who for years were beaten, tortured, physically, mentally and emotionally, by our captors.
We are very grateful to Congress for passing the 1998 legislation that allowed us to bring action against the Republic of Iran. Our Federal courts have confirmed Congress' judgment by finding that state directly responsible for what Judge Jackson in my case termed ''acts savage and cruel by any civilized standard.'' those courts awarded us substantial amounts of compensatory damages, and to emphasize their abhorrence of Iran's state-sponsored terrorism, added hundreds of millions of dollars in punitive judgments. These decisions are in themselves a victory in our effort to force Iran to take responsibility for its acts.
However, the absence of any effective mechanism for enforcement of those judgments undermines the strong actions of both the Congress and the courts. In addition, some of my fellow hostages find themselves in very difficult personal circumstances, direct consequences of their imprisonment and suffering. They need relief, and they need it as soon as possible.
Mr. Chairman, I will not relate again here the details of my 7-year imprisonment or the suffering of my family then and during the years we worked to heal the damage from that time. I will simply note that Judge Jackson commented at the end of my hearing that he had never heard such a compelling case in all his years on the bench. Instead and with your permission, Mr. Chairman, I would like to submit a copy of the entire transcript of my hearing into the record to document the level of physical and mental cruelty and torture to which we were subjected.
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Mr. MCCOLLUM. Without objection, so ordered.
Mr. ANDERSON. Mr. Chairman, as I understand the pending legislation, Congress would provide a way for victims of state-sponsored terrorism and their families who have obtained a Federal court judgment to attach property of the state responsible for their suffering, including money due from or payable by the United States. This includes commercial property, rents from seized buildings and other assets.
Our primary aim in requesting this legislation is the same as yours in passing the 1998 law. It is to make sure that Iran pays for what it has done. Until Iranian money is actually seized and distributed to that country's victims there is no reason for Iran or any other state sponsor of terrorism to think twice about doing it again and again. Terrorism is a cheap way for outlaw states to engage in war. Both the law you passed 3 years ago and this one are aimed at making that expensive.
Mr. Chairman, like our leaders and most of our Nation, I am encouraged by the protests in Iran against the repressive regime that has ruled since the 1979 revolution. I am happy to see movement toward a more open and just society there. I have no objection to normalization of relations between the United States and Iran. I think it would be a very good thing indeed. But my fellow hostages and I agree completely that such a step should not come until Iran has acknowledged its past sponsorship of terrorism, compensated its victims and publicly vowed not to do it again.
That doesn't seem likely at the moment. Therefore, it is up to the U.S. Congress and courts to see that the Iranian Government understands there is a substantial penalty, a real penalty, for such acts.
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We have tried to work with the administration to identify a procedure and a possible source of Iranian funds for payments. While the administration has been sympathetic in principle to our plight and both Under Secretary of the Treasury Eizenstat and Secretary of State Albright have testified that they want to work with us and the Congress to identify funds to help the victims of terrorism, the sad reality is that little has been done. Suggestions to draw on taxpayer dollars belie the purpose of our efforts, namely, to make the Iranians pay for their terrorist acts.
Unfortunately, the administration has objected to the distribution to victims of any portion of the hundreds of millions of dollars of Iranian funds it has held for the past 20 years. No serious proposals or discussions are pending with the Congress as far as I know.
Frankly, Mr. Chairman, even this new bill before you would only give us the right to go into court, to file the appropriate papers, to attach Iranian property and execute the court's order. We are very grateful for your consideration of this bill. You will understand, however, that after years of litigation for some of us we would have liked to have had the administration help us avoid further court action and further delay.
We have offered substantial concessions to the Clinton administration. We have offered to accept a payout of Iranian assets over time. We have agreed that there is a need for the President to be flexible in the application of this and the previous law in case of substantial national security risks to be applied on an asset-by-asset basis and with respect to specifically identified diplomatic property and the upkeep of such property.
Page 35 PREV PAGE TOP OF DOCMr. Chairman, there is more than enough nondiplomatic Iranian money in U.S. hands to satisfy every conceivable compensatory judgment obtained or likely to be obtained. However, the Clinton administration has continued to object to every practical proposal we have made. It has put no pragmatic, workable alternative of its own on the table. It seems intent on returning the Iranian money it holds to that country eventually, as part of its efforts to support the newly elected reformers in the Iranian legislature.
We do not believe such a transfer is right without enforcing either the court's or the Congress' will, or without insisting on justice for the victims of Iranian attacks or without even insisting that Iran cease sponsoring terrorism.
Mr. Chairman, I will continue to pursue a dialogue with the administration, and I hope the Congress will too. Secretary Eizenstat has agreed to meet with me later today. In this meeting, I will continue to seek a practical means to satisfy the judgments held by me and other victims of terrorism.
Mr. Chairman, I understand that money held by our government for the benefit of the state of Iran is substantial. Once we received our judgment, I instructed my lawyers to file the necessary papers to initiate a legal attachment process, which they have done. I request that a copy of those documents also be included in the record.
Mr. MCCOLLUM. Without objection, so ordered.
Mr. ANDERSON. We intend, if this legislation is passed by both Houses and signed by the President, to move immediately to obtain payment on our judgments.
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Mr. Chairman, thank you for the opportunity to testify before the committee today. I would be happy to respond to any questions that you or other members of the committee may have.
Mr. MCCOLLUM. Thank you very much, Mr. Anderson. We will have some in a few moments, but we want to have our other panelists.
[The prepared statement of Mr. Anderson follows:]
PREPARED STATEMENT OF TERRY A. ANDERSON
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE, GOOD MORNING. MY NAME IS TERRY ANDERSON. I CURRENTLY LIVE IN ATHENS, OHIO WITH MY WIFE AND DAUGHTER. I AM A PROFESSOR IN THE SCRIPPS SCHOOL OF JOURNALISM AT THE UNIVERSITY OF OHIO. AS YOU KNOW, I WAS CHIEF MIDDLE EAST CORRESPONDENT FOR THE ASSOCIATED PRESS WHEN I WAS TAKEN HOSTAGE IN BEIRUT ON MARCH 16, 1985, BY HEZBOLLAH, A POLITICAL AND PARAMILITARY TERRORIST ORGANIZATION OPERATING IN LEBANON, SPONSORED, FUNDED, DIRECTED AND TRAINED BY THE ISLAMIC REPUBLIC OF IRAN.
MR. CHAIRMAN, WITH YOUR PERMISSION, I WOULD LIKE TO INTRODUCE TO THE PANEL SEVERAL FORMER HOSTAGES, THEIR FAMILIES AND FAMILIES OF NOW DECEASED HOSTAGES WHO ARE HERE TODAY TO EXPRESS THEIR SUPPORT FOR YOUR LEGISLATION.MR. CHAIRMAN, I WELCOME THE CHANCE TO PROVIDE SOME BACKGROUND AND A CONTEXT WHICH THE COMMITTEE MEMBERS MAY FIND USEFUL IN THEIR DELIBERATIONS ON H.R. 3485, THE PENDING ENFORCEMENT LEGISLATION. I BELIEVE THAT THE EXPERIENCES OF MY SEVEN YEARS IN CAPTIVITY REFLECT THOSE OF MY FELLOW HOSTAGES, WHO FOR YEARS WERE BRUTALLY TORTURED—PHYSICALLY, MENTALLY AND EMOTIONALLY—BY OUR CAPTORS.
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WE ARE ALL GRATEFUL TO THE CONGRESS FOR PASSING THE 1998 LEGISLATION ALLOWING US TO BRING ACTION AGAINST THE REPUBLIC OF IRAN. OUR FEDERAL COURTS HAVE CONFIRMED THE CONGRESS' JUDGMENT BY FINDING THAT STATE DIRECTLY RESPONSIBLE FOR WHAT JUDGE JACKSON TERMED ACTS ''SAVAGE AND CRUEL BY ANY CIVILIZED STANDARD.'' THOSE COURTS AWARDED US SUBSTANTIAL AMOUNTS OF COMPENSATORY DAMAGES, AND TO EMPHASIZE THEIR ABHORRENCE OF IRAN'S STATE-SPONSORED TERRORISM, ADDED HUNDREDS OF MILLIONS OF DOLLARS IN PUNITIVE JUDGMENTS. THESE DECISIONS ARE IN THEMSELVES A VICTORY IN OUR EFFORT TO FORCE IRAN TO TAKE RESPONSIBILITY FOR ITS ACTS.
HOWEVER, THE ABSENCE OF ANY EFFECTIVE MECHANISM FOR ENFORCEMENT OF THOSE JUDGMENTS UNDERMINES THE STRONG ACTIONS OF BOTH THE CONGRESS AND THE COURTS. IN ADDITION, SOME OF MY FELLOW HOSTAGES FIND THEMSELVES IN VERY DIFFICULT PERSONAL CIRCUMSTANCES, DIRECT CONSEQUENCES OF THEIR IMPRISONMENT AND SUFFERING. THEY NEED RELIEF, AND THEY NEED IT AS SOON AS POSSIBLE.
MR. CHAIRMAN, I WILL NOT RELATE AGAIN HERE THE TERRIBLE DETAILS OF MY SEVEN-YEAR IMPRISONMENT, OR THE SUFFERING OF MY FAMILY THEN AND DURING THE YEARS WE WORKED TO HEAL THE DAMAGE. I WILL SIMPLY NOTE THAT JUDGE JACKSON COMMENTED AT THE END OF MY HEARING THAT HE HAD NEVER HEARD SUCH A COMPELLING CASE IN ALL HIS YEARS ON THE BENCH. INSTEAD, AND WITH YOUR PERMISSION, MR. CHAIRMAN, I WOULD LIKE TO SUBMIT A COPY OF THE ENTIRE TRANSCRIPT OF MY HEARING INTO THE RECORD TO DOCUMENT THE LEVEL OF PHYSICAL AND MENTAL CRUELTY AND TORTURE TO WHICH WE WERE SUBJECTED.
MR. CHAIRMAN, AS I UNDERSTAND THE PENDING LEGISLATION, CONGRESS WOULD PROVIDE A WAY FOR VICTIMS OF STATE- SPONSORED TERRORISM, AND THEIR FAMILIES, WHO HAVE OBTAINED A FEDERAL COURT JUDGEMENT TO ATTACH PROPERTY OF THE STATE RESPONSIBLE FOR THEIR SUFFERING, INCLUDING MONEY DUE FROM OR PAYABLE BY THE UNITED STATES. THIS INCLUDES COMMERCIAL PROPERTY, RENTS FROM SEIZED BUILDINGS, AND OTHER ASSETS.
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OUR PRIMARY AIM IN REQUESTING THIS LEGISLATION IS THE SAME AS YOURS IN PASSING THE 1998 LAW. IT IS TO MAKE SURE THAT IRAN PAYS FOR WHAT IT HAS DONE. UNTIL IRANIAN MONEY IS ACTUALLY SEIZED AND DISTRIBUTED TO THAT COUNTRY'S VICTIMS, THERE IS NO REASON FOR IRAN OR ANY OTHER STATE SPONSOR OF TERRORISM TO THINK TWICE ABOUT DOING IT AGAIN, AND AGAIN. TERRORISM IS A CHEAP WAY FOR OUTLAW STATES TO ENGAGE IN WAR. BOTH THE LAW YOU PASSED THREE YEARS AGO AND THIS ONE ARE AIMED AT MAKING THAT EXPENSIVE.
MR. CHAIRMAN, LIKE OUR LEADERS AND MOST OF OUR NATION, I AM ENCOURAGED BY THE PROTESTS IN IRAN AGAINST THE REPRESSIVE REGIME THAT HAS RULED SINCE THE 1979 REVOLUTION. I AM HAPPY TO SEE MOVEMENT TOWARD A MORE OPEN AND JUST SOCIETY. I HAVE NO OBJECTION TO THE NORMALIZATION OF RELATIONS BETWEEN THE UNITED STATES AND IRAN. I THINK IT WOULD BE A VERY GOOD THING INDEED.
BUT MY FELLOW HOSTAGES AND I AGREE COMPLETELY THAT SUCH A STEP SHOULD NOT COME UNTIL IRAN HAS ACKNOWLEDGED ITS PAST SPONSORSHIP OF TERRORISM, COMPENSATED ITS VICTIMS, AND PUBLICLY VOWED NOT TO DO IT AGAIN. THAT DOES NOT SEEM LIKELY AT THE MOMENT. THEREFORE, IT IS UP TO THE U.S. CONGRESS AND COURTS TO SEE THAT THE IRANIAN GOVERNMENT UNDERSTANDS THERE IS A SUBSTANTIAL PENALTY, A REAL PENALTY, FOR SUCH ACTS.
WE HAVE TRIED TO WORK WITH THE ADMINISTRATION TO IDENTIFY A PROCEDURE AND POSSIBLE SOURCE OF IRANIAN FUNDS FOR SUCH PAYMENTS. WHILE THE ADMINISTRATION HAS BEEN SYMPATHETIC IN PRINCIPLE TO OUR PLIGHT AND BOTH UNDER SECRETARY OF THE TREASURY EIZENSTAT AND SECRETARY OF STATE ALBRIGHT HAVE TESTIFIED THAT THEY WANT TO WORK WITH US AND THE CONGRESS TO IDENTIFY FUNDS TO HELP THE VICTIMS OF TERRORISM, THE SAD REALITY IS THAT LITTLE HAS BEEN DONE. SUGGESTIONS TO DRAW ON TAXPAYER DOLLARS BELIE THE PURPOSE OF OUR EFFORTS, NAMELY TO MAKE THE IRANIANS PAY FOR THEIR TERRORIST ACTS.
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UNFORTUNATELY, THE ADMINISTRATION HAS OBJECTED ON DIPLOMATIC AND NATIONAL SECURITY GROUNDS TO THE DISTRIBUTION TO VICTIMS OF ANY PORTION OF THE HUNDREDS OF MILLIONS OF DOLLARS OF IRANIAN FUNDS IT HAS HELD FOR THE PAST 20 YEARS. NO SERIOUS PROPOSALS OR DISCUSSIONS ARE PENDING WITH THE CONGRESS.
FRANKLY, MR. CHAIRMAN, EVEN THIS NEW BILL BEFORE YOU WOULD ONLY GIVE US THE RIGHT TO GO INTO COURT, FILE THE APPROPRIATE PAPERS TO ATTACH IRANIAN PROPERTY AND EXECUTE THE COURT'S ORDER. WE ARE VERY GRATEFUL FOR YOUR CONSIDERATION OF THIS BILL, BUT YOU WILL UNDERSTAND THAT AFTER YEARS OF LITIGATION, WE WOULD HAVE LIKED TO HAVE HAD THE ADMINISTRATION HELP US AVOID FURTHER COURT ACTION, AND FURTHER DELAY.
WE HAVE OFFERED SUBSTANTIAL CONCESSIONS TO THE CLINTON ADMINISTRATION. WE HAVE OFFERED TO ACCEPT A PAYOUT OF IRANIAN ASSETS OVER TIME. WE HAVE AGREED THAT THERE IS A NEED FOR THE PRESIDENT TO BE FLEXIBLE IN THE APPLICATION OF THIS AND THE PREVIOUS LAW IN CASE OF SUBSTANTIAL NATIONAL SECURITY RISKS—TO BE APPLIED ON AN ASSET-BY-ASSET BASIS AND WITH RESPECT TO SPECIFICALLY IDENTIFIED DIPLOMATIC PROPERTY AND THE UPKEEP OF SUCH PROPERTY.
HOWEVER, THE CLINTON ADMINISTRATION HAS CONTINUED TO OBJECT TO EVERY PRACTICAL PROPOSAL WE HAVE MADE. IT HAS PUT NO PRAGMATIC, WORKABLE ALTERNATIVE OF ITS OWN ON THE TABLE. IT SEEMS INTENT ON RETURNING THE IRANIAN MONEY IT HOLDS TO THAT COUNTRY, AS PART OF ITS EFFORTS TO SUPPORT THE NEWLY ELECTED REFORMERS IN THE IRANIAN LEGISLATURE. WE DO NOT BELIEVE SUCH A TRANSFER IS RIGHT WITHOUT ENFORCING EITHER THE COURT'S OR THE CONGRESS' WILL OR WITHOUT INSISTING ON JUSTICE FOR THE VICTIMS OF IRANIAN ATTACKS, OR WITHOUT EVEN INSISTING THAT IRAN CEASE SPONSORING TERRORISM.
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MR. CHAIRMAN, I WILL CONTINUE TO PURSUE A DIALOGUE WITH THE ADMINISTRATION, AND I HOPE THE CONGRESS WILL TOO. SECRETARY EIZENSTAT HAS AGREED TO MEET WITH ME LATER TODAY. IN THIS MEETING I WILL CONTINUE TO SEEK A PRACTICAL MEANS TO SATISFY THE JUDGMENTS HELD BY ME AND OTHER VICTIMS OF TERRORISM.
MR. CHAIRMAN, I UNDERSTAND THAT MONEY HELD BY OUR GOVERNMENT FOR THE BENEFIT OF THE STATE OF IRAN IS SUBSTANTIAL. ONCE WE RECEIVED OUR JUDGMENT, I INSTRUCTED MY LAWYERS TO FILE THE NECESSARY PAPERS TO INITIATE THE LEGAL ATTACHMENT PROCESS. I REQUEST THAT A COPY OF THOSE DOCUMENTS BE INCLUDED IN THE RECORD.
WE INTEND, IF THIS LEGISLATION IS PASSED BY BOTH HOUSES AND SIGNED BY THE PRESIDENT, TO MOVE IMMEDIATELY TO PERFECT OUR ATTACHMENT OF THAT MONEY AND OBTAIN PAYMENT ON OUR JUDGMENTS.
MR. CHAIRMAN, THANK YOU FOR THE OPPORTUNITY TO TESTIFY BEFORE THE COMMITTEE TODAY. I WOULD BE HAPPY TO RESPOND TO ANY QUESTIONS THAT YOU OR OTHER MEMBERS OF THE COMMITTEE MAY HAVE.
MEMORANDUM
The attachment applies to Foreign Miliarty Sales Trust Account. Identification Code 11–8242–0–7–155. The account was establishes as a repositoryfor funds from foregin customers fpr the military sales pursuant to the Foreign Military Sales Act, 22 U.S.C. 2762 (formerly 31 U.S.C. 725S).
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Certificate of Mailing
I hereby certify that a copy of the foregoing was mailed this 10th day of April 2000, by Federal Express to:
Stuart H. Newberger, Esquire
Crowell & Moring LLP
1001 Pennsylvania Avenuce N.W.
Washington D.C. 20004–2595
66210H.eps
66210a.eps
MEMORANDUM
The attachment applies to Foreign Miliarty Sales Trust Account. Identification Code 11–8242–0–7–155. The account was establishes as a repositoryfor funds from foregin customers fpr the military sales pursuant to the Foreign Military Sales Act, 22 U.S.C. 2762 (formerly 31 U.S.C. 725S).
Certificate of Mailing
I hereby certify that a copy of the foregoing was mailed this 10th day of April 2000, by Federal Express to:
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Stuart H. Newberger, Esquire
Crowell & Moring LLP
1001 Pennsylvania Avenuce N.W.
Washington D.C. 20004–2595
66210I.eps
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
TERRY A. ANDERSON, et al.,
Plaintiffs,
V.
| C.A. No. 99–069S (TPJ) |
Plaintiffs,
DECISION AND ORDER
Terry Alan Anderson, an American journalist working in Beirut, Lebanon, was kidnapped at gunpoint from his parked automobile in West Beirut on March 16, 1985. He was imprisoned and held hostage in various dungeons in Beirut and vicinity, under execrable conditions, for nearly seven years. Released in early December, 1991, Anderson, his wife Madeleine (''Maddy'') Bassil (a Lebanese citizen), and their daughter, Sulome (who was born in New York State in June, 1985, while her father was a hostage) now bring this action against the Islamic Republic of Iran and its Ministry of Information and Security (''MOIS'') as the principals allegedly responsible for the multiple tortious injuries done to them by the terrorist organization they employed to that purpose. Jurisdiction is predicated upon 28 U.S.C. §1330(b) and 1605(a)(7), the latter a 1996 amendment to the Foreign Sovereign Immunities Act, 28 U.S.C. §1602–1611.
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Upon the evidence adduced at the ex parte non-jury trial before this Court February 15–16, 2000, from which the facts set forth below are found pursuant to Fed. R. Civ. P. 52(a), the Court concludes that judgments shall be given for plaintiffs.(see footnote 1)
As in Cicippio, where the sole defendant was the Islamic Republic of Iran, the defendants in the instant case were properly served with process pursuant to 28 U.S.C. §608(a)(4) as of August 11, 1999, and were declared in default on October 29, 1999, having failed to answer or otherwise respond to the complaint.
I.
The evidence presented at the trial establishes that in March of 1985, Terry Anderson, a thirty-eight year-old ex-Marine and seasoned combat veteran, was chief correspondent for the Associated Press (''A.P.'') for the Middle East. He had been in Beirut since the Israeli invasion of Lebanon in 1982, and had acquired a considerable understanding of the country and its myriad warring factions. Anderson was highly respected by his professional peers as a knowledgeable, resourceful, and extraordinarily well-connected reporter. Major news organizations regarded his by- line stories for the A.P. as a primary source for their coverage of the region. Anderson's next assignment for the A.P. would likely have been as chief of a major bureau or an editor in New York.
While returning by automobile from an early Saturday morning tennis game on March 1985, to the West Beirut apartment where he and Madeleine were living, Anderson stopped briefly to drop off his tennis partner. Anderson was quickly accosted by several young men, forced out of his car at gunpoint, and thrust onto the back-seat floor of his assailants' vehicle. They covered him with a blanket, drove him at high speeds through the streets of Beirut to the first of many places of confinement where he was shackled and blindfolded. Anderson was to remain in chains for all but the last two weeks of his captivity.
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Anderson's ordeal was typical of that of his fellow hostages described in Cicippio v. Islamic Republic of Iran, supra, n.1. At first, Anderson was roughed-up regularly, threatened with death if he tampered with his blindfold to look at his captors, and was fed only bread, occasionally a fragment of cheese, and water. Although chained and blindfolded, Anderson became aware over the ensuing weeks that other captives were being brought in to the same enclosure, but then walled off from one another with wooden partitions. (Anderson later learned that among his new companions—there were ultimately five altogether—were Father William Jenco and William Buckley.) All of the captives became ill as a result of the unsanitary conditions in which they were confined, and Buckley, untreated despite the gravity of his condition, eventually died of his illness.
After several months, Anderson was moved to another location and chained to a bolt in the floor, still blindfolded. Eventually, he became aware that his fellow prisoners nearby now included David Jacobsen, Rev. Ben Weir, and Tom Sutherland (Dean of Agriculture at the American University). Over the next year, Rev. Weir and Fr. Jenco were released, Anderson surmises, as a result of covert arms-for-hostages negotiations between the United States and Iran. In the meantime, the hostages were acutely aware that this particular place of captivity was in the midst of a war zone. Ordnance exploded frequently in close proximity to the structure.
In time, the remaining hostages were transported by truck—wrapped from head to toe in plastic tape each time they were moved—to yet another prison, this time a filthy dungeon with darkened cells for each prisoner, equipped only with a mattress, a water bottle, and a second container to collect urine. All the prisoners developed diarrhea; yet, being chained to the floor, they were unable to escape their own excrement.
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All told, Anderson estimates that he and his fellow captives were moved from cell to cell some twenty-five times. They were bound with tape each time, leaving only their nostrils exposed, then laid prone in the narrow compartments under the beds of trucks and driven around for hours while being forced to inhale the vehicles' exhaust fumes. With each transfer they were fearful that this time their destination might be the place of their executions. Once hostages arrived at a new prison, sometimes several of them would be confined together. On other occasions they would be alone or with new cellmates. Anderson recalls that only he and Tom Sutherland were confined together throughout.
For reasons he does not know, Anderson was rarely beaten, but other prisoners were, on a regular basis. Sutherland, in particular, was brutally and frequently beaten by the guards, and at one point attempted suicide. Anderson could only listen and observe, helpless to assist the victim. The guards were, however, uniformly anti- American and extremely hostile to all of the hostages, as well as indifferent to their prisoners' discomforts: chains, blindfolds, lack of sanitation, diet, or illness. They repeatedly taunted the hostages with assurances that they would be released shortly, which the hostages soon learned were lies.
As were his fellow hostages, Anderson was subject to periodic depressions which lasted many weeks. Deprived for most of the time of any knowledge of the outside world, given minimal information about his family (he was occasionally allowed to watch their broadcast appeals for his release), and fearful that the ordeal would never end, or would end only by his death, Anderson survived day-to-day.
Over the last year-and a-half of his captivity, Anderson's fellow hostages were being released one or two at a time; their captors were becoming increasingly aware that, whatever had been exchanged for hostages in the past when negotiations had been clandestine, they were no longer of significant value in trade, at least publicly, to anyone. Anderson was told from the outset that he would be the last to be released, as proved to be the case. He was, as he described it, a ''poster child'' for his captors—a prominent American journalist, helpless at the hands of the ''Islamic jihad''—and they had ascribed a barter value to him far higher than anyone was willing to pay.
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At the end, Anderson was confined to a cell with three others, including Sutherland, for about a year. One by one, at intervals of several months, they were released, Anderson last of all. During the final two weeks, Anderson's captors struck off his chains for the first time. The day of his release, he was driven, after dark but still blindfolded, to a roadside rendezvous with a Syrian army team. He removed his blindfold, he recalled, and saw the stars for the first time since his capture. The Syrians drove him to Damascus where he was reunited with his wife and daughter. Altogether, they had been apart 2,454 days—over six years and seven months. After a period of medical treatment for Terry Anderson at the U.S. Air Force hospital in Wiesbaden, Germany, and a period of rest and recuperation in the Caribbean, the Anderson family returned to the United States.
XII.
As Terry Anderson was being seized from his car on the morning of March 16, 1985, Madeleine (''Maddy'') Bassil, lay asleep in their apartment in West Beirut. She was thirty-five years old and seven months pregnant with their first child. She became aware that something was wrong when she awoke late in the morning to find that Terry had not returned from his tennis game. Knowing that the practice of hostage- taking had become commonplace in Beirut in recent months, her first thought was to pray that Terry had had ''an accident''—anything but kidnapped. A neighbor reluctantly told her otherwise, and it was confirmed the following night by a press release from Hezbollah.
Several weeks later, Maddy flew to Batavia, New York, to give birth to their daughter, in Terry's hometown with his family nearby. Sulome Theresa Anderson was born June 7, 1985. Four months later Maddy and her baby went to England to live with a sister for a time, and then she and the child took up residence in Cyprus, where they remained until Anderson was released. While in Cyprus, Maddy and Sulome, visited the A.P. office in Nicosia often, sometimes to view photographs and videotapes of Anderson and the other hostages that his captors published from time to time, or to read the propaganda messages he was forced to send, and sometimes just to remind Sulome that she had a father, hopefully still alive somewhere, who might come home some day.(see footnote 2)
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Maddy was deeply depressed, but tried (unsuccessfully) to conceal it from Sulome. From time to time she would receive telephone calls from extortionists—none connected with Anderson's captors—who offered to procure Anderson's release for money, or in one case for a truckload of blue-jeans. On Sulome's birthdays she made videotapes of the child for broadcast on Lebanese television in hopes that Anderson would be allowed to watch. (He was.) As other hostages were released, the A.P. arranged for Maddy to meet with them, and from them she learned what life was like for Terry. The appearance of one former hostage, however, terrified Maddy and Sulome that Terry would be similarly debilitated when released.
Anderson, Madeleine and Sulome all testified to their difficulty adjusting to life together once they reunited in December of 1991. Ultimately, according to Anderson, it took five years for them to become a relatively normal family. Anderson discovered that the psychological damage he had sustained was far greater than he had suspected. Stoic endurance and concealment of all of his emotions had become a survival technique for him during his captivity, and he found the habit hard to break; intimate communication with his reunited family came slowly. Madeleine was, at first, terrified of this stranger from whom she had been parted so long ago, and, having been both parents to Sulome for so many years, she found also it difficult to step aside from a paternal role.
Sulome, now a fourteen year-old ninth-grader, remembers her mother's loneliness and melancholy, and her own envy of friends who had fathers in residence during the period of her father's captivity. She also recalls her total dependence on her mother while young, and her anger and resentment at her father's assertions of parental authority once the family was reunited.
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Anderson never returned to the Associated Press, although he would have been welcomed back. He began a new career as a teacher of journalism, first at Columbia University in New York, and presently at the Scripps School of Journalism at Ohio University. The Anderson family now live in Athens, Ohio.
III.
The evidence is conclusive that Terry Anderson was kidnapped—and imprisoned under deplorable, inhumane conditions—by agents of the Islamic Republic of Iran, known by many names but most commonly as Hezbollah, or the ''party of God.'' Anderson himself could identify them as such, based upon his intimate familiarity with the warring factions in Lebanon during the 1980s. He had observed, prior to his captivity, Iranian troops in uniform training Hezbollah recruits in the Bekaa Valley. The mullahs who directed Hezbollah operations, Anderson knew, had received their religious instruction in Iran. While imprisoned, Anderson was once visited by an Iranian national who formally identified himself to Anderson as the liaison between Hezbollah and Iran. Anderson also became aware, at one point, that his place of confinement at the moment was a sub-basement of barracks occupied by troops of the Iranian Revolutionary Guard.
Ambassador Robert Oakley, a career U.S. Foreign Service officer now retired, who served in Beirut in the 1970s and went on to become Director of the State Department Office of Terrorism and a leading National Security Council adviser on issues of terrorism, positively identified the Iranian Ministry of Information and Security as responsible for causing the seizure of the hostages in Lebanon by Hezbollah. He was personally aware when, in exchange for a delivery of Hawk missiles to Teheran arranged by Col. Oliver North of the U.S. National Security Council, one hostage was released. Iran, he testified, has been officially designated as a state supporter of terrorism. It financed, organized, armed, and planned Hezbollah operations in Lebanon and elsewhere.
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Dr. Patrick Clawson, director of research at a private public policy institute in Washington, D.C., who has studied and written about Iran for many years, testified that Hezbollah originated with Iranian sponsorship in 1982 following the Israeli invasion of Lebanon. Approximately 2000 Iranian troops from the Revolutionary Guard opened a training camp in the Bekaa Valley, armed and trained Shiite recruits, and financed both its terrorist operations and the various charitable activities that attracted the Lebanese Shia population to Hezbollah and retained its loyalty.
Hostage-taking, particularly of foreigners, was a principal activity of Hezbollah, he said. The motives were, among others, to secure release of its own operatives who were being held as terrorists by other governments; to discredit American and Israeli influence in the Middle East; and to dramatize to the world its willingness to take radical action in pursuit of its political objectives.
According to Dr. Clawson, the Iranian Ministry of Information and Security. is an Iranian government agency, a reincarnation of a pre-revolutionary organization of similar name and function under the Shah, roughly comparable to the K.G.B. of the former Soviet Union. Together with the Revolutionary Guards, MOIS coordinates multiple terrorist activities throughout the Middle East, including those of Hezbollah, With approximately 30,000 employees, it is also the largest spy service in the Middle East. Dr. Clawson testified that the Ministry's expertise in finding sites for, and operating prisons in, undetectable locations was instrumental in enabling Hezbollah to conceal the hostages' places of confinement in and near Beirut so effectively as to thwart any rescue attempts. Dr. Clawson estimates MOIS' annual budget at between $100 million and $500 million, of which between $50 million to $ 100 million is expended in support of terrorist activities.
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IV.
Plaintiffs Terry A. Anderson and Madeleine Bassil individually, and as the parents and natural guardians of Sulome T. Anderson, pray for an award of compensatory damages against the Islamic Republic of Iran and its Ministry of Information and Security.
Section 1605(a)(7) of the Foreign Sovereign Immunities Act of 1976 (''FSIA''), as amended, 28 U.S.C. §1602 et. seq., provides a cause of action against a foreign state for anyone who suffered personal injury ''that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources . . . for such an act . . . 28 U.S.C. §1605(a)(7) (emphasis added). Thus, the FSIA authorizes personal injury claims against a foreign state that provides material support or resources for acts of hostage-taking.
This Court has previously found Iran to be a state sponsor of terrorism under §1605(a)(7). See Flatow v. The Islamic Republic of Iran, 999 F. Supp. 18 (D.D.C. 1998). In Cicippio v. The Islamic Republic of Iran, 18 F. Supp.2d 62 (D.D.C. 1998), the Court concluded that Iran had ''openly provided 'material support or resources' to Hizbollah, [as the kidnappers of Joseph Cicippio, Frank Reed, and David Jacobsen] and that is sufficient grounds to impose liability under §1605(a)(7).'' Id. at 68. In the instant case the evidence once again discloses that Iran provided Hezbollah with funding, direction and training for its terrorist activities in Lebanon, including the kidnapping and torture of Terry Anderson, and his imprisonment as a hostage for 2,454 days. Iran falls within FSIA's definition of a state sponsor of terrorism and is thus liable for the injuries suffered by plaintiffs as a result of Hezbollah's terrorist acts.
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Plaintiff Terry A. Anderson seeks compensatory damages for the following causes of action: battery, assault, false imprisonment, intentional infliction of emotional distress, and loss of consortium. Each of these causes of action is authorized under §1605(a)(7) of the FSIA.
Plaintiff Madeleine Bassil, Terry Anderson's wife, seeks compensatory damages based on causes of action of intentional infliction of emotional distress, and loss of consortium and solatium. Ms. Bassil is a Lebanese national. Although Ms. Bassil is not a U.S. citizen, the FSIA confers subject matter jurisdiction over a claim under 28 U.S.C. §1605 (a)(7) if ''either the plaintiff or the victim [is] a United States national at the time of the incident.'' Flatow, 999 F. Supp. at 16 (emphasis added). Terry Anderson was a U.S. citizen at the time of his abduction. Thus, this Court has subject matter jurisdiction over his wife's claims.
Plaintiff Sulome Anderson, who is the minor daughter of Terry Anderson and Madeleine Bassil, seeks compensatory damages for loss of solatium(see footnote 3). Employing essentially the same calculus as it did in Cicippio, supra, the Court will award compensatory damages to Terry Anderson in the amount of $24,540,000; to Madeleine Bassil in the amount of $ 10,000,000; and to Sulome Anderson in the amount of $6,700,000.
V.
The plaintiffs also pray for an award of punitive damages against the defendant Ministry of Information and Security. The tortious conduct with which both defendants are charged, savage and cruet by any civilized standards, would surely merit such an award. The FSIA, however, expressly exempts a foreign state from liability for punitive damages, 28 U.S.C. §1606; see Cicippio, 18 F. Supp. 2d at 69. An ''agency or instrumentality'' of a foreign state may, however, be liable for punitive damages. The term ''agency or instrumentality'' includes a separate legal person or entity, which is ''an organ of a foreign state,'' or is owned by it. 28 U.S.C. §1603(b). The MOIS is thus vulnerable to an award of punitive damages.
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The purpose of punitive damages, as the name implies, is to punish wrongful conduct—to prevent its repetition by the offender and to deter others who might choose to emulate it. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974). The victim to whom the award is made thus stands as a surrogate for civilized society in general; the victim is made more than whole in order that others may be spared a similar injury.
Yet another reason to award punitive damages in this particular case is to vindicate the interest of society at-large in the collection and dissemination of complete and accurate information about world conflicts. Two eminent journalists—Dan Rather, anchor and managing editor of CBS Evening News, and Eugene Roberts, former managing editor and foreign correspondent of the New York Times and executive editor of the Philadelphia Inquirer -testified with respect to the extent to which acts of terrorism, and in particular the kidnapping and hostage-taking of foreign correspondents, inhibit the gathering and reporting of news. Other journalists, even those such as Terry Anderson, who are accustomed to working in war zones and are undaunted by transient physical danger, are forced to exercise uncustomary caution in the presence of the threat of potential kidnapping. Newsgathering becomes at once more difficult and more costly. News organizations reduce their staffs to a minimum when their personnel are exposed to such a threat. Those who remain are intimidated. As time passes, news coverage inevitably tends to become superficial, no matter the importance of the story.
It is never a simple task to calibrate an award of punitive damages to the gravity of the offense; at once sufficient to produce the desired effect, yet leaving the wrongdoer the wherewithal to continue its lawful pursuits. It is still more difficult in a case such as this, in which the likelihood that any award will ever be paid is minimal. Nevertheless, the Court concludes, on the basis of the testimony of Dr. Clawson, that an award of thrice the MOIS' maximum annual budget for terrorist activities, or $300 million, is the closest approximation that it can make to an appropriate award and will cause judgment in that amount to be entered accordingly against MOIS in favor of the Anderson family.
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It is, therefore, this 24th day of March, 2000,
ORDERED, that judgment be entered in favor of the plaintiffs against the Islamic Republic of Iran and its Ministry of Information and Security, jointly and severally, for compensatory damages as follows:
Terry A. Anderson: $24,540,000
Madeleine Bassil: $10,000,000
Sulome Anderson: $6,700,000
IT IS FURTHER ORDERED, that judgment be entered in favor of plaintiffs, jointly and severally, against the defendant Iranian Ministry of Information and Security for punitive damages in the amount of $300,000,000; and it is
FURTHER ORDERED, that the Clerk of Court forthwith enter judgments in accordance with the foregoing.
| Thomas Penfield Jackson, U.S. District Judge |
Mr. MCCOLLUM. Mr. Flatow, you are recognized
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STATEMENT OF STEPHEN M. FLATOW
Mr. FLATOW. Mr. Chairman, I would also like to note the presence here today of Len and Vicky Eisenfeld, whose son Matt was also killed in February 1996 in a bus bombing in Israel.
My name is Stephen Flatow. My 20-year-old daughter Alisa was murdered by Iranian-sponsored terrorists in April of 1995 while she was a student in Israel. I buried Alisa 5 years ago yesterday.
Mr. Chairman, I will not sit here and tell you that on Sunday morning, April 9th, 1995, I heard the sound that a bomb makes when it goes off. I will not tell you that I heard the sound made by glass from the bus's windows as it shattered into passengers' eyes and their faces. I will not tell you I heard the sound that metal makes when it is ripped off the frame of a bus by the force of 70 kilograms of dynamite.
I will not tell you that I heard the sound that shrapnel makes as it flies through the bus's interior, and I will not tell you I heard the screams and the sounds that the dying and injured make, and I will not tell you that I have not wondered every day what Alisa's last moments on Earth were like, but every day since that day I have worked to make it so those sounds would not be heard again by the victims of terrorist attacks and their families who go to bed each night wondering what those moments were like.
Page 55 PREV PAGE TOP OF DOCI was especially encouraged by the passage of the Anti-terrorism Act of 1996 that we believe would allow us to bring Alisa's killers to justice in the United States and thereby demonstrate to the world that the United States does not stand by idly while despots and demagogues order death and destruction around the world.
When I began our lawsuit against Iran in 1997, my intention was the same as that of Congress when it enacted the law. You and I wanted to put the Iranian Government and other sponsors of terrorism out of business.
Sadly, in the almost 4 years since the law was put into effect and the 2 years that our family has had our judgment, the Iranians are still in the terror business, and our own government has the dubious distinction of keeping them in it through the exercise of a confusing policy that effectively blocks us from collecting on our court-ordered awards.
Mr. Chairman, there is no doubt that my country stood with me on the day of Alisa's death and for months thereafter until one day it was determined that it was not in the best interest of the United States to have American citizens use American law to defeat terrorists and their sponsors. Having used the Federal statute, the law of the land, I can only feel double-crossed when the administration embarks on a course that makes it more difficult to enforce our claims. Our story is detailed in an opinion piece appearing in the Outlook section of the Washington Post of November 7, 1999, and which is included in my formal testimony.
H.R. 3485 is not an Earth-shaking piece of legislation that will upset American foreign policy as its opponents are bound to allege. To the contrary, the bill fine tunes provisions of existing Federal law. It makes real the provisions of the Anti-terrorism Act. At the same time, it addresses administration concerns about protecting diplomatic property of state sponsors by permitting the President to block seizure of such property in the interest of national security.
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Mr. Chairman, the Congress and the administration have spoken time and again of the Nation's commitment to use all available tools to defeat terrorists and their sponsors. The bill before you, I believe, would give victims of terror the tools that we need to complete the job we were invited to do by your passage of the Anti-terrorism Act.
In today's USA Today, Michael Sheehan, the U.S. Coordinator for counterterrorism said, ''What works against terrorism is sustained diplomatic pressure, political will and courage.'' H.R. 3485 embodies Mr. Sheehan's call because all those elements are found in the bill.
Mr. Chairman, my testimony could be longer, but it has been a trying week for our family, and I ask, if you have any questions, to please let me know.
Mr. MCCOLLUM. Thank you very much, Mr. Flatow, and thank you for being here, all things considered.
[The prepared statement of Mr. Flatow follows:]
PREPARED STATEMENT OF STEPHEN M. FLATOW
Mr. Chairman, thank you for inviting me here today to testify about the Justice for Victims of Terrorism Act. My name is Stephen Flatow. My 20-year-old daughter Alisa was murdered by Iranian sponsored terrorists in April 1995 while Alisa was a student in Israel.
Page 57 PREV PAGE TOP OF DOCMr. Chairman, I will not sit here and tell you that on Sunday morning April 9, 1995 I heard the deafening sound one hears when a bomb laden van explodes.
I will not tell you that I heard the sound made by glass as the bus's windows shattered and flew inward at the passengers as a result of the bomb blast.
I will not tell you I heard the screaming sound made when metal is ripped from the frame of a bus.
I will not tell you that I heard the whistling sound that shrapnel makes as it flies through the air from the force of 70 kilograms of explosive, and I will not tell you I heard the screams of the injured and dying that morning.
But I will tell you that every day since the day my daughter was killed five years ago this week I have worked to make it so those sounds would not be heard again by the victims of terror attacks and their families who go to bed each night wondering what the last moments of their child were like.
I was especially encouraged in my work by passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 that we believed would allow me to bring Alisa's killers to justice in the United States and thereby demonstrate to the world that the United States does not standby idly while despots and demagogues order death and destruction around the world.
When I began my lawsuit against the Iranian government in February 1997, my intention was the same as that of the Congress when it enacted the Anti-Terrorism Act. You and I want to put the Iranian government and other sponsors of terrorism out of business.
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Sadly, in the almost four years after the Anti-Terrorism Act was put into law and the two years after our family obtained a judgment, the Iranians are still in the terror business and our own government has the dubious distinction of keeping them in it through the exercise of a confusing policy that effectively blocks us from collecting on our Court ordered award.
Mr. Chairman, my country stood with me on the day of Alisa's death and for months thereafter until one day when it was determined that it was not in the best interests of the US to have American citizens use American law to defeat terrorists and their sponsors.
Having used a Federal statute—the law of the land—I can only feel double crossed when the Administration embarks on a course that makes it more difficult to enforce our claims. Our story is detailed in an opinion piece appearing in the Outlook Section of the Washington Post of November 7, 1999 and which is appended to my testimony.
Mr. Chairman, H.R. 3485 is not an earthshaking piece of legislation that will upset American foreign policy as its opponents are bound to allege. To the contrary, the bill fine tunes provisions of existing Federal law. It makes real the potential of the Anti-Terrorism Act. At the same time it addresses Administration concerns about protecting diplomatic property of state sponsors of terrorism by permitting the president to block seizure of such property in the interests of national security.
Mr. Chairman, the Congress and the Clinton Administration has spoken time and time again of the nation's commitment to use all available tools to defeat terrorists and their sponsors. The bill before you would give victims of terror the tools they need to complete the job we were invited to do by your passage of the Anti-Terrorism Act.
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Thank you, Mr. Chairman. If there are any questions, I would be pleased to answer them.
Mr. MCCOLLUM. Ms. Khuly, you are recognized to give your testimony.
STATEMENT OF MAGGIE A. KHULY
Ms. KHULY. Thank you. I am Maggie Alejandre Khuly speaking today for the Costa, de la Pena, Morales and Alejandre families. I have two members of the families here, Ms. Dominguez and Maria de la Pena in the audience.
The Cuban Government murdered Carlos Costa, Mario de la Pena, and my brother Armando Alejandre on February 24th 1996. They were killed over international waters by air-to-air missiles shot from Cuban MiGs. The missiles pulverized the two small, unarmed, civilian aircraft while they were flying, searching for fleeing Cuban rafters. Cuba has publicly stated that the murders were premeditated and accepts responsibility for the killings.
In the immediate aftermath of the shoot-down, the United States Congress strongly condemned the deaths as a, ''act of terrorism by the Castro regime,'' President Clinton asked Congress to pass legislation to provide compensation for the families out of Cuba's blocked assets in the U.S., and then-U.N. Ambassador Albright before the U.N. General Assembly denounced the fact that Cuba had not offered compensation to the families.
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Numerous international organizations condemned the shoot-down. The killings were in such flagrant violation of human rights and of international law that we were confident of our country's support in our search for justice. When, on April 24th of 1996, Congress passed the Anti-terrorism and Effective Death Penalty Act, we believed our government had empowered us to seek redress in U.S. courts.
But did it, really?
The same administration which promised us justice, the same President Clinton who personally restated his unwavering commitment to punishment for the terrorists responsible for these murders, the same Department of State which encouraged us to pursue civil action under the Anti-terrorism Act have obstructed us every step of the way.
It is cruel to entice Americans with promises of justice that fail to materialize at collection time. Our hopes were initially fulfilled when a Federal judgment of December 1997 called the shoot-down a murder, ''in outrageous contempt for international law and basic human rights,'' The problems began when we tried to collect from a terrorist country and the United States tried to prevent us.
The Department of State publishes a yearly report called Patterns of Global Terrorism. It is prepared to give Congress a full and complete factual report on terrorism, yet surprisingly the last one available, that for 1998, doesn't mention the Anti-terrorism Act. Why isn't it covered if Congress designed it to play a vital part in the fight against terrorism?
Page 61 PREV PAGE TOP OF DOCThe report does present a four-point counterterrorism policy that includes, first, ''make no concessions to terrorists and strike no deals,'' and second, ''bring terrorists to justice for their crimes,''
But is our country complying with this policy?
The Clinton administration is not. It is making concessions to and striking deals with terrorists when it refuses to turn over to their victims the U.S. frozen and other assets belonging to terrorist countries. It is not bringing the terrorists to justice in criminal courts either. It is frustrating Congress' intent in enacting the Anti-terrorism Act and is denying American victims of terrorism their legal rights. It is actively taking an adversarial position in court, safeguarding the interests of terrorists at the expense of their victims.
Civil action under the Anti-terrorism Act is our legal right. It is the only way to justice that we can pursue on our own. Much as we might anticipate criminal indictments, they depend on the U.S. Government's ability and willingness to prosecute. Meanwhile, parents have lost their sons; a wife, her husband; a daughter, her father; siblings, their brothers. And our country has lost three Americans to terrorism, Carlos Costa, an airport administrator born in Florida; Mario de la Pena, an honors aviation student born in New Jersey; and Armando Alejandre, who came to the U.S. as a child, later became a Marine, and volunteered and served in Vietnam.
It is hard to explain our family's despair and frustration throughout this process. We had counted on one enemy, Cuba, not on the two we are faced with when we include the Clinton administration, and we have to include it. U.S. attorneys sit down in court next to Cuba's attorneys and against mothers who have lost their sons. They argue that the frozen assets are needed to promote civil society and democracy in Cuba and ignore the fact that it is at the expense of the rights of a wife who has lost her husband and a daughter who has lost her father. We find ourselves unprotected by our own government while the murderers of our loved ones remain unpunished.
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There can be no justice through the Anti-terrorism Act without due compensation since it is precisely compensation what is stipulated as retribution under this law. I am here today to ask Congress to reaffirm its commitment to justice for victims of terrorism and to punish those responsible for the murders of Americans.
Thank you.
Mr. MCCOLLUM. Thank you very much, Ms. Khuly.
[The prepared statement of Ms. Khuly follows:]
PREPARED STATEMENT OF MAGGIE A. KHULY
I'm Maggie Alejandre Khuly speaking today for the Costa, de la Pea and Alejandre families.
The Cuban government murdered Carlos Costa, Mario de la Pea, Pablo Morales and my brother, Armando Alejandre, on February 24, 1996. They were killed over international waters by air-to-air missiles shot from Cuban MiGs. The missiles pulverized the two small unarmed civilian aircraft they were flying while searching for fleeing Cuban rafters. Cuba has publicly stated that the murders were premeditated and accepts responsibility for the killings.
In the immediate aftermath of the shoot down the United States Congress strongly condemned it as an ''act of terrorism by the Castro regime'' (Libertad, 22 §6061 No. 1). President Clinton asked Congress to pass legislation to provide compensation for the families out of Cuba's blocked assets in the U.S. and then-U.N. Ambassador Albright, before the U.N. General Assembly, denounced the fact that Cuba had not offered compensation to the families. Numerous other organizations also condemned the shoot down including the U.N. Commission on Human Rights, the European Union, the International Civil Aviation Organization and the Inter-American Commission on Human Rights of the Organization of American States (Report No. 86/99, 1999).
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The killings were in such flagrant violation of human rights and of international law that we were confident of our country's support in our search for justice. When on April 24 of 1996 Congress passed the Anti-Terrorism and Effective Death Penalty Act we believed our government had empowered us to seek redress in U.S. courts. But did it really?
The same Administration which promised us justice, the same President Clinton who personally restated his unwavering commitment to punishment for the terrorists responsible for these murders, the same Department of State which encouraged us to pursue civil action under the Anti-Terrorism Act have obstructed us every step of the way.
It is cruel to entice Americans with promises of justice that fail to materialize at collection time. Our hopes were initially fulfilled when a federal judgment of December, 1997, called the shoot down a murder ''. . . in outrageous contempt for international law and basic human rights'' (Alejandre v. Republic of Cuba, 996 F. Supp. 1239, S.D. Fla.1997) and there was no reaction from either the Cuban or US governments. The problems began when we tried to collect from a terrorist country and the United States tried to prevent us.
The United States Department of State publishes a yearly report on terrorism called ''Patterns of Global Terrorism'' (PGT). This report is prepared to give Congress a ''full and complete actual report on terrorism'' (PGT 1998, pg. vi). Yet surprisingly the last one available, that for 1998, doesn't mention the Anti-Terrorism Act. Why isn't it covered if Congress designed it to play a vital part in the fight against terrorism? The report does, however, present a four-point counter- terrorism policy that includes, first, ''make no concessions to terrorists and strike no deals'', and second, ''bring terrorists to justice for their crimes'' (PGT 1998, pg. iii). But is our country complying with this policy?
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The Clinton administration is not. It is making concessions to, and striking deals with terrorists when it refuses to turn over to their victims the U.S.-frozen