Clinton Bush Counter-Terrorism Officials Agree on Need to Enable Civil Suits Against Terrorism Financiers

I wrote yesterday on the recent court cases which leave non-state foreign terrorist financiers virtually immune from civil suit, and the proposed “Justice Against Sponsors of Terrorism Act” which would empower American terrorism victims to exercise their 7th Amendment rights in federal courts aginst such financiers. During today’s Senate Judiciary Committee hearing on the issue and the Act, former senior officials of the Clinton and Bush National Security Council agreed that the court rulings were wrong; they urged the Congress to enact the Act to not only obtain compensation for deaths and injuries, but also to deter future attacks as a matter of counter-terrorism policy. On that last point, they differ sharply from some commentators who inexplicably see no benefit to easing the filing of civil suits against terrorists, an issue I discussed on June 28 in my post on recent changes in federal pleading standards.

Richard Klingler was Associate Counsel, and then Senior Associate Counsel to President George W. Bush from 2005 to 2007, and was also General Counsel and Legal Adviser on the National Security Council staff in 2006 and 2007. Now a partner at Sidley Austin LLP, he was one of the principal lawyers representing victims of the September 11, 2001 attacks in their suit, also discussed yesterday, against certain Saudi-based entitites and Saudi individuals. You can download his testimony from the Committee’s website, and here is an excerpt of his comments on the Act:

The Act is an important counter-terrorism initiative and focuses on redressing injuries incurred within our borders, where our nation’s sovereign interests are greatest. The Act is required in large part due to the Second Circuit Court of Appeals’ unfortunate and clearly erroneous construction of the Foreign Sovereign Immunities Act (“FSIA”) and application of the Due Process Clause, as well as by the Administration’s narrow construction of a FSIA exception to sovereign immunity for suits addressing tortious acts, including acts of terrorism. The Act would ensure that victims of terrorism will secure redress for acts of terrorism committed on U.S. soil, even if initiated abroad, and would increase the prospect of holding those responsible to account for their actions. This applies not only to victims of past acts of terror, but also to those who are, unfortunately, very likely to join their ranks, and it applies to those who would foster and support terrorist organizations as well as to those who more directly commit acts of terror.

The Act would also increase the nation’s ability to deter and prevent further attacks of terrorism.Although civil litigation plays only a small part in countering terrorism, relative to the efforts of our armed forces and intelligence, diplomatic, and law enforcement officials, its role is not negligible. The Act would increase the scope of civil litigation directed against those who materially support terrorism, which may prove especially effective when directed against the financiers of terror and by providing incentives to foreign states to ensure that those closely affiliated with them neither seek to harm expatriate communities within the United States nor further the efforts of terrorist organizations. And, the Act would increase the likelihood that federal courts will extend their powers broadly to entertain suits against those who would support terrorist actions directed against the United States and its interests.

Lee Wolosky served on the National Security Council during the Clinton and Bush Administrations. A partner at Boies, Schiller, & Flexner LLP, he is now assisting efforts to seek compensation from the Arab Bank for its involvement in funding Hamas terrorists. An excerpt of his comments:

Along with the threat of governmental fines and sanctions, the prospect of substantial civil damages can deter deep-pocketed corporations or individuals from doing business with terrorist organizationsCorporations, self-avowed charitable organizations, and other large entities will continue to provide material support for terrorist organizations until it is financially unpalatable for them to do so. Although government sanctions are clearly an integral part of the effort to stem the flow of funds to terrorist groups, civil litigation can substantially enhance the financial consequences that such entities face. This proposed bill will make it easier for litigants to sue those who provide support to terrorists who kill or injure Americans. It will thereby deter future such support.