IN THE SENATE OF THE UNITED STATES
November 17, 2011
Mr. Schumer (for himself, Mr. Whitehouse, Mr. Graham, Mr. Kyl, Mr. Hatch, and Mr. Cornyn) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To deter terrorism, provide justice for victims, and for other purposes.
This Act may be cited as the
Justice Against Sponsors of Terrorism
Findings and purpose
Congress finds the following:
International terrorism is a serious and deadly problem that threatens the vital interests of the United States.
The Constitution confers upon Congress the power to punish crimes against the law of nations and to carry out the treaty obligations of the United States, and therefore Congress may by law impose penalties relating to the provision of material support to foreign organizations engaged in terrorist activity, and allow for victims of international terrorism to recover damages from those who have harmed them.
International terrorism affects the interstate and foreign commerce of the United States by harming international trade and market stability, and limiting international travel by United States citizens as well as foreign visitors to the United States.
Some foreign terrorist organizations, acting through affiliated groups or individuals, raise significant funds outside the United States for conduct directed and targeted at the United States.
Foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.
The imposition of
civil liability at every point along the causal chain of terrorism is necessary
to deter the flow of terrorism’s lifeblood, money. As recognized by Judge
Richard Posner in Boim v. Holy Land Foundation for Relief and Development, Nos.
05–1815, 05–1816, 05–1821, 05–1822, _ F.3d _ (7th Cir. 2008) (en banc),
Damages are a less effective remedy against terrorists and their
organizations than against their financial angels … suits against financiers of
terrorism can cut the terrorists’ lifeline. Moreover, the statute of
limitations for such claims must be extensive, for as the Seventh Circuit
Seed money for terrorism can sprout acts of violence long after
The reasoning like that of the United States Court of Appeals for the Second Circuit in In Re: Terrorists Attacks on September 11, 2001, 538 F.3d 71 (2d Cir. 2008) undermine important counter-terrorism policies of the United States, by affording undue protection from civil liability to persons, entities and states that provide material support or resources to foreign terrorist organizations, and by depriving victims of international terrorism of meaningful access to court to seek redress for their injuries.
The United Nations Security Council
declared in Resolution 1373, adopted on September 28, 2001, that all states
have an affirmative obligation to “refrain from providing any form of support,
active or passive, to entities or persons involved in terrorist acts,” and to
ensure that any person who participates in the financing, planning,
preparation or perpetration of terrorist acts or in supporting terrorist acts
is brought to justice.
Consistent with these declarations, no state possesses the discretion to engage knowingly in the financing or sponsorship of terrorism, whether directly or indirectly.
Persons, entities or states that knowingly or recklessly contribute material support or resources, directly or indirectly, to persons or organizations that pose a significant risk of committing acts of terrorism that threaten the security of United States nationals or the national security, foreign policy, or economy of the United States, necessarily direct their conduct at the United States, and should reasonably anticipate being haled into court in the United States to answer for such activities.
The United States has a vital interest in providing persons and entities injured as a result of terrorist attacks committed within the United States with full access to court to pursue civil claims against persons, entities, or states that have knowingly or recklessly provided material support or resources, directly or indirectly, to the persons or organizations responsible for their injuries.
The purpose of this Act is to provide civil litigants with the fullest possible basis, consistent with the Constitution, to seek relief against persons, entities and foreign states, wherever acting and wherever they may be found, which have provided material support or resources, directly or indirectly, to foreign organizations that engage in terrorist activities against the United States.
Foreign sovereign immunity
Section 1605(a) of title 28, United States Code, is amended—
by amending paragraph (5) to read as follows:
not otherwise encompassed in paragraph (2), in which money damages are sought against a foreign state arising out of physical injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment (regardless of where the underlying tortious act or omission occurs), including any statutory or common law tort claim arising out of an act of extrajudicial killing, aircraft sabotage, hostage taking, terrorism, or the provision of material support or resources for such an act, or any claim for contribution or indemnity relating to a claim arising out of such an act, except this paragraph shall not apply to—
any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function, regardless of whether the discretion is abused; or
any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, interference with contract rights, or any claim for emotional distress or derivative injury suffered as a result of an event or injury to another person that occurs outside of the United States; or
by inserting after subsection (d) the following:
For purposes of subsection (a)(5)—
hostage taking, and
material support or resources have the meanings given those
terms in section 1605A(h); and
international terrorism, and domestic terrorism, as those terms are defined in
section 2331 of title
The amendments made by subsection (a) shall apply to all proceedings pending in any form on the date of the enactment of this Act and to all proceedings commenced on or after such date of enactment.
Aiding and abetting liability for civil actions regarding terrorist acts
Section 2333 of title 18, United States Code, is amended by adding at the end the following:
In an action arising under subsection (a), liability may be asserted as to the person or persons who committed such act of international terrorism or any person or entity that aided, abetted, provided material support or resources (as defined in section 2339A(b)(1)) to, or conspired with the person or persons who committed such an act of international terrorism.
Non-Applicability of law of preclusion
Any civil action or claim that seeks recovery under this chapter for conduct that was the basis of a civil action or claim previously dismissed for lack of subject matter jurisdiction for failure to meet the requirements for an exception under section 1605(a) of title 28 is not subject to dismissal under the law of preclusion.
The amendment made by subsection (a) shall apply to all proceedings pending in any form on the date of the enactment of this Act and to all proceedings commenced on or after such date of enactment.
Effect on Foreign Sovereign Immunities Act
Nothing in the amendments made by this section affects a foreign state’s immunity from jurisdiction under other law.
Jurisdiction for civil actions regarding terrorist acts
Section 2334 of title 18, United States Code, is amended by inserting at the end the following:
The district courts shall have personal jurisdiction, to the maximum extent permissible under the Fifth Amendment of the United States Constitution, over any person who aids and abets an act of international terrorism or who provides material support or resources as set forth in sections 2339A, 2339B, or 2339C of this title, for acts of international terrorism in which any national of the United States suffers injury in his or her person, property or business by reason of such an act in violation of section 2333 of this title.
The amendment made by this section shall apply to all proceedings pending in any form on the date of the enactment of this Act and to all proceedings commenced on or after such the date of enactment.
Liability for Government officials in civil actions regarding terrorist acts
Section 2337 of title 18, United States Code, is amended to read as follows:
Suits against Government officials
No action shall be maintained under section 2333 of this title against the United States, an agency of the United States, or an officer or employee of the United States or any agency thereof acting within his or her official capacity or under color of legal authority.
The amendment made by this section shall apply to all proceedings pending in any form on the date of the enactment of this Act and to all proceedings commenced on or after such date of enactment.
Statute of limitations for civil actions regarding terrorist acts
Section 2335 of title 18, United States Code, is amended—
in subsection (a),
four years and inserting
in subsection (b),
four years and inserting
The amendments made by this section shall apply to all proceedings pending in any form on the date of the enactment of this Act and to all proceedings commenced on or after such date of enactment.
Effect on dismissed causes of action
Any private civil action arising from a violation of the Anti-Terrorism Act of 1991—
that was dismissed as time barred prior to the date of enactment of this Act, and
that would have been timely filed pursuant to section 2335 of title 18, United States Code, as amended by this section,
If any provision of this Act or the amendments made by this Act or the application thereof to any person or circumstance is held invalid, the remainder of this Act, the amendments made by this Act, or the application thereof to other persons not similarly situated or to other circumstances shall not be affected by such invalidation.