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110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-844

======================================================================



 
            JUSTICE FOR VICTIMS OF TORTURE AND TERRORISM ACT

                                _______
                                

 September 15, 2008.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

    Mr. Conyers, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 5167]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 5167) to amend the National Defense Authorization Act for 
Fiscal Year 2008 to remove the authority of the President to 
waive certain provisions, having considered the same, reports 
favorably thereon with amendments and recommends that the bill 
as amended do pass.

                                CONTENTS

                                                                   Page
The Amendments...................................................     1
Purpose and Summary..............................................     5
Background and Need for the Legislation..........................     5
Hearings.........................................................     9
Committee Consideration..........................................    10
Committee Votes..................................................    10
Committee Oversight Findings.....................................    10
New Budget Authority and Tax Expenditures........................    10
Congressional Budget Office Cost Estimate........................    10
Performance Goals and Objectives.................................    11
Constitutional Authority Statement...............................    11
Advisory on Earmarks.............................................    12
Section-by-Section Analysis......................................    12

                             The Amendments

  The amendments are as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Justice for Victims of Torture and 
Terrorism Act''.

SEC. 2. FINDINGS.

  The Congress finds the following:
          (1) During the Gulf War against Iraq in 1991, Americans 
        serving in the United States Armed Forces were captured, became 
        Prisoners of War (POWs), and were subsequently tortured, 
        beaten, starved, hooked to electrical shock devices, and 
        subjected to other horrendous acts by Saddam Hussein's regime.
          (2) CBS News reporter Bob Simon and cameraman Roberto Alvarez 
        were kidnapped while on assignment during the 1991 Gulf War and 
        were held and tortured, along with the American POWs.
          (3) Following the Iraqi invasion of Kuwait in August 1990, 
        many United States citizens were detained by Iraq, beaten, 
        subjected to cruel, inhumane and degrading treatment, confined 
        under deplorable conditions, and used as ``human shields'' for 
        the avowed purpose of preventing the United States and its 
        coalition allies from using military force to liberate Kuwait.
          (4) At the time these acts occurred, the Department of State 
        had classified Iraq as a state sponsor of terrorism.
          (5) The brave American POWs and American civilian hostages 
        have suffered long-term physical, emotional, and mental damage 
        as a result of this brutal, state-sponsored torture and 
        terrorism.
          (6) When the American POWs returned home after the Gulf War 
        ended, they were given a hero's welcome by then Secretary of 
        Defense Dick Cheney, who told them, ``Your country is opening 
        its arms to greet you''.
          (7) During the Gulf War, the Congress unanimously passed 
        resolutions condemning the brutal treatment by the Government 
        of Iraq of captured United States service members, demanding 
        that the Government of Iraq abide by the Geneva Convention 
        regarding the treatment of prisoners of war, and stating an 
        intention to hold Iraq accountable for the torture of American 
        POWs.
          (8) In 1996, Congress passed an amendment to the Foreign 
        Sovereign Immunities Act (FSIA) provisions of title 28, United 
        States Code, so that torture victims like the American POWs and 
        the American ``human shield'' victims from the Gulf War could 
        seek compensation for their injuries from terrorist countries, 
        including Iraq.
          (9) On April 4, 2002, 17 Gulf War POWs and their families 
        filed claims in the United States District Court for the 
        District of Columbia seeking compensation for damages related 
        to their torture and abuse by the Government of Iraq. The POWs 
        included Colonel Clifford Acree, USMC (Ret.); Lieutenant 
        Colonel Craig Berryman, USMC (Ret.); Former Staff Sergeant Troy 
        Dunlap, US Army; Colonel David Eberly, USAF (Ret.); Lieutenant 
        Colonel Jeffrey D. Fox, USAF (Ret.); Chief Warrant Officer 5 
        Guy Hunter, USMC (Ret.); Sergeant David Lockett, US Army; 
        Colonel H. Michael Roberts, USAF; Colonel Russell Sanborn, 
        USMC; Captain Lawrence Randolph Slade, USN (Ret.); Major Joseph 
        Small, USMC (Ret.); Staff Sergeant Daniel Stamaris, US Army 
        (Ret.); Lieutenant Colonel Richard Dale Storr, Air National 
        Guard; Lieutenant Colonel Robert Sweet, USAF; Lieutenant 
        Colonel Jeffrey Tice, USAF (Ret.); Former Lieutenant Robert 
        Wetzel, USN; and Former Commander Jeffrey Zaun, USN.
          (10) In 2003, after the Government of Iraq repeatedly refused 
        to participate in arbitration on the damage claims, and after 
        hearing evidence of how the former POWs had been repeatedly 
        tortured, a judge awarded them a judgment for damages, stating 
        that ``deterring torture of POWs should be of the highest 
        priority''.
          (11) Despite this ruling, the POWs and their families have 
        not received payment, and are unable to further pursue their 
        claims in United States courts because of the waiver that was 
        granted for Iraq by the President under authority established 
        in the National Defense Authorization Act for Fiscal Year 2008.
          (12) In December 2001, after conducting an evidentiary 
        hearing, the United States district court held, in Hill v. 
        Republic of Iraq, that Iraq was liable for having taken United 
        States citizens hostage following the Iraqi invasion of Kuwait 
        and subsequently awarded 180 of those former hostages and their 
        spouses a judgment for damages.
          (13) On March 20, 2003, on the eve of Operation Iraqi 
        Freedom, the President of the United States directed that all 
        of the judgments that had been awarded in Hill v. Republic of 
        Iraq be paid from moneys held in blocked Iraqi accounts.
          (14) On that same date, the President issued an Executive 
        order confiscating all remaining blocked assets of Iraq and 
        ordering them to be deposited into the United States Treasury 
        to be used for Iraq reconstruction.
          (15) The claims of more than 200 United States citizens who, 
        at the same time and in the same manner as the Hill plaintiffs, 
        were held hostage in territory occupied by Iraq are currently 
        pending in a United States district court in the case of Vine 
        v. Republic of Iraq.
          (16) The plaintiffs in Vine v. Republic of Iraq have not been 
        compensated and are unable to enforce any judgment they may 
        obtain in United States courts because of the waiver that was 
        granted for Iraq by the President under authority established 
        in the National Defense Authorization Act for Fiscal Year 2008.
          (17) Article 131 of the Third Geneva Convention relative to 
        the Treatment of Prisoners of War (August 12, 1949) prohibits 
        the United States as a party to that treaty from absolving the 
        Government of Iraq of any liability incurred due to the torture 
        of prisoners of war, such as the American POWs referred to in 
        this section.
          (18) The United States has a moral obligation to protect its 
        past, present, and future members of its Armed Forces, and all 
        United States citizens, from torture and hostage-taking, and 
        the Congress is committed to holding state sponsors of 
        terrorism accountable for such horrendous acts.

SEC. 3. RESOLUTION OF CERTAIN CLAIMS AGAINST IRAQ.

  (a) Resolution by Iraq of Certain Claims.--
          (1) In general.--Unless the President, before the end of the 
        90-day period beginning on the date described in paragraph 
        (2)(A), certifies to the Congress that the Government of Iraq 
        has adequately settled the claims in the cases referred to in 
        subsection (b), then, upon the expiration of that 90-day 
        period, the waiver authority granted to the President in 
        section 1083(d) of the National Defense Authorization Act for 
        Fiscal Year 2008 (Public Law 110-181; 122 Stat. 343), and any 
        waiver granted before the end of that 90-day period under such 
        authority, shall terminate.
          (2) Date described.--
                  (A) In general.--The date described in this paragraph 
                is--
                          (i) 30 days after the date of the enactment 
                        of this Act, unless the President has certified 
                        to the Congress, before the end of that 30-day 
                        period, that--
                                  (I) the Government of Iraq has not, 
                                before, on, or after the enactment of 
                                this Act, compensated any foreign 
                                persons or entities for claims or 
                                liabilities incurred by or under the 
                                control of the Saddam Hussein regime, 
                                including, but not limited to, 
                                commercial or financial claims, and 
                                claims for acts against individuals 
                                similar to those described in section 
                                1605A(a)(1) of title 28, United States 
                                Code; or
                                  (II) negotiations are ongoing with 
                                the Government of Iraq to settle the 
                                claims in the cases referred to in 
                                subsection (b), and the President 
                                believes that those negotiations are 
                                being conducted in good faith and could 
                                lead to a satisfactory settlement of 
                                those claims; or
                          (ii) if a certification is made under clause 
                        (i), the day after the date on which that 
                        certification terminates or, if a subsequent 
                        certification is in effect under subparagraph 
                        (B), the day after the date on which the last 
                        such certification terminates.
                  (B) Duration of certifications.--A certification 
                under subclause (I) or (II) of subparagraph (A)(i) 
                terminates 180 days after it is made. The President may 
                make subsequent certifications under subclause (I) or 
                (II) of subparagraph (A)(i) for periods of not more 
                than 180 days each.
  (b) Cases.--The cases referred to in subsection (a)(1) are cases 
numbered 99:00CV03346 (TPJ), 1:01CV02674 (HHK), CIV.A. 02-632 (RWR) 
(July 7, 2003), 1:03CV00691 (HHK), and 1:03CV00888 (HHK), in the United 
States District Court for the District of Columbia.
  (c) Adequate Settlement.--For purposes of subsection (a)(1), adequate 
settlement means payment by the Government of Iraq of, or an 
unqualified and unconditional guarantee made by a United States 
depository institution to pay within 30 days after the end of the 90-
day period described in subsection (a)(1), at least the following 
amounts to the following persons:
          (1) To any person--
                  (A) whose claim in the applicable case referred to in 
                subsection (b) arose from an act of hostage taking or 
                from being held in hostage status, and
                  (B) who has not obtained a judgment on the claim 
                before the date of the enactment of this Act,
        $150,000, plus $6,000 for each day the person was held as a 
        hostage, but in no event more than $900,000.
          (2) To any person--
                  (A) whose claim in the applicable case referred to in 
                subsection (b) arose from an act of hostage taking or 
                from being held in hostage status,
                  (B) who, while a hostage, was subjected to torture, 
                and
                  (C) who has not obtained a judgment on the claim 
                before the date of the enactment of this Act,
        $2,500,000, plus $6,000 for each day the person was held as a 
        hostage.
          (3) To a plaintiff in the applicable case referred to in 
        subsection (b) who is the spouse or child of any person who 
        qualifies for receipt of payment under paragraph (1) or (2), 
        one third of the amount that such person qualifies for receipt 
        under such paragraph.
          (4) To any person who, before the date of the enactment of 
        this Act, obtained a judgment for compensatory damages in a 
        case referred to in subsection (b) (regardless of whether such 
        judgment was subsequently vacated)--
                  (A) payment of the unsatisfied amount of such 
                judgment, in an amount that is the lesser of $1,000,000 
                or the unsatisfied amount of the award; and
                  (B) if the amount of the judgment exceeds $1,000,000, 
                one third of the unsatisfied amount of such excess.
  (d) Additional Condition in Case of Guarantee of Payment.--If the 
claims in the cases referred to in subsection (b) are adequately 
settled for purposes of subsection (a)(1) because of a guarantee of 
payment by a depository institution within the 30-day period specified 
in subsection (c), and such payment is not made within that 30-day 
period, then upon the expiration of that 30-day period, the waiver 
authority described in subsection (a)(1), and any waiver granted before 
the end of that 30-day period under such authority, shall terminate.
  (e) Definitions.--In this section:
          (1) Foreign person or entity.--The term ``foreign person or 
        entity'' means--
                  (A) an individual other than a national of the United 
                States; and
                  (B) a person or entity, other than an individual, 
                that is organized under the laws of a country other 
                than the United States.
          (2) Hostage.--The term ``hostage'' means an individual in 
        hostage status or an individual seized or detained in the 
        commission of an act of hostage taking.
          (3) Hostage status.--The term ``hostage status'' has the 
        meaning given that term in section 599C(d)(1) of the Foreign 
        Operations, Export Financing, and Related Programs 
        Appropriations Act, 1991 (Public Law 101-513).
          (4) Hostage taking.--The term ``hostage taking'' has the 
        meaning given that term in section 1605A(h)(2) of title 28, 
        United States Code.
          (5) National of the united states.--The term ``national of 
        the United States'' has the meaning given that term in section 
        1605A(h)(5) of title 28, United States Code.
          (6) Torture.--The term ``torture'' has the meaning given that 
        term in section 3 of the Torture Victim Protection Act of 1991 
        (28 U.S.C. 1350 note).
          (7) United states.--The term ``United States'' means the 
        several States, the District of Columbia, and any commonwealth, 
        territory, or possession of the United States.
          (8) United states depository institution.--The term ``United 
        States depository institution'' means a depository institution 
        organized under the laws of any State, the District of 
        Columbia, or the United States, including a branch or agency of 
        a foreign depository institution.

SEC. 4. LIMITATION ON CERTAIN CLAIMS.

  No funds of the United States Government may be used to pay any 
claim--
          (1) that is cognizable under section 1605A of title 28, 
        United States Code, as added by section 1083 of the National 
        Defense Authorization Act for Fiscal Year 2008, for money 
        damages against Iraq for personal injury or death that was 
        caused by acts committed by an official, officer, or employee 
        of the Iraqi Government under Saddam Hussein; and
          (2) with respect to which the waiver authority under section 
        1083(d) of the National Defense Authorization Act for Fiscal 
        Year 2008 has been or may be exercised.

  Amend the title so as to read:

      A bill to terminate the authority of the President to 
waive, with regard to Iraq, certain provisions under the 
National Defense Authorization Act for Fiscal Year 2008 unless 
certain conditions are met.

                          Purpose and Summary

    H.R. 5167, the ``Justice for Victims of Torture and 
Terrorism Act,'' would enable American POWs and civilians to 
hold the Government of Iraq liable for the physical and 
emotional injuries they sustained while held captive by Iraqi 
officials during the Gulf War. Unlike previous legislative 
proposals to compensate these victims, this bill would allow 
them to recover only a portion of the judgments rendered or 
claims made.

                Background and Need for the Legislation

                          THE AMERICAN VICTIMS

    This legislation addresses two groups of Americans who 
suffered at the hands of the Government of Iraq during the 1991 
Gulf War, when it was a designated foreign state sponsor of 
terrorism.
    The first is a group of 17 prisoners of war (POWs) who were 
part of the international coalition led by the U.S. which 
initiated military action against Iraq on January 16, 1991, 
after Iraq attacked and occupied Kuwait. All but one of these 
POWs were pilots in aircraft downed over Iraq or Kuwait.
    Believing these POWs to be in possession of sensitive 
military information, the Iraqi government targeted them for 
particularly brutal treatment. They were beaten, threatened 
with castration and dismemberment, subjected to mock 
executions, and shocked with electrical devices. They were also 
starved, denied sleep, and exposed to extreme temperatures. 
They were denied medical care, intentionally further 
aggravating serious physical injuries that included broken 
bones, perforated eardrums, nerve damage, infections, nausea, 
and severe weight loss. The POWs and 37 of their immediate 
family members are plaintiffs in Acree v. Republic of Iraq.\1\
---------------------------------------------------------------------------
    \1\ Acree v. Republic of Iraq, 276 F. Supp. 2d 95 (D.D.C. 2003).
---------------------------------------------------------------------------
    The second group comprises 237 civilians who were working 
in Iraq and Kuwait during the period leading up to the Gulf 
War. Shortly after Iraqi armed forces invaded Kuwait on August 
2, 1990, Saddam Hussein issued a directive prohibiting foreign 
nationals from leaving the region. On August 19, 1990, 
President George H.W. Bush declared all U.S. citizens in Kuwait 
and Iraq to be hostages, held by Saddam as ``human shields'' to 
make it more difficult for the U.S. and its allies to push back 
Iraq and liberate Kuwait.
    These hostages were held in ``harsh, cruel, degrading, and 
often terrorizing'' conditions.\2\ They ``lived in constant 
fear for their lives and suffered from fatigue, depression, 
severe anxiety and stress.'' \3\ Some were also subjected to 
more severe forms of physical torture. They were eventually 
released by Hussein in December 1990. They are plaintiffs in 
Vine v. Republic of Iraq \4\ and Hill v. Republic of Iraq.\5\
---------------------------------------------------------------------------
    \2\ Vine v. Republic of Iraq, 459 F. Supp. 2d 10 (2006).
    \3\ Id.
    \4\ Id.
    \5\ Hill v. Republic of Iraq, 2003 U.S. Dist. LEXIS 3725 (D.D.C. 
2003).
---------------------------------------------------------------------------

                  THE FOREIGN SOVEREIGN IMMUNITIES ACT

    Under international law, sovereign nations have generally 
been immune from liability in the courts of other nations, in 
recognition of the independence of each nation. As the level of 
international interactions has increased, the principle of 
absolute sovereign immunity has been gradually modified. This 
evolving principle is reflected in the Foreign Sovereign 
Immunities Act of 1978 (``FSIA''), P.L. 94-538, which provides 
that a foreign state is immune from the jurisdiction of U.S. 
courts, with specified exceptions.
    The Anti-Terrorism and Effective Death Penalty Act of 1996 
added an exception to allow U.S. victims of a terrorist act 
such as torture, extrajudicial killing, or hostage taking to 
bring civil suit against a foreign state responsible for the 
act, if the foreign state is designated as a state sponsor of 
terrorism by the State Department at the time the act occurred, 
or is later so designated because of the act.\6\ It also 
allowed the commercial property of a foreign state in the U.S. 
to be attached in satisfaction of a judgment, regardless of 
whether the property was involved in the act on which the claim 
was based.\7\
---------------------------------------------------------------------------
    \6\ P.L. 104-132, Title II, Sec. 221 (April 23, 1996); 110 Stat. 
1241; 28 U.S.C. Sec. 1605(a)(7).
    \7\ 28 U.S. C. 1610(b)(2).
---------------------------------------------------------------------------
    In 1998, after a court held that the exception to sovereign 
immunity did not in and of itself create a private right of 
action,\8\ Congress passed the ``Flatow Amendment'' to clarify 
that a cause of action existed against the officials, 
employees, and agents of foreign states who commit the 
terrorist act ``while acting within the scope of'' their 
employment if a U.S. government official would be liable for 
similar actions.\9\ Section 201 of the Terrorism Risk Insurance 
Act, enacted in 2002,\10\ reaffirmed that, and broadened the 
circumstances under which, frozen assets of terrorist states 
are available to judgment holders for compensatory damages.
---------------------------------------------------------------------------
    \8\ Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 
1998).
    \9\ P.L. 104-208, Title I, Sec. 101(c) (Sept. 30, 1996), 110 Stat. 
3009-172; codified at 28 U.S.C. Sec. 1605 note.
    \10\ P.L. 107-297 (November 26, 2002), 116 Stat. 2322.
---------------------------------------------------------------------------
    Courts initially interpreted the Flatow Amendment as 
creating a cause of action against a foreign state, as well as 
against its agencies and instrumentalities, despite the fact 
that the statute referred only to officials, employees, and 
agents of foreign states. In 2004, however, the D.C. Circuit 
held that neither the terrorism exception to FSIA nor the 
Flatow Amendment created a private right of action against the 
foreign state or its agencies and instrumentalities.
    In response, victims have turned to U.S. State laws, 
obtaining judgments totaling almost $18 billion in damages, 
most of them against Iraq. Victims have had difficulty 
enforcing these judgments, however, due to the scarcity of 
assets in the U.S. belonging to the foreign state defendants, 
and by Executive Branch actions immunizing these assets from 
attachment.
    While Congress has supported giving terrorism victims the 
right to obtain relief and to enforce judgments, the Executive 
Branch has been less supportive. Both the Clinton and Bush 
Administrations have opposed allowing the use of frozen assets 
of foreign states to satisfy judgments, variously citing treaty 
obligations to protect foreign diplomatic and consular 
properties, a desire to maintain the frozen assets for 
diplomatic leverage, and the fear that allowing the attachment 
of frozen assets would subject U.S. assets in foreign states to 
similar treatment.

    ACTIONS BY PRESIDENT BUSH IN 2003 TO EXEMPT IRAQ FROM JUDGMENTS

    In conjunction with the 2003 war against Iraq, President 
Bush took a series of actions that, in combination, had the 
effect of making Iraq's assets in the U.S. unavailable to 
terrorism victims who, after March 20, 2003, obtained 
terrorism-related judgments against Iraq.
    On March 20, 2003, as the war began, President Bush issued 
an executive order placing those assets--then totaling 
approximately $1.73 billion--which had previously been frozen, 
into a dedicated Development Fund for Iraq, to be used in the 
post-war reconstruction of Iraq.\11\
---------------------------------------------------------------------------
    \11\ E.O. 13290, 68 Fed. Reg. 14,305-08 (March 24, 2003). Assets 
that had previously been ordered attached in satisfaction of judgments 
against Iraq were excluded from the Executive Order, as was Iraq's 
diplomatic and consular property.
---------------------------------------------------------------------------
    Six weeks later, on May 7, he declared, based on general 
authority Congress had recently granted him to exempt Iraq from 
laws governing terrorist-supporting states,\12\ that neither 
the terrorism exception to FSIA nor section 201 of the 
Terrorism Risk Insurance Act would apply to Iraq.\13\
---------------------------------------------------------------------------
    \12\ Emergency Wartime Supplemental Appropriations Act for FY2003, 
P.L. 108-11, Sec. 1503 (April 16, 2003).
    \13\ Memorandum for the Secretary of State (Presidential 
Determination No. 2003-23) (May 7, 2003), 68 Fed. Reg. 26459 (May 7, 
2003).
---------------------------------------------------------------------------
    Two weeks later, on May 22, he issued another executive 
order, prohibiting attachment of any assets in the Development 
Fund for Iraq.\14\
---------------------------------------------------------------------------
    \14\ E.O. 13303, 68 Fed. Reg. 31, 931 (May 28, 2003).
---------------------------------------------------------------------------

      EFFECT OF 2003 PRESIDENTIAL ACTIONS ON LAWSUITS AGAINST IRAQ

    The POW and human shield victims have brought the following 
Federal lawsuits:
    Acree v. Republic of Iraq (POWs): The 17 Gulf War POWs--
many of whom had returned to active duty following their 
release from captivity--and their immediate families filed suit 
in April 2002. They obtained a default judgment in July 2003. 
The district court awarded them and their families $653 million 
in compensatory damages and $306 million in punitive damages. 
The Department of Justice then sought to intervene in the case, 
arguing that Iraq's sovereign immunity had been restored by 
presidential determination pursuant to authority granted by 
Congress.
    The district court denied the Government's motion to 
intervene, but ruled that the presidential determination 
precluded the plaintiffs from enforcing their judgment against 
the $1.73 billion in frozen Iraqi assets that had been 
confiscated pursuant to the President's March 2003 executive 
order.\15\ The court of appeals later vacated the default 
judgment, holding that the plaintiffs had failed to state a 
cause of action against Iraq. Although the terrorism exception 
to the FSIA, combined with the Flatow Amendment, created a 
private right of action against officials, employees, and 
agents of a foreign government for their private conduct, the 
court held, it did not create a cause of action against the 
foreign government itself, including its agencies and 
instrumentalities in their official capacity.
---------------------------------------------------------------------------
    \15\ E.O. 13290, 68 Fed. Reg. 14,305-08 (March 24, 2003).
---------------------------------------------------------------------------
    In 2005, plaintiffs filed a Rule 60(b) motion asking the 
court to consider further argument regarding the causes of 
action that plaintiffs had pled under State law but were not 
considered in the court's previous ruling. The court denied the 
motion in July 2008. Plaintiffs have filed a notice of appeal, 
and the case remains pending.
    Hill v. Republic of Iraq (human shields): This Federal case 
was filed in December 1999 by 180 U.S. civilians who had been 
held by the Iraqi government as human shields after the 
invasion of Kuwait in 1990. In December 2001, they obtained a 
default judgment and were awarded more than $94 million in 
compensatory damages. They received full payment. In March 
2004, 24 of them obtained increases in their judgments to 
reflect lost property. These 24 now seek payment of the 
remainder of their judgments, totaling approximately $70 
million.
    Vine v. Republic of Iraq (human shields): This case 
involves 237 human shields and their families who were unable 
to join the Hill case for technical reasons. They filed suit in 
December 2001. Although their claims are identical to those of 
the Hill plaintiffs, they have not been awarded a judgment in 
their favor because the 2003 presidential order--issued after 
the Hill ruling--blocked their case. The case has been 
temporarily suspended.
    Simon v. Republic of Iraq (human shields): This case 
involves CBS News reporter Bob Simon and CBS cameraman Roberto 
Alvarez, who were kidnapped in January 1991, while on 
assignment during the Gulf War and held and tortured along with 
the U.S. POWs in Acree. They were released in March 1991. Their 
case was filed in March 2003. The district court, stating that 
the statute of limitations had run, dismissed the case. The 
court of appeals reversed the dismissal, stating that the claim 
was timely. The appellate court also rejected Iraq's argument 
that the President had the authority to waive all claims 
against Iraq, thereby removing U.S. courts' jurisdiction over 
pending claims, under the FY08 NDAA. Iraq is now seeking 
Supreme Court review.
    Seyam v. Republic of Iraq (human shield): This case 
involves Nabil Seyam, a U.S. national who was working as a 
safety engineer for the Kuwait Metal Pipe Industries Company 
prior to the Gulf War. After hiding from Iraqi forces for 2 
months, he was taken hostage and tortured by Iraqi soldiers 
before being released in October 1990. Mr. Seyam filed suit in 
April 2003. He was killed in a car accident in 2006, and his 
estate is pursuing his case. The district court consolidated 
the Seyam case with the Simon case. It was therefore dismissed 
along with Simon, on the same grounds that the statute of 
limitations had run. The appellate court then reversed the 
dismissal. Iraq has moved for a stay pending Supreme Court 
review in Simon.

      SECTION 1083 OF THE FY08 NATIONAL DEFENSE AUTHORIZATION ACT

    Section 1083 of the FY2008 National Defense Authorization 
Act (``FY08 NDAA''), P.L. 110-181, amends the Foreign Sovereign 
Immunities Act of 1978 to enable victims whose claims were 
dismissed for lack of a Federal cause of action to re-file 
their claims under new 28 U.S.C. Sec. 1605A, a new FSIA 
terrorism exception and explicit cause of action against 
terrorist states. Section 1083 also facilitates victims' 
efforts to enforce judgments by attaching a defendant state's 
assets.
    Section 1083 also states, in subsection (c)(4), that the 
general authority Congress conferred on the President in 2003 
has never authorized, directly or indirectly, making any 
provision of FSIA inapplicable to Iraq or removing U.S. court 
jurisdiction.
    President Bush vetoed the FY08 NDAA, solely on the basis of 
section 1083. Asserting that the section as originally drafted 
would jeopardize Iraq's economic development and security, he 
insisted that it be rewritten to give him authority to waive it 
with respect to Iraq, retroactively as to all pending cases, if 
he determined that a waiver would serve the United States' 
national security interest, promote U.S.-Iraq relations, and 
facilitate reconstruction and political development in Iraq, 
and that Iraq continued to be a reliable ally and partner in 
combating terrorism. Congress passed the revised version of the 
FY08 NDAA, and the President signed it into law January 28, 
2008,\16\ exercising his waiver authority that very day.\17\
---------------------------------------------------------------------------
    \16\ P.L. 110-181, Sec. 1083(d).
    \17\ White House Memorandum of Justification for Waiver of Section 
1083 of the National Defense Authorization Act (January 28, 2008), 
available at [http://www.whitehouse.gov/ news/releases/2008/01/
20080128-12.html].
---------------------------------------------------------------------------

               EFFECT OF PRESIDENTIAL WAIVER ON LAWSUITS

    The 2008 waiver effectively bars the refiling of the Acree 
lawsuit and, therefore, any relief for the POWs and their 
families. The other pending suits against Iraq would all appear 
to be subject to dismissal as a result of the waiver.
    Anticipating the detrimental impact a waiver would have on 
pending suits, Congress inserted a provision in Section 1083 
urging the President to work with the Iraqi government to help 
the American victims of Iraqi terrorism during the Gulf War 
obtain relief for the emotional and physical injuries they 
sustained. To date, the President has not indicated to Congress 
that any efforts have been made to do so.

                               H.R. 5167

    Representatives Bruce Braley (D-IA)and Joe Sestak (D-PA) 
responded to the veto and revision of section 1083 by 
introducing legislation to facilitate the settlement of the 
claims against Iraq. Under the legislation, developed in close 
consultation with the victims, the POWs would agree to forego 
punitive damages and two-thirds of the compensatory damages 
awarded, and the human shields to forego all punitive damages. 
Iraq would be required to pay approximately $415 million.
    The amount of recovery sought is de minimus relative to the 
$20-$32 billion in commercial claims that Iraq has reportedly 
settled with Mitsubishi of Japan and Hyundai of Korea. It 
amounts to perhaps 1 percent of the Iraqi government assets 
held in U.S. banks.

                                Hearings

    The Committee on the Judiciary held an oversight hearing on 
``Ensuring Legal Redress for American Victims of State-
Sponsored Terrorism'' on June 17, 2008. Testimony was received 
from the Honorable Bruce Braley; the Honorable Joe Sestak; John 
Norton Moore, co-counsel, Acree v. Republic of Iraq; Larry 
Slade, plaintiff, Acree v. Republic of Iraq; Daniel Wolf, 
counsel, Vine v. Republic of Iraq; and George Charchalis, 
plaintiff, Vine v. Republic of Iraq. The Departments of State 
and Justice were invited, but declined to appear. The purpose 
of the hearing was to examine the nature of the harms 
underlying the claims pending against Iraq by the U.S. 
prisoners of war and civilians, and the proposal by Rep. Braley 
and Rep. Sestak to facilitate the settlement of those claims.

                        Committee Consideration

    On July 30, 2008, the full Committee met in open session 
and ordered the bill H.R. 5167 favorably reported, with an 
amendment, by voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that there 
were no recorded votes during the Committee's consideration of 
H.R. 5167.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill H.R. 5167, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, September 9, 2008.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 5167, the Justice 
for Victims of Torture and Terrorism Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Sunita 
D'Monte, who can be reached at 226-2840.
            Sincerely,
                                           Peter R. Orszag,
                                                  Director.

Enclosure

cc:
        Honorable Lamar S. Smith.
        Ranking Member
H.R. 5167--Justice for Victims of Torture and Terrorism Act.
    H.R. 5167 would, under certain conditions, rescind the 
President's authority to exempt Iraq from the jurisdiction of 
U.S. courts in cases related to acts of terrorism, hostage-
taking, or torture. CBO estimates that enacting H.R. 5167 would 
have no significant effects on the Federal budget.
    Most foreign states that have been designated as state 
sponsors of terrorism have no immunity from the jurisdiction of 
U.S. courts in cases filed by U.S. nationals, members of the 
armed forces, or Federal employees seeking compensation for 
state-sponsored acts of terrorism, hostage-taking, or torture. 
However, the President is authorized to provide such immunity 
to Iraq on the basis of national security.
    Unless the President certifies that Iraq has adequately 
settled, or is making good-faith negotiations to settle, claims 
against it from pending court cases, H.R. 5167 would rescind 
that authority, thereby permitting the administrative expenses 
of special masters appointed for claims against Iraq to be paid 
from the Crime Victims fund. We estimate that direct spending, 
if any, from the fund would be insignificant because of the 
small number of cases likely to be affected.
    H.R. 5167 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contacts for this estimate are Sunita 
D'Monte, who can be reached at 226-2840, and Mark Grabowicz, 
who can be reached at 226-2860. This estimate was approved by 
Theresa Gullo, Deputy Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states, pursuant to clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives, that H.R. 
5167 is intended to ensure fair redress to the American POWs 
and civilians who were brutalized at the hands of the Iraqi 
government during the Gulf War.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article 1, section 8 of the Constitution.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 5167 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.

                      Section-by-Section Analysis

    Sec. 1. Short title. This section sets forth the short 
title of the bill as the ``Justice for Victims of Torture and 
Terrorism Act.''
    Sec. 2. Findings. This section contains findings related to 
the history of this issue.
    Sec. 3. Resolution of Certain Claims Against Iraq.
    Section 3(a). Resolution by Iraq of Certain Claims. This 
subsection provides for the termination of the presidential 
waiver authority granted in section 1083 of the FY08 NDAA 
unless the President certifies to Congress that Iraq has 
``adequately settled'' the cases listed in section 3(b) before 
the expiration of the 90-day period beginning 30 days after the 
bill's enactment, unless the President certifies to Congress, 
before the end of that 30-day period, that:

         Lthe Government of Iraq has not settled 
        foreign commercial debts or claims by foreign persons 
        or entities similar to the claims brought in those 
        cases;

         Lthere are ongoing good-faith negotiations 
        with the Government of Iraq to settle the claims 
        brought in those cases.

    Certifications made under subsection (a) terminate after 
180 days, but can be renewed for additional 180-day periods.
    Section 3(b). Cases. This subsection provides that the 
cases referenced in Sec. 3(a) are the Acree, Hill, Vine, Simon, 
Alvarez, and Seyam cases.
    Section 3(c). Adequate Settlement. This subsection defines 
``adequate settlement'' as payment by Iraq, or an unconditional 
guarantee made by a U.S. depository institution to make payment 
from Iraqi funds within 30 days after the end of the 90-day 
period described in subsection (a), to specified classes of 
victims under specified terms:

         Lto any person who was held hostage but not 
        subjected to torture, and who has not obtained a 
        judgment on the claim, $150,000 plus $6,000 for each 
        day held as a hostage, but not to exceed a total of 
        $900,000.

         Lto any person who was held hostage and 
        subjected to torture, and who has not obtained a 
        judgment on the claim, at least $2,500,000 plus $6,000 
        per day for each day held as a hostage.

         Lto a spouse or child of any person who 
        qualifies for compensation above, one-third of the 
        amount which the person who so qualifies is entitled to 
        receive.

         Lto any person who obtained a judgment for 
        compensatory damages in one of the aforementioned cases 
        (regardless of whether It was later vacated), the 
        unsatisfied amount of that judgment up to $1,000,000, 
        plus one-third of any unsatisfied amount in excess of 
        $1,000,000.

    Sec. 3(d). Additional Condition in Case of Guarantee of 
Payment. This subsection provides that if claims in the 
specified cases are settled by guarantee of payment by a U.S. 
depository institution to pay within 30 days, and the payment 
is not actually made within that period, the presidential 
waiver authority granted in the FY08 NDAA will terminate.
    Sec. 3(e). Definitions. This section contains definitions 
of ``foreign person or entity,'' ``hostage,'' ``hostage 
status,'' ``hostage taking,'' ``torture,'' ``United States,'' 
and ``United States Depository Institution.''
    Sec. 4. Limitation on Certain Claims. This section 
prohibits any funds belonging to the United States Government 
from being used to pay any claim covered under this Act.