[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
ENSURING LEGAL REDRESS FOR AMERICAN VICTIMS OF STATE-SPONSORED
TERRORISM
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JUNE 17, 2008
__________
Serial No. 110-144
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
C O N T E N T S
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JUNE 17, 2008
Page
OPENING STATEMENT
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Member, Committee on the Judiciary..... 1
The Honorable Daniel E. Lungren, a Representative in Congress
from the State of California, and Member, Committee on the
Judiciary...................................................... 2
WITNESSES
The Honorable Bruce L. Braley, a Representative in Congress from
the State of Iowa
Oral Testimony................................................. 4
Prepared Statement............................................. 6
The Honorable Joe Sestak, a Representative in Congress from the
State of Pennsylvania
Oral Testimony................................................. 8
Prepared Statement............................................. 9
Ambassador John Norton Moore, Co-Counsel, Acree v. Republic of
Iraq
Oral Testimony................................................. 13
Prepared Statement............................................. 16
Captain Larry Slade, USN (Ret.), Plaintiff in Acree v. Republic
of Iraq
Oral Testimony................................................. 25
Prepared Statement............................................. 27
Mr. Daniel Wolf, Counsel, Vine v. Republic of Iraq
Oral Testimony................................................. 31
Prepared Statement............................................. 32
Mr. George Charchalis, Plaintiff in Vine v. Republic of Iraq
Oral Testimony................................................. 34
Prepared Statement............................................. 36
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Darrell Issa, a
Representative in Congress from the State of California, and
Member, Committee on the Judiciary............................. 12
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 57
ENSURING LEGAL REDRESS FOR AMERICAN VICTIMS OF STATE-SPONSORED
TERRORISM
----------
TUESDAY, JUNE 17, 2008
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:06 p.m., in
room 2141, Rayburn House Office Building, the Honorable Steve
Cohen presiding.
Present: Representatives Scott, Cohen, Lungren, Issa, King
and Gohmert.
Staff Present: Diana Oo, Majority Counsel; and Paul B.
Taylor, Minority Counsel.
Mr. Cohen. I call the Committee to order. Good morning. As
Chairman Conyers is unable to be here, he has asked me to Chair
this hearing in his stead.
We are here today to consider how to ensure fair redress to
the American POWs and civilians who were brutalized at the
hands of the Iraqi Government during the Gulf War. The soldiers
were starved, denied sleep, exposed to extreme temperatures,
then severely beaten, threatened with castration and
dismemberment and subjected to mock executions. As a result,
they have sustained lasting physical and emotional injuries.
The civilians, Americans who had the misfortune to be in
Iraq at the time it invaded Kuwait, were taken captive and held
as human shields, put directly in harm's way in an attempt to
make it harder for the United States and its allies to use
military force against Iraq. The long-standing efforts of these
Americans to hold Iraq responsible in U.S. courts for this
ordeal has unfortunately, thus far, not been appropriately
supported by our own government. Some of us are hoping that
that is now about to change.
When Congress passed the 1996 amendment to the Foreign
Sovereign Immunities Act, it intended to create a Federal
statutory cause of action that would allow American victims of
terrorism to hold foreign states to that commitment or provide
material support for terrorist acts accountable in U.S. courts.
Repeated efforts by this Administration to persuade the courts
to disregard congressional intent compelled Congress to add
section 1083 to the fiscal year 2008 National Defense
Authorization Act. That provision reaffirms the right of an
American victim to sue a foreign state sponsoring terrorism in
a U.S. court for, quote, ``personal injury or death that was
caused by an act of torture, extrajudicial killing or hostage
taking,'' unquote.
President Bush, however, vetoed that bill, based solely on
that provision, asserting that Iraq must be shielded from
liability in order to protect Iraqi reconstruction efforts;
shielded, that is, from liability to the American soldiers who
were brutally tortured as POWs and shielded from liability to
the innocent civilians who were used as defensive pawns.
Congress was forced to repass the defense reauthorization
bill with a provision permitting the President to waive the new
provision as to Iraq. The President exercised that waiver
within months of signing the bill into law.
Under well settled international law, a successor regime
remains liable to the bad acts of its predecessor. Furthermore,
under the Geneva Convention, no nation may absolve another from
liability for torturing POWs.
The President has not satisfactorily explained why these
fundamental principles should be disregarded here. Nor has he
satisfactorily explained why all of Iraq's assets must be
shielded, even while it is reaping billions upon billions of
dollars from its oil fields and it is readily paying off prewar
commercial debts to foreign corporations totaling $5.4 billion.
It would have been helpful to hear from someone in the
Administration today, but the Departments of State, Justice and
Treasury all declined the Committee's invitation to testify on
this matter. Nonetheless, I look forward to having an
insightful discussion, which I hope will illuminate the reasons
we must help these innocent Americans obtain justice.
Coupled with the new waiver authority we gave the
President, we also expressed the sense of the Congress that he
should work with Iraq to get fair compensation to these
victims. That provision is nonbinding, but we maintain hope
that the President will take up our invitation, and perhaps
today we will discuss possible ways to further encourage him in
that direction.
I should caveat that my remarks are those also of Chairman
Conyers.
Now we have two Members. But before we recognize them, I
want to recognize the Ranking minority Member, the Honorable
Dan Lungren of California, for an opening statement.
Mr. Lungren. I thank the Chairman, and I appreciate being
the Ranking Member today. So thank you very much, Mr. Chairman.
In 1996, as you said, Congress amended the Foreign
Sovereign Immunities Act to allow U.S. victims of terrorism to
sue designated state sponsors of terrorism for their terrorist
acts. The courts have handed down large judgments against the
terrorist state defendants generally in default, and successive
Administrations have intervened to block the judicial
attachment of frozen assets to satisfy judgments.
In 2001, Congress directed President Bush to submit no
later than the time he submitted the proposed budget for fiscal
year 2003 a legislative proposal to establish a comprehensive
program to ensure fair, equitable and prompt compensation for
all United States victims of international terrorism or
relatives of deceased United States victims of international
terrorism that occurred or occurs on or after November 1, 1979.
As explained in the conference report for that legislation, and
I quote, ``Objections from all quarters have been repeatedly
raised against the current ad hoc approach to compensation for
victims of international terrorism. It is imperative that the
Secretary of State in coordination with the Departments of
Justice and Treasury and the other relevant agencies develop a
legislative proposal that will provide fair and prompt
compensation to all U.S. victims of international terrorism.''
However, as has been stated, no such plan was put forward.
In this Congress, a rider to the National Defense
Authorization Act for fiscal year 2008 provided a Federal cause
of action against terrorist states and to facilitate
enforcement of judgments. After the President vetoed the bill
based on the possible impact the measure would have on Iraq,
Congress passed this new version, H.R. 4986, authorizing the
President to waive its provisions with respect to Iraq. Again,
the President signed the bill into law and promptly issued a
waiver with respect to Iraq.
The exercise of the waiver with respect to Iraq will likely
prevent POWs from the first Gulf War from reopening their
claims. On the day the President signed the waiver, he issued a
statement justifying the exercise of the waiver authority,
stating that without a waiver, the provisions would have a
potentially devastating impact on Iraq's ability to use Iraqi
funds to expand and equip the Iraqi security forces, which
would have serious implications for U.S. troops in the field,
acting as part of the Multinational Force-Iraq and would harm
antiterrorism and counterinsurgency efforts.
The President also stated that if applied to Iraq, the
provision would redirect financial resources from the continued
reconstruction of Iraq and would harm Iraq's stability contrary
to the interest of the United States.
In light of the waiver's likely effects on pending cases,
Congress included the following sense of Congress in the
provisions creating a private cause of action, quote, ``The
President acting through the Secretary of State should work
with the Government of Iraq on a state-to-state basis to ensure
compensation for any meritorious claims based on terrorist acts
committed by the Saddam Hussein regime against individuals who
were United States nationals or members of the United States
Armed Forces at the time of those terrorist acts.'' And those
claims cannot be addressed in the United States due to the
exercise of the waiver authority.
So I look forward to this hearing about the progress of
those efforts and support efforts to help provide redress for
victims of torture by foreign states in the past. But I remain
mindful of executive branch concerns regarding how similar
proposals might unduly restrict the ability of the President to
negotiate and exercise leverage over foreign states to achieve
redress outside the courts.
These are difficult issues; especially difficult are
proposals that contemplate using U.S. taxpayer dollars to pay
for damages caused by terrorists. As the Congressional Research
Services pointed out, the use of U.S. funds to pay portions of
some judgments has drawn criticism. Calls for more effective
and fair means to compensate victims of terrorism have not
yielded an alternative mechanism.
It is our hope that this hearing and consideration of the
various bills before this Committee might reach some conclusion
to this problem. So I hope this hearing today will come closer
to finding such, a fair and effective means of compensation,
and I thank the Chairman for the time.
Mr. Cohen. Thank you.
Does anyone else want to make an opening statement? If not,
without objection, other Members' opening statements will be
included in the record.
This hearing will consist of two panels. First, we will
hear from two of our house colleagues, Bruce Braley of Iowa and
Joe Sestak of Pennsylvania.
Bruce Braley was elected to Congress in 2006. Previously he
worked as an attorney, holding corporations accountable to
their employees and consumers. He serves on the Committee on
Transportation and Infrastructure and on Oversight and
Government Reform. As the son of a World War II veteran who
fought at Iwo Jima, he has been a passionate advocate of the
POWs.
Joe Sestak was also elected to Congress in 2006, a rather
splendid year. He spent 31 years serving our Nation in the U.S.
Navy, rising to the rank of three-star admiral. Congressman
Sestak serves on the Armed Services, Education and Labor and
Small Business Committees.
Mr. Braley, please begin.
TESTIMONY OF THE HONORABLE BRUCE L. BRALEY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF IOWA
Mr. Braley. Thank you, Mr. Chairman, Ranking Member
Lungren. It is my honor to be here today with my good friend,
Joe Sestak, who certainly brings a lot more professional
expertise to this issue than I do.
I was at home with my family on Christmas Eve when I heard
the surprising news that the President had vetoed the Defense
Authorization bill of 2008. I was then shocked to learn that
the reason he vetoed that bill was because it did provide a
mechanism to allow tortured POWs from the first Gulf War to
receive compensation that had long been denied them.
I was outraged, and I immediately contacted my staff
because I wanted to do something about it. And my reason goes
to a much deeper level than just my interest in this as a
Member of Congress.
Iowa has a long history of hostages and prisoners of war
who have been held captive, including Kathryn Koob, who is a
constituent of mine, who teaches at Wartburg College in
Waverly, Iowa, held 444 days as a hostage in Iran; Terry
Anderson, the longest-held captive in Lebanon, spent 7 years
there, a graduate of Iowa State University, my alma mater;
Thomas Sutherland, who was Dean of the Agricultural School at
American University in Beruit, the second-longest-held hostage
in that crisis; Talib Sube, who was a resident of LeClaire,
Iowa, who was captured in Kuwait and used as a human shield.
And that is why this is a very personal issue for me, in
addition to one that concerns me as a Member of Congress.
I would like to put this in perspective by reading from a
book, The Gulf Between Us, Love and Terror in Desert Storm, by
Colonel Cliff Acree, United States Marine Corps, and his wife,
Cynthia, who unfortunately were unable to be with us today. But
I think this tells us what we are talking about.
This is from page 88 in a chapter titled The Trip to Hell;
it is located at the Iraqi interrogation center in Baghdad in
January 1991, and I am quoting from Colonel Acree.
``Before I blacked out, the interrogators had started
hitting me with a club like a nightstick, thick and rubberized
with a solid top and a spring at the bottom. The blow
accelerated just before it hit.
``After a couple of hours, I got to the point where I quit
flinching. My captors had broken my nose several times and hard
lumps were accumulating on my head, but I was not going to tell
them any plans for the amphibious landing in Kuwait. Ninety-
four thousand Marines deployed in the Gulf area, including
18,000 aboard amphibious assault ships, counted on me not to
jeopardize their lives.
``I had been knocked out many times. When I saw flashes of
stars, I recognized relief coming. I would lose consciousness
until they'd rouse me again. I drifted into the welcomed
darkness of unconsciousness many times. Each time they roused
me, I wished for that natural escape again. The body somehow
adapts to release you from pain and you fall quicker into that
blessed peace.
``After that last blow, I must have been unconscious a long
time. Before they would wake me quickly with a slap in the face
or a kick in the ribs. `Stand up,' they would yell. Shaking and
gasping I would come back to life hearing the same voice and
remembering the last blow, but this time my tormentors poked
and prodded me as if wondering, `Did we kill him?' I was alive
but with a shattered nose and a fractured skull.''
That is one of many examples from Gulf War POWs who were
tortured under the brutal regime of Saddam Hussein. When they
were released as prisoners of war, they were welcomed home by
their government, including Secretary of Defense Cheney, who
welcomed them with these words, quote, ``Welcome home. Your
country is opening its arms to greet you.''
And that is exactly the spirit in which they were welcomed
back, as people who had gone through a tremendous ordeal and
needed to be taken care of. And yet this country has
consistently failed to live up to its obligations under the
Foreign Sovereign Immunities Act to provide these tortured POWs
and human shields with the compensation that they deserve.
One of the rationales offered for the President's veto was
that it would expose Iraq to billions of dollars of liability
and harm reconstruction efforts, which is clearly a ridiculous
claim when you look at what has happened as these POWs and
human shields and their attorneys have attempted to negotiate,
first with the Government of Iraq and then with the
Administration.
This is also evidenced by the fact that the Government of
Iraq has entered into compensation dispute resolution with the
Governments of Korea and Japan on behalf of companies like
Hyundai and Mitsubishi, settling billions of dollars of
commercial claims while people who suffered torture like I just
described have gone without compensation.
The fact that Iraq is predicted to make $100 billion in oil
revenues in 2008 and the fact that the Administration is
currently working with Iraq to resolve its commercial debt
shows why it is important to stand up for these victims of
torture. That is why I introduced H.R. 5167, the Justice for
Victims of Torture and Terrorism Act, in January to eliminate
the waiver that was granted and then revised in the fiscal year
2008 DOD bill.
At that same time, I have also been working closely with
the victims' attorney on an alternative proposal that would
give the Government of Iraq 90 days to resolve the claims of
American victims of torture and terrorism before that waiver
that was put into the last DOD bill would be terminated. The
alternative that I am proposing would eliminate any fears of a
flood of expensive lawsuits because it specifies the plaintiffs
against Iraq and specifically offers relatively modest amounts
in spite of a judgment that already is on the books for the POW
torture victims.
The total amount that Iraq would have to pay under this
compromise agreement would be approximately $415 million. To
put that into perspective, we spend $338 million a day in Iraq
right now and about $2.4 billion every week. Since there would
be no threat of future claims, since Iraq is no longer
designated as a state sponsor of terrorism, it would
effectively cap any liability claims against the Government of
Iraq. So it is the type of proposal that should have broad,
bipartisan support. It will eliminate the claims as a concern
of the Iraqi Government, and it will finally--finally provide
compensation to these victims of torture and terrorism who have
been putting up with this ordeal for far too long.
Under the proposal that we are speaking about, POWs and
family members would be waiving approximately 77 percent of the
entire judgment forgoing all punitive damages awarded by the
court, which is almost $306 million, and two-thirds of all
compensatory damages awarded over $435 million. And it would be
the type of result that I think would make everyone walk away
from this terrible tragedy with a very positive feeling about
their country and how it stood up for these victims of torture
and terrorism.
And I would just like to close with a poem that Colonel
Acree wrote, his own ballad to freedom. He called it What
Freedom Means to Me.
To walk without being blindfolded,.
To raise my arms without handcuffs,.
To see the sky and feel the warmth of the sun,.
To speak my own thoughts,.
To sleep without fear,.
To know I will eat today, a day without terror and pain,
To stand in defense of freedom and win.
On behalf of Colonel Acree, Captain Slade, who is here
today, and all the victims of torture and terrorism, it is time
that we put this matter to rest and give them the compensation
that they deserve.
Thank you.
Mr. Cohen. Thank you.
[The prepared statement of Mr. Braley follows:]
Prepared Statement of the Honorable Bruce L. Braley, a Representative
in Congress from the State of Iowa
Thank you, Chairman Conyers, Ranking Member Smith, and Members of
the Committee for holding this important hearing on ensuring legal
redress for American victims of state-sponsored terrorism. And thank
you for inviting me to testify on this issue which is very important to
me and, I believe, to our country.
I know that many members of Congress shared my shock and
disappointment when they learned in December of last year that
President Bush was vetoing H.R. 1585, the Fiscal Year 2008 National
Defense Authorization Act--with no prior warning, and while Congress
was not in session--in order to deny Americans tortured under Saddam
Hussein's regime from pursing justice in U.S. courts. In fact, several
members of this Committee, including Chairman Conyers, are co-sponsors
of the Justice for Victims of Torture and Terrorism Act, which I
introduced this January in response to President Bush's veto and the
waiver that was subsequently granted to Iraq.
I believe that the Bush Administration's willingness to allow
torture of American citizens--including 17 prisoners of war who were
beaten and starved by Hussein's regime, and hundreds of victims who
were used by Iraq as ``human shields''--is outrageous. Preventing these
victims from seeking justice is also a direct violation of our
obligations under Article 131 of the Third Geneva Convention relative
to the Treatment of Prisoners of War, which 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.
The President's rationale for the veto--that the bill would expose
Iraq to billions of dollars of liability and harm reconstruction
efforts--is clearly a ridiculous claim, as there are a very limited
number of plaintiffs with claims against Iraq. The argument that Iraq
cannot afford to pay its debts to torture victims is also ridiculous
when you consider that Iraq is expected to make around $100 billion in
oil revenues for 2007-2008.
I believe that Iraq's threat to withdraw billions of dollars out of
U.S. financial institutions if H.R. 1585 was signed into law is
offensive, considering the incalculable sacrifices that American troops
have made for Iraq and the staggering amount of money that the United
States has poured into Iraq. It is also hypocritical of Iraq to refuse
to compensate American victims of Iraqi torture and terrorism while
simultaneously working to resolve its debt to foreign corporations like
Mitsubishi of Japan and Hyundai of Korea. This clearly sends the
message that it is more important to Iraq and to the Administration to
settle Iraq's debt with corporations than with tortured American
prisoners of war and hostage victims.
Despite working with Iraq to resolve its commercial debt, and
despite language that was put into the revised Department of Defense
bill urging the President to ensure compensation for claims which
cannot be resolved in U.S. courts because of the waiver, the Bush
Administration has still not worked to resolve the claims of the
American victims of Saddam Hussein's regime. That is why I believe it
is essential that Congress acts soon to ensure that these victims are
compensated for the torture and terrorism that they were subjected to
by Iraq.
H.R. 5167, the Justice for Victims of Torture and Terrorism Act,
the bill which I introduced in January, would eliminate the waiver for
Iraq that was put into the revised 2008 Defense Bill. Since introducing
that bill, I have also been working closely with the victims' attorneys
on an alternative proposal which would give the Government of Iraq 90
days to resolve the claims of American victims before the waiver would
be terminated.
This alternative proposal should quell any alleged fears of a flood
of expensive lawsuits against Iraq because it specifies plaintiffs
against Iraq and specifies relatively modest amounts which would
constitute adequate settlements for these claimants. There is also no
threat of future claims, since Iraq is no longer designated as a state
sponsor of terrorism.
In fact, Iraq would be getting a good deal with this proposal. For
example, the overall judgment against Iraq in the POWs' case, Acree v.
Republic of Iraq, was $959 million. However, as a concession to Iraq,
under the formula in my proposal, the POWs are waiving approximately 77
percent of their entire judgment. The POWs and their family members are
forgoing all punitive damages awarded to them, and two-thirds of all
compensatory damages awarded to them by the court. Additionally, as a
concession to Iraq, the American victims who were held as human shields
have also been willing to establish a cap on their settlements.
Previous judgments paid in a similar case before the beginning of
Operation Iraqi Freedom had no such cap.
I believe that passing legislation allowing these American victims
to be compensated for torture and terrorism is essential to upholding
the rule of international law and to upholding our international treaty
obligations. I also believe that it is critical to upholding the intent
of Congress, which passed unanimous resolutions during the Gulf War
stating an intention to hold Iraq accountable for the torture of
American POWs. Giving victims of torture and terrorism access to U.S.
courts also provides another important tool for deterring terrorism and
holding perpetrators of torture and terrorism accountable.
Ensuring redress for these victims is also crucial to protecting
our current and future troops from torture by holding all state
sponsors of terrorism accountable and by allowing all American victims
of terrorism and torture recourse in the U.S. court system. We can
already see that allowing one country to torture and terrorize
Americans with immunity is a slippery slope: Libya is currently seeking
a similar waiver based on the waiver that was put into the Fiscal Year
2008 Defense Authorization Act, and the State Department is actively
negotiating with Libya to grant this waiver.
I am strongly committed to securing justice for these American
victims, and I believe that all of you will share my commitment after
hearing the compelling testimony of the witnesses today. I hope that
the Judiciary Committee will act quickly to move my legislation to the
House floor for a vote. Enacting legislation allowing these victims to
be compensated will send a strong signal to the world that the United
States will not allow perpetrators of terrorism and torture to operate
with immunity, and that we will never put the interests of any foreign
state over the interests of American victims of torture.
Thank you again for holding this important hearing. I am happy to
answer any questions that you may have.
Mr. Cohen. Mr. Sestak from Pennsylvania.
TESTIMONY OF THE HONORABLE JOE SESTAK, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF PENNSYLVANIA
Mr. Sestak. Thanks, Mr. Chairman, Ranking Member Lungren. I
am very honored to speak today to the Committee.
I did, as you mentioned, Mr. Chairman, spent 30-odd years
in the U.S. military, the best years of my life. And so I think
I want to speak initially on behalf of those whom I served with
at this Congress and Presidents have sent into harm's way. But
I want to speak about it in terms of the rule of law.
After World War II, as was initiated among us, particularly
those who led our sons and daughters of this Nation into harm's
way, in 1949, the United States agreed to the third great
Geneva Convention, that on prisoners of war, that we would
never absolve any state of its liability for what is illegal
torture.
It did not make death illegal, killed on the battlefields--
we knew we would go out there, ready for the ultimate
sacrifice--it made torture illegal after the horrific evidences
of it in World War II.
But I also come today speaking because I have been part of
another institution, before I came to Congress--having served
at the White House and having seen a commander in chief that
was the President, but also had responsibility under the rule
of law to the presidency and a legacy by how well he adhered to
national and international law, the legacy he would leave
behind in the presidency.
Now, as a Member of Congress, I am very conscious that we
are Congress people, but more, we are an institution. Congress.
It actually does make the laws. Under the Constitution, the
rules and regulations of our military, we are the ones that
send them to war. We are the ones, as an institution, that
declare war.
I bring this out because, having been to 80-odd countries
over these many years, I saw how much we were respected for the
power of our military and the power of our economy, but how
much we were admired by the values of our ideals, the power of
our ideals, which ultimately rest not on a man or a woman, but
on the rule of law.
In 1991, we had 17 prisoners of war tortured, illegal under
the rule of law of this globe we live on, that the United
States said was illegal. You train us because you provide for
the rules and regulations never to stain our Nation by doing
torture to others and holding our Nation liable to other
countries. We expected the same contract with this institution
if we were to be tortured.
After they were tortured, they waited until 2002 before
they sued under the rule of law, international law, not just
national. Whatever the real reason was that the commander in
chief decided to veto that defense authorization bill in
December of this past year, if it did have to do with the
threat allegedly of pulling $25 million out of our private
markets, as has been reported, that the Iraqi Government said
it would do, I have little understanding of how that could even
compare with what we asked these men to do.
Under law, we asked them to go and under law we promised
them, if tortured, that that country would be held liable. The
cost of what they are asking for is about a fourth of a day of
the cost in Iraq.
But I don't think that is the major issue here. I come back
that this is an institution that I believe, on the day we voted
to give this President a waiver, those who served us so well,
when we asked--``here am I, send me''--that under a contract
with them, of the rule of law, not to torture, and if you were,
we would hold that country liable, that now we say--or said in
January, but we can waiver it--there is no higher power that we
have than the power of our ideals.
So I ask this institution to remember that we are Congress
people, but more, this is an institution that I am proud to
serve in, just as I was in the institution of our armed
services or at the White House. Under that rule of law, that
principle, we need to remember, yes, to support our troops whom
we send out under the rule of law. That's what our Nation's
bedrock is based upon.
Thank you.
[The prepared statement of Mr. Sestak follows:]
Prepared Statement of the Honorable Joe Sestak, a Representative in
Congress from the State of Pennsylvania
Mr. Chairman and members of the Committee, thank you for taking the
time today to address an issue that is very personal to me, having
served for 31 years in the United States Navy.
As a Veteran, I believe I can speak for many who served abroad in
harms way, who believe there is no place for torture in Iraq or
anywhere else in the world.
America is respected in the world for the might of its economy and
strength of its military, but we are admired for the power of our
ideals. And that is why we must respect human rights, and why we must
oppose the use of torture in the face of terror and tyranny.
In 1991, American prisoners of war (POWs) serving during the first
Persian Gulf War were tortured in Iraq under the regime of the former
President Saddam Hussein.
In April 2002, 17 American POWs and 37 of their family members
filed a law suit against the Republic of Iraq, Saddam Hussein, and the
Iraqi Intelligence Service seeking compensatory damages for the torture
they sustained. And, on July 7, 2003, Judge Richard Roberts ruled that
Iraq, Saddam Hussein, and the Iraqi Intelligence Service are liable for
$653 million in compensatory damages and $306 million in punitive
damages for the torture of the POWs and for the lingering injuries
suffered by them and certain close family members.
The judge found that: No one would subject himself for any price to
the terror, torment, and pain experienced by these American POWs,'' and
that ``there must be a premium on protecting POWs [because] POWs are
uniquely disadvantaged and deterring torture of POWs should be of the
highest priority.''
While July 7, 2003, marked a great triumph toward bringing justice
for American POWs, it was only the beginning of a long journey for them
to receive their awarded claims.
I am here testifying today in front of the House Judiciary
Committee today to help my brothers and sisters who have worn the cloth
of our nation as well as others who were used as human shields during
the Persian Gulf War.
I became involved in this issue after President Bush vetoed the
National Defense Authorization Bill (H.R. 1585), in late December 2007.
The widely supported legislation would have provided a scheduled 3.5%
military pay raise and bonuses, critical veterans' health care
initiatives, and necessary funding for our troops abroad. I was deeply
concerned with President Bush's action to veto the legislation, not
only because it overwhelmingly passed both the House and Senate, but it
also jeopardized the safety of our troops abroad.
As I am sure you know, the President vetoed the Defense
Authorization bill over a provision that would remove some immunity
from the Iraqi government regarding the payment of Court awards to
service members that had been tortured during the First Gulf War.
The President apparently objected to this provision, because it was
claimed that it could allow plaintiffs to freeze Iraqi government
assets in the United States as part of litigation over actions
committed during the rule of former dictator Saddam Hussein, and that
the provision would disrupt the Iraqi reconstruction efforts.
During that time, the Iraqi Government reportedly placed intense
pressure on President Bush, through its lawyers, by saying it would
withdraw $25 billion worth of assets from the U.S. capital markets
unless the President vetoed the bill.
I strongly disagreed with the President's position to veto the
Defense Authorization Bill and to demand a waiver that would allow for
a Court's judgment to be overruled, thereby shutting out service
members from attaining their already won monetary judgment for torture
they sustained during the first Persian Gulf War.
Under international law, even when a government changes, the new
government is responsible for the actions of the government it
superceded.
Each month we spend almost $12 billion for the War in Iraq, and
because Iraq has now threatened to pull its $25 billion invested in the
U.S. market--the cost of two months of the war--the President refused
to support the men and women who wore the cloth of this nation, who
were tortured during a war, and who had already won a judgment against
the Iraqi government.
I also believe the Congressional action taken on January 16, 2008
was wrong. We should have voted to override the President's veto,
supporting not just the men and women who are serving today by such
items in the bill as the 3.5 percent pay raise, but also for those who
served previously and have legitimately brought a claim against the
Iraqi government because of torture.
In May 2008, my efforts to introduce an amendment to the National
Defense Authorization Act to repeal the President's waiver to allow
Iraq to maintain immunity unless the Government of Iraq settles these
outstanding claims with American POWs tortured in Iraq within 90 days
were ruled not germane to that bill.
I am here today in conjunction with my colleague Congressman Bruce
Braley, a champion of this issue, to bring a much needed resolution to
claims filed by both American POWs and those who suffered as Human
Shields.
I believe that any effort to absolve Iraq of liability for this
torture would violate the POW Convention obligations of both the United
States and Iraq and would put at enhanced risk of torture American
service men and women held as POWs in the future.
Nor is it appropriate to ask American POWs tortured in Iraq or
Human Shield claimants to personally pay for the reconstruction of the
country which tortured them.
Settlement of this debt of honor would also serve as a model
encouraging settlement of other claims against Iraq. Moreover, Iraq's
recognition of its legal obligations would be a concrete sign of Iraq's
commitment to the rule of law and would be greeted warmly by the
American people.
This provision also serves the interests of the reconstruction of
Iraq by forgiving as much as 77% of the judgments awarded against Iraq,
including forgiving all punitive damages and two-thirds of compensatory
damages awarded against Iraq in federal court.
The bottom-line--and what America stands for--is doing what is
right--particularly with regard to those who defend our nation. Without
any question, what is right is to ensure that these individuals receive
their settlements which were adjudicated by impartial courts under the
rule of law in the U.S.
Thank you again for providing me this opportunity to testify before
you regarding this issue of utmost importance to American service
members, Veterans, and POW/MIA community.
Mr. Cohen. I want to thank each of you for your testimony
and for taking time out of your day to share with us your
unique perspectives on this issue, a very important subject.
And we will excuse you with our thanks and impanel our next
group to come forward and be seated. Thank you, Mr. Sestak, Mr.
Braley.
Mr. Issa. I would ask unanimous consent to have my opening
statement placed in the record.
Mr. Cohen. If done so, it will be granted. Thank you.
Mr. Issa. Thank you, Mr. Chairman.
Mr. Cohen. Is it tunc pro, whatever--without objection. You
know, always trust, but verify.
[The prepared statement of Mr. Issa follows:]
Prepared Statement of the Honorable Darrell Issa, a Representative in
Congress from the State of California
Mr. Cohen. Our first witness on the panel is Ambassador
John Norton Moore, co-counsel in Acree v. Republic of Iraq. He
is a Professor of Law at the University of Virginia and directs
the Center for National Security Law and Oceans Law on policy.
He has previously served as the Counselor on International Law
to the Department of State and as Ambassador and Deputy Special
Representative of the President for the Law of the Sea.
His representation of the POWs is solely in his personal
capacity.
Our next witness will be Captain Lawrence Randolph Slade, a
plaintiff in the Acree case. Captain Slade's F-14 aircraft was
hit by missile during the Gulf War, which prompted him to eject
into Iraq.
During his captivity as a POW, he endured violent
interrogations during which he was blindfolded, handcuffed,
beaten with wooden bats and subjected to four mock executions.
As a result, Captain Slade suffered very serious injuries,
including broken vertebra, abnormal liver functions and extreme
pain caused by scar tissue resulting from repeated trauma to
his abdomen.
Thank you for your service.
Next we have Dan Wolf, counsel in Vine v. Republic of Iraq
and Hill v. Republic of Iraq. He has, for more than two
decades, garnered experience litigating human rights in
sovereign immunity issues both as an attorney in the office of
legal advisor and in private practice. He has played a leading
role in numerous cases involving the interpretation of the
Foreign Sovereign Immunities Act.
Our final witness today will be George Charchalis, a
plaintiff in the Vine case. As a young man, Mr. Charchalis
served in the Third Infantry Division and saw combat in the
Korean War.
In 1989, he was recruited by Kuwait's Institute of
Scientific Research to manage an ambitious plan to install
parks, gardens and freeway landscaping throughout the country.
A year later, Mr. Charchalis was taken hostage by the Iraqi
regime and held in captivity for more than 4 months as a human
shield.
We welcome each of you. Without objection, your written
statements will be made a part of the record in their entirety.
We would ask each of you to summarize your testimony in 5
minutes or less. There will be a red light that goes on and
becomes yellow and gives you a warning. When 1 minute remains,
the light will switch to yellow and then to red when the 5
minutes are up.
We thank you all for being with us.
Ambassador Moore, please begin.
TESTIMONY OF AMBASSADOR JOHN NORTON MOORE,
CO-COUNSEL, ACREE V. REPUBLIC OF IRAQ
Mr. Moore. Chairman Cohen, Ranking Member Lungren and
Members of the Committee, it is an honor to appear----
Mr. Cohen. There is a button there that gives you
amplification.
Mr. Moore. It is an honor to appear before the Judiciary
Committee today as co-counsel representing 17 American former
prisoners of war tortured by Iraq during the 1991 Gulf War, and
37 of their close family members, in support of the Braley-
Sestak proposal. With your permission, I will place in the
record not only my written testimony, but also the decision of
the district court holding Iraq accountable for their torture.
It is also an honor to appear on a panel with one of the
lead POWs in the Acree case, Captain Larry Slade. I have been
privileged to work with Captain Slade for the past 6 years in
his historical effort to hold his torturers accountable, and I
am very aware of his extraordinary courage under brutal
torture.
Captain Slade is quite simply one of the finest Americans
it has been my privilege to know. But I would like to share
with the panel something else I just learned yesterday about
Captain Slade, which I think this Committee might want to know.
It is that Captain Larry Randolph Slade is a direct descendent
of Thomas Jefferson and Larry's mother is buried at Monticello.
Justice for American POWs and taking effective action to
implement the word of the Congress, the President and the
Nation to ensure that future American POWs held by the enemy
will not be tortured is, of course, not a partisan matter.
There is no party, only country when it comes to the protection
of American POWs.
As the representative of these courageous American POWs,
tortured by Iraq, let me share with you the compelling story
for recognizing their rights and national security interests in
protecting POWs from torture. That story simply reflects
bedrock American values.
First, America keeps its word. This House, as well as the
Senate of the United States, repeatedly warned Iraq that it
would be held accountable for the torture of our American POWs
in three unanimously adopted resolutions. In addition to that,
we have already discussed the provision in the POW Convention
that says that no state may absolve a torturing state of any
liability, a pledge of the nation itself.
The word of the Congress and the Nation is clear, those who
torture Americans will be held accountable. There is no if, and
or but attached to those pledges.
Second, America supports its POWs. The POWs tortured by
Iraq during the Gulf War were welcomed home by a grateful
American people. But if the record of a courageous action of
tortured American POWs to enforce the rule of law is erased
because of silence now, future generations of American POWs,
held by the enemy, will receive even more enthusiastic torture.
Third, America is fair. Americans do not believe that POWs
tortured by Iraq should personally pay for the reconstruction
of the country which tortured them. Clearly, any such expense
of reconstruction is a public purpose to be borne by the Nation
as a whole. Indeed, to ask our POWs and family members to pay
with their legal rights for the reconstruction of the country
which tortured them is morally repugnant.
Similarly, Americans do not believe that it is right for
Iraq to resolve a minimum of 20 to 30 billion in commercial
claims of foreign corporations while ignoring the valid claims
of American POWs and American civilian hostages. Surely, the
debt owed to American POWs is a debt of honor which should come
before commercial claims and certainly should not be ignored
while commercial claims are paid.
Fourth, America defends its honor. After the POWs had
brought their action against Iraq, 20 distinguished former
high-level national security officials wrote to the President
about the historic opportunity in this case. In discussions
concerning this letter, I have never forgotten the wise summary
of this matter volunteered by Anthony Lake, a former Assistant
to the President for National Security Affairs. He noted that
supporting our POWs was simply a matter of national honor.
Surely he is correct and perhaps this profound statement
captures it all.
Mr. Chairman and Ranking Member Lungren, these courageous
POWs and their family members and the Nation owe a debt of
gratitude have struggled now for 6 years in their efforts to
hold their torturers accountable. Surely, 6 years in their
efforts to support the rule of law again as volunteers for
their country is enough. From my heart, I urge you to support
these wonderful Americans.
Thank you for the opportunity to appear before you and
testify on this matter of national honor.
Mr. Cohen. Thank you, Ambassador Moore.
[The prepared statement of Mr. Moore follows:]
Prepared Statement of John Norton Moore
Mr. Cohen. Captain Slade.
TESTIMONY OF CAPTAIN LARRY SLADE, USN (RET.), PLAINTIFF IN
ACREE V. REPUBLIC OF IRAQ
Captain Slade. Good afternoon, Chairman, Ranking Member
Lungren and Members of the Committee. It is an honor to appear
before the Judiciary Committee today on behalf of myself and 16
other American former prisoners of war, tortured by Iraq during
the 1991 Gulf War and 37 of our close family members.
For my colleagues for whom I appear, the issue at stake in
this hearing is clear: Will the Congress, the President and the
Nation adhere to their word to hold accountable those who
torture American prisoners of war? Failure to do so, will
dramatically raise the risk that Americans held as POWs by the
enemy will continue to be tortured.
The Braley-Sestak proposal now before this Committee will
honor that national commitment and reduce the risk that future
American POWs will be tortured as we were. We strongly support
its prompt passage.
On April 4, 2002, I joined with 16 of my fellow Gulf War
POWs who had been brutally tortured by Iraq during that war and
37 of our family members in filing a historic suit in Federal
court. We brought this suit to add deterrents against the
torture of American POWs through enforcing the rule of law and
holding accountable the torturing state.
On July 7, 2003, Judge Richard Roberts of the Federal
District Court for the District of Columbia, after a careful
review of the facts and the law, awarded substantial judgments
to each of the 54 affected American POWs and close family
members. He found that, quote, ``No one would subject
themselves for any price to the terror, torment and pain
experienced by these American POWs,'' unquote; and that, quote,
``There must be a premium on protecting POWs because POWs are
uniquely disadvantaged, and deterring torture of POWs should be
of the highest priority.'' Despite these judgments for us,
however, to date, we have been unable to obtain closure on this
matter.
My fellow POWs and I, who brought this historic case, were
tortured by Iraq through brutal beatings, starvation, electric
shock, whipping, burning, mock executions, threatened
dismemberment, threats to our families, subjection to bombing
and breaking of bones and eardrums. For our spouses and other
family members in the United States, Iraq's refusal to permit
notification of capture, its public statements about using us
as human shields and its coerced propaganda tapes of beaten
POWs produced severe mental anguish. The horrifying specifics
for each of us and our family members are set out in detail in
the opinion of the Federal district court in Acree v. The
Republic of Iraq.
On January 23, 1991, during our period of captivity, the
House adopted Concurrent Resolution 48 by a vote of 418 to 0
condemning, quote, ``the abuse by the Government of Iraq of
captured United States and allied service members, including
the apparent use of physical and mental coercion, Iraq's stated
intention to disperse prisoners of war to potential military
targets, and Iraq's flagrant and deliberate violations of the
Third Geneva Convention.''
The Senate followed with Concurrent Resolutions 5 and 8 by
unanimous vote declaring, quote, ``The United States condemns
the Government of Iraq for brutal mistreatment of American and
other prisoners of war for deliberately placing their lives in
danger and for other violations of the Third Geneva
Convention.''
These were powerful and important statements that Iraq
would be held accountable, statements for which we are grateful
to the Congress. But these statements will ring hollow for the
future unless backed with action now.
My fellow POWs also appreciate that on February 7, 2002,
President George W. Bush issued an executive order in which he
stated, quote, ``The United States will hold states,
organizations and individuals who gain control of United States
personnel responsible for treating such personnel humanely and
consistent with applicable law,'' unquote.
Our Nation has also pledged its word in this matter, as has
Iraq, for Article 131 of the Third Geneva Convention creates a
binding treaty obligation never to absolve a torturing state of
any liability for the torture of POWs. This treaty is enforced
for every nation in the world, including Iraq and the United
States. It embodies one of the core deterrent mechanisms built
into the treaty against the torture of POWs, that of
nonabsolvable liability.
In turn, President George W. Bush has pledged to the Nation
that America will abide fully by the Geneva Conventions. The
record is clear, Congress, the President and, by solemn treaty
obligation, America and Iraq have pledged that those who were
tortured--who torture American POWs will be held accountable.
This treaty obligation, as it binds both Iraq and America, is
nonabsolvable.
Mr. Chairman, we are also mindful that our historic effort
to deter torture of American POWs is rooted in the rule of law.
With the support of this Committee, which is dedicated to the
rule of law, we are hopeful that future generations of American
POWs will not have to endure our ordeal.
The rule of law is a key bulwark against tyranny and evil.
At a not inconsiderable risk to ourselves, have sought to
ensure that the rule of law can make a difference in the
struggle against torture of American POWs held by the enemy.
With the help of this Committee, it can and it will.
I would like to thank this Committee on behalf of all the
POWs and family members for your steadfast support and for the
opportunity to appear before you and testify on this matter of
national honor. Thank you.
Mr. Cohen. Thank you, Captain Slade.
[The prepared statement of Captain Slade follows:]
Prepared Statement of Lawrence Randolph Slade
Mr. Cohen. And now the Chair recognizes Mr. Wolf.
TESTIMONY OF DANIEL WOLF, COUNSEL,
VINE V. REPUBLIC OF IRAQ
Mr. Wolf. Mr. Chairman, Members of the Committee, thank you
for affording me the opportunity to present my views regarding
this important matter of justice for American victims of
terrorism.
I represent George Charchalis, who is sitting here with me
today, and as lead counsel in two lawsuits brought by 400 other
American victims of Iraqi terrorism known as Hill and Vine v.
Iraq. These suits arose out of the decision in 1990 by Saddam
Hussein to detain all American citizens in Iraqi occupied
territory----
Mr. King. Mr. Chairman, would you ask the witness to turn
on the mic, please?
Mr. Wolf [continuing]. To detain all American citizens in
Iraqi-occupied territory for the avowed purpose of deterring
U.S., the United States, and its coalition allies, from taking
military action to liberate Kuwait.
Like Mr. Charchalis, many of these Americans were rounded
up, relocated to strategic sites where they were detained for
up to 130 days as human shields in deplorable conditions, and
subjected to cruel and degrading treatment. The others remained
in hiding or were trapped inside diplomatic properties.
All of the hostages lived each day in fear for their lives.
Many witnessed unimaginable atrocities. Some were beaten,
raped, tortured and subjected to mock executions. After
Congress made it possible to do so, 180 of those former
hostages filed the Hill case against Iraq. And a couple of
years later, 240 more filed the Vine case. By mid-2002, all 180
of the plaintiffs in the Hill case had obtained judgments in
their favor, totaling $94 million in the aggregate.
In March 2003, literally on the eve of Operation Iraqi
Freedom, President Bush issued an order directing that all of
the Hill judgments be paid in full from blocked Iraqi assets.
At the same time, however, the Administration confiscated all
of Iraq's remaining blocked assets, transferred them to the
Coalition Authority in Iraq where they were mostly squandered.
Acknowledging that these actions left the 240 Vine plaintiffs
out in the cold, the Bush administration gave public assurances
their rights would be protected, promising, quote, ``to make
sure that people who secured judgments find some
satisfactions,'' assurances that came from as high up as
Secretary State Powell. For the next 4 years, however, the Bush
administration and State Department did nothing to honor that
promise.
Finally, in December of 2007, Congress amended the law in a
matter that would have given the American victims of Saddam's
brutality the right to obtain compensation for monies that Iraq
had deposited in U.S. banks, but that was not to be. Acting at
the behest of the State Department, President Bush vetoed that
bill. The State Department has tried to justify that veto on
the specious argument that the new FSIA amendments would put
billions of dollars of Iraqi money at risk, imperiling the
reconstruction efforts.
On the basis of that gross exaggeration, the Bush
administration managed to convince Congress to enact a
compromise bill under which the President was given the
authority to exempt Iraq from the reach of the new law in
exchange for the Administration's promise to use its best
efforts to resolve the claims of American victims of Iraqi
terrorism. Last month, the State Department showed just how
much that promise was worth.
They informed us that the Administration fully agreed that
the former hostages had valid claims, but they said that now is
not the right time to raise it with Iraq as the United States
did not have sufficient leverage. The Department has no
intention of ever doing anything to vindicate the rights of
Iraq's American victims as has recently become apparent from
news reports. According to those reports, the U.S. has told
Iraq that it will continue to protect Iraqi assets from these
and other claims only if Iraq agrees to a strategic alliance
with the United States giving the United States long-term
basing rights in Iraq and affording U.S. Servicemen and
contractors immunity from Iraqi judicial process.
The irony could not be greater. Having once had their
physical selves held hostage by the Iraqi Government to extract
concessions from the United States, Iraq's former American
victims are now having their claims held hostage by their own
government so that it can extract the concessions from Iraq.
At this point, I would ask the Committee to consider the
moral implications of what the State Department is doing. One
of the primary duties of the Department is to defend and
protect the rights of America's citizens to be free from abuse
by foreign governments. Yet, instead of lifting so much as a
finger to protect those rights, the Department is offering to
trade them away in exchange for bases and other concessions in
Iraq.
Why does the State Department need to use the rights of
these American victims as leverage? Aren't we buying enough
leverage with the blood of American soldiers dying every day in
Iraq? Isn't the expenditure of hundreds of billions of dollars
enough to purchase leverage with the Iraqi Government? Or is it
just that the Department is tired of being bothered by these
claims and is looking for a convenient opportunity to end them
forever?
The only way that the Bush administration's promise to the
former hostages will ever be fulfilled is if Congress fills the
void. The Braley-Sestak proposal will do just that.
Thank you for the opportunity to testify in this matter.
Mr. Cohen. Thank you, Mr. Wolf.
[The prepared statement of Mr. Wolf follows:]
Prepared Statement of Daniel Wolf
Mr. Chairman and members of the committee:
Thank you for affording me the opportunity to present my views
regarding this important matter of justice for American victims of
Iraqi terrorism. Those views have been shaped by more than two decades
of experience litigating cases against foreign states under the Foreign
Sovereign Immunities Act (the ``FSIA''), both as an attorney in the
Office of the Legal Adviser of the Department of State and in private
practice.
Since 1999, I have been serving as lead counsel on behalf of George
Charchalis and more than 400 other American victims in two lawsuits
that have become known as Hill v. Republic of Iraq and Vine v. Republic
of Iraq. As you have heard from Mr. Charchalis, these suits arose out
of a decision Saddam Hussein made in August 1990 to detain all American
citizens in Iraqi occupied territory for the avowed purpose of
deterring the US and its coalition allies from taking military action
to liberate Kuwait.
Like Mr. Charchalis, many of those Americans were rounded up and
forcibly relocated to strategic sites, where they were detained for up
to 130 days as ``human shields'' in inhumane conditions and subjected
to cruel and degrading treatment. The others remained in hiding or were
trapped inside diplomatic properties. All of the hostages lived each
day in fear for their lives; many witnessed unimaginable atrocities;
some were beaten, raped, tortured and/or subjected to mock executions.
For the first five years after their release, the former hostages
had no means of obtaining justice because American law afforded
terrorist countries like Iraq immunity from suit even when they
tortured, kidnapped and otherwise terrorized American citizens. This,
however, all changed in 1996 when Congress amended the FSIA to allow
American victims of terrorism to seek redress against rogue nations.
Following the enactment of this amendment, more than 400 American
victims of Saddam's ``human shield'' policy filed suit against Iraq.
The claims of the 180 victims who filed earliest were all consolidated
in the Hill case and the claims of the 240 victims who filed later were
consolidated in the Vine case.
By mid-2002, all 180 of the plaintiffs in the Hill case had
obtained judgments in their favor. The amount of these judgments
totaled just over $94 million or about $500,000 per plaintiff on
average, ranging from a high of $1.75 million to a low of $50,000.
In March 2003--literally on the eve of Operation Iraqi Freedom--
President Bush issued an order directing that all of these judgments be
paid in full from blocked Iraqi funds. At the same time it was
authorizing payments to the Hill plaintiffs, however, the Bush
Administration confiscated all of Iraq's remaining blocked assets-
converting them to US assets and, thereby, placing them out of reach of
any collection efforts. And, despite the Vine plaintiffs' request that
the President reserve sufficient funds to satisfy any judgments they
might obtain, the assets were subsequently transferred to the Coalition
Authority in Iraq, where they were mostly squandered.
Acknowledging that its actions unfairly left the 240 Vine
plaintiffs out in the cold, the Bush Administration gave numerous
public assurances that their rights would be protected, promising, for
example, to ``make sure that people who secure judgments find some
satisfaction.'' These assurance came from as high up as Secretary of
State Colin Powell, who came to Capitol Hill to testify about the State
Department's commitment to setting up a ``victims of terrorism fund''
to accomplish that goal.
For the next four years, however, the Bush Administration and its
State Department did nothing to honor its promise to the victims--
refusing even to meet with them or their representatives. Finally, in
December 2007, Congress amended the FSIA to strip current and former
terrorist states, including Libya and Iraq, of the immunities that
protect their assets from attachment and execution. These amendments,
which were passed as part of the National Defense Authorization Act,
would have enabled the American victims of Saddam's brutality to obtain
compensation from monies Iraq has deposited in US banks.
But that was not to be. Acting at the State Department's behest,
President Bush vetoed the defense bill just before the New Year. The
State Department tried to justify that veto on the specious argument
that the new FSIA amendments would put ``billions'' of Iraqi dollars at
risk--imperiling its reconstruction effort.
On the basis of that gross exaggeration, the Bush administration
managed to convince Congress to enact a compromise bill. Under that
compromise, the President was given the authority to exempt Iraq from
the newly enacted amendments to the FSIA in exchange for an
Administration promise to use its best efforts to resolve the claims of
American victims of Iraqi terrorism. Congress codified this compromise
in a ``sense of Congress'' resolution in which it expressed its
expectation that the Administration would act swiftly to fulfill its
promise to the victims through state-to-state negotiations.
In reality, it took four more months before the Administration
agreed to meet with the victims or their representatives. At that
meeting, Administration officials made clear that they had come only to
listen--not to make any proposals of their own. Ten days later, the
State Department delivered us the Administration's response. They said
that the Administration fully agreed that the former hostages all had
valid claims for which Iraq was duty-bound to compensate them. As much
as they would like to be helpful, however, they said that they would
not raise the matter with Iraq because the present state of the
bilateral relationship between the two countries made it pointless to
do so.
In other words, they claimed that, despite the expenditure of
hundreds of billions of dollars and the deaths of more than 3,000
American servicemen, the US does not have leverage with the Iraqi
government at this time. Asked why this was not the right time and what
would have to change before they felt they would be in a position to
exert such leverage, the State Department simply said that there may
never be a right time to raise this matter.
That the State Department has no intention of ever doing anything
to vindicate the rights of Iraq's American victims has recently become
apparent from news reports, which reveal a cynical effort by the
Department to use their claims as a bargaining chip to extract
unrelated concessions the Administration is seeking from Iraq.
According to those reports, the US has told Iraq that it will continue
to protect Iraqi assets from these and other claims only if Iraq agrees
to enter into an ``alliance'' agreement, giving the U.S. long term
basing rights in Iraq and affording U.S. servicemen and contractors
immunity from Iraqi judicial process. The irony could not be greater.
Having once had their physical selves held hostage by the Iraqi
government to extract concessions from the United States, Iraq's former
American victims are now having their claims held hostage by their own
government so that it can extort concessions from the Iraqis.
The State Department's callous refusal to raise the victims' claims
on the ground that, 18 years after their ordeal, the time is ``not
right'' is unconscionable. It is the latest, and perhaps final, chapter
in the story of the Department's abdication of its responsibility to
American citizens who were abused, terrorized and tortured by Saddam
Hussein during the First Iraq War.
As you have just heard from Mr. Charchalis, this story began when
the Department advised those Americans that the Iraqi troop buildup
along the Kuwait border was of no concern--thus sealing his fate and
that of hundreds of others who ended up stranded in the middle of a war
zone. Following their release, the Department had the opportunity to
hold the Iraqi regime accountable by compensating the former hostages
from frozen Iraqi funds on deposit in US banks. But it refused to do
so. Then, when the victims tried to obtain justice by pursuing their
claims in U.S. courts, the Department took every opportunity to
obstruct them. Indeed, showing no shame, the Department and their
allies within the Administration have gone so far as to impugn the
patriotism of these American heroes by publicly stating that they were
``jeopardizing our troops in the field'' and handing ``a propaganda
victory'' to our enemies in Iraq.
The only way the Bush administration's promise to the former
hostages will ever be fulfilled is if Congress steps into the void. The
Braley-Sestak proposal would do that by ensuring that they are afforded
the same rights to pursue their claims in American courts as are all
other victims of state-sponsored terrorism and without further
interference by the State Department. At the same time, it gives Iraq
the ability to limit its liability by settling the claims of the Vine
plaintiffs for reasonable amounts based on a simplified version of the
formula used to compensate the Hill plaintiffs, but under which the
award for any single individual would be capped at no more than
$900,000. As the claims of the Vine plaintiffs are identical to those
of their fellow hostages who participated in the Hill case, there is no
justification for the failure to treat them in similar fashion.
Enactment of the Braley-Sestak will bring them the justice that they
seek and that is so long overdue.
We who have been representing these American heroes in their quest
for justice thank you and the Committee for its interest in this matter
and look forward to working with you to enactment a statute that
assures that these claims are paid, at reasonable amounts, by the party
that is responsible and liable under international law.
Mr. Cohen. Mr. Charchalis--and I hope I pronounced it
correctly; if not, correct me--you're recognized.
Mr. Charchalis. It's Charchalis.
Mr. Cohen. I was close. Thank you.
Mr. Charchalis. Can you hear me clearly?
Mr. Cohen. I can hear you.
Mr. King, can you hear him? You're my hear test.
Mr. King. Yes, I can.
Mr. Cohen. Thank you, sir.
TESTIMONY OF GEORGE CHARCHALIS,
PLAINTIFF IN VINE V. REPUBLIC OF IRAQ
Mr. Charchalis. First of all, let me--Mr. Chairman, Members
of the Committee--let me thank you for the opportunity to come
in and offer testimony today. I am an American citizen, a
lifelong resident of Nevada and a veteran of the Korean War
where I served in combat with the Third Infantry Division.
I would like to say that I believe this hearing to be a
single event in the effort to resolve the question of
compensation for prisoners of war and human shields. Following
my discharge from the Army, I completed my studies at Utah
State and then embarked on a career in city planning and
management, ultimately established my own consulting business.
In 1989, I was recruited by the Kuwait Institute for
Scientific Research. They hired me to manage an ambitious plan
to install parks, gardens, fountains and freeway landscapes
throughout the country. It was to be a long-term effort.
After selling my business, I moved to Kuwait with my wife
and commenced what turned out to be the most rewarding work of
my life. That work, however, came to abrupt end when the Iraqi
Army invaded Kuwait on the morning of August 2, 1990. Within
hours, troops were forming all over the neighborhood; and in
the next few days, we began to hear horrifying reports of
atrocity, including rape, torture and summary executions.
The Iraqi Army soon set up a command post directly across
from our apartment building. Very quickly, the fighting came
very close to our building. Several of the windows in our flat
were shot out by machine gun fire. Scared to death, my wife and
I huddled in the basement, piling mattresses around us for
protection.
In August, Saddam Hussein issued an edict that allowed
security forces to round up American citizens so they could be
used as human shields to deter a bombing. We moved into the
basement on a permanent basis and then to a safe house. We
lived in a state of constant anxiety and fear knowing that the
Iraqi soldiers could storm the door any minute.
We struggled to keep up our spirits. The stress and tedium
wreaked havoc with us. Worst of all was a feeling of utter
hopelessness that I could do nothing to protect my wife and
comfort my daughters at home. Fortunately, in September, Saddam
was shamed into allowing the release of women and children.
Saying goodbye to my wife, knowing I might never see her again,
was a heartbreaking experience for me.
Two days later, what I had feared most came to pass. The
Iraqi soldiers kicked down the door and struck me in the face
with a rifle butt, knocking me down to the ground and kicking
me in the stomach. One of those kicks broke an abdominal hernia
that had been repaired prior to my departure for Kuwait. I
sustained a dislocated denture, a bleeding gash over my eye
that left a nasty scar; I had a bruised tailbone, and I had a
disintegrated disc that has given me pain ever since.
I was taken to an underground car park, convinced I was
going to be shot. There was an argument about my passport. An
Iraqi officer looked at it and said something in Arabic and
they put me back in the car. I was taken to a Kuwaiti police
station and put in jail with my hands tied behind my back. I
could hear horrifying screams all night long.
The next morning I was taken to a hotel and then handed
onto a bus with a number of hostages and then taken to Baghdad.
We were driven north to a chemical complex near Samarra. To
locate that for you in your mind, it is where the Golden Dome
Mosque that was blown up several years ago is located.
Where we were held was a rat infested--roach, desert flies.
And apart from an hour each day, when we were allowed to walk,
we were confined in these awful huts almost around the clock.
The kitchen was disgusting and unsanitary. We developed all
kinds of skin sores, suffered from chronic diarrhea that became
so debilitating I had to be taken to a hospital. The stress was
almost unbearable.
We were surrounded by armed guards and had the creepy sense
of being watched every minute, which made me feel like a caged
animal. We lived in constant knowledge that any moment we could
be executed or we could be killed by a bombing raid.
If necessary, we were prepared to die for our country; and
the Iraqis tried to pressure us to go on television and
denounce my President and country. I told them to go to hell. I
began to succumb to anxiety, developed chronic hand tremors,
lost my ability to concentrate. I could barely read a page.
Suffering from insomnia, I felt a state of perpetual fatigue.
As the war went on, I was totally distraught, feeling that
my captivity would last forever and I would never be able to
maintain my grip on reality.
Finally, on December 2nd, the nightmare came to an end when
a list of hostages to be evacuated with Mohammed Ali's peace
mission when he came to Iraq.
Upon returning to the States, I was hospitalized for
several days, received treatment for my hernia and internal
bleeding.
In the following months, I was plagued by intense anxiety
attacks, flashbacks, was unable to recover my appetite,
suffered from recurring bouts of depression that plagued me. My
difficulty concentrating forced me to retire at what would have
been the height of my career.
I have an ex--I live with an exaggerated state of response
to loud noise, I have been diagnosed with post traumatic stress
disorder and am still haunted by personal memories.
I would like to recommend and urge the Committee to help us
to do that by adopting the Braley-Sestak proposal. And on
behalf of my wife and myself and all of our fellow hostages, I
would like to thank you for taking the time to listen to us and
consider our plea. Thank you.
Mr. Cohen. Thank you, Mr. Charchalis.
[The prepared statement of Mr. Charchalis follows:]
Prepared Statement of George Charchalis
Mr. Chairman and members of the committee:
My name is George Charchalis. I am an American citizen, a lifelong
resident of Nevada, and a veteran of the Korean War, where I saw combat
with the Third Infantry Division.
Following my discharge in 1953, I completed my studies at the Utah
State University, then embarked on a career in city planning and
management, and ultimately established my own consulting business. In
1989, I was recruited by Kuwait's Institute of Scientific Research,
which hired me to manage an ambitious plan to install parks, gardens,
fountains and freeway landscaping throughout that country. After
selling my consulting business, I moved to Kuwait with my wife and
commenced what turned out to be the most rewarding work I had ever
done.
That work, however, came to an abrupt end when the Iraqi army
invaded Kuwait on the morning of August 2, 1990. Within hours, Iraqi
troops were swarming all over our neighborhood and, over the next few
days, we began hearing horrifying reports of Iraqi atrocities,
including rape, torture and summary executions.
The Iraqi army soon set up an operational headquarters on the beach
just across from our apartment complex and, with each passing day, the
fighting got closer to us. Explosions and bombing became a terrifying
concern. Several of the windows in our flat were shot out by machinegun
fire. Scared to death, my wife and I huddled together in the basement,
piling mattresses around us for protection as we struggled to sleep at
night.
In mid-August, we learned that Saddam Hussein had issued an edict
to his security forces to round up all American citizens in Kuwait, so
that he could use them as ``human shields'' to deter the United States
from bombing Iraqi strategic sites. Worried that they would come to get
us, we moved to the basement of a Kuwaiti friend and then to a safe-
house where another American citizen was already hiding out.
We lived in a state of constant anxiety and fear, knowing that the
Iraqi soldiers could storm through the door at any moment. We struggled
to keep our spirits up, but the stress, tedium, confinement and
uncertainty played havoc with our emotions. Worst of all was my feeling
of utter helplessness that I could do nothing to protect my wife or
comfort our daughters at home who I knew would be worrying themselves
sick.
Fortunately, in early September, Saddam was shamed into allowing
the release of women and children. Saying good-bye to my wife, knowing
that I might never see her again, was the most heartbreaking thing I
have ever done.
Two days later, the moment I had feared most finally came. Iraqi
soldiers kicked down the door of the flat where I was hiding. They
struck me in the face with a rifle butt, knocked me down on to the
ground, and kicked me mercilessly in the stomach. One of those kicks
broke an abdominal hernia that had been repaired prior to my departure
for Kuwait. In addition, I sustained a dislocated denture, a bleeding
gash over my eye that left me with a nasty scar, a bruised tailbone
that has led to a disintegrated disc and given me pain ever since, and
the loss of hearing in my ear. I was in terrible pain and feared for my
life.
I was taken to an underground car park, where I was made to stand
against a wall. I was convinced that I was about to be shot, but after
arguing about my passport, my Iraqi captors loaded me back into their
car and took me to a Kuwaiti police station.
I was held overnight in a hot, fetid cell with my hands tied behind
my back. Throughout the night, I could hear the terrifying screams of
my fellow prisoners and wondered when my turn would come. The next
morning, I was taken to a hotel and then herded onto a bus with a
number of other hostages. After being taken to Baghdad, we were put on
another bus and driven northward for most of the night until we arrived
at a huge chemical complex near Samarra.
The next three months were almost like a living hell. We were
housed in dilapidated huts that had long ago served as the living
quarters for the workers who had constructed the facility. They were
infested with rats, roaches and desert biting flies. Apart from an hour
or so each day when we would be allowed to walk outside for exercise,
we were confined to these awful huts almost around the clock.
The kitchen was disgustingly unsanitary, the water was foul, and
what meager food we were given was totally unappetizing. We all
developed skin sores and I suffered from chronic diarrhea, which became
so debilitating that I had to be hospitalized. I was afflicted by
numerous other physical ailments as well, including a very bad skin
rash, and continued to struggle with pain from my ruptured hernia. By
the time of my release, I had lost more than 20 pounds and was just a
shell of my former self.
The stress was almost unbearable. We were surrounded by armed
guards and the creepy sense of being watched every minute made me feel
like a caged animal. We lived with the constant knowledge that at any
moment we could be executed or killed in a bombing raid. If necessary,
however, we were prepared to die for our country and, when the Iraqis
tried to pressure me to go on television to denounce my president and
my country, I told them to ``go to hell.''
I soon began succumbing to anxiety attacks, developed chronic hand
tremors and lost my ability to concentrate to the point that I could
barely read a page. I suffered from insomnia that left me in a state of
perpetual fatigue. When I did manage to sleep, I would often awake to
terrible nightmares of being hunted down and tortured. As the weeks
wore on, I became totally distraught, feeling as if my captivity would
last forever and wondering how much longer I would be able to maintain
my grip on reality.
Finally, on December 2, my nightmare came to an end when I was
placed on a list of hostages to be evacuated with Muhammad Ali, who had
come to Iraq on a humanitarian mission. Upon returning to the States, I
was hospitalized for several days, while I received treatment for my
hernia and internal bleeding.
In the months following my release, I was plagued by intense
anxiety attacks and had flashbacks of being captured and beaten. I was
unable to recover my appetite and suffered from recurring bouts of
depression, which plague me to this day. I had great difficulty
concentrating and was forced to retire at what should have been the
height of my career. I have an exaggerated startle response to loud
noises and grind my teeth so hard when I sleep that I am forced to wear
a mouthpiece. I have been diagnosed with post-traumatic stress disorder
and am still haunted by painful memories of my ordeal in captivity.
Today, 18 years after that ordeal, I am deeply saddened and
bitterly disappointed at the treatment I have received from my own
government and, in particular, the Department of State. I believe that
the Department bears at least some of the responsibility for my plight,
having assured me and many other Americans who had contacted the U.S.
Embassy that the Iraqi buildup along the Kuwaiti border was just
``saber rattling'' and that there was nothing for us to be concerned
about. Subsequently, after the invasion, Embassy officials refused my
pleas to allow my wife and I to seek refuge within the Embassy compound
at the same time they were granting safe haven to American diplomatic
and military personnel. And, finally, ever since my release, the
Department has done everything in its power to derail the lawsuit that
my wife and I, along with more than 200 other former hostages, have
brought against Iraq in an effort to obtain some measure of justice for
the injuries we have suffered.
In March 2003, about 180 of our fellow hostages who had filed an
identical lawsuit managed to obtain such justice when President Bush
ordered that their judgments be paid from blocked Iraqi bank accounts.
I am very pleased that these victims were able to get the justice they
so greatly deserved. At the same time, however, I find it grossly
unfair that a second group of victims who were held captive at the same
time and under the same conditions have received not one dime. I cannot
understand how the State Department can believe this situation is
acceptable. I know that I never will and, unless and until something is
done to right this wrong, I know that my wife and I will never be able
to close the door on this horrific chapter in our lives.
I urge this Committee and this Congress to help us do that by the
Braley-Sestak proposal. On behalf of my wife, myself and all of our
fellow hostages, I thank you for taking the time to listen and to
consider our plea.
Mr. Cohen. We will now have a round of questions for our
witnesses, and the Chair will proceed first.
First, I would like to ask Ambassador Moore and Mr. Wolf,
had section 1083 of the 2008 defense bill passed in its
original form, how would it have helped your cases?
Ambassador?
Mr. Moore. Thank you, Mr. Chairman.
The POWs in working with the Congress on that bill sought
to do nothing but restore the original intent of the Congress
and provisions of law that had been badly distorted.
For example, one provision dealing with cause of action in
a case, a technical legal issue, as you know, Mr. Chairman. And
this is one in which the Committee itself had stated in its
report that the provision was intended to create a Federal
statutory cause of action. That was later held by a court as
something that--cause of action that created a problem for the
POWs in the case.
So it would have simply returned--restored the original
intent of the Congress. So that is all the POWs sought. They
did not, by the way, seek anything to go against the funds of
Iraq in United States banks. They sought no such provisions
whatsoever.
What they would have done--indeed, we had it prepared
already--was to file a motion back in the Federal district
court pursuant to the provisions of the defense authorization
bill that simply would have quickly restored our judgment
instead of leaving it there, as it is currently under a motion
in the Federal district court, a technical legal motion under
section 60(b) of the Federal Rules of Civil Procedure.
So, actually, what it would have done, it would not have
taken a penny at that point from Iraq. It simply would have
restored the original judgment which is still pending before
the Federal district court at present.
Thank you, Mr. Chairman.
Mr. Cohen. Mr. Wolf, do you have anything to add?
Mr. Wolf. Yeah, I guess.
Quite simply, I believe if the bill had been enacted, we
would have moved to judgment in the case. We would have
proceeded no doubt against Iraqi money in U.S. banks, and we
would have obtained--enforced those judgments, I believe, in
modest amounts and in amounts that were far less than the
billions of dollars that the Administration said that were at
risk here. It would have been probably about $120 million or
so.
Mr. Cohen. Thank you.
Ambassador Moore, can you explain how our obligation under
the Geneva Convention never to absolve the torturing state of
any liability with regard to POWs makes this a particularly
unique case?
Mr. Moore. Yes, Mr. Chairman, this is one of the few, if
not the only, settings in the world in which there is a treaty
obligation binding on every nation in the world. The POW
Convention is one of very few conventions accepted by every
nation in the word, not simply customary international law. And
one of the core deterrent mechanisms in that to prevent torture
of POWs is the provision that not only the torturing state, but
no other state to reflect either a victor in a war or a loser
in a war, no one, can absolve a torturing state for any
liability for torture.
So we have a fundamental principle here indicating that the
judgment that had been won by the POWs--determined, by the way,
after a full hearing on the facts in the law by a judge who was
a former assistant attorney general of the United States of
America, and, by the way, in a procedure in which--even when
the other side doesn't show up, you have to have a full hearing
and go through it in any event.
So--and in a setting, as well, in which they have had to
turn down international arbitration, which they did about the
case for us initially.
So this is an absolutely unique setting for the POWs in
which there is a clear obligation that their liability cannot
be absolved.
I might add, it is also very, very clear in the sense that
you already have had a Federal judgment indicating in every
single case what the damages should be after reviewing careful
damages in all of the other cases. We also have a Presidential
statement in 2002 that has pledged that the United States of
America will hold torturing states accountable; they will be
held accountable for mistreating Americans.
So you have a whole series of provisions, including three
unanimous resolutions of the Senate and the House, all
basically indicating that there should be liability in this
case.
I might add, Mr. Chairman, that we understand that there is
a new government in Iraq and a war still going on. Since you
have asked a narrow question on this other one, a very
important one, I would like to just hold that one for a moment;
and we will come back to it, if that is all right.
But I would like to talk to some of the points that I think
Mr. Lungren has appropriately raised.
In relation also the interest of this and serving the war
effort, because we believe very strongly that this bill, this
proposal does serve the war effort as well.
Mr. Cohen. Would you like to proceed in that matter.
Mr. Moore. Yes, actually I would. Thank you very much, Mr.
Chairman. I appreciate it.
Mr. Cohen. Permission granted.
Mr. Moore. Thank you, sir. The POWs and family members that
I served were all volunteers. They went in harms way, and many
of their colleagues and friends still are going in harms way.
They would not support anything that they believe would harm
the war effort in any way, shape or form. And I would not be
here testifying on their behalf if I believed that. When the
President of the United States vetoed the defense authorization
bill, it was because at that time I do not believe the
Administration had a sense or Iraq had a sense of what the
liabilities might be in relation to provisions in that bill
which had not been sought were not put in by the POWs. But I
think realistically, they didn't know at that time what those
liabilities were.
Thanks to the action of the Congress in putting in a
provision indicating this should be something that the
Administration tries to resolve, the Justice Department held a
meeting on April 22nd for all of the claimant groups that are
now reflected in the Braley-Sestak matter, because we believe
these were the claims that were looked at and thought to be
valid claims of victims of terror, all under the provisions
that were then in court. These were the critical ones that had
been addressed in the 2008 defense bill at that point.
In that setting, all of the claimants made a very
substantial presentation, putting on the table in the case of
the POWs an illustrative settlement offer that is largely
reflected in the Braley-Sestak bill that would waive all
punitive damages, $306 million in punitives, that would waive
two-thirds of all of the compensatory damages. Over $400
million waived of compensatory damages. These damages are not
awarded by an out-of-control jury, for example, in some case a
jury that doesn't like Iraq. These damages are awarded by a
Federal District Judge in the same setting for trials against
the United States of America looking at the law and the facts
very carefully. That was a rather extraordinary effort to
basically waive, in the interest of trying to resolve this
matter, over $700 million in the judgments.
Now, why do I believe that this bill, Braley-Sestak, and I
believe this from the bottom of my heart, is something that
should be strongly supported on a bipartisan basis and serves
the war effort as well as serving justice for these POWs. The
first point is that this would dramatically get rid of and
reduce the most important and politically supported claims
against the Government of Iraq today. And it would do so on
terms that are very close to the commercial debt arrangements
that Iraq is basically working out.
Iraq is largely settling those commercial debts which it
has been doing for about $0.20 on the dollar, though some have
held out for more, and Iraq is doing the same thing roughly for
sovereign debts under what are called Paris Club terms for
approximately $0.20 on the dollar. That is roughly what has
been put on the table here for debts of honor, something that
we think are far more important to this country and to these
POWs and what their entitled to, than are commercial debts;
such as those of Mitsubishi of Japan and Hyundai of Korea that
have already been settled with approximately 20-30 billion
being settled.
So this would remove at one fell swoop the remaining core
principal claims that have a strong constituency in the
Congress of the United States; claims that will have to be
resolved appropriately at some point.
The second reason why this is in the war effort, Mr.
Chairman, is that this will simplify the work of the
Administration in trying to conduct two important negotiations
at this point with Iraq. The first of those is the status of
forces negotiation. I served as a former counselor on
international law in the State Department, and I know about the
SOFA negotiations and they are also engaged in doing sort of a
strategic overview agreement as well in which they are
negotiating with Iraq. These are difficult negotiations. It
will absolutely unequivocally serve those negotiations to
remove these issues in a way that are very favorable to Iraq
and provide fair justice and are honorable to POWs. That is
exactly what the Braley-Sestak proposal would do.
Thirdly, Mr. Chairman, in relation to this serving the war
effort, I believe that this is potentially an enormously
important issue with the American people. I think some
anonymous advisors are giving Iraq very bad advice. The issue
of fair treatment of American POWs resonates with the American
people. This issue needs to be resolved in the interest of
support for the new government of Iraq. And I think that
government is now getting terribly mistaken advice.
If I were they, I would immediately resolve this and not
even wait for the Congress to pass this bill. This is a very
good deal for Iraq in terms of what is in here.
And finally Mr. Chairman, the last point as to why this
serves the war effort is that one of the objectives of the
United States of America in this war is to promote a democratic
rule of law government in Iraq. It does not serve that
objective for the United States to simply avert our eyes primly
while Iraq seeks to basically violate a fundamental treaty
obligation. Nor do I think it is fair to American honor to have
a setting in which Iraq is being told by these anonymous
advisors to go out and settle the debts, $20 billion to $30
billion in debts with foreign corporations of other countries,
while they are basically ignoring the debt of honor owed to
these American POWs. Thank you for that opportunity, Mr.
Chairman.
Mr. Cohen. You are welcome, Ambassador and thank you. I
would now like to recognize the Ranking Member, Mr. Lungren.
Mr. Lungren. Thank you very much, Mr. Chairman, and thank
all four of you for your presentations. You know when you first
look at this or when you just look at it it appears to be an
easy decision. I mean, when you hear the testimony of Captain
Slade and the testimony that we received from Mr. Charchalis,
how can you dispute the experiences the two of you went
through, and how can you dispute that it violates every idea of
international law and civil conduct. And so you wonder why do
Administrations not just immediately allow these lawsuits to go
forward and these assets that basically have been frozen to be
exposed to these kinds of judgments.
And so I mean, I think, you have made compelling testimony
here, Ambassador and Mr. Wolf. So let me just ask you if you
would respond, because this is not just a position that this
Administration has taken in this circumstance. And maybe Mr.
Wolf, what you are talking about is the State Department. We
could really argue about that. But let me just articulate or
quote from a statement that a previous Administration had used
with respect to another country involved in the same situation.
And they said, first blocking the assets of terrorist states is
one of the most significant economic sanction tools available
to the President.
The proposed legislation, this again was a previous
Administration, but the proposed legislation would undermine
the President's ability to combat international terrorism and
other threats to national security by permitting, in this case,
they talked about the wholesale attachment of blocked property,
thereby depleting the pool of blocked assets and depriving the
U.S. of a source of leverage in ongoing and official sanctions
programs such as was used to gain release of our citizens held
hostage in Iran in 1981 or gaining information about POWs and
MIAs as part of the normalization process with Vietnam. In
other words it seems that they are establishing a principle
that they are concerned about, not only in terms of current
conditions, but future conditions. And I could argue with that,
but I wish the two of you would address that.
Mr. Wolf. Congressman Lungren, the most immediate response
to that is that this country doesn't negotiate with terrorists.
And what we are talking about here are countries that are
engaged in brutal acts of terrorism. Their assets are then
attached. And the question is are we going to use those assets
in some future negotiation 20 years, 10 years, 5 years down the
line as some type of negotiation, while those countries have
absolutely no respect for our assets or the rights of our
citizens. Or are we going to use those assets at least in part
to provide some redress for the victims who suffered so
terribly.
Now, the State Department and the successive
Administrations have had every opportunity to resolve these
claims on a state-by-state level providing reasonable amounts
of compensation. They have the power to do that under
international law to espouse claims. But the problem is that in
general--and I do direct most of my criticism of this to the
State Department because I know that it is essentially a
bureaucratic problem.
Essentially what the State Department is doing is they look
at sort of international relations or their mandate is one
essentially of keeping things calm between the United States
and other countries. And they have that sort of mind set, which
sometimes is, of course, appropriate. But they also have a
mandate to protect the rights of American citizens.
And when you are talking about reasonable amounts of
compensation from someone like Saddam Hussein or from the
Iranian regime, there is just no reason, there is no basis to
keep assets tied up for 10, 15, 20 years on the basis of some
future speculation that you might be able to use those
negotiations and stuff, those assets and stuff for some sort of
leverage. I think that the true fact is that the Department
thinks of those assets as kind of theirs, as their sort of
bailiwick to do what they want with. And for that reason, they
view this sort of more as a turf issue than anything else, and
I think that is why they are so opposed to it.
And I would note that in the case of the Hill plaintiffs,
for example, you have a situation here where you had reasonable
judgments. We didn't go in there looking for the stars and the
moon. We were looking for reasonable amounts of compensation,
$500,000 per claim on average, some of them were higher, some
of them were lower. And ultimately, the Bush Administration did
make the decision to license blocked Iraqi assets to pay for
those claims of those 120 victims. And yet here we are sitting
here today with Mr. George Charchalis and 200 other Americans
detained under the same conditions at the same time in the same
circumstances, and the Department somehow feels that it is
appropriate that these individuals should not get a single
dime. They are making no effort.
We have talked about, Congressman Lungren, about the kind
of proposal that the State Department could have put forward or
was asked to put forward years ago. We have gone to the
Department time and time again asking them to put forward a
proposal. We have proposed alternatives to them. We have
proposed various means of addressing these claims and other
claims. And every time we are met with one response, and that
response is deafening silence. And so the time is now here that
Congress has to act. If they do not, nothing will happen and no
one is going to get compensated, and that is the truth of the
matter.
Mr. Lungren. Thank you. Ambassador.
Mr. Moore. Yes, sir. Thank you, Congressman. I think the
points you have raised, I would say as a former counselor on
international law, has, in a variety of settings, some very
important credence, and it is certainly something that we have
always looked at in the Department of State. I think in this
particular case, however, it does not apply for some very good
reasons. Indeed, I think it is actually for the converse in
this case.
The first thing I would note on that is in this case the
$1.7 billion in blocked Iraqi assets which were there when we
began this case on behalf of the POWs before the war were
earmarked by the Congress of the United States itself to pay
these judgments. And so the Congress itself had taken action in
this case to say where those funds went. Indeed, when the funds
were seized by the President, $100 million of that was used to
play the first tranche of the hostage plaintiffs.
So the hostage plaintiffs, the first group, at least,
received $100 million with the approval of the Administration
from the blocked assets. POWs have received absolutely nothing.
The second point, and this is the one why I think, Mr.
Chairman, it is really the converse in this particular case.
And that is that right now the Administration is in a very
difficult set of negotiations with Iraq. I really think this is
an extremely important set of negotiations and very important
for the war effort.
They are the SOFA negotiations and the strategic
relationship negotiation. I believe that these are settings in
which Iraq actually is in a position to use this because it
knows that the President cannot come home without having
something probably trying to deal with this. Iraq can use this,
the government against the President of the United States and
against the executive branch in relation to leverage the other
way. I think it is very significant that the Administration
chose not to testify at this hearing. If the Administration
were clearly in opposition or the President thought that this
was a bill that he was worried about or needed to veto, they
would have opposed.
Again, going back to my experience in the State Department,
we would never permit a hearing with something of this sort
that we felt would compromise our interest and not come up and
testify on behalf of the executive branch. I think what this is
signaling, and this is exactly what all of us as the counsel
after the April 22 Justice Department meeting felt, is that the
executive branch of the United States, now that it knows there
is a very limited amount, a settlement that has been put on the
table that is very favorable to Iraq as well as honorable to
the hostages and our people, that is a good deal, it is easier
to have Congress deal with it and, in my judgment, they are
standing aside for the Congress of the United States to deal
with this.
Mr. Lungren. So you view the April meeting or consultation
as a positive step?
Mr. Moore. Absolutely. Indeed, let me say I appreciate very
much the fact that we had this interagency meeting, Mr.
Lungren. I think the Administration was very good in putting on
that meeting, was responsive to the question that the Congress
had asked them to look at this. I am sorry, they then didn't
choose to actually resolve the whole thing. But I think frankly
the reason they didn't is because they felt they would have
better leverage in the other issue if Congress resolved this
issue and they stepped aside.
Mr. Lungren. Would you say that the consultation helped to
narrow the issue or the parameters or the size of the potential
recovery or the size of the challenge to the Congress and the
Administration?
Mr. Moore. Yes, sir, I think it did.
Mr. Lungren. Thank you.
Mr. Moore. I think the Administration saw very clearly that
what we were faced with now was a very discrete amount. In
fact, let me put it in context. At the time of the presidential
veto, they were concerned about the possibility of risk to $20
to $50 billion in Iraqi assets in American banks. The entire
amount in the Braley-Sestak approach, which is basically all of
the valid claims, again and how we know that, this is the group
vetted, selected by the Justice Department itself for these
meetings, and in that setting, what does it amount to? It is
$415 million for the total amount, including something in the
mid two hundreds for the POWs, but that total amount is
considerably less than 1 percent interest for 1 year on Iraq's
funds in United States banks today, which are about $50
billion, ignoring altogether the additional oil windfall of the
doubling and tripling of the price of oil.
We are all seeing the prices at the pump today, that are
going into Iraqi coffers. Iraq itself is saying over and over
today we have the money to do what we want to do. They can't
possibly spend the money they have now on reconstruction. So we
are talking about for an issue of national honor in fairness to
these people something that is considerably less than 1 percent
of 1 year's interest on Iraq's bank accounts only in the United
States.
Mr. Cohen. Thank you, Mr. Lungren. Mr. Scott from Virginia
has joined us. Do you have any questions.
Mr. Scott. Could I defer at this time and be called on
later?
Mr. Cohen. Yes, sir. Are there questions from Mr. King of
Iowa.
Mr. King. Thank you, Mr. Chairman. I also want to thank the
witnesses. And this has been a hearing that has been
informative to me. I have a series of questions that
accumulated as I listened to the testimony. And I think I might
try to work backwards through this in this fashion. I don't
understand the reluctance on the part of Iraq. As I listen to
your numbers in the way you describe it, it does appear to be a
prudent business decision on their part to resolve this.
And so the question I would have for you, Ambassador, would
be is there a chance that the Iraqis are looking at this could
potentially set a precedent that might open up more liabilities
in their country to perhaps nationals from other countries that
have been tortured in Iraq under different circumstances?
Mr. Moore. Congressman, that is an excellent question.
Before I start, let me just extend my condolences for the
terrible flood for the people of Iowa. I am terribly saddened,
and I know this whole country is.
Mr. King. Thank you very much. We all appreciate that.
Mr. Moore. The precedent actually works in favor of
settlement. Because to be able to settle what is the debt of
honor that is something that is far more important than any
commercial debt, and they have to know that, for terms that are
basically the settlement terms for commercial debts, would give
them enormous leverage in relation to removing the rest of the
sovereign debts that they have. I believe that there are some
anonymous advisors for Iraq. I don't know who they are, I don't
know where it is coming from, and I don't know the reason,
Congressman. I think they are receiving terribly bad advice in
their own interest and in the interest of the war effort.
Mr. King. And I thank you. So another component of this,
and I would think that probably everybody on the panel knows
this, but I will stick with you Ambassador, and then is there a
precedent for American POWs who were tortured receiving
compensation from the Nation? I am thinking particularly, of
course, John McCain who might be an expert on this and probably
has an opinion.
Mr. Moore. There is precedent, Congressman, but
unfortunately it has been for what I say are kind of the
equivalent of a used car. And I think that is absolutely the
wrong precedent. And if that is what the United States does and
how it responds every country in the world is simply going to
continue to torture Americans in war after war as they have
been doing.
Mr. King. So how might I understand whether there have been
Americans compensated who were tortured in previous wars? Has
that ever happened?
Mr. Moore. Yes, some of them have been. Small amounts in
World War II. I do not believe anyone from Vietnam was. By the
way, I might add that one of the reasons this case was brought
to get serious about deterring torture of POWs and one of the
most effective ways to do it was to implement that provision in
the POW Convention. I brought this case with a former legal
advisor of the Department of State. We gave a heads up to the
Government of the United States before we filed this case. The
principal witness for the POWs was the top Army expert on
protection of POWs and understanding of the laws of war who
testified for them in the court. We courier'd copies of the
complaint the day it was filed to the Vice President of the
United States and the Deputy Secretary of Defense. This case
was fully known by the Administration at the time we filed with
them and they supported it.
Mr. King. Let me ask this question. This is the one that
actually troubles me. And that is when I am looking at a Braley
amendment, it is actually number 65, and the language here is,
or an unqualified and unconditional guarantee made by a United
States depository institution to pay within 30 days, and then
it lists the claims individually. I expect you are familiar
with this language. Is there any precedent for a nation who was
at war to take on a liability in place of a nation who was
committing the torture?
I mean, this language binds the United States taxpayer, and
I think that is an entirely different question. Could you tell
me if there is a precedent in that regard?
Mr. Moore. Congressman, with due respect, I know the intent
of the Braley-Sestak bill is not to, in any way, shape or form,
have any liability or obligation for the United States
taxpayer. So I believe that option in the bill is actually a
provision that lets Iraq either pay immediately from its funds
or Iraq, not the United States, to get a bank obligation at
that point. And if that is an issue we certainly have no issue
or problem at all in changing that.
We seek and have always sought to hold Iraq accountable. We
want the torturers to be held accountable, and we have to start
somewhere. Frankly, if we could have started with our Vietnam
POWs we probably would have done so.
Mr. King. Well, I appreciate your position, Ambassador, and
I share that position that I think it would be an unfortunate
precedent to hold the U.S. taxpayers accountable for a
liability that is likely created by a foreign government, enemy
government, a terrorist nation. And that is an important point.
And I can't support it if it is going to bind American
taxpayers and what is, according to the Braley amendment says,
an unqualified and unconditional guarantee made by a United
States depository institution, unless, of course, that refers
to a bond that might be posted with U.S. currency, and that is
a possibility. I see Mr. Wolf leaning forward.
Mr. Wolf. I think the intention there is at the direction
of the Iraqi Government, the bank would release funds to pay
the judgments. It is not a mandate that a bank holding U.S.
taxpayer funds would pay them money.
Mr. King. Under that description and understanding, I
appreciate that. And then could you then, just a final
question, Mr. Chair, if you will indulge me here under the
protocol we have been using, the precedence, could you list,
again, Ambassador, could you list some of the precedents
historically that have, and I am thinking of war reparations,
that have been levied against perhaps Germany post World War I,
and then just going from memory, when a liability that was
incurred by, let me say an evil empire, a terrorist nation,
that was transferred then to the peaceful and good people of
the legitimate government that was the successor and the result
of successful liberation of Iraqi people, are there precedents
historically aside from that one I just mentioned?
Mr. Moore. Congressman, I can give you some examples, but
indeed, I will talk about one in a second. But let me just say
that that is not what we are about, that is not, to my
knowledge, what this bill is about. I couldn't agree more with
you. What we are about here is holding Iraq accountable. We
want Iraq, the torturing state, to be held accountable. And if
there is any question about the language at all that needs to
be, as I have understood it all along, to be something that is
only either Iraq either pays within the 90 days or Iraq has a
bank pledged to pay, Iraq does, but not the United States.
Mr. King. I think, Ambassador, my point wasn't clearly
stated. But when you have a nation that was a terrorist nation
that committed acts of atrocity against the individuals sitting
here on this panel included, then that nation is liberated as
they were with the help of individuals on this panel and
ultimately the successors in that government now are
representing the people of Iraq who were not culpable in the
actions that were ordered by Saddam Hussein. And so the
transfer then of the liability that goes from the evil empire
over to the peaceful moderate Islamic nation that I hope and
believe today is an ally of ours, shifts a liability on to
them. What are the historical precedents for something like
that?
Mr. Moore. Thanks for clarifying it. I misinterpreted your
statement, Congressman, and I don't know any examples of that.
But let me tell you why it is right in this case. It is right
in this particular case, one, because the United States
Government has always held, and it is standard international
law, that debts go with states not with governments. And if we
change that rule, it would basically harm financial markets
enormously. The second reason that it is right in this
particular case is this is a unique setting in which there is
an obligation that you can never absolve the torturing state of
liability. That treaty obligation from Article 131 of the POW
Convention would trump anything else. And the third, if you
simply looked at this in fairness terms, Mr. Chairman, and you
said you know the people of Iraq had nothing to do with this,
we now have a very fine new government in Iraq, then what you
are dealing with is the innocent people of Iraq versus the
innocent American POWs who were innocent and injured. That is a
standard setting in tort law, frankly, in which you go with the
innocent and injured.
Mr. King. Let me say, Ambassador, I do not disagree with
your response at all, and I appreciate it. It was succinct, and
I believe it was correct and I will follow up with a written
question. And I yield back and thank the Chairman.
Mr. Wolf. I just want to give you a couple of examples.
Because as I understand it, after World War II, American POWs,
some of our POWs tortured by Japan were paid out of blocked
Japanese assets. Obviously, the Nazi government in Germany paid
a lot of foreign nationals for years to come after the
Holocaust, and there are, in fact, a series of other examples.
I think that the problem that we have here, and I do totally
agree with Professor Moore's statement, as you do as well, I
understand, that the successor government is liable or
responsible for the acts of the prior government.
But the problem that we really have here is that with our
current institutions, our State Department making these
decisions on an ad hoc basis, concerned as they are with the
foreign policy exigencies of the moment as they perceive them,
the justice that is delivered is hardly uniform. And the
problem here is that the decision of our government is just
simply to ignore these claims for 18 years.
Mr. King. I would submit also it is very difficult to sort
out the reality of the history post World War II. There were
orders that the court issued that were not followed. The
American public believes one thing, reality is another. So it
is hard to track that. But I think your point is well made and
well taken. I appreciate all the witnesses' testimony. I thank
Mr. Chairman and I yield back.
Mr. Cohen. Thank you, Mr. King. Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. I want to follow
through on the idea of what precedents we are setting that the
gentleman from Iowa started. But first Ambassador Moore let me
get just background. These judgments that you obtained were
against the Republic of Iraq?
Mr. Moore. Yes, Congressman Scott, they were against the
State of Iraq, they were against the Iraqi intelligence service
and they were against Saddam Hussein initially. They were also
joint and several. So actually the survivor of all that, of
course, today is the State of Iraq, so they are all against the
State of Iraq.
Mr. Scott. The money that is being held is money owned by
the Republic of Iraq?
Mr. Moore. Yes, sir.
Mr. Scott. And just following through on some of the
comments made. We are over in Iraq presumably right now trying
to help Iraq, and they are refusing to settle for what is a, as
you have indicated, fairly modest portion of what is being held
in Iraq--I mean, held here in the United States. Just what
rationale are they giving for failing to settle?
Mr. Moore. Sadly, Congressman, they are giving none. They
have not talked to us and we have not heard any discussion. The
only official statement we have heard from our own government,
and we do appreciate that statement, was one read at a White
House presidential press conference in which the press
secretary said on behalf of the President of the United States,
``there is no amount of money that can adequately compensate
these brave Americans for the terrible torture that they went
through.''
Mr. Scott. In terms of precedents, we have had examples of
prior lawsuits, but it seemed to me that we are talking about
those that are lost in a war. Are these kinds of judgments
recognized internationally?
Mr. Moore. Congressman, yes we believe so. That this is a
setting in which it is virtually impossible to find a clearer
provision of international law than we have in this case. That
is you don't torture POWs. By the way, this is a very clear
question of POWs, very, very narrowly limited, torture of POWs.
Every single nation in the world is a member of that
convention, and therefore every nation in the world follows
that obligation. And they not only have the obligation, but an
obligation in Article 131 never to, ``absolve'' a torturing
state of, ``any liability'' for the torture of POWs.
Mr. Scott. Well, if you have a precedence it could work
both ways. In this case, the judgments were obtained in the
United States?
Mr. Moore. Yes, sir.
Mr. Scott. If another country were to find say the United
States had tortured someone, would the same principle apply?
Mr. Moore. Congressman, it applies only in a setting, of
course, in our case, as a precedent when you are actually
dealing with a prisoner of war, recognized prisoner of war
under the Convention. I am aware that there is a detainee issue
that we have had and discussed in the United States. I do not
believe that that is a comparable one to the setting we have
because here it is a matter of clearly state-directed torture
of clear prisoners of war. And in that case any such setting,
if we did that, yes, there would be liability and there should
be.
Mr. Scott. Well, and that would be a determination of fact
in the appropriate tribunal?
Mr. Moore. That is correct.
Mr. Scott. And if in another country they so found, what
would our reaction be to their lawsuit?
Mr. Moore. Well, I think the question here again is one of
a particular--finding of a particular court and what the court
is and how it worked. If what we are talking about is a sham
trial in some country that is a terrorist country, I think we
would properly say this not the rule of law. If what we are
talking about is a serious review of the issues--for example,
there has been another setting in which the government of the
United Kingdom in relation to a finding that certain of its
individuals had gotten involved in certain of these things,
said it volunteered, that it owed compensation in that setting.
And I might add that when the Secretary of Defense of the
United States testified before the Congress in relation to the
Abu Ghraib setting, he said the United States owed appropriate
compensation to those. So what we find is it is rather strange
to have the----
Mr. Scott. But in that case, if they were to actually have
a lawsuit in Iraq and come up with a judgment amount, would we
recognize it?
Mr. Moore. Congressman, the United States, to my knowledge,
has not had a setting in which we are engaged in command
directed torture against prisoners of war.
Mr. Scott. Well, that is a finding, that would be a matter
of finding of fact.
Mr. Moore. Yes, but the findings of fact are essential and
critical in terms of the rule of law as to what it is.
Mr. Scott. And the finding of fact would be a determination
of the tribunal where it is?
Mr. Moore. Yes, but it would have to be a fair setting in a
fair tribunal in terms of what the setting is.
Mr. Scott. And if both sides have the opportunity to
present evidence and the tribunal decided against us, would we
recognize or not recognize it, depending on whether we agreed
with their determination?
Mr. Moore. I think that would be an issue for, as it always
is, for looking at individual settings in individual cases,
Congressman. But let me just say that I realize we can talk a
variety of hypotheticals. But this is a very real case we have
here in which we have an absolutely clear, absolutely fair
determination with a Federal Judge, former Assistant Attorney
General for Human Rights in the United States Department of
Justice finding absolutely clearly with a fair hearing on the
law and the facts in a court, I think, all of us would agree is
completely fair, and perhaps the clearest of all obligations
that we see that are agreed among nations around the world of a
setting of torture, command directed torture of clear prisoners
of war.
Mr. Scott. Do you think we would have similar exposure in
Guantanamo Bay or in Abu Ghraib?
Mr. Moore. Congressman, I don't think it is my place to
speculate about those settings at this point. Let me just say
that in this case we have a very clear setting, and at least,
our obligation here is to fundamentally adhere to the rule of
law in this particular case.
Mr. Scott. Well, I agree with you. My question was what
precedence might we be setting that could be used both ways?
Mr. Wolf. Congressman, could I just speak to that first for
a moment?
Mr. Scott. My time is expired, so you have the last word.
Mr. Wolf. Okay, thank you. These arguments allowing
American victims of terrorism to hold foreign states
accountable in American courts would lead to the American
government being hailed into court abroad have been made by the
State Department and various Administrations since the 1990's
when these proposals were first made years ago. And Congress
has passed a series of pieces of legislation having heard those
arguments and rejected them. So that bridge in a way had
already been crossed. And the issue that we are dealing here
today with is whether we are going to make a single exception
for one terrorist state that terrorized American victims and we
are going to treat that state differently than we are treating
other state sponsors of terrorism, and there is simply no
justification for that. The policy decision has been made by
Congress. They would have to--Congress would have to undo the
entire decision before there could possibly be justification
for exempting one terrorist state.
Mr. Scott. Well, where are the other examples where
terrorist states have been sued by people in another country
using their courts, getting judgments in the local courts and
those judgments have been actually enforced?
Mr. Wolf. Well, I mean----
Mr. Scott. You say this is the exception. Where are the
others?
Mr. Wolf. What I am saying Congressman is that, for
instance, there have been judgments against the Iranian
government in our courts, judgments against the Libyan
government, judgments against the Sudanese government, all
terrorist states, one by the way a former terrorist state
Libya. And the question here today is are we going to exempt.
Mr. Scott. And those judgments were enforced?
Mr. Wolf. They were enforced, absolutely. Pan Am 103.
Judgments on behalf of Terry Anderson and various others. And
just to be complete on the answer, it is true that there have
been some cases brought in the Islamic Republic of Iran against
the United States. And I think that basically our government
does with those judgments, or treats those judgments with the
dignity that they deserve. We just ignore them because we don't
have any real faith in the Iranian judicial system. But our
foreign policy I don't believe has been compromised by those
judgments.
Mr. Moore. May I add to that Congressman, if you would.
This is a setting also in terms of the question as to the rule
of law. We have a number of different ways to engage with
countries around the world. We have to protect ourselves with
military force. We have to--we have economic sanctions to some
extent. One of the most powerful tools we have that we must use
that is enormously effective in the fight against terror, we
are the 2,000 pound gorilla when it comes to the rule of law
and when it comes to financial institutions around the world,
is the rule of law.
It is in our interest to have fair trials, terror states
will not. It is in our interest working with our allies to
promote the rule of law in this area. By the way we are talking
here also about national law. All of these actions were brought
under laws that were authorized by the Congress of the United
States in the 1996 anti terror amendments. None of the actions
that we brought, while they are fully consistent with
international law, none of these actions were brought under
international law. They were filed under national law as
authorized by the Congress of the United States. And this is
another one of the issues for us in the rule of law.
Because we think it is very important when we file these
actions that Congress has made available for a series of
wonderful Americans, it is very important that Congress stand
by its word in relation to moving forward on these, not just
simply the word also of the unanimous resolution saying we are
going to hold accountable those who torture American POWs. So
this is really American law that we are talking about in
American court. And it is most broadly, you are absolutely
right in asking this question of how does it work in terms of
what comes around goes around, et cetera. The answer is that is
in our interest, unequivocally in our interest.
And I would like to join my colleague, Mr. Wolf, in saying
one of the sad things here is the Department of State has been
caught in old thinking for too many years in relation to that
broad issue. This is not just important for us in this case,
this is important, for example, in actions against Iran in
relation to the war on terror. It is one of the most effective
tools that we have.
Mr. Cohen. Thank you. Let me ask a question of Mr. Wolf and
Ambassador. Are there any other groups of victims who you know
of with pending lawsuits against the Iraqi Government.
Mr. Wolf. There are two cases, or actually one pending case
of which I am aware. It involves a continuation of what was
known as the Dalaberti case involving two American citizens or
three American citizens who had strayed too close to the Iraqi
border or strayed close to the Iraqi border and they were
taken, imprisoned, held in horrible conditions and really held
hostage. And these are suits by the children. Those suits
were--the initial suits were successfully resolved. The
continuation are suits by the children. And that is the only
pending suit right now that I am aware of.
Mr. Cohen. Are there analogous cases with the Libyan
government where American service men might have been injured.
Mr. Wolf. I am glad you asked the question concerning the
Libyan government. There are cases concerning the Libyan
government. I don't know whether any of those cases involve
American service men, but therecertainly are cases against the
Libyan government involving American citizens. And it is
interesting, especially in light of Congressman King's comment
about former governments and whether, former terrorist
governments and whether the United States has ever held those
accountable. Apparently, the United States Government today is
involved in state-to-state negotiations with Libya in an effort
to try and obtain compensation for some of the American victims
that were killed or families that were killed and otherwise
abused, tortured, by the Libyan government. So we are doing
that with respect to Libya, but with respect to Iraq it seems
like our government wants to let them off the hook.
Mr. Cohen. Let me ask you one last question, and I will
recognize Mr. Gohmert. As I understand it, we have got a goodly
number of amount of assets of Iraq on hold here in America,
right.
Mr. Wolf. That is correct. More than $50 billion.
Mr. Cohen. And these were assets of the previous
government, the Saddam Hussein government, right?
Mr. Wolf. I believe that some of them may be residue of the
Saddam Hussein government, but I am not 100 percent sure of
that fact. I think some of the money has to do with proceeds
from oil sales that have been made since then, but yes, I
believe some of that money is from the former government. It
was transferred to accounts in New York.
Mr. Cohen. And to some extent, the issue is whether or not
those assets that were of the previous terrorist government
should be used to satisfy the claims against the government or
held for the successor government?
Mr. Wolf. In a sense, although we would argue, and I
believe correctly, that the successor government is liable.
Mr. Cohen. Would you argue that the assets that are
existent that were there because of the previous government,
the terrorist government, really aren't the terrorist
government's assets in that they committed tortious acts,
terror, murder, whatever, and that because of those tortious
acts, that money is really the money of the plaintiffs and
never should have been considered the money of the previous
government, since they had a liability that they incurred and
that that liability that they incurred even prior to judgment
was a liability toward these plaintiffs, that the monies really
were not the monies of the previous government and should go to
the successor government, but should go to the people they
harmed in their tortious conduct, and accordingly would be a
windfall to the new government to get the assets and not to
have the liabilities also accrued to them? Would that be an
accurate statement?
Mr. Wolf. I like that argument, and I think it would be
correct.
Mr. Cohen. I thought you might. The gentleman from Texas is
recognized.
Mr. Gohmert. Thank you. It is interesting to hear
discussion about the rule of law when we can't even follow
proper procedure here in our Committee. We are in the second
round, and now I am getting my first round. So I appreciate
finally being recognized. I have a number of questions. And
really I agree with you, Ambassador, that it is important to
hold people accountable. It is also important to hold the right
people accountable. I agree that using a tort system can be an
effective means of holding people accountable. I don't agree
that it would be more effective than the criminal law
enforcement and the punishment of war crimes where you actually
get into individual culpability. I think that is the greatest
tool we have, is to hold individuals accountable. Because if we
go in and we take money from people who had no complicity in a
war crime, and, in fact, they were victims as well being in a
country and being made to suffer under ruthless leadership and
then we take their money somehow, they don't get the idea of
how this fair system we are trying to introduce them to really
works.
But I was intrigued, a statement was made basically, as I
understood it, that we had always recognized the subsequent
country as being responsible for debts. And I was under the
impression that Washington didn't buy that, otherwise the
United States would have been broke. And I was not aware that
Germany actually paid. I was under the impression that that is
why we came so much out-of-pocket with the Marshall Plan to
rebuild Europe. What exactly did Germany pay toward these types
of claims?
Mr. Wolf. They clearly paid for years, and are still
paying, the compensation on behalf of those who were victims of
the Nazi Holocaust.
Mr. Gohmert. And who is paying that?
Mr. Wolf. The German government.
Mr. Gohmert. The German government is paying that to whom?
Mr. Wolf. To the direct victims of the Holocaust. And that
happened for years and years after.
Mr. Gohmert. How do you get to become a part of that class?
Mr. Wolf. There wasn't a lawsuit. It was just a system of
compensation that was, I suspect, enacted by the German
legislature.
Mr. Gohmert. Do you know how you would get to be a part of
those who were appropriated?
Mr. Wolf. Well, certainly if you were a former internee at
a Nazi concentration camp.
Mr. Gohmert. Well, that would qualify you, but it wouldn't
necessarily get you compensated.
Mr. Wolf. I suspect they had some sort of administrative
claim process. I really can't answer that.
Mr. Gohmert. Well, see, you all are testifying here under
basically penalties of perjury. And one of the things that
troubles me as a former judge is people come in and make these
statements so broadly which really is supposed to be truth
basically with culpability for false statements. Anyway, I get
troubled with broad----
Mr. Wolf. I know that is a fact. I am not speculating. I
just don't know the system, that is why I am giving you the
answer I don't know. I don't think I am perjuring myself.
Mr. Moore. Congressman, could I respond to part of that
question that you have asked?
Mr. Gohmert. Yes. Because you are using ``always,'' and I
would have thought somebody in your position would, especially
an attorney, would advise clients don't ever say ``always.''
Mr. Moore. I think, Congressman, we are talking about a
number of different things. One issue is sort of reparations
and whether there are war reparations, et cetera.
Mr. Gohmert. Well, I called you on the fact that you said
that we have always recognized the subsequent country's
obligation to pay the prior country's debts, and I am not sure
that is the case.
Mr. Moore. I stand by the point that as a matter of
international law, it is, to my knowledge, consistently and
always has been the view of the United States Government that a
change of government does not change liability. And let me just
note on that point that all of the commercial claims that are
being paid, the $20 billion to $30 billion, or whatever this
figure is, we don't know the precise figure, that is being paid
to these commercial foreign corporations instead of anything to
the POWs are prewar commercial debts of Iraq.
Mr. Gohmert. I agree with you, the victims should be
compensated even before corporations are. I would agree with
that. I have handled cases as a plaintiff's attorney, as a
defense attorney and had them come before me. What is the going
rate for a contingency on a case of this type?
Mr. Moore. I think as a judge, you would have a pretty good
idea of contingency fees.
Mr. Gohmert. We had them go from 10 to 45 percent.
Mr. Moore. They tend to raise from I suppose 20 to 45 or
whatever. We are under a privacy agreement in relation to the
clients in this case. And let me also say, sir, that there is
nothing that I have ever done in my entire career as an
attorney that has made me feel more honored in relation to what
we are doing.
Mr. Gohmert. I am not casting aspersions. I am one of those
conservative Republicans that believe that contingency fees
have allowed for people to have legal assistance that couldn't
otherwise get it.
Mr. Moore. Whatever the form of fees I think they have been
very helpful in this case for the clients though.
Mr. Gohmert. And one final matter with regard to Abu
Ghraib. If those individuals who were imprisoned there who were
unfairly abused, being required to disrobe, some of them had
undergarments put on their heads, do you know of any system
that has ever been set up to set off what kind of damages would
be available to someone in that circumstance as compared to the
persons they may have blown their inner guts out, how those
kind of claims might offset each other if they do?
Mr. Moore. Congressman I have not studied the legal
questions that you have raised so I don't know the answer. But
I would like to just add a point in relation to, I think, the
issue you are asking that is a very significant one of what are
some of the better remedies here to try to deal with this
problem, the criminal side, for example, or civil liability.
Mr. Gohmert. I think you can have both. I am not saying
either one should be mutually exclusive.
Mr. Moore. I appreciate that very much. And one of the
problems here is we have never pursued the criminal liability.
Typically, you don't have the people involved. Let me just say
that----
Mr. Gohmert. I think Saddam Hussein has paid a pretty
significant price through the criminal system.
Mr. Moore. Sadly Congressman, to my knowledge----
Mr. Gohmert. Oh, is he still alive?
Mr. Moore. Saddam Hussein was never charged with any of the
actions concerning the torture of American POWs. So he was
charged with a variety of things. And, of course, we know that
Saddam Hussein died.
Mr. Gohmert. That is my understanding.
Mr. Moore. If you are looking at the question of the
criminal system being applied, to my knowledge it was not
applied in this case. And, by the way, I think it is rather
interesting as tyo why among all the various charges against
Saddam Hussein there was no charge for the torture of American
POWs. And one of the reasons that you have, the double
provisions in the POW Convention for accountability for
torture, is because they know it is very rare to actually apply
any of the criminal justice provisions and to get the
individuals and apply it. So the state liability is a
critically important issue.
Mr. Gohmert. Well, I would submit to you that when you have
the death penalty that is being applied because of one charge,
it is not really necessary to try thousands of other charges.
That is what I have observed. My time has expired. Thank you.
Mr. Cohen. Are there further questions of the panel? Let me
ask one. Does anybody know if there is a CBO score on the
Braley-Sestak proposal.
Mr. Moore. Yes, sir, I know the answer to that.
Mr. Cohen. You are recognized.
Mr. Moore. I am delighted to say I know the answer to that,
Mr. Chairman. This issue has been put to the CBO and to the
Budget Committee. And I am informed that they have ruled that
there are no United States monies at stake whatsoever in the
Braley-Sestak proposal.
Mr. Cohen. Thank you, sir. Mr. Charchalis, let me ask you
one question. Were you or any of the other people in Kuwait to
the best of your knowledge given any notice by the State
Department of the impending jeopardy in which you were placed
when the Iraqis invaded Kuwait.
Mr. Charchalis. No, sir, and that is an interesting
question. We had Kuwaiti television and, to some extent, we got
Iraqi news, and we knew that there were troops massing on the
border. A figure that was given about 125. And I called the
embassy. And you know, I was concerned about it. And they said
there isn't any problem, don't worry about it. I went to the
Director General of the Institute and told him I would like to
take my wife to Bahrain. And he said no, the Crown Prince is
meeting in Taif and there is no problem. And we found out that
there was a problem. That the Iraqis invaded on August 2nd.
We tried to contact the embassy and the phone, nobody
answered the phone. It was busy. We finally got through late
and they said don't bother us we are too busy to talk to you.
So there was really nothing that we got from the embassy and/or
the Kuwaiti government that gave us any kind of indication that
we were in jeopardy. I will tell you this, that we found out
later on, that the road from Kuwait to Saudi Arabia was open
for 3 days, because we were told it was closed. We could have
got in, my wife could have got in our car and driven there and
been out of harms way. We would have had to leave everything,
but that is a lot better than jeopardizing your life.
Mr. Cohen. Thank you, sir. Captain Slade, do you know from
your own personal recollection or from any hearsay any effect
that the failure of the United States to honor and to help with
these claims, any effect it has had on the morale of soldiers,
our military?
Captain Slade. Mr. Chairman, I don't have data on that,
although anecdotally I have had obviously many, many peers over
the years who have looked to us and wondered why this hasn't
moved and where it has gone and why it appears to have
dissolved at the behest of government.
So there is a lot of confusion, and those are people who
have returned to theater. In fact, I returned to theater in
1998 for another deployment in Iraq, as have many of the former
POWs from the first Gulf War.
Mr. Cohen. Thank you. If there are no other questions, I
would like to thank each of the panelists for their service to
this Committee, to their service for our country and to the
scholarly works and to the bar which they have exhibited here
and for your testimony.
Without objection, Members will have 5 legislative days to
submit any additional written questions for you, which we will
forward and ask that you answer as promptly as you can. They
will be made a part of the record. And without objection, the
record will remain open for 5 legislative days for the
submission of any other additional materials.
This hearing has helped illuminate the many twists and
turns in the POWs' and human shields' quest for justice. The
Chairman and I look forward to working with our colleagues in
the Committee and in the Congress to find a way to get a fair
measure of justice to these victims for all that they have
endured. I believe that we should be able to do so in a way
that does not unduly burden the present Government of Iraq. The
Committee will consider the next appropriate steps accordingly.
And with that, the hearing is adjourned.
[Whereupon, at 4:04 p.m., the Committee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
prepared statement of the honorable sheila jackson lee, a
representative in congress from the state of texas, and member,
committee on the judiciary