[House Report 115-858]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-858
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ANTI-TERRORISM CLARIFICATION ACT OF 2018
_______
July 23, 2018.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 5954]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 5954) to amend title 18, United States Code, to
clarify the meaning of the terms ``act of war'' and ``blocked
asset'', and for other purposes, having considered the same,
report favorably thereon with an amendment and recommend that
the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 3
Hearings......................................................... 8
Committee Consideration.......................................... 8
Committee Votes.................................................. 8
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 8
Committee Cost Estimate.......................................... 8
Duplication of Federal Programs.................................. 8
Disclosure of Directed Rule Makings.............................. 8
Performance Goals and Objectives................................. 9
Advisory on Earmarks............................................. 9
Section-by-Section Analysis...................................... 9
Changes in Existing Law Made by the Bill, as Reported............ 10
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Anti-Terrorism Clarification Act of
2018''.
SEC. 2. CLARIFICATION OF THE TERM ``ACT OF WAR''.
(a) In General.--Section 2331 of title 18, United States Code, is
amended--
(1) in paragraph (4), by striking ``and'' at the end;
(2) in paragraph (5), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(6) the term `military force' does not include any person
that--
``(A) has been designated as a--
``(i) foreign terrorist organization by the
Secretary of State under section 219 of the
Immigration and Nationality Act (8 U.S.C.
1189); or
``(ii) Specially Designated Global Terrorist
(as such term is defined in section 594.310 of
the Code of Federal Regulations) by the
Secretary of State or the Secretary of the
Treasury; or
``(B) has been determined by the court to not be a
`military force'.''.
(b) Application.--The amendments made by this section shall apply to
any civil action pending on or commenced after the date of the
enactment of this Act.
SEC. 3. SATISFACTION OF JUDGMENTS AGAINST TERRORISTS.
(a) In General.--Section 2333 of title 18, United States Code, is
amended by inserting at the end following:
``(e) Use of Blocked Assets To Satisfy Judgments of U.S. Nationals.--
For purposes of section 201 of the Terrorism Risk Insurance Act of 2002
(28 U.S.C. 1610 note), in any action in which a national of the United
States has obtained a judgment against a terrorist party pursuant to
this section, the term `blocked asset' shall include any asset of that
terrorist party (including the blocked assets of any agency or
instrumentality of that party) seized or frozen by the United States
under section 805(b) of the Foreign Narcotics Kingpin Designation Act
(21 U.S.C. 1904(b)).''.
(b) Applicability.--The amendments made by this section shall apply
to any judgment entered before, on, or after the date of enactment of
this Act.
SEC. 4. CONSENT OF CERTAIN PARTIES TO PERSONAL JURISDICTION.
(a) In General.--Section 2334 of title 18, United States Code, is
amended by adding at the end the following:
``(e) Consent of Certain Parties to Personal Jurisdiction.--
``(1) In general.--Except as provided in paragraph (2), for
purposes of any civil action under section 2333 of this title,
a defendant shall be deemed to have consented to personal
jurisdiction in such civil action if, regardless of the date of
the occurrence of the act of international terrorism upon which
such civil action was filed, the defendant--
``(A) after the date that is 120 days after the date
of enactment of this subsection, accepts--
``(i) any form of assistance, however
provided, under chapter 4 of part II of the
Foreign Assistance Act of 1961 (22 U.S.C. 2346
et seq.); or
``(ii) any form of assistance, however
provided, under section 481 of the Foreign
Assistance Act of 1961 (22 U.S.C. 2291) for
international narcotics control and law
enforcement; or
``(B) in the case of a defendant benefiting from a
waiver or suspension of section 1003 of the Anti-
Terrorism Act of 1987 (22 U.S.C. 5202) after the date
that is 120 days after the date of enactment of this
subsection--
``(i) continues to maintain any office,
headquarters, premises, or other facilities or
establishments within the jurisdiction of the
United States; or
``(ii) establishes or procures any office,
headquarters, premises, or other facilities or
establishments within the jurisdiction of the
United States.
``(2) Applicability.--Paragraph (1) shall not apply to any
defendant who ceases to engage in the conduct described in
paragraphs (1)(A) and (1)(B) for 5 consecutive calendar
years.''.
(b) Applicability.--The amendments made by this section shall take
effect on the date of enactment of this Act.
Purpose and Summary
The Anti-Terrorism Clarification Act of 2018 makes three
needed improvements to the Antiterrorism Act of 1992 (ATA) to
better ensure that victims of international terrorism can
obtain justice in United States courts against those who
commit, or conspire to commit, an act of international
terrorism or who aid and abet international terrorist activity.
The legislation: (1) clarifies ambiguities in the ATA's ``act
of war'' exception that currently allows designated foreign
terrorists and their supporters to avoid liability; (2) closes
a loophole that currently prevents victims of narco-terrorism
from enforcing their judgments against terrorist assets that
have been blocked by the Treasury Department; and (3) addresses
lower court decisions that have allowed entities that sponsor
terrorist activity against U.S. nationals overseas to avoid the
jurisdiction of U.S. courts.
Background and Need for the Legislation
I. Background
In 1992, Congress enacted the Antiterrorism Act's civil
cause of action provision to help address international
terrorist attacks that harm U.S. persons abroad by
``provid[ing] the framework in our legal system for Americans
to seek justice against those who defy all notions of morality
and justice.''\1\ The ATA's civil liability provision is aimed
at deterring support for terrorism, buttressing the country's
counter-terrorism initiatives, and providing justice for
victims of terrorist attacks. The provision grants U.S.
nationals injured by acts of international terrorism a civil
action for damages. Specifically, it provides that:
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\1\137 Cong. Rec. S1771-01 (1991) (statement of Sen. Grassley).
[a]ny national of the United States injured in his or
her person, property, or business by reason of an act
of international terrorism, or his or her estate,
survivors, or heirs, may sue therefor in any
appropriate district court of the United States and
shall recover threefold the damages he or she sustains
and the cost of the suit, including attorney's fees.\2\
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\2\18 U.S.C. Sec. 2333(a). The Antiterrorism Act (ATA) defines
``international terrorism'' to include activities that: (A) ``involve
violent acts or acts dangerous to human life that are a violation of
the criminal laws of the United States or of any State, or that would
be a criminal violation if committed within the jurisdiction of the
United States or of any State''; (B) ``appear to be intended (i) to
intimidate or coerce a civilian population; (ii) to influence the
policy of a government by intimidation or coercion; or (iii) to affect
the conduct of a government by mass destruction, assassination, or
kidnapping''; and (C) ``occur primarily outside the territorial
jurisdiction of the United States, or transcend national boundaries in
terms of the means by which they are accomplished, the persons they
appear intended to intimidate or coerce, or the locale in which their
perpetrators operate or seek asylum.'' 18 U.S.C. Sec. 2331(1).
In passing the ATA's civil remedy, Congress recognized that
``reluctant courts and . . . jurisdictional hurdles'' had often
stymied the ability of victims of international terrorism to
obtain redress for their injuries.\3\ Thus, the civil remedy
was designed to ``remove the jurisdictional hurdles in the
courts confronting victims'' of international terrorism\4\ and
``fill the gap by providing the civil counterpart to'' the
ATA's criminal penalties.\5\ In addition, the civil remedy
provision was designed to ``put[] terrorists' assets at risk
and deter[] them from using the U.S. financial system to hide
and augment their wealth.''\6\ In short, by cutting terrorists'
financial life-lines, the provision furthers the United States'
longstanding efforts to reduce global terrorism and thus
protect Americans here and abroad.
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\3\See 136 Cong. Rec. S4568-01 (1990).
\4\Hearing Before the Subcomm. on Intellectual Property & Judicial
Administration of the H. Comm. On the Judiciary, 102d Cong. 10 (1992)
(``1992 Hearing'') (letter from Sen. Grassley).
\5\136 Cong. Rec. at S14283 (statement of Sen. Grassley).
\6\1992 Hearing at 13.
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The Department of Justice has recognized that the civil
liability provision is ``an effective weapon in the battle
against international terrorism'' because it ``discourage[s]
those who would provide financing for this activity.''\7\ And
the State Department has explained that the provision
``discourage[s] sources of terrorist funding and hold[s]
sponsors of terrorism accountable for their actions.''
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\7\Brief for the United States as Amicus Curiae Supporting
Affirmance at 2, Boim v. Quranic Literacy Inst. & Holy Land Found. For
Relief & Dev, No. 01-1969 (7th Cir. Nov. 14, 2001).
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II. The Anti-Terrorism Clarification Act
The Anti-Terrorism Clarification Act addresses three
discrete problems that currently exist in the ATA: (1)
ambiguities in the ATA's ``act of war'' exception that allow
designated foreign terrorists and their supporters to avoid
liability; (2) a loophole that prevents victims of narco-
terrorism from enforcing their judgments against terrorist
assets that have been blocked by the Treasury Department under
the Foreign Narcotics Kingpin Designation Act; and (3) lower
court decisions that have allowed entities that sponsor
terrorist activity against U.S. nationals overseas to avoid the
jurisdiction of U.S. courts.
A. ``Act of War'' Exception
Defendants accused of aiding and abetting acts of
international terrorism have been attempting to use the ATA's
``act of war'' exception\8\ as a means of avoiding civil
liability, even in cases in which the plaintiffs' injuries were
caused by the actions of designated terrorist groups. For
example, in Kaplan v. Central Bank of the Islamic Republic of
Iran, the defendant banks successfully argued that rocket
attacks carried out by Hezbollah--a designated foreign
terrorist organization--were acts of war and thus outside the
scope of the ATA's civil liability provisions.\9\ The court
agreed and dismissed the plaintiffs' claims, finding that the
attacks, carried out by a terrorist group against civilians,
were acts of war. The ATA's ``act of war'' exception should not
be a liability shield for those who aid or abet attacks carried
out by designated terrorist organizations.
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\8\18 U.S.C. Sec. 2336(a).
\9\961 F. Supp. 2d 185 (D.D.C. 2013).
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This legislation effectively amends the definition of ``act
of war'' in the ATA\10\ to clarify that the act of war
exception does not apply to any person that has been designated
as a foreign terrorist organization by the State Department or
a Specially Designated Global Terrorist by the Treasury or
State Departments, or any person that has been determined by
the court to not be a ``military force.'' Simply put, this
definitional change means that a defendant would not be able to
use the ATA's ``act of war'' defense if the terrorist act was
carried out by a designated terrorist organization or by any
other person the court determines is not a military force.\11\
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\10\18 U.S.C. Sec. 2331(4). This amendment to the ATA is carried
out by adding a definition of ``military force'' to 18 U.S.C.
Sec. 2331.
\11\This third category--any person that has been determined by the
court to not be a military force--is intended to preserve the courts'
ability to make a determination as to whether a person in addition to
an FTO or an SDGT is not a military force of any origin. In other
words, this language was included to make clear a person in addition to
an FTO or an SDGT may be found not to be a military force.
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This definitional change furthers Congress' original intent
with regard to the act of war exception. Both the House and
Senate Judiciary Committees' reports concerning the ATA include
section-by-section analyses of the statute. In discussing the
``act of war'' exception, the House and Senate reports provide:
This section excludes from the scope of any civil
action a claim brought on account of ``an act of war.''
The intention of this provision is to bar actions for
injuries that result from military action by recognized
governments as opposed to terrorists, even though
governments also sometimes target civilian
populations.\12\
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\12\H.R. Rep. No. 102-1040 at 7 (1992); S. Rep. 102-342 at 46
(1992) (emphasis added).
The change is also consistent with the approach taken by
several courts that have interpreted the exception.\13\
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\13\Stansell v. BGP, Inc., 2011 WL 1296881, at *11 (M.D.Fla. 2014)
(``To find that a terrorist organization can be a military force under
the ATA would defeat the purpose of the Act.''); Weiss v. Arab Bank,
PLC, 2007 WL 4565060, at *4-5 (E.D.N.Y. Dec. 21, 2007) (``I find that a
designated terrorist organization cannot constitute a `military force
of any origin.'''); Morris v. Khadr, 415 F.Supp.2d 1323 (D.Utah 2006).
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B. Judgments Against Narco-Terrorists
Under statutes like the civil liability provision in the
ATA, U.S. terrorism victims have successfully obtained
judgments against terrorist parties that have caused them harm.
However, after being awarded such judgments, terrorism victims
have often faced practical and legal difficulties at the
enforcement stage. Assets of terrorist parties may not be
present in the United States and, to the extent they are
present, they are often either well concealed or seized or
frozen by the federal government.
In 2002, in order to help lessen these enforcement burdens,
Congress passed section 201 of the Terrorism Risk Insurance Act
(TRIA), which authorizes execution or attachment in aid of
execution in order to satisfy a terrorism judgment against a
terrorist party from the blocked assets of that terrorist
party. By permitting terrorism victims to attach blocked assets
in order to satisfy their terrorism-based judgments, TRIA
permits victims to bypass the usual requirement that a litigant
first obtain a license from the United States Department of the
Treasury Office of Foreign Assets Control (OFAC) in order to
attach blocked assets.\14\ Section 201(a) of TRIA provides:
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\14\See, e.g., 31 C.F.R. Sec. Sec. 515.201, 515.310 (CACR)
(requiring a license for attachment); id. Sec. Sec. 535.201, 535.310
(Iran Assets Control Regulations) (same); id. Sec. Sec. 594.201,
594.312 (GTSR) (same).
Notwithstanding any other provision of law . . . , in
every case in which a person has obtained a judgment
against a terrorist party on a claim based upon an act
of terrorism, or for which a terrorist party is not
immune under section 1605A or 1605(a)(7) (as such
section was in effect on January 27, 2008) of title 28,
the blocked assets of that terrorist party (including
the blocked assets of any agency or instrumentality of
that terrorist party) shall be subject to execution or
attachment in aid of execution in order to satisfy such
judgment to the extent of any compensatory damages for
which such terrorist party has been adjudged
liable.\15\
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\15\Terrorism Risk Insurance Act (TRIA), Pub. L. 107-297 201(a),
Sec. 201, 116 Stat. 2337 (28 U.S.C. Sec. 1610 note).
TRIA further provides that a ``blocked asset'' is any asset
seized by the Executive Branch pursuant to either the Trading
With the Enemy Act (TWEA)\16\ or the International Emergency
Economic Powers Act (IEEPA).\17\
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\16\50 U.S.C. app. 1-44.
\17\50 U.S.C. Sec. 1701-1708.
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Thus, under current law, victims of terrorism may satisfy a
court-awarded judgment against a terrorist party using assets
of that terrorist party (or an agency or instrumentality of
that terrorist party) that the U.S. government has frozen
pursuant to TWEA or IEEPA.\18\ However, assets frozen under the
Foreign Narcotics Kingpin Designation Act (Kingpin Act) are not
currently available to terrorism victims. This leaves victims
of narco-terrorism without a meaningful method of satisfying
their ATA judgments. It makes little sense for our nation's
counterterrorism laws to reach narco-terrorist organizations,
like the Revolutionary Armed Forces of Columbia (FARC), but
then prevent victims from executing on such an organization's
blocked assets merely because the U.S. government blocked those
assets under the Kingpin Act instead of TWEA or IEEPA.
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\18\See TRIA Sec. 201(d).
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The Antiterrorism Clarification Act amends the ATA to make
clear that assets blocked under the Kingpin Act shall be
available to victims of narco-terrorism who have obtained
judgments against the responsible terrorist party.
C. Personal Jurisdiction Over Overseas Terrorist Sponsors
Congress passed the ATA to ``provide for Federal civil
remedies for American victims of international terrorism'' and
to ``remove[] the jurisdictional hurdles in the courts
confronting victims. . . .''\19\ The ATA, in fact, was designed
to ``provide[] extraterritorial jurisdiction over terrorist
acts abroad against United States nationals.''\20\ Yet, recent
federal court decisions have called into question the ATA's
continued ability to bring terrorists or their abettors to
justice in U.S. courts.\21\ Most recently, the Supreme Court
denied certiorari in a case concerning American victims of
Palestinian terrorism. The Supreme Court's denial of certiorari
in Sokolow v. Palestine Liberation Organization leaves in place
a flawed Second Circuit decision that extends due process
protections to the Palestine Liberation Organization (PLO) and
the Palestinian Authority (PA) and severely limits the
extraterritorial scope of the ATA.
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\19\137 Cong. Rec. 6, 8143 (1991) (Statement of Sen. Grassley).
\20\See Antiterrorism Act of 1990: Hearing on S. 2465 Before the
Subcomm. on Courts and Admin. Practice of the S. Comm. on the
Judiciary, 101st Cong. 1 (1990) (Statement of Sen. Grassley).
\21\See, e.g., Waldman v. Palestine Liberation Organization, 835
F.3d 317 (2d Cir. 2016); Livnat v. Palestinian Authority, 851 F.3d 45
(D.C. Cir. 2017).
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Carrying out or assisting an act of international terrorism
that injures or kills American citizens abroad should be, in
and of itself, sufficient to establish personal jurisdiction in
U.S. courts. But even more so, the purposeful availment by a
defendant of certain benefits under U.S. law should constitute
consent to jurisdiction in ATA claims in U.S. courts. No
defendant should be able to accept U.S. foreign assistance
while simultaneously dodging responsibility in U.S. courts for
aiding or carrying out terrorist attacks that harm Americans.
The Antiterrorism Clarification Act amends the jurisdiction
and venue section of the ATA\22\ to make clear that defendants
who take advantage of certain benefits provided by the U.S.
government shall be deemed to have consented to personal
jurisdiction. Specifically, a defendant will be deemed to have
consented to personal jurisdiction in an ATA civil action if,
after 120 days after the date of enactment of the bill, the
defendant accepts U.S. assistance under certain provisions of
the Foreign Assistance Act of 1961. Alternatively, a defendant
will be deemed to have consented to personal jurisdiction if
such defendant continues to maintain any office, headquarters,
premises, or other facilities within the U.S., or establishes
or procures any office, headquarters, premises, or other
facilities within the United States.\23\ If they continue to
accept the covered benefits, they will subject themselves to
personal jurisdiction in U.S. courts in ATA cases that are
already pending or that may be filed in the future.
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\22\18 U.S.C. Sec. 2334.
\23\This provision in the bill applies to the Palestine Liberation
Organization or any of its constituent groups, any successor to any of
those, or any agents thereof. See 22 U.S.C. Sec. 5202.
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Accordingly, the consent provision provides affected
persons with a reasonable and unambiguous choice: if you accept
U.S. foreign assistance and enter our nation's borders, you
must do so on the condition not to support or take part in acts
of international terrorism and that you compensate your victims
if you breach that promise. It is eminently reasonable to
condition acceptance of U.S. foreign assistance and continued
presence in the United States on consent to jurisdiction in
cases in which a person's terrorist acts injure or kill U.S.
nationals.\24\ This is particularly so with regard to the PLO
and the PA, as Congress has repeatedly tied their continued
receipt of these privileges to their adherence to their
commitment to renounce terrorism. Moreover, the conditions the
bill imposes, furthers a legitimate governmental purpose: to
halt, deter, and disrupt international terrorism and to
compensate U.S. victims of international terrorism.
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\24\The consent provision is clearly constitutional under both
long-established precedents permitting deemed consent to personal
jurisdiction and on the basis of express language in the statute
alerting affected persons that by accepting U.S. foreign assistance or
maintain or establishing a physical presence in the United States, they
will be agreeing to submit to personal jurisdiction for cases under the
ATA. Brown v. Lockheed Martin Corp., 814 F.3d 619, 638-39 (2d Cir.
2016) (``state statute lack[ed] explicit reference to any
jurisdictional implications''); accord Genuine Parts Co. v. Cepec, 137
A.3d 123, 142 (Del. 2016) (``Nothing in the registration statutes
explicitly says that a foreign corporation registering thereby consents
to the personal jurisdiction of this state.''); Segregated Account of
Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 898 Wis.2d 528,
552 (2017) (pointing to absence of ``express statutory language
asserting general jurisdiction over a foreign corporation based on its
appointment of an agent for service of process''); Aspen Am. Ins. v.
Interstate Warehousing, Inc., 90 N.E.3d 440, 447 (Ill. 2017) (pointing
to ``absence of any language'' in the statute).
The provision also meets the standard for implied consent to the
jurisdiction of a particular court. Such consent is implied in cases in
which the litigant is aware of the right to refuse to consent and still
proceeds voluntarily. See Wellness Int'l Network, Ltd. v. Sharif, 135
S. Ct. 1932, 1948 (2015); Roell v. Withrow, 538 U.S. 580, 590 (2003).
Knowledge of our laws may fairly be charged to persons, like the
Palestine Liberation Organization (PLO) and the Palestinian Authority
(PA) when they ``chose to enter'' the United States. See Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 779 (1984). Thus, if a defendant
in an ATA case has voluntarily chosen to accept U.S. foreign assistance
or voluntarily remain in the United States, they may fairly be deemed
to consent to person jurisdiction in ATA cases. The Constitution does
not bar giving a person who excludable from the United States fair
warning that if it continues to accept U.S. foreign assistance or to
maintain a physical presence in the United States on the condition that
it refrain from engaging in or supporting international terrorism, it
will be liable to U.S. victims in U.S. courts for breaching that
condition.
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Hearings
The Committee on the Judiciary held no hearings on H.R.
5954.
Committee Consideration
On June 13, 2018, the Committee met in open session and
ordered the bill (H.R. 5954) favorably reported by voice vote,
a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that no
recorded votes occurred during the Committee's consideration of
H.R. 5954.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of The House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Committee Cost Estimate
In compliance with clause 3(d) of rule XIII of the Rules of
the House of Representatives, the Committee estimates that,
based on informal discussions with the Congressional Budget
Office, implementing this legislation would not affect direct
spending or revenues. The Congressional Budget Office did not
provide a cost estimate for the bill in time for inclusion in
this report.
Duplication of Federal Programs
No provision of H.R. 5954 establishes or reauthorizes a
program of the Federal government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee finds that H.R. 5954 contains no directed
rule making within the meaning of 5 U.S.C. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
5954 amends the Antiterrrorism Act of 1992 to clarify meaning
of the terms ``act of war'' and ``blocked asset'' and to
provide for consent to personal jurisdiction in certain
circumstances.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 5954 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short title. Section 1 sets forth the short
title of the bill as the ``Anti-Terrorism Clarification Act of
2018.''
Sec. 2. Clarification of the Term ``Act of War.'' This
section clarifies the meaning of the term ``act of war'' as it
is defined in the ATA. Under current law, the term ``act of
war'' is defined as ``any act occurring in the course of: (A)
declared war; (B) armed conflict, whether or not war has been
declared, between two or more nations; or (C) armed conflict
between military forces of any origin.''\25\ The third
category--armed conflict between military forces of any
origin--has caused some level of confusion in its application
by the courts, allowing designated terrorist entities and their
supporters to avoid liability for terrorist attacks in some
cases.
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\25\18 U.S.C. Sec. 2331.
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Section 2 removes any uncertainty regarding whether
designated terrorist organizations can be considered a military
force of any origin by clearly stating that the term ``military
force'' does not include any person (as defined by the ATA)\26\
that has been designated as a foreign terrorist organization
(FTO) under 8 U.S.C. Sec. 1189 or as a specially designated
global terrorist (SDGT) as such term is defined in section
594.310 of title 31, Code of Federal Regulations. In addition,
the section makes clear that persons in addition to FTOs and
SDGTs may also not constitute a ``military force'' if the court
determines that such person is not a military force.
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\26\18 U.S.C. Sec. 2331(3).
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Sec. 3. Satisfaction of Judgments Against Terrorists. This
section provides that in a civil action brought pursuant to 18
U.S.C. Sec. 2333 for which a U.S. national has received a
judgment against a terrorist party, the assets of that
terrorist party (including any agency or instrumentality of
that party) that have been seized or frozen by the United
States under section 805(b) of the Foreign Narcotics Kingpin
Designation Act (21 U.S.C. Sec. 1904(b)) shall be considered
``blocked assets'' for purposes of section 201 of the Terrorism
Risk Insurance Act (TRIA) (28 U.S.C. Sec. 1610 note).
This means that in ATA civil liability cases for which the
plaintiff has received a judgment against a terrorist party,
any assets of that terrorist party (including the assets of its
agents and instrumentalities) that have been blocked under the
Kingpin Act are subject to execution or attachment in aid of
execution in order to satisfy the judgment to the extent of any
compensatory damages for which such terrorist party has been
adjudged liable. This is already the case, under TRIA, for
assets blocked pursuant to the Trading With the Enemy Act and
the International Emergency Economic Powers Act.
Sec. 4. Consent of Certain Parties to Personal
Jurisdiction. Section 4 provides that under certain
circumstances defendants in ATA cases shall be deemed to have
consented to the personal jurisdiction of U.S. courts. This
section amends 18 U.S.C. Sec. 2334 to provide that if an ATA
defendant, 120 days after the date of enactment, accepts any
form of assistance, however provided, under chapter 4 of part
II of the Foreign Assistance Act of 1961 (22 U.S.C. Sec. 2346
et seq.), section 481 of the Foreign Assistance Act of 1961 (22
U.S.C. Sec. 2291) for international narcotics control and law
enforcement, or chapter 9 of part II of the Foreign Assistance
Act of 1961 (22 U.S.C. Sec. Sec. 2349bb et seq.) that defendant
shall be deemed to have consented to U.S. court jurisdiction in
a case brought under 18 U.S.C. Sec. 2333. In addition, consent
to U.S. court jurisdiction shall be deemed to have occurred if
120 days after the date of enactment of this Act an ATA civil
defendant benefited from a waiver or suspension of section 1003
of the Anti-Terrorism Act of 1987 (22 U.S.C. Sec. 5202) by
continuing to maintain any office, headquarters, premises, or
other facilities or establishments within the jurisdiction of
the United States or by establishing or procuring any office,
headquarters, premises, or other facilities or establishments
within the jurisdiction of the United States.
Because Section 4 is purely procedural and affects no
substantive entitlement to relief, it takes effect on the date
of enactment and will begin to apply in cases (including cases
that are pending in the courts of the United States on the date
of enactment) in which a defendant more than 120 days after the
date of enactment receives the types of assistance, or takes
advantage of a waiver, listed in that section.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 113B--TERRORISM
* * * * * * *
Sec. 2331. Definitions
As used in this chapter--
(1) the term ``international terrorism'' means
activities that--
(A) involve violent acts or acts dangerous to
human life that are a violation of the criminal
laws of the United States or of any State, or
that would be a criminal violation if committed
within the jurisdiction of the United States or
of any State;
(B) appear to be intended--
(i) to intimidate or coerce a
civilian population;
(ii) to influence the policy of a
government by intimidation or coercion;
or
(iii) to affect the conduct of a
government by mass destruction,
assassination, or kidnapping; and
(C) occur primarily outside the territorial
jurisdiction of the United States, or transcend
national boundaries in terms of the means by
which they are accomplished, the persons they
appear intended to intimidate or coerce, or the
locale in which their perpetrators operate or
seek asylum;
(2) the term ``national of the United States'' has
the meaning given such term in section 101(a)(22) of
the Immigration and Nationality Act;
(3) the term ``person'' means any individual or
entity capable of holding a legal or beneficial
interest in property;
(4) the term ``act of war'' means any act occurring
in the course of--
(A) declared war;
(B) armed conflict, whether or not war has
been declared, between two or more nations; or
(C) armed conflict between military forces of
any origin; [and]
(5) the term ``domestic terrorism'' means activities
that--
(A) involve acts dangerous to human life that
are a violation of the criminal laws of the
United States or of any State;
(B) appear to be intended--
(i) to intimidate or coerce a
civilian population;
(ii) to influence the policy of a
government by intimidation or coercion;
or
(iii) to affect the conduct of a
government by mass destruction,
assassination, or kidnapping; and
(C) occur primarily within the territorial
jurisdiction of the United States[.]; and
(6) the term ``military force'' does not include any
person that--
(A) has been designated as a--
(i) foreign terrorist organization by
the Secretary of State under section
219 of the Immigration and Nationality
Act (8 U.S.C. 1189); or
(ii) Specially Designated Global
Terrorist (as such term is defined in
section 594.310 of the Code of Federal
Regulations) by the Secretary of State
or the Secretary of the Treasury; or
(B) has been determined by the court to not
be a ``military force''.
* * * * * * *
Sec. 2333. Civil remedies
(a) Action and Jurisdiction.--Any national of the United
States injured in his or her person, property, or business by
reason of an act of international terrorism, or his or her
estate, survivors, or heirs, may sue therefor in any
appropriate district court of the United States and shall
recover threefold the damages he or she sustains and the cost
of the suit, including attorney's fees.
(b) Estoppel Under United States Law.--A final judgment or
decree rendered in favor of the United States in any criminal
proceeding under section 1116, 1201, 1203, or 2332 of this
title or section 46314, 46502, 46505, or 46506 of title 49
shall estop the defendant from denying the essential
allegations of the criminal offense in any subsequent civil
proceeding under this section.
(c) Estoppel Under Foreign Law.--A final judgment or decree
rendered in favor of any foreign state in any criminal
proceeding shall, to the extent that such judgment or decree
may be accorded full faith and credit under the law of the
United States, estop the defendant from denying the essential
allegations of the criminal offense in any subsequent civil
proceeding under this section.
(d) Liability.--
(1) Definition.--In this subsection, the term
``person'' has the meaning given the term in section 1
of title 1.
(2) Liability.--In an action under subsection (a) for
an injury arising from an act of international
terrorism committed, planned, or authorized by an
organization that had been designated as a foreign
terrorist organization under section 219 of the
Immigration and Nationality Act (8 U.S.C. 1189), as of
the date on which such act of international terrorism
was committed, planned, or authorized, liability may be
asserted as to any person who aids and abets, by
knowingly providing substantial assistance, or who
conspires with the person who committed such an act of
international terrorism.
(e) Use of Blocked Assets to Satisfy Judgments of U.S.
Nationals.--For purposes of section 201 of the Terrorism Risk
Insurance Act of 2002 (28 U.S.C. 1610 note), in any action in
which a national of the United States has obtained a judgment
against a terrorist party pursuant to this section, the term
``blocked asset'' shall include any asset of that terrorist
party (including the blocked assets of any agency or
instrumentality of that party) seized or frozen by the United
States under section 805(b) of the Foreign Narcotics Kingpin
Designation Act (21 U.S.C. 1904(b)).
Sec. 2334. Jurisdiction and venue
(a) General Venue.--Any civil action under section 2333 of
this title against any person may be instituted in the district
court of the United States for any district where any plaintiff
resides or where any defendant resides or is served, or has an
agent. Process in such a civil action may be served in any
district where the defendant resides, is found, or has an
agent.
(b) Special Maritime or Territorial Jurisdiction.--If the
actions giving rise to the claim occurred within the special
maritime and territorial jurisdiction of the United States, as
defined in section 7 of this title, then any civil action under
section 2333 of this title against any person may be instituted
in the district court of the United States for any district in
which any plaintiff resides or the defendant resides, is
served, or has an agent.
(c) Service on Witnesses.--A witness in a civil action
brought under section 2333 of this title may be served in any
other district where the defendant resides, is found, or has an
agent.
(d) Convenience of the Forum.--The district court shall not
dismiss any action brought under section 2333 of this title on
the grounds of the inconvenience or inappropriateness of the
forum chosen, unless--
(1) the action may be maintained in a foreign court
that has jurisdiction over the subject matter and over
all the defendants;
(2) that foreign court is significantly more
convenient and appropriate; and
(3) that foreign court offers a remedy which is
substantially the same as the one available in the
courts of the United States.
(e) Consent of Certain Parties to Personal Jurisdiction.--
(1) In general.--Except as provided in paragraph (2),
for purposes of any civil action under section 2333 of
this title, a defendant shall be deemed to have
consented to personal jurisdiction in such civil action
if, regardless of the date of the occurrence of the act
of international terrorism upon which such civil action
was filed, the defendant--
(A) after the date that is 120 days after the
date of enactment of this subsection, accepts--
(i) any form of assistance, however
provided, under chapter 4 of part II of
the Foreign Assistance Act of 1961 (22
U.S.C. 2346 et seq.); or
(ii) any form of assistance, however
provided, under section 481 of the
Foreign Assistance Act of 1961 (22
U.S.C. 2291) for international
narcotics control and law enforcement;
or
(B) in the case of a defendant benefiting
from a waiver or suspension of section 1003 of
the Anti-Terrorism Act of 1987 (22 U.S.C. 5202)
after the date that is 120 days after the date
of enactment of this subsection--
(i) continues to maintain any office,
headquarters, premises, or other
facilities or establishments within the
jurisdiction of the United States; or
(ii) establishes or procures any
office, headquarters, premises, or
other facilities or establishments
within the jurisdiction of the United
States.
(2) Applicability.--Paragraph (1) shall not apply to
any defendant who ceases to engage in the conduct
described in paragraphs (1)(A) and (1)(B) for 5
consecutive calendar years.
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