Miners Protection Act

Floor Speech

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Mr. GRAHAM. Thank you, Senator McCain. Your overview was excellent about the perils we face as a nation if we don't modify the law. I will try to give you a couple of minutes of how did we get to here. After 9/ 11--the most horrific attack on our homeland, maybe ever, I guess, since the Civil War--the bottom line was that we responded as a nation in many ways. The 9/11 families have a special place in American history and our hearts. They have been pursuing legal claims against those responsible for the attack.

Sovereign immunity is a concept that protects our government and every other government from doing business because if you don't have the sovereign immunity, you can't function as a government. There are waivers to that concept--a tort. If somebody in Saudi Arabia is driving a car down the streets of New York and they are working for the Embassy and consulate and they hit you, there is a process where you can sue.
You can sue your own Federal Government--the Federal Tort Claims Act-- if you are injured as a result of being hit by a military vehicle. Even though sovereign immunity applies, we waived that to allow citizens who have been injured torturously to bring claims in a very controlled process.

The 9/11 families, for well over a decade now, have been pursuing nation-states like Saudi Arabia in court, trying to hold them liable for the act of terrorism of the 19 hijackers. Under our law, a tort does not include acts of international terrorism. I was very open- minded to say, certainly, that is a tort. If you are injured or killed because of an act of international terrorism, you have been harmed, and I don't mind holding somebody responsible who caused that harm.

Now you are getting into the operation of a nation-state. If you believe the Saudi Government collaborated with the 19 hijackers and they knew or should have known about the attack and assisted in the attack, not only should they be held liable in our courts as probably an act of war under international law. Unfortunately, the way we have structured this law, that requirement does exist.

Let me give you an example of how that can come back to haunt us. We are engaged in a conflict in Syria today. We are training, providing weapons, and training a lot of groups inside Syria to destroy ISIL. One of those groups is the WPG Kurds. They are literally the cousins of the PKK, a terrorist organization inside Turkey. There is friction between the Kurds and Syria and the Turkish Government, and it is beginning to bubble up.

We are knowingly providing training to Kurdish elements inside Syria for the express purpose of enlisting them in the fight against ISIL.

What I don't want to have happen is that the CIA officer, the special forces soldier, anybody in our government who is working in the training, equipping process to be held liable if that training and those weapons are used to go into Turkey or some other place where we didn't intend for it to happen and didn't know about it.
As this law is written now, it is my fear the very act of helping them do one thing could make you liable for everything they do. We are trying to narrow the scope, and we are trying to make sure that whatever claim against a foreign government lies for the 9/11 attack, that we don't open the door to lawsuits, imprisonment, criminal complaints, liability by us as a nation-state for all of the activities we are doing throughout the world.

We are training people in Mosul, in Iraq today. We have been training the Iraqi Security Forces. We have been training tribal militia. The one thing I don't want to have happen is the people who provide the weapons and training--that if a Sunni group, for some reason out of our control, goes into a Shiite village and commits a genocide or the reverse or we are helping the Shiites and they go on a sectarian binge, I don't want us to be held liable unless you can prove that we knowingly engaged in the act in question; that it wasn't enough just to help the tribal leaders, Sunni tribal leaders, fight Al Qaeda; that if they do something outside of what we intended, the only way we can be liable and people working for us can be liable is if we knew about it and we are involved in it. That is what is missing.

It may be harder for the lawyers representing the 9/11 families to prove the case, but if we don't make the standard as I described, we are opening ourselves up as a nation and all of those throughout the world.
Nobody understands the world better than Senator McCain. I promise you, we are providing aid and assistance to groups who are very questionable at best, but that is the world we live in. The Mideast is a complete mess. I don't want my country, our country, and those who serve under our flag to ever be hauled into a foreign court because they were doing the training and the equipping that our Nation ordered them to do, and I don't want us as a nation to be responsible for acts we did not know about or intend to happen. Just simply helping somebody doesn't make you liable for all the things they might do down the road.

If there is evidence that the Saudi Government knowingly or should have known about the attacks of 9/11 and aided that attack, you can bring a claim. If it is any less here for the 9/11 attack, then that lesser standard would be used against us because countries, as I speak, are adopting their version of JASTA. The one thing we don't want to do is open up the international legal system to claims against America based on what we did here at home and not have thought it through very well.

I would end on this. We all voted for it because we are sympathetic to the cause and want to make sure the 9/11 families can proceed in court to hold those accountable for the horrific acts against their families. I don't think we are helping those families by passing a law that is not well thought out and putting other families at risk who are in the fight today.

This is not suing for a war that is over. The damage is done after the war. The war on terror is very much alive and well. As far as the eye can see, America is going to be involved in equipping, training, aiding, and assisting groups. I don't want our country to be held liable and the people we ask to do the training and equipping to find themselves in a foreign court unless we as a nation knew and intended the consequence in question.

If we don't change this law, we will have not served those in the fight very well. We can modify this law in a way to allow claims to go forward post-9/11. All of us agreed to a process to allow the 9/11 families to move forward. I hope all of us can agree, or at least most of us, to modify that process to make sure we don't have unintended consequences that everybody in the national security infrastructure of the United States is telling us we created.

No Member of the Senate, in wanting to help 9/11 families, I believe, wants to expose other families and those who serve this Nation to being hauled into foreign courts and being accused of a crime and being sued.

We have a chance to fix it. I will tell you this. If we don't fix it, we are going to regret it because the activities we are engaged in today, I am afraid, could be a basis of action against our Nation under the law we passed.
If you did exactly what this law allows in another country and the terrorist organization was helped by the United States, even if you view them as terrorists, even though we didn't know about what they did, we could be liable, and I don't want that.

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Mr. GRAHAM. Yes. I think the foreign policy of nations and the willingness to assist us as a nation is very much up in the air if we don't somehow modify this law because if you are doing business in the United States--let's pick Saudi Arabia. The claims can be brought against the Saudi Government. If there is a judgment, those assets can be attached and they can be taken. If you are not doing business here, you don't have to worry about your assets being taken by a court.

I want to stress this. There can be a claim, but that claim has to be able to prove that the nation-state--example, Saudi Arabia--knew or should have known of the attack itself and aided the attack. If you can prove that, we not only should allow all lawsuits, we should rethink our relationship with Saudi Arabia.

Here is what the Saudis tell me. If we actually did that, I don't blame you for rethinking the relationship with us. What you say is very true, Senator McCain. If this law stands in the United States--and this is an emotional time in the world. Juries render justice, but Mideastern nations are not very popular right now, for sometimes good reason. The Saudis are helping people in Yemen. They are helping people in Syria. Sometimes they are helping people differently than we are helping because they are more worried about Iran than Assad.
It is a complex world, and I think nation-states are going to be reluctant to do business in America if they come from a complex part of the world if we don't modify this law because all of their assets are subject not only to being confiscated through a court process, it would no longer be a safe place to do business.

I would stress this. The same thing could happen to us in other countries. If some groups we are helping in Syria somehow want to take on Saudi Arabia because they don't like their government, I don't want us to be sued in Saudi court and the American business assets that lie in Saudi Arabia be seized or attached if we didn't know the people in question were actually going to attack Saudi Arabia and collaborate in that attack.

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Mr. GRAHAM. Mr. President, that is a really good question because the purpose of this legislation is to hold nation-states responsible for aiding terrorist organizations. The YPG Kurds, in the eyes of Turkey, could be a terrorist group. Al Qaeda is certainly considered a terrorist group in the eyes of everybody. We are now chasing terrorists all over the world. We are receiving information from one organization, taking that information, militarizing it, using it in a lethal fashion, and hitting people we don't intend to hit.

Here is what would solve this problem. For a liability to exist on any nation-state, including the United States, the only time you can be sued is if you intended and knowingly engaged in the activity, partnering with a terrorist group or separately, with the knowledge that you meant for this to happen. If we don't have that knowing requirement, we are going to open ourselves up to a lot of heartache throughout the world.

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Mr. GRAHAM. Mr. President, this is a really good question. One of the concepts we want to introduce into the new modification is discretionary decisions by nation-states. The original bill said you couldn't sue based on a discretionary decision--a planning activity, a strategic decision. Apparently, there is some evidence that lower-level Saudi officials or people in Saudi Arabia provided some money, helped people get passports, helped people do this, helped people do that. We don't want to be held liable if we have a rogue employee in a consulate somewhere. It has to be that the nation-state at the highest level of government--to be liable for the torturous act--knew or should have known. If we don't want to be guilty by association, you don't want to be held liable as an entire nation-state because you have one part of the government doing a function that was not approved by the government as a whole.

All I can say is we are making strategic decisions today. I don't know how much money we have given to the Kurds and other allies in Syria fighting ISIL, but I can tell you some of these groups in the eyes of other people in the region are terrorists, and they have an agenda outside of fighting ISIL. I don't want to be liable because we helped them in the cause of fighting ISIL if they go and do something else to harm somebody else, some other nation, unless we knew about it, because it will stop our ability to have partners. Unfortunately, in the war on terror, you are not going to win the war if you don't make alliances, and sometimes these alliances are with pretty unsavory people.

Saudi Arabia is in the same position we are. If you open the floodgates and the United States is liable because of the activity that occurred, people from your country are involved, but you don't have the requirement of saying you knew about it and you wanted it to happen.

Then we are opening ourselves up to a liability all over the globe because, unlike Saudi Arabia, we are all over the place. We are everywhere--in the Philippines. I can't think of a region in the world where there are not American operatives, intelligence officials, or military officials who are not somehow joined in the fight against different forms of terrorism, and all I am asking is that we modify this law. You can bring a claim against anybody you think caused 9/11, including a country like Saudi Arabia, but you have to prove that the government knew about it, should have known about it, and aided in the actual act. That is not in the law, and if we don't put that in the law, it will bite us all, and everybody fighting this war is trying to tell us we have gone too far.

Next year Senator McCain, Senator Graham, and hopefully others, will make it a top priority to modify this law so we can conduct foreign policy as a nation and not put our warfighters at risk and those we rely upon to win this war, because we are not helping the 9/11 families by putting people at risk for no good reason who are out there all over the world trying to protect us. That is exactly what we have done if we don't modify this law.

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