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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
SUBJECfffiTLE
DATE
RESTRICTION
AND TYPE
001. memo
To Samuel Berger thru James Baker from Charles Allen. Subject:
Legislative alternatives to proposals on behalf ofFlatow and Brothers
to the rescue plaintiffs (4 pages)
09/28/1999'
P5
Zu?/1-
002. letter
To President Clinton from Sean Maloney and David Goodfriend.
Subject: Kyl I Mack I Lautenberg amendment (1 page)
0810211999
P5
~J~~
003. memo
To PresidentClinton from Samuel Berger et al. Subject: Flatow
litigation and related amendments appearing in legislation
(Annotations) (4 pages)
08102/1999
P5
004. draft
re: Payment of certain antiterrorism judgements (2 pages)
n.d.
P5
005. statement
re: Explanation of proposal (6 pages)
n.d.
P5
I
006. talking poirits
I
re: Alejandre et al v. Republic of Cuba (Partial) (1 page)
COLLECTION:
Clinton Presidential Recq;ds
Counsel's Office
0912211999
P5
CLINTON LIBRARY PHOTOCOPY
OA!Box Number: 20839
FOLDER TITLE:
Brothers to the Rescue: BTTR [Brothers to the Rescue] [Folder 1]
Jamie Metrailer
2009-0342-F
'rn671
RESTRICTION CODES
Presidential Records Act- [44 U.S. C. 2204(a))
Freedom oflnformation Act- [5 U.S.C. 552(b))
Pl National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of the PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President,
and his advisors, or between such advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA)
b(l) Natio11al security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
1
b(3) Release would violate a Federal statut~ [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion rif
personal privacy [(b)(6) of the FOIA] :
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA)
,
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b{9) Release would disclose geological or geophysical information
concerning wells [(b)(9)' of the FOIA) ·
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S. C.
2201(3).
RR. Document will be reviewed upon request.
,
I
�NATIONAL SECURITY COUNCIL
7198
WASHINGTON, D.C. 20504
September 28, 1999
ACTION
MEMORANDUM FOR SAMUEL R. BERGER
BAKER~
THROUGH:
JAMES E.
FROM:
CHARLES A. ALLEN
SUBJECT:
Legislative Alternatives to Proposals ~n B~half ·
of· Flatow and Brothers to the Rescue P~aintiffs
rr
We would like to obtain your approval to share the attached
legislative alternative with a small poli6y group wit~ a view to
presenting a cleared proposal to the President.
Background
Prior to the August recess, we faced .the prospect of ~nactment
of section 118 (offered by Senat6rs Kyl, Mack and Lau~enberg) as
part of the ·Treasury-Postal bill.
~ection 118 would ~ave
exposed blocked assets by repealing th~ President's w~iver
authority under section 117 from last year's bill, an~ would
have allowed attachment of U.S. funds payable· to a for!eign
country such as Iran or Cub~. On August 2 the Presid~nt
indicated his agreement that a bill ~ith such a provi~ion could
rise to the level of a veto (T~b I), and the Secretar~ of State
and Attorney General con~luded that week that they wodld
recommend a veto .
. As a result, section 118 was removed from the Treasury-Postal
bill during conference, but it has been understood all along
that the provision could reappear in another bill thi~ session.
Mindful of the President's views, and motivated by oui desire to
maintain the President's national security tools whil~ at the
same time condemning terrorism, we have considered pos;sible
alternative approaches.
We worked. informally with ag~ncy
experts· (State, Treasury, Jristice, OMB) on technical matters,
and NSC staff developed out of this effort some ideas ]for
·
alternatives. Although we have discussed our proposaL only
within a small interagency group (Stu, OMB, OLC), we have not
CLINTON LIBRARY PHOTOCOPY .
�2
formally vetted it out of concern that any leaks coulq
effectively abrogate the President's policy options.
In recent days the issue has reemerged, with statemen~s by
Senator Mack about his resolve to raise his amendment ;anew, and
plaintiffs' statements to the press that the AdrnJnist.17ation's
opposition to the legislation and appearances in court to
protect the President's waiver mean that we support tJrrorist
states at the expense of American victims.
NSC/Legal's draft legislative proposal, Tab II (statutory
I
language) and Tab III (description of proposal), would provide a
near-term solution to the intractable problem created:by the
1996 amendment to the Foreign Sovereign Immunities Act allowing
private actions against .terrorist-list states. The ptoposal
assumes that some near-term payment to the three existing
judgment holders is necessary to head-off an unaccept~ble
provision such as section 118. At the same time, theiproposal
protects blocked assets in the national security inte~est· by
funding "advance payments" to judgment holders using :
·
appropriated funds.
The proposal also recognizes that the 1996 amendment conferring
jurisdiction against terrorist-list states has not ba+anced the
country's broader interest in an .important national s~curity
tool with our shared desire to provide redress for outrageous
acts of terrorism.
As a result, plaintiffs have been unable to
collect on their judgments, and extraordinary pressure has been
I
placed on the Administration to allow collection frorn:blocked.
assets.
Therefore, we believe that there
a need fbr a broad,
deliberative review of the problem of compensating.Arnerican
victims of terrorism before settling on a more permanent
sol~tion to these cases and others that may arise in the future.
I
The proposal at Tab II would .accomplish· the followingi:
'
•
Authorize advance payments to judgment holders as df September
30, 1999 (three cases), limited to 5 percent of adjudged
compensatory damages, not to exceed $2 million per'plaintiff.
(The maximum payout would be about $7 million, based on
adjudged compensatory damages as follows:
Flatow
$25
million; Brothers to the Rescue -- $49 million; .and Ciccipio,
Jacobson, and Reed~- $65 million.)
+-
•
Subrogate the United States to these claims against
list states to the.extent of advances paid.
CLINTON LIBRARY PHOTOCOPY
terrorist~
�3
•
Provide for a Presidentially appointed commission to study how
best to resolve the difficulties inherent in suits under the
1996 amendment.
The commission should be guided by! the·need
to preserve blocked assets while providing mearis of: effective
compensation for American victims of terrorism abro~d.
The·
commission would report findings and make recommend.ations for
legislative solutions within 18 months of enactment.
!
•
Amend section 117(d) of the Omnibus Appropriations ~ct for FY
1999 to confirm the President's authority to waive ~ection i17
and thus protect blocked assets.
'
As an alternative to use of appropriated funds to mak~ the
advance payments, we have also considered a provision:to
authorize use of existing victim compensation and assistance
accounts.
These accounts are funded with penalties a~d fines,
and they provide Federal support for a portion of the)states'
victim compensation and assistance programs. OMB advises that
legislation to tap the DOJ victim funds w~uld not require
scoring, since budget estimates each year already ass1p.me that
these funds will be depleted. However, use of these funds for·
the first time to pay compensatory damages adjudged by courts
would likely be opposed by governors, among others, since these
funds have only been used to provide modest payments to victims
for such things as expenses to attend trials.
Preced~nt setting
legislation in this area could deplete the Victims Compensation
Fund and, without substantial additional appropriation, draw its
resources away from traditional assistance activities:to
~~~
compensatory functions.
We have also considered legislation that would accomplish hhe ~~~~~
same objective by authorizing the vesting of frozen a$sets to L,u~L
make the 5 percent payments. This has the advantage bf no
requiring additional appropriations, but the same national
security disadvantages ·Of section 118, albeit on a di~ferent
scale. Moreover, unlike Cuba, Iran's frozen assets, which m~ght
be used in the Flatow and Ciccipio cases, consist of ~iplomatic
property and property subject to the Iran Claims Tribbnal,
raising all the international legal problems previousiy
identified.
We continue efforts to help plaintiffs locate unblock~d assets
for possible attachment. .In the Flato~ ·case, some 90.0
additional pages were turned over in August pursuant to
protective order.
In addition, Justice recently prov,ided
Flat ow's counsel a document from OFAC ·regarding a $7 5.0, 000
California land sale by an Iranian bank that wa$ due to close on
CLINTON LIBRARY PHOTOCOPY
�4
September .15.
Despite our providing such information,,
plaintiffs to date have not recovered assets.
Flatow'!s counsel
has signaled a lack of interest in further protracted ;litigation
to show the necessary connection between Iranian commercial·
entities and the Government of Iran as required to prevail in
court.
Thus, despite our continued efforts in this aiea,
information on unblocked assets will not obviate the need for a
legislative remedy.
For your information, following the recess Stu Eizenstat asked
his people at. Treasury to draft a memo for him to senq to the
White House laying out legislative options and ways we might
expand support to plaintiffs on unblocked assets.
He :intends to
circulate the memo in a small interagency group, (including NSC
staff) bef.ore he finalizes it, but we have not yet seen the.
draft.
Concurrence by:
Miles Lackey
t?f/r
RECOMMENDATION
That you authorize circulation of the attached proposal to Stu
Eizenstat, Tom Pickering, Eric Holder, Jack Lew and B~th Nolan
with a view to presenting to the President a legislative
I
alternative to section 118.
'
·Approve
Disapprove ______
Attachments
Tab I
Memorandum for the President
Tab II
Legislative Proposal
Tab III
Explanation of Proposal
' .
'
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CLINTON LIBRARY PHOTOCOPY
�06:11 PH EDT
09.122/gg
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Page 3 oF 5 #7059
via VSI-FAX
I
After being allowed to intervene for the purposes of appeal, we, along with other affected
parties, appealed. On August 11, 1999, Judge King's decision was overturned by the Eleventh
Circuit. The appellate court ruled only on the second ground, holding that ETECSA Was a
separate juridical entity from the government of Cuba and hence not subject to garnishment for the
Cuban government's debts. The Eleventh Circuit's opinion, however, leaves open the: question of
whether assets held in the name of other Cuban entities, in particular, ETECSA's predecessor, the
nationalized telecommunications company known as EMTELCUBA (now, RADIOCUBA), may
properly be garnished to satisfy a judgment aga,inst the government of Cuba. It also leaves open
the question of more interest to the United States, whether the President's waiver of Section 117 is
valid. Accordingly, in the district court, plaintiffs continue to pursue garnishment of~e blocked
bank accounts holding Cuban assets, including assets of EMTELCUBA, and also are' asserting the
right to take additional discovery on ETECSA's relationship with the Cuban government and with
EMTELCUBA
'
Although plaintiffs have not yet acted to attach or garnish any other assets, th~ possibility
exists that they may attempt to do so, and the Justice Department has sought to be prdpared to
forestall any such attempts. Of current interest, a risk exists that plaintiffs may attempt to attach
the airplane that will be used to transport Cuba's foreign minister, currently visiting the United
Nations, back to Cuba next week..Although we suspect that plaintiffs are aware oftlie visit and
have chosen not to act (since they did not act when the plane delivered the foreign mib.ister to this
country), we suggest that this possibility .not be mentioned to them.
Questions and Answers
Q:
'What interests is the United States seeking to protect by participating in these: cases?
.I
!
In exercising his authority to waive Section 117, the President identified significant
national security interests that would be affected by allowing attachment or gamishm~nt of
blocked assets. These include: ( 1) impairment of our ability to use sanctions programs that
involve the blocking of assets of terrorist-list states for leverage to protect national se~urity; (2) as
applied to foreign diplomatic property (not directly involved in this case but involvec4 ~ in the
Flatow case against Iran), contravention of international legal obligations upon which we rely to
protect diplomatic personnel and other U.S. citizens abroad; and (3) preclusion ofthej use of
blocked assets as part of an equitable program for settlement of all U.S. claims against a given
terrorist-list state. For example, there are currently ovei: $6 billion in claims by U.S. hationals
against Cuba, including some for wrongful death, which were adjudicated in the early 1970s by
the Foreign Claims Settlement Commission.
'
In addition,. allowing garnishment of the debts owed ETECSA would interferb with the
ability of the United States to carry out important foreign policy goals enshrined in the Cuban
Democracy Act of 1992. This Act authorizes direct telecommunications services be~een the
UJ;Lited States and Cuba and permits the special licensing of payments due to Cuba o~ Cuban
entities of amounts due "as a result ofthe provision oftelecommunications services.": Direct
·
telecommunications service fosters contacts between residents of the United States an~ the people
of Cuba, and is a critical element of. our policy of supporting the Cuban people and fqstering a
I
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CLINTON LIBRARY PHOTOCOPY
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
l,tJ:;;~
re: Meeting with counsel in Flatow case (2 pages)
0713011999:
P5
. 002a. letter
To President Clinton from Sean Maloney and David Goodfriend.
Subject: Kyl I Mack I Lautenberg amendment (I page)
0810211999
P5
002b. memo
To President Clinton from Samuel Berger et al. Subject: Flatow
litigation and related amendments appearing in leglislation
(Annotations) (4 pages)
08102119991
P5
003. memo
To Charles Ruff from Neal Katyal. Subject: Cuban sanctions (10
pages)
0611611999
P5
Zu'!:/:;-
004. memo
To Jamie Baker from Charles Ruff. Subject: BTTR (1 page)
0612911999:
P5
·2o~{o
005. note
re: Communications strategy (1 page)
n.d.
P5
lO'::J(
006a. note
re: AnnotationS concerning benefits for families of embassy bombii:lgs
(I page)
0113l/2000t
P5
?a;;?{
006b. memo
To Chief of Staffthru Jacob Lew from Bob Kyle. Subject: Benefits for
families of embassy bombings (Annotated) (2 pages)
0110612000;
P5
7_.)3S
007. briefing paper
re: Legislative option Flatow and BTTR case (3 pages)
01/2812000 i
P5
Zo+o
001. notes
I
'
I
'?;)::;3
D.f'
COLLECTION:
CLINTON LIBRARY PHOTOCOPY
Clinton Presidential Records
Counsel's Office
OA!Box Number: 20839
FOLDER TITLE:
Brothers to the Rescue: BTTR [Brothers to the Rescue] [Folder 2]
Jamie Metrailer
2009-0342-F
·m6n
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S. C. 552(b)]
PI National Security Classified Information [(a)(I) of the PRA]
P2 Relating to tbe appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a Federal statute [(a)(3) of tbe PRA)
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) ofthe PRA)
PS Release would disclose confidential advice between tbe President
and his advisors, or between sucb advisors [a)(S) of the PRA)
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
b(l) National security classified informatio.n [(b)(l) ofthe FOIA)
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA)
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA)
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) ofthe FOIA] ·
b(7) Release would disclose information compiled for law enforcement
i
purposes [(b)(7) of the FOIA)
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIAj
b(9) Release would disclose geoiDgical or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
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�Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
DATE
SUBJECT!TITLE
RESTRICTION
AND TYPE
001. letter
Address (Partial); Phone No. (Partial) (1 page)
03/26/1999 i
P6/b(6)
002. memo
To President Clinton from Samuel Berger and Charles Ruff. Subject:
Decision in the "Brothers to the Rescue" case (Annotations) (4 pages)
05/07/1999 i
PS
COLLECTION:
Clinton Presidential Records
Counsel's Office
CLINTON LIBRARY PHOTOCOPY
OA/Box Number: 20839
FOLDER TITLE:
Brothers to the Rescue: [Litigation Information]
Jamie Metrailer
2009-0342-F
'm673
RESTRICTION CODES
Presidential Records Act- (44 U.S.C. 2204(a)]
Freedom of Information Act- [5 U.S.C. 552(b)]
Pl
P2
P3
P4
b(l) National security classified information ((b)(l) of the FOIA]
b(2) Release would disclose internal person~el rules and practices of
:
an agency ((b)(2) of the FOIA]
b(J) Release would violate a Federal statute ((b)(J) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information ((b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA] '
b(7) Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIA]
:
·
b(S) Release would disclose information con:cerning the regulation of
financial institutions [(b)(S) of the FOrA]
b(9) Rel~ase would disclose geological or geophysical information
·concerning wells [(b)(9) of the FOIA] i
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(J) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRAl
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
ofgift.
.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
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29~999
April
MEMORANDUM FOR THE PRESIDENT
FROM:
2584
'
SAMUEL BERGER(£/_
CHARLES F. C. RU~~(~~({~.
,
"'i!iJ:~'~e ~scue" Case
~'
animated conversations with us about
1
Decision in the
'
You have had a number of
the
litigation related to the shoot-down of "Brothers to ~he Rescue"
(BTTR) pilots in February 1.996. Following is some ba~kground on
the legal and policy aspects of the case.
I
Litigation. In December 1997, the families of the pi~ots
obtained a $187 million judgment against Cuba, under a 1996
amendment to the Foreign Sovereign Immunities Act which allows
civil suits against state sponsors of terrorism despi~e the
general rule that courts lack jurisdiction over claim's brought
against a foreign state. Plaintiffs are attempting tb collect on
their judgment by attaching blocked Cuban assets and garnishing
OFAC-licensed telecom payments.
(The total of USG-blocked Cuban
assets is $178 million.) On March 18, Judge King, Southern
District of Florida, ruled against the telecom compan:ies and
ordered garnishment of over $6 miTIIon in debts a bile by_U.S.
telecom compan1es o
e
n tele hone
y. Supsequently,
the JU ge granted the telecom companies' motion to st'ay the
garnishment order pending appeal. The USG intervened as a party
for purposes of appeal and DoJ and the te_lecom compan:ies sought
review in the Eleventh Circuit. On April 27, the cir'cui t judge
set the schedule, with briefs due May 17.
1
i
Legal Aspects. The core issue in the BTTR case, as w'ell as . in
similai cases involving blocked Iranian assets, is seFtion 117 of
the Omnibus Appropriations Act (FY 99). Section 117 ·amends the
Foreign Sovereign Immunities Act (FSIA) to allow holct'ers of
judgments against terrorist-list countries to attach properties
blocked under various national security statutes,
·"notwithstanding any other provision of law." It also requires
State and Treasury to assist judgment holders in iden:tifying,
locating, and executing against the property of such ~ountries.
cc: vi;ce President
ChJief of Staff
UNCLASSIFIED WITH ·
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·section 117(d) allows you to waive these provlslons "in the
interest of national security.". You exercised the waiver (Tab A)
on the day of enactment, October 21, 1998, identifyin~
significant national security interests that would be:affected if
the attachment provisions were.invoked. The court invalidated
your waiver, concluding that Congress did not intend to permit
waiver of the part of section 117 that allows plaintiffs to
collect from blocked assets or other immune property !(such as
licensed telecom payments) .
'
Justice believes it has a very good case for upholding the waiver
of section 117. State, Treasury, and NSC Legal concur. We
argued in district court that the waiver is proper based on the
plain language of the statute, which provides that you may waive
section 117 "requirements,"· including the provision· re!ated to
blocked foreign-state property. The court held, howe~er, that
the waiver extends only to the requirement that the U,SG help
locate unblocked assets of terrorist slates. The cou~rt drew on a
very limited legislative history, based on conflictin~ statements
by Members of Congress.
(There were no hearings and only limited
floor action on Section 117.) Though the court characterized the
statutory language as "ambiguous," it proceeded to limit the
1
scope of the waiver anyway.
Policy Considerations. The district court's decision /highlights
the serious policy and national security risks -- which go far
beyond interference with Cuban telecommunications links -- that
were the basis for exercising the waiver last fall.
First, the court decision will encourage efforts by the
plaintiffs to attach the entire $178 million in blocked Cuban
assets. Blocking assets is one of the primary policy tools at
our disposal to combat conduct by hostile states against the
security of the United States. It disrupts the ability of
terrorist-list countries to carry out international financial
transactions using those assets and -- to the degree :the
Governments seek the return of these funds -- gives us
significant leverage. The Supreme Court has recogni~ed blocking
to be a "critical" tool in dealing with hostile coun~ries. (For ·
example, our release of virtually all blocked Iranian assets was
the critical leverage in securing the release of American
hostages from Iran.) Retaining the blocked assets also
strengthens your hand in efforts to normalize relations,
including resolution of valid claims once a different government
is in place. Past blocking programs have been the s6urce of
funds paid in claims settlements with Yugoslavia, Bulgaria,
Hungary, Romania, Czechoslovakia, and Vietnam. If w~ were to.
allow blocked assets to be doled out to private creditors now, we .
would literally eliminate blocking as a foreign policy tool.
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Second, it would be unfair to allow the BTTR claimants to attach
blocked Cuban assets without treating the other 5,911 certified
U.S. claimants in a similar fashion. Over $6 billion in claims
against Cuba were adjudicated in the early 1970s by the Foreign
Claims Settlement Commission (FCSC). These claimantslhave waited
for decades for compensation for the expropriation oflproperty,
wrongful deaths and personal injuries caused by the Cuban
government in the 1960s. Claimants could rightfully 9emand
compensation out of blocked Cuban assets as well. In fact, when
you authorized an earlier payment of $1.2 million in blocked
Cuban assets for ex gratia humanitarian payments to the four
families affected in the BTTR shoot-down, representat~ves of the
certified claimants expressed their opposition to you~ action.
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•.' ~
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~G:l.
~~Jri
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Third, a similar decision in the Flatow or Jacobson, Cicippio and
Reed case (involving claims against Iran) would lead to execution
on blocked diplomatic property. Allowing private judgment
creditors to attach di lomatic assets would be in vio.iation of
ithe
lomatic Relations, which requires-the
.~u.s. to respect an protec
-ies as-r--· lable. It
wou
o e
e princ1p e that diplomatic property mu!5t always be
protected regardless of bilateral relations and risk protections
the U.S. currently enjoys at every embassy abroad. Furthermore,
under the Algiers Accords that ended the hostage cris~s, the
awards of the Iran-U. §...:. Clajms Tri hnna 1 are final, binding_, and
""enforceable ·
courts of an coun
As a resul;t, i-f a U.S.
court allowed execution on these assets, the USG could be liable
for the value of the properties. Similarly, the dec~sion opens a
channel for attachment of blocked Cuban bank accounts which are
licensed for use by Cuba's Mission to the United Nat~ons.
Granting access to these accounts would violate our obligations
under the UN Charter to permit and protect the functi;oning of UN
Missions. It could also lead to claims by Cuba or the UN, and a
potentially embarrassing interna·tional legal case against the
United States.
Finally, the district court's decision interferes with our
ability to implement the 1992 Cuban Democracy Act, which permits
the special ·
· n arrangements for telecom servid~s.
Communications links between
er~cans and t e
un
eople enjoy
broad bipartisan support. Court proceedings related~to the
garnishment order prevented the telecom companies from making
payments to the Cuban telephone company, prompting tlie Cuban
government to cut direct phone links.
(See TAB B for March 15
memo on this subject.) Since then, calls have been ~outed
through third countries. Beyond the effects on phon~ service
(higher costs/degraded service), the decision also paves the way
for judgment creditors to garnish OFAC-licensed payments by U.S.
1
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•
c~SID!:tVr'"',
UNCLASSIFIED with
€0HFIDEN'fiAL Attes£
CLINTON LIBRARY PHOTOCOPY
~ <("
.
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2Ji( '})
:'
.~
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.
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~~--~---
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. . .
�UNCLASSIFIED with
(COHPID~N"i'IAL
4
}'rttaehHteRt
airline companies to fly through Cuba's three international
flight corridors.
(Plaintiffs' counsel have indicated their
interest in moving against these payments.) Cuba would likely
close flight corridors, resulting in additional flight times and
significant expense to the airlines.
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A disadvantage to this approach is that we do not have a way to
accomplish the same result in the cases against Iran '(i.e.,
Flatow and Cicippio, Jacobsen, and Reed). Unlike theiCuban case,
the statute under which Iranian property is blocked d9es not
allow vesting of property. While we have been able to provide
plaintiffs with some information on unblocked commercial assets
that may be available for attachment, it is unclear if the
.
plaintiffs will ultimately be successful in attachingithese
assets.
·
Attachments
Tab A PD 99-1 (Waiver of section 117)
,
Tab B Memorandum to the President of March 15, 1999 :
UNCLASSIFIED with
--GGm"ID~NTildJ
Attacf:l.
CLINTON LIBRARY PHOTOCOPY
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Withdrawal/Redaction Sheet
Clinton Library
SUBJECTrrJTLE.
DOCUMENT NO.
AND TYPE
DATE
RESTRICTION
001. memo
Draft for Maria Echaveste from Fulton Aimstrong re: Cuba
Shootdown Families' Efforts to Attach Frozen Funds (Annotations) (4
pages)
11/06/1998:
002. email
Charles Allen to National Security Advisor re: Attempts to attach
Iranian and Cuban assets (I page)
11/24/1998:
P5
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COLLECTION:
Clinton Presidential Records
National Security Council
Inter-American Affairs (Caryn Hollis)
OA/Box Number: 2928
FOLDER TITLE:
Cuba BTTR [Brothers to the Rescue] Legal Lautenberg [2]
2009-0342-F
'ml084
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- (5 U.S.C. SS2(b)J
National Security Classified Information l(a)(l) of the PRAJ
Relating to the appointment to Federal office f(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors Ja)(S) or'the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
b(l) National security classified information J(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
1
an agency J(b)(2) of the FOIAJ
b(J) Release would violate a Federal statute J(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial
information J(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy J(b)(6) of the FOIAJ '
b(7) Release would disclose information compiled for law enforcement
purposes J(b)(7) of the FOIAJ
b(8) Release would disclose information conc,erning the regulation of
financial institutions ((b)(8) of the FOIAiJ
b(9) Release would disclose geological or geophysical information
concerning wells J(b)(9) of the FOIAJ
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P2
PJ
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
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�xxxx
November 6,
AF'f ~ J ~J(tfr
J'; 'M ~.iJJ¥!()<ta'
1998
~ J{,.1 ~!Y"J'
i
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MEMORANDUM FOR MARIA ECIIAVESTE
THROUGH:
·FROM:
SUBJECT:
. 1~?
~ fo do q1/)-IJVP
eve~·~
JAMES F. DOBBINS
FULTON T. ARMSTRONG
Cuba Shootdown Families' Efforts to Attach Frozen
Funds
I
We understand that Jorge Mas Santos told the President, last week
..
that the families of the "Brothers to the Rescue"
~hoo~~own
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victims sought to attach blocked Cuban Government "commercial"
.
.funds, not "diplomatic" funds.
.
'
.
i.
The families apparently believed
I
·that the President's waiver of the Lautenberg Amendment to the
Omnibus Appropriations Act covered only diplomatic properties
and accounts.
The Lautenberg amendment would permit holders of
judgm~nts
against terrorist-list countries to attach properties blocked
·,
under various national security statutes,
other provision of law."
"notwithstan~ing
any
The amendment includes a waiver
provision allowing the President to waive this requirement "in
the interest of national security."
Because of signiflcant
I
i
national security concerns, the President waived the Lautenberg
amendment upon signing the Omnibus Appropriations Act
COPY
�2
In fact,
the waiver prevents the attachment of all blocked
assets of terrorist-list countries, including over $170 million
in frozen Cuba11 assets.
Plaintiffs in the shootdown case have
attempted to use the new law to attach blocked Cuban assets that
FJA
Wf'!t
.
( TkPAt
have been held by AT&T for years. [They ar;- chaile;;g;_-;;g·the·-~nl;
Of'L
w-~ o)l "·
n '\.0
-t}J J#t'1oJl (r
President's waiver, claiming that the law only allows the
~btt
President to waive a provision that calls on State and Treasury
..
u/ O!J
~
to assist judgment holders in identifying assets to satisfy
J
I.:J;dt
0L~f!
~~to
their judgments.
tJI"\
The fact that the blocked Cuban assets are not diplomatic
properties as are those
~t
fi
;/)err.}
issue in the Flatow case does not put
the Cuban assets outside the waiver's coverage.
Although
diplomatic properties present additional concerns, the President·
waived the amendment because it would effectively eliminate use
of blocked assets of terrorist countries in our national
security interest, i.ncluding_ as leverage against those
·
countries.
.
. .. Jj
a.ko chu.dJ.JaAo
Jv ~_-I_
· . .
la.wJO/!iftJ )i
C/
·. · _,_...
·l/ ·.J
u ;:lk ;th,rcP' ~ck .r.-1 fJ .S · ~- ··.
.r tu/ · lf.j ~ fL ~0/' ~ l.A 'k ,;_ (;4
'!lvV
~(),.. IJurr~
.
.
FYI, we are not aware of any uhblocked assets of Cuba.
Treasury (OFAC)
. _
t
~vc...v--~ ttJ>t
U "
· _/
However,
w~).OJA
~LJ (t;r
(about $20 million) and
telecommunications services (about $72 million) .
crcoJJ
cl~t
licenses payments from U.S. companies to Cuba
each year for overflight rights
I
M~·
The latter
payments are reported to Congress under the Cuba Democracy
Act,-----~
:\oN
and Treasury has shared this information with plaintiffs· i
COPY
c_~'te
~554>
C
'"'-
r--./
Q;;
:<:,~/
}...-o /'
,/
�3
shootdown cases.
be attached.
It is uncertain whether these payments
.could
To do so would keep Cuba from receiving the funds
and could Tesult in disruptions ih communications between the
American and Cuban people -- a mainstay of our policy that is
widely supported by the Cuban-American community.
Also, the
overflight right~ are critical to many different routes flown by
U.S. airline companies. ·
Points for your call to Mr .. Mas':·
President enjoyed exchange with you, and appreciated your
clarification of desires of shootdown victims' families
regarding attachmeht of frozen Cuban funds.
As you know, President exercised waiver authority in Omnibus
Appropriations Act due to important national security
interests.
Had he not used the waiver, the "Lautenberg
Amendment" would have.allowed holders of judgments against
countries on the U.S. Government's terrorist list to attach
frozen assets.
President did so in interest of national security.
If not
waived, the amendment would effectively eliminate us~ of
blocked assets of terrorist-list countries, such as Cuba, as
leverage against them.
COPY
�..
4
In cases like Iran, where diplomatic properties are
involved, attachment would also put at risk the protection
of American personnel and properties abroad.
Also important in case of Cuba is that attachment by a
small number of judgment creditors would deny us use of
funds to compensate or secure compensation for the
thousands of certified claimants to confiscated
properties.
In case of Cuba, there is no "diplomatic" property at issue.
Nevertheless, as I·. said before, there are important national
security interests at stake with regard to all blocked assets
of terrorist-list countries.
The President's waiver
preserves these interests.
President deeply sympathizes with families ()f four shootdown
We have taken st~ong ste:ps against Cuba. for brutal
victims.
act, and marshaled forceful international condemnation.
Preiident also arranged $1.2 million in humanitarian
compensation for families.
Clearance: Chuck Allen
510£~-"-,"'//.
'-<)?(
(:..
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CP
\:55&>. J
.
"""!-_~ ~-
..:..---
�Armstrong, Fulton T.
From:
Sent:
To:
Cc: ·
Subject:
Allen, Charles A.
Tuesday, November 24, 1998 8:47PM
@NSA - Natl Security Advisor
.
@LEGAL- Legal Advisor; @LEGISLAT- Legislative Affairs; Armstrong, Fulton T.; Dobbins,
James F.; Marty, Joseph H.; Riedel, Bruce 0.; Simon, Steven N.
Attempts to attach Iranian and Cuban assets [UNCLASSIFIED]
Please pass to Sandy, Jim, and Don:
Summary. Since the President's waiver of section 117 of the Omnibus Act, there have been several developments in
ongoing litigation --judgment holders have stepped up efforts to attach Iranian and Cuban assets. First, the Florida court·
that decided the shootdown case last year issued a writ against AT&T for blocked Cuban funds. ·Next, Flatow filed a
supplemental brief with the DC court claiming the waiver is invalid and seeking the blocked diplomatic properties of Iran.
Also, Flatow obtained a writ against Treasury to attach credits held by the U.S. for Iran, including $6.5 million from the
judgment fund being processed to pay an award of the Iran-U.S. Claims Tribunal. Justice is resolutely defending the
President's waiver in all cases.
·
Background
.•
Section 117 permits attachment of blocked property to satisfy judgments under the 1996 amendment to the Foreign
Sovereign Immunities Act (FSIA) against Iran, Cuba and other state sponsors of terrorism. The President exercised
section 117's waiver provision in the national interest.
•
Shootdown case. Judge King, the Florida judge who entered the $187 million judgment against Cuba last December,
issued a writ against AT&T for blocked Cuban assets just a few days after section 117 became law. AT&T holds
about $93 million (of the total $178 million in blocked Cuban assets) at Chase Manhattan Bank in New York. AT&T
moved for a protective order in light of the President's waiver, and Justice indicated the USG's intention to file a
statement of interest to uphold the waiver. Since the assets are held in a NeW York account, it is unclear where
litigation on Judge King's writ will take place.
•
Flatow case - diplomatic properties. Flatow's lawyers have filed a supplemental brief with Judge Lamberth claiming
that section 117 resolves all questions relating to Flatow's writs of attachment on blocked diplomatic properties of
Iran. They argue that the President's waiver cannot reach the part of section 117 that makes blocked assets subject
to attachment. They refer to floor statements on the amendment and the effort by the Administration to seek a
clearer waiver provision. (FYI, the record shows conflicting floor statements, with one exchange by Hoyer and Kolbe
confirming that the waiver is intended to reach the entire section.) Justice, including OLC, has consistently
maintained that the waiver is effective to protect the blocked assets and will so argue in its brief in response to be
filed in the next few weeks.
·
•
Award of Iran-U.S. Claims Tribunal. The June 1998 binding aw~rd requires the USG to pay Iran some $6.5 million.
Before processing the payment from the Judgment Fund, Justice determined that it was necessary, to avoid
misunderstanding, to inform plaintiffs in the Flatow and Cicippio/Jacobsen/Reed cases and the respective courts that
the payment would be made in the coming days. In response, Flatow served a writ of attachment on Treasury
seeking all credits held by the USG for Iran, including specifically amounts due under the June Tribunal award. This
week Justice will file a motion to quash the writ on sovereign immunity grounds. (Absent an express statutory waiver,
a creditor cannot reach Federal funds owed to a judgment debtor.) Longstanding case law supports the USG
position, but Flatow is likely to argue that section 117 effectively waives sovereign immunity in this case. The
. payment to Iran will be further delayed until the matter is resolved.
COPY
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
OO!a. memo
Charles Allen thru James Baker to Samuel Berger re: Treasury-Postal
Appropriations Bill Ammendment and Flatow Litigation (I page)
06/25/1999
PS
OOlb. memo
Samuel Berger, Charles Ruff, and Larry Stein to President Clinton re:
Treasury-Postal Appropriations Bill Ammendment and Flatow
Litigation (3 pages)
n.d.
PS
00 I c. attachment
re: Status of Flatow Litigation and Assistance to Mr. Flatow (2 pages)
n.d.
PS
002. memo
Charles Ruff and Samuel Berger to President Clinton re: Decision in
the "Brothers to the Rescue" Case (6 pages)
n.d.
J.S'u 1
PS
COLLECTION:
Clinton Presidential Records
National Security Council
Inter-American Affairs (Caryn Hollis)
OA/Box Number: 2928
FOLDER TITLE:
Cuba BTTR [Brothers to the Rescue] Legal Lautenberg [6]
2009-0342-F
'ml086
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)J
Freedom of Information Act- JS U.S.C. 552(b)J
National Security Classified Information [(a)( I) of the PRAI
Relating to the appointment to Federal office [(a)(2) of the PRAI
Release would violate a Federal statute l(a)(J) of the PRA[
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PR>\[
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors [a)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRAJ
b(l) National security classified information ((b)( I) of the FOIA[
· b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIA[
b(J) Release would violate a Federal statute l(b)(J) of the FOIA[
b(4) Release would disclose trade secrets or confidential or financial
information f(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA[
b(7) Release would disclose information compiled for law enforcement
purposes ((b)(7) of the FOIA(
b(8) Release would disclose information concerning the regulation of
financial institutions f(b)(8) of the FOIA[
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA[
PI
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C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
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�NATIONAL SECURITY COUNCIL
4515 Redo .
WASHINGTON, D.C. 20504
June 25, 1999
ACTION
MEMORANDUM FOR SAMUEL R. BERGER
BAKE~
THROUGH:
JAMES
FROM:
CHARLES ALLEN
SUBJECT:
Treasury-Postal Appropriations Bill Amendment and
Flatow Litigation
~
In light of Senate Appropriations Committee action this week,
adding an amendment to the Treasury-Postal bill that poses major
difficulties, we need the President's guidance regarding a
possible veto threat.
We therefore pulled the Flatow update
memo we had done and attached that informatio~ to the memo to
the President at Tab I.
J.
Concurrence by:
tkt1rV"
.d. .,../.
~nd Mara Rudmarr·~~~
Miles Lackey
RECOMMENDA,T I ON
That you'sign the memorandum for the President at Tab I.
Attachments
Tab I
Memorandum for the President
Tab A Status of Flatow Litigation
\\
COPY
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Withdrawal/Redaction Sheet
Clintori Library
DOCUMENT NO.·
AND TYPE
SUBJECTffiTLE
DATE
001. cable
re: Iran Air Flight 655. [partial] (I page)
06/06/1989
P6/b(6)
002a. fax
Ronald Bettauer to Alan Kreczko re: Vesting Cuban Assets (I page)
05/09/1996
P5
ti<SlLA
002b. attachment
Draft re: Vesting Cuban Assets to Pay the Families of the Victims of
the Cuban Shootdown (7 pages)
05/09/1996
P5
rfLSla3c15~(g
RESTRICTION
COLLECTION:
Clinton Presidential Records
National Security Council
Legal Advisor (John Sparks)
OA!Box Number:· 1007
FOLDER TITLE:
Ex Gratia I Cuba Shootdown
2009-0342-F
vzll60
RESTRICTION CODES
Freedom of Information Act- IS U.S.C. SS2(b)J
Presidential Records Act -144 U.S.C. 2204(a)J
PI
P2
P3
P4
National Security Classified Information J(a)(l) of the PRAJ
Relating to the appointment to Federal office J(a)(2) of the PRAI
Release would violate a Federal statute !(a)(3) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information l(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors la)(5) of the PRAJ
P6 Release would constitute a clearly unwarranted invasion of
personal privacy l(a)(6) of the PRAI
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
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b(l) National security classified informat.ion J(b)( I) of the FOIAJ
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAJ
b(3) Release would violate a J.'ederal statute l(b)(J) of the FOIAI
b(4) Release would disclose trade secrets or confidential or financial·
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
.
purposes !(b)(7) of the FOIAJ
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8) or the FOIAJ
· b(9) Release would disclose geological or geophysical information
concerning wells l(b)(9) of the FOIAJ
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�LJCID
ID:2027768389
MAY 09'96
17:07 No.002 P.Ol
facsimile
TRANSMITTAL
to:
NSC - Mr. Kreczko
fax#:
456-9110
Vesting Cuban Assets
May 9, 1996
8 page(s) total, including this cover sheet ·
ra:
date:
pages:
Conrad asked me to send you the attached paper. He said he would call you to talk
with you about it.
From:
Ronald J. Battauor
Assistant Legal Adviser for International
Claims and Investment Disputes
United States llapartmant of State
Washington, D.C. 20520
tal: 202-778-8380
fax: 202-778-8389
COPY
�ID:2027768389
L!CID
MRY 09'96
17:07 No.002 P.02
.
~~
IF
. ~~·
' ~~~3 c
~
DRAFT
(3'
Vesting Cuban Assets to Pay the .
Families of
. the Victims of the February 24. 1966, Cuban
1-_;,.,
.
....,
Shootd~n
~
.
Y
-f.
.
-::::=....._:..-';
'
On February 26, the President announced that he would seek
legislation to provide immediate compensation to the families of
the victims out of Cuba•s blocked assets in the United States. we
are. informed that the President recently met with the families and
restated his commitment to provide compensation to them out of
blocked Cuban assets. We also understand that at least one of the
families of the victims may not be u.s. nationals.
·
Reasons for Seeking a Reygrsal or Postponement of thia Decision
In most circumstanceas, the taking of alien or foreign
government property without prompt, adequate and effective
compensation violates international law. Historically, vesting
has not been a common or generally accepted means for resolving
interstate claims (there.may he only one instance in u.s. history,
for example). In part thi~ is becaus,e liability is determined
unilaterally and extra-juoicially by the party fn interest. Some
states may argue this is not permitted under international law and
assert, at a minimum, a prior. requi+ement to offer to go to
·
arbitration or other binding third-party dispute resolution.
Widespread vesting would also put at 'risk government (and private)
assets all around the world and discourage investment, something
which could cause particular damage to the U.S. financial system.
Customary practice would be to retain the assets in a blocked
status until there is a claims settlement. If Cuban assets are
v.ested in this case without a prior u.S. demand to Cuba for
compensation (or if Cuba were to respond to such a demand by
offering to negotiate or arbitrate), we would not be able to argue
that we had undertaken reasonable diplomatic efforts to resolve
the claims first. (Nor would we be able·to argue that Security
Council resolutions legitimate our action, as we did in the cases
of Iraq and Libya.)
Vesting assets for payment to non-nationals presents an
additional difficult problem under international law. Unless the
foreign government agrees, there is no recognized basis under
international law for the u.s. Government to espouse claims of
non-nationals, and there would thus be no basis for taking Cuban
assets unilaterally for a non-national.
Pressing a claim with Cuba directly, however, would present
risks if Cuba were to make a reasonable off~r to rssolv9 the
claims. For example, under agreements concluded in the 1920s anu.
1930s to which both Cuba and the United States are parties, the
Government of Cuba could take the United States to a fact-findin9
.
.
COPY
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\procedure. 7Although there would be no legally binding result,
't}!is would,;-delay acting on the claims and runs the risk of adverse
c6nc.lu.s.iohs. At the same time, these procedures would also be
available to Cuba if we were preemptively to vest its assets.
Any level of compensation we pro.vide -- whether fixed amounts
or tailored to the families circumstarices -~ i~ subject both to
criticism by the families of the victims and to challenge in the
courts. The recent amendments to the FSIA made by the
Counter-Terrorism Act would provide jurisdiction for suits by U.S.
nationals against Cuba in the United States for extra-judicial
killing and aircraft sabotage. The 5911 holders of claims
certified by the Foreign Claims Settlement Commission in 1972
might also complain about the use of blocked·Cuban assets for the
satisfaction of claims other than theirs.
If the decision is to proceed, there are the following options
for implementing·it.
Options for Implementing the President•s Offex
1. Ask the Justice Department,· in consultation with the State
Department, to obtain necessary info~;mationand documentation from.
the u.s. nationals who are survivors and determine the amount of
compensation each should receive. Ask Treasury, upon receipt of a
waiver, to vest sufficient assets and pay that amount to those
survivors.
Comment: Under this option the Justice Department {presumably
the Torts Branch of the Civil Division), in consultation with
State (L), would be asked to determine the appropriate amount of
compensation since we can reasonably anticipate litigation in
domestic courts concerning the amount. Flexibility is maintained
by not articulating in advance whether the standard applied to
determine the amount of compensation is drawn from international
or domestic law. Only U.S. nationals would be eligible for
payments. A waiver would be sought to protect the.u.s.
Government, to seek to forestall suits; and to enable us to argue
to third countries and, eventually, to Cuba, that in taking Cuba's
assets we settled the claims. If the claimants sought a higher
·
recovery against Cuba in the courts, the waiver could be used as a
justificati'on. for not licensing an additional release of blocked
assets.
2. Ask the Treasury Oepar~ment to ves~ and pay fixed amounts
(e.9., $250,000) to the family members of the victims that are
identified by the NSC in its memorandum to Treasury.
~
Comment: This is the option that can be implemente~ most
quickly. Under this option, the amounts ~ould be characterized as
a humanitarian gesture by the President and not as full
compensation. '(Note that in· the case of the 1992 C-130 shoot'down,
Peru paid the u.s. airman•s family $317,000; in the recent
settlement with Iran co~~~~~.Iran Air· 655 shootdown,
we agreed to pay famili~~ ~
_ning victims $150,000
1
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MAY 09'96
ID:2027768389
17:08 No.002_P.04
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each and families o~ wage earning victims $300,000 each.) No
~~iver w~..,wld be so~g~t from the families, leaving them free to
br'i"ng,.,Stll t for adth t1onal amounts under the new amendments to the
FSIA •. We could assess whether to license any court award from the
blocked ~ssets based on the amount of the award and the level of
complaints received from certified claimants about recourse to
further amounts of blocked assets. While the taking of assets
would be hard to justify under international law, there is no
guise that the action taken is an analogue to espousal and
settlement of claims of U.S. nationals.
3. Ask the State Department to obtain nece~sary information
and documentation from the u.s. nationals who are survivors and
determine, in aCCOrdance with international law, ·Which SUrViVOrS
are eligible beneficiaries and the amount of compensation each
should receive. Ask Treasury to vest sufficient assets and, upon
receipt of a waiver~ pay that amount to thos~ survivors.
'·
Comment: Under this option the State Department would be asked
to determine the appropriate beneficiaries and the amount of
compensation, applying international· law principles. We would
·justify our action under the principle that the Department may
espouse and settle claims of nationals under international law
(although there is only one ww I I pr'ecedent for doing this without
agreement of the other country or a U.N. Security Council
resolution establishin9 liability). The lo9ic of this option
requires that recovery be available only to u.s. nationals found
eligible under international law criteria and that they waive all
death claims arising out of the incident in return for the
payments. We anticipate the families would recover less under
this option than under option 1. ·The claimants would thus have
more incentive to reject the offered amounts, refuse to give a
waiver, and sue. If the claimants sought a higher recovery
against Cuba in the courts, the waiver could be uted as a
justification for not licensing an additional release of blocked
assets.
·
Evaluation
We believe the first o£ these options is the preferable one.
Providing only the amount justified under international law
(option 3) would likely draw intense criticism as providing· an
inadequate amount, compared to what they would expect to receive
in U.S. courts; it would thus increase the likelihood of suit in
u.s. courts and pressure on the u.s. Gove~nment to release
sufficient assets to satisfy the resulting large verdicts; and
.
proceeding with option 3, in the absence of e waiver. would def~ot
its whole purpose -- th~t of limiting u.s. exposure beyond what
could be justified under international law. Providing e fixed
amount (option 2), while the most expeditious route, could not be
credibly represented as full compensation, since the amount
selected would necessarily be arbitrary (although we could point
to precedent) and in any event would likely be far less than the
claimants would probab~~ ~~e in u.s .. courts
(although it could in ( : ,
~
y exceed entitlements
0
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�L!CID
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ID:2027768389
17:09 No.002 P.OS
- 4 '; '•
under international law); :therefore, it may also" sti'mulate suit in
pr~ssure dn the u.s. Government to release the
funds to pay the ,resulting verdicts. Providing an amount
determined by Justice (optton'l).is likely to be more credible,
because Justice's judgment on compensation is likely to command
more public credence than State's, and therefore there would be a·
better chance of either avoiding suit in U~S. courts or resisting
pressure to release additional assets.
u.s. courts and
COPY
�L!CID
ID:2027768389
MRY 09'96
17:09 No.002 P.06
Draft for Option 1
Memorandum to the Departments of Justice, State and the Treasury
The President has determined that compensation should be
paid out of Cuban assets blocked in the United States to
nationals of the United States who have claims against the
Government of Cuba arising out of the death of persons killed in
air.craft destroyed by Cuba on February 24, 1996.
The Department of Justice, in consultation with the
Department of State, is instructed to:
·
1. obtain necessary information and documentation from the
survivors end determine the amount of compensation each
such beneficiary sho~ld recei~e; and
·
2. transmit to the Department of the Treasury the names of
such beneficiaries and the amount of compensation to which
each beneficiary is entitled . .
The Department of the Treasury is instructed, subject to
receipt of written confirmation from the Office of Legal Counsel
of the Department of Justice of authority to do so under the
Trading with the Enemy Act and a waiver of all death claims.
arising.otit of the incident in question, to:
1. vest assets of the Government of Cuba blocked in the
United States sufficient to pay the amounts of compensation
to each of .the beneficiaries notified by the Department of
Justice; and
2. pay the amount of c~mpensation notified by the
Department of Justice t~ each beneficiary.
[signed]
[NSC]
COPY
�L!CID
ID:2027768389
MAY 09'96
17:10 No.002 P.07
·Draft for Ootion 2
I
Memorandum to tpe Department of the Treasury
The President has determined that compensation should be·
paid out of Cuban assets blocked in the United States to
nationals of the United States who have claims against the
Government of Cuba arising out of the death of persons killed in
aircraft destroyed by Cuba on February 24, 1996.
The Department of the Treasury is instructed, subject to
receipt of written confirmation from the Office of Legal Counsel
of the Department of Justice of authority to do so under the
Trading with the Enemy Act, to vest [$----] of the assets of the
Government of Cuba blocked in the United States and to pay
[$----1 to each of the following individuals:
--------------------------------------------.
.[signed]
[NSC]
•
COPY
�L!CID
ID:2027768389
MRY 09'96
17:10 No.002 P.OS
Dr_aft for Option 3
Memorandum to the Departments ot State and the Treasury
The President has determined that compensation should be
paid dut of Cuban ass~ts blocked in the United States to
nationals of the United States who have claims against the
Government of Cuba arisin~ out of the death of persons killed in
aircraft destroyed by Cuba on February 24, 1996.
·
The Department of State is instructed to:
l. obtain necessary information and documentation .from the
survivors and d~t~rmine, in accordance with international
law, which survivors are eligible beneficiaries and the
amount of compensa£ion e~ch such beneficiary should
receive; and
·
2. transmit to the Department of the Treasury the names of
such beneficiaries·and the amount of compensation to which
· each beneficia~y is entitl~d. ·
The Department of the Treasury is instructed, subject to
receipt of written confirmation from the Office of Legal Counsel
of the Depar~ment of Justice of authority to do so under the
Trading with the Enemy Act and a waiver-of all death claims
arising out of the.incident in question, to:
1. vest assets of the Government of Cuba ~locked in the
United States sufficient to pay the amounts of compensation
to each of the beneficiaries notified by the Department .of
State; and
2. pay the amount of compensation notified by the
Department of State to each beneficiary.
[signed]
[NSC]
COPY
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTffiTLE
DATE
RESTRICTION
OO!a. memo
Sean Maloney and David Goodfriend to President Clinton re: Kyl/
Mack I Lautenberg ammendment {1 page)
07/1711999
P5
;(_ 5& '1
OO!b. memo
Samuel Berger, Jacob Lew, Charles Ruff, and Larry Stein to President
Clinton re: Flatow Litigation and Related Ammendments Appearing in
Legislation (4 pages)
07/15/1999
P5
;2:5 ::j--{J
00 I c. attachment
re: Status of Flatow Litigation and Assistance to Mr. Flatow (2 pages)
n.d.
P5
c:ts~·t
002a. note
Chuck to Mara re: Draft statement (2 pages)
05/05/2000
P5
002b. draft
re: Treasury Department statement on Justice for Victims of Terrorism
Act (Annotations) (31 pages)
05/02/2000
P5
003. talking points
re: Mack I Lautenberg June
n.d.
P5
16,
2000 Letter (5 pages)
;2 S1-;;;,.
;2511JL Lf?-- I
s
COLLECTION:
Clinton Presidential Records
National Security Council
Office of the National Security Advisor (Mara Rudman)
OA/Box Number: 3934
FOLDER TITLE:
Legal Issues: Judgement Fund: Flatow & BTTR [Brothers to the Resuce] [3]
2009-0342-F
'ml088
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)l
Freedom of Information Act- IS U.S.C. 552(b)J
PI
P2
PJ
P4
b(l) National security classified information J(b)(l) of the FOIAI
b(2) Release would disclose internal personnel rules and practices of
an agency J(b)(2) of the FOIA)
b(J) Release would violate a Federal statute )(b)(J) of the FOIA)
b(4) Release would disclose trade secrets or confidential or financial
information l(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy )(b)(6) of the FOIA I
b(7) Release would disclose information compiled for law enforcement
purposes J(b)(7) of the FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions l(b)(8) of the I'OIAI
b(9) Release would disclose geological or geophysical information
concerning wells )(b)(9) of the FOIA)
National Security Classified Information [(a)( I) of the PRAI
Relating to the appointment to Federal office )(a)(2) of the PRA)
Release would violate a Federal statute l(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information )(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors 1a)(S) of the PRAI
P6 Release would constitute a clearly unwarranted invasion of
personal privacy J(a)(6) of the PRA)
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
:1
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The attached Berger/Lew/Ruff/Stein memo, which we
recommend you read, seeks your guidance on how to approach
a Kyl!Mack/Lautenberg amendment to permit attachment of
( 1) U.S. judgment funds payable by the U.S. to certain foreign
states; (2) foreign diplomatic property other than embassies;
and (3) U.S~ 'telecom payments to Cuban entities~
As you know, the amendment -- which could be attached to
any numberof bills-- is designed to ensure that Stephen
Flatow, Brothers to the Rescue families, and other plaintiffs
can attach blocked assets and U.S. funds owed to terrorist-list
states. The memo explains why your advisors believe your
position could rise to the level of a veto; explains why a
compromise provision probably is untenable; and gives you a
detailed update of the Flatow litigation.
The Senate-passed Treasury/Postal Appropriations bill
inclUdes the provision but the House bill does not; the bill may
go to conference as early as next week, contributing to your
advisors' desire to gauge you willingness to consider a veto
threat.
Sean Maloney~
David Goodfriend-t
COPY
�THE WHITE HOUSE
WASHINGTON
July 15, 1999
.
::..c:roN
MEMOFANDu~
FOR
~570
TH~IDENT
FROM:
SAMU.EL BER~E
JACOB LEW
CHARLES F . . ~
LPRRY STEIN /1>
.
SUBJECT:
Flatow Liti<;Jation and Related .Amendments
Appearing in Legislation
Purpose
To obtain your guidance in adqressing an amendment that is and
will be attached to various pieces of legislation important to
the Administration. The amendment would permit attachment of
U.S. j udgrnent funds payable by .the United States to certain
foreign states, permit attachment of foreign diplomatic prcperty
other than embassies, and permit attachment of U.S. telecorn
payments to Cuban. entities .. And, to keep you informed about our·
efforts to assist Stephen Flatow and the status of litigation to
collect·on his judgment against Iran.
Background
Legislative efforts. Senators Kyl, .Mack, and Lautenberg have
offered an amendment designed to ensure that Flatow, Brothers to
the Rescue families, and other plaintiffs can attach blocked
assets and U.S. funds owed to terrorist-list states.
The amendment· would repeal your waiver authority under
section 117 of the Omnibus Appropriations Act for FY99,
providing in its place authority to waive only the attachment of
a foreign embassy ("principal office of a foreign mission") .
The amendment also allows attachment of u.s. funds due or
payable to a targeted couhtry such as. Iran. Thus, plaintiffs
could attach the Judgment Fund payment of last year's Iran-U.S.
Tribunal award (over $6 million) as well as other debts or funds
.that may be held pending resolution of claims (e.g;, the
COPY
cc: Vice President
Chief of Staff
.
�S..J'JO million of Ira!".ian ·funds tha: we are holding in the
Trust Eund) .
:.~.s
We ha7e discussed the serious national security implicatic~s cf
elimir,ating blocked assets as leverage, which this amendmer-.:
would do. Sandy .and Madeleine continue to believe strongl;
that, despite the sympathetic plaintiffs, we should not accept
further erosion of your authority and flexibility to deal with
terrorist-list countries. 6locking assets is one of the primary
policy tools at our
stile states
agains t e security of the United,States. This amendment could
clear the way for plai~tiffs' to attach virtually all blocked
assets of Cuba and Iran--worth hundreds of millions of dollars.
As a result, blocked assets would not be preserved as a
bargaining chip for negotiations to deter ag~re~sion, prevent
WMD development; and discourage or end hostile actions against
U.S. citizens. abroad ( a·s in the release of American hostages in
1981). Retaining blocked assets also strengthens your hand in
efforts to normaliz~ relations, including resolution of valid
claims once·a different government is in place.
An express waiver of U.S. sovereign,immunity over U.S. judgment
·
funds to be used to pay foreign claims awards is a major problem
as well.· In the event of an attachment, we would still owe Iran
the Tribunal award, ~nd 0.s. assets in third ~ountries could be
( attached to collect 1t, or we would have to f1nd some other way
to-pay it from the U.S. Treasury at taxpayers' expense (funds
. v.~hich would themselves be at risk of a-ttachment).
This amendment will be attached to bills largely free of other
major-problems; it also could well be offered on more than one
bill. If your view included the possibility of a veto, with .
that understanding, we could take appropriate action to remove
or modify the provision. Without that possibility, we are much
less likely to be able to garner· the necessary support' for
reasonable compromise langu~. Larry Stein and Jack. Lew think
it is important to note that there could .be appropriations bills
where we fully support the bill and would have little Hill
support for .a veto. However, both agree that it is important
for us to understand the. strength of your opposition to the
Flatow amendments.
Whether a compromise is possible is open to doubt. One
possibility would be to agree to legislation permitting you to
prevent attachment ..JlD an aa:=~et s:.r'-a~t basis, allowing y~, f9r
example, to permit access to rental proceeds from Iranian
diplomati~roperties, whj le protecting the djplomatj.c-
COPY
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se~i:~s
co~se~~e~:es
futu~e eff:c:s
:-,ecesss.rj :::, give s::me
~round :~ Jrder to avoid tctal evis~erati:n of
ur waiver
authori:·;. ~·1oreover, e'ien if i-le were to agree ::o some asset-cJasset ~aiver provision, there is a substantial risk ttat you
would be put in the unappealing· position of then exercising t~a:
authoritj to ptev~nt the attachment of most, if not. ~ll,.of the
asset~ the plaintiffs identified~
s::::·t'.::: :laims dispu~es,
i:
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.With respect to the efforts by the Brothers to the Rescue
families to. attach the telephone company payments and other
blocked Cuban assets, we haye, as you requested, been exploring
possible alternative solutions with Justice. We face a seriou~
·problem, however, in dealing with Judge King's decision
abrogating your waiver authority under·section 117. The appeal
from that ruling is pending in the Eleventh Circuit, with oral
·argument scheduled for July 15, and any settlement before the
court of appeals rules would leave Judge King's decision
standing as the only ~- and adverse -~ judici~l interpretation
of section 117.
46
-Jfo
Senators Graham and Mack have been pressing Chuck Ruff and Stu
Eizenstat to do som~thing for the Brothers to the Rescue
families and have argued that section 117 was passed in response
\· to your statement, at the time of the shoot-down, that you
needed legislative authority to make payments out of the blocked
<:uban assets. Chuck and Stu have explained that you were
subsequently advised that you could make use of those funds on
your own authority and did so in the form of $1.2 million
.
\
dollars in ex gratia pay1nents. They have also explained to the
senators that section 117 actually went well beyond authorizing
use of the Cuban assets and that the Administration had, and
continues to have, serious concerns wi,th the scope of the
legislation insofar as it undermines your power to use the
blockin9 of foreign assets as a foreign policy tool -- concerns
that were ameliorated only by the availability of the broad
waiver provision. ·It is fair to say that neither senator is
convinced.
As a separate matter, while we have identified businesssensitive documents that may help the Flatows attach unblocked
Iranian bank assets, the chain of ownership is often clouded and
subject to competitive claims and thus litigation.
(A more
detailed review of the Flatow litigation is attached at Tab A.l
COPY
;A51D
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Tab A Status of
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COPY
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STATUS OF FLATOW LITIGATION AND A.SSISTANC.E TO MR. FLATOW
Assistance :~·unblocked assets
•
Iranian ta~ks. :n Marc~, Justice in~crmed Flatow of
Treasur;'s conclusion t~at assets of Iranian banks opetating
in the Uni:ed States in the 1990s were not blocked. Treasury
has iden::..fied business-sensitive documents that may be
relevant :o Flatow's efforts to locate a~sets of~these banks.
Upon court approval of a protective order, to which b6th
parties have already agreed, Tre~sury will turn over the
documents to Flatow's counsel.
•
Eizenstat briefing. The information on bank assets has been
developed through consultations since November 1998, when Stu
Eizenstat led an interagency team that provided over 5,000
pages to Flatow and counsel. Many of those documents related
to the Mostafazan/Alavi Foundation, against which Flatow has
since obtained writs that are currently the ~ubject of
1 i tiga tion. ·
Stephen Flatow's litigation to collect on his judgment against
Iran_involves ~everal separate actions. Two cases in the D.C.
District Court (JudgeLamberth) directly affect U.S. interests:
•
Diplomatic property and bank accounts. Flatow has invoked
section 117 to obtain these blocked assets notwithstanding
your waiver.
•
Judgment fund payment of .Tribunal award. As a result of
Flatow' s writ of attachment,. the USG has been unabfe to pay a
June 1998, $6 million Tribunal award to Iran. Court briefs by
both sides were completed in late 1998.
Oral Argument June 22. Because of the delay in paying the
Tribunal award, Justice has filed four supplemental memoranda
seeking decision .on the U.S. motion to quash the writ. The most
recent memorandum explained the concern that further delay w.ill
prejudice U.S~ interests at the Tribunal, particularly in view
of upcoming hearings.· Judge Lamberth called a hearing when the
Tribunal hearing was imminent, and he decided to hear argument
on both the judgment fund and section 117 issues.
<'~SIDEN~:"'".
~
.
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1-
2
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:ongr:::ss did r,ct i:-.::=r.d t: '.Naic:e
: f su:::~ funds in i~s accc~~ts.
•
~
imrr.ur.it:_,: fr:::c a::':a:::!"-,r:l.e:-.:
Jn sec:ion.ll7 and jour w~iver, :~e judge askej whether
could be attached if the waiver were
found ineffective. Justice replied that there would remain ~
constitutional issue of encroachment on Presidential authority
to receive ambassadors. The judge asked Justice to brief this
issue ~ore ext~nsively.
(The U.S. brief is du~ July 22, and
plaintiff.has another 30 days to ~espond~)
diplo~atic prope~ties
•
Mr. Flatow's counsel argued that your waiver overreached and
should have been selective if national security interests were
truly at stake.
(E.g., perhaps waive with respect to
diplomatic real property, but not bank funds including renta~
proceeds.) Re.flecting .advance kncwledge of the Kyl .Amendment,
he also indicated his strong belief that Congress will soori
·enact legislation removing any doubt about availability of
these assets and judgment fund pa:Jinents to sat'isfy judgments
such as Mr. Flatow's.
Mostafazan/Alavi Foundation (Alavi). Mr. Flatow is also
pursuing the unblocked assets of Alavi.
•
Because of his counsel's inquiries about Alavi, last November
· Eizenstat' s team provided Flatow Tribunal doc!L"'tlents including
the Tribunal's decision (for jurisdictional purposes) that tte
parent Foundation in Iran was owned and controlled by the
government of Iran.
•
After a May district c6urt hearing in which Alavi defended
against the writ, Flatow's counsel informally asked Justice
whether the USG could support their position. They have not
followed up formally, but Congressman Rothman (D-NJ) has
writteri Eizenstat asking whether State considers Alavi to be
an instrumentality of Iran, a question State has not addressed
in the past.
•
Anticipating further inquiries and possibly a formal request,
NSC will convene interagency counsel to explore the matter
(e.g., there are a number of difficult issues to address,
including the effect of Alavi's tax-exempt status).
COPY
�NATIONAL SECURITY COUNCIL
COPY
�NATIONAL SECURITY COUNCIL
COPY
�05/.02/00
TUE 17:37 FAX 2026221829
US TREASURY DEPARTMENT
~002
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Mr. ·chairman and Members of the Committee:
· We are sUbmitting this joint te~timony as envisaged by
the letters of Deputy Secretary Eizenstat of April 12 to
Committee Chairman Hyde and Subcommittee Chairman Smith in
response to letters to Secretary Summers and Secretary
Albright from Chairman Hyde, inviting them or their
designees to testify before this subcommittee on April 13
concerning H·.R. 3485, the
Act .·••
11
Justice for Victims of Terrorism
Deputy Secretary Eizenstat has worked extensively on
this ·issue for the Administration over the past 18 months,
and we, on behalf of our Departments, join him in presenting
our views on this proposed legislation.
We share your goal
CLINTON LIBRARY PHOTOCOPY
�/
o5,102100
TilE 17: J7
FAX 2026221829
US TREASURY DEPARTMENT
2
that U.S. victims of terrorism and their families receive
justice and compensation for their suffering.
We also
appr~ciate the opportunity to submit this statement into the
record.
Let us begin by expres~ing the Administration's and our
I
.own personal sympathy to victims of international terrorism
an evil that this administration has taken world
leadership in combating.
It is the responsibility of the
United States Government to do everything possible to
.protect American· lives from international terrorism.
People
like·Mr. Flatow, Mr. Anderson, the other hostages held in
Lebanon and their families, and t.he families of the Brothers
to the Resc.:ue pilots deserve government support in their
demand to be compensated for their grievous losses and
unimaginable experiences.
Those of us who have met with
them have been touched by their suffering and impressed with
their strength and determination to.seek justice.
understand
thei~
We
frustrations and the frustrations-that have
led the sponsors of this legislation to introduce it.
We
are dedicated to working with the Congress to achieve the
goal of obtaining compensation for the victims and their
families.
But we feel strongly that this must be done in a
CLINTON LIBRARY PHOTOCOPY
�05•/02/00
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~004
US TREASURY DEPARTMENT
3
way that is consistent with the national interests of the
United States.
It should come as no surprise that the states involved
here -- states that we have publicly branded as sponsors of
terrorism -- do not view the United States as a cordial
environment to conduct financial transactions.
As part of
our efforts to combat terrorism, we impose a wide range of
economic sanctions against state sponsors of terrorism in
order to deprive them of the resources to fund acts of
terrorism and to affect their conduct.
Because
of
these
measures, terrorism-list states engage in minimal economic
in·th~
activity
.
United States.
In many cases, the only
.
assets that states which sponsor terrorism have in the
United States are either blocked or diplomatic property.
Such property is not legally available for attachment and
execution of judgments, for very good reasons involving the
interests of the entire nation, which are described in
detail below.
As ·much as we join the sponsors of this bill in
desiring to have victims of international terrorism
compensated, it would be unwise in the extreme to ignore
these reasons and forgo the int-erests of all our citizens
;,
for this purpose.
This question is complex and fraught with
CLINTON LIBRARY PHOTOCOPY
�05/02/00
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US TREASURY DEPARTMENT
141005
4
difficulties.
For this reason, last year, we proposed,
among other things, that a commission be established to
review all aspects of the problems presented by acts of
international terrorism, a~d specifically study the issue of
compensation and recommend proposals to the President and to
the Congress to help the victims and their families receive
compensation 1n a manner that would not impinge upon
important U.S. national interests.
Though this proposa·l
received little support, we believe it still has ·merit.
ESpf!Cial;J..y when coinbined with a, short-term app;oa~h that
would
pay the fuli' ~mount:' of compensatory da~ge(awiird.s
f
to:.'
those with j udgment:s .agains·t the · Government of. Iran and th~ ; ._
• ...
·rf'<l f
r
·, ·G6v~rnmerit
6t .:cUb~'{?usirig:·.:~pp~opria:t·~d' fill:tci..~~ ··i~·.:·.~h~~ ca~.~~:oJ·::S;:
fe1r~~~.? · I.~an and· blocked
funds that appear to 'be titled· in the. name.
of the Governmep.t of. CUba in· the case of Cuba. ::
H.R. 3485, though born of good intentions, is ,
fundamentally flawed.
The legislation would have five
principal effects, all of which would be seriously damaging
to important
u.s. int,erests and which woulQ., at the end of
the day, result in substantial u.s. taxpayer liability.
First,
blocking of assets of terrorist states is one
of the most significant economic sanctions tools available
to the President.
The proposed legislation would undermine
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the President's ability to combat international terrorism
and other threats to national security by permitting the
wholesale attachment of blocked property, thereby depriving
the U.S. of a source of leverage in ongoing and future
sanctions programs, such as was used to _gain the release of
our citizens held hostage in Iran.
Second, it could.cause the U·.S. to violate our
obl-igations to protect diplomatic and consular property of
other nations, and would put our own diplomatic and consular
property around the world at risk.
would create a race to the courthouse
~~-
benefiting one small group of Americans over a far larger
group of Americans, many of whom have waited decades to be
t
compensated by Cuba and Iran for both the loss of property
~d
c./
·
the loss of the lives of their loved.ones, and would
leave no assets for their claims and others that may follow.
Fourth, it would breach the long-standing principle
that the United States Government has sovereign immunity
from attachment, thereby preventing the U.S. Government from
making good on its debts and international obligations and
potentially causing the U.S. taxpayer to incur substantial
~
financial
liability~
In particular, such a waiver of
sovereign immunity-would expose the Foreign Military Sales
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( "FMS 11 ) Trust Fund to writs of attachment, which would
inject a major element of uncertainty and unreliability into
the FMS program·by creating an exception to the processes
and principles under which the program
oper~tes.
Fifth, it would direct courts to ignore the separate
legal status of states and their agencies and
instrumentalities, overturning Supreme Court precedent and
basic principles of corporate and. international law by
making state-owned corporations liable for the debts of the
state.
As The Washington POst observed in an editorial,
"Victims.of terrorism certainly should be compensated, but a
:mechanism that permits ·individual recovery· to take
precedence over significant foreign policy interests is
flawed."
The proposed legislation would indeed seriously
compromise important national security, foreign policy, and
.
I
other clear national interests, and discriminate among and
between past and future U.S. claimants.
Moreover, in the
Iranian context, it would not achieve the stated goal of
· forcing Iran to bear the burden of paying ·compensatory and
punitive damage awards to U.S. victims and their families.
Under long establish,ed principles of international law and
the Algiers Accords, the U.S. taxpayer would have to pay
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these claims.
For these reasons, explained in more detail
below, -the· Administration: strongly opposes the proposed
legislation.
Attacbment of Blocked and Diplomatic Property
The Administration has grave concerns with the
provisions of the proposed legislation that seek to nullify
the President's waiver of last year's Foreign Sovereign
Immunities Act ( '\FSIA") amendments and thereby permit
attachment of blocked and diplomatic property.
Let us be entirely clear:
wholesale attachment of
blocked or diplomatic property·would compromise our national
security and· would seriously. prejudice a number·· of important·
national interests.
These interests include: our interest
in the effective functioning and preservation of our asset
blocking programs to combat threats to our national security
and to the safety of American citizens abroad; our legal
-ob:t.,_igation to
p~otect
the diplomatic property of foreign
states'· regardless of the status of our relatione with. those
states, and our clear national interest in upholding the
·international legal regime that protects
u.s.
diplomatic
property ..and personnel abroad; and our interest in avoiding
laws that would create gross inequities in the amounts of
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compensation received by similarly-situated U.S. nationals
with claims against foreign governments. Each of these
concerns is. addressed in turn below.
Elimination
Of the Effectiveness of Qur Blockins
Program~
The ability to block assets represents one of the
primary tools
avail~ble
to the United States to deter
aggressi0n and discourage or end hostile actions
U.S. citizens abroad.
~gainst
Our efforts to combat threats to our
national security posed by terrorism-list countries such as
Iraq~
Libya, Cuba, and Sudan rely in.significant part upon
our ability to 'block the assets of those countries.
Blocking assets permits·. the United
States~
tO" deprive··
such countries of resources that they could use to harm our
interests, and to disrupt their ability to carry out
international financial transactions.
By placing the assets
of such countries. in ·the sole control of the President,
blocking programs permit the President at any time .to
withhold substantial benefits from countries whose conduct
we abhor, and to offer a potential incentive to such
countries to ref'orrn their conduct.
Our blocking programs
thus provide the United States with a unique and flexible
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form 9f leverage over countries that engage in threatening
conduct.
The Congress has recognized the need for the President
to be able to·· regulate . the assets of foreign states to meet
·threats to the U~S. national security, foreign policy, and·
\~
economy.
'
In both the International Emergency Economic
Powers Act and the Trading with the Enemy Act, the Congress
has provided the President with statutory authority for
regulating foreign .assets.
On the basis of this authority
and foreign policy powers under the Constitution, Presidents
have blocked property and interests in property of foreign
.states and foreign nationals that· today amounts to over $3.5
billion.
Of this amount, approximately $176 million is
blocked property in which Cuban entities .have an interest.
Of this $176 million, approximately $54.0 million appear to
be probable Government of Cuba blocked
funds~
The
approximately $23.3 million of Goverp.ment of Iran property
which remains blocked from the Hostage Crisis of 1979-81
consists entirely of blocked diplomatic real estate and
related accounts.
The Supreme Court has also recognized the ·importance of
the President•s blocking authority, stating that such
blocking orders .••permit the President to maintain the
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foreign assets at his dispos.il for use in negotiating the
resolution of a declared national emergency. ·The frozen
assets serve as· a 'bargaining chip' to be used by the
··Pre~ident when dealing with a hostile country,
II
Dames
&'
Moore y, Regan, 453 U.S. 654, 673 (1981).
The leverage provided by blocked assets has proved
central to our ability to protect important U.S. national
security and foreign policy interests.
example is the Iran Hostage Crisis.
The moat striking
The critical bargaining
chip the United States had to bring to the table in an
effort to resolve the crisis was the almost .$10 billion in
Iranian Government
~ssets
that the President had blocked
shortly after the taking of our ·embassy .. ·.Because the return·
of the blocked assets was one of Iran's principal conditions.
for .the release of the hostages, we would not have been able
to secure the safe release of the hostages and to settle
thousands of claims-of U.S. nationals if those blocked ·
assets had not been available.
This settlement with Iran
also resulted. in the eventual payment of $7.5 billion in
claims to or for the benefit qf U.S. nationals against Iran.
In the case of Vietnam, the leverage provided by
approximately $350 .million in blocked assets, combined with
Vietnam's inability to gain access to u.s. technology and
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trade, played an irnport"ant role in persuading Vietnam's
leadership to address important U.S. concerns in the
normalization process.
These concerns included full
accounting of POWs and MIAs from the Vietnam War, accepting
responsibility for.over $200 million in
had
be~n
u.s. claims which
adjudicated by the Foreign Claims Settlement
Commission, and moderating Vietnamese actions in Cambodia.
In addition, blocked assets have helped us to secure
equitable settlements of claims of U.S. nationals against
such
coun~ries
as Romania, Bulgaria, and Cambodia iri the
context of normalization of relations.
These results.could
not have been achieved without effective blocking programs .
•However,:; our blocking programs simply ,cannot. function,
and cannot serve to protect these important interests; 'if
blocked assets are
subjec~
to wholesale attachment and
execution by private parties, as the proposed legislation
would permit.
The ability to use blocked assets as leverage
against foreign states that threaten u.s. interests is
essentially eliminated if.the President is unable to
preserve and control the disposition of such assets.
P.ri vate rights of execution against blocked assets would
permanently rob the President of the leverage blocking
provides by depleting the pool
ot blocked ·assets.
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In the Cuban and Iranian con~exts, for exa~ple, the
value of judgments (compensatory and punitive) won by the
Brothers to the Rescue families exceeds the total known
value of 'the blocked assets of Cuba in tne United States,
and the value of the judgment won by the Flatow family, or
the former Beirut Hostages, exceeds the total known value of
the blocked assets of the Government of Iran in the United
States.
Attachment of blocked assets to satisfy.private
judgments in these and similar cases would leave no
remaining assets of terrorism-list governments in the
President's control, denying the
Pre~ident an
important
source of leverage and seriously weakening his hand in
·. dealing. with threats. :to our national security ..
In addition, the prospect of future attachments by
private parties would place a perpetual cloud over the
President's ongoing control of all blocked assets programs.
This would further undermine the President's ability to use
·Such assets as leverage in negotiations, even where
actachments·had not yet occurred.
Put simply, permitting wholesale attachment of blocked
assets wouid eliminate the use of our blocking programs as a
key tool for combating threats against our national security
and, in the Iranian context, it would· not achieve the goal
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of full payment for ·compensatory damages awarded against
Iran.
Our Obligation and Intere·st in Protecting Diplomatjc
·Property
The proposed legislation also could cause the United
States to violate our obligations under international law to
pro~ect
diplomatic property,· and would undermine the legal
protections for diplomatic property on which we rely every
day to protect the safety of our diplomatic property and
personnel abroad.
Even though the current legislation ·
arguably provides protection for a slightly broader range of
. diplomatic property. than.previous legislation, ·it. is· still:.:
fundamentally 'flawed in its failure to permit the President
to protect properties, including consular properties, some
diplomat.ic bank accounts, and diplomatic residences, which
international.law obligates us to protect ..
The United States' legal obligation to prevent the
attachment of diplomatic property could not be clearer.
Protection of diplomatic property is required by the Vienna
Convention on Diplomatic Relations, to which the United
States and all of the states against which suits presently
may be brought under the 1996 amendments to the FSIA are
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parties. Under Article 45 of the Vienna Convention on
Diplomatic Relations we are obligated to protect the.
premises of diplomatic missions, together with their real
and personal property and archives, of countries with which
we·have severed diplomatic relations or are in armed
conflict.
This would include diplomatic residences owned by
the foreign state.
Likewise, under Article 27 of the Vienna Convention on
Consular Relations, the same protection ie required for
consular premises, property,.and archives.
Attachment of
any of the tyPes of property covered by the Vienna
Conventions on Diplomatic and Consular-Relations could place
·the United States in violation of·
international law.
our obligations under.
The proposed legislation would only
permit the President to ensure the protection of a narrow
portion of the property covered by the Vienna Conventions;
and would thereby place the United States in violation of
·our legal
obligat~ons.
In addition, the proposed
legislation as drafted could cause
\.l.S
to breach our
obligations to ensure the inviolability of missions. to the
Uni.ted Nations, pursuant to t:he UN Headquarters Agreement:.
and·the General Convention on Privileges and Immunities.
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Our national interest in the protection of diplomatic
property could not be clearer or more important.
The United
States owns over 3000 buildings and other structures abroad
that it uses as embassies, consulates, missions to
international organizations, and residences for our
~iplomats.
The total value of this property is between $12
and $15 billion.
Because we have more diplomatic property and personnel
abroad than any other country, we are more at risk than any
.
.
other country if the· protections for diplomatic and consular
property are eroded.
If we flout our obligations to protect ·
the diplomatic and consular property of othe.r countries,
then we can.expect·other countries to·target our-diplomatic
property when they disagree strongly with our policies or
actions.
Defending' our national interests abroad often
makes the United States unpopular with some foreign
governments.
We should not give those states who wish the
United States ill an easy means to strike at us by declaring
diplomatic property fair game.
. In the specific case of Iran, a·ttachment of Iran's
diplomatic and c.onsular properties could also result in
substantial
u~s.
taxpayer liability.
Iran's diplomatic and
consular properties in the United States are the subject of
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a claim brought by Iran against the United States before the
Iran-U.S. Claims Tribunal. The Iran-U.S. ·claims Tribunal is
an arbitration court located at The Hague in the
Netherlands.
It was established as part of the agreement
between Iran and the United States that £.reed the U.S.
hostages in Iran and resolved outstanding claims that were
then pending between the United States and Iran .. Pursuant
to this agreement and awards of the Tribunal, Iran has pa~d
$7.5 billion in compensation to or for the benefit of U.S.
nat.ionals.
The Tribunal .also has jurisdiction over certain
claims between the two governments.
Although we are
contesting this claim vigorously, the Tribunal could find
that the United:. Sta't,es should have transferred- I :tan •s · ·
diplomatic and consular property to it in 1981.
If it does
so and the properties are not available because they have
been liquidated to pay private judgments, the
u.s~
taxpayer
would have to bear the cost of compensating Iran for the
value of the properties.
Such an award against the United
States would be enforceable in the courts of any country,
under the laws of that country.
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Equity Among Claimants
We are also deeply concerned that the proposed
legislation would frustrate equity among U.S. nationals with
claims against terrorism-list states.
It would create a
winner-take-all race to the courthouse, arbitrarily
permitting recovery for .the fi.rst, or first few, claimants
from limited available assets, leaving other similarlysituated claimants with no recovery at all.
In fact, it
would take away assets potentially available to them.
As I noted earlier, the value of the judgments
(compensatory and punitive)
held by the families of the
Brothers to the Rescue victims exceeds the total value of
blocked assets of the. Government of Cuba in .the United- :.
States.
Similarly, even if the plaintiffs in the'Flatow
case were to succeed in attaching all of Iran•s diplomatic
and consular properties in the United States, as they have
attempted to do, these properties would be insufficient to
satisfy even one tenth of the damages awarded in that
judgment.
In
each case, execution on their judgments would
exhaust all of the blocked assets of these governments 1n
the United States.
However, the Alejandre and Flatow cases do not
represent the only claims of U.S. nationals against Cuba and
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Iran.
No other claimants would benefit at all from the
proposed legislation; indeed this legislation would·
seriously prejudice their interests.
In the case of Cuba, the U.S. Foreign Claims Settlement
Connnission has certified 5,911 claims of
u.s.
nationals
against the Government of Cuba, totaling approximately $6
billion with interest, dating back to the early 1960s.
Contrary to remarks made at the April 13 hearing, these
include not. just expropriation claims, but also -the wrongful
death claims of family members of two individuals whom the
Cuban Government executed after summary trial for a1leged
crimes against the Cuban state.
Other claims relate to the
Castrc)'Government' s seizure of homes:·and businesses from
· U.S.· nationals.
These claimants have waited over 35 years
without yet .receiving compensation for their losses.
This·
bill will not help·them at all.
The same situation
app~ies
with respect to Iran.
In
addition to the Flatow case, former hostages who were held
captive in Lebanon -- David Jacobsen,· Joseph Cicippio, Frank
· Reed,
Ter~y
Anderson and their tamilies -- collectively have
won judgments for compensatory and punitive damages against
Iran totaling $406 million (see chart) .
Additional suits
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against Iran are currently pending in the Federal District
courts.
Moreover, given the nature of these regimes, it remains
possible that in spite.of our substantial efforts to combat
terrorism, foreign terrorist states will commit future acts
in violation of the rights of U.S. nationals, which may give
rise to claims against them.· .rf ·such incidents occur, these
claimants will also have an interest in being compensated.
Against this background, in which outstanding
compensatory and punitive damage claims far exceed available
funds, the proposed legislation would permit the first
claimants to reach the courthouse to deplete all the· ·
available assets . of terrorism-:-list governments·, leaving
nothing for other similarly situated claimants.
Satisfaction of the judgments in the Alejandre and Flatow
cases would come at the expense of all other claimants
against Cuba and Iran, both past and future.
fundament~lly
This would be
un·fair.
Equitable resolution of all outstanding claims of
terrorism-list stat.es must be accomplished systematically in
order to ensure fairness to all parties, not in the
piecemeal fashion envisioned by the proposed legislation.
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.
'1'3>
[41 021
rp ·
..
In sum, 'permitting the attachment of blocked and
diplomatic· properties in· individual cases, as the proposed
legislation would do, would undermine our ability to combat
threats to our national _security, violate our obligations
under international law, plaGe our diplomatic properties and
personnel abroad at risk, and lead to arbitrary inequities
·in the treatment of similarly-situated U.S. nationals with
claims against foreign governments.
-:
Breaching the Sovereign Immunjty of the United States
- We are equally concerned about the provision of the
proposed legislation that would permit garnishment of debts
-of·the United.States. -Not only would this provision
breach
the long-established principle that the United.States
Government has sovereign immunity from garnishment actions,
it would seriously undermine our Foreign Military Sales
·< 11 FMS") program, which is an important;: tool supporting U.S.
national security policy and strategy, by creating an
exception to _the processes and principles under which the
program operates.
.
.
By allowing plaintiffs to attempt to tap the FMS_ Trust
Fund to satisfy their judgments, the entire FMS program
would be jeopardized as foreign customers question whether
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(··
funds they were required to pay under the FMS program might
be at risk of diversion or attachment.
H:R. 3485 ·would
therefore inject a major .element of uncertainty and
unreliability i~to the FMS program.
The FMS Trust Fund is used to·ensure·payment of U.S.
suppliers for products and services provided to foreign
governments in USG-approved sales of defense products and
services.
Under section 37 of the Arms EXport Control Act,
these funds are available solely for payments to
u.s.
suppliers, and for refunds to foreign purchasers in
connection with such sales.
If the FMS Trust Fund can be
exposed to attachment through an act of Congress for
. . purposes .other than ensuring payment for arms sales, foreign
governments may simply question the wisdom of engaging in
such transact ions with the Uni t·ed States.
The proposed legislation also will negatively aff,ect
our defense industrial base.
written, not only will
u.s.
If passed as currently
defense firms be uncertain about
whether and when they will be paid, but our ability to
maintain open production lines needed to support the.US
military, which the FMS program greatly facilitates, also
would likely be disrupted.
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.
rj}
)
141023
We have heard that the intent of the proposed
legislation is to
11
make terrorist states pay.
11
However,
exposing the Iranian FMS Trus·t Fund account ("Iran FMS
account 11 ) to· attachment will not cause Iran to pay.
Here
too, at the end of the day, the
u.s ..
burden if this fund is tapped.
The United States will have ·
taxpayer will bear this
to pay Iran whatever arno~t in the Iran FMS account is held
by the Iran-U.S. Claims Tribunal to be owed to Iran. The
.current balance of the Iran FMS account, which 1s
approximately $4oo million, is the subject ·of Iran's multibillion dollar claim against the United States before the
Tr'ibunal, arising out of the Iran FMS program.
··Iran.'.s FMS account
throu~p.
Dep'leting
attachment· by the. plaintiffs· in
no way discharges any obligation. to·Iran the U.S. Government
may ultimately be determined to have by the Tribunal.
And
if Iran prevails on its claims, it can seek to enforce its
award against U.S. property anywhere in the world, ·since the
awards of the Iran-U.S. Claims Tribunal are enforceable in
the courts of any country.
Any Tribunal award that cannot
be satisfied from the Iranian FMS account will have to
satisfied with U.S. gove·rnment funds.
be
Thus, American
.taxpayers, rather than Iran, would actually pay under H.R.
. 3485.
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·•·.. , . ..,,,.,...,.,.,. ....., .. :., .•,.-:•.c·· ... )
.
23
.
'
·.·-~
ry1..,
'' /
.
This provision is also of particular concern because it
prevents the United States from meeting·its obligations to
make payments in satisfaction of awards the Tribunal renders
against the United States.
Instead, the proposed
legislation would permit private parties to garnish the
funds of the U.S. Government in order to collect such
p~yments
before they reach Iran.
Even ·without this change
in the law, there have been efforts in the
garnish the payment of a
$6
Fla~ow
case to
million Tribunal award in Iran•s
favor.
It is important to understand that allowing private
litigants to garnish amounts we owe Iran under Tribunal
awards would n.of:: discharge· the u ~ s. Governmertt' ~· Liability
to Iran to pay such money.
'
For example, if the efforts in
the Flatow case succeed., the Flatow family will receive $6
million, but the United States will still owe Iran $6
million under the unpaid. award.
And again because the
awards of the Iran-U.S. Claims Tribunal are enforceable in
the coUrts of any country, Iran can seek to enforce awards
against U.S. property in other countries if we do not pay
them voluntarily.
Permitting garnishment of the payment of such awards
would thus result in the U.S. taxpayer paying twice:
once
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when a·private claimant garnishes the payment, and a second
time when Iran is able to enforce the still unsatisfied
award against us abroad.
Because the judgments against !ran
received by these plaintiffs total in the hundreds of
millions of dollars, permitting garnishment of debts owed by
the United States to Iran as a.means of satisfying these
judgments could cost the U.S. taxpayer hundreds of millions
of dollars.
Finally, while we are vigorously contesting all of
Iran's claims at the Tribunal, if we are unable to pay even
·the smallest awards against us, our·position before the
. TribW'lal in all other clai'ms will clearly be undermined.
Eliminating Legal
Separatenes~
of Agencies and·
IPstrymentalities
There are also significant problems with the provision
of the proposed legislation that would change the way the
FSIA defines a foreign state's agencies and
instrumentalities for terrorism-list countries where there
is a terrorism-related judgment against it.
This provision
would overturn the Congress's own considered judgment when
itpaased the FSIA in 1976, as well as existing Supreme
Court ·case law and basic. priri'ciples of corporate and
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international law.
In addition, it would prejudice·the
interests of U.s .. citizens and corporations who invest
abroad.
This provision would make corporations that are
majority-owned or controlled by a terrorism-list foreign
governme~t
liable for all of the individual debts of that
government.
The Congress recognized the danger of this
positi,on wheri it passed the FSIA in 1976.
Report to that bill observed that
11
The Conference
[i]f U.S. law did not
respect the separate juridical identities of different
agencies or instrumentalities, it might encourage foreign
jurisdictions to disregard the juridical divisions between
different
u.s:
u.s.
•
corpdrati6ri.s or between· a
!,
•
•
•
• •.•
corporation
and its independent subsidiary.''
We are concerned that this proposal to disregard .
separate legal personality, although limited in the bill to·
terrorism-list states an_d their majority owned entities,
could create the perception that the United States is
unreliable as a location·for banking or investment.
Especially for companies with linkages to foreign
governments, such a provision could be viewed as an
expansion of U.S .. economic sanctions.
It could raise
concerns about the United States as a safe financial center
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26
and about the likelihood of possible legal actions against
·their assets in the United States.
This perception could
undermine the competitive ability of U.S. financial firms to
lead privatizations abroad and to attract banking business
and investments to the United States.
In addition, if the United States were to "pierce the
corporate
veil" in this manner, there could well be similar
actions in foreign countries.
Foreign countries may enact
similar changes to their law or foreign courts might
disregard the separate status of private, U.S. owned
companies in cases where a litigant had
~
judgment against
the U.S. Government.
Compared to the billions of·-dollars the United States
Government and .private U.S. interests have invested abroad,
the blocked assets of terrorism-list state entities,
agencies, and instrumentalities located in the United States
are small.
In the case of Iran,
~e
do not have. a
comprehensive picture of Iranian assets in the United States
that might be affected by this proposed legislation.
There
is currently no blocking. of Iranian assets .in the United
States (other t.han the residual of property blocked during
the Hostage Crisis) , and thus no obligation on the part of
u.s. persons to report specific information on them.
ClL!NTON LHBRARY PHOTOCOPY
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US TREASURY DEPARTMENT
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U.S. citizens, corporations, the United States
Government,. and taxpayers have far more money.invested
abroad than those of any other country, and thus have more
to lose if investment protections such
a~
those provided by
the presumption of separate status is eroded. If we ·saddle
the investors of other countries with the debts of foreign
governments with which they are co-investors, aa the
proposed legislation would do, then we can expect U.S.
· investors and taxpayers to pay a considerably higher price
when other governments follow our example.
disregarding separate
l~gal
Finally,
personality as provided for in
this proposal, could lead to substantial U.S. taxpayer
liability for takings claims in U'.S. courts and poss·ibly
before international fora.
We are grateful for this welcome opportunity to address
a very important subject involving the fight against
terrorism, compensation for victims, and critical national
interests.
Unfortunately, however, the concerns raised here
indicate that the 1996 amendment waiving sovereign immunity
and creating a judicial cause of action for damages arising
from acts·terrorism has .not met its purposes of providing
compensation to victims and deterring terrorism.
In fact;
if blocked assets were exhausted to compensate the families,
CLINTON lLHBRARY PHOTOCOPY
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:t)
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14!029
which would be the result of this bill, the leverage to
affect the conduct of the terrorist-list states would be
lost along with the blocked assets.
We are not happy that
these suits have not led to recovery for families who have
brought cases under the 1996 amendment.
A system' that has
r;.
to date left no recovery option other than one that
conflicts with
substantial
U~S.
u.s.
national interests and would result in
taxpayer liability is not an acceptable
system.
· We have been 'giving this a very hard look and have been
working with certain members of Congress to address this
difficult problem.
We are arixious to continue doing so.
Together; we· hope· to formulat·e short and longer-" term·
approaches that will address.the concerns --of compensation
for terrorist acts and the U.S. national interests and .
international obligations·-- that we a'Il share in a much
more satisfactory way.
for a workable
~nd
Most importantly, we believe that,
effective longer-term soluti.on, we need a
careful and deliberative review of the issues, informed by
our experience since the 1996 amendment .
. As mentioned earlier, we suggested last year that the
Administ.ration and Congress commit to a joint commission to
review all aspects of the pr9blem, and to
recommen~
to the
· ClLHNTON LiBRARY PHOTOCOPY
�"29
While. this idea was rejected, we still believe
that this is the. best way to deal wit.h these issues longterm.
We believe that such a commission should be one o:f:
stature and with the right expertise to confront all the
hard issues we have .discussed today -- including the lack of
effective remedies in these cases because of sanctions
against terrorism-list countries under U.S. law-, which are
absolutely necessary to maintain. .
A fundamental principle for this joint commission-- by
definition -- would be the need. to'. inventory outstanding
claims and develop an effective and fair mechanism for
compensation of victims of terrorism. The commission should
be encouraged to think broadly, including consideration of .
avenues other than . the judi cia!· one created· by the. 19 96
amendment.
Apart from this, we recognize the need to
_immediate and full compensation for compensatory damage
( awards to these victims and their families.
We propose
ret"-W ((YOcteJ) y
making advance payments from appropriated funds of the full
amount of compensatory damage awards to those with .judgments
copy·
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~~a~
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~[
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?,573
Appropriated funds are
needed because we do not believe there are any other sources
/
· 1of funds that are adequate and appropriate for the purpose .
.,, 11·~
.. _ )
the Government of Iran.
_./
~
-·
h.
,
T ere
~s
no feasible remedy to pay those claims that, in the
final a1;1alysis, ia not of the same spurce, i.e. the U.S .
. taxpayer.
The amounts paid will be
subrogate~
to the United
States, which will be entitled and authorized to pursue
reimbursement
fro~
Iran. Recognizing and addressing this at
the outset gi:ves the United States the greatest leverage and
;
opportunity to settle these claims at the government to
government level before normalization of relations.
· We also propose making advance payments from-blocked
..,,..,;..........
;··:
assets· of the··Governmerit· of Cuba---of 'the· full·'amount·~:of·~:
compensatory damage awards. to those with
ju~gments
against
the Government.· of Cuba. ·As noted on page 6 of this
testimony, there are approximately $54.0 million in blocked
property that appears to be titled to the Government of Cuba
and is available .for such a one-time purpose.
Of all the
proposals to use.blocked ftinds, we believe this to be the
least damaging to national interests and one that could be
done under existing Presidential authority.
In sum, we are committed to working together with you,
members of this Subcommittee, and others to find legislative
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US TREASURY DEPARTMENT
141032
31
and non-legislative means for addressing these complex
issues.
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CJLANTON LIBRARY PJHI.OTOCOPY
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTmTLE
DATE
RESTRICTION
I
£5 ·9-'~
-
001. memo
Mara Rudman to Deputy Secretary Eizenstat, Deputy Attorney
General Holder, Under Secretary Pickering, and Deputy Director
Mathews re: Legislative Alternatives to Proposals on Behalf of
Plaintiffs in Certain Antiterrorism Litigation (I page)
10/22/1999
P5
002. draft
re: Payment of Certain Antiterrorism Judgements (2 pages)
n.d.
P5
~
003. statement
re: Explanation of Proposal (6 pages)
n.d.
P5
~SrS
004a. memo
Charles Allen thru James Baker to Samuel Berger re: Legislative
Alternatives to the Proposals on Behalf of Flatow and Brothers to the
Rescue Plaintiffs (4 pages)
09/2711999
P5
::<s~t.,
004b. attachment
re: Legislation Proposal (2 pages)
n.d.
P5
004c. attachment
re: Explanation of Proposal (6 pages)
n.d.
P5.
005. paper
From Richard Newcomb to Various. Re: Finance. (12 pages)
I 0/01/1999
Pllb(l)
COLLECTION:
Clinton Presidential Records
National Security Council
Office of the National Security Advisor (Mara Rudman)
OAIBox Number: 3934
'FOLDER TITLE:
Legal Issues: Judgement Fund [I]
2009-0342-P
vzlll4
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)J
Freedom of Information Act- IS U.S.C. 552(b)J
National Security Classified Information l(a)(l) of the PRAI
Relating to the appointment to Federal office l(a)(2) of the PRAJ
Release would violate a Federal statute J(a)(J) of the PRAJ
Release would disclose trade secrets or confidential commercial or
financial information J(a)(4) of the PRAI
PS Release would disclose confidential advice between the President
and his advisors, or .between such advisors )a)(S) of the PRAJ
P6 Release would constitute a clearly unwarranted invasion of
personal privacy J(a)(6) ofthe PRAI
b(l) National security classified information J(b)(l) of the FOIAJ
b(2) Release would disclose internal personnel rules and practices of
an agency l(b)(2) of the FOIAJ
b(J) Release would violate a Federal statute l(b)(3) of the FOIAJ
b(4) Release would disclose trade secrets or confidential or financial
· information l(b)(4) of the FOIAJ
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy J(b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
purposes l(b)(7) of th~ FOIAI
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells J(b)(9) of the FOIAJ
PI
P2
PJ
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
.
II
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DELIBERATIVE/PRIVILEGED
Aapy_._ of:>l~,b-
EXPLANATION OF PROPOSAL
I.
Issue.
The following describes an option for a near-term
legislative solution to the Flatow and BTTR-type judgments under
the 1996 FSIA amendments.
(See also· accompanying draft
""'"
legislative language. ) These are default judgments against
X'~E.SIOt:J\i>~
terrorist-list states ·for which there are no reasonably
~/~
0~
available assets to satisfy the judgments. This proposal
~
-~
assumes that some near-term payout to judgment holders is ~:i
r;) 575
::o
0
necessary to avoid a completely unacceptable provision such\ as
· })
section 118 of the TP bill.
\~
"\
.
.
.
''-
II. Elements.
This solution involves (a) advance payments wi tn-- -··-·
appropriated funds to certified judgment holders; and (b)
establishment of a commission to study and complete a report on
the problem during FY ·2000, with recommended legislative
proposals for long-term solutions .. ·
Supporting .rationale for this two-pronged approach:
•
If current judgment holders could receive some funds allowing
all parties to step out of the contentious, reactive situation
we now have while the study takes a broad look at all issues
that flow from the 1996 amendment conferring jurisdiction
against terrorist-list states.
•
These suits have not met the intended purpose of the amendment
-- plaintiffs have been unable to collect on their judgments,
and extraordinary pressure has been placed on the
Administration to allow collection (via the Omnibus Act's
section 117 mechanism) from blocked assets.
•
Paradoxically, the depletion of blocked assets would only harm ·
our interests vis a vis terrorist-list states by eliminating
leverage to affect their conduct.
•
Thus, there is a need for a deliberative review of the problem
of compensating American victims of terrorism, and that review
should be informed by the three years of experience under the
1996 amendment.
III.
Prong One -- "Advance" Payments. Payments would be
limited to a percentage, up to a·given maximum payment, of
compensatory damages to persons currently holding judgments
pursuant to the 1996 FSIA amendments (there are three existing
COPY
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�DELIBERATIVE/PRIVILEGED
2
judgments:
$25M in Flatow, $49M in BTTR, and $65M in Ciccipio).
Thus, a 5% advance would cost no more than $7M.
•
Representative Duncan Hunter's proposal in H.R. 2189 is a
similar provision, authorizing the Secretary of State to
approve payments to each hostage victim-plaintiff in the
Ciccipio case (up to $10M for a foimer hostage, and up to $4M
for a spouse) .
•
Subrogation.
The provision should make the United States
fully subrogated to·all rights of the judgment holder for
recoupment of these payments from the terrorist-list state.
In so doing, this proposal would make these judgments an issue
between the United States and terrorist states, and not simply
a matter of private parties versus terrorist sta~es.
•
Although recoupment is not certain either in time or fact, it
will be important to show that this is by no means solely a
U.S. payout to compensate for the acts supported by a
terrorist-list state.
•
There are various options available to maximize the chances
of collection on these advances.
(E.g., there could be a
fallback provision directing that, if the advances are not
recouped prior to normalization, they will be collected
from blocked assets.)
III.
Prong Two -- Commission.
The statute would establish a
commission or urge the President to do so.
•
The commission provision could follow the form of similar
legislative initiatives to study related issues in the past.
•
One is 22 U.S.C. 5510, which called for the President's
recommendations on whether or not legislation should be
enacted to authorize the United States to provide
compensation to U.S. citizens who are victims of terrorism.
(The report was to be submitted no later than November
1991, but we have been unable to determine whether it was
completed.)
•
Significantly, 22 U.S.C. 5510(b} authorized the President
to ~establish a board to develop criteria for compensation
.
and.to recommend changes to existing laws to establish~~
single comprehensive approach to victim compensation fcpfuV\-.
· ' 'U>-6\ · .
terrorist acts." A similar provision in this year's b1..illl
· ~\
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DELIBERATIVE PRIVILEGED
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could have the President focus on and provide propos
regard to the sp~ci c problem that has resulted from
practice-under the 1996 exception to the FSIA.
•
~-
Another example is found in i:he 1996 Antiterrorism and (
·
•
Options the'commission_might consider include repeal of the
FSIA exception in favor of a claims adjudication process, or a
more permanent "advance payment" mechanism with several
possible options to fund it (e.g., victims compensation and
assistance accounts such as that established under 42 U.S.C.
10601, using excess
s and penal
).
•
The va~ue of establishing such a commission is that, by
commi ing to this seri9us effort, we can perhaps remove
pressure to obtain blocked assets and avoid setting up an illadvised permanent mechanism this year. That is, Congress
would provide advances to current judgment holders who have
through significant effort and expense pursued cases against
terrorist-list states, and would commit to formulating a·
longer term solution to benefit plaintiffs currently pursuing
cas
(e.g., Terry' Anderson).
•
Ideally the Commission would be appointed by the President.
More likely, the legislative process would result in a mixed
executive-legislative commission. It will be_ important that
membership, at minimum, be equally divided between the
branches. Given the requirement to vet any members of the
Commission who are not already full-time federal employees,
the Commission should be .given at least 18 months to complete
its work.
(Alternatively, the Commission could have one year
to do so from the date of establishment rather than
enactment~)
IV.
•
'J!S?)
~~
Effective Death Penalty Act, which authorized a commissi,on
i{: /
with a very broad charter involving questions of Federal\':,_
....>..--<>~/~
law enforcement in the future,. with terrorism being one or "'--------!:-;:;.-/
priorities for the commission's inquiry. Hearings have
been held, but the commission has not yet concluded i-ts
work.
Related
Measure~
The above option in respbnse to section 118 would provide some
compensation and commit to reaching a longer term solution.
This should ~e viewed as a complete alternative to section 118
-- the thrust of which is to make blocked assets and judgment
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DELIBERATIVE/PRIVILEGED
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fund debts of the United- States available to plaintiffs.
~<~~oN
Thus, section 118 (in the Senate-passed FYOO Treasury Postii~
bill) should be withdrawn from further consideration in favor
of this approach that would be supported by both the
J
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Administration and key Members of Congress.
\
\
•
'\..
·In addition,. we should seek an amendment to sectiori 117(d) ~
(last year's bill) to make clear the President's broad waiver
a~thority to protect blocked assets.
•
This should be palatable because the above solution
provides advance payments and commits to a longer term
solution.
•
A future proposal could conceivably involve the limited use
of blocked assets, but the current situation where the USG
must defend in various courts against the elimination of
blocked assets is unacceptable.
+
In exchange for near-term payments, it should be made,
clear that the President has the authority to protect all
blocked assets. This would moot the current litigation
involving writs on blocked assets and telecom payments in
the Flatow and BTTR cases.
Those cases focui directly on
the President's waiver authority under a purposefully
vague waiver provision, and this has been costly not only
to the United States but also, importantly, to plaintiffs
who have yet to recover a· dollar.
+ It is possible that the commission's recommendation might
be to iep~al all of section 117, the prima~y purpose of
which is to expose blocked assets. Although it is highly
unlikely that section 117 could be repealed this year, we
should at least insist upon a clear provision for broad
waiver authority in exchange for providing advance
payments on _:the judgments.
V.
Summary.
This substitute legislation for section 118 would
be a fairly simplesectiori that would accomplish the following:
•
Authorize advance payments to judgment holders under 28 U.S.C.
1605(a) (7) as of September 30, 1999, limited to 5% of adjudged
compensatory damages, not to exceed $2M per plaintiff.
-
•
I
.
Subrogate the United States to these claims against terroristlist states to the extent of advances paid.
COPY
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�DELIBERATIVE/PRIVILEGED
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•
Provide for a Presidentially chartered commission to study how
best to resolve difficulties flowing from suits under 28
U.S.C. 1605(a) (7), recognizing important needs of preserving
blocked assets in the national security inter~st and providing
avenues of effective compensation for American victims of
terrorism abroad.
The commission would report findings and
make recommendations for legislative solutions within 18
months of enactment.
•
Amend section 117(d) of the Omnibus Appropriations Act for FY
1999 to confirm the President's authority to waive subsections
(a), (b), and (c) of section 117.
VI.
Other options for funding advance payments. Although
capping advanc·e payments ·and limiting qualified claimants to
existing judgment holders would keep the cost relatively low, it
simply may not be possible to_identify the required funds in
this year's budget.
•
Blocked assets.
Provide the President authority to vest
·blocked assets of terrorist-list states to fund advances not
to exceed the same or similar limits (e.g., 5% of compensatory
damages not to exceed $2M per plaintiff) .
•
Note: Arguably authority to vest blocked Cuban assets
exists because they are blocked under the Trading with the
Enemy Act (TWEA) . However, limited use of this authority
for ex gratiapa:yments in 1996 was controversial, and
further use could subject the United States to litigation
risk. Moreover, clearly there is no authority to vest
assets blocked under IEEPA, as in· the case of Iran.
Thus,
clear legislative intent to provide the President vesting
authority for these purposes would be preferred.
•
Significant disadvantages:
(a) depletion of blocked assets
and thus diminution of bargaining chips for use in dealing
with terrorist-list states; (b) the' President would
continue to receive inordinate pressure to use blocked
assets to pay judgments.
•
If this approach is chosen, it would be preferable td leave
discretion in the President, but Members would probably
require the President's political cominitment to vest some
assets and make payments before they agree to withdraw ~siDENr·:""'
section 118.
f(~
4(·,
~,~.t:.tloo'--~I'J;::;-.
COPY
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(>)
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•.
DELIBERATIVE/PRIVILEGED
•
6
Victim compensation and assistance accounts. Although we are
~ware of some funds in existing accounts, there are obstacles
to their use this year.
There is a reserve fund managed by
DOJ's Office for Victim Compensation (OVC) and consisting of
excess fines and penalties paid into OVC's principal fund and
not needed for othe~ purposes. OMB advises that legislation
to open the funds to this use would not be a scoreable event,
since budget estimates have assumed that the fund would be depleted each Y.ear. Nevertheless, there would be significant
political resistance to th~ use of this prog~am, which is
orient~d towards the states.
Governors would be likely ~o
complain .that these funds were being made available for the
first time to pay compensatory damages when heretofore victims
of domestic terrorist acts have received only modest payments
such as to enable them to attend trials.
VII. Unblocked asset~.
In any event, ongoing efforts to assist
plaintiffs in locating unblocked assets for possible attachment
would continu·e.
In the Flatow case, some noteworthy progress
was made in August (e.g., turnover of some 900 additional pages
on August 13 pursuant to protective order).
COPY
�September 27, 1999
ACTION
MEMORANDUM FOR SAMUEL R. BERGER
THROUGH:
JAMES E. BAKER
FROM:
CHARLES A. ALLEN
SUBJECT:
Legislative Alternatives to Proposals on Behalf
of Flatow and Brothers to the Rescue Plaintiffs
Purpose
To obtain your approval to share the attached legislative
alternative with_a small policy group with a view to presenting
a cleared proposal to the President.
Background
Prior to the August recess, we faced the prospect of enactment
of section 118 (offered by Senators_ Kyl, Mack and Lautenberg)
as part of the Treasury-Postal bill. Section 118 would have
exposed blocked assets by repealing the President's
waiver a~th6rity-under Section 117 from last y~ar's bill, and
would have allowed attachment of U.S. funds payable to a foreign
country such as Iran or Cuba.
On August 2 the President
indicated his agreement that a bill ~ith such a provision could
rise to the level of a veto (Tab I), and the Secretary of State
and Attorney General concluded that week that they would
recommend a veto.
As a result, Section 118 was removed from the Trea~ury-Postal
bill during conference, but it has been understood all along
that the provision could reappear in another bill this session.
Mindful of the President's views, and motivated by our desire to
maintain the Preiident's natiorial security tools while at the
same expressing condemnation of terrorism, we have considered
possible alternative approaches. Although we have discussed the
issues within a small interagency group (Stu, OMB, OLC), we have
not formally vetted ideas qut of concern that any leaks could
effectively abrogate the President's policy options.
COPY
�2
Ih re
days the issue has reemerged, with statements by
Senator Mack about his resolve to raise
s amendment anew, and
plaintif ' statements to the press that the Administration's
opposition to the legislation and appearances in court to
protect the President's waiver mean that we support terra st
states
the expense of American victims.
NSC/Legal &a~ drafted a legislative proposal, Tab II (statutory
language) and Tab III (description of propo
), that would
provide a near-term solution to the.intractable problem
by the 1996 amendment to the Foreign Sovereign Immunities
allo.wing private actions against terrorist- st states~
The . ,.~~
proposal assumes that some near-term payment to the three
./,~~
~80
existing judgment holders is necessary to head-off an
leY
~
unacceptable provision such as Section 118. At the same ti4e,
;;).57iP
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the proposal protects blocked assets in the national securi~y
~,
interest by funding "advance payments" to judgment hoiders J.'sing.
..>..§}
§
appropri
. funds.
.
· .
.
~
Finally, the proposal recognizes that the 1996 amendment
conferring jurisdiction against terroris li
states h~s not
balanced
country's broader interest in an important national
· security tool with our shared desire to provide redress for
outrageous acts of terrotism. As a result, plaintiffs have been ·
unable to collect on their judgments, and extraordinary pressure
has been placed on the Administration to allow collection from ·
blocked assets. Therefore, we believe that there is a need
r
a broad, deliberative review of the problem of compensating
American victims of terra sm before settling on a.more
permanent solution to these cases and others that may arise in.
the future.
The proposal at Tab II would accomplish the following:
•
Authorize advance payments to judgment holders as of September
30, 1999 (three ca~es), 1
ed to 5 percent of adjudged
.compensatory damages, not to exceed.$2 million per plaintiff.
(The maximum payout would be about $9 million, based on
adjudged compensatory damages as follows:
Flatow - $25
million; Brothers to the Rescue - $49 million; and Ciccipio,
Jacobson, and Reed- $65 million.)
•
Subrogate the United States to these claims against terroristlist states to the extent of advances paid.
•
Provide for a Presidentially appointed commi
on ·to study how
best to resolve the di
culties inherent in suits under the
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1996 amendment. The commission should be guided by the need
to preserve blocked assets while providing means of effective
compensation for American victims of terrorism abroad.
The
commission would report ·findings and make recommendations for
legislative solutions within 18 months of enactment.
•
Amend Section 117 (d) of the Omnibus Appropriations Act for FY
i999 to confirm the President's authority to waive Section 117
and thus protect blocked assets.
As an alternative to use of appropriated funds to make the
advance payments, we have also considered a provision to
authorize use of existing victim compensation and assistance
accounts.
These accounts are funded with penalties and fines,
and they provide Federal support for a portion of the states'
victim compensation and assistance programs.
OMB advises that
legislation to tap the DOJ victim funds would not require
scoring, since budget estimates ·each year already assume th.at
these funds will be depleted. However, use of these funds for
the first time to pay compensatory damages adjudged by courts
would likely be opposed by governors, among others, since these
funds have only been used to provide modest payments to victims
for such things as expenses £o attend trials. Precedent setting
legislation in this area could deplete the Victims Compensation
fund and, without substantial additional appropriation, draw its
resources awai from traditional assistance activities to
compensatory functions.
We have also considered legislation that would accomplish the
same objective by authorizing the vesting of frozen assets to
make the 5 percent payments. This has the advantage of not
requiring additional appropriations, but the same national
~ecurity disadvantages of Section 118, albeit on a different
scale. Moreover, unlike Cuba, Iran's frozen assets, which might
be used in the· Flatow and Ciccipio cases, consist of diplomatic
prop~rty and property subject to the Iran Claims Tribunal,
raising all the international legal problems previously
identified.
We continue efforts to help plaintiffs locate unblocked assets
for possible attachment.
In the Flatow case, some 900
additional pages were turned over in August pursuant to
protective order.
In addition, Justice recently provided
Flatow's counsel a document from OFAC regarding a $750,000
California land sale by an Iraniari bank that was due to close on
September 15.
Despite our providing such information,
~
plaintiffs to date have not yet recovered assets.
Flatow' s
<>~E.SID£JV~·~,,
"(
4'
0..:;;(
COPY
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counsel has signaled a lack of interest in further protracted
litigation to show the.necessary connection between Iranian
commercial entities and the Government of I~an as required to
prevail in court. Thus, despite our continued efforts in this
area, information on unblocked assets will not obviate the. n~ed
for a legislative remedy.
Concurrence by:
Miles Lackey
RECOMMENDATION
That you authorize circulation of the attached proposal to Stu
Eizenstadt, Tom Pickering~ Eric Holder, Jack Le~ and Beth Nolan
with a view to presenting a the President with a legislative
alternative to Section 118.
Approve
Disapprove
Attachment
Tab I
Memo to the President
Tab II
Legislative Proposal
Tab III
Explanation of Proposal·
COPY
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
AND TYPE
SUBJECTrriTLE
DATE
RESTRICTION
r;25 '+I
001. email
From Richard Nuccio to Alan Kreczko. Subject: Cuba compensation
(I page)
03/0211996
P5
002. email
From Alan Kreczko to Jane Baker, Kenneth Baldwin, Peter Bass, et al.
Subject: Cuba-Criminal Law. (2 pages)
03/0411996
Pllb(l)
003. email
From Elizabeth Verville to Alan Kreczko. Subject: Cuba, Chicago
Convention (3 pages)
03/04/1996
P5
COLLECTION:
Clinton Presidential Records
NSC Emails
MSMaii-Record (Sept 94-Sept 97) ([Cuba, BTTR, Shootdown])
ONBox Number: 590000
FOLDER TITLE:
[03/0 1/1 996-03/04/1996]
2009-0342-F
vzl 165
RESTRICTION CODES
Presidential Records Act- 144 U.S.C. 2204(a)J
Freedom of Information Act- JS U.S.C. 552(b)J •
National Security Classified Information J(a)(l) of the PRAJ
Relating to the appointment to Federal office ((a)(2) ofthe PRAI
Release would violate a Federal statute J(a)(J) of the PRAI
Release would disclose trade secrets or confidential commercial or
financial information J(a)(4) of the PRA(
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors Ja)(S) of the PRAJ
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ((a)(6) of the PRAJ
b(l) National security classified information ((b)( I) of the FOIA(
b(2) Release would disclose internal personnel rules and practices of
an agency ((b)(2) of the FOIAJ
b(3) Release would violate a Federal statute ((b)(J) of the FOIAJ
b(4) Release would disclose trade secrets or confidential or financial
·
information f(b)(4) of the FOIAI
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy J(b)(6) of the FOIAJ
b(7) Release would disclose information compiled for law enforcement
purposes J(b)(7) of the FOIAJ
b(8) Release would disclose information concerning the regulation of
financial institutions J(b)(8) of the FOIAI
b(9) Release would disclose geological or geophysical information
concerning wells ((b)(9) of the FOIAI
PI
P2
PJ
P4
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
·
no1~~
RR. Document will be reviewed upon request.
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�MSMail
DATE-TIME
02 March 96 09:30
FRO.M
Nuccio, Richard A.
CLASSIFICATION
UNCLASSIFIED
SUBJECT
RE: Cuba- compensation [UNCLASSIFIED]
TO
Kreczko,. Alan J.
CARBON COPY
NO CC's on THIS MESSAGE
TEXT BODY
Without knowing Sandy's reaction, I agree with you.
From: Kreczko, Alan J.
To: @UP - APNSA Special Assistants
CC: !R, Record atA1; Baker, James E.; Nuccio, Richard A.
Subject: Cuba- compensation [UNCLASSIFIED]
·
Date: Friday, March 01, 1996 08:21 PM
FOR SANDY BERGER
An attorney for "Brothers to the Rescue" has asked State/L for a briefing on
. claims practice generally and how we intend to implement POTUS commitment
to
seek legislation to compensate victims of Cuba shootdown. State/L has
asked for guidance for Monday morning (the attorney wants to come in on
Tuesday) on whether to have the meeting and what to say on POTUS
commitment.
My recommendation:
--they. agree to the meeting but limit their comments to a general
description of our claims practice, past examples, etc.
-- re POTUS commitment, they say that how it will be implemented is still
under consideration.
OK?
COPY
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Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Previously Restricted Documents
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-2001
Description
An account of the resource
<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
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William J. Clinton Presidential Library & Museum
Extent
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397 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
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2009-0342-F - Brothers to the Rescue
Identifier
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2009-0342-F
Is Part Of
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Previously Restricted Document Release no. 7
Format
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Adobe Acrobat Document
Publisher
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William J. Clinton Presidential Library & Museum
Medium
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Reproduction-Reference