Transcripts For CSPAN Senate Judiciary Hearing On China Coronavirus Pandemic 20240712

The conditions for bringing a lawsuit against a foreign state. The Senate Judiciary Committee Hearing is chaired by senator Lindsey Graham of south carolina. Generally speaking, we have a foreign sovereign immunities act , basically shutting off lawsuits against other nations because whatever we do to them, they can do to us. We made exceptions to it. We have amended the act regarding terrorist activities. This is not an issue i take lightly. Ive thought ang lot about. My colleagues have worked to put together legislation, they have reconciled the legislation. Want to have a hearing about what it would mean if we amended the act to allow suits against china. And why would we take this unprecedented step . This is the third pandemic to come out of china. The coronavirus came from hunan province, but it was a mistake in a lab or spread at a wet market, i dont know, but we do know where it came from. We know china failed to inform the world about the nature of the virus that did restrict travel into china but allowed chinese citizens to travel throughout the world. They knew it was human to human transmission and failed to adequately inform the who in my view and the world at large. The bottom line is the wet markets in china have been a breeding ground for pandemics and americans are asking the question what will it take to make china change . At what point in time do we need to put on the table new ideas to stop a recurring event, pandemics coming from china . Given the willfulness, the the hard heartedness for lack of a better word regarding the Chinese Communist parties handling of the coronavirus, i think now, the time has come for us to put on the table new tools to deal with an old problem. Think of a more allowling idea than to individual americans or groups of americans to bring lawsuits against a culprit Chinese Government for the damage done to their family, our economy, and the psyche of the nation. The entire world feels played by china. Needs to send a strong signal to the Chinese Communist party that enough is enough. Contemplating as chairman is having a markup on legislation that would amend the foreign sovereign immunities act regarding chinese culpability involving the coronavirus. Died, 40and people Million People have lost their jobs and it has been a nightmare for our country and the world at large. We have used the foreign sovereign of unities act in the past, amended it in the past two go after people who have done harm to americans and represent a threat to our way of life. I think the Chinese Communist party, given their behavior over , we should consider whether or not new tools are necessary to change behavior that is so devastating and deadly. I look forward to the hearing and we will sit down among ourselves and see if we can find a way forward. Its time in my view to act differently regarding china because the old way of doing business is not working. With that, i will turn to senator feinstein. Senator feinstein thank you very much, mr. Chairman. Today, the committee, as you said will examine the foreign sovereign immunities act and culpabilityotential for the covid19 pandemic. Do,el differently than you so this should make it an interesting discussion. Our focus today is on whether china can be held legally accountable for the coronavirus. Is whether the Chinese Government can be sued in United States Court Consistent with the foreign sovereign immunities act. Under longstanding International Law, foreign states are generally immune from lawsuits in the United States and vice versa. Congress codified this general when ite in 1976, passed the foreign sovereign immunitys act. This law protects china and any other foreign nation from being sued in the United States. But, congress provided exceptions in the law that allow foreign states to be sued in certain circumstances. For example, congress provided an exception in the foreign sovereign of unities act to allow a lawsuit based on a commercialtes quote activity such as the foreign nation sale of products in the United States. The law also allows a lawsuit where foreign states, wrongful acts result in injury or death in the United States. Two states, missouri and mississippi have now sued china, claiming these exceptions to the Foreign Service immunities act allow them to sue china for initially concealing information about the coronavirus pandemic. Let me say this is the one thing we need to look into was . formation in fact ncealed i ed i agree that what the Trump Administration did or failed to do should be examined. The actions of the Trump Administration may even play a role in whether china can or should be held legally responsible for harms within the United States. For example, how can china be held accountable for decisions made before the pandemic that made the United States more vulnerable . It was a Trump Administration, thechina that cut funds for center of Disease Control and prevention and disbanded in office with the National Security council that focused on responding to Global Public health threats. How can china be held responsible for decisions at the that the federal and state governments are making now . Long after we learn how quickly and easily covid19 can spread and its potentially dangerous consequences which we are experiencing today. Mr. Chairman, as of friday, covid19 had taken over 118,000 lives. It has caused untold economic damage. I understand the committees interest in looking at questions around foreign sovereign immunity and china failures relating to the coronavirus pandemic. But we also need to take a careful look at what our government could and should have been doing. Was it better . Thank you, mr. Chairman. Graham we have three witnesses, attorney general lynn finch from the state of mississippi and mr. Russell law at professor of washington lee law school. Or, alfred and professor of the hastings at the university of california. Each of you have long resumes and are very qualified. Thank you for coming to the committee. Who is remote . The attorney general from mississippi is remote. I understand. With that, we will receive testimony from our witnesses and begin inquiry. Madam attorney enteral, the floor is yours. For the opportunity to appear before you on this important matter. Like the rest of our nation graham any way to turn that down a notch . It is way too loud. Its not your problem. Ok lets give it a whirl. Go ahead. No problem. Thank you, chairman graham, senator feinstein, and all the members of this committee for the opportunity to appear before you on this important matter. And the rest of our nation indeed the world, mississippi has faced and continues to face devastating consequences as a result of the coronavirus pandemic. It will likely take many years to recover from the loss of life and livelihood. Over the course of three months, 23,000 cases and 1000 deaths. 200,000 mississippians filed for unemployment benefits. Our Unemployment Rate jumped from 5. 4 percent to 16. 3 in just one month. Numbers may seem small compared to hotspots like new york city, but to a state with a population of roughly 3 million, this is significant. These are losses we can qualify. Mental size ofnd [indiscernible] graduations, weddings and birthday celebrations that were abruptly counseled canceled. This mississippians, like others have not been able to visit with their elderly loved ones. They have been cheated of proper morning with funerals, unsafe or all in attendance. The people of mississippi have suffered tremendous loss and while we appreciate the general assistance generous assistance the federal government provided, much of this could have been avoided if china acted as a responsible global citizen. In fact, not only did china fail to properly inform the people of the world of this contagion, they willfully acted to prevent the world from learning about covid19. China must be held accountable for those actions. They must be held accountable for keeping the world in the dark, but the true nature of this Public Health crisis. When the rest of the world needed them, feeling defective or substandard ppe at inflated costs. If an American Company engaged in actions like these, attorneys general across the country would be lining up at the courthouse door to file suit. Only recoverot monetary compensation but to act as a deterrent against future bad acts. The coronavirus has killed, caused serious medical harm, destroyed businesses, and functionally altered the american way of life. We must hold china accountable so we so that all other states will know that we will not allow them to act this way. America will not turn a diplomatic rock omatic blind eye but use whatever tools we have at our disposal to seek justice. Thank you for this opportunity to share mississippis stories with you. Graham senator . Ussell miller make sure you turn your microphone on. I think we are on. Chairman graham, ranking number feinstein and just english members of the committee, thank you for distinguished members of the committee, thank you for giving it the chance to discuss the harm caused by the coronavirus pandemic. Im the jay starbucks professor of law at washington and Lee University school of law and i am an experienced teacher and researcher in the field of Public International law. Among my publications in that field is the book transboundary harm in public and International Law lessons from the trail smelter arbitration. Its my arbitration on that that serves as an Important Foundation for my contribution to this hearing. Congressional efforts to account for the Chinese Government potential International Law responsibility, for the substantial transboundary harm its acts and omissions may have caused in connection with the global coronavirus pandemic. The trail smelter arbitration announced the applicable customary International Law rule sometimes referred to as the trounce bent transboundary harm principle. State may use no or permit the use of its territory in such a manner as to in theerious injury territory of another state. Arbitrationelter also provides a model for a fair and equitable process for dealing with the chinese Law International responsibility. It would feature an International Institution before which all interested parties could participate. Influencesh facts and application of the law. There are many reasons why the United States should pursue and the Chinese Government should participating in a transboundary harm process. Of suchase, the success byrocess would be enhanced the possibility for civil law entities against foreign sovereigns in relation to the global coronavirus pandemic. Both as a means for securing individual justice and as a means for motivating the Chinese Government to engage in International Negotiations, concerned with establishing its responsibility and settling on potential remedies. Thislation proposed by committee would make those civil suits possible and i want to emphasize, would commit the United States to an International Law process not unlike the trail salter arbitration. Those are admirable objectives and i endorse them. Im motivated today by a deep commitment to the global order and the Public International law regime that makes it possible. State sovereignty is at the heart of that global order. The trail smelter arbitration provided the rule and an example of a process for enforcing state sovereignty and international interconnected and transnational era. The pandemics originated in china and there are profound policy and legal reasons for considering whether the Chinese Governments acts and omissions because transboundary harm. In any case, the trail salter betrays and teaches us that the transboundary harm principle can do the offending country a great deal of good. In this case, it would advance the health and human rights ,nterests of the Chinese People participation in a transboundary harm process would signal the good faith needed for a confident resumption of the world trade regime from which china profits so significantly. And it would bolster chinas status ofachieve the a responsible and respected global power. Importantly, just like in the trail smelter arbitration, this process would hold the Chinese Government responsible for the transboundary harm it has done. It would help prevent a repeat of the pandemic and secure some compensation for the americans suffering because of this devastating, disruptive, and deadly pandemic. And q, and i look forward to you andstions thank i look forward to your questions. Chairman gran, ranking number feinstein and other embers of the committee, thank you for the opportunity to testify today. I hold a chair in International Law at Uc Hastings Law School in San Francisco and i have served proudly as counselor on International Law at the department of state where i worked on matters including foreign sovereign unity. I offer this testimony fully on my own behalf and i would like to offer three points. First, the United States has more to lose than any other shield by removing the of foreign sovereign immunity for pandemics and im reassured to hear that senator graham, you appreciate this fully as you indicated this is a difficult decision to make. Second, private litigation will not bring china to the negotiating table and it will not produce answers or compensation for u. S. Victims. Im afraid my colleague, professor miller is mistaken in the premise of the argument as is attorney general fitch that such a process would produce the desired results. If it would, we might be entirely justified in having a different balance of a costbenefit analysis here. Congress should focus on the inadequate federal response to covid19 and restoring u. S. Leadership in Global Public health. Im delighted my colleague, professor miller endorses that goal as well. Let me be clear at the outset, im not here to defend china. My purpose in joining you here is to help protect the United States. My testimony would be virtually identical if the pandemic had originated in any other country. My points about sovereign immunity are neither original nor controversial, nor should they be viewed as partisan and i will address them in turn. First, the United States has the most to lose in removing sovereign immunity for a pandemic. The principle of foreign state immunity does not absolve any country from legal responsibility for its wrongdoing and that is an essential point. It also does not prevent the United States from imposing serious consequences on Foreign Countries for violating our mutual obligations. A diplomaticompel blind eye as the attorney general called it. Ist it does prevent nonconsensual litigation against one country in another countrys courts. Instead, we resolved through diy including coercive diplomatic measures and in traditional tribunals whose jurisdiction is based on consent. Because of our unparalleled global footprint, the u. S. Has the most to lose from weakened rules. Exceptions i some would be glad to explain in questions why those dont apply here. We might not be on the resizing of a virusiving end today, but we could be on the virusing end of a tomorrow. This will not force china to negotiate and will not provide answers or compensation. Instead it will give false hope to u. S. Victims and tie us up in years of counterproductive litigation at the expense of u. S. Taxpayers in u. S. Courts. Chinas initial response was praised, which included thanking president xi on behalf of the American People. You could be seeing remarks in chinas defense. This is one of many hurdles the lawsuit would face. The complex chain has dozens of links. In this respect and many others i would be happy to go into it is fundamentally different from the trail smelter case. Creating exceptions to sovereign immunity including what not compel china to negotiate. But using these complaints in u. S. Courts as a leverage is like using a stick of dynamite to put out a forest fire. Shown,tireless work is containing pathogens and essential government functions. These are the sorts of functions for in state immunity covers under international and u. S. Domestic law. They must focus on our domestic response and restoring we must focus on our domestic response and restoring leadership. We should focus on actions to help the American People. I support the calls for an independent investigation and a Bipartisan Panel akin to the 9 11 commission. Such a commission would show the world we are candid enough to bring it confront a crisis somethingsulting to more associated with authoritarian regimes. Sen. Graham attorney general fitch, have i got your name right . A. G. Fitch yes, sir. Sen. Graham ok. Do you feel like the people of mississippi are to blame or china is to blame . A. G. Fitch certainly china is to blame and must be held accountable, mr. Chairman. Sen. Graham so from your point of view, does the sovereign immunity act need to be amended at all to allow you to move forward . A. G. Fitch we are moving forward because we believe there is an exception and that is how we proceeded on our lawsuit which we filed in the United States Federal District court of Southern District of mississippi. It is important to note that with the foreign sovereign immunity act, which is the commercial activity section is an act based on commercial activity carried on in china that causes a direct effect on the United States and they may not be immune from the jurisdiction of u. S. Force. A reference to the nature of the course of conduct and a particular transaction or act. Essentially nationalizing the manufacturing. So we believe this exception is workable and that is why i am proceeding with our lawsuit. Now, certainly the amendment to the Foreign Policy immune act would be helpful. Providing additional exceptions provides us broader avenues for states and individuals to seek justice. There is no reason to restrict the tools in our toolbox. Sen. Graham mr. Miller, what is your view of the argument she just made . Your knowledge of the act, do you think that mississippi lawsuit is justified under the current law . Prof. Miller my expertise is not as strong in the area of the foreign sovereign immunities act as either of the madam attorney general or my colleague, professor keitner. My survey of that legislation and the relevant rules led me to wonder if in fact there is an uphill battle for the plaintiff in these cases. Both under the commercial activities provisions or the territorial tort provisions. You are going to hear skepticism, i expect, about the functionality of those exceptions in this case from professor keitner, but all of that points to the necessity for amending the act if we want to move forward with these suits. Sen. Graham so the goal from your point of view would be to drive china in their consensual arbitration environment, is that what you are suggesting . Prof. Miller i dont share the professor keitners view that these domestic civil suits are more harmful, necessarily more harmful or futile. We have plenty of evidence that they can actually do what you have just described, chairman. That they can move our foreign partners towards a consensual negotiation. But we also have evidence that they can turn towards providing actual compensation for american victims in a number of cases. The case against saudi arabia, justified under the exceptions jasta up by the amendments is moving painstakingly through the process, but holds out real promise for securing justice. I can think of one profound example in which civil litigation worked in tandem with the kind of International Law processes i described. And that of course is the long and painful story of the pan am 103 terrorist attack. In that context, civil litigation worked profoundly to move libya towards a settlement at the International Law level. Sen. Graham well, so my goal is to put as many levers on the table as possible to get china to change. Compensate people in a fair fashion. This is the third pandemic coming out of china and the consequence to our country and the world has just been astounding. To go back to the old model, where you just, i dont know professor keitner, do you support a pandemic tariff . Could you put prof. Keitner yes, senator, im not an economist. I do reference in the footnotes of my written testimony a report from the, i believe it is the American Economic institute, that explains in convincing detail why that would be a terrible idea. Sen. Graham ok, you dont support tariffs. Ok do you support sanctioning , china . Prof. Keitner yes, i think in appropriate circumstances. Sen. Graham can you tell me where what you would do . , prof. Keitner i will get to the executive branch under the act has the ability to and has used that ability to impose sanctions both on a state level sen. Graham what about the congress . What can we do . Prof. Keitner you could give the president further guidance in the types of sanctions you would like him to impose, as he has done recently. I think those types of levers are much less likely to boomerang back than the one your colleagues are proposing here. Sen. Graham can you give me an example where sanctions against china have substantially changed their behavior . Prof. Keitner again my expertise is not in china specifically, but i would point to the progress we have made both with respect to economic espionage, although there does seem to be some backsliding there, as well as the trade deal. I was reassured to hear from the president this morning still in good shape. Sen. Graham i will answer my own question, no. [laughter] absolutely no example doing anything out of the Current Situation has changed chinas behavior. That is why we are having a hearing. Senator feinstein. Sen. Feinstein [indiscernible] i am sorry. I just want to point out that the chairman did not administer an oath, but that the witnesses are under an obligation to tell the truth. Sen. Graham you are right. I did not. I will swear them in. My bad. Stand up. [laughter] raise your right hand. Mississippi, raise your right hand. Do you solemnly swear the testimony you are giving and have given is the truth, the whole truth, and nothing but the truth, so help you god . I do. Sen. Graham i dont know if that works. Sen. Feinstein thank you. On april 17 of this year, a Republican Communications firm i think it is by the name of odonnell and associates released a memo urging republicans running for office to blame china for covid and to shift any responsibility away from the Trump Administrations planning for and response to the pandemic. So, i would like to ask this of both panelists. Are you aware of that memo . And if so, how did you learn about it . Attorney general . A. G. Fitch thank you, senator feinstein. I am not aware of that document, nor have i seen it or heard anything about that. Sen. Feinstein thank you. Could we hear from our panelists here . Prof. Miller i have never heard about this memo. Never seen it. Prof. Keitner yes, senator feinstein i have done my , homework. I am aware of the memo. I read about it in the press. I then read the memo and found it extremely striking that many of the allegations in the memo are repeated almost verbatim in some of the lawsuits that have been and are being filed. Sen. Feinstein before attorney general fitch, mississippi filed a lawsuit against china just days after the release of the memo. Before suing china, did you talk with anyone about the republican strategy to shift blame to china . A. G. Fitch senator feinstein, i did not. I believe this legal action is worth taking on behalf of the people of mississippi. We cannot ignore what china did. [indiscernible] our Consumer Protection law, it is important. Again we are feeling that china engaged in unfair and deceptive acts, and methods and practices. China covered up the seriousness of covid19. Sen. Feinstein thank you i , understand that. Thank you. A. G. Fitch [indiscernible] move forward sen. Feinstein thank you. I have another question. Before suing china, attorney general, did you talk with anyone about the republican strategy to shift blame to china . Has anyone ever expressed to you in any way, shape or form, they think your lawsuit is a good way to shift the blame to china . A. G. Fitch no, senator feinstein. Not at all. Sen. Feinstein and you know you are under oath. A. G. Fitch yes. Sen. Feinstein ok. All right. I just would like, mr. Chairman, to know more about that republican Communication Firm that released the memo. Sen. Graham i can say i have never read it, along with everybody else. [laughter] i figured this out all on my own. Sen. Feinstein ok. Heres another question. Does the foreign sovereign immunities act allow lawsuits against china related to the coronavirus . Prof. Keitner senator feinstein, if that is directed to me, and i am a reporter on foreign sovereign immunity for the american law institute, although i dont represent the institute today, it does not. That is precisely why an amendment would be needed in order to allow suits to be filed. They would not produce compensation, and i would be glad in questions for the record to elaborate extensively on why they are not examples that are relevant, that paved the way to the glory glorious end we are all hoping for here. Prof. Miller i would qualify that, senator, only by noting the legal questions to be determined through advocacy and arguments over the nature of the standards applied in the two exceptions, the commercial activities exception and territorial tort exception. Prof. Keitner professor miller, im giving my Expert Opinion as a former lawyer. Sen. Feinstein could he finish answer . Prof. Miller it is really a determination of lawful article iii, not a state Department Representative who would be a party to those, that advocacy, to settle that question definitively. You asked whether it is possible to suit, and it is possible in and the legal standards have to be resolved by a judge. Sen. Feinstein please continue. Prof. Keitner just to clarify, i am not here on behalf of the state department. I have not worked there in several years. But it did give me insight and experience that nobody else on this Witness Panel has. What i will say to reassure the attorney general, if the problem is ppe defects, that could be a straightforward, contractbased claim that would fall under a sovereign immunity exception. You can get your money back, but that does not give you a hook to start litigating the Public Policy of the chinese disease prevention and regulatory agencies, just as we would not want a foreign countrys courts to scrutinize the actions of our fda. Sen. Feinstein thank you, mr. Chairman. Sen. Graham senator grassley. Sen. Grassley i am the author of the antiterrorism act and the subsequent amendments. So i know how difficult it is for victims in cases against foreign states or entities to get compensation. This is especially true when congress clearly says one thing but the courts still do another. I also know the lengths the Chinese Government and its agents and subsidiaries will go to avoid u. S. Justice. Last congress, i introduced the state owned entities transparency and accountability reform act which would amend the foreign sovereign immunity act to prevent the shell games that Chinese State owned Enterprises Play in our own justice system. So heres the first question. If congress amended the foreign sovereigns immunity to prevent americans to sue china for covid19 damages, are you concerned about the victims ability to collect in their judgments . And in other words, do you envision victims actually Getting Compensation from china . Why or why not . Start with the attorney general from mississippi. A. G. Fitch thank you, senator. No, we fully believe that we are moving towards monetary damage and compensation for the state of mississippi. But again, this is very much about deterrent. Entering into a lawsuit on behalf of the state of mississippi, we are Holding China accountable. They have been a bad actor. They have willfully acted, they have been malicious, so we monetary damages for all malicious, so we intend to not only go for monetary damages for all mississippians, but certainly to set an example that we will not tolerate this. Setting an example in a deterrent manner throughout lawsuit. Sen. Grassley professor miller. Prof. Miller obtaining compensation for american victims by way of faisal or the foreign sovereign immunity act is a very difficult prospect. We have a number of cases in which american victims of unlawful activity by foreign sovereigns can be given compensation, can receive justice. It is my advocacy today that we imagine how the foreign sovereign immunities act as amended by some of the legislation in consideration, in combination with consensual International Law leverage can actually move us towards that goal. Sen. Grassley in 2016, i worked with other sponsors on the jasta act and recently led two important amendments to my antiterrorism act of 1992 to reopen the courthouse doors for american victims of International Terrorism. Through it all, congress was consistently told by the Foreign Policy crowd to not move ahead for fear of this or that reciprocal action overseas, but last passedthe those bills to get justice for american citizens. My first question, i will start with the attorney general from mississippi. Would you agree that Congress Acts for the American People and that it should not be swayed by foreign threats or speculative retaliation . A. G. Fitch absolutely senator. We should not be swayed by any threats coming from a foreign nation. I think the amendment and adding the additional exceptions are important. These are going to provide us broader avenues on how we seek justice for states and individuals. Theres no reason to restrict and no reason to give into their threats or demands. Sen. Grassley before i call on you, professor miller, let me give another question and you can answer the two at a time. China has long made clear its intention to aggressively use domestic and International Legal systems as part of what it calls three warfares. If china is already using our legal system against americans, isnt it only appropriate americans have full legal resource against china for its actions and failures . Prof. Miller yeah, senator, thank you. I am here advocating for us to open up the possibility of american domestic civil litigation as a way of adding leverage to the mechanisms at the International Law level, consensual mechanisms that have produced compensation. I find that a compelling concern. I want to also underscore that it is a Unanimous Supreme Court that recently endorsed the kinds of amendments this committee is considering with respect to foreign sovereign immunity and extending punitive damage coverage on the basis of some of the amendments this body has pursued. Prof. Keitner may i correct a statement in that testimony, senator . Sen. Grassley you may. Prof. Keitner the Supreme Court by no means endorsed of the kind of exceptions we are discussing here. It was a question of interpreting this bodys choice of statutory language. However there is very good basis for distinguishing the terrorism exception that it would be glad to get into with that. Sen. Grassley i will yield back. Im done. Sen. Graham senator coons. Sen. Coons thank you, senator graham, thank you to our panel today. There is broad bipartisan concern about chinas early response of the covid19 pandemic. And it is also clear that the w. H. O. s initial response was an adequate. However, that does not change the reality in the u. S. We have seen more than 120,000 americans die and an economic crisis at moments rivaling the great depression, largely because of a disorganized and chaotic federal response. We should find ways to hold china accountable, but we also must honestly assess our own response and how the administrations actions will or will not bring us out of this ongoing pandemic safely and prepare us for working with the world to address the next pandemic. So professor keitner, if i might the principal sovereign immunity faces reciprocity. If congress were to create a cause of action against china for its response to covid19, what would stop other countries from trying to hold the United States liable for, for example, damages related to our own response to the pandemic or other actions . Prof. Keitner thank you, senator. In the first instance, what would stop them is customary International Law, and their own domestic immunity statutes. What would happen because the u. S. Is a trend setter and does have a tremendous influence on the development of customary International Law, it is not simply a question of fearing threats from china. That is not my concern. We can stand up for ourselves. However, it will have an effect of eroding the protections that we enjoy in foreign courts and particularly in the pandemic context where we dont even actually know for sure right now whether, for example, the influenza pandemic in 1918, where that started. Where the 2009 pandemic came from. There are indications it may have been the United States. We dont want to be put on the hook for those sorts of things in foreign courts either. Sen. Coons are there other recent examples of congress stripping a Foreign Government of sovereign immunity where it was not related to an act of terrorism or somehow terrorism related . Prof. Keitner not to my knowledge. I have looked at this issue very comprehensively. Sen. Coons mr. Miller, are there other examples you can cite recently of congress stripping foreign immunity . Prof. Miller no, but i would qualify that answer only by noting that the scale of the harm done by this pandemic might justify departure from that tradition. Sen. Coons what are, professor keitner, the diplomatic or economic tools the u. S. Could use to impose costs on china for his lack of transparency and suppression of information . How has the administration used all of these tools . Have we effectively used our own tools and have we coordinated with our allies and partners . You, keitner thank senator. Again, my expertise lies in our use of courts. On your latter point, we have not effectively coordinated with allies. In fact my observation, as a former, not a current, government official, is we have not done a very good job coordinating among domestic agencies either. The kind of teamwork we need, both to impose consequences on china and to solve the massive problems that we are all facing is something that we need to do through leadership and we need to do together. Sen. Coons so, President Trump has decided we should withdraw from the World Health Organization, that we should stop our financial support. That we should withdraw as a member of the agency because he thinks china has too much influence over the w. H. O. But our withdrawal would prevent us from participating in improving the agency and holding it accountable and making positive changes. In our absence, chinese influence over the w. H. O. Will likely only increase. In our absence, having threatened or withdrawn, will you see ways that likeminded nations like the United States could actually lead reform, or does it strike you more likely that china will end up having a greater role in response to pandemics . And as a result, we will end up more vulnerable to future outbreaks . Prof. Keitner the absence of the United States from the w. H. O. , if that does come to pass, would be devastating for the health of americans and for the health of individuals around the world. What we have seen with this pandemic, precisely the scope of harm that my colleague professor miller referred to is that notwithstanding the intent or scale of the original act, unlike flying airplanes into the twin towers, an act of International Terrorism on u. S. Soil as you defined it in the statute when you inactive jasta you enacted jasta, this is something that could happen, it had come from the United States, it has come to the United States. We will not be able to suppress and identify these threats if we are not part of the global body charged with doing so. Sen. Coons thank you, mr. Chairman. Sen. Graham senator cornyn. Sen. Cornyn professor keitner, where did the covid19 virus come from . Prof. Keitner i personally have no idea. I have read reports. I would be glad to recite them to you. Sen. Cornyn do you have a security clearance . Prof. Keitner it is no longer active. Sen. Cornyn ok. So, you dont know whether it came from china or not . Prof. Keitner personally, under oath, no, i do not. But i would be happy to recite reports, if that is of interest. Sen. Cornyn you said you have insight and expertise that no one else has. Does that also extend to the origins of the virus . Prof. Keitner it is limited to the origins of the virus, and it covers issues of foreign sovereign immunity, international tribunals, jurisdiction and diplomacy. Sen. Cornyn it sounded to me like you were saying it was the United States governments fault and not china. Misunderstand you . Prof. Keitner you absolutely misunderstood me. [indiscernible] sen. Cornyn i heard somebody on the panel suggest this is part of a republican Public Relations effort to shift blame from the United States government and away from china. Do you subscribe to that view . Prof. Keitner i have no knowledge of whether or not anybody read the memo. I note senator grahams comment that he could have he did figure this out all on his own. End quote. So, the motivations here are unclear to me, but the main point remains china failed in its obligation to the international community. The w. H. O. , because it is an international organization, can be bullied, and the way to prevent that from happening is to be a partner with our allies, to step up and show by example that we are transparent, that we are honest, that we know how to do testing and tracing, that we can conquer this endemic pandemic together. Sen. Cornyn i know you know this, but there is a precedent for congress amending the foreign sovereign immunity act to provide a cause of action. Or at least allow american citizens to sue foreign nationals for damages sustained by them on american soil. Of course, i am talking about jasta, right . Prof. Keitner there may have been some words in there. We can sue foreign states. At points, they are officials for damages on u. S. Soil. Indeed theres a difference between immunity stripping and causes of action. If the question is whether under u. S. Law, congress has the power to do whatever it wants with teh the fsia, the answer of course is yes. Sen. Cornyn we did in passing jasta back in 2015 or 2016 . Prof. Keitner indeed. The reason the sky did not fall was because of the limited language on that statute. Sen. Cornyn so, congress clearly has the authority to do that. And i assume would have the authority, in your opinion, to craft a similar narrow statutory exception to the sovereign immunity in this circumstance . Prof. Keitner again, i see no dispute about the authority of congress here. Sen. Cornyn ok. Well, mr. Chairman, my own experience with jasta was as the lead sponsor for a bill that passed unanimously in the senate, was actually Foreign Countries hired lobbyists on k street to come in and lobby the United States government not to pass jasta, which again passed unanimously. I know the ranking member, chairman grassley, chairman graham and others are working on some changes to the Foreign Agent registration act, which would make it easier for the u. S. Government to identify Foreign Countries hiring american lobbyists to come here and lobby us to change u. S. Law in a way that benefits these other countries but to the detriment of the United States and its citizens. And i hope we can continue to pursue that. I think that is an important piece of this, because we know that china also has been very aggressive in its Public Relations campaign and propaganda efforts. I think i heard one of the panelists sort of repeat what had been said, that there was a, there was some published reports that this actually emanated from the United States. In fact i think china made the argument that it was actually some u. S. Military which was the source of the coronavirus. So, this is very prof. Keitner senator, i am sorry, just to clarify my testimony, there is no question that this did not originate in the United States. I had understood your question. Support at issue whether it originated in the wildlife market, perhaps it originated elsewhere in china and migrated to the market. So just so we know, we are on the same page. This virus originated somewhere in china, i just dont know where precisely. Sen. Cornyn thank you for that clarification. I appreciate it. Senator whitehouse. Sen. Whitehouse thank you, chairman. I dont know if we are running a Senate Campaign committee errand here or not. Sen. Graham i can assure we are going to vote on this bill and if you want to defend china, you are welcome to do so. Whitehouse actually i was interested in other stuff going on at the department of justice which we have oversight over, while we are here together. The first is that it turns out the attorney general has fired the u. S. Attorney for the Southern District of new york. Doesnt seem to be any reason for it. None was stated. It seems to have been pretty rash in that the department of justice seems to have forgotten mr. Berman was a judicial apartment, not a department of justice or president ial appointment. So when they tried to fire him, they ran into a problem that gave him leverage to impose that his deputy would be his successor and not the attorney general from new jersey, which alone is a bizarre circumstance. The u. S. From new jersey. Nothing against new jersey, but if you are the sovereign district of new york, and suddenly you are told you will be run by the u. S. Attorney from new jersey as a parttime effort, something bizarre is going on. When you havent figured out that mr. Berman is a judicial appointees, something bizarre is going on. When you havent figured out this Committee Still enforces its blue slip on u. S. Attorney nominees, so you think youre going to put jay taylor in without realizing you have to go through Chuck Schumer and Kirsten Gillibrand to get there, i mean this is part of the associate quality for preparation. Something weird happened in the department of justice to cause knucklehead, stumble bum errors like that to be done by the attorney general of the United States, and i submit wed be better off spending our time looking into what that was. Heres another one. We had the head of the antitrust division here for a hearing. We asked questions about a patently preposterous antitrust investigation that he had launched, that happened to align extremely well with political interests of President Trump and of marathon petroleum, which was trying to bust up the california fuel efficiency standards. So we got nothing in the way of serious answers at the hearing. I followed up with qfrs, and as you all know i think questions for the record have been, as a matter of policy, ignored by the department of justice whether they come from my side or yours. We got no answer to our qfrs. So we sent a followup letter saying, whats up with the qfrs . No answer. I put a hold on the bill and suddenly i got their attention. I brought it to the chairmans attention. And to his credit, he brought the Deputy Attorney general over to sit down and talk through what the heck is going on with all the questions for the record and all the letters that the department of justice isnt answering. I mean by the dozen. This is a pattern, this is a practice. Why would they be avoiding answering questions about this antitrust thing . While we are doing this, they are having a hearing at house judiciary right now on whats going on in the department of justice. Here is the New York Times reporting from just minutes ago about the whistleblower from the antitrust division. His name is elias. Is mr. Elias statement, the antitrust review, the one we are talking about about the deal with automakers the deal struck from the state of california to voluntarily reduce emissions on new cars despite the Trump Administrations rollback is standards as politically motivated rather than grounded in the facts and the law. Mr. Trump had attacked the deal on twitter and the division began its review without going through normal procedures, mr. Elias said. Quote, the day after the tweets, antitrust division political leadership, the guys who sat right there wouldnt answer our questions, instructed staff to initiate that day, he wrote. Something is very wrong at the department of justice, whether it is the antitrust regime running political errands for President Trump against americas oil companies, or whether it is u. S. Attorneys investigating Trump Associates being fired without apparent reason in such a clustered mess that they managed to overlook he was a judicial appointment, managed to overlook there is a blue slip, managed to lie twice, ged and either barr or berman was lying about whether there is an agreement to resign and either trump or barr is lying about whether to fire him. You have two lies floating around out there that have not been assigned to the individual liar. You have got to admit, guys, this is weird. This is not the department of Justice America counts on and my time is expired. I apologize for going over a minute. You have to admit, this is weird. Sen. Graham well if you want to , hear weird, we will tell you about Loretta Lynch and all those other people. I think theres a lot of weird going on. But the blue slip process will stay in place. There is nobody coming to be the Southern District of new york u. S. Attorney. That doesnt get blue slip returned. That has been the policy of the committee. That will not change. Sen. Whitehouse we appreciate that. Thank you. Sen. Graham you dont need to thank me, thats a fair way to do business. As to the number two in new york we have all the confidence in , the world, she will continue to do her job. In terms of firing mr. Berman, there is the ability to do so and it was used. If someone suggests it was done inappropriately, we will call mr. Harmon and talk about it. But we will still keep talking about china. And with that i think senator , hawley . Senator lee, yuan senator hawley to go ahead you want senator hawley to go ahead . Senator hawley . Are you there . Senator hawley is not there. Senator lee. Thank you very much, mr. Chairman. Thank you for holding this hearing. China has what we might describe fairly as a long and very disturbing history of civil rights abuses including civil rights abuses against its own citizens. This is a pattern of abuse really and it is one that is somewhat startlingly evident, even in the airbrushed picture we have been given from china on its personal on its own internal reaction to the covid19 Global Pandemic. Perhaps most egregious are the reports of chinas sealed management of the virus, which led to communist Party Officials welding the inside of welding people inside of their homes and apartment buildings. And this is not something a responsible government does. This is something that we should not countenance as any way. But as barbaric as that is, welding people into their homes, it is just the tip of the iceberg. I think somebody over there might have their microphone on. Even though the Chinese Government knew or at least strongly had reason to suspect that the virus was spread by human to human contact, a wuhan doctor was disciplined for ordering her staff to put on masks. Dr. Wen ling, another wuhan physician, was also punished by the Chinese Government, in that instance for trying to warn others about the deadly nature of the virus. Unfortunately dr. Wen ling lost his life to covid19. The evidence suggests that as early as december 31, china could have taken reasonable preventative measures to protect the rest of the world. Instead, china repeatedly lied to its own citizens, it lied to the World Health Organization, and it lied to the rest of the world about the nature of the virus, about the extent of the spread and about the rising infection rate in china. The Chinese National Health Commission even went so far as to Outlaw Publishing information related to the outbreak. This is the Public Health commission whose job it is supposedly to protect Public Health within china. The effort to cover up the severity of the situation extended beyond wuhan and across chinas borders. Its a problem inherent to communism. Eventually, the propaganda and the political whitewashing become deadly and did in this circumstance. Based on representations from chinese officials, the World Health Organization did not recommend any specific measures for travelers, and even went so far as to advise against any travel or trade restrictions on china. In fact, the World Health Organization, which itself failed to conduct its own research and instead mystifyi ngly relied on representations from china itself. And yet as much as a week earlier on january 23, chinese officials shut down domestic flights out of wuhan and surrounding municipalities to avoid spreading the virus throughout china and within china. This is alarming considering that they continued to allow International Flights and thus allowed the virus to continue to be spread until march 29. Thank goodness that President Trump restricted travel into the United States from china as early as he did or the situation would have been worse. Professor keitner i would like , to start with you. In written testimony, you acknowledged chinas damming chinas damning actions and omissions. Do you stand by that statement . Prof. Keitner absolutely, senator. As i indicated, i am not here to defend chinas actions. Sen. Lee i appreciate that. Attorney general fitch, if under current u. S. Law, if we lack Civil Jurisdiction over china in this instance, what avenues of relief are available to us to allow us to hold china accountable to for lying to the World Health Organization and to the rest of the world, to prevent the spread of this virus across the world . There you go. We can hear you now. Thanks. A. G. Fitch thank you, senator. We start with we will proceed with our lawsuit based on the exception we discussed. Any additional exceptions are very important. The world today is very different from 1976. So no law should be absolutely static. It is an opportunity to amend these laws and to give us other tools. To your point, senator, in ways we cant understand in society, to see these doctors, these medical experts that were forced to confess to crimes, to prepare selfcriticism and stop committing unlawful acts, as they were made to do, we looked at it on social media, it was censored, we know these are bad actors in china and we have to hold them accountable so we will move very readily on our lawsuit with the exception at hand, and we look forward to any additional exceptions brought to congress. Sen. Lee thank you, general fitch. Mr. Chairman, could i ask one more question . Sen. Graham absolutely. Sen. Lee i have a question for professor miller. As a member of the World Health Organization, i would like to know first of all what duty china might have had to accurately report information to the World Health Organization , and related to that point, if china did in fact knowingly mislead the World Health Organization, under that agreement, what action can we expect the World Health Organization to hold china accountable . Prof. Miller senator lee, im sorry i wont be able to answer that question. Im not fully versed on the obligation states confront as part of their duties to the World Health Organization or their participation in the World Health Organization. I can say there is a spectrum of Public International law commitments to the United States but also china are responsible from fulfilling the range from Global Health concerns to Human Rights Concerns like the issues you raised, the security concerns, all at the International Law level, which could be implicated here as well. The details of obligations under the World Health Organization regime, im not confident to comment on. Prof. Keitner i would be happy to chime in if you would like, senator. Sen. Lee thats ok. Sen. Graham senator blumenthal. Sen. Blumenthal thank you , mr. Chairman. I wanted to express my appreciation to the chairman for the policy, but also his suggestion that if anything inappropriate occurred with the dismissal of United States attorney berman, that we should ask for further inquiry. I am going to suggest to the chairman respectfully that we should ask attorney general barr to appear before this committee. He promised, literally sitting there during his confirmation hearing in response to the questions from me that he would not fire United States attorney in the Southern District of new york. He promised that he would not dismiss that prosecutor for anything but some discernible and provable misconduct. In effect, he made that commitment. So i think he has raised very severe questions about his truthfulness under oath. And he was under oath in that proceeding. Sen. Graham senator blumenthal, i dont mean to interrupt can , you get me that from the record . I would appreciate that. Sen. Blumenthal i would be happy to, mr. German. In fact, i included in the letter i wrote to attorney general barr today asking him for an explanation in writing. I would be glad to provide it to the chairman, and i again appreciate his interest in this matter and his willingness to adhere to the blue slip policy. I want to say, the issue has been raised about a commission. I think you raised it, professor keitner. Actually, i proposed legislation to establish a commission, objective and independent, completely nonpartisan to look back and learn lessons. Because we have to learn lessons from the mistakes that were made. And frankly, the misconduct that may have occurred. And the chinese are far from blameless. Their concealment of the true magnitude of this pandemic no doubt contributed to the scope and scale of the loss. And at the same time, the administration downplayed the need for preparedness, in fact, fired the team that was responsible for a pandemic response. It dismissed early evidence about the magnitude of this insidious, deadly disease and it delayed use of the defense production act. It denied the need for testing , and masks, and gowns, and face masks, other kinds of preparedness. And vaccines and therapeutics. So there is a lot of blame to go around, but that kind of commission ought to be established at some point so that we can learn lessons. I want to say to the attorney general of mississippi, i certainly admire any attorney general who is willing to battle the odds in court, and my mind goes back to my own experience with attorneys general, a post i held for 20 years, in particular my joining the then attorney general in mississippi in a lawsuit against a Tobacco Company that everybody said could not be won. They gave us no chance in court, including then the United States department of justice, which would not join us in that lawsuit. So i encourage you to continue an uphill battle to vindicate the rights and losses of the people of mississippi and any other attorney general who joins you. And let me just ask you a couple of questions. I take it that you are not here, attorney general fitch, to say a change in the law is necessary for the success of your lawsuit, because you fit within the exception of the commercial activities law of the foreign sovereign immunity act. Thats correct, isnt it . A. G. Fitch thank you senator, it is. And we certainly would appreciate any additional avenues and tools to move forward. Thank you for those words. I mean i take all of our , litigation series. I am acting on behalf of all mississippians, and we are looking for justice and thats why i have this lawsuit against china. Thank you for the committee review. I think its beneficial, and i appreciate moving forward on that, but if we can hold them accountable now, thats what we exactly what should do. Sen. Blumenthal and you are not relying on some of the publish reports that i have seen including from the secretary of state implying that the coronavirus might have been produced in a laboratory in wuhan and allowed to escape by the chinese, thats not part of your claim, is it . A. G. Fitch no, my claim, i am proceeding on my lawsuit under the mississippi Consumer Protection act and mississippi antitrust act. Sen. Blumenthal well thats a good thing because i can tell you from my review of the intelligence here, and i think it has been acknowledged by most scientists, there is no evidence to support that kind of claim so far as i know, but that is not to say china does not bear some blame here. And i just want to read you some quotes from the president of the United States. On january 24 he said it will all work out well on behalf of worked out well. On behalf of the American People, i want to thank president xi. On january 27, he said, i just spoke to xi last night. It is a really tough situation but i think hes going to handle it, hes had handled it really well. Through midmarch, he continued to issue tweets and statements like the ones i just read. He began to change his tune in midmarch. But how do you deal with those quotes from the president , in effect thanking the chinese president for his great handling of this crisis . A. G. Fitch well senator, again, my pursuit is under Consumer Protection laws and under antitrust laws. Consumer Protection Laws and antitrust laws often hold these actors responsible. So for me on behalf of all mississippians, im considering what china did. I mean they silenced medical , professionals. They threatened them to alerting others, which meant all mississippians were not aware of what would happen. They censored social media. They nationalized the manufacturing and hoarding of ppe. That is a tremendous issue for me on what they did and how they took over this and caused us to have issues under the Consumer Protection act. And again they took advantage of us. They knew and they failed to warn us. Sen. Blumenthal thank you. I wantast point in to join senator cornyn. Because i was the lead democratic sponsor of the jasta it is certainly possible for us to amend this law to protect the American People and the people of mississippi and all the people who have suffered disastrous harm here, if in fact your theory, madame attorney general, needs that kind of support. And i know you can always amend your complaint. And just to say those lobbyists are still at it on jasta because they are preventing just treatment of the people who suffered, the families who suffered during 9 11, and i hope we as a committee will join together as many colleagues have in the past in continuing bipartisan support for those families. Sen. Graham thank you very much. Senator cruz. Sen. Cruz thank you, mr. Chairman, and thank you for holding this hearing on this exceptionally important topic. I believe the communist government of china bears enormous responsibility and culpability for this Global Pandemic we are seeing. Chinas conduct can be understood at two different phases. Number one, chinas conduct concerning the origin of this pandemic and number two, chinas conduct after the beginning of this outbreak. Lets talk about the origin. There are a lot of questions that have not yet been answered. What we do know is in wuhan, china where this pandemic began, there were not one but two state owned and statecontrolled laboratories that were both studying not just coronaviruses but coronaviruses derived from bats, from a species that is not found within 800 miles of wuhan, the same species of a bat that now the scientists tell us they believe this virus may have originated with. The senator from connecticut responded to that as some in the media responded by saying theres no evidence that this virus was created in a laboratory. I agree with you. I have heard no evidence to suggest it was created in a laboratory. But there is circumstantial evidence to conclude one or both of these laboratories were studying the virus, and that the virus may have accidentally escaped from those laboratories. One of those two labs was within a few hundred yards of the wet market where the first outbreak occurred. We also know that prior to this pandemic, there were multiple u. S. State Department Cables raising concerns that these labs had exceptionally shoddy security protocols and raising concerns specifically that because of their poor security, there was a real risk of a Global Pandemic originating from these labs. Now as i noted, we dont know that for sure. Part of the reason we dont know for sure is the Chinese Governments behavior after the outbreak was to go into these labs and destroy all their prior samples. Which i have to tell you, having litigated a lot of cases, when you see someone destroying evidence, and trying to hide the scientific record, it raises a pretty strong inference that the evidence they are destroying shows something they dont want people to know. The second phase of chinese culpability we do no more facts about which is their cover up. Regardless of whether this originated in nature or this was a naturally occurring virus that was being studied in a chinese lab that escaped accidentally, regardless of which origin is true, we know that the communist government of china actively covered up and silenced Early Intervention to stop this pandemic. There were heroic chinese physicians, whistleblowers who stood up and blew the whistle on this pandemic, who stood up and said, this is really dangerous. We need to stop it. And the Chinese Communist government arrested whistleblowers, they silenced punished them. And the Chinese Government behaved like any responsible had the Chinese Government behaved like any responsible government, had they come in, sent in Health Professionals to wuhan and quarantined the infected people, theres a real possibility this could have been contained as a regional outbreak rather than a Global Pandemic, but instead because of the lies of the Chinese Communist government because of the , censorship, because of the coverup, we have today over 474 ,000 people who have died worldwide. We have over 123,000 americans who have died. And the Chinese Communist government bears direct deathsibility for those and for the trillions of dollars of economic devastation that has flowed. Now this hearing is focusing on so what next. And my question for the judgment,is in your what is the best path forward to achieve two things, number one, a clear, objective, trustworthy accounting of chinas culpability . That accounting would, among other things, answer questions labs, were they studying this coronavirus . We know they were starting coronaviruses from bats. They refused to answer whether there were studying this virus. What is the best way to achieve an accounting, and number two, what is the best way to achieve accountability . We know they are responsible for the coverup. What is the best way to ensure that they are held accountable for the deaths and devastation that resulted from their misconduct . And if we can go through each of the witnesses, and we will start professor keitner, you can start us and we will go from there. Sen. Graham can i just amend your question and say what is the best way to deter future behavior . Sen. Cruz amen, lets make it a threepart question. Prof. Keitner thank you, senator cruz. I find myself agreeing wholeheartedly with virtually everything you said. But the available avenue of relief that we keep hoping for is not in u. S. Courts. I am a former trial lawyer. I used to work with some tobacco lawyers who were in the business before i was. I missed that opportunity. Sen. Cruz but if i can ask what is the best avenue . Prof. Keitner i teach civil procedure and evidence. We will not be able to get in a u. S. Court proceeding even if missouri antitrust law and consumer law applied to china, which it doesnt. Sen. Cruz i am going to try again to see if i can get you to answer my question about the best avenue. You are saying what you think isnt. Prof. Keitner correct. I feel like theres a false hope and a false conception of what a u. S. Proceeding would do and what a u. S. Proceeding would not do is get information. What an International Investigation would do is put sufficient pressure on china in combination with the sanctions we have already started to levy, in combination with intelligent and boots on the ground. If we can send Public Health experts back to china, where they were to begin with and then we pulled them out, as senator feinstein said, that will give us answers, and that is what will enable us to respond to the next pandemic the way we did to ebola. We led a response. Professor miller. Miller senator cruz, i think we should pursue as my colleague suggests, an International Independent commission, but i dont think it would exclude a robust inquiry by domestic institutions, a commission in the domestic space as well. I think those could operate in tandem. I am less pessimistic about the civil process ability to both set a narrative about what needs to be accomplished and develop some evidence, or at the very least, the scientific expertise we would need to discover the truth of this case, and i would add that combination of tools, a domestic commission, participation in the International Investigation, backed by civil litigation might be the kind of framework that would point toward the last part of your questions, bringing in the chairmans question, both accountability and a hope for preventing Something Like this from happening in the future. These commissions have to be backed by some Legal Mechanism. I would add not only the civil litigation possibility but Legal Mechanism of Public International law as well. I would like to see both investigation, but supported by the enforceability of a Legal Mechanism. Sen. Cruz general fitch. Gen. Fitch thank you. The strongest way to move forward is to go after china legally. What we also do is deter bad acts. Continued and similar bad acts. I am very much in favor of moving to a very strong legal posture in this regard to hold china accountable. Senator booker. Sen. Booker im sorry. I was told i was after hirono. Sen. Graham i apologize, i did it again. Sorry, senator booker. I apologize. Senator hirono. Sen. Hirono thank you. I would like to follow up about the question senator cruz asked about what would be the best way , for us to get to the independent way to determine the cause of this virus . I heard from obviously the er who explained that and the professor says we should have domestic commission, but i did not hear from attorney general fitch, that you still believe a lawsuit is the best way to proceed . Gen. Fitch thank you. I believe that is the strongest pathway we have moving forward, but we know this has affected everyone. Certainly a commission would be extremely important, but to move forward we need to hold them , accountable through legal actions, discovery, monetary alsoes, penalties, and deter actions. Hirono i understand about deterrence value of these lawsuits. On the other hand. It is not likely you will prevail in that lawsuit. Then i would say an independent panel would be a good way to determine what china was doing. Nobody sitting here is saying china is without fault, but we have to say that President Trump thanked president xi jinping on the way china handled the virus. China declared covid19 to be a Public Health emergency in january this year. I would like to ask the panel, when do you think the president s responsibility kicks in to deal with the healthcare care crisis in our own country . I will start with professor keitner. Prof. Keitner thank you. The causation question is very complex here. If there were an award, it would the intervening factors between fabric of the outbreak of the virus. Sen. Hirono i dont mean to interrupt, but my question is when does the president s , responsibility kick in regardless of what happens in , the lawsuit . The declaration of a Public Health emergency was in january of this year and when does the president s responsibility kick in . Prof. Keitner sorry. It kicks in prior to that, as soon as there were reports in our Intelligence Briefings that a new outbreak was emerging. Sen. Hirono attorney general . Fitch im focused on their actions. We move forward from the time we knew they were compromised and unaware of what was happening and then what was happening with ppe hoarding and the selling of substandard equipment to america, particularly mississippi. Sen. Hirono , professor miller, when does the administrations responsibility kick in once the Health Secretary declared there was a Health Emergency . Prof. Miller here i agree with my politics. I view this as a political yoution really when yo refer to the president s responsibility. It is a question of the president s political responsibility to people of the u. S. To act and if legislation was necessary, to trigger authority, it would be the president s responsibility to seek support for that legislation. As soon as the American Public was compromised, jeopardized or , or threatened by Something Like this, the president needs to act. Sen. Hirono that was before january. So attorney general fitch, i know in your complaint you say that china was engaging in unfair and deceptive trade practices relating to hoarding of necessary personal protective equipment and reselling substantive ppe to the rest of the road at inflated prices. Are are you in january, the Trump Administration turned down an offer from a u. S. Manufacturer to produce millions of n95 masks in america . This would be ppe. Were you aware of that . A. G. Fitch not about the president , but about chinas acts i was very aware of when it , affected mississippians. We knew when the fallacy began, the coverup, and the hoarding. Sen. Hirono the thing is when you claim your unfair practices, that is basically consumer law. That is basically antitrust law. You have to show somehow china was able to corner the market on ppe. If there is a u. S. Manufacturer perfectly capable of ofufacturing this kind equipment, i think you have a hard time making an antitrust claim there. So, i just have to wonder whether, ms. Attorney general, you think the president did what he should do in terms of his own response. I realize you are going after china. What about in your view, was the president s response to this virus, this pandemic, adequate in your view . A. G. Fitch as im proceeding along the lines in my lawsuit on the Consumer Protection act for mississippians and the mississippi antitrust act, we are moving forward in that regard. We can show china did engage in unfair and deceptive acts. Also under the antitrust rule we , are looking at how they are attempting to restrain freedom of trade of ppe and by hoarding it and not providing it to mississippians. It created a very unjust environment. Sen. Hirono ms. Attorney general, youre having a really hard time, i think. Theres a general consensus our own country could have done a lot more so that we dont see tens of millions of people unemployed. In mississippi also by the thousands. And over 100,000 people dying. I think theres enough blame to go around and as far as your lawsuit, i use to practice used to practice antitrust law myself and i think it would be difficult for you to show there is some sort of restraint on trade. Thank you very much. Sen. Cruz thank you. Senator hawley . Or excuse me, i apologize. Thank you, mr. Chairman. Sen. Cruz wait a minute. It is senator hawley. Im sorry. Sen. Hawley thank you. General fitch, thank you for being here and to all the witnesses for being here. I want to give you an opportunity to respond a little further to some of the questions you were being asked. Just being asked. You are being asked by my democrat colleagues that the United States and china are roughly equivalent bad actors when it comes to the coronavirus. Wow. That sounds a lot like the Chinese Communist Party Propaganda that has been shoved jammed down our throats for the last few months. It is really incredible. Is it your view that the chinese suppressed information about the nature of this disease . A. G. Fitch thank you, senator hawley. I do respectfully disagree with the senator because we do have a case and it is important we move forward with this case and i believe under armour mississippi laws, we will prevail. But if we dont act, we have been irresponsible on behalf of americans and mississippi. Thats why im bringing this suit and i think it will move forward and it is an important deterrent. Sen. Hawley absolutely. We know china lied about the origins of the virus. We know they lied about what they did and when. We know it was at least as early as december and did not inform the public. Did not inform their own public. They jailed doctors trying to blow the whistle. Lied to the World Health Organization, although they later colluded to the who to sweep it under the rug. I have to say i think your case is very strong, and as somebody who has been targeted by the chinese regime, and the Chinese Government threatened to sanction me personally and my state, the state of missouri im , proud of what youre doing and the fact that the state of missouri is right there with you. Suituri has also brought against the regime in beijing. I want to thank you for your leadership on this. Let me ask a little bit about your suit. The senator was touching on this earlier. You were brought suit under the commercial activity section to the foreign sovereignty immunity act. Have i got that right . A. G. Fitch yes. Thats correct. Sen. Hawley the commercial exception, and you made a good argument for it, i have to say, the courts usually construe that fairly narrowly. Is that fair to say . A. G. Fitch thats true, but we believe our action is in that exception. Sen. Hawley i do, too. I have to say i do, too. If congress were to take action, this is a bill i would propose that would make it very clear that states and individuals had an action in court, actionable case in court under the foreign sovereignty immunity to make sure theres no immunity for china in the circumstances, would you welcome that additional clarification for congress . A. G. Fitch absolutely. Any additional exceptions to would provide a broader avenue for states and individuals to seek justice and there is no reason to restrict. Thank you for continuing to pursue additional evidence. Sen. Hawley absolutely. My bill also states that states should have a right to pursue chinas role in spreading the coronavirus and gives our courts authorization to freeze chinese assets in this country in order to make sure the states and people they represent can get judgment. If and when you win. Would that be helpful for you to have that authority to attest those assets in order to get award damages . A. G. Fitch yes, senator. That would be extremely helpful to collect monetary damages in the civil panel. Sen. Hawley thank you. Mr. Miller, in the time that ive got remaining here thank , you for being here. I have enjoyed your testimony. Its my understanding from your testimony today and your previous work that part of the argument here is the prospect of state and private suits against china will help bring china to the negotiation table and create a form of leverage that is useful from an International Relations perspective. Do i have that right . Can you clarify for us . Prof. Miller i dont want to excuse or eliminate the possibility that these civil suits might generate some measure of justice for victims by way of civil remedy, but they would have the additional force of supplementing International Negotiations and International Law measures and weve seen , evidence of that, whether its suits against iran and settlements there. I expect the suits proceeding against saudi arabia for example, based on the atrocities of 9 11, will also have some effect in International Law negotiations, the diplomatic negotiations, and that will be true with respect to the east African Embassy bombings and those suits as well. I dont see why the civil log law remedy cant also be a contribution to those Public International law mechanisms. Sen. Hawley very good. Well said. Mr. Miller, i think that is very well said. I agree with you completely. Thank you, mr. Chairman. Sen. Graham thank you. Senator booker. Sen. Booker thank you very much, mr. Chairman. I would like to focus my questions to professor keitner. To make it easier, if you dont mind. I find it exciting there is so much bipartisan sentiment and agreement on how we know china has been one of the maligned forces on the planet in terms of their statesponsored espionage, their forcing, our companies to Share Technology and secrets, their corporate espionage, i can go on and on and on currency , manipulation. China is a bad actor threatening in so many ways our economy. Now i want to talk to you about them threatening our health. We know china is an authoritarian nation. It is a system in which the information flow is deeply restrictive. Theres no doubt china should have been transparent regarding the extremely dangerous nature of this virus and the urgency for a global response. Indeed, as early as november and december last year, there was evidence of the emergence of an atypical pneumonia linked to a wholesale market in china. In late december, members of the medical community were reprimanded in china by the state for speaking out against about the truth of what was happening as they try to put a chill on information emerging. It was clear that chinas actions had a horrific and lethal consequence for the u. S. And the rest of the world. But the problems go deeper than chinas Immediate Response to covid19 itself. Back in april, i led a bipartisan letter with chairman Lindsey Graham and many of my colleagues calling for an immediate global ban on wet wildlife markets, socalled wet markets, and the international. Trade of wildlife. This is the kind of market where the covid19 outbreak is believed to have originated. As you know and as other colleagues have brought a. Vendors, shoppers, and live and dead species all jammed in close quarters and the markets are therefore ideal and terrible places for diseases to jump, oonautic diseases, to jump to humans. Professor keitner, some questions. What legislative tools can congress use to push for the global ban on wildlife markets and the International Wildlife trade . The second part of this question is earlier this year, it china announced it was banning the trade and consumption of wild animals, but a number of analyses show chinas band has a significant amount of loopholes, including the exception for trading wildlife for medical purposes, socalled medical purposes. What tools again can congress use to push china and other countries to impose strong bans on wildlife markets to really save potential pandemics in the future . Prof. Keitner thank you. I commend you and senator graham for that letter and the International Forum to which you addressed that letter, the idea that we need international cooperation. If the United States were willing to take a step forward and make whatever agreed commitments countries signed up for, to make them enforceable, which is something that we are often hesitant to do because what is good for the goose is good for the gander, but if we were able to negotiate the terms of the treaty and make those enforceable, we can shame china and congress can take a leading role, particularly through your appropriations power, and ensure sufficient funding went through the bodies administering in that regime. Sen. Booker thank you so much. And its problematic because we see this cycle happening, the. Sars pandemic in 2003, there was a temporary ban that china later rolled back this is a time we should be leading a global effort against this. The last question is, its clear china has been downplaying and operating the threat posed by covid19 that has had worldwide deadly impact, but we have to also acknowledge that was not the only reason we see death rates in our country that are so staggeringly high, especially relative to a lot of our peer nations. The World Health Organization in january declared covid19 to be a Public Health emergency of international concern, but it really took six weeks for us as a nation to declare it a national emergency, six weeks for the Trump Administration to act. The first case for covid19 in of covid19 in the United States was january 21. Taiwans first reported case was actually on the exact same day. South korea was one day earlier. All three countries had the same information regarding genetic characteristics and lethality of the virus. Taiwan has lost seven people to covid19. South korea, 281. This country has now passed 122,000 people. I know the committee is considering proposals to amend the foreign sovereignty immunities act to enable covid related civil rights lawsuit to proceed in foreign nations but , you wrote in your testimony something we should highlight, which was the catalog of the shortcomings in u. S. , local, state, and federal responses to the threat that was reportedly highlighted by the Intelligence Committee in the president s daily briefings in january brings up complications. I want you to put it on the record why the approach guidelines in these is misguided because it has to be subject to discovery and errors by the Trump Administration and other governmental entities. Sovereignty is based on the idea of reciprocity. We respect the principal of sovereign immunity in our courts and in return expect to see them in other countries. Doesnt this dredge up a lot of complications and vulnerabilities to mistakes that were made by the Trump Administration . Prof. Keitner thank you, senator. On the specific point of discovery because i know our time is short i will say of course discovery is a twoway street and information is much more readily available from u. S. Sources, so that would absolutely come out in court if we ever got to that point, with the only exception of of course classified information which would be another problem for the plaintiffs as we have seen in the ongoing 9 11 litigation. Sen. Booker thank you very much. Sen. Graham thank you. Senator ernst. Sen. Ernst thank you. In response to that as well, hindsight is always 20 20. It is always 20 20. Faced with a pandemic, i think this administration did an admirable job in trying to do the absolute best they can to protect our population, when the Chinese Government was not forthcoming with information on how to protect ourselves. I think it was the Chinese Government. I know this administration faced some pretty serious criticism very early on in the pandemic for not allowing people to travel from affected countries to our country. So many things were brought up about that period of time. A huge amount of criticism heaped on this administration. Yet it was the right thing to do. Again, hindsight is 2020. Now we have those questioning , why didnt he do this sooner . Well, maybe because of all the criticism placed on the administration for trying to do the right thing in the first place. A study published in march out of the university of southampton in the United Kingdom indicated that if those chinese authorities had acted three weeks earlier than they did the , number of coronavirus cases could have been reduced by 95 and its geographic spread would have been severely limited. Lets just think about that a little bit. We know china vastly downplayed again the emergence of the coronavirus as early as the fall of 2019. If china had acted just three weeks earlier, tens of thousands of american lives could have been saved and potentially millions of americans could still be going to work. The Chinese Governments lying and obstructionism hasnt just impacted our ability to respond to the virus. It has also escalated to the level of blatant theft with a goal to erode u. S. Military leadership. In april, the leader of u. S. Pay comp pacific command, admiral davidson, he believed china was stealing technology and just about every domain and trying to use it to their advantage. This is an addition to ongoing Cyber Operations targeting our intellectual property. China has absolutely no respect for the law. They will do anything they can to get a leg up. Whether thats stealing sensitive military secrets or letting people die to avoid taking responsibility for the spread of covid19. So i want to see and what i believe a majority of iowans want to see is for china to pay for this deadly obstruction, to allow the Chinese Communist party to go unpunished would be a travesty and will result in the cycle of lying to go on. Thank you, mr. Chairman, for having this hearing and attempting to tackle the issue. Im also glad that throughout congress we are having a conversation about how to best bring the manufacturing of critical medical supplies home. I am working on legislation on that front and look forward to ensuring that if this happens again, and it will im sure if this Chinese Communist Party Continues on like they have that , we are not subject to the whims of china. Start myike to question with attorney general fitch. Thank you so much, attorney general for being with us today , and being the first woman to serve as a. G. Of mississippi. Thank you for being a strong role model. Attorney general mississippi was , one of the first states to file suit against china due to their failure to inform us about covid19. We have heard a lot about retaliation lawsuits regarding covid19, and ive even heard really insane statements coming out that their legislature would be willing to allow chinese actors to of course then turn around and sue americans. Can you talk to me a little bit about retaliation china might have against your state, and if so, what can congress do to help alleviate that concern . A. G. Fitch thank you. I appreciate that. Its an honor to serve as the first woman attorney general and represent all mississippians. Certainly, china is known for repetitive bad action, and we have to hold them accountable. Certainly, they will come after all of us who are looking to do that. So we are prepared and if we continue to hold them accountable, if we go for monetary damages and Civil Penalties, they will stop and it will be a sign to all nations we will not tolerate that on behalf of americans, mississippians, everyone across our states. I understand there is a possibility, but we have to stand strong and united. Sen. Ernst yes. Thank you so much, attorney general. My time is expired. China has been a darn bad actor for a long time and i think americans are sick and tired of taking it in the shorts from china. Its about time we stand up for ourselves and let them know we will not tolerate it any longer. Thank you, mr. Chair. Sen. Graham i dont like chinas chances in mississippi given what i have heard. Senator blackburn. thank you, than blackburn mr. Chairman. Thank you to the witnesses for being here. Interesting to hear this conversation. I think we all know that this year, china, this was in february, after the wall street journal put an article up titled china is the real six expelledia, china three journalists. Then you have the fact that we we talked tot, as activists and people on the ground in china, they knew they had this pandemic on their hands for 51 days. They chose not to take action. What did they do . They were buying up and hoarding ppe. As you heard earlier from others, they were locking people in their apartments. They were leaving them to die. They had 3000 cases. Before they said anything, they would not let you travel in china, but you could get on a plane in wuhan and go anywhere else on the face of the earth. And they were fine with that. So you have to ask yourself, why were they doing this . There has been talk about legislation. And i am so grateful to the chairman for having the hearing on this today. And we referenced what we did in 2016 what we made that exception for the 3000 families that were adversely impacted. On lossoflife, 3000 lives, 9 11. It allowed the september 11 families to seek that compensation from saudi arabia. Think about this. As of this week, we have 122,000 lives that have been lost in this country. And why . Because of this virus. As the chairman said, we dont know if it came from the lab, if it came from the wet market. We do know that it came from wuhan, china. So this is why my colleagues have joined me on the stop covid act, that would again provide amending the foreign sovereign immunity act and give americans their day in court. All, i. Fitch, first of want to thank you for stepping up and doing this. And i want to ask you just a couple of things. Other states are going to join you in this lawsuit . And how would state attorneys people,and the american their citizens, benefit from having another tool in the toolbox so that they could seek that compensation from the Chinese Communist party . A. G. Fitch thank you, senator. We have to hold them accountable. We have to be very strong in our actions. I thank you. We have to hold them accountable and be very strong in our actions. We have already sent a letter of 21 attorneys general requesting continued action, legislation to give us more tools to proceed. Its certainly about monitor compensation and civil Civil Penalties but it truly goes back to the deterrent. China needs to know that america, were going to use every tool at our disposal and the more youre able to provide through legislation and exceptions is extremely critical and helps us to hold them accountable. Were not going to let them wreak havoc on our people like they have with this pandemic. I think the a. G. Is going to move forward with that. This is a very Malicious Behavior on behalf of china. We have to, again, look at every avenue we can and let them be on notice that they cannot do harm towles. There are 21 attorneys general that are looking at seeking some type of restitution is, what what that what you just said . Thats correct, senator. We have letters requesting additional legislation to provide ways to go after and hold china accountable. Ok, that is helpful to us and we hope by getting the stop covid act passed that we can provide another tool in the tool box for that. Professor miller, i want to talk with you just a minute about the china responsibility and i appreciate your article on haneys responsibility for the Global Pandemic and you discuss how a famous 1920s International Law case has great implications for Holding China accountable today and in that case, canada paid reparations to the u. S. After toxins from a canadian zinc smelter destroyed parts of the pacific northwest. You wrote, and im quoting if canada had Good Environmental laws in place the smelter wont be polluting and wouldnt have done harm in the u. S. Lykes likewise,ment if china had maintained aned a adequate food safety regulatory regime, the harm wouldnt have been spread. So talk a minute about how chinese citizens would benefit by our Holding China accountable for what they have done, not only to the u. S. But to other nations. Yes, senator, thank you. The arguments that im making point to, and frankly this draws on the questions of senator booker, the arguments im making is that the sale of wildlife in china has been a repeated cause of the emergence of these environmental out of bounds and potentially eventual pandemics but to talk about that is really to talk about a regulatory failure on the part of china to maintain an adequate and effective food safety regulatory regime. This is regulatory failure, just as it was for canada to maintain a proper environmental and pollution abatement regime. If thats the case, then its not only american citizens that would benefit from some accountability with respect to a legg regulatory failure live like that but in the very first instance, its going to be chinese citizens that will be the benefitries of our efforts here. That is, theyre first in line to exposure to those out of bounds and as weve heard repeatedly today from all sides, that theyre at great risk of Human Rights Violations should an outbreak take place and the regime there seek to try to control it. And in this sense the attempt to hold china accountable for its regulatory failure, neglect, speaks first and foremost to the interests of chinese citizens. Thank you, i think our time is would you like to finish up, senator blackburn . No, thank you, mr. Chairman. Thank you for your work. Thank you all to the witnesses. I appreciate what you brought to the table here. Were not a court of law so were not going to decide the case and we can all have our own opinions about whos to blame in terms of the next election cycle. My goal is to put more tools on the table to make sure that china understands enough is enough and what weve done in the past hasnt work sod its been a very helpful hearing. Well hold the record open for the appropriate period of time for the additional comments and questions and the hearing is adjourned. The senator from mississippi, you were great. Thank you very much. Thank you all. Thank you. [captions Copyright National cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] cspans washington journal. Every day were taking your calls live on the air of the news of the day and discussing policy issues that impact you. Coming up monday morning, the American Action forums isabel soto on the coronaviruss impact on child care and Daniel Bernstein talks about the rope of the Strategic National stockpile in a pandemic response. Watch cspans washington journal live at 7 00 eastern monday northern morning and join the discussion with your phone calls, facebook comments, Text Messages and tweets. A largely party line vote, the house approved legislation friday