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Statement Of Senator Patrick Leahy
The Anti-Atrocity
Alien Deportation Act
March 26, 2003
Mr. LEAHY.
I am pleased today to introduce the Anti-Atrocity Alien Deportation
Act of 2003, a bill intended to close loopholes in our immigration
laws that have allowed war criminals and human rights abusers to enter
and remain in this country. Senator Hatch has joined me in offering
this bill, along with Senator Lieberman and Senator Levin. In the
other body, Representatives Mark Foley and Gary Ackerman today
introduce identical legislation.
Our bill would
update the charter of the Justice Department’s Office of Special
Investigations (OSI), which for years has investigated and has sought
justice in the cases of Nazi war criminals who have sought refuge on
our shores. It is time to renew the OSI charter to take into account
the new generations of war criminals who try to escape justice by
living among us.
This bill closely
mirrors legislation I had offered that was reported unanimously by the
Senate Judiciary Committee last year, and which passed the Senate
during the 106th Congress. I hope and expect that, with
the help of Senator Hatch and others, this bill will become law during
this Congress.
As we introduce
this bill, our armed forces are fighting to replace an Iraqi regime
that has been marked by its utter disregard for the human rights of
its people. We must not fight this war on the one hand, and let
human rights abusers from around the world enter our nation with
impunity on the other.
When they learn
it is so, the American people are appalled to learn that our country
has become a safe haven for those who exercised power in foreign
countries to terrorize, rape, murder and torture innocent civilians.
A report issued last year by Amnesty International claims that nearly
150 alleged human rights abusers have been identified living here and
warns that this number may be as high as 1,000. Meanwhile, an article
in the New York Review of Books stated that “hundreds, if not
thousands, of foreign nationals who have been plausibly accused of the
most heinous human rights crimes, including torture and assassination,
either have lived or still live freely in the U.S.” [William
Schulz, “The Torturers Among Us,”
New York Review,
p. 22, April 25, 2002.]
Legislative
Background. I
introduced a similar version of this bill on May 10, 2001,
and the Judiciary Committee reported the bill with a Leahy-Hatch
managers’ amendment on April
18, 2002. Unfortunately, the bill was subject to an anonymous hold on
the Senate floor.
I introduced
similar legislation in the 106th Congress and was pleased when the
proposal garnered bipartisan support in both the House and the
Senate. The legislation passed the Senate on November 5, 1999, as
part of S. 1754, the Hatch-Leahy “Denying Safe Havens to International
and War Criminals Act,” but unfortunately it was not acted on by the
House before the end of the 106th Congress. Nevertheless,
Representatives Foley and Ackerman have provided consistent leadership
in moving this legislation in the House, by introducing the measure in
the l06th Congress as H.R.2642 and H.R.3058, in the 107th Congress, as
H.R. 1449, and again today.
The
Problem. The problem
of human rights abusers seeking and obtaining refuge in this country
is real, and requires an effective response with the legal and
enforcement changes proposed in this legislation.
For example,
three Ethiopian refugees proved in an American court that Kelbessa
Negewo, a former senior government official in the military
dictatorship that ruled Ethiopia in the 1970s, engaged in numerous
acts of torture and human rights abuses against them when they lived
in that country. Negewo oversaw and participated in the torture of
opposition political figures in Ethiopia, and then moved to the United
States only to work at the same Atlanta hotel as one of his own
victims. The court’s descriptions of the abuse are chilling, and
included whipping a naked woman with a wire for hours and threatening
her with death in the presence of several men. The court’s award of
compensatory and punitive damages in the amount of $1.5 million to the
plaintiffs was subsequently affirmed by an appellate court. [See
Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.
1996).] Yet during the pendency of his appeal of the civil verdict,
the Immigration and Naturalization Service granted Negewo
citizenship.
This situation is
an affront both to the foreign victims of torture who fled here to
escape their persecutors, and to the American victims of such torture
and their families. As Professor William Aceves of California Western
School of Law has noted, this case reveals “a glaring and troubling
limitation in current immigration law and practice. This case is not
unique. Other aliens who have committed gross human rights violations
have also gained entry into the United States and been granted
immigration relief.” [20
Mich. J. Int’l.L. at 657.]
Indeed, another
case actually involves American victims. In 1980, four American
churchwomen were raped and murdered by the Salvadoran National Guard.
Two former Salvadoran government officials – who allegedly covered up
the murders – currently reside in Florida.
Unfortunately,
criminals who wielded machetes and guns against innocent civilians in
countries like Haiti, Chile, Yugoslavia and Rwanda have been able to
gain entry to the United States through the same doors that we have
opened to deserving refugees. We need to lock that door to human
rights abusers who seek a safe haven in the United States. To those
human rights abusers who are already here, we should promptly show
them the door out.
We have
unwittingly sheltered the oppressors along with the oppressed for too
long. We should not let this situation continue. We waited too long
after World War II to focus prosecutorial resources and attention on
Nazi war criminals who entered this country on false pretenses, or
worse, with the collusion of American intelligence agencies.
Thousands of declassified CIA documents were made public last year, as
a result of the Nazi War Crimes Disclosure Act that I was proud to
help enact in 1998. These documents made clear the extent to which
the United States relied upon and helped Nazi war criminals. As Eli
M. Rosenbaum, the head of the Justice Department’s Office of Special
Investigations, noted at the time, “These files demonstrate that the
real winners of the Cold War were Nazi criminals.” We should not
repeat that mistake for other aliens who engaged in human rights
abuses before coming to the United States. We need to focus the
attention of our law enforcement investigators to prosecute and deport
those who have committed atrocities abroad and who now enjoy safe
harbor in the United States.
When I first
introduced this bill, the Rutland Daily Herald in Vermont
editorialized that:
“For the U.S. commitment to human
rights to mean anything, U.S. policies must be strong and consistent.
It is not enough to denounce war crimes in Bosnia and Kosovo or
elsewhere and then wink as the perpetrators of torture and mass murder
slip across the border to find a home in America.” (October 31,
1999)
The Clinton
Administration recognized the deficiencies in our laws. One Clinton
Administration witness testified in February 2000 that:
“The Department of Justice supports
efforts to enhance our ability to remove individuals who have
committed acts of torture abroad. The department also recognizes,
however, that our current immigration laws do not provide strong
enough bars for human rights abusers. . . . Right now, only three
types of human rights abuse could prevent someone from entering or
remaining in the United States. The types of prohibited conduct
include: (1) genocide; (2) particularly severe violations of religious
freedom; and (3) Nazi persecutions. Even these types of conduct are
narrowly defined.”
[Hearing on H.R. 3058,
“Anti-Atrocity Alien Deportation Act,” before the Subcomm. on
Immigration and Claims of the House Comm. On the Judiciary, 106th
Cong., 2d Sess., Feb. 17, 2000 (Statement of James E. Costello,
Associate Deputy Attorney General).]
The Bill.
The Anti-Atrocity Alien Deportation Act would provide a stronger bar
to human rights abusers and close loopholes in our current laws. The
Immigration and Nationality Act (INA) currently provides that (i)
participants in Nazi persecutions during the time period from March
23, 1933 to May 8, 1945, (ii) aliens who engaged in genocide, and
(iii) aliens who committed particularly severe violations of religious
freedom, are both inadmissable to the United States and removable.
[See 8 U.S.C.§1182(a)(2)(G) & (3)(E) and §1227(a)(4)(D).] This
bill would expand the grounds for inadmissibility and deportation to:
(1) add new bars for aliens who have engaged in acts, outside the
United States, of “torture” and “extrajudicial killing,” and (2)
remove limitations on the current bases for “genocide” and
“particularly severe violations of religious freedom.”
The definitions
for the new bases of “torture” and “extrajudicial killing” are derived
from the Torture Victim Protection Act, which implemented the United
Nations’ “Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.” These definitions are therefore
already sanctioned by the Congress. The bill incorporates the
definition of “torture” codified in the federal criminal code, 18
U.S.C. § 2340, which prohibits:
“an act committed by a person acting
under the color of law specifically intended to inflict severe
physical or mental pain or suffering (other than pain or suffering
incidental to lawful sanctions) upon another person within his custody
or physical control.” [18 U.S.C. § 2340(1).]
“Severe mental
pain or suffering” is further defined to mean:
“prolonged mental harm caused by or
resulting from (A) the intentional infliction or threatened infliction
of severe physical pain or suffering; (B) the administration or
application, or threatened administration or application, of
mind-altering substances or other procedures calculated to disrupt
profoundly the senses or personality; and (C) the threat of imminent
death; or (D) the threat that another person will imminently be
subjected to death, severe physical pain or suffering, or the
administration or application of mind-altering substances or other
procedures calculated to disrupt profoundly the senses or
personality.” [18 U.S.C. § 2340(2).]
The Torture
Victim Protection Act also included a definition for “extrajudicial
killing.” Specifically, this law establishes civil liability for
wrongful death against any person “who, under actual or apparent
authority, or color of law, of any foreign nation . . . subjects an
individual to extrajudicial killing,” which is defined to mean “a
deliberated killing not authorized by a previous judgment pronounced
by a regularly constituted court affording all the judicial guarantees
which are recognized as indispensable by civilized peoples. This
term, however, does not include any such killing that, under
international law, is lawfully carried out under the authority of a
foreign nation.”
The bill would
not only add the new grounds for inadmissibility and deportation, it
would expand two of the current grounds. First, the current bar to
aliens who have “engaged in genocide” defines that term by reference
to the “genocide” definition in the Convention on the Prevention and
Punishment of the Crime of Genocide. [8 U.S.C. 1182(a)(3)(E)(ii).]
For clarity and consistency, the bill would substitute instead the
definition in the federal criminal code, 18 U.S.C. § 1091(a), which
was adopted pursuant to the U.S. obligations under the Genocide
Convention. The bill would also broaden the reach of the provision to
apply not only to those who “engaged in genocide,” as in current law,
but also to cover any alien who has ordered, incited, assisted or
otherwise participated in genocide. This broader scope will ensure
that the genocide provision addresses a more appropriate range of
levels of complicity.
Second, the
current bar to aliens who have committed “particularly severe
violations of religious freedom,” as defined in the International
Religious Freedom Act of 1998 (IRFA), limits its application to
foreign government officials who engaged in such conduct within the
last 24 months, and also bars from admission the individual's spouse
and children, if any. This bill would delete the reference to
prohibited conduct occurring within a 24-month period since this
limitation is not consistent with the strong stance of the United
States to promote religious freedom throughout the world. As
Professor Aceves has written:
“This provision is unduly restrictive.
. . The 24-month time limitation for this prohibition is also
unnecessary. A perpetrator of human rights atrocities should not be
able to seek absolution by merely waiting two years after the
commission of these acts.” [William J. Aceves, supra, 20
Mich. J. Int’l L.,
at 683.]
In addition, the
bill would remove the current bar to admission for the spouse or
children of a violator of religious freedom. This is a serious
sanction that should not apply to individuals because of familial
relationships that are beyond their control. The purpose of these
amendments is to make those who have participated in atrocities
accountable for their actions. That purpose is not served by holding
the family members of such individuals accountable for the offensive
conduct over which they had no control.
Under current
law, most aliens who are inadmissible may receive a waiver under
section 212(d)(3) of the INA to enter the nation as a nonimmigrant,
where the Secretary of State recommends it and the Attorney General
approves. Participants in Nazi persecutions or genocide, however, are
not eligible for such a waiver. Our bill retains that provision. It
does not, however, ban waivers for those who commit acts of torture or
extrajudicial killings. I would hope that such waivers are used
sparingly and only under the most compelling of circumstances.
Of course,
changing the law to address the problem of human rights abusers
seeking entry and remaining in the United States is only part of the
solution. We also need effective enforcement. As one expert noted:
“[s]trong institutional mechanisms
must be established to implement this proposed legislation. At
present, there does not appear to be any agency within the Department
of Justice with the specific mandate of identifying, investigating and
prosecuting modern day perpetrators of human rights atrocities. The
importance of establishing a separate agency for this function can be
seen in the experiences of the Office of Special Investigations.” 20
Mich. J. Int’l L.,
at 689.
Our country has
long provided the template and moral leadership for dealing with Nazi
war criminals. The Justice Department’s specialized unit, OSI, which
was created to hunt down, prosecute and remove Nazi war criminals who
had slipped into the United States among their victims under the
Displaced Persons Act, is an example of effective enforcement. Since
OSI was created in 1979, more than 60 Nazi persecutors have been
stripped of U.S. citizenship, almost 50 such individuals have been
removed from the United States,
and more than 150 have been denied entry.
OSI was created
almost 35 years after the end of World War II and it remains
authorized only to track Nazi war criminals. Specifically, when
Attorney General Civiletti, by a 1979 Attorney General order,
established OSI within the Criminal Division of the Department of
Justice, that office was directed to conduct all “investigative and
litigation activities involving individuals, who prior to and during
World War II, under the supervision of or in association with the Nazi
government of Germany, its allies, and other affiliated governments,
are alleged to have ordered, incited, assisted, or otherwise
participated in the persecution of any person because of race,
religion, national origin, or political opinion.” (Attorney Gen. Order
No. 851-79). The OSI’s mission continues to be limited by that
Attorney General Order.
I believe it is
time to reward the tremendous work that OSI has done by expanding its
mission to ensure effective enforcement against war criminals of all
stripes.
Little is being
done about the new generation of international human rights abusers
and war criminals living among us, and these delays are costly. As any
prosecutor knows instinctively, such delays make documentary and
testimonial evidence more difficult to obtain. Stale cases are the
hardest to make. We should not repeat the mistake of waiting decades
before tracking down war criminals and human rights abusers who have
settled in this country. War criminals should find no sanctuary in
loopholes in our current immigration policies and enforcement, and
should never come to believe that they will find safe harbor in the
United States.
The Anti-Atrocity
Alien Deportation Act would amend the INA, 8 U.S.C. § 1103, by
directing the Attorney General to establish an Office of Special
Investigations (OSI) within the Department of Justice with
authorization to denaturalize any alien who has participated in Nazi
persecution, torture, extrajudicial killing or genocide abroad. Not
only would the bill provide statutory authorization for OSI, it would
also expand its jurisdiction to deal with any alien who participated
in torture, extrajudicial killing and genocide abroad – not just
Nazis.
The success of
OSI in hunting Nazi war criminals demonstrates the effectiveness of
centralized resources and expertise in these cases. The knowledge of
the people, politics and pathologies of particular regimes engaged in
genocide and human rights abuses is often necessary for effective
prosecutions of these cases and would best be accomplished by the
concentrated efforts of a single office, rather than in piecemeal
litigation around the country or in offices that have more diverse
missions.
These are the
sound policy and practical reasons that experts in this area recommend
that the United States “establish an office in the Justice Department
similar to the one that has tracked Nazi war criminals, with an
exclusive mandate to carry out the task of investigation [of suspected
human rights abusers].” [William Schulz, supra,
at p. 24.]
I appreciate that
this part of the legislation has in the past proven controversial
within the Department of Justice, but others have concurred in my
judgment that the OSI is an appropriate component of the Department to
address the new responsibilities proposed in this bill. Professor
Aceves, who has studied these matters extensively, has concluded that
the OSI’s “methodology for pursuing Nazi war criminals can be applied
with equal rigor to other perpetrators of human rights violations. As
the number of Nazi war criminals inevitably declines, the OSI can
begin to enforce U.S.
immigration laws against perpetrators of genocide and other gross
violations of human rights.” 20
Mich. J. Int’l. 657.
Unquestionably,
the need to bring Nazi war criminals to justice remains a matter of
great importance. Funds would not be diverted from the OSI’s current
mission – instead, additional resources are authorized in the bill to
cover the costs of the Office’s expanded duties.
Significantly,
the bill further directs the Attorney General, in determining what
action to take against a human rights abuser seeking entry into or
found within the United States, to consider whether a prosecution
should be brought under U.S. law or whether the alien should be
deported to a country willing to undertake such a prosecution.
Despite ratifying the Convention Against Torture in 1994 and adopting
a new law making torture anywhere in the world a crime, federal law
enforcement has not used this authority. In fact, one recent observer
noted that “the US has never prosecuted a suspected torturer; nor has
it ever extradited one under the Convention Against Torture, although
it has surrendered one person to the International Criminal Tribunal
for Rwanda.” [William Schulz, supra, at p. 23 -
24.]
As one human
rights expert has noted:
“The justifiable outrage felt by many
when it is discovered that serious human rights abusers have found
their way into the United States may lead well-meaning people to call
for their immediate expulsion. Such individuals certainly should not
be enjoying the good life America has to offer. But when we ask the
question ‘where should they be?’ the answer is clear: they should be
in the dock. That is the essence of accountability, and it should be
the central goal of any scheme to penalize human rights abusers.”
[Hearing on H.R. 5238, “Serious
Human Rights Abusers Accountability Act,” before the Subcomm. on
Immigration and Claims of the House Comm. On the Judiciary, 106th
Cong., 2d Sess., Sept. 28, 2000 (Statement of Elisa Massimino,
Director, Washington Office, Lawyers Committee For Human Rights).]
Finally, the bill
directs the Attorney General to report to the Judiciary Committees of
the Senate and House on implementation of the new requirements in the
bill, including procedures for referral of matters to the OSI, any
revisions made to immigration forms to reflect amendments made by the
bill, and the procedures developed, with adequate due process
protection, to obtain sufficient evidence and determine whether an
alien is deemed inadmissible under the bill.
I urge my
colleagues in the Senate again to give their approval to this bill,
and for the House to help us finally make it law. I ask unanimous
consent that the legislation be printed in the Record at the
conclusion of my remarks.
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