[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
IMMIGRATION RELIEF UNDER THE CONVENTION AGAINST TORTURE FOR SERIOUS
CRIMINALS AND HUMAN RIGHTS VIOLATORS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
BORDER SECURITY, AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
JULY 11, 2003
__________
Serial No. 34
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
88-220 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Immigration, Border Security, and Claims
JOHN N. HOSTETTLER, Indiana, Chairman
JEFF FLAKE, Arizona SHEILA JACKSON LEE, Texas
MARSHA BLACKBURN, Tennessee LINDA T. SANCHEZ, California
LAMAR SMITH, Texas ZOE LOFGREN, California
ELTON GALLEGLY, California HOWARD L. BERMAN, California
CHRIS CANNON, Utah JOHN CONYERS, Jr., Michigan
STEVE KING, Iowa
MELISSA A. HART, Pennsylvania
George Fishman, Chief Counsel
Lora Ries, Counsel
Art Arthur, Full Committee Counsel
Cindy Blackston, Professional Staff
Nolan Rappaport, Minority Counsel
C O N T E N T S
----------
JULY 11, 2003
OPENING STATEMENT
Page
The Honorable John N. Hostettler, a Representative in Congress
From the State of Indiana, and Chairman, Subcommittee on
Immigration, Border Security, and Claims....................... 1
The Honorable Sheila Jackson Lee, a Representative in Congress
From the State of Texas, and Ranking Member, Subcommittee on
Immigration, Border Security, and Claims....................... 3
The Honorable Steve King, a Representative in Congress From the
State of Iowa.................................................. 5
WITNESSES
Mr. C. Stewart Verdery, Assistant Secretary for Policy and
Planning, Border and Transportation Security Directorate
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Mr. Eli Rosenbaum, Director, Office of Special Investigations,
U.S. Department of Justice
Oral Testimony................................................. 14
Prepared Statement............................................. 16
Mr. Dan Stein, Executive Director, The Federation for American
Immigration Reform
Oral Testimony................................................. 18
Prepared Statement............................................. 20
Ms. Regina Germain, Georgetown University Law Center
Oral Testimony................................................. 24
Prepared Statement............................................. 26
APPENDIX
Material Submitted for the Hearing Record
Prepared statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas, and Ranking
Member, Subcommittee on Immigration, Border Security, and
Claims......................................................... 45
Immigration Case: Yousef Hamadi (redacted)....................... 46
Prepared statement of the Honorable Richard Krieger, President,
International Education Missions, Inc.......................... 54
Prepared statement of Morton Sklar, Executive Director, World
Organization Against Torture................................... 57
Prepared statement of Susan Benesch, Refugee Advocate, Amnesty
International USA.............................................. 60
IMMIGRATION RELIEF UNDER THE CONVENTION AGAINST TORTURE FOR SERIOUS
CRIMINALS AND HUMAN RIGHTS VIOLATORS
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FRIDAY, JULY 11, 2003
House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 9 a.m., in Room
2237, Rayburn House Office Building, Hon. John Hostettler
(Chair of the Subcommittee) presiding.
Mr. Hostettler. The Subcommittee will come to order.
The United States signed the Convention Against Torture and
other cruel, inhuman, or degrading treatment or punishment in
April 1988, and the Torture Convention was forwarded to the
U.S. Senate for ratification, which occurred in October 1990.
However, portions of the Convention Against Torture, or CAT,
including the Article 3, the so-called ``nonrefoulement''
provision, were not self-executing.
The implementing legislation became law in October 1998.
The Justice Department's regulations, which created immigration
relief under the convention, took effect in March 1999. With
the new form of relief from deportation available in March
1999, many aliens who had exhausted and were ineligible for all
other forms of deportation relief filed motions to reopen or
remand their cases so that they could now claim that they would
be tortured upon return to their country, and therefore could
not be deported.
From March 1999 through August 2002, the Justice Department
adjudicated 53,471 alien applications for relief under the
Convention Against Torture; 53,471 adjudications.
Certainly a large number of criminal and illegal aliens are
claiming they will be subject to torture. Only 1,741 aliens
were granted CAT relief by immigration judges during those 3\1/
2\ years. Clearly many aliens are filing meritless claims and
are using this international treaty as yet another immigration
delay tactic to stay here in the U.S.
What is troubling is that 683 criminal aliens received such
relief from immigration judges--aliens who have been barred
from asylum and withholding of removal. This includes two
murderers that we know of who killed a spectator at a Gambian
soccer game and one who is implicated in a mob-related deadly
shoot-out in Uzbekistan.
Given the 2001 Supreme Court Zadvydas v. Davis decision
stating aliens whose countries will not take them back cannot
be detained indefinitely, the Department of Homeland Security,
or DHS, has decided that it must eventually release these
aliens back onto the streets. DHS statistics indicate that
approximately 500 criminal aliens have been released into
American communities because of Zadvydas. This includes the
Uzbekistan case.
Some, including the State Department, argue that we cannot
bar serious criminals and human rights violators from CAT
relief in the immigration context, because we would be
violating the convention. I argue that we already are violating
the convention. The convention contains 33 articles. Most of
them state that a party to the convention shall not torture,
and if a torturer is residing in a party country, the country
is supposed to investigate, detain, prosecute, and extradite
the torturer, if applicable, and possibly compensate victims.
We are not doing any of this. Known foreign torturers are
living in our midst, untouched. Nationals from Haiti, Somalia,
and other countries with former repressive regimes identify
past persecutors and torturers from their country in their
American neighborhoods, shocked, and rightly so, that these bad
actors live so freely in the U.S..
The Justice Department is not detaining these people,
investigating them criminally, or prosecuting them as we are
obligated to do under the Torture Convention. The Justice
Department argues that they have too few resources and more
important concerns than to investigate and prosecute foreign
nationals who committed acts on foreign soil. That is violating
our commitment under the convention.
In addition, the law permits the State Department to seek
diplomatic assurances that an alien would not be tortured if
returned to a country. The State Department is not using this
avenue either. Instead of the Government living up to its
responsibilities under the Torture Convention, these bad actors
are permitted to use the convention as a defense to deportation
based on one article in the convention which states that a
party cannot return a person to a country in which it is more
likely than not that the person would be tortured.
So our immigration courts have become the only entity
responsible for implementing our responsibilities under the
convention. I seriously doubt that was the intent when we
signed the convention and when the Congress passed the
implementing legislation. In the implementing legislation for
the convention, the Congress expressly stated in a subsection
headed ``exclusion of certain aliens'' that to the maximum
extent consistent with the obligations of the U.S. under the
convention, the regulations required by the Senate legislation
shall, quote, exclude from the protection of such regulations
aliens described in section 241(B)(3)(b) of the Immigration
Nationality Act, end quote. That section of the INA describes
particularly serious criminals, terrorists, persecutors,
genocide participants and dangers to the community. The Reno
Justice Department disobeyed the Senate instruction by
protecting such bad actors in the torture regulation.
So to those who argue we cannot exclude such aliens from
CAT relief because we would be violating the convention, I say
the convention should not be looked at in a vacuum. We must
also look to the implementing language.
Given the Congress's direction to except serious criminals
and persecutors from the regulations, I do not believe we would
be violating our commitment to the convention. Legislation has
been introduced this Congress and last Congress that would make
serious human rights violators inadmissible and deportable, but
unless the CAT regulations are changed, placing human rights
violators in removal proceedings will be a waste of time and
money because they will likely be granted CAT protection and
will be back on the streets. So why go through the expensive
and timely court and appeal exercise?
In conclusion, let me reiterate that this hearing does not
concern the thousands of foreign nationals that enter this
country, both legally and illegally, to seek refuge from an
oppressive and potentially torturous regime for, say, political
or religious purposes. Rather, it is to inform the Congress and
the American people of this disturbing and dangerous loophole;
disturbing and dangerous because it has resulted in the
presence on our Nation's streets of hundreds of dangerous
aliens. Therefore, we will receive testimony as to the need for
a change in the law to close that loophole.
At this time I recognize my colleague, the Ranking Member
of the Subcommittee, Ms. Jackson Lee of Texas for an opening
statement.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. And let
me thank the witnesses for their presence here today.
I think we all can agree that over the last couple of days
we have seen the aspect of our Intelligence Community needs a
lot of help, and so I can imagine the consternation of the
Chairman on the number of 600 that may have, if you will,
tainted what I think is an extremely important convention that
has been signed by the United States. Because we have warts in
our system, I don't believe we should thwart the United Nations
Convention Against Torture when there are so many that are in
need.
Though this is not directly related to the accessing of
legalization, I always remind my colleagues that immigration
does not equate to terrorism. Certainly amongst the many that
may be applying for relief under this particular convention,
there may be some of those who are less than desirable elements
in this country, but, again, I think that we can focus more on
rebuilding and fixing what is still a broken intelligence
system to be able to protect the United States, rather than
eliminating or undermining what are very important provisions
to protect people's lives.
The United Nations Convention Against Torture is a
fundamental pillar of our human rights and national interest
policy. It prohibits our removal and extradition processes from
turning aliens--returning aliens to countries where they
probably would be tortured. It may increase the likelihood that
torturers and other major human rights abusers will be held
accountable for their actions through criminal prosecutions and
civil liability lawsuits in U.S. courts. It supports our
efforts to promote human rights compliance and prevent torture
in foreign nations, and it encourages the growth of human
rights-oriented standards and institutions throughout the
world.
Just yesterday I asked the President to send peacekeeping
and humanitarian troops into Liberia. I gave a litany of
reasons. Specifically, I indicated it is not a declaration of
war. At the same time, I have joined the President in asking
for Charles Taylor to step down and leave the country, but I
have added to my request that Charles Taylor be immediately
tried for war crimes, as he has been indicted. I am not out to
let the scandals and the scoundrels escape, but I am out to
protect this convention because it has value and purpose.
The Convention Against Torture is one of the four primary
international human rights documents. It stands along with the
Universal Declaration of Human Rights, the International
Covenant on Civil and Political Rights, and the Genocide
Convention as the cornerstone of our country's and the
international community's effort to stop the most heinous forms
of governmental oppression and abuse.
I am disappointed that the United States is one of the only
remaining countries that has not signed the convention
regarding children; and therefore, we suffer in this country
with enormous abuse of our children, constantly, because of
some political issues that we have with the convention that the
world has promoted to protect our children of the world.
However, Article 3 of the convention that we speak of today
forbids a state party from forcibly returning a person to a
country where there are substantial grounds for believing that
he or she would be in danger of being subjected to torture.
This is country-specific. The prohibition does not bar forcibly
returning the person to other countries in which he or she
would not be in danger of being subjected to torture. There
lies our relief.
I support this absolute standard, because torture is so
horrendous and contrary to our ethical, spiritual, and
democratic beliefs that it must be absolutely condemned and
prohibited.
This past week we saw a number of boys, young men now, from
Sudan. Anyone can tell you the horrific activities that have
gone on in the Sudan. Anyone can tell you of the horrific
amputation policies in Sierra Leone, the raping of women who
are pregnant, the stripping of babies from the wombs of
mothers. This is torture that maybe the United States is not
familiar with, and so we might cavalierly this morning talk
about eliminating a provision or amending this convention on
the basis of a few hundred. We have relief. We can deport them
elsewhere.
Even the most abhorrent individuals, including criminals
and torturers themselves, are entitled to invoke the
protections of CAT in order to prevent from being returned to
torture in their home countries. As I said, return them
elsewhere.
In the Davis case of the United States Supreme Court, the
United States held that--or the Supreme Court held that the
detention provisions in the Immigration Nationality Act read in
light of the Constitution's demands limit an alien's post-
removal period detention to a period reasonably necessary to
bring about that alien's removal from the United States. The
Supreme Court found, further, that once removal is no longer
reasonably foreseeable, continued detention is no longer
authorized by statute except where special circumstances
justify continued detention. The special circumstances may
indicate that continued detention is necessary to protect the
public, and I would agree with that.
In response to that, the Supreme Court decision, the former
Immigration and Naturalization Service promulgated regulations
for determining the circumstances under which an alien may be
held in custody beyond the statutory removal period. These
regulations authorize the Government to continue to detain
aliens who present foreign policy concerns or national security
or terrorism concerns as well as individuals who are especially
dangerous due to a mental condition or personality disorder,
even though their removal is not likely in the reasonably
foreseeable future.
While we may be prohibited from sending them back to their
home countries, we are under an obligation to criminally
prosecute them for acts of torture or other international or
domestic crimes.
Also, although the grant of CAT protection is absolute, it
is not permanent relief. It can be removed when the conditions
in the home country change so as to eliminate the risk of
torture. Therefore, we have options. We have acted. We have
regulations. We have relief. We have made a commitment not to
practice or tolerate torture under any circumstances or for any
reason. I do not believe that Congress at this time should
tamper with that commitment.
I believe that we should view that commitment as ultimate
relief with the relief that we already have parallel to this
convention that will protect the American people. What are our
values? Are we willy-nilly because we have some sort of
disagreement with our immigration policies to be able to
undermine values that we have had in this country over and over
again? I believe that we can and we must honor that commitment,
and we can do so without endangering our society.
Mr. Chairman, we are not the Intelligence Committee, I
realize that. But as I have looked over the last few days' of
statements, I would begin to wonder whether we have the ability
to protect ourselves with a legitimate and strong Intelligence
Community. I respect those who are working hard, but I would
hope Congress would look carefully at our Intelligence
Community, as we might look to improve the information provided
to this body, to the Executive.
Certainly there are some issues that I hope to be looking
at, particularly in this Committee. But I think that we can
find other ways of addressing this Committee's and the
Congress's concern about this convention. I would ask that we
listen intently to the witnesses, but yet I would also say that
we might be moving too quickly against our values that I think
are extremely important in this instance, and I thank the
Chairman for yielding and I yield back.
Mr. Hostettler. Thank the gentlelady.
The Chair now recognizes the gentleman from Iowa, Mr. King,
for an opening statement.
Mr. King. Thank you, Mr. Chairman, and I will be brief. I
want to get to the testimony, and I am looking forward to
hearing the testimony. I thank you all for being here today to
make this presentation. It is an important issue.
You know, the concept that we cannot return a person who is
guilty of torture to those whom he has tortured is something
that baffles me. If they had committed a crime of murder or
some other crime of--a violent crime within a country, we would
return them back to the country for that reason.
And so this is a dangerous loophole, as the Chairman has
pointed out, and it is dangerous in this country when we
release this number of approximately 683 that I am looking at,
and of those we have some evidence that at least two have
committed murder. I expect that is murder of American citizens.
I know at these hearings in this room a few weeks ago, I asked
the--actually the staff of one of the Members of Congress who
testified here to produce the records of how many American
citizens were murdered by noncitizen illegal immigrants in this
country. When we add up the cost to American citizens' lives of
loopholes in our policy, it will be staggering. And we will
have these numbers at some point as we proceed with this
investigation in a broad view of the immigration issues.
So I see this as a piece to that puzzle, and we have a
constitutional obligation to provide safety to the American
people. There are many things we do in this Congress that we do
not have a constitutional obligation to do, and that is not one
of them. So I look forward to hearing this testimony and am
hopeful that we will be able to in this Congress craft a policy
that protects the people in this country and provides justice
for those who are in this country legally as well as those who
are innocent of crimes from other countries.
Thank you, Mr. Chairman, and I yield back.
Mr. Hostettler. I thank the gentleman for his opening
statement.
And for the record, I spoke in my opening statement of two
individuals who we know have been--had been released as a
result of Convention Against Torture relief; one of those men
from Uzbekistan, another gentleman from Gambia. I failed to
mention in my opening statement that while the Uzbecki
gentleman is still in the country, the gentleman from Gambia,
actually, for whatever reason, missed his home and voluntarily
removed himself from the United States and returned to Gambia,
even though he believed and attested to the fact that he was
going to be tortured if he was removed from this country by the
United States Government.
Mr. King. Would the gentleman yield?
Mr. Hostettler. Yes.
Mr. King. Thank you, Mr. Chairman. I appreciate that
clarification, and I was incorrect in my statement. And I know
we have asked for information on any number of American
citizens who have been murdered by this group of people in
question here today. Do we have any evidence that that has not
taken place?
Mr. Hostettler. It is not my--not to my knowledge.
Mr. King. I just point out that the final numbers on that
are pending and we have asked for that information. It is not
available before this Committee.
Thank you, Mr. Chairman. I appreciate it.
Mr. Hostettler. Yes. The Chair now wishes to introduce our
panel, and the Chair wishes to thank you for your attendance
today and your willingness to testify before us.
Stewart Verdery was confirmed last month as the first
Assistant Secretary for Homeland Security for Border and
Transportation Security Policy and Planning. Prior to joining
the Department of Homeland Security, Mr. Verdery was the senior
legislative counsel for the Government Affairs and Public
Policy Office; representing Vivendi Universal Entertainment,
Universal Music Group, and Vivendi Universal in Washington,
D.C. before that. The Assistant Secretary was general counsel
to U.S. Senate assistant Republican leader Don Nickles, counsel
to two Senate Committees and to Senator John Warner. He
graduated cum laude from Williams College and received his law
degree from the University of Virginia School of Law.
Eli Rosenbaum is Director of the Office of Special
Investigations, or OSI, in the Justice Department's criminal
division. He has worked as a prosecutor and investigator of
Nazi criminals at the U.S. Department of Justice for over 15
years. CBS Radio Boston has termed him, quote, the man the
Nazis fear most, end quote. Besides working at the OSI, Mr.
Rosenbaum has been a corporate litigator with a Manhattan law
firm and was appointed general counsel of the World Jewish
Congress in 1985, where he directed the investigation that
resulted in the worldwide exposure of the Nazi past of former
United Nations Secretary General and Austrian President Kurt
Waldheim. Mr. Rosenbaum graduated from the Wharton School of
the University of Pennsylvania and Harvard Law School.
Dan Stein is the Executive Director of the Federation for
American Immigration Reform. He is an attorney who has worked
for nearly 21 years in the field of immigration law and reform.
Prior to leading FAIR, Mr. Stein was Executive Director of the
Immigration Reform Law Institute, a public interest litigation
group that represented a variety of organizations in
immigration and administrative law matters. He has also been in
private law practice in real estate, Federal agency litigation,
criminal law and tax-exempt corporate law. Mr. Stein is a
graduate of Indiana University and the Catholic University
School of Law.
Regina Germain has been a fellow at Georgetown University
Law Center for the past 2 years where she teaches asylum and
refugee law, including relief under the Convention Against
Torture, to clinical law students who represent asylum seekers
in immigration court. She serves on the National Asylum
Committee Board of the American Immigration Lawyers
Association.
Prior to her position at Georgetown, Ms. Germain was the
senior legal counselor in the Washington office of the United
Nations High Commissioner for Refugees. She graduated magna cum
laude from University of Pittsburgh Law School, and cum laude
from Georgetown University School in Foreign Service with a
bachelor of science in foreign service. She is currently
pursuing her master's of law degree in advocacy from Georgetown
University Law Center.
Once again, I thank the panelists for being here today.
Without objection, your written statements will be inserted in
the record. You each will have 5 minutes to give an opening
statement. We would appreciate that you stay as close to that 5
minutes as possible.
And Mr. Verdery, the floor is yours.
STATEMENT OF C. STEWART VERDERY, ASSISTANT SECRETARY FOR POLICY
AND PLANNING, BORDER AND TRANSPORTATION SECURITY DIRECTORATE
Mr. Verdery. Thank you, Mr. Chairman, and Members of the
Subcommittee. As you mentioned, my name is Stewart Verdery. I
am Assistant Secretary for Border and Transportation Security
Policy at the Department of Homeland Security. It is a pleasure
to be back before the Committee again.
Thank you for inviting me to speak about the Torture
Convention and its interaction with the more general issue of
detention authority after the Supreme Court's 2001 decision in
Zadvydas. Beginning in the 1970's, the United States championed
the development of an international pact to eradicate torture.
The Torture Convention was the product of the international
communities to resolve--to combat this most extreme human
rights violation.
Because torture is so horrific and universally condemned,
the convention signatories agreed to refrain from removing or
extraditing any individual to a country in which it was more
likely than not that he or she would be tortured regardless of
the existence of any ground that would otherwise warrant
removal or extradition.
While urging appropriate constraints on this application,
Congress, and specifically the Senate, recognized the absolute
nature of this obligation when it enacted legislation in 1998
directing the Attorney General to promulgate regulations to
implement the convention.
In section 2242(C) of the 1998 Foreign Affairs Reform and
Restructuring Act, Congress provided that the regulations shall
incorporate the bars to withholding a removal, quote, to the
maximum extent consistent with our international obligations
under the convention, end quote.
Just 2 weeks ago, President Bush reaffirmed the United
States' commitment to combat torture. On June 26, the UN
International Day in Support of Victims of Torture, the
President declared, quote, the United States is committed to
the worldwide elimination of torture, and we are leading this
fight by example. With this laudable goal in mind, it is
important to frame this discussion of the Torture Convention in
the larger context of the release of criminal aliens generally
following the Zadvydas decision.
In that case the Supreme Court held that post order
detention is permissible when removal is reasonably foreseeable
or when there are special circumstances that justify continued
detention. The Court observed that once an order of removal is
administratively final, the alien's detention is, quote,
presumptively reasonable, end quote, for up to 6 months in
order to accomplish removal.
Thereafter, however, if the alien provides, quote, good
reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future, end quote, the
Government must rebut the alien's showing in order to continue
the alien in detention.
Now, the Court did suggest there are circumstances
involving particularly dangerous individuals, terrorists or
others whose special circumstances could warrant continued
detention. In general, however, when an alien is granted
protection and cannot be removed to a third country, that
alien's release may be ultimately required.
After Zadvydas, the Justice Department revised existing
post order custody review regulations to account for the
likelihood of the alien's removal and to--for special
circumstances where the United States may properly maintain
custody of an alien who cannot be removed. These regulations
apply equally to any deportable alien who cannot be removed,
including those granted protection under this convention.
However, combined with this Zadvydas ruling, it is clear
that the United States determination to, quote, lead by
example, end quote, in the hearing of the Torture Convention
creates tension with the Government's efforts to promote public
safety. The regulatory exception in allowing continued
detention does not apply to many criminal aliens. For example,
narcotics traffickers or violent criminals who have
demonstrated--I am sorry, have not demonstrated mental disease
or defect would not generally fall under the Zadvydas
exception, nor would human rights abusers. Thus, Zadvydas has
limited the Government's ability to maintain custody of certain
aliens who cannot be removed.
However, the number of Torture Convention grantees with
criminal histories that have been released under Zadvydas
should be viewed in the context of the large impact that that
case--sorry, of that case, and the longstanding difficulties
that the United States has had in removing certain groups of
aliens.
During the 3 years that the torture regulations have been
in effect, only a small number of persons have been granted
torture protection. This fact demonstrates that there has been
a very measured and careful approach to adjudicating Torture
Convention cases. We attribute these relatively low numbers to
the strict eligibility requirements set forth in the
regulations and to the diligence of Department of Homeland
Security attorneys and Department of Justice adjudicators to
assure that those regulatory requirements are applied
accurately. It is my understanding that less than 3 percent of
applications for Torture Convention application are ultimately
successful.
Secondly, only a small portion of Torture Convention
grantees are criminals or security threats. Of approximately
558 torture grantees in fiscal year 2002, less than 15 percent
were granted deferral of removal, a more limited form of
torture protection afforded to persons who would otherwise be
subject to criminal or security-related bars.
Third, Torture Convention grantees comprise less than 1
percent of the total criminal aliens who since 1999 have been
released from custody following a final order of removal.
Between fiscal year 1999 and 2002, some 45,000 criminal aliens
were released from INS or DHS custody. Of this total, only 490,
about 1 percent, were Torture Convention grantees. The
remaining 99 percent had final orders removal that could not be
executed, not because of a treaty-based legal impediment such
as the Torture Convention but largely because their respective
countries of nationality were not willing to accept
repatriation. In fact, a significant percentage of criminal
Torture Convention grantees are nationals of a country that did
not readily accept the return of its nationals and would be
difficult to return even in the absence of the treaty. Cuba is
one such country.
Now, Zadvydas undeniably limits our ability to detain
criminal aliens who have final orders of removal, but erecting
criminal- or security-related bars to Torture Convention
protection or otherwise limiting the applicability of the
convention would place the United States in violation of its
international obligations with minimal impact on the larger
problem of criminal aliens remaining in the United States.
The Department of Homeland Security is committed to
ensuring the proper balance between our convention obligations
and our mission to make our communities safe within the limits
imposed by Zadvydas. We will continue to work creatively in
applying the convention, to minimize to the greatest extent
possible any negative effects on public safety. In doing so, we
will fulfill the President's declaration that, quote, the
United States is committed to the worldwide elimination of
torture, and we are leading this fight by example.
I thank you again for allowing me to offer these comments
and look forward to any questions you might have. Thank you.
Mr. Hostettler. Thank you, Mr. Verdery. And it is good to
see you back before this Subcommittee.
[The prepared statement of Mr. Verdery follows:]
Prepared Statement of C. Stewart Verdery
Mr. Chairman and Members of the Subcommittee, my name is Stewart
Verdery.
I am the Assistant Secretary for the Border and Transportation
Security Policy within the Department of Homeland Security (DHS). Thank
you for inviting me to speak on developments in the implementation of
our obligations under Article 3 of the United Nations Convention
Against Torture and Other Forms of Cruel, Inhuman or Degrading
Treatment or Punishment (Convention Against Torture), particularly with
respect to the removal of criminal aliens.
Recently, this Administration reaffirmed the United States'
commitment to prevent torture worldwide, a commitment that includes our
obligations not to return an individual to a place where he or she is
more likely than not to face torture. On June 26, 2003, the United
Nations International Day in Support of Victims of Torture, President
Bush declared that ``[t]he United States is committed to the world-wide
elimination of torture and we are leading this fight by example.'' \1\
The Department of Homeland Security is dedicated to this mission but
also recognizes the importance of ensuring that this benefit is given
to those that truly warrant such protection and is not used as a
mechanism to thwart what otherwise would be an appropriate removal. It
is the Department's challenge to ensure that this Convention is being
applied properly, thereby maintaining integrity in our immigration
system while protecting individuals from heinous acts of torture.
Further, it is the Department's challenge to ensure that the mechanisms
to apply this Convention are appropriate and properly balance the need
to protect individuals with the need to ensure the safety of our
communities.
---------------------------------------------------------------------------
\1\ http://www.whitehouse.gov/news/releases/2003/06/print/20030626-
3.html.
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I wish to explore three aspects of our efforts to strike this
balance. First, I will provide a framework for understanding the
limited role of Convention Against Torture claims within the
immigration system, including the most recent statistics and
developments of the law regarding eligibility. Next, I will discuss
tools available to ensure that we continue to meet our obligations
under the Convention while minimizing the danger to the public.
Finally, I will discuss the challenges arising from the Supreme Court's
decision in Zadvydas v. Davis, particularly with respect to continued
detention of certain aliens who receive Convention Against Torture
protection. Taken as a whole, these issues demonstrate that fulfilling
our international obligations under the Convention is generally not
incompatible with robust efforts to remove criminal aliens from the
United States.
It is important to realize that the United States' determination to
adhere to the Convention at times may pose a challenge to the
Government's ability to protect the public. As detailed below, when an
alien is granted protection and cannot be removed to a third country,
that alien's release will generally be required under Zadvydas. The
Court's decision in that case does not limit the ability of the
government to detain aliens who are especially dangerous, such as
terrorists, but does mean many serious criminals and human rights
violators must be released if they cannot be removed. With that said,
it is notable that criminal aliens who have received Convention Against
Torture protection make up less than one percent of the criminal aliens
who, since 1999, have been released from custody following a final
order of removal.
CONVENTION AGAINST TORTURE FRAMEWORK
The Convention Against Torture represents an international
commitment to protect individuals from the most extreme form of human
rights violations. Because of the horrific practice of torture, the
parties to the Convention agreed to refrain from removing individuals
to a country in which it is more likely than not that they would face
torture, regardless of the existence of any ground that would otherwise
warrant removal. The United States championed the development of an
international pact opposing the use of torture and was a leader in
ensuring the ratification of the Convention Against Torture, which has
been in effect for the United States since 1994.
Congress also recognized this obligation when it enacted
legislation in 1998 implementing Article 3 of the Convention and
directed the Attorney General to promulgate regulations implementing
Convention protection.\2\ That legislation also required that the
regulations incorporate the bars to withholding of removal, to the
extent consistent with international obligations, in the scheme for
providing protection. Thus, Congress acknowledged that there was an
absolute prohibition to removal, while still urging appropriate
constraints on its application.
---------------------------------------------------------------------------
\2\ Sec. 2242(a) of the Foreign Affairs Reform and Restructuring
Act of 1998, Pub. L. No. 105-277, Div. G, Sec. 2242, 112 Stat. 2681-
761, 2681-822.
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The current Convention Against Torture regulations, which have been
in effect since March 22, 1999, meet this requirement through the use
of a two-tier system of torture protection, modeled on the existing
withholding of removal framework. An individual who does not qualify
for asylum may nonetheless obtain withholding of removal based on fear
of torture, so long as he or she has not committed a particularly
serious crime, is not a persecutor, has not committed a serious non-
political crime outside the United States, or is not a danger to the
national security. Because of the absolute nature of the Convention,
and the statutory requirement to act consistent with our international
obligations, the regulations also provide for an extremely limited form
of protection known as ``deferral of removal'' which offers protection
to an individual otherwise barred from withholding. It is important to
recognize that since there are no bars to deferral of removal under the
Convention, serious criminals, persecutors, terrorists and human rights
violators may qualify for protection. Further, as I will discuss later,
the Supreme Court's Zadvydas ruling prevents the indefinite detention
of certain aliens with final orders of removal. While terrorists and
other especially dangerous individuals may be exempt from the ruling,
many other serious criminals and other threats to public safety must be
released under Zadvydas.
Claims for protection under the Convention Against Torture, in
almost all cases, are adjudicated by immigration judges, with an appeal
to the Board of Immigration Appeals (BIA). Although the Homeland
Security Act transferred the functions of the former Immigration and
Naturalization Service to the Department of Homeland Security,
effective March 1, 2003, that law also provided that the Executive
Office for Immigration Review (EOIR), including the immigration judges
and the BIA, remains in the Department of Justice, under the authority
of the Attorney General. The Bureau of Immigration and Customs
Enforcement (BICE) attorneys represent DHS in these immigration
proceedings before immigration judges and the BIA.
As a result of the strict standards articulated in the regulations,
the number of individuals who have received withholding or deferral of
removal based on the Convention Against Torture is small. In the four
years since the regulations went into effect, the available data
indicates that there have been approximately 1,700 grants of
withholding or deferral of removal based on the Convention Against
Torture. It is also important to emphasize that the number of criminal
aliens who have received Convention Against Torture protection is
small. Of the approximately 1,700 aliens who received withholding or
deferral of removal under the Convention Against Torture, 611 were
aliens who were charged as removable because they had committed crimes.
Notably, half of the 611 were given withholding of removal, which
indicates that they could not have been subject to one of the criminal
or security-related bars to withholding under the Act.
These statistics support our belief that there has been, overall, a
very measured and careful approach to adjudicating Convention Against
Torture cases. We attribute these relatively low numbers to the strict
eligibility standards set forth in the regulations which place a heavy
burden on the applicant to establish not only the likelihood of
torture, which is itself narrowly defined, but that such harm would
occur at the hands of or with the acquiescence of government officials.
The Department of Homeland Security continues to monitor the
development of case law in this area and to argue for a proper reading
of the definitions and requirements set out in the regulations. Thus
far, DHS believes that the immigration judges and the BIA have
generally adhered to these strict requirements. There have been
instances where DHS attorneys perceived too broad of an interpretation
of the Convention by courts and successfully appealed to the BIA.
Attorney General Ashcroft has decided in a series of cases that aliens
must meet a heavy burden of proof, providing evidence that specifically
establishes an individualized risk of the specific intent of government
actors to engage or acquiesce in torture.\3\ Moreover, the BIA has also
generally read the Convention Against Torture requirements narrowly.
For example, in Matter of J-E- the BIA held that there was no evidence
to show that the substandard conditions of Haitian prisons equated with
government sanctioned torture.\4\ Thus, in the first four years of
implementation we have found that the regulatory provisions have been
narrowly construed, leading to a relatively small number of cases for
which torture protection was granted.
---------------------------------------------------------------------------
\3\ Matter of Y-L-, A-G-, R-S-R-, 23 I&N Dec. 270 (A.G. 2002).
\4\ Matter of J-E-, 23 I&N Dec. 291 (BIA 2002)
---------------------------------------------------------------------------
TOOLS AVAILABLE TO ENSURE BALANCE IS MET
Because the obligation to refrain from removing an alien who faces
torture is absolute, we have always been mindful of the fact that there
would be situations where criminal aliens ineligible for other forms of
immigration relief or protection might qualify for Convention
protection. The Convention does not require that such aliens remain in
the United States indefinitely and does not require that they be
released from custody. The Convention Against Torture regulations
provide a range of options for handling criminal and national security
cases. An alien who has been given protection pursuant to the
Convention Against Torture cannot be removed to the country where he
would more likely than not face torture, but may be removed to a third
country. If no third country will accept the alien, he may still be
removed if the Secretary of Homeland Security credits assurances,
received by the Secretary of State from the government of the country
where the alien will be returned, that the alien will not be
tortured.\5\ While we reserve the use of diplomatic assurances for the
most sensitive of cases, we have returned two individuals to their
countries based on assurances that they would not be tortured. We
continue to consider other cases as appropriate.
---------------------------------------------------------------------------
\5\ 8 CFR 1208.18(c)
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Moreover, the two-tiered system for granting torture protection
ensures that those individuals who are ineligible for withholding of
removal based on criminal or other acts receive the minimum amount of
protection necessary to comply with our international obligations.
Deferral of removal is a much narrower form of protection from removal
than asylum, statutory withholding of removal, or even withholding of
removal under the Convention Against Torture. Deferral does not confer
any lawful or permanent immigration status on the alien and the alien
may be removed to another country at any time. Deferral of removal is
also subject to an expeditious method of termination in the case of
changed conditions affecting the alien's likelihood of torture. Upon
the submission by BICE of evidence relevant to the possibility of
torture an Immigration Judge must hold a hearing in which the burden is
on the alien to establish anew that he or she continues to face torture
upon return. We are currently reviewing cases from several countries in
which recent changes in conditions may affect the likelihood of
torture. The Department's commitment to safeguard our communities
requires that we take an aggressive review of these cases involving
criminal aliens to determine whether we can remove any of these
individuals while abiding with our Convention obligations. We
anticipate that the termination process will allow us to remove
protection when it is no longer warranted.
IMPACT OF ZADVYDAS
Zadvydas has limited our ability to detain certain aliens who have
orders of removal. During the statutory removal period, detention is
mandatory for certain criminal aliens and terrorists.\6\ Upon
expiration of the statutory removal period, the Department has
discretionary authority to continue to detain certain aliens subject to
an administratively final order.\7\ Anticipating the potential conflict
between security concerns and a grant of protection under the
Convention, Congress specifically noted in the legislation implementing
Article 3 that the existence of torture protection should not be read
to limit the Government's detention authority.
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\6\ INA Sec. 241(a)(2), 8 USC Sec. 1231 (a)(2)
\7\ INA Sec. 241(a)(6), 8 USC Sec. 1231 (a)(6)
---------------------------------------------------------------------------
Nonetheless, the possibility of continued detention for most
individuals granted deferral has been affected by Zadvydas, a decision
issued by the Supreme Court subsequent to promulgation of the
Convention Against Torture regulations. The Supreme Court held that
detention is permissible under section 241(a)(6) of the Immigration and
Nationality Act when removal is reasonably foreseeable, or when there
are special circumstances that justify continued detention. Once an
order of removal is administratively final, the Court found that the
alien's detention is ``presumptively reasonable'' for up to six months
in order to accomplish removal. Thereafter, if the alien provides
``good reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future,'' the government must
rebut the alien's showing or establish special circumstances in order
to continue to hold the alien in detention.
After the Supreme Court's Zadvydas decision, the existing post-
order custody review regulations that provide for automatic and
periodic review for aliens who remain in detention upon expiration of
the statutory removal period were revised and supplemented. The new
regulations added provisions governing custody review and determination
of the likelihood of the alien's removal. Under the provisions of 8
C.F.R. 241.13, custody reviews are initiated by the alien's request for
release, accompanied by his assertion and support for his belief that
his removal cannot be effected in the reasonably foreseeable future.
Such reviews are conducted only after the six-month period of
``presumptively reasonable'' detention has expired. A specially trained
Headquarters Unit of BICE's Office of Detention and Removal conducts
the review procedures. In order to be considered for release or parole,
the alien must first demonstrate that he has fulfilled his statutory
obligation to make a good faith effort to secure a travel document.
Upon consideration of all the evidence, BICE issues a written decision
either continuing detention or ordering the alien released. BICE will
release or parole the alien under specified conditions of release if it
determines that the alien has complied with his statutory obligation to
obtain travel documents, but despite the alien's and the government's
best efforts, his or her release is not reasonably foreseeable.
This process applies equally to any deportable alien who cannot be
removed, including those granted withholding or deferral of removal. It
should be noted, however, that the 6th and 9th Circuits Courts of
Appeals have expanded the Zadvydas decision to include inadmissible
aliens; that is, aliens who have not gained initial admission into the
United States.\8\ Consequently, in all but the most serious cases, a
criminal alien who cannot be returned--regardless of the reason--may be
subject to release after six months. In such cases, BICE must rely upon
conditions of release to appropriately monitor those released.
---------------------------------------------------------------------------
\8\ See Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003),
cert denied, 2003 WL 1878569 (June 23, 2003); Xi v. INS, 298 F.3d 832
(9th Cir. 2002).
---------------------------------------------------------------------------
The Zadvydas court suggested, however, that there are circumstances
involving particularly dangerous individuals, terrorists, or others
whose special circumstances could warrant continued detention. This is
reflected in the post order custody regulations. The regulations
authorizes the Government to continue to detain aliens-even where their
removal is not foreseeable--who present foreign policy concerns or
national security and terrorism concerns, as well as individuals who
are specially dangerous due to a mental condition or personality
disorder, even though their removal is not likely in the reasonably
foreseeable future. For instance, terrorists may be detained under the
provisions of 8 C.F.R. 241.14(d) regardless of whether the final
removal order is based on terrorist activity. Decisions to continue
detention in such cases, however, must be based on information
indicating that the alien's release would pose a significant threat to
the national security or a significant risk of terrorism that cannot be
adequately addressed through conditions of release. Similarly, 8 C.F.R.
241.14(g) allows DHS to seek approval from an immigration judge for the
continued detention of individuals who are likely to engage in future
acts of violence due to a mental condition or personality disorder,
where there are no conditions of release that can reasonably be
expected to ensure the safety of the public and such individual is
likely to engage in future acts of violence. However, the operation of
the regulation generally relies on psychiatric evidence attesting to
mental conditions and requiring predictions based on past conduct.
In addition, the exception for continued detention does not apply
to many who could endanger the public. For example narcotics
traffickers or even violent criminals who have no demonstrated mental
disease or defect would not generally fall under a Zadvydas exception.
Furthermore, persecutors or human rights abusers would generally not
fall under the Zadvydas exceptions, thus there are instances where the
government is forced to release aliens who have final orders of
removal, though they may pose grave threats to the public.
Thus, Zadvydas has limited DHS' ability to maintain custody of
certain aliens who have been granted Convention Against Torture
protection and cannot be removed, but may pose a danger to the
community. Though statistically this group amounts to less than one
percent of criminal aliens who have been released under a final order
since 1999, the group is of significant concern to DHS. This is
especially true in light of Congress's intent to preserve the
Government's custody authority over aliens granted Convention Against
Torture protection, as expressed in its 1998 legislation implementing
Article 3 of the Convention.
There is little question that enforcing the United States'
Convention Against Torture obligations while ensuring the public safety
is a challenge, but such challenges are inherent in balancing the
interests of a free and open society. The Department of Homeland
Security is committed to ensuring the proper balance between our
Convention obligations and our mission to make our communities safe,
within the limits imposed by Zadvydas. The Department will continue to
argue before immigration judges and the BIA and the Department of
Justice will continue to argue before the federal courts for the proper
application of the Convention to ensure that we meet our obligations.
While we have seen many positive signs during the short period of time
in which the Convention was implemented, we will continue to monitor
the Convention's application to ensure that the proper balance between
protection and safety is being achieved.
Thank you again for allowing me to offer these comments. I look
forward to your questions.
Mr. Hostettler. Mr. Rosenbaum, you are recognized for 5
minutes.
STATEMENT OF ELI ROSENBAUM, DIRECTOR, OFFICE OF SPECIAL
INVESTIGATIONS, U.S. DEPARTMENT OF JUSTICE
Mr. Rosenbaum. Thank you. Chairman Hostettler, Ranking
Member Jackson Lee, and Members of the Subcommittee, I am
pleased to accept Chairman Sensenbrenner's invitation to appear
before you today to address two questions concerning the
application of the Torture Convention to foreign nationals who
have participated in war crimes, torture, and other human
rights violations prior to arriving in the United States.
If I may say, it is a particular pleasure to be here, since
our office which was created in 1979 was created largely at the
behest of this Subcommittee. It has been 23 years--24 years,
and I hope that the Subcommittee feels that its child has grown
up properly.
I would like to preface my statement by noting the
Administration's commitment to the Torture Convention, a noble
international undertaking to protect human life and human
dignity. As Mr. Verdery noted, just 2 weeks ago the President
urged all governments to join with the United States in
prohibiting, investigating, and prosecuting all acts of
torture.
I would also note that my office, the Office of Special
Investigations, which handles the World War II cases, has had
only limited experience with the Torture Convention. Since my
office's creation in 1979, we have won the denaturalization of
71 Nazi persecutors and we have accomplished the removal to
date of 57 such persons. With the assistance of the former
Immigration and Naturalization Service, now in effect part of
the Department of Homeland Security, OSI has prevented more
than 160 Axis persecutors--both European and Japanese
perpetrators--from entering the United States. We have 20 of
these World War II cases currently in litigation in courts
throughout the United States.
To date, however, only one OSI respondent has filed a claim
under the Torture Convention. OSI attorneys have litigated some
of the most complex immigration cases handled by the
Government, all of which involve allegations that the defendant
assisted in Nazi-sponsored acts of persecution--in human rights
violations, if you will. Based on that experience, I believe
that we can offer a useful perspective on the issues that CAT
can raise when the Government seeks to remove persons who
participated in war crimes, torture, and other human rights
abuses.
First, the bar on removal made possible through domestic
implementation of the Torture Convention is a stronger
protection than earlier provisions of U.S. immigration law. The
laws dealing with political asylum and withholding of removal,
for example, provide that certain malefactors are statutorily
barred from eligibility, including persons who assisted in
persecution, persons who committed serious crimes outside the
United States, persons who have been convicted in this country
of serious crimes, and persons who are considered a danger to
United States national security.
Moreover, persons who are found to be removable on grounds
that they assisted in Nazi persecution--the cases my office
handles--those persons are automatically barred from virtually
all forms of relief or protection from removal available under
the Immigration and Nationality Act.
In contrast, of course, there are no exceptions to
protection from removal under the Torture Convention. A person
who has committed the most heinous acts, including Nazi crimes
and acts of terrorism, or a person who constitutes a grave
danger to the national security of the United States is
eligible for protection under the Convention Against Torture if
that individual can prove--and the burden is on that
individual--prove that he or she will more likely than not be
tortured in the designated destination country. The strong
policy reflected in the implementation of the Torture
Convention is that no person, regardless of his or her past
conduct, should be deported to another country to face torture.
Second, while CAT claims have been exceedingly rare in the
World War II cases to date--as I said, we have seen just one--
the situation is likely to be different with removal actions
involving so-called modern-day human rights violators, the
subject of the legislation that was referenced in the letter of
invitation. The majority of my office's cases were litigated
before protection under the Torture Convention was available
under U.S. law, and recent OSI defendants have generally
refrained from filing CAT claims, presumably because the
Government is, after all, seeking to remove them to countries
in Europe--countries that are signatories to the Torture
Convention, and where torture is prohibited and generally quite
rare.
However, some modern-day human rights violators are likely
to be nationals of countries that are politically unstable,
where torture is more likely to be used and legal protections
against torture are not always available. Under those
circumstances, some modern-day human rights violators may be
able to put forward a colorable claim of prospective torture.
Third and finally, one can expect that alleged human rights
violators will file frivolous claims under the Torture
Convention for purposes of delaying their ultimate removal from
the United States. Meritless claims and arguments are routinely
advanced in removal proceedings by aliens who have little or no
prospect of avoiding removal. This has been true in removal
cases generally, and it has certainly been true in OSI's World
War II cases. Obviously, it takes time to litigate these
frivolous claims, a process that delays the removal of the
aliens.
The Government's experience suggests that while CAT claims
are likely to be filed in many removal cases brought against
torturers and other human rights abusers, most such claims will
fail. As Mr. Verdery mentioned, in fiscal 2002, immigration
judges adjudicated 17,302 CAT claims, of which only 558, or
just over 3 percent, were granted. However, 75 of these aliens
were granted CAT-based deferral of removal after being judged
ineligible for withholding of deportation on one of the four
grounds that I mentioned a moment ago.
I would like to thank the Subcommittee for the opportunity
to present this testimony, and I would be pleased to respond to
any questions that the Subcommittee may have.
Mr. Hostettler. Thank you, Mr. Rosenbaum.
[The prepared statement of Mr. Rosenbaum follows:]
Prepared Statement of Eli Rosenbaum
Chairman Hostettler, Ranking Member Jackson Lee, and Members of the
Subcommittee, I am pleased to have the opportunity to appear before you
today concerning the application of the United Nations Convention
Against Torture or Other Cruel, Inhumane, or Degrading Treatment or
Punishment (commonly known as the Convention Against Torture (``CAT''))
to foreign nationals who have participated in war crimes, torture, and
other human rights violations prior to arriving in the United States.
My name is Eli M. Rosenbaum, and I am the Director of the Office of
Special Investigations (OSI) in the Justice Department's Criminal
Division.
I would like to preface my statement by noting the Administration's
commitment to the Torture Convention. On June 26, 2003, United Nations
International Day in Support of Victims of Torture, the United States
joined in global commemorations of the date in 1987 when the CAT came
into force, and President Bush urged all governments ``to join with the
United States and the community of law-abiding nations in prohibiting,
investigating, and prosecuting all acts of torture and in undertaking
to prevent other cruel and unusual punishment.'' The Department of
Justice echoes this commitment.
I would also note that OSI has had only limited experience with the
Torture Convention. As the Subcommittee is aware, OSI was created in
1979 and was charged by the Attorney General with the task of
investigating and taking legal action to denaturalize and deport
persons who participated in acts of persecution sponsored by Nazi
Germany or its allies during World War II. The unit's creation was
largely a response to Congressional dissatisfaction with the
Government's performance in the Nazi cases, nearly all of which had
been lost in the courts, with the result that just two Nazi criminals
had been removed from the United States in the three-and-a-half decades
immediately following the end of World War II. Over the past 24 years,
OSI has won the denaturalization of 71 Nazi persecutors and has
accomplished the removal of 57 such persons. Twenty Nazi cases are
before the courts at this time. Through a border control watchlist
program, OSI, with the assistance of personnel of the Immigration and
Naturalization Service, now serving with the Department of Homeland
Security, has prevented more than 160 suspected Axis persecutors from
entering the United States. To date, however, only one OSI respondent
has filed a claim under the Torture Convention. That application was
denied by an immigration judge earlier this year--without a hearing--
and the case is currently on appeal.
Notwithstanding OSI's limited experience to date with CAT, I
believe that we can offer a useful perspective on the difficulties
involved in obtaining the removal of persons who participated in war
crimes, torture, and other abuses. OSI's prosecutors have litigated
some of the most complex immigration cases handled by the Justice
Department over the past two decades, and all of OSI's cases have
required the Government to prove, by clear and convincing evidence, the
respondent's participation in Nazi crimes against humanity,
specifically in acts of persecution committed against Jewish civilians
and other victims during World War II. Based in part on that
experience, I can offer several observations.
First, the Convention Against Torture, as ratified and implemented,
does not contain the bars to relief applicable to asylum and statutory
withholding of removal. The statutes dealing with political asylum and
withholding of removal, for example, provide that certain malefactors
are statutorily barred from eligibility, including persons who assisted
in persecution, persons who have committed serious crimes outside the
United States, and persons who are considered a danger to United States
national security. The Convention Against Torture, as a mandatory form
of relief, does not exclude these malefactors.
When Congress enacted the Holtzman Amendment in 1979 to provide for
the exclusion and deportation of persons who had assisted in Axis-
sponsored persecution, it provided that such persons were automatically
barred from virtually all forms of relief or protection from removal
available under the Immigration and Nationality Act, including asylum,
withholding of removal, suspension of deportation, and cancellation of
removal. Thus, OSI's cases have very rarely involved the litigation of
any claim for relief or protection from removal.
In contrast, there are no mandatory bars to protection under the
Convention Against Torture. A person who has committed the most heinous
acts--including Nazi crimes and acts of terrorism--or a person who
constitutes a grave danger to the national security of the United
States, is nonetheless eligible for protection under the Convention
Against Torture if that individual can prove that he or she is ``more
likely than not'' to be tortured in the designated destination country.
Second, while claims have been rare in the World War II cases to
date, the situation is likely to be different with removal actions
involving ``modern-day'' human rights violators. The Convention Against
Torture did not enter into force with respect to the United States
until November 20, 1994, and the pertinent provisions of Article 3 were
not implemented in United States law until 1999. Thus, the majority of
OSI's cases were litigated before protection under the Convention was
available.
Defendants in recent OSI cases have generally refrained from filing
CAT claims, presumably because the Government has sought their removal
to countries in Europe that are signatories to the Convention and where
torture is prohibited and rare, and where there is simply no credible
reason to believe that any of those countries would inflict torture as
punishment for actions taken on behalf of a long-defunct regime with
which they either never clashed or with which they were last at war
more than five decades ago. In contrast, some ``modern-day'' human
rights violators are likely to be nationals of countries that are
politically unstable, where torture is likely to be used and legal
protections against torture are not available. These cases are, of
course, handled by the Department of Homeland Security before the
immigration judges and the Board of Immigration Appeals, and are
litigated before the courts of the United States by the Civil
Division's Office of Immigration Litigation.
Under those circumstances, some ``modern-day'' human rights
violators may be able to put forward at least a colorable claim of
prospective torture, and it will not be possible for an immigration
judge to dismiss the claim without a hearing (as was done in the OSI
case I mentioned earlier), particularly if the respondent is a national
of a country in which one persecutory regime has been replaced by
another set of inhumane leaders.
Third, one can expect that many alleged human rights violators will
file frivolous claims under CAT for the purpose of delaying their
ultimate removal from the United States. Meritless claims or arguments
are routinely advanced in removal proceedings by aliens who have little
or no prospect of avoiding removal. This has been true in removal cases
generally, and it has certainly been true in OSI's cases. In our time-
sensitive efforts to denaturalize and remove Nazi persecutors, OSI
attorneys regularly must defend against frivolous challenges to the
court's jurisdiction and respond to long-discredited legal defenses and
arguments.
However, the Government's experience suggests that CAT claims are
likely to be filed in many removal cases brought against torturers and
other human rights abusers. In FY 2002, immigration judges adjudicated
17,302 CAT claims, of which 558, or just over 3 percent, were granted.
Seventy-five of these aliens were granted CAT-based deferral of removal
after being adjudged ineligible for withholding of deportation.
I would like to thank the Subcommittee for the opportunity to
present this testimony, and I would be pleased to respond to any
questions that the Subcommittee may have.
Mr. Hostettler. Mr. Stein.
STATEMENT OF DAN STEIN, EXECUTIVE DIRECTOR,
THE FEDERATION FOR AMERICAN IMMIGRATION REFORM
Mr. Stein. Mr. Chairman, Ranking Member Sheila Jackson Lee,
thank you very much for the opportunity to be here. We
appreciate very much your leadership in holding this important
hearing on what has got to be, in my over 40 times being
invited to testify before this Committee, the most challenging
set of conflicting and competing interests in the delicate--
most delicate matters one could ever imagine.
FAIR naturally supports strong immigration controls. That
is what we are all about. At the same time, we as an
organization oppose terrorism and support the intentions and
principles of the Convention Against Torture. Nevertheless, at
the time the convention was adopted by the United States, the
U.S. asylum system was overloaded and overburdened, and we do
not believe that it was contemplated that the convention itself
would provide an entirely separate and new avenue for would-be
asylum claimants or would-be deportees to seek an exemption
from removal.
And when the regulations were coerced, if you will, out of
the Administration some years back, they set up a whole new set
of standards which appear to be operating independently from
any determinations made in the asylum proceeding, including
adverse credibility determinations, which give us some concern
about where exactly this is going. With the understanding that
no one wants to see anyone sent back to torture of any kind, we
are concerned that the actual rigid standards of the convention
not only provide requirements that we have succor--provide
succor or protection for Nazi war criminals, people who have
committed mass murder, the gravest crimes against humanity, but
at the same time actually inadvertently facilitate the actions
of international criminal syndicates in organized crime
operations that work in conjunction with host governments.
So the couple of--two cases I want to just talk about very
briefly in my testimony here is the Zheng case which came out
of the Ninth Circuit a few weeks ago. The Ninth Circuit
remanded back to the BIA, holding that this alien was eligible
for CAT relief. Now, this claimant had actually been smuggled
into this country by snakeheads. His allegation was that
because he provided testimony to U.S. authorities to prosecute
some of the smugglers, he would be tortured if sent back to
China under the standard of official acquiescence, making the
claim that the very loose-knit corruption that exists between
local officials in Fujian Province and the smugglers gave rise
to a very loose standard of proof that the alien had to meet to
show that there was actual official acquiescence. Which we
believe is far less rigid than what is applied by the standards
of the treaty that there be some kind of approval in this
acquiescence, that there be some greater nexus between the
actual action of the private parties and what can be considered
state actors.
So already the Ninth Circuit is widening dramatically the
standards for what constitutes official torture, to include
just about anybody who is being smuggled in through
sophisticated organized crime syndicates that are Mafia-like in
their organizations, that may also have interaction or
collusion with official governments of one kind or another.
Even in the most informal way.
The second case I would like to bring to your attention is
not a public case. It was decided by the Board of Immigration
Appeals October 25 in 2001. The case is a matter of Hamadi, In
Re Hamadi. Hamadi was found to be an active member of the
Mujaheedin, of the MEK. He was found not only to have committed
and participated in a variety of acts associated with bombing
embassies, et cetera, overseas; he was also formally determined
to be a threat to U.S. national security by the Board of
Immigration Appeals. He was given deferral of removal under the
CAT convention and, so far as I know, is probably still in
custody.
Now, Mr. Chairman and Members of the Committee, when the
CAT Convention was considered and negotiated, everyone assumed
that the U.S. authority to detain undesirable aliens, or aliens
deemed a threat to human rights and in other ways not desired
to be released within the community, remained absolute owing to
the long traditions of very high deference given to the
executive branch in detaining removable or excludable aliens.
The Zadvydas case is a very troubling trend which we
believe may continue as the Court reconsiders more of these
cases, which if we do see erosion in the executive standards
for detaining aliens, could mean that not only are we
facilitating the undesirable operations of people who commit
criminal operations and retaliate in organized crime syndicate-
like fashion, we are actually allowing people to stay here who
no one could possibly ever have intended for us to provide
indefinite protection for.
So with that, I think I will end my--I have a variety of
recommendations, which if I have time I could go through, but
maybe we will do that during the Q and A.
Anyway just to close, I would like to say that this is an
example of good intentions which sometimes have inadvertent
consequences. Clearly the spirit of the intention of the
convention is very important to protect. Nevertheless, based on
past experience with these kinds of provisions, the way in
which through various types of litigation, standards are
loosened and relaxed beyond what anyone contemplated, we do
believe the way the regulations are being interpreted now
begins to become a real threat to public safety, and it is only
a matter of time before somebody is released who is given CAT
protection who we will regret was released for some time.
So thank you very much for the opportunity to testify, and
maybe I will review my specific recommendations later.
Mr. Hostettler. Thank you, Mr. Stein.
[The prepared statement of Mr. Stein follows:]
Prepared Statement of Dan Stein
Mr. Chairman and members of the subcommittee, thank you for the
opportunity to present the views of the Federation for American
Immigration Reform (FAIR) on the difficult issues pertaining to U.S.
implementation of the Convention against Torture (CAT). FAIR is a
national, not-for-profit organization of concerned citizens nationwide
promoting better immigration controls and substantial reductions in
overall immigration for the benefit of all Americans. FAIR does not
receive any federal grants, contracts or subcontracts. My name is Dan
Stein, and I am FAIR's Executive Director.
Our interest in today's hearing relate to our concern that U.S. law
promote substantial justice in its implementation of the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. As a general proposition, our organization supports the
intentions and goals of the Convention against Torture. This is an
important treaty. Opposition to torture has long-standing support as
part of our nation's founding principles as articulated in the Eighth
Amendment to the Constitution of the United States. Nevertheless, even
the best intentions can have unintended consequences. The United States
has a well-developed system to entertain refugee and asylum claims. We
cannot believe it was the intention of those drafting the convention to
override the sovereign prerogative of any nation to rid itself of
aliens judged a threat to public safety, security or the best interests
of the nation.
Mr. Chairman, FAIR testified on September 28, 2000 before this
committee raising a variety of concerns, many of which have been borne
out by subsequent events. The CAT was signed by the United States in
1988 and became effective for this country March 22, 1999. We argued
then, and continue to argue, that CAT was not designed to create a new
avenue for immigration relief that would allow people to avoid
consequences associated with past bad behavior--including serious human
rights abuses, serious criminal activity, persecution, violations of
religious freedom, offenses against humanity, terrorism, genocide and
torture. This is what current regulations provide.
The Senate Report accompanying treaty ratification (Senate Report
101-30) (1990) stated CAT's purposes as a treaty. There is no mention
of the nation creating a new right of action for those unsuccessful in
obtaining asylum under U.S. law. Rather, the organic purpose of CAT is
to create modifications to each nation's criminal law to eliminate
torture (in our case here in the U.S.) and provide a legal recourse for
those who have suffered torture at the hands of state actors.
Evidence for this proposition can be found in the fact that CAT has
no provision for exclusion of criminals and other serious human rights
violators from its protection. As now interpreted by immigration
courts, the convention and its implementing rules override provisions
that would cause their removal. This is probably because CAT was not
intended to become part of any nation's domestic immigration law
procedures. Prior to CAT--and FAIR believed during deliberations
leading up to the treaty--the existing rules under INA Sec. 241(b)(3)
governing ``withholding of removal'' would cover torture claims while
retaining ineligibility for those aliens who are aggravated felons or
otherwise undesirable. We believe that was the prevailing view at the
time. There was certainly no broad public debate while CAT was being
deliberated in the Senate to suggest that this treaty would force a
major rewrite of U.S. asylum and refugee law. I refer to my previous
testimony for discussion of the deliberations leading to the current
CAT regulations.
Proponents of existing regulations view the Torture Convention as
creating an absolute bar to refoulement for anyone who makes a torture
claim, even if the person operated a death camp in World War II,
ordered the mass murder of millions or sought to destroy an entire
people. While this continues to be their position, the definition of
torture is persistently sought to be expanded to include a variety of
private acts claimed to be state action via the tenuous route of
asserting these private acts took place via the ``consent or
acquiescence'' of a public official. (To support our claim that the
standard for official ``consent or acquiescence'' is expanding, I refer
to recent federal appellate court decisions that have begun to assert
that Congress did, in fact, intend to prevent us from removing criminal
aliens or serious human rights abusers; in a recent case by one who
claims to have been threatened abroad with violence by mafias, who the
alien himself had previously hired as smugglers--so long as the local
police in the native country are alleged as ``aware'' of such threats
and fail to provide protection (Li Chen Zheng v. Ashcroft No. 02-70193,
9th Cir. June 18, 2003). See also Zubeda v. Ashcroft (No. 02-2868, 3rd.
Cir. June 23, 2003) [adverse credibility determinations in asylum
claims do not prejudice CAT claims on same facts; country condition
reports by ``unofficial'' organizations are probative evidence for CAT
withholding of removal; no requirement to show specific intent to
inflict pain to qualify for CAT relief; grant of asylum is
discretionary, but CAT relief is absolute and mandatory ].
Proponents of the absolute bar to refoulement claim that under CAT,
the U.S. can detain these aliens indefinitely and/or prosecute them
here under the ``universal jurisdiction'' provisions of the treaty that
allow courts to assert extraterritorial jurisdiction over the torture
offender as long as the offender is physically present within a
territory of the United States when he is served (18 U.S.C. 2430A). Our
understanding is that this new criminal cause has been asserted rarely
if ever by the Department of Justice. And a recent Supreme Court case
mentioned below suggests there are constitutional limits on the
detention of removable or excludable aliens.
Nevertheless, the Convention--whether intended or not--has created
an entirely new vehicle for aliens to try to delay deportation. Torture
claims now operate as another ``bite at the apple'' after asylum and
withholding remedies have been exhausted. As I say, the organic purpose
of CAT was to ``make more effective the struggle against torture and
other cruel, inhuman or degrading treatment or punishment throughout
the world.'' (Convention Against Torture, Preamble, 23 I.L.M. 1027). A
noble goal in the abstract, but in the implementation, the U.S. appears
to have tied its hands in, we expect, unintended ways. The U.S. appears
now to be unable to remove people who just about everyone would like to
see removed.
The INS parenthetically mentioned this massive loophole when the
proposed regulations for CAT were published on February 19, 1999
(Federal Register):
``[T]here are some important differences between withholding of
removal under section 241(b)(3) of the (Immigration and
Nationality) Act and Article 3 of the Convention Against
Torture. First, several categories of individuals, including
persons who assisted in Nazi persecution or engaged in
genocide, persons who have persecuted others, persons who have
been convicted of particularly serious crimes, persons who are
believed to have committed serious non-political crimes before
arriving in the United States, and persons who pose a danger to
the security of the United States, are ineligible for
withholding of removal. See INA section 241(b)(3)(B). Article 3
of the Convention Against Torture does not exclude such persons
from its scope.'' (Emphasis added.)
To reiterate, we seriously doubt that the Senate, when it ratified CAT,
intended to create a whole new category of immigration relief for those
ineligible for asylum or withholding of deportation. For that reason we
strongly support legislative efforts to correct the overly broad and
abusive interpretation of CAT protection.
THE MAGNITUDE OF THE PROBLEM
Mr. Chairman, when we testified on the need to correct the misuse
of the CAT protection in 2000, we indicated that we were concerned that
INS interpretation had created a loophole that would allow an
increasing number of serious human rights abusers and criminals to
remain in the United States. Currently available data bears out that
assessment.
Recent data from the Executive Office of Immigration Review (EOIR)
records 683 cases between 1998-02 in which CAT protection was asserted
for aliens found deportable in cases involving criminal charges. All
these cases were sent to the Board of Immigration Appeals (BIA).
Although these cases cannot be tracked with precision, it appears that
only about 150 of these individuals have been removed and only about 30
are still detained, implying that around 500 of these otherwise
removable aliens may have been released back into U.S. society. It goes
without saying that the fact that these individuals were found
removable and their cases involved criminal activities or human rights
abuse means that the likelihood of danger to the American public is
increased by the release of these aliens. I would point out that this
is occurring just after a period when the Executive Branch had made
deportation of criminal aliens its ``highest'' public enforcement
priority.
Another problem with the CAT protections is that the claim can be
asserted after other claims for relief have failed. Because this
protection may be sought following the full consideration of
protections for an alien in removal proceedings, including eligibility
for asylum, it offers a subsequent opportunity to overturn or delay
removal. This is attractive as a delaying tactic. Further, the lack of
specificity regarding the scope of CAT protection has invited appeals
to the BIA seeking CAT relief in cases of spousal abuse, genital
mutilation, child abuse, etc. The United States does not and should not
condone any of these practices, and yet these claims are reminiscent of
``social status group'' claims persistently made under asylum law. As
much as we disapprove of these practices--indeed in some cases they
shock our conscience--they do not involve state practices of torture
and should be defined within the BIA appeal system by legislative
clarifying language to discourage such claims.
Let's look more closely at how ``torture'' is defined: The language
of Article I of the Convention is clear. Torture is defined as ``any
act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from
him or a third person information or a confession, punishing him for an
act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for
any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an
official capacity [emphasis added]. It does not include pain or
suffering arising only from, inherent in or incidental to lawful
sanctions.'' We are already seeing the definition of torture being
expanded by the appellate courts while CAT claims are being considered
as claims entirely separate from asylum claims from the same claimant.
The Senate, in consenting to the U.S. adoption of the Convention,
expressed its understanding that, for an act to be performed with the
``acquiescence'' of a public official, the public official must ``prior
to the activity constituting torture, have awareness of such activity
and thereafter breach his legal responsibility to intervene to prevent
such activity.'' (136 Cong. Rec., supra note 4, at S17491-92.)
Demonstrating the type of cases that suggest the need for
Congressional action are two in which the BIA granted CAT relief from
removal to persons implicated in murders. In one, a Gambian national
(Matter of Kebbem--BIA 2000), who had fled his country after murdering
a man at a soccer game, was judged more likely than not to be tortured
by government officials if he were returned to the Gambia on the basis
of a State Department country report finding that the government had a
reputation for physically abusing detainees held for political and
security offenses. In another, an Uzbek national (Matter of Gaziev/
Gazieva--BIA 2002) who was implicated in the 1994 Dendro Park shootout,
a notorious public mass killings that left five dead in Uzbekistan, was
also granted CAT protection. The BIA found that the lead respondent and
his family would be more likely than not to be tortured to obtain
confession regarding his involvement in the slayings. In the case of
the Gambian, it appears from information provided by the Department of
Homeland Security that he has since chosen to return voluntarily to
Gambia, thereby belying his earlier assertion of fear of torture.
As is the case with many asylum claims, our concern persists over
the methodology used for finding that an alien has a well-founded fear
of persecution or torture: we have consistently called attention to the
process's reliance on generic background information, like the State
Department country reports and other documents often compiled by biased
sources, rather than being based on objective documentary information
or evidence.
There are limits to the utility of Country Condition reports.
Experience with the return of Cubans to Cuba provides a reality check
on such assessments. It was long alleged by advocates for admitting all
Cubans who escaped the island that any Cubans returned to Cuba would be
imprisoned and abused. Following the policy shift by the Clinton
Administration in the mid-1990s to return Cubans intercepted at sea to
Cuba, State Department officials and international organizations
monitoring the status of returned Cubans established that the returned
Cubans were not subjected to mistreatment. This demonstrates the gap
between the rhetoric of possible persecution used to support a liberal
admission policy and the practical reality revealed by experience. As
in the case of asylum claims, it also exposes the very real risk of
fraud.
Mr. Chairman, we believe Congress needs to intervene to further
clarify the scope of remedies available under CAT. The Foreign Affairs
Reform and Restructuring Act (FARRA) of 1998 implemented the so-called
``nonrefoulement'' provisions of the Convention Against Torture (8
U.S.C.S. Sec. 1231 note). That legislation specifically called for the
exclusion from CAT protection of criminal aliens and serious human
rights abusers to the maximum extent consistent with the Senate's
conditions on ratification of the Convention (FARRA Sec. 2242(c)). The
Secretary of Homeland Security is authorized to terminate deferral of
removal under CAT upon receipt of diplomatic assurances obtained by the
Secretary of State that the alien would not be tortured if removed, or
if an immigration judge finds changed circumstances (8 C.F.R.
208.18(c), 208.17(d)).
Despite such clear direction from Congress that CAT be applied
sparingly, restrictively, and so as to induce compliance with
humanitarian norms by foreign states, we have seen the administrative
agencies and the Ninth Circuit move recklessly to interpret the
Convention in the broadest sense, as an immigration program for highly
undesirable aliens, with no indication that grave and fully documented
abuses of human rights have been reduced or discouraged in any way.
Building an increasingly expanding exemption from removal for
illegal aliens, especially aliens involved in criminal activities, on a
system where there is little if any objective criteria to guide
informed decisions, as has been done with the CAT screening criteria,
is unfair both to the adjudications system and to the American public.
Most incomprehensibly, it rewards human smugglers, torturers, and other
serious abusers, by encouraging the very traffic it purportedly was
intended to curb.
CORRECTING THE PROBLEM
The option of continuing to detain removable aliens until such time
as removal can be effectuated has been eroded by the 2001 U.S. Supreme
Court ruling in Zadvydas v. Davis (533 U.S. 678), holding that
removable aliens may not be held indefinitely. The erosion in the
Attorney General's authority to detain removable aliens has changed the
entire framework for analyzing the impact of CAT on our immigration
rules. If the U.S. loses the option of indefinitely detaining criminals
and human rights abusers, this country must make a more vigorous effort
to remove these people quickly. There are two avenues by which Congress
could restore protection to American society from the threat from
foreign criminals who otherwise are likely to be released under the CAT
provisions.
1. The CAT responsibilities assumed by the United States were
not self-executing, as the Senate stipulated in its advice and
consent, Congress thus has the authority for specifying the
criteria for the CAT's implementation. It would be our
preferred option for Congress to specify that CAT protections
are not absolute, and do not apply to serious criminals and
human rights abusers. More generally, we would like to see
claims brought under CAT reintegrated within the asylum and
withholding of removal process and considered within the same
legal claim. Further, any adverse credibility determinations
made during the asylum process should also operate to bar a CAT
claim. In conjunction with this approach, the Department of
State should be encouraged to obtain commitments from the home
country that a returned alien will not be subject to torture,
or to attempt to find safe third countries willing to allow the
alien(s) to enter. Where torture claims are based on claims of
official acquiescence in torture, the standard of proof must be
raised and the nexus between state action and private actors
must be better defined. Finally, the U.S. should bar general
immigration from any country that refuses to guarantee the
safety and security of their nationals returned from the United
States.
2. To prevent the alien from being released back into American
society, the United States could assume responsibility for
obtaining evidence from the home country about the crimes
committed by the individual and effecting prosecution in the
United States for those crimes. This, although possible under
The Torture Victims Protection Act (18 U.S.C. 2340A), would
involve an onerous assumption of new investigatory and
prosecutorial responsibilities for the U.S. government. The
downside of this approach is that the U.S. taxpayer will be
absorbing tremendous costs associated with prosecuting people
for crimes not committed in this country or affecting citizens
or nationals of the United States.
The trend in expanding the definition of who is a member of a
``particular social group'' and in adding new categories of
beneficiaries, as was done by Sec. 601 of IIRAIRA, has already put an
unfair and unmanageable burden on the asylum/CAT adjudication process.
Mr. Chairman, our view of the problems that have arisen under
administration of the CAT protections has not changed from what we
already saw as a troubling trend in 2000. As we said at that time,
``For those who have been barred from relief by the aggravated felony
rules, the CAT provides one more ``bite at the apple.'' While many of
those claims may have merit, our concern is that over time, advocates
will work to broaden the CAT definitions to create an ever-widening set
of immigration loopholes. This is based on plenty of experience in the
field. We are concerned 1) that many aggravated felons will be
successful in remaining in the country in ways never intended or
foreseen under asylum law, and 2) that the CAT will become the basis
for expanding the definition of ``torture'' in new and novel ways that
will include virtually all forms of regressive cultural and domestic
practices where it can be alleged there is no modern state compliance
with Western norms of civil protections.'' Since 1999 we have witnessed
just such an undesirable and troubling development in the legal
definition of ``acquiescence'' to torture.
The subsequent events, court rulings and the new data cited above
indicate that our earlier assessment was correct. If Congress does not
act, it is clear that the problem will expand further, that undesirable
and dangerous aliens who illegally enter the United States will be
harder to remove, that trafficking will become more violent, less
risky, and more profitable, and that the American public will be placed
at unnecessary risk.
Mr. Chairman, we encourage you and the members of this Subcommittee
to initiate legislation that will limit the scope of CAT protection so
that perpetrators of serious crimes and serious human rights abuse are
brought to justice. At the same time, we urge that the scope of CAT
protections be defined to clarify what is ``state acquiescence'': this
term should be clarified to insure it does not include actions by
private persons merely operating under a generalized condition of civil
violence or organized criminal activity.
Mr. Chairman, this is an extremely difficult and challenging
subject. We all want to be sensitive to the very real threats that
exist for those who may be subject to some form of torture. As in all
areas of public policy, this one requires a balancing of interests.
FAIR works to assert the general interest of effective immigration
controls, and I hope my testimony has adequately reflected that
balance.
Thank you again for the opportunity to testify before the
committee. I would be happy to answer any questions you or any other
member of the subcommittee may have.
Mr. Hostettler. Ms. Germain.
STATEMENT OF REGINA GERMAIN,
GEORGETOWN UNIVERSITY LAW CENTER
Ms. Germain. Thank you, Chairman Hostettler and Ranking
Member Jackson Lee and Members of the Committee. I very much
appreciate the opportunity to testify before you today, and I
am honored by this opportunity.
I appear before you today to defend a fundamental principle
of human rights law, a principle that no human being should be
or deserves to be tortured; not here, not anywhere. There are
no exceptions. Torture can never be justified or condoned by
the United States. It is a heinous act, and it is recognized as
such by the world community. And in an effort to eliminate
torture and prosecute torturers, over 150 countries of the
world have signed the United Nations Convention Against
Torture, including, of course, the United States.
Since the Convention Against Torture has been implemented
in the United States, only a small number of individuals have
benefitted from the protection. It is an extraordinary remedy,
used only in the direst of circumstances, and according to the
statistics issued by the Executive Office for Immigration
Review, between 1999 and 2002, only 339 individuals who were
found ineligible for asylum or withholding of removal because
of criminal grounds have been found to be eligible for deferral
of removal. So I am focusing on a different number than other--
the Members of the Committee have, and other panelists, but I
think the key number to look at in these statistics is the
number 339.
It is not and has never been an avenue for permanent
residency, the Convention Against Torture relief. Unlike
asylum, individuals granted Convention Against Torture relief
have no right to remain permanently in the U.S. In fact, I
would say that deferral of removal under the Convention Against
Torture is the most precarious and restricted immigration
relief under the Immigration and Nationality Act, but it has
saved lives and it has prevented torture.
This morning I would like to address five points regarding
the Convention Against Torture relief for your consideration.
First and foremost, barring human rights abusers or serious
criminals from protection under Article 3 would violate U.S.
obligations under the convention. Article 3 contains no
exceptions or limitations. The drafters of the Convention
Against Torture--and the U.S. was involved in the actual
drafting of the convention--the drafters in their foresight
recognized that torture is an evil that can never be condoned.
The Senate also acknowledged this fact by adding no
understandings or reservations regarding possible exceptions to
the nonreturn provision. And I would disagree with my fellow
panelists that the Senate never considered the possibility that
this would be a form of relief, because the Senate actually
uses the same--imposed the same standard of review for
Convention Against Torture relief that is used for withholding
of removal. It used very similar language, more likely than not
standards, so I would say that the Senate did consider that it
would be another means of seeking relief within the U.S..
In passing implementing legislation in 1999, Congress also
recognized that any restrictions or limitations on relief under
the convention had to be consistent with U.S. obligations under
the convention, and only, quote, to the maximum extent
consistent with the obligations of the United States under the
convention could the U.S. exclude from protection persons who
would otherwise be barred from withholding of removal, such as
individuals who committed serious crimes or people who are
security risks to the U.S..
And I would agree with Mr. Verdery that existing laws and
regulations do adequately protect the American public from
human rights abusers and serious criminals who benefit from
protection under the convention. As the Supreme Court
recognized, noncitizens who cannot be removed from the United
States may continue to be held in detention under special
circumstances, and that is from the Zadvydas v. Davis case. The
regulations promulgated after Zadvydas allowed for the
detention of people who are--noncitizens who are detained on
account of security- or terrorism-related grounds or determined
to be especially dangerous, that is, individuals who have
committed one or more crimes of violence and are likely to
engage in violence in the future. Also, the USA PATRIOT Act
allows for the Attorney General to detain suspected terrorists
even if they are granted relief from removal.
The convention also allows individuals to be returned to a
home country if the U.S. obtains diplomatic assurances from
that country. And the U.S. has used it in at least one case, a
case reported in the Washington Post of a Saudi Arabian who was
involved in the Khobar Towers bombing that killed 19 U.S.
Customs Service men, and the U.S. sought assurances from Saudi
Arabia that the individual would not be tortured upon return,
and removed the individual from Saudi Arabia to face trial and
possible execution if he was found to be guilty.
It is unclear, however, whether the U.S. has a system in
place to monitor whether diplomatic assurances actually prevent
torture or whether the U.S. would seek the return of anyone who
was subjected to torture despite diplomatic assurances.
My third point is that human rights abusers can and should
be punished. The convention itself calls upon states to
criminalize torture. We have a statute in our own country that
criminalizes it, and to prosecute torturers found within their
territories. If the U.S. feels that it lacks jurisdiction, it
could and should send these violators to another country or
jurisdiction that would prosecute the person. Allowing them to
be tortured instead of punished only compounds the atrocities
that they have committed by condoning torture as a legitimate
form of punishment. Victims of torture want justice. They do
not want to perpetuate the use of torture.
Fourth, deferral of removal is an extraordinary form of
relief available only to individuals who prove it is more
likely than not. And I would disagree with Mr. Stein. I would
say that convention has been interpreted narrowly by our
courts. It is not available to individuals who only present
isolated instances of torture in their home country, as the
Board of Immigration Appeals has found. It is not available to
individuals fearing harm that does not rise to the level of
torture such as inhumane prison conditions.
In addition, torture at the hands of a nongovernment actor
does not meet the convention's definition of torture unless the
Government acquiesces, consents; and the Senate in its
foresight has found that acquiescence means that you have to
have knowledge that torture is going to take place and breach a
duty to intervene.
And even when a person manages to obtain a grant of
deferral, his status is a precarious one. It can be revoked in
10 days on new or even previously existing evidence. In a
revocation hearing, the burden remains on the applicant to show
that there continues to be a substantial risk of torture. And
deferral only precludes the removal of the individual to the
country where torture is likely, not to any other country.
Lastly, the Convention Against Torture has at times been a
safety net for people whose crimes in the U.S. or abroad have
been relatively minor. And during my time at the United Nations
High Commissioner for Refugees here in Washington, we often
came across a number of cases of individuals who should have
been eligible for asylum relief, but for a minor crime were
found ineligible, and the Convention Against Torture was their
safety net.
In conclusion, I would urge you to continue the U.S.'s
commitment to the principle that no human being should be or
deserves to be tortured and to the U.S.'s commitment to
eliminate torture worldwide. Thank you very much.
Mr. Hostettler. Thank you, Ms. Germain.
[The prepared statement of Ms. Germain follows:]
Prepared Statement of Regina Germain
Chairman Hostettler, Ranking Member Jackson Lee and Members of the
Subcommittee:
Thank you for the opportunity to testify today. I am honored. I
have been practicing asylum and refugee law since my graduation from
law school in 1989. In my very first asylum case, a member of Congress
from Erie, Pennsylvania was instrumental in assisting my client and her
family in obtaining protection in the United States. That member of
Congress was Tom Ridge, now Secretary of the Department of Homeland
Security. Needless to say, I quickly learned the important role
Congress plays in the asylum process. When I was Senior Legal Counselor
for the United Nations High Commissioner for Refugees from 1995 to
2001, the bars to asylum were greatly expanded. As a result, UNHCR
advocated for changes to existing law and assisted asylum-seekers
barred by minor criminal offenses in seeking relief under the
Convention Against Torture (CAT), even before implementing legislation
was passed. I have closely followed the implementation of Convention
Against Torture relief since that time. I am the author of an Asylum
Primer, published by the American Immigration Lawyers Association,
which contains a comprehensive chapter on CAT relief. I am also a
frequent presenter on the Convention Against Torture. During my recent
fellowship at Georgetown University Law Center, I taught classes on
asylum and the Convention Against Torture and advised students whose
clients were seeking CAT relief, in addition to asylum.
I appear before you today to defend a fundamental principle of
human rights law; the principle that no human being should be or
deserves to be tortured. Not here, not anywhere. There are no
exceptions. Torture can never be justified. It is a heinous act and
recognized as such by the world community. In an effort to eliminate
torture and prosecute torturers, over one hundred and fifty countries
have signed the United Nations Convention Against Torture, including,
of course, the United States. Last month, President Bush confirmed the
U.S.'s continuing commitment to this principle when he stated: ``The
United States is committed to the world-wide elimination of torture and
we are leading this fight by example.'' President George W. Bush (June
26, 2003).
The Convention Against Torture was signed by the United States on
April 18, 1988, under the leadership of President Ronald Reagan. The
Senate adopted its resolution of advice and consent to ratification on
October 27, 1990 during the Presidency of George H. W. Bush. The treaty
did not become effective until November 1994, one month after it was
deposited for ratification with the United Nations Secretary General.
In 1998, Congress enacted legislation to implementing Article 3, the
non-return provision, of the Convention Against Torture without
reservations. Regulations incorporating key provisions of the
Convention, as well as the Senate understandings, were promulgated in
1999.
Since that time, only a small number of individuals have benefited
from protection under the Convention Against Torture. It is an
extraordinary remedy used only in the direst of circumstances.
According to statistics from the Executive Office for Immigration
Review, between 1999 and 2002 only 339 individuals found ineligible for
asylum protection because of crimes, but in danger of torture upon
return to their home countries, have benefited from the Convention
Against Torture in the United States. It is not and never has been an
avenue to permanent residency for human rights abusers or dangerous
criminals. Unlike asylum, individuals granted Convention Against
Torture relief have no right to permanent resident status. In fact,
deferral of removal under the Convention Against Torture relief is the
most precarious and restricted immigration relief under the Immigration
and Nationality Act. But it has saved lives and it has prevented
torture.
This morning I would like to address five points regarding
Convention Against Torture relief for your consideration.
First and foremost, barring human right abusers or serious
criminals from the protection of Article 3 would violate U.S.
obligations under the Convention Against Torture. Article 3 of the
Convention contains no exceptions or limitations. The drafters in their
foresight recognized that torture is an evil that can never be
condoned. The Senate also acknowledged this fact by adding no
understandings or reservations regarding possible exceptions to the
non-return provision. In passing implementing legislation in 1998,
Congress also recognized that any restrictions or limitations on relief
under the Convention had to be consistent with U.S. obligations under
the Convention. See Section 2242(c) of the Foreign Affairs Reform and
Restructuring Act of 1998 (which provides that only ``to the maximum
extent consistent with the obligations of the United States under the
Convention [could the U.S.] exclude from protection [individuals barred
from withholding of removal for security-related or criminal
offenses]'').
Second, existing laws and regulations adequately protect the
American public from human rights abusers and serious criminals who
could benefit from protection under Convention Against Torture. The
Supreme Court has recognized that non-citizens who cannot be removed
from the United States may continue to be held in detention under
``special circumstances.'' Zadvydas v. Davis, 533 U.S. 678, 691 (2001).
Regulations promulgated after the Zadvydas decision have defined these
special circumstances to include cases of non-citizens who are
``detained on account of security or terrorism related concerns'' (8
CFR 241.14(d)) or ``determined to be especially dangerous,'' i.e.
individuals who have committed one or more crimes of violence and are
likely to engage in violence in the future (8 CFR 241.14(f)).
Additionally, the USA PATRIOT Act allows the Attorney General to
certify and detain a suspected terrorist even if such person has been
granted relief from removal. See INA Section 236A(a)(3)(A).
The regulations implementing the Convention also allow the U.S. to
return an individual to his home country if the U.S. obtains diplomatic
assurances from that country that the individual will not be tortured.
See 8 CFR Section 208.18(c). The only case I am aware of involving
diplomatic assurances occurred in 1999. As reported in the Washington
Post, the U.S. deported Hani Abdel Rahim Sayegh, an individual
suspected of involvement in the Khobar Towers bombing that killed 19
U.S. servicemen in Saudi Arabia The Saudi government provided
assurances that Sayegh would not be tortured upon return and as a
result he was returned to face trial and possible execution if
convicted. It is unclear, however, whether the U.S. has a system in
place to monitor whether diplomatic assurances actually prevent torture
or whether the U.S. would seek the return to the U.S. of an individual
who has suffered torture despite diplomatic assurances. I would urge
this Committee to consider legislation to provide such safeguards.
Third, human rights violators can and should be punished. The
Convention Against Torture itself calls upon States to criminalize
torture and to prosecute torturers found within their territories. If
the U.S. lacks jurisdiction to prosecute, it could and should send
these violators to a country or jurisdiction that will prosecute and
punish them, not return them to torture. Allowing them to be tortured
instead of punished only compounds their atrocities by condoning
torture as a legitimate form of punishment. Victims of torture want
justice. They do not want to perpetuate the use of torture.
Fourth, deferral of removal under the Convention Against Torture is
an extraordinary form of relief available only to individuals who prove
it is more likely than not they would face torture by the government
upon return to their home country. 8 CFR 208.16(c)(2). Case law and
regulations show that Convention Against Torture relief has been
interpreted narrowly. It is not available to individuals who present
only isolated instances of torture in their home country. Matter of J-
E-, 23 I&N Dec. 291 (BIA 2002). It is not available to individuals
fearing harm that does not amount to torture, such as inhumane prison
conditions. Id. Similarly, pain or suffering that is incidental to
lawful sanctions does not rise to the level of torture, as long as
those sanctions do not defeat the purpose of the Convention to prohibit
torture. 8 CFR 208.18(a)(3). In addition, torture at the hands of a
non-government actor does not meet the Convention's definition of
torture unless the government acquiesces or consents to the torture.
Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000). Even when a person manages
to obtain a grant of deferral of removal under the Convention Against
Torture, his status is a precarious one. It can be revoked in 10 days
based on new or even previously existing evidence. 8 CFR 208.17(d)(1)
and Office of Chief Immigration Judge, Operating Policies and
Procedures Memorandum No. 99-5 (May 14, 1999). In a revocation hearing,
the burden remains on the applicant to show that there continues to be
a substantial risk of torture if he is returned. 8 CFR 208.17(d)(3).
Moreover, a grant of deferral only precludes the removal of the
individual to the country where torture is likely, not to any other
country willing to accept the individual.
Lastly, the Convention Against Torture is, at times, a safety net
for people whose crimes are relatively minor but who are, under current
law, ineligible for asylum and withholding of removal. Over the course
of my legal career, I have seen numerous instances of such cases. Here
are three examples:
A teenager who threw a rock through a window of an abandoned
apartment building and merely reached in the building (but took
nothing) was convicted of burglary of a habitation and
sentenced to five years. He served only nine months, but was
found by an immigration judge to be ineligible for asylum or
withholding of deportation.
A young man who was admitted to the U.S. as a refugee in 1994
was convicted of kicking a police officer in South Dakota when
the officer was arresting him and several other individuals who
were arguing in a bar. The judge sentenced him to 10 years, but
suspended the entire sentence, admonishing him to avoid places
that sell alcohol and to pay restitution of $154. There was no
weapon involved and no serious injury reported. He was detained
by INS in April 1996 and was found ineligible to apply for
asylum or withholding by the immigration judge.
A man who had been severely tortured by security forces in his
home country because of his political activities entered the
U.S. as a refugee in 1990. He was later convicted of
involvement in a robbery involving $10 and possession of drug
paraphernalia. He was sentenced to just over five years and
served three years and four months. He was found to be
ineligible for asylum and withholding of removal.
In conclusion, I would urge you to continue the United States'
commitment to the principle that no human being should be or deserves
to be tortured.
Thank you for giving me this opportunity to present my views.
Mr. Hostettler. We will now move to the round of questions
by Members of the Subcommittee. My first question is to you,
Mr. Verdery. In your testimony you state that the U.S.
determination to adhere to the convention may pose a challenge
to the Government's ability to protect the public. And you also
state that as a result of Zadvydas, that while terrorists and
other especially dangerous individuals may be exempt from the
ruling--I am interested by that concept that they may be exempt
from the ruling, because we don't really know that they are at
this point. According to your testimony, many other serious
criminals and other threats to public safety must be released
under Zadvydas. It is your testimony, then, that there are
times when judgment of adhering both to the convention and to
the guidance under Zadvydas by the Supreme Court, that in fact
public safety is compromised as a result of these actions,
these releases of criminals into society.
Mr. Verdery. Well, Mr. Chairman, it is clear that there are
circumstances where this combination of the treaty, the court
case, and the fact patterns involving any particular applicant
for the relief may result in a release of somebody who we would
prefer not to have on the streets. It is important to keep in
mind, though, that if a person is here in this country and
commits a crime, the crimes that we think of as the most
dangerous, murders, et cetera, if they are prosecuted, they are
going to jail. And so this problem of a particularly dangerous
person.
The cases you mentioned in your opening remarks, the
gentleman from the Ukraine and the gentleman from Gambia who
has since departed, involved cases where criminal activity was
overtaken overseas, then the person came to our country. So it
is important to remember that while there are fact patterns
that are troublesome and are worthy of attention, that it is
not the case that people who are committing crimes in this
country of a real serious nature are released.
Mr. Hostettler. Generally speaking, however, except for CAT
protection, a foreign national who has committed--known to
commit a crime in a foreign country is subject to removal--who
is here illegally is subject to removal----
Mr. Verdery. Unless he would fall into some other
exception, of course, yes. Right.
Mr. Hostettler. And in general, because we believe as a
country that if they have committed a serious crime in another
country, it is not unlikely--more likely that they would commit
a serious crime in this country as opposed to the rest of the
population in our country.
Mr. Verdery. It is clearly our policy that aliens who
commit crimes under normal circumstances should be deported.
And I can tell you that, again, our Department is relatively
new. The Border and Transportation Security Directorate headed
by a former Member of this Committee, Asa Hutchinson, one of
his top priorities is to approve the removals process,
especially for those who have committed crimes, but this one
fact pattern does present us with a challenge.
Mr. Hostettler. That leads to my second question. You state
that aliens granted CAT protection make up less than 1 percent
of criminal aliens who since 1999 have been released from
custody after a final order of removal. Why are all these
serious criminals being released after a final order of
removal? Could you explain to us why?
Mr. Verdery. The Zadvydas opinion requires that people who
are under an order of removal who can't be removed be released.
And the normal--I mean, the overwhelming majority of these are
situations where we can't return the person back to the country
from which he came, because they won't accept them. Which
raises the obvious problem: In countries that have the most
problems, places like Vietnam and Cuba, we need a general
improvement of democratic conditions of these countries. We
need to work better with them on a foreign policy front to try
to negotiate deportation of these large numbers of people back
to their countries.
I would just say one of the many benefits of the actions
recently taken in Iraq and Afghanistan may be that we will now
be able to deport criminal aliens back to those countries. I
know there is--I believe it is 57 of the CAT grantees are from
Iraq, and 20 I believe from Afghanistan. The change in country
conditions merits a review of those cases to see if now those
people can be sent back to their home countries.
Mr. Hostettler. Excellent point. Thank you.
Mr. Rosenbaum, you mentioned that defendants in OSI cases
have refrained from filing CAT claims, with the exception of
one presumably, because the Government has sought their removal
to--your opinion--countries that are signatories to the
convention. Do you believe that aliens should automatically be
barred from seeking CAT relief from deportation to signatory
countries, signatory to the convention?
Mr. Rosenbaum. Well, that is not something that the
Department has studied, so I am not sure what the Department's
view would be on that. But the law is clear that if they can
establish that they will more likely than not be tortured, even
in a European country, they will be entitled to----
Mr. Hostettler. Including a country that has signed the
Convention Against Torture?
Mr. Rosenbaum. Certainly, yes.
Mr. Hostettler. With that, Ms. Germain, I would like to ask
you the question, Do you think an alien should be able to claim
CAT relief from a country that is a signatory to the Convention
Against Torture?
Ms. Germain. And this issue actually--has actually come up
at the Committee Against Torture which adjudicates some of the
claims under the Convention Against Torture, and it found that
even if a country is a signatory, if the individual can show
that torture is more likely than not within that country if he
is returned there, he is eligible for relief. And the case
involved the country of Turkey.
Mr. Hostettler. What do you think of the integrity of a
convention whose signatory--Convention Against Torture whose
signatory countries commit torture?
Ms. Germain. Well, this issue did come up in the Senate
when the Senate was----
Mr. Hostettler. Well actually, I am just wondering--your
perspective.
Ms. Germain. I would agree with the Senators who said it is
a step in the right direction. The countries have signed it; it
is a step in the right direction. The purpose is to eliminate
torture. But unfortunately sometimes torture still occurs
within these countries.
Mr. Hostettler. We have received testimony that essentially
in order to change some of these countries, that the United
States of America has to invade them militarily. Do you think
that that is--in many cases, is that what is changing these
countries? Do they not do it voluntarily?
Ms. Germain. I don't know if I can respond to that. I mean,
the United States has a vast array of carrots and sticks, and I
think using carrots also works.
Mr. Hostettler. Do you have an example of where a carrot
worked?
Ms. Germain. I am a little on the spot, but let me just
sort of draw from historical perspective.
From what I have read, during the Presidency of Jimmy
Carter, when human rights were a priority under his Presidency,
countries in Latin America specifically reported that there was
less persecution occurring because of funding that might be cut
off and things like that. But a specific example, I am sorry, I
just at the moment can't come up with one.
Mr. Hostettler. That is all right. I appreciate that.
Let's see, I had one other question. Mr. Stein, where do
you see that this CAT system is going if it is not changed? And
you have alluded to that to a certain extent, but where do you
see it going given the recent cases and the evolution of the
process?
Mr. Stein. It seems to be establishing a separate
immigration/asylum-type program, an avenue for relief, which is
going to, through the pressure of the number of claims and the
interpretation, grow dramatically over the coming few years.
The precedents that are being established and the
interpretations of both how torture is defined and how the
nexus is established between the private actors and State
action and the evidentiary issues and the probable high degree
of fraud mean that the cases will grow and the integrity of the
system will continue to erode. This seems to be the pattern
with an awful lot of these.
Congress in this case, the Senate sets up what they think
is a pretty precise legal standard. I also see this as being
abused intentionally by organized criminal smuggling
operations. So in the case of the Chen Zheng case, the claimant
simply said that he was threatened by somebody who said, you
know, You say anything to authorities and we are going to kill
you. And that was the basis on which he claimed there was
official threat of torture, claiming that he had seen some of
these snakehead operators have lunch with local officials.
If that is the kind of precedent we are establishing at the
appellate court level, it is going to be very difficult to
contain the tight evidentiary standard for the official
acquiescence component.
Mr. Hostettler. The Chairman yields himself 1 additional
minute for a follow-up question.
So it is your testimony that through the court system that
this process is evolving into a different type of immigration
law. Do you believe that this evolution was the intent of the
Congress when it passed implementing legislation, or even when
the Senate passed--ratified the convention?
Mr. Stein. I don't believe there was ever any discussion or
intention that this was going to set up an absolute bar. In
fact, I am quite sure that the OSI, for example, would have
probably been much more vocal given that, you know, if we had
ratified this convention 20 years ago, an awful lot of these
Nazi war criminals might have figured out ways of raising
torture claims. It is inconceivable that--because there was
virtually no public debate during that period on this whole
question of how we were ratifying a treaty which in its primary
operation was going to have a major effect not on eliminating
torture in other countries, but in forcing us to change our
immigration laws, harbor some of the worst people the world has
ever seen and, by extension through the universal jurisdiction
component, actually undertake a costly and expensive
prosecution at U.S. Taxpayers' expense to try to prosecute
these folks; which, of course, is unlikely to happen in all but
a handful of cases. So it is one of those things where we are
dealing with these abstractions, trying to do the right thing.
But what we are concerned about is what is happening, in fact,
and what we see in fact is happening is something never
contemplated by anybody.
Mr. Hostettler. Thank you, Mr. Stein. The Chair now
recognizes----
Mr. Verdery. Mr. Chairman, could I just add one point on
this point?
Mr. Hostettler. Yes, Mr. Verdery.
Mr. Verdery. I am sorry to interrupt, but as I mentioned
briefly, with the Department of Homeland Security being stood
up earlier this year, and the Immigration and Naturalization
Service being transferred into three parts, obviously now
within the Department, we have control over a large slice of
this issue and I think we are ready to take a fresh look at
this. The attorneys at the Immigration and Customs Enforcement
Bureau handle these cases on a trial basis on an individualized
basis. We would like to look at proposed solutions. We really
do want to minimize the risk that this treaty poses to public
safety and we want to take a fresh look at any carrot or stick
within our jurisdiction that should be utilized.
Mr. Hostettler. Thank you, Mr. Verdery. We very much
appreciate that.
The Chair now recognizes the gentlelady from Texas, the
Ranking Member, Ms. Jackson Lee.
Ms. Jackson Lee. I am not sure whether Mr. Verdery has
thrown in the towel. I am not sure what you are saying. What
are you saying? You are committed to looking at this
administratively and looking at all options. Is that what you
are saying?
Mr. Verdery. I am just saying that with the new chain of
command with BICE reporting out through the Border and
Transportation Security Directorate and then eventually the
Secretary, we have new people involved with this. And we would
like to--you know, any suggestions that people have to minimize
any kind of risk that this treaty combined with the court case
poses to public safety, we want to take a look at.
It is clear, I think, that at the end of the day there are
certainly going to be fact patterns where we are going to have
people released that we would rather have in custody. But we
are committed to trying to minimize that situation as much as
possible while maintaining our obligations to the treaty and to
the law.
Ms. Jackson Lee. Let me read you this: Despite such clear
direction from Congress that CAT be applied sparingly,
restrictively, and so as to induce compliance with humanitarian
norms by foreign states, we have seen the administrative
agencies in the Ninth Circuit move recklessly to interpret the
convention in the broadest sense as an immigration program for
highly undesirable aliens, with no indication that grave and
fully documented abuses of human rights have been reduced or
discouraged in any way.
Do you adhere to the fact that you have acted recklessly
and broadly?
Mr. Verdery. I am sorry. Whose quote is that?
Ms. Jackson Lee. Do you adhere to the fact that----
Mr. Stein. That is mine.
Ms. Jackson Lee.--that you have acted recklessly and in the
broadest sense? Do you adhere that the INS before you, and now
the Department of Homeland Security, do you agree with that
statement?
Mr. Verdery. No, I do not. It is my understanding that the
Ninth Circuit case that you referenced, we are considering an
appeal of that decision. We will have an opportunity to make
additional arguments concerning that factual situation, but no
I wouldn't agree with that assertion.
Ms. Jackson Lee. Thank you, Mr. Verdery. Let me refer to
your testimony as well. And I appreciate your openness and
willingness to listen to Congress, because we do have an
oversight responsibility. But as I listened to your testimony
in the beginning, let me track some of the comments that you
made.
Less than 3 percent of the applications are successful. Is
that accurate?
Mr. Verdery. That is my understanding, yes.
Ms. Jackson Lee. And you noted a figure of 558. I think
there is--Ms. Germain you had 339 in 2002--and then you said
less than 15 percent of those were granted; is that accurate?
Mr. Verdery. That is my understanding.
Ms. Jackson Lee. And then let me--help me understand. Less
than 1 percent of criminal aliens, what was that comment about?
Mr. Verdery. That of the total universe of criminal aliens
who have had to be released into the public, less than 1
percent of them, it was because of the CAT protection. The
other 99 percent had relief for other reasons.
Ms. Jackson Lee. And therefore we are speaking about very
minute numbers at this juncture.
Mr. Verdery. Of the total group it is a small percentage.
Ms. Jackson Lee. Knowing how I have worked with the INS
before, and now of course the new bureau in the Department of
Homeland Security, we all know that the INS--that we have been
working with the INS over the years and we have all had our
comments. But I would like to say that I know and believe that
many of your personnel--and you noted your lawyers have been
vigorous--have been very diligent on many of these issues, and
I think it is appropriate to put that on the record. And so
when the numbers themselves suggest that you all have been
particularly diligent to comply with Congress's instructions,
the intent of the convention, but as well your
responsibilities, do you make that representation on the
record?
Mr. Verdery. Well, as my testimony stated, I believe that
the Department and its predecessor department has been diligent
in applying the law and the convention. But again we are always
anxious to do the best we can. If there are improvements that
can be made, we would like to look at them.
Ms. Jackson Lee. And I would imagine that the improvements
would be based upon a defined problem.
Mr. Verdery. Of course.
Ms. Jackson Lee. Let me--I am trying to see if this is your
testimony. Did you make the point that I think you did, that
most of the CAT applications would fail?
Mr. Verdery. I believe it is about 97 percent are
unsuccessful.
Ms. Jackson Lee. In my book that is a very large number,
and I would imagine that there is a detailed scrutiny on those
individuals which results in the 97 percent number of failures.
Mr. Verdery. That is right. And it is important to remember
that these are individualized opinions and decisions and not--
you can't just get a relief because you come from a certain
place.
Ms. Jackson Lee. Mr. Rosenbaum, let me--since you asked the
question, let me say, yes, the child has grown up very well. We
thank you for your work. Seventy-one Nazis off the street or
out of sight is a reason for applause and celebration. And I
think you said convicted since 1979. And I think that is
extremely helpful.
Help me understand now with the Department of Justice, and
I think--because I think there was some metaphor that my good
friend Mr. Stein was using, and I am not sure what that was.
But you said only one of those individuals had sought CAT
relief. Can you tell me the result of that, please?
Mr. Rosenbaum. That was the Szehinskyj case in
Philadelphia, and that CAT claim was rejected earlier this year
without a hearing.
Ms. Jackson Lee. So they sought relief and it was rejected.
Mr. Rosenbaum. It was denied.
Ms. Jackson Lee. And tell me the status of your work now in
that area you are pursuing and how are you working and
correlating even with now the new issues of terrorism?
Mr. Rosenbaum. We are aggressively pursuing 20 cases in
Federal courts; that is, in the Article III Federal courts and
in immigration courts around the country. We have over a
hundred individuals under investigation for complicity in World
War II crimes. Where we can help in cases involving more recent
horrors, we do. We were, for example, involved in assisting the
U.S. Attorney's Office in Miami in its successful
naturalization fraud criminal prosecution of the Cuban torturer
Eriberto Mederos and we look forward to more such opportunities
to be of service.
Ms. Jackson Lee. If, for example in the course of the
investigations you are now pursuing, there are CAT
applications, do you feel that the Department of Justice is
well staffed, or, as they say, well staffed with lawyers who
can diligently review and/or oppose those applications or find
them to be frivolous if so?
Mr. Rosenbaum. Well, I have always been very proud to be a
Department of Justice attorney, and some of the finest
attorneys I have ever met--I hope the Subcommittee won't
consider that an oxymoron--work at the Department of Justice.
So I am sure that we have many, many gifted attorneys who can
work on these cases.
Ms. Jackson Lee. And they will do that at the highest level
of diligence, I understand.
Mr. Rosenbaum. The Attorney General has told us that they
had better.
Ms. Jackson Lee. Well, you know, with only one application
out of the 71, and that one failed, I think you have been doing
a fairly good job. So as I said, the issue is the promise--
Chairman, if you will indulge me an additional 2 minutes for
questions that I need to pursue.
Mr. Hostettler. Without objection.
Ms. Jackson Lee. Mr. Stein, what is the--excuse me. What
immigration policies does FAIR support? Do you support
immigration pursuing--being pursued in the United States, or do
you have a policy of abolishing immigration totally here in the
United States? And if you support any policies, what are those?
Mr. Stein. We have a pretty long laundry list of both
policies and legislative recommendations which I am happy to
supply.
Ms. Jackson Lee. What is the bottom line of your position?
You have come before us, as you said, a hundred times and I
have never heard an immigration policy that you would embrace.
Which one do you embrace? Do you believe in the Statute of
Liberty where, Come one, bring us your forlorn into the United
States--which hasn't been torn down yet?
Mr. Stein. A policy that serves the national interest, that
responds to the best interests of all the American people.
Ms. Jackson Lee. What is that? What is the policy that
serves the national interest?
Mr. Stein. We would be happy with an annual immigration
rate of 200,000 a year, which is consistent with the last 400
years of American history.
Ms. Jackson Lee. So that you would support.
Mr. Stein. Sure.
Ms. Jackson Lee. That is good news to get that on the
record. I might ask you back to be a witness for me. You
actually have supported some kind of program dealing with
immigration. Let me ask you whether or not you have statistics
on criminal conduct among people with CAT protection who have
been released from custody. Can you give me those statistics?
Mr. Stein. You are asking me?
Ms. Jackson Lee. Yes. What are they?
Mr. Stein. One of the problems with the whole data
procedure----
Ms. Jackson Lee. Do you have statistics, any statistics on
criminal conduct among people with CAT protection who have been
released from custody? What is the percentage that we are
talking about?
Mr. Stein. I can't--they won't give us information on who
has been released.
Ms. Jackson Lee. Well, I heard statistics right here. I
heard statistics from Mr. Verdery, Ms. Germain.
Mr. Stein. I can't even get information on the basis of the
claim. The only way we know about the Hamadi case----
Ms. Jackson Lee. What are the criminal statistics that you
believe would suggest that we need to overhaul the convention
that protects those who have been tortured?
Mr. Stein. Well, I would suggest that when the BIA finds
that a guy is, quote, a danger to the security of the United
States----
Ms. Jackson Lee. A guy is quoted. Is that a guy----
Mr. Stein. BIA, the Board of Immigration Appeals. The Board
of Immigration Appeals held that Hamadi was a danger, quote, to
the security of the United States.
Ms. Jackson Lee. Is that Hamadi plural or Hamadi one?
Mr. Stein. Hamadi. The case is In Re Hamadi. The Board of
Immigration Appeals, October----
Ms. Jackson Lee. Regarding one individual?
Mr. Stein. It only took 18 guys to blow up the World Trade
Center and a few----
Ms. Jackson Lee. Regarding one individual.
Mr. Stein. I think we need to use the lamp of experience.
Ms. Jackson Lee. Regarding one individual.
Mr. Stein. And try to make recommendations that help us
understand what is going to happen.
Ms. Jackson Lee. Absolutely, to solve--you are absolutely
right.
Mr. Stein. I certainly wouldn't want to release this guy,
would you?
Ms. Jackson Lee. One individual. And I do believe that one
individual, you are probably right, can create havoc. But the
issue is that we are talking about principles of torture. We
are talking about numbers of 558 and 339 and we are talking
about absolute outrageous incidences of torture that some would
be subjected to, which I believe are clearly values of this
country as the President evidenced in June.
Ms. Germain, might you give an answer to me on the Hamady
case? Are you familiar with that?
Ms. Germain. On how many cases of people who have been----
Ms. Jackson Lee. No. He is referring to the Hamady case.
Ms. Germain. Oh, yes. My response to that would be that
clearly the Government of the United States has the ability to
detain this person. And also, if they were able to receive
diplomatic assurances that the person would not be tortured in
their home country, return them or criminally prosecute the
person possibly. So there are lots of different avenues to
pursue in this case.
Ms. Jackson Lee. And we don't have to--this individual does
not have to walk the streets. We can vigorously pursue this
kind of prosecution.
If I might conclude, you did not--you cited in your
testimony a teenager or young man, et cetera. Just give us an
example of the point that you are making about the fact that
you can be considered a criminal here in the United States for
minor offenses, but then be subjected to go back to your
country without this particular relief to a place where you
would be dismembered or something else would occur to you. Will
you highlight that for us, please?
Ms. Germain. Right. Yes. My point, my last point was that
individuals who should be eligible for asylum in the U.S.
Because their crimes are not so serious that they should be
returned to persecution are found to be ineligible for asylum
or withholding of removal. And as you see in this case, this
young man who happened to have been from--living in Houston
Texas, threw a rock----
Ms. Jackson Lee. He was from Libya?
Ms. Germain. No, he was living in Houston, Texas. And he
threw the rock through the window of an abandoned building, so
clearly wasn't endangering anyone, and reached inside. But
under State law, that is a burglary of a habitation, even
though it was unoccupied, and he was sentenced to 5 years which
would then bar him from asylum or withholding of removal. CAT
now is the only form of relief available to people who, because
of very strict criminal bars to asylum, would not benefit from
asylum or withholding of removal and some of the other cases
here.
Ms. Jackson Lee. And he might have been sent back to a
country that would torture him. Is that what you are saying?
Ms. Germain. Right. Or persecute him. Persecute him also.
Ms. Jackson Lee. I thank you very much. I thank the
Chairman for his indulgence.
Mr. Hostettler. Thank the gentlelady. The Chair now
recognizes the gentleman from Iowa, Mr. King, 5 minutes.
Mr. King. Thank you, Mr. Chairman. I will direct my first
question to Mr. Verdery. And can you tell this panel, is
there--what is the definition of torture that we are using
here?
Mr. Verdery. Well, I have to flip through my book here, but
it is a--I mean, it is a lengthy definition which requires more
than just an isolated incidence of abuse, requires a continued
pattern. And again the key word is more likely than not. So it
is not something--you know it is not a criminal standard. It is
very high.
Mr. King. This thought jumps into my mind as I hear the
penalty for knocking a window out of an abandoned building and
I think of the caning incident in Singapore. Would that be
included in the definition of torture?
Mr. Verdery. I am not sure. My understanding is that
punishments merited out as part of a legal proceeding by the
Government that wouldn't violate our view of the eighth
amendment would not be considered torture. But I want to get
back to you with a specific answer after the hearing, if I
could.
Mr. King. I would be very interested in that. And as you
discussed, the countries who will not receive our
deportations--you mentioned Cuba and Vietnam. Could you provide
us a broader list? How many countries is that, and what are
some of those?
Mr. Verdery. Oh, I am not sure. But let me see here of the
total list, let's see, we have Afghanistan, Cambodia, Cuba,
Iran, Iraq, Laos, Vietnam are some of the countries where we
are talking large numbers. There is a longer list of, you know,
smaller numbers that we can't deport.
Mr. King. And some of--those are those that they say will
not accept under any circumstances--our deportations to them
under any circumstances.
Mr. Verdery. I am not sure if it is under no circumstances,
but it has been the majority of circumstances, we have been
unable to deport.
Mr. King. And that is a list distinct from a list of
countries whom we can't be assured that they will not commit
torture on the persons deported to the second list of
countries.
Mr. Verdery. They are not related directly. I mean, of
course you might find some of the same countries; but again,
remember the determination for an individual claimant depends
on the individual facts of the case. There is no provision in
the regulations of the statutes that says if you are from
country X you are successfully granted the protection.
Mr. King. So this list, this might be broader than I might
envision. But also the court will determine in each individual
case whether they can return that individual to their home
country, if they will be accepted. So this list could grow,
case-by-case list of countries.
Mr. Verdery. No, it is not the court deciding whether or
not that the home country would accept them. That is a
provision that is negotiated with the State Department. The
court decides whether or not they have an individualized
justifiable fear of torture more likely than not.
Mr. King. Correct. I understand that. So we are dealing,
though, with a list of countries that, as that determination is
made case by case, could get longer and longer.
Mr. Verdery. I suppose so, yes.
Mr. King. And is likely to do so.
Mr. Verdery. I am sorry?
Mr. King. And probably is likely to get longer.
Mr. Verdery. Well I mean, again, it depends on what is
happening in those host countries. I mean, you could have
countries where there is improvement in the democratic
conditions--Iraq, Afghanistan, or places we are hopeful. There
are other countries where originally determinations were made
of conditions, and then improvements were made. We have been
able to send observers into certain countries to improve
conditions and then minimize the likelihood that a fact finder
would find that they have a more likely than not likelihood of
being tortured.
Mr. King. Thank you. Do you agree with the statement that
was made that we have other alternatives to detain and
incarcerate those released under Zadvydas.
Mr. Verdery. Well, there are other ways. The BICE is
working aggressively in certain cases where we feel we may end
up having to release somebody under Zadvydas to try to
negotiate a bond settlement so that before they are released we
can have some conditions on their release, such as checking in
with a monitor within BICE, these other kinds of conditions, so
we at least have some idea where they are. So we are trying to
be more creative in negotiating the plea agreements, in a
sense, in essence before they are released.
Mr. Rosenbaum. Could I----
Mr. King. Please, Mr. Rosenbaum.
Mr. Rosenbaum. With the Subcommittee's permission and the
Congressman's permission, if I could perhaps just briefly
supplement Mr. Verdery's testimony on the list of countries
that won't accept these people. I would not want the
Subcommittee to be left with the impression that it is only
undemocratic countries, lawless countries even, that refuse to
accept these individuals, or countries with which we perhaps
don't have diplomatic relations. In our cases--in the Nazi
cases--some of the most prominent democracies in the world have
refused to accept the return of these individuals as well.
Mr. King. Thank you.
Mr. Verdery. Congressman, just one other point which I
think is responsive to one of your questions is that somebody
mentioned early that there is a procedure by which the
Secretary of State can give assurances to what is the Attorney
General--now it is the Department of Homeland Security
Secretary--that in that particular case that the Secretary of
State does not feel there is a likelihood of being tortured if
we were able to return somebody that has demonstrated that to a
court. My understanding is that has happened in two cases since
the CAT convention. We are anxious to try to work with the
State Department to see if there are additional instances where
that authority could be utilized for--again for people to be
returned.
Mr. King. Thank you. And, Mr. Chairman, I see my time has
expired, and I would ask unanimous consent for 1 additional
minute.
Mr. Hostettler. Without objection.
Mr. King. Thank you. And I direct my question to Mr. Stein.
Mr. Stein, would you then present to this Committee your
recommendation on policy changes you would like to see made?
Mr. Stein. Thank you for that opportunity. I will just run
through it real quick. The option of continuing to detain
removable aliens until such time as removal can be effectuated
has been eroded since the Supreme Court ruling in Zadvydas. The
erosion of the Attorney General's authority to detain removable
aliens has changed the entire framework for analyzing the
impact of CAT on immigration rules. Until such time it was
assumed the INS or the ICE could detain someone indefinitely
and the Supreme Court, trenching upon that authority, is really
a precedent that we are concerned about. Because the CAT
responsibilities assumed by the U.S. were not self-executing,
as the Senate stipulated in its advice and consent, Congress
has the authority for specifying criteria for CAT's
implementation.
It would be our preferred option for Congress to specify
that CAT protections are not absolute and do not apply to
serious criminals and human rights abusers. More generally, we
would like to see claims brought under CAT merged within the
asylum process and considered within the same claim. Any
adverse credibility determinations made during the asylum
process should also operate to bar a CAT claim.
In conjunction with this approach, the Department of State
should be encouraged to obtain commitments from home countries
that a returned alien will not be subject to torture or find
safe third countries where they can also be returned. And then
where torture claims are based on claims of official
acquiescence in torture, the standard of proof must be raised
and the nexus between state action and private actors must be
better defined.
Finally, the U.S. should bar general immigration from any
country that refuses to guarantee the safety and security of
foreign nationals returned from the United States. To prevent
the alien from being released back into American society the
U.S. can assume responsibility for obtaining evidence from the
home country about the crimes committed by these individuals
and effecting prosecution in the U.S. for these crimes. That is
possible now under title 18, section 2348 of the U.S. Code, but
that involves an onerous assumption of new investigatory and
prosecutorial authority responsibility for the U.S. Government.
And the downside is the taxpayer is then absorbing enormous
costs associated with prosecuting people for crimes that were
not committed in this country and never affected and don't
affect citizens or nationals of the United States.
We have some more, but I will leave it at that for now
Congressman.
Mr. King. Mr. Stein, thank you. I appreciate that and I
will give serious consideration to those recommendations.
Thank you, Mr. Chairman. I yield back.
Mr. Hostettler. Thank the gentleman. The Chair now
recognizes the gentlelady from Tennessee, Mrs. Blackburn.
Mrs. Blackburn. Thank you, Mr. Chairman, and thank you to
all of you for being here and talking with us today.
Mr. Stein, the question that Congressman King asked you was
the one that I was going tp begin with. He was asking what your
recommendations would be and what had led you to those
recommendations. So what we will do is set that aside and maybe
come back to it at the end of my questioning.
Mr. Verdery, good to see you again. Thank you for being
here.
Mr. Verdery. Thank you.
Mrs. Blackburn. You know, reading through the testimony and
everything, there are a lot of percentages and numbers. And I
know bureaucrats love to talk in terms of percentages, but
where I come from, we like to talk about hard numbers. So let's
go back and talk about the convention on torture. And I see,
Mr. Rosenbaum, in your testimony you have talked about that the
judges had adjudicated 17,302 CAT claims this year--last year.
Mr. Rosenbaum. In fiscal 2002.
Mrs. Blackburn. All right. And 558 of those were granted.
So Mr. Verdery, I am going to come to you. Let's talk total
numbers. How many total under the convention against torture,
how many total claims have been granted?
Mr. Verdery. How many total, or how many of those had
criminal histories?
Mrs. Blackburn. How many total?
Mr. Verdery. About 1,700 since the regulations were put
into effect.
Mrs. Blackburn. So we have got 1,700, and how many of those
are criminal aliens?
Mr. Verdery. Approximately 611. Again there--as has been
mentioned several times, the data here is a little sketchy.
Mrs. Blackburn. Yeah. You know, I think that is one of the
things that probably is disconcerting to a lot of my
constituents is we talk about having data, but we are not sure
if it is good evaluated data and we are not sure if it is hard
numbers and that leads to distrust. So that is of concern.
Okay. Now, with the 611 criminal aliens that are out there,
do you--does the Department of Homeland Security have a process
in place for notifying those families when a criminal alien is
released onto American streets? Yes or no?
Mr. Verdery. Well, that was the exact question I asked when
I heard I was testifying. And my understanding is that the
answer at this time is no.
Mrs. Blackburn. The answer is no. So a victim----
Mr. Verdery. If I can just continue. Under the majority of
circumstances, as I mentioned, there are some that have bond
conditions, et cetera, et cetera.
Mrs. Blackburn. Okay. So a victim or a victim's family
would not know if a criminal alien was being released onto
American streets. Yes or no?
Mr. Verdery. No. Again, remembering that the victims
formally, if they have committed a U.S. crime, they should be
in a U.S. prison.
Mrs. Blackburn. Okay. Next question. How do you go about
tracking or monitoring criminal aliens that have been released
onto American streets?
Mr. Verdery. As far as I know, again, unless they have had
a particularized setting of conditions under their release,
there is no tracking of them in terms of once they have been
given this deferral of removal there is no tracking of them.
Mrs. Blackburn. There is no tracking of them. Okay.
Ms. Germain, do you think it is acceptable that in many of
these cases these aliens involved in criminal activities are
being released onto our streets?
Ms. Germain. Well, my response to that is, it depends.
Certainly the regulations allow for someone who is especially
dangerous and likely to commit a crime again to be held in
detention, and I think that would adequately protect the
American public--a person who is likely to commit a crime in
the future being detained.
Mrs. Blackburn. Being detained for a given period of time,
or----
Ms. Germain. Well, I think the regulations provide until
such time as their likelihood of torture upon return is not
there.
Mrs. Blackburn. Okay. Thank you all. I see my time is about
to expire.
Mr. Stein, I will come back to you in closing. And
following on, you very quickly ran through your recommendations
for correcting the problem. And I think as we sit here and we--
as we all are concerned, terribly concerned about protecting
our citizens on our streets, and terribly concerned about
public safety and homeland security, it is somewhat refreshing
to have someone come in and say, yes, we do realize that there
is a problem and we would like to bring some thoughts for
consideration for correcting to the table.
I join Mr. King in saying I would be interested in seeing
what your recommendations would be, and I would like to submit
those to the record for consideration. And I thank all of you
very much for taking the time to come and visit with us today.
Thank you.
Mr. Hostettler. Thank the gentlelady.
At this time, I want to thank the witnesses for your
testimony today and without objection I wish to insert into the
record the statement of Richard Krieger, president of
International Education Missions, Incorporated. He has worked
tirelessly at finding human rights violators in the U.S. And
has brought them to this Government's attention.
Ms. Jackson Lee. Mr. Chairman.
Mr. Hostettler. Yes.
Ms. Jackson Lee. I would like to likewise--I am sorry. Did
you finish your----
Mr. Hostettler. No. Just one more thing. And has brought
them to the U.S. Government's attention. And we appreciate that
and we will enter his statement into the record.
The Chair recognizes----
Mr. Stein. Mr. Chairman, might I also introduce this case
of Yousef Hamadi into the record that I referred to? I don't
believe it is a public document.
Mr. Hostettler. With the potential possibility that it may
be redacted and the Subcommittee will show its discretion in
that.
The gentlelady from Texas.
Ms. Jackson Lee. Is that submission part of his testimony?
Is that what the counsel is ruling? I am asking, he is asking
to submit something into the record. Is that part of his
testimony?
Mr. Hostettler. Yes.
Ms. Jackson Lee. Is that what you are ruling on?
Mr. Hostettler. Yes.
Ms. Jackson Lee. So that would be part of his testimony?
Mr. Hostettler. Yes.
Ms. Jackson Lee. Thank you. I'd ask unanimous consent to
submit into the record the testimony of--well, the statement by
Amnesty International, submitted by Susan Benesch, refugee
advocate, Amnesty International, dated Friday, July 11, 2003.
Mr. Hostettler. Without objection.
Ms. Jackson Lee. And I'd ask to submit from Morton Sklar,
Executive Director, World Organization Against Torture USA,
statements on the hearing today regarding the convention
against torture to U.S. Interests.
Mr. Hostettler. Without objection.
Mr. Verdery. Mr. Chairman, before the record is closed, if
I could just elaborate on one of my prior answers.
Mr. Hostettler. Without objection.
Mr. Verdery. I believe Congresswoman Blackburn asked about
the tracking of individuals. I should have mentioned that
anybody who is released into the public under a deferral of
removal does have to provide the Department with an address,
any change of addresses, in addition to trial attorneys
constantly reviewing files to see if changes of condition merit
reopening cases and the like. So I didn't want to leave the
wrong impression of our efforts to keep track of these
individuals.
Mr. Hostettler. Thank you.
Ms. Jackson Lee. And Mr. Chairman, would you indulge me
just for a moment as he is clarifying the record and I know you
are closing the hearing. Would you indulge us? And I think you
said something to Mrs. Blackburn that should be cleared as
well. What you indicated was that the criminal aliens in most
instances would be in United States' jails.
Mr. Verdery. If they have committed a crime in the United
States and have been prosecuted in the United States,
presumably they are serving their time in the United States.
Ms. Jackson Lee. And if the crime was international,
meaning over in their other country, we would have little
opportunity to notify the victims of their release, because the
victims would be located in another country.
Mr. Verdery. Exactly.
Ms. Jackson Lee. All right. I thank the Chairman for his
indulgence.
Mr. Hostettler. I thank the gentlelady.
The Chair reminds the Committee that we have 7 legislative
days to add to the record. Once again, thanking the panel of
witnesses. The business before the Subcommittee being
completed, we are adjourned.
[Whereupon, at 10:45 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas
The United Nations Convention Against Torture (CAT) is a
fundamental pillar of our human rights and national interest policy. It
prohibits our removal and extradition processes from returning aliens
to countries where they probably would be tortured. It may increase the
likelihood that torturers and other major human rights abusers will be
held accountable for their actions through criminal prosecutions and
civil liability lawsuits in U.S. courts. It supports our efforts to
promote human rights compliance and prevent torture in foreign nations.
And, it encourages the growth of human rights oriented standards and
institutions throughout the world.
The Convention Against Torture is one of the four primary
international human rights documents. It stands, along with the
Universal Declaration of Human Rights, the International Covenant on
Civil and Political Rights, and the Genocide Convention, as the
cornerstone of our country's, and the international community's, effort
to stop the most heinous forms of governmental oppression and abuse.
Article 3 of the Convention forbids a State Party from forcibly
returning a person to a country ``where there are substantial grounds
for believing that he would be in danger of being subjected to
torture.'' This is country specific. The prohibition does not bar
forcibly returning the person to other countries in which he or she
would not be in danger of being subjected to torture.
I support this absolute standard because torture is so horrendous
and so contrary to our ethical, spiritual, and democratic beliefs, that
it must be absolutely condemned and prohibited. Even the most abhorrent
individuals, including criminals and torturers themselves, are entitled
to invoke the protections of CAT in order to prevent being returned to
torture in their home countries.
In Zadvydas v. Davis, 533 U. S. 678 (2001), the United States
Supreme Court held that the detention provisions in the Immigration and
Nationality Act (INA), read in light of the Constitution's demands,
limit an alien's post-removal-period detention to a period reasonably
necessary to bring about that alien's removal from the United States.
The Supreme Court found further that once removal is no longer
reasonably foreseeable, continued detention is no longer authorized by
statute--except where special circumstances justify continued
detention. The special circumstances may indicate that continued
detention is necessary to protect the public.
In response to that Supreme Court decision, the former Immigration
and Naturalization Service (INS) promulgated regulations for
determining the circumstances under which an alien may be held in
custody beyond the statutory removal period. 8 C.F.R. Sec. 241.4. These
regulations authorize the Government to continue to detain aliens who
present foreign policy concerns or national security and terrorism
concerns, as well as individuals who are specially dangerous due to a
mental condition or personality disorder, even though their removal is
not likely in the reasonably foreseeable future.
While we may be prohibited from sending them back to their home
countries, we are under an obligation to criminally prosecute them for
acts of torture or other international or domestic crimes. Also,
although the grant of CAT protection is absolute, it is not permanent
relief. It can be removed when the conditions in the home country
change so as to eliminate the risk of torture.
We have made a commitment not to practice or tolerate torture under
any circumstance, or for any reason. I believe that we can--and we
must--honor that commitment without endangering our society.
Immigration Case: Yousef Hamadi (redacted)
Prepared Statement of the Honorable Richard Krieger
Chairman Hostettler, members of the Subcommittee, ladies and
gentlemen, I would like to thank you for the privilege of submitting
this statement to you today to speak of our concerns regarding the
selective implementation of the International Convention Against
Torture (CAT),\1\ as well as two specific defenses to criminal
prosecution, the ex post facto defense and the running of the statue of
limitations. These actions, or inactions, pose danger for the American
citizenry, the nation itself, and give impunity to perpetrators of
torture, war crimes, extra judicial killing and other internationally
recognized crimes.
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\1\ Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, opened for signature, Dec. 10, 1984,
U.N.T.S. (entry into force Jun. 26, 1987, in accordance with article
27(1) ). The United States has criminalized torture on the part of
government officials, 18 USC 2340A (2003).
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Our organization has been involved with the issues of alleged Nazi-
era war criminals since the early 1970s and with alleged modern day
perpetrators of torture, war crimes, extra judicial killings and
terrorism since the late 1990s. We are proud to say that some of those
associated with our company played an instrumental hand in the creation
of OSI (The Department of Justice Office of Special Investigations
dealing with Nazi Era War Criminals) and to work with government
investigators and the Office of the U.S. Attorney on some modern day
perpetrator cases. We have also been, and continue to be a strong
proponent of the Anti-Atrocity Alien Deportation Act. \2\
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\2\ Anti-Atrocity Alien Deportation Act of 2003, 8 U.S.C.
Sec. 1182, 1227, 1101, 1103 (2003).
---------------------------------------------------------------------------
In 1999, the UN Special Rapporteur on the issue of torture stated,
``The phenomenon of torture continues to plague all regions of the
world. Significantly, impunity continues to be the principle cause of
the perpetuation and encouragement of human rights violations and in
particular torture.'' \3\ The United States, either through deliberate
action or by chance, has been complicit in allowing those who violate
international human rights laws forbidding the use of torture to go
unpunished.
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\3\ Report on torture and other cruel, inhuman or degrading
treatment or punishment: Sir Nigel Rodley, Special Rapporteur of the
Commission on Human Rights, U.N. GAOR, 45th Sess., Annex, Agenda Item
116(a), U.N. Doc. A/54/426 (1999).
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Article 3 of CAT prohibits the return of aliens who face the
prospect of being tortured, and Congress implemented these protections
in the Immigration and Nationality Act.\4\ The ``deferral of removal''
gives aliens who are in danger of suffering torture upon their removal
some protection.\5\ The regulations \6\ allow aliens in removal,
deportation, or exclusion proceedings to claim that they ``more likely
than not'' will be tortured if removed from the United States, and to
have their removal deferred.\7\ In 2002, 75 such deferrals were
granted; in 2001 there were 101 and in 2000 there were 213, for a total
of 389 cases receiving deferrals from removal since the regulations
were implemented.\8\
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\4\ See 8 USC 1231(b)(3)(B) (2003). For the Administrative
Regulations regarding the Treaty, see 8 C.F.R. Sec. 208.17-18 (2003).
\5\ In addition, the regulations provide a withholding of removal,
which is another protection for aliens who fear being tortured upon
their deportation. 8 C.F.R. Sec. 208.16. The deferral of removal is ``a
less permanent form of protection than withholding of removal, and one
that is more easily and quickly terminated if it becomes possible to
remove the alien.'' Statistical Year Book for 2002, 2001 and 2000 of
The U.S. Department of Justice, Executive Office for Immigration
Review.
\6\ In February 1999, the Department of Justice (DOJ) and the
Immigration and Naturalization Service (INS) jointly published a rule
to ``formally implement U.S. obligations under an international treaty
provision designed to protect person form being returned to countries
where they face torture.'' News Release, the Department of Justice,
``Department of Justice Issues Formal Rule for Claims Under the United
Nations Torture Convention'' February 26, 1999, available at http://
www.immigration.gov/graphics/publicaffairs/ newsrels/torture.htm
\7\ Statistical Year Book for 2002, 2001 and 2000 of The U.S.
Department of Justice, Executive Office for Immigration Review.
\8\ Id.
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Each of these aliens fall within one of four categories:
A. The alien assisted in persecution;
B. The alien has been convicted of a particularly serious
crime and is regarded to be a danger to the U.S. community;
C. There are reasons to believe the alien committed a serious
non-political crime before coming to the U.S.; or
D. There are reasonable grounds to believe the alien is a
danger to national security.
However, we recognize that the recent Supreme Court ruling,
Zadvydas v. Davis,\9\ stated that an individual cannot be detained for
more than three months without a charge, which means that these 389
individuals as well as many of those that have been refused deferral
are probably on the streets right now with no threat except possible
deportation. As a result we stand in opposition to the Deferral of
Removal Program, unless, the individuals in question are being
investigated for prosecution in the United States.
---------------------------------------------------------------------------
\9\ 553 U.S. 678, 682 (2001)
---------------------------------------------------------------------------
These figures and statements pose a few serious questions for the
government to answer, such as
a.
Is there government data breaking down the figures as to
the number of persons who fit into each of the four categories,
both for those approved and disapproved?
b.
Is there government data to show how many cases applying
for deferral were denied?
c.
Of the cases of deferral that were denied, how many have
left the country and through what means (deportation, voluntary
departure, etc)? Of those deported, how many were escorted to
their country of origin and turned over to the authorities?
d.
Has the government been monitoring the movements and
actions of these 389, as well as those that were denied and
still remain here and if so how?
e.
Has the federal government notified state and local law
enforcement of these 389 individuals and their whereabouts,
since these individuals may represent threats to citizens of
their locale as well as to the locality itself?
f.
Does the federal government know the location of all 389
approved individuals as well as those denied that still remain
here?
g.
Has the government monitored the countries from which these
individuals have been given relief to continuously assess the
threat the country may represent to these individuals?
h.
Recognizing that denied cases still present a danger to
communities and many could still be in the United States, have
state law enforcement agencies been notified of their
whereabouts?
IEM remains concerned about the enforcement of CAT because of past
political decisions made by the State Department. For example in March
2000, Peruvian Army Major Tomas Ricardo Anderson Kohatsuwho, accused of
raping and torturing an intelligence officer, was allowed to leave the
United States under the cloak of diplomatic immunity. The Department of
Justice had initially detained him but the State Department intervened
to free him, and there were subsequent accusations that his immunity
was granted incorrectly.\10\ In addition, the murder of the two U.S.
diplomats in Sudan by the Black September Organization in 1973,
acknowledged by the State Department in cable, but incorrectly insisted
the United States did not have the legal authority to prosecute the
murders. We would recommend that the U.S. use organizations such as the
U.N. Committee Against Torture and the Bureau d'Avocats Internationaux
(International Lawyers Bureau) \11\ in Haiti to obtain information on
torture. As a measure of the progress in prosecution of war criminals,
the International Lawyers Bureau has stated that perpetrators, such as
those who participated in the infamous Rabotou massacre \12\ have not
been tortured upon their return.\13\
---------------------------------------------------------------------------
\10\ Amnesty International Report Charges US is ``Safe Haven'' for
Torturers Fleeing Justice Eight Years On, US Has Failed to Prosecute a
Single Individual for Torture, available at http://www.amnestyusa.org/
news/2002/usa04102002.html
\11\ The International Lawyers Bureau is a group of attorneys that
helps Haitian victims and the judiciary prosecute human rights
violations from Haiti's 1991-94 dictatorship.
\12\ The Raboteau massacre in 1994 involved the murder of at least
fifteen individuals in Raboteau, near Gonaives, which were committed by
Haitian soldiers and FRAPH members. See Human Rights Watch World Report
1998, see http://www.hrw.org/worldreport/americas-07.htm.
\13\ For a discussion on the trial of those responsible for the
Rabotou massacre, see HAITI:Human Rights Challenges Facing the New
Government, available at http://web.amnesty.org/library/Index/
ENGAMR360022001.
---------------------------------------------------------------------------
Article 5 of CAT establishes an obligation on member states to
investigate individuals suspected of having committed acts of torture
when they are present in that state or its territories, and to either
extradite them for trial or to prosecute them, regardless of where or
when such acts occurred. While prosecution should take place in the
country in which the crime was committed, or in which the individual is
a citizen, if that situation is not available, then CAT requires its
member nations to prosecute the individual.\14\
---------------------------------------------------------------------------
\14\ Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, supra note 1, at art. 5.
---------------------------------------------------------------------------
Article 6 of CAT establishes that a nation in whose territory a
person alleged to have committed acts of torture is present shall upon
being satisfied after an examination of information available, take him
into custody to ensure his presence. Custody or other legal measures
may only be continued for as long as necessary to enable criminal or
extradition proceedings to be initiated.\15\
---------------------------------------------------------------------------
\15\ Id. at art. 6.
---------------------------------------------------------------------------
Article 7 of CAT authorizes a nation to extradite an alleged
offender.\16\
---------------------------------------------------------------------------
\16\ Id. at art. 7.
---------------------------------------------------------------------------
Recognizing that the U.S. has felt that ratification of CAT meant
that CAT had to be implemented, why has the implementation been done
selectively and important articles ignored? The question arises, since
in accepting CAT, the United States did not preclude these articles,
then why are we not implement them? \17\ Such a position is
hypocritical and indicates that we are providing impunity to
perpetrators.
---------------------------------------------------------------------------
\17\ For a similar view of America's lack of enforcement of CAT,
see Amnesty International Report, supra note 8.
---------------------------------------------------------------------------
Some would argue that even if we were to accede to all the sections
of CAT, there are other concerns that would bar our prosecution. The
statue of limitations on crimes of torture would be used by every
defense attorney, but with the passage of the Patriot Act, which
removes all statutes of limitation on crimes that fall within its broad
definition of what constitutes terrorism, one could argue that the
statue of limitations for acts of torture no longer applies, since most
acts of torture could arguably fall within the statues wide
purview.\18\
---------------------------------------------------------------------------
\18\ See 18 USC 3286 (b) No limitation.--Notwithstanding any other
law, an indictment may be found or an information instituted at any
time without limitation for any offense listed in section
2332b(g)(5)(B), if the commission of such offense resulted in, or
created a foreseeable risk of, death or serious bodily injury to
another person. 18 USC 2332b(g) (5) (B): defines Federal terrorist
crimes as a violation of----
(i) section 32 (relating to destruction of aircraft or aircraft
facilities), 37 (relating to violence at international airports), 81
(relating to arson within special maritime and territorial
jurisdiction), 175 or 175b (relating to biological weapons), 229
(relating to chemical weapons), subsection (a), (b), (c), or (d) of
section 351 (relating to congressional, cabinet, and Supreme Court
assassination and kidnapping), 831 (relating to nuclear materials),
842(m) or (n) (relating to plastic explosives), 844(f)(2) or (3)
(relating to arson and bombing of Government property risking or
causing death), 844(i) (relating to arson and bombing of property used
in interstate commerce), 930(c) (relating to killing or attempted
killing during an attack on a Federal facility with a dangerous
weapon), 956(a)(1) (relating to conspiracy to murder, kidnap, or maim
persons abroad), 1030(a)(1) (relating to protection of computers) ,
1030(a)(5)(A)(i) resulting in damage as defined in 1030(a)(5)(B)(ii)
through (v) (relating to protection of computers), 1114 (relating to
killing or attempted killing of officers and employees of the United
States), 1116 (relating to murder or manslaughter of foreign officials,
official guests, or internationally protected persons), 1203 (relating
to hostage taking), 1362 (relating to destruction of communication
lines, stations, or systems), 1363 (relating to injury to buildings or
property within special maritime and territorial jurisdiction of the
United States), 1366(a) (relating to destruction of an energy
facility), 1751(a), (b), (c), or (d) (relating to Presidential and
Presidential staff assassination and kidnapping), 1992 (relating to
wrecking trains), 1993 (relating to terrorist attacks and other acts of
violence against mass transportation systems), 2155 (relating to
destruction of national defense materials, premises, or utilities),
2280 (relating to violence against maritime navigation), 2281 (relating
to violence against maritime fixed platforms), 2332 (relating to
certain homicides and other violence against United States nationals
occurring outside of the United States), 2332a (relating to use of
weapons of mass destruction), 2332b (relating to acts of terrorism
transcending national boundaries), 2332f (relating to bombing of public
places and facilities), 2339 (relating to harboring terrorists), 2339A
(relating to providing material support to terrorists), 2339B (relating
to providing material support to terrorist organizations), 2339C
(relating to financing of terrorism, or 2340A (relating to torture) of
this title.
We then come to the ex post facto defense, which is apparently a
concern of the Department of Justice and one of the other reasons that
they have failed to prosecute suspected torturers under CAT. U.S.
Senator Charles Grassley articulates the reasons why the ex post facto
issue should not prevent the prosecution of those who commit acts of
torture,
The ex post facto issue revolves around an accused person's right
to fair warning and treatment. Evidence from international law and
other sources is quit relevant to establish this fair warning even if
these sources are not codified in the Federal statue. . . . The Supreme
Court has subsequently clarified the meaning and scope of the ex post
facto prohibition, emphasizing its function to deter prosecution in the
absence of fair warning. . . . Perpetrators cannot reasonably argue
that torture is not universally condemned and, therefore, they were
unaware of the illegal nature of their actions. Applying the logic of
Calder v. Bull,\19\ torture is not an act that is innocent when
done.\20\
---------------------------------------------------------------------------
\19\ 3 U.S. 386 (Dall.) (1798).
\20\ Barnhizer, David (ed.). Effective Strategies for Protecting
Human Rights: Economic Sanctions, Use of National Courts and
International For and Coercive Power. (2001), citing testimony at a
Hearing Before the Senate Subcommittee on Security and Terrorism in
1986.
---------------------------------------------------------------------------
American courts too have condemned torture as a violation of
international law, ``In light of the universal condemnation of torture
in numerous international agreements, and the renunciation of torture
as an instrument of official policy by virtually all of the nations of
the world (in principle if not in practice), we find that an act of
torture committed by a state official against one held in detention
violates established norms of the international law of human rights,
and hence the law of nations.'' \21\
---------------------------------------------------------------------------
\21\ Filartiga v. Pena-Irala, 630 F2d 876, 881 (2d Cir. 1980).
---------------------------------------------------------------------------
Beyond the American articulation of this idea of notice that
torture is unacceptable, there is a great deal of legal history to
support the theory that fair notice of torture, war crimes and murder
has been extended by international law. One would only have to look at
the International Military Tribunal at Nuremberg and the Tokyo War
Crimes Tribunal. The International Tribunals of the former Yugoslavia
stated that the Geneva Convention was part of customary international
law and dismissed an ex post facto motion. The international community,
represented by the body of the U.N., has declared that ``even before
the entry into force of the Convention Against Torture, there existed a
general rule of international law which should oblige all states to
take effective measures to prevent torture and to punish acts of
torture.'' \22\
---------------------------------------------------------------------------
\22\ Report of the Committee against Torture, U.N. Doc. A/45/55
(1990).
---------------------------------------------------------------------------
Conclusion
In review of the issues of statue of limitations, ex post facto,
and The International Convention Against Torture we recommend that:
a.
That each case of deferral of removal be reviewed by the
Department of Justice for applicability and that each party
offered deferral of removal be detained until such time as he
can be brought to trial in the United States or extradited for
trial to a cooperating country.
b.
That each case of deferral of removal allowed to leave
detention be monitored as to location and conduct. Further,
that applicable state/local agencies be informed of any and all
of these perpetrators in their areas.
c.
That all perpetrators of human rights crimes brought to the
attention of the Department of Homeland Security and/or the
Department of Justice be investigated for the purpose of
extradition or deportation for trial or for the purpose of
prosecution in the United States.
d.
That the Department of State be instructed not to attempt
to politicize cases involving these perpetrators.
e.
That the use of the USA PATRIOT Act, and imposition of
statutes of limitations on cases involving perpetrators of
torture be made invalid.
f.
That based on international and American case history as
well as the positions of legal scholars that fair warning has
been provided to all perpetrators of torture through
international law and as such renders the ex post facto defense
invalid in cases of torture.
__________
Prepared Statement of Morton Sklar
The World Organization Against Torture USA is the leading
information clearinghouse and legal support center in the U.S. dealing
with Convention Against Torture issues and cases. We serve as the U.S.
affiliate of an international network of over 200 human rights
organizations worldwide, each focusing on human rights compliance in
their own countries, and on torture related issues.
Our group gives special emphasis to problems and issues associated
with refugees and aliens seeking protection from torture in their home
countries, with a particular focus on gender-based concerns. We provide
direct legal representation in a number of cases presenting the most
significant legal issues arising under CAT, as well as providing back-
up legal assistance and information clearinghouse services in over 200
other CAT cases annually based on requests received from aliens,
detainees and lawyers. On average, three to four of our primary cases
are presented before U.S. Circuit Courts of Appeals each year.
Presently we have major appeal cases pending before the 4th, 7th and
11th Circuit Courts of Appeals. In October, 2002 we presented an amicus
curiae brief to the U.S. Supreme Court in a juvenile death penalty
case.
Morton Sklar, the Executive Director of our group, also serves as a
member of the Board of Directors of Amnesty International USA (since
1997), and as a Judge with the Administrative (Labor) Tribunal of the
Organization of American States (since 1996), nominated to that
position by the U.S. Government, and elected by the General Assembly of
member states of the OAS.
I. Introduction. Since the Convention Against Torture (CAT) was
ratified as an international treaty by the U.S. Senate (1994) and was
fully adopted as part of U.S. law by the adoption of two statutes by
the U.S. Congress, and implementing regulations by the Immigration and
Naturalization Service (1998 and 1999), it has made a number of major
contributions of importance to our country in support of the principles
of democracy and human rights. These include:
I. keeping our deportation and extradition processes from
returning aliens to situations involving torture;
II. increasing the likelihood that torturers and other major
human rights abusers will be held accountable for their actions
through both criminal prosecutions, and civil liability
lawsuits in U.S. courts;
III. protecting U.S. citizens from major abuses here in this
country;
IV. supporting our efforts to promote human rights compliance
and prevent torture in foreign nations; and,
V. building a stronger base of democratic and human rights
oriented standards and institutions throughout the world, as
the strongest defense for the rule of law and against
terrorism, extremism and military rule.
To maintain these efforts and benefits, we must be careful to keep
the standards and protections embodied in the Convention Against
Torture intact, and to strengthen, not weaken the perception of the
United States as a staunch defender of human rights, and protector of
those victimized by acts of torture and repression. This means:
I. guarding against the temptation to support the use of
torture by other nations to punish or obtain information from
suspected terrorists;
II. taking more seriously our government's responsibility to
prosecute torturers and other major human rights abusers in
U.S. courts, instead of excluding or deporting them to other
countries;
III. not coming to the defense of torturers and repressive
regimes by seeking their immunity from civil liability
lawsuits, or otherwise defending their interests in U.S. courts
(e.g., the Unocal case involving forced labor in Burma, and the
Jiang Zemin case involving genocide and torture against Falun
Gong practitioners in China); and,
IV. providing a model to other nations in demonstrating our
commitment to preventing serious forms of human rights abuses
in our own country; and,
V. not seeking any special exemptions from the coverage of
CAT based on anti-terrorism efforts.
The Convention Against Torture is one of the four primary
international human rights documents. It stands, along with the
Universal Declaration of Human Rights, the International Covenant on
Civil and Political Rights and the Genocide Convention, as the
cornerstone of our country's, and the international community's, effort
to stop the most heinous forms of governmental oppression and abuse.
What makes our commitment to these human rights standards unique is our
understanding that torture should not be tolerated or practiced under
any circumstances and for any reason. We believe in and apply this
standard because we understand that torture is so horrendous, and so
contrary to our ethical, spiritual and democratic beliefs, that it must
be absolutely condemned and prohibited, irrespective of perceived
justifications. We hope that any consideration of the Convention
Against Torture and its applications by the Congress of the United
States will be made with this understanding in mind, so that the
unconditional nature of the protection against torture is properly
preserved.
II. Protecting Refugees and Those Fleeing Persecution and Torture.
Our nation's interest in and commitment to CAT begins with the Article
3 requirement that no one be returned to a situation of torture. This
absolute prohibition against return to torture is based on the
recognition that torture is so abhorrent, and the need for universally
condemnation so unconditional, that our nation (and other nations of
the world) must not be involved with, or contribute to, the infliction
of torture in any way, regardless of the circumstances.
Because torture is deemed unacceptable under any circumstances, CAT
protects even criminals, torturers and terrorists from being sent to a
situation of torture even though the asylum laws specifically exclude
these individuals from eligibility for refugee status. In testimony
before the U.S. Senate during the process of ratifying the Convention
Against Torture, the U.S. Government make clear its understanding and
recognition that even the most abhorrent individuals, including
criminals and torturers themselves, were entitled to invoke the
protections of CAT in order to prevent being returned to torture in
their home countries. The CAT regulations issued by the U.S. Government
made a point of noting that CAT allows for ``no exceptions to this
[non-return to torture] mandate,'' and that none of the ``reservations,
understandings, declarations, or provisos contained in the Senate's
resolution of ratificaiton'' allow for an exemption from Article 3's
protection ``because of criminal or other activity or for any other
reason.'' The CAT regulations go on to recognize that Article 3 was
presented to the Senate ``with the understanding that `does not permit
any discretion or provide for any exceptions. . . .' '' (CAT
Regulations, Federal Register, Feb. 19, 1999, p. 8481)
It is important to note that our nation's obligation under CAT to
prevent criminal and torturers from being sent to situations of torture
does not mean that we are without the power or ability to deal with
their crimes, or to protect our own society from these individuals. To
the contrary, while we may be prohibited from sending them back to
their home countries, we still are under an obligation to criminally
prosecute them for acts of torture or other international or domestic
crimes. Moreover, the grant of CAT protection in these special cases is
considered temporary, and can be removed whenever the conditions in the
home country change so as to eliminate the risk of torture.
Nor are we without a means to protect ourselves once criminals and
torturers protected by Article 3 of CAT have served their sentences.
Although permanent, or indefinite post-sentence detention can pose its
own problems, continued detention is authorized for aliens awaiting
deportation where it can be demonstrated through a suitable legal
procedure meeting reasonable due protections, that they present a
flight risk, or pose a serious threat to the members of our community.
Our Government also always has the option of finding another suitable
third country refuge for criminals or torturers who can not be sent
back to their home countries because of the Article 3 prohibition.
It also should not be forgotten that CAT provides additional
protection to many deserving aliens who are not covered by our asylum
laws, including rape and torture survivors who, because of traumatic
stress syndrome or other problems, miss the one year deadline that is
imposed for filing an asylum claim, and many victims of gender-based
abuses that are not easily covered by asylum laws because the required
linkage to one of the five recognized bases of persecution (race,
religion, national origin, political opinion or membership in a social
group) is not easy to establish.
III. Holding Torturers and Other Major Human Rights Abusers
Accountable for their Actions. The 1994 CAT implementing statue makes
torture committed abroad a crime here in the U.S. Two other statutes
passed by Congress, the Alien Tort Claim Act, and the Torture Victims
Protection Act, allow aliens to file suit in U.S. courts to obtain
civil damage restitution from their abusers, even where the violations
took place abroad. These Congressional authorizations for criminal and
civil liability cases against torturers in U.S. courts have been
important tools for helping to punish and prevent major human rights
abuses in foreign nations. The civil liability approach has been
especially significant since it gives victims the ability to take
action themselves to secure redress, instead of having to rely on often
reluctant governments (including their own) to act in their behalf.
But unfortunately, all too often the U.S. government has entered
these cases on the side of the torturers, seeking dismissal of the
Alien Tort Act and Torture Victims Protection Act case in order not to
cause distress to foreign governments. This has happened most recently,
for example, in lawsuits filed in U.S. Federal District Courts in
California against the Unocal Corp, for their involvement in forced
labor and torture in Burma in the building of a gas pipeline in that
country, and in U.S. Federal District Court in Chicago against Jiang
Zemin, former President of China, for his policy to commit torture and
genocide against practitioners of the Falun Gong spiritual movement.
Our organization serves as co-counsel in the Jiang case, and in two
other pending cases involving high level officials of the People's
Republic of China, and have had to present a number of legal briefs in
these cases challenging efforts by the U.S. government to have the
cases dismissed based on the alleged negative impacts on U.S. foreign
policy interests by having Chinese officials defend their human rights
abuses in U.S. courts. The U.S. government should be supporting the
principle of holding torturers accountable for their abuses, even where
our economic and political relations with foreign governments may be
affected.
IV. Protecting U.S. Citizens from Abuses in this Country. The U.S.
should provide a model to other nations on how we are committed to the
principle of preventing torture, even in our own country. In 1998 the
U.S. Government issued a report to the Committee Against Torture of the
United Nations reviewing our compliance under CAT. Our group issued an
evaluation of that report, focused on such issues as our use of the
death penalty, police brutality, conditions in prisons, return of
refugees and extradited criminals to situations of torture. Our ability
to influence other nations, and to prevent torture abroad, must begin
with a demonstration that we accept and apply these same standards to
ourselves, and that we live by the same rules of law that we insist
others abide by.
V. Promotion of Human Rights Observance and the Abolition of
Torture and the Threat of Terrorism in Other Nations. Promoting the
rule of law and human rights observance by other nations is a key
element in our government's effort to strengthen democracy and
democratic institutions in foreign countries, and ultimately to prevent
instability, extremism and terrorism by stopping their root causes--
repression by authoritarian regimes. The core reason that the United
States has been one of the primary nations supporting the adoption and
enforcement of international human rights standards is our recognition
that torture and other human rights abuses form the basis for causing
internal instability in nations, and military conflict among nations.
The Convention Against Torture, and its absolute prohibition against
torture, have come to be recognized as one of the two or three
international human rights standards that are so well accepted, and so
universally supported, that they have become part of what is referred
to as jus cogens, the established law of nations that all countries
recognize and seek to observe. It would severely undercut our efforts
to promote the principles of freedom, democracy and the rule of law if
our government takes any action that would be seen as departing from
our, and the international community's, staunch adherence to strict
observance and application of the Convention Against Torture.
----------
Prepared Statement of Susan Benesch
Amnesty International, a worldwide organization with more than one
million members, including nearly 300,000 in the United States, has
been working to stop torture and torturers for more than 35 years. Such
efforts have been widely recognized, perhaps most recently by President
George W. Bush, who two weeks ago praised ``the efforts of non-
governmental organizations to end torture and assist its victims.'' \1\
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\1\ Statement by President George W. Bush: United Nations
International Day in Support of Victims of Torture (June 26, 2002), at
[http://www.whitehouse.gov/news/releases/2003/06/20030626-3.html].
---------------------------------------------------------------------------
As far back as the 1970s, Amnesty International launched an
international campaign against torture, leading in part to our Nobel
Peace Prize in 1977. In October 2002, we began our newest global
Campaign to Stop Torture, which continues today in more than 60
countries. First on the list of goals of the campaign is ``to stop
torturers and bring them to justice--either in their own countries or
in others.'' \2\ We at AIUSA, Amnesty's U.S. branch, are particularly
intent that torturers and other human rights violators not be permitted
to take refuge in the United States. Last year AIUSA published a major
report entitled ``The United States of America: A Safe Haven for
Torturers,'' detailing the cases of torturers and human rights abusers
who are living in the United States, and setting out a multi-track
strategy to combat impunity for torturers.\3\
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\2\ Combating Torture: A Manual for Action, Amnesty International,
2003.
\3\ United States of America: A Safe Haven for Torturers, Amnesty
International USA, 2002, at 8 and 100.
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From our point of view--of longtime, dedicated work against
torturers--we urge Congress not to diminish the relief that the United
States provides as part of its obligations under the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (Convention Against Torture).\4\ That relief--a
carefully limited form granted to a very small number of people (only
about three percent of all those who seek it)--saves people from
torture.
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\4\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1965 U.N.T.S. 85.
---------------------------------------------------------------------------
We strongly and respectfully urge Congress not to create exceptions
to that relief, for six reasons. First, it would be contrary to U.S.
policy that President Bush has recently reaffirmed. Second, it would
violate international law and, specifically, U.S. treaty obligations
under the Convention Against Torture. Third, it would violate a
longstanding, universal principle: that torture is a gross offense to
human dignity, justice, and the rule of law, and an egregious violation
of the relationship between a state and its people. Fourth, relief
under the Convention Against Torture already is so carefully limited
that it bars all but a small percentage of cases--including frivolous
ones. Fifth, the United States and its citizens need not face danger
from those who are granted relief under the Convention Against Torture.
Last but not least, deporting a serious human rights abuser to a
country that will torture him or her is tantamount to ``an eye for an
eye and a tooth for a tooth.'' It is no substitute for justice, which
the rule of law demands, and which torture victims deserve. Returning a
torturer to a place where he or she would be tortured simply sustains
the kind of system in which violent authoritarian regimes exist: such
regimes feed on continued torture and on impunity. Therefore, instead
of deporting individuals alleged to have committed torture and other
gross human rights violations to be tortured themselves, the United
States should bring them to justice.\5\
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\5\ See United States of America: A Safe Haven for Torturers,
Amnesty International USA 2002, at 100: ``A multi-track strategy to
combat impunity.''
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1. It Would be Contrary to U.S. Policy to Restrict Convention Against
Torture Relief
Not only would it be illegal to create exceptions to Article 3
relief from deportation, it would also be contrary to the well-
established U. S. policy to oppose torture without exception. Just two
weeks ago President Bush announced that ``[F]reedom from torture is an
inalienable human right. . . . The United States is committed to the
world-wide elimination of torture and we are leading this fight by
example . . .'' \6\
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\6\ Statement by President George W. Bush: United Nations
International Day in Support of Victims of Torture, .
---------------------------------------------------------------------------
Similarly on June 25 William J. Haynes II, general counsel for the
Department of Defense, wrote Senator Patrick Leahy, ``With respect to
Article 3 of the CAT, the United States does not `expel, return
(`refouler') or extradite' individuals to other countries where the
U.S. believes it is `more likely than not' that they will be
tortured.'' \7\ Mr. Haynes' letter was especially relevant to the issue
at hand since he was writing in regard to individuals suspected of
wrongdoing.
---------------------------------------------------------------------------
\7\ Letter from William J. Haynes II, General Counsel, Department
of Defense to Senator Patrick J. Leahy, June 25, 2003,
---------------------------------------------------------------------------
U.S. stated policy on torture--and the United States' compliance
with it--is important not only for its own sake, but also because it is
bound to influence the polices of other nations.
2. Restricting Convention Against Torture Relief Would Violate
International Law
The Convention Against Torture, which the United States signed
under President Ronald Reagan and ratified under President George H.W.
Bush, prohibits the United States from deporting a person ``to another
State where there are substantial grounds for believing that he would
be in danger of being subjected to torture.'' \8\ This prohibition is
absolute, under both United States and international law.
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\8\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1965 U.N.T.S. 85, at
art. 3.
---------------------------------------------------------------------------
The Convention itself allows no exceptions.\9\ Nor did the U.S.
Senate, in ratifying the treaty, make any reservation, understanding,
declaration or proviso that might exclude any person from the Article 3
prohibition against refoulement, or return to torture, for any reason.
To the contrary, in legislation to implement the Convention Against
Torture in 1998, Congress pointed out that any bars to relief must be
``consistent with U.S. obligations under the Convention.'' \10\
---------------------------------------------------------------------------
\9\ Id., art. 2(2). ``No exceptional circumstances whatsoever,
whether a state of war or a threat of war, internal political
instability or any other public emergency, may be invoked as a
justification of torture.'' Note that this absolute prohibition is in
contrast to, for example, the Refugee Convention, which excludes people
who have committed certain crimes. U.N. Convention Relating to the
Status of Refugees, July 28, 1951, 189 U.N.T.S. 137.
\10\ Act of Oct. 21, 1998, P.L. No. 105-227, Div. G, Subdiv. B,
Title XXII, Ch. 3, Subch. B, Sec. 2242(c), 112 Stat. 2681-822, as cited
in 8 U.S.C. Sec. 1231, Other provisions.
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International courts and bodies have reaffirmed the absolute
prohibition against returning a person to a country where there is a
substantial likelihood that he or she will be tortured. The Committee
Against Torture, the U.N. entity that monitors compliance with the
Convention Against Torture, has declared that ``the protection accorded
by [A]rticle 3 of the Convention is absolute.'' \11\ The Committee
specifically noted that ``the nature of the activities in which the
person engaged is not a relevant consideration in the taking of a
decision in accordance with [A]rticle 3 of the Convention.'' \12\
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\11\ Aemei v. Switzerland, Committee Against Torture, Communication
No. 34/1995 (May 29, 1997).
\12\ Id.
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The European Court of Human Rights has held that a similar treaty
provision, Article 3 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms, is an absolute bar to the return
of an individual to torture--even where a state has a compelling
interest in deporting a person due to terrorist activities:
``Article 3 . . . enshrines one of the most fundamental values
of democratic society. . . . The Court is well aware of the
immense difficulties faced by States in modern times in
protecting their communities from terrorist violence. However,
even in these circumstances, the Convention prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the victim's conduct. . . . Article
3 . . . makes no provision for exceptions and no derogation
from it is permissible . . . even in the event of a public
emergency threatening the life of the nation.'' \13\
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\13\ Chahal v. United Kingdom, (1996) ECHR 22414/93 (Nov. 15,
1996).
In addition, the United States' own Board of Immigration Appeals
(BIA) has recognized that ``the prohibition on refoulement found in
Article 3 of the Convention Against Torture provides no exception for
persons convicted of particularly serious crimes.'' \14\
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\14\ Matter of H-M-V-, 22 I. & N. Dec.256 (BIA 1998).
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3. The Prohibition Against Torture is a Universal Principle
The prohibition on torture is a longstanding and virtually
universal principle. It is a crime in all places and at all times. It
is barred not only by the Convention Against Torture but also by the
Universal Declaration of Human Rights of 1948, the International
Covenant on Civil and Political Rights, and many other international
human rights instruments.\15\ Indeed, torturers are considered hostis
humani generis--enemies of all humanity.\16\ ``Torture anywhere is an
affront to human dignity everywhere,'' as President Bush put it.\17\
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\15\ Universal Declaration of Human Rights , G.A. Res. 217
(A0(III), U.N. Doc. A/810 at 71 (1948), art. 5; International Covenant
on Civil and Political Rights , G.A. Res. 2200A (XXI), 21 U.N. GAOR
Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, art.
7. See also European Convention for the Protection of Human Rights and
Freedoms, Nov. 4, 1950, art. 3, 213 U.N.T.S. 222 (``No one shall be
subjected to torture or to inhuman or degrading treatment or
punishment''); American Convention on Human Rights, Nov. 22, 1969, art.
5(2), O.A.S.T.S. No. 36 (``No one shall be subjected to torture or to
inhuman or degrading treatment or punishment'').
\16\ Schulz, William F., The Torturer's Apprentice: Civil Liberties
in a Turbulent Age.'' The Nation, 13 May 2002.
\17\ Statement by President George W. Bush: United Nations
International Day in Support of Victims of Torture, .
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Torture is also an abhorrent abuse of state power against the
individual. Returning a torturer to face torture would be intolerable
since it would only sustain the same violent, abusive system that
permitted the torturer's own crimes--a system that the international
community has resolved to abolish.
In other words, no exception may be made to the ban on torture,
since an exception would erode the principle itself.\18\ Further,
respect for human dignity compels us to treat even a torturer as a
human being, since human dignity, like the ban on torture, is
universal.
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\18\ See The Right Against Torture is an Absolute One, Asian Human
Rights Commission, April 2001, at .
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4. Relief Under the Convention is Strictly Limited
The United States grants relief from deportation under the
Convention Against Torture only in rare cases, since applicants for the
relief must overcome a series of difficult obstacles. We mention a few
examples of these.
First, the applicant must meet a very high standard, showing that
it is ``more likely than not'' that he or she will be tortured if
deported.\19\ This is a much higher test than, for instance, the
``well-founded fear of persecution'' standard required for a grant of
asylum.\20\ Second, Convention Against Torture relief applies only to
cases where torture would be committed by a government actor, or under
color of law.\21\ Third, the applicant must be expecting severe pain
and suffering to be inflicted with specific intent--general intent is
not enough, no matter how severe the treatment.\22\ Fourth, relief is
not available for lesser forms of harm, such as cruel, inhuman or
degrading treatment or punishment, that do not rise to the level of
torture.\23\
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\19\ 8 C.F.R. Sec. 208.16(c)(2). See also 136 Cong. Rec. at S.
17492 (daily ed., Oct. 27, 1990).
\20\ INA Sec. 101(a)(42)(A), 8 U.S.C. Sec. 1101(a)(42)(A).
\21\ S. Exec. Rep. No. 101-30 (1990), at 14 (Report of the Senate
Foreign Relations Committee recommending ratification of the
Convention).
\22\ Matter of J-E-, 23 I&N Dec. 291, 301 (BIA 2002).
\23\ 8 C.F.R. Sec. 208.16(c)(2).
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There are two types of relief under the Convention Against Torture.
The first is called withholding under the Convention.\24\ Four
categories of people are ineligible for withholding under the
Convention: persecutors, non-citizens convicted of ``particularly
serious'' crimes; non-citizens who have committed serious ``non-
political crimes,'' and non-citizens who are a danger to U.S.
security.\25\ Such individuals are granted deferral of removal, which
is a special bare-bones, precarious form of relief that forestalls
deportation, but gives essentially no other benefits.\26\
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\24\ 8 C.F.R. Sec. 208.16(c).
\25\ 8 C.F.R. Sec. 208.16(d)(2).
\26\ See generally 3 Charles Gordon, Stanley Mailman & Stephen
Yale-Loehr, Immigration Law and Procedure Sec. 33.10[4] (rev. ed.
2003).
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According to U.S. government statistics, all these restrictions
have limited Convention Against Torture relief to a very small number
of people, and most of those have no criminal convictions. The Justice
Department's Executive Office for Immigration Review (EOIR) reports
that that out of 53,471 total decisions regarding Convention Against
Torture relief between fiscal year (FY) 1999 and FY 2002, only 1,741
applicants were granted either withholding or deferral under the
Convention. Thus, only 3 percent of applicants received any type of
relief under the Convention Against Torture. More than 60 percent of
these few successful applicants received withholding, meaning they had
no criminal convictions. Only 339 people received the lesser deferral
of removal remedy, because they had been convicted of some crime or
were otherwise ineligible for withholding under the Convention. Thus,
only .63 (three-fifths of one percent) of all applicants received
deferral of removal under the Convention during that four-year time
span.
Moreover, this rate (the number of people granted deferral under
the Convention Against Torture, compared to the total number of
Convention claims) is much lower than what it was earlier. EOIR
statistics show that from March 22, 1999 to July 31, 2000, 2.5 percent
of applicants were granted deferral under the Convention Against
Torture.
In September 2000 then-Immigration and Naturalization Service
General Counsel Bo Cooper testified before Congress that charges that
``the new torture regulations are being abused by criminal aliens''
were exaggerated. The statistics showed, he pointed out, that ``only a
small percentage of claims asserted are actually granted protection
under the Convention Against Torture.'' \27\ Currently, the percentage
of applicants granted deferral is less than one-quarter of the
percentage that Mr. Cooper reported, so an even smaller percentage of
claims asserted are being granted to individuals with serious
convictions or other bars to withholding. Therefore it would seem that
as Mr. Cooper testified in 2000, ``fulfilling our international
obligations under the Convention Against Torture has not impeded our
ability to expeditiously enforce our immigration laws and remove
criminal aliens from the United States.'' \28\
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\27\ Testimony of Bo Cooper, General Counsel, Immigration and
Naturalization Service, Department of Justice, Regarding a Hearing on
Convention Against Torture and HR 5285, The Serious Human Rights
Abusers Accountability Act of 2000.
\28\ Id.
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5. Relief Under the Convention Against Torture Does Not Endanger the
United States
The United States and its citizens need not face danger from those
who are granted relief under the Convention Against Torture, since they
can be sent to a third country where they are not likely to be
tortured. There are also other alternatives in U.S. law that Amnesty
International does not support--we wish merely to refute the notion
that release and deportation to torture are the only alternatives in
the case of a non-citizen whom U.S. authorities allege to be dangerous.
Under U.S. law, such a person can be detained, or deported to his
or her country of origin if the United States first seeks assurances
that he or she will not be tortured.\29\ In the case of detention, we
urge the United States to comply fully with both U.S. and international
standards, and we urge that authorities use the least restrictive form
of detention possible.
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\29\ 8 C.F.R. Sec. 241.14 ``Continued detention of removable aliens
on account of special circumstances''; 8 C.F.R. Sec. 208.21(c).
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The U.S. Supreme Court limited the indefinite detention of non-
citizens in 2001,\30\ but authorities may still continue to hold non-
citizens who may be dangerous. Non-citizens may be kept in detention
for a number of enumerated ``special circumstances.'' \31\ Those
circumstances include detention on account of security or terrorism
concerns and detention because an individual is ``specially dangerous''
as indicated by having committed one or more crimes of violence, or
having a mental condition or disorder making it likely that the
individual will engage in future acts of violence.\32\
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\30\ Zadvydas v. Davis, 533 U.S. 678 (2001).
\31\ 8 C.F.R. Sec. 241.14 ``Continued detention of removable aliens
on account of special circumstances.''
\32\ Id.
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Another alternative is to deport a non-citizen to a country other
than the country of his nationality. This generally requires agreement
from the government of the third country. It is worth noting that the
United States has persuaded third countries to accept alleged torturers
and gross human rights abusers on numerous occasions in the past.\33\
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\33\ After the U.S. invasion of Haiti in 1994, for example, the
United States persuaded Panama to accept Gen. Raoul Cedras, who had led
Haiti's military junta during a period when Haitian military and
paramilitary forces are alleged to have killed and tortured many
civilians. See, e.g. Hoffman, Lisa, Where are they now: former bloody
dictators, Scripps Howard News Service, Jan. 25, 2003, at .
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Finally, the United States can seek assurances that an individual
will not be tortured, before deporting that person to his or her home
country. Under the regulations implementing the Convention Against
Torture, ``[t]he Secretary of State may forward to the Attorney General
assurances that the Secretary has obtained from the government of a
specific country that an alien would not be tortured there if the alien
were removed to that country.'' \34\ The Attorney General or Deputy
Attorney must then decide whether the assurances are ``sufficiently
reliable'' to allow deportation consistent with the Convention Against
Torture.\35\ If and when this measure is used, Amnesty International
urges that the U.S. government carefully monitor deportees, and
strictly hold the other government to its promises.
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\34\ 8 C.F.R. Sec. 208.21(c).
\35\ Id.
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6. Instead of Deporting Alleged Torturers to Face Torture Themselves,
the United States Should Bring Them to Justice
In opposing the deportation of alleged torturers (or alleged
persecutors of other types) to countries where they might face torture
themselves, Amnesty International seeks only to prevent torture, not to
protect the alleged torturers or other persecutors. To the contrary,
Amnesty International advocates bringing alleged human rights
violators, including alleged torturers, to justice.\36\ We call on the
United States, which President Bush recently said is ``leading this
fight [against torture] by example,'' \37\ to lead by seeking justice
for past acts of torture.
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\36\ See generally United States of America: A Safe Haven for
Torturers, Amnesty International USA, 2002, and Torture Worldwide: An
Affront to Human Dignity, Amnesty International, 2000.
\37\ Statement by President George W. Bush: United Nations
International Day in Support of Victims of Torture, at .
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Immigration law restrictions against alleged torturers are not
sufficient for fighting impunity. As Amnesty International USA board
member William J. Aceves has written, ``[D]eportation does not serve as
an effective policy [to promote justice]. At best it provides an
inconvenience to torturers. At worst, it provides immunity to torturers
by returning them to countries where they will not be prosecuted.''
\38\
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\38\ Aceves, William J., Prosecuting Torture in U.S. Courts: The
Inapplicability of the Ex Post Facto Defense, in Effective Strategies
for Protecting Human Rights (David Barnhizer ed., 2001) at 2. Also see
Matas, David, Canada as a Haven for Torturers, Remarks at the Centre
for Refugee Studies, (Feb. 29, 2000) at .
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As a party to the Convention Against Torture, the United States is
obliged to either investigate or extradite for prosecution alleged
torturers within its jurisdiction, irrespective of where the torture
was committed.\39\ When the United States signed the Convention in
1988, the Reagan administration acknowledged that ``the core provisions
of the Convention establish a regime for international cooperation in
the criminal prosecution of torturers . . .'' \40\ This is the
Convention's requirement that states parties prosecute or extradite
torturers in their jurisdictions, no matter where the torture
occurred.\41\
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\39\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1965 U.N.T.S. 85,
art. 5(2).
\40\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, , U.S. Senate, Treaty Doc. 100-20
(1988) at iii.
\41\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1965 U.N.T.S. 85,
art.5-7.
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The United States need not rely on the Convention's universal
rules, however, to prosecute alleged torturers. Indeed, U.S. law
explicitly grants jurisdiction for such cases. Under 18 U.S.C.
Sec. 2340A, ``Whoever outside the United States commits or attempts to
commit torture shall be fined under this title or imprisoned not more
than 20 years, or both . . .'' \42\ The statute grants jurisdiction if
the alleged offender is a national of the United States, or if he or
she is ``present in the United States, irrespective of the nationality
of the victim or alleged offender.'' \43\
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\42\ 18 U.S.C. 2340A(a). The statute also provides for the death
penalty. Amnesty International is categorically opposed to the death
penalty, which we believe to be a fundamental violation of human
rights.
\43\ Id.
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Prosecution in the United States is one powerful tool against
impunity. It should be a vigorous part of a multi-track effort against
impunity. As Amnesty International has urged in the past, the United
States should:
Investigate any individual located on territory under
its jurisdiction alleged to have committed acts of torture.
Immediately take into custody or take other legal
measures to ensure the presence of any individual located in
territory under its jurisdiction alleged to have committed acts
of torture upon being satisfied that after an examination of
available information that the circumstances so warrant.
Extradite any individual located in territory under
its jurisdiction alleged to have committed acts of torture it
if it receives a valid request from a foreign government and it
ensures that the individual will not be subject to the death
penalty, torture, or other cruel, inhuman or degrading
treatment or punishment upon extradition, unless the case is
referred to the Justice Department for the purpose of
prosecution.\44\
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\44\ United States of America: A Safe Haven for Torturers, Amnesty
International USA, 2002, at 8 (listing these and other recommendations
as part of a ``multi-track strategy to combat impunity'').
As one torture survivor put it, describing his participation in a
case against two Salvadoran generals accused of commanding troops who
frequently and systematically committed torture, ``Being involved in
this case, confronting the generals with these terrible facts--that's
the best possible therapy a torture survivor could have.'' \45\ In sum,
Amnesty International urges Congress and the U.S. government to honor
torture survivors and the rule of law by bringing alleged torturers to
justice, not sending them--or anyone else--to countries where it is
more likely than not that they will suffer torture.
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\45\ Juan Romagoza Arce, plaintiff, Romagoza, Gonzalez & Mauricio
v. Garcia & Vides Casanova, as quoted in Center for Justice and
Accountability, Annual Report 2002.
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