[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


                                 ______

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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

                              ----------                              


                         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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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)
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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

                              ----------                              


               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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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, .
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    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.
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    \7\ Letter from William J. Haynes II, General Counsel, Department 
of Defense to Senator Patrick J. Leahy, June 25, 2003, 
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    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.
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    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\
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    \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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