[Senate Hearing 110-548]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-548
 
NO SAFE HAVEN: ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATORS IN THE UNITED 
                                 STATES

=======================================================================

                                HEARING

                               before the

                SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           NOVEMBER 14, 2007

                               __________

                          Serial No. J-110-63

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director
                                 ------                                

                Subcommittee on Human Rights and the Law

                 RICHARD J. DURBIN, Illinois, Chairman
EDWARD M. KENNEDY, Massachusetts     TOM COBURN, Oklahoma
JOSEPH R. BIDEN, Jr., Delaware       JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     SAM BROWNBACK, Kansas
                      Joseph Zogby, Chief Counsel
                 Mary Chesser, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma, 
  prepared statement.............................................    92
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     1
    prepared statement and attachment............................    94
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   109

                               WITNESSES

Arce, Juan Romagoza, M.D., Executive Director, La Clinica del 
  Pueblo, Washington, D.C. (translated from Spanish by Sally 
  Hanlon)........................................................    24
Forman, Marcy M., Director, Office of Investigations, Immigration 
  and Customs Enforcement, Department of Homeland Security, 
  Washington, D.C................................................     6
Mandelker, Sigal P., Deputy Assistant Attorney General, Criminal 
  Division, Department of Justice, Washington, D.C...............     4
Merchant, Pamela, Executive Director, Center for Justice and 
  Accountability, San Francisco, California......................    21
Scheffer, David, Mayer Brown/Robert A. Helman Professor of Law, 
  Northwestern University School of Law, Chicago, Illinois.......    19

                         QUESTIONS AND ANSWERS

Responses of Dr. Juan Romagoza Arce to a question submitted by 
  Senator Durbin.................................................    33
Responses of Marcy M. Forman to questions submitted by Senators 
  Kyl and Durbin.................................................    34
Responses of Sigal P. Mandelker to questions submitted by 
  Senators Durbin and Kyl........................................    51
Responses of Pamela Merchant to questions submitted by Senators 
  Durbin and Kyl.................................................    60
Responses of David Scheffer to questions submitted by Senators 
  Durbin and Kyl.................................................    72

                       SUBMISSIONS FOR THE RECORD

Amnesty International USA, statement.............................    78
Arce, Juan Romagoza, Executive Director, La Clinica del Pueblo, 
  Washington, D.C., statement....................................    88
Forman, Marcy M., Director, Office of Investigations, Immigration 
  and Customs Enforcement, Department of Homeland Security, 
  Washington, D.C., statement....................................    98
Human Rights Watch, New York, New York, statement................   105
Mandelker, Sigal P., Deputy Assistant Attorney General, Criminal 
  Division, Department of Justice, Washington, D.C., statement...   111
Merchant, Pamela, Executive Director, Center for Justice and 
  Accountability, San Francisco, California, statement...........   122
Scheffer, David, Mayer Brown/Robert A. Helman Professor of Law, 
  Northwestern University School of Law, Chicago, Illinois, 
  statement......................................................   131


NO SAFE HAVEN: ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATORS IN THE UNITED 
                                 STATES

                              ----------                              


                      WEDNESDAY, NOVEMBER 14, 2007

                                       U.S. Senate,
                  Subcommittee on Human Rights and the Law,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 10 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Richard J. 
Durbin, Chairman of the Subcommittee, presiding.
    Present: Senators Durbin and Cardin.

  OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 
                   FROM THE STATE OF ILLINOIS

    Senator Durbin. This hearing will come to order. Welcome to 
``No Safe Haven: Accountability for Human Rights Violators in 
the United States.'' This is the fifth hearing of the Judiciary 
Committee's recently created Subcommittee on Human Rights and 
the Law.
    Unfortunately, our Ranking Member, Senator Coburn, has a 
scheduling conflict and will not be able to join us today, but 
I can tell you based on previous hearings how strongly he feels 
about the mission of this Subcommittee.
    After a few opening remarks and a video, we will turn to 
our valuable witnesses.
    First, an update on the activities of this Subcommittee. 
This is the first time in Senate history that there has been a 
Subcommittee focused on human rights and the law. This year, we 
held the first congressional hearings on the law of genocide 
and child soldiers. We have also held hearings on human 
trafficking and the impact of the so-called ``material 
support'' bar on victims of serious human rights abuses coming 
to and staying in the United States.
    I want to thank Senator Patrick Leahy, the Chairman of the 
Senate Judiciary Committee, for giving me the opportunity of 
creating this Subcommittee and for being so supportive all 
along the way.
    I have been joined by Senator Coburn in proposing 
legislation to hold accountable perpetrators who have committed 
genocide, human trafficking, and the use or recruitment of 
child soldiers. The Genocide Accountability Act passed the 
Senate unanimously and, after being reported last week by the 
House Judiciary Committee, is awaiting action on the House 
floor. The Trafficking in Persons Accountability Act and the 
Child Soldiers Accountability Act have both been reported 
unanimously by the Senate Judiciary Committee. I look forward 
to working with my colleagues to enact these proposals into law 
as soon as possible.
    I said at the outset that the purpose of this Subcommittee 
was not lamentation but legislation. We need to enact laws that 
will further our purposes rather than just lamenting either the 
past or present state of the world.
    Today is another first. This is the first ever 
congressional hearing on the enforcement of human rights laws 
in the United States.
    The end of the last century was marked by horrific human 
rights abuses in places such as Bosnia and Rwanda. The early 
years of this century have seen ongoing atrocities committed in 
places like Darfur and Burma. While a growing number of 
perpetrators of human rights abuses have been held accountable, 
a much larger number of perpetrators have escaped 
accountability.
    Some of these human rights violators have fled to the 
United States. It is almost inconceivable that our Nation has 
become a safe haven for some of the most notorious war 
criminals. It is hard to believe that it has become a hideout 
for these hideous henchmen who have been involved in war crimes 
around the world.
    A growing number of perpetrators of human rights abuses 
have been held accountable in international, hybrid and state 
tribunals. A much larger number have escaped.
    In the Subcommittee's last hearing, we discussed how our 
immigration laws prevent some victims of human rights abuses 
from finding refuge in the United States. What a cruel irony 
that we have constructed laws that exclude victims but somehow 
have allowed those who are responsible for these hideous acts 
to find sanctuary in our midst.
    How we as a country treat suspected perpetrators of serious 
human rights abuses in the United States sends an important 
message to the world about our commitment to human rights and 
the rule of law. The late Simon Wiesenthal, the world's leading 
hunter of ex-Nazis and those who were involved in the 
Holocaust, often said the appropriate response to human rights 
violations is ``justice, not vengeance.''
    I am going to show a brief but graphic video we created for 
this hearing. I have always tried to do that so that we could 
put our actions today in the context of recent history.
    [Videotape played.]
    Senator Durbin. Our country has a long and proud tradition 
of providing refuge to victims of persecution. These victims 
hope to leave behind the terrible abuses they have suffered in 
their countries of origin and begin a new life in the United 
States. They should not have to come across those who tortured 
them, as Edgegayehu Taye did at the hotel in Atlanta, Georgia, 
where she worked as a waitress. One day, she walked out of an 
elevator and saw Kelbesso Negewa, the man who had supervised 
her torture in Ethiopia, who was working as a bellhop at the 
same hotel. These victims should not have to fear retaliation 
or threat of retaliation for speaking out against those who 
persecuted them, as one of our witnesses today, Dr. Juan 
Romagoza Arce, and many like him have experienced.
    I want to commend the Justice Department and the Department 
of Homeland Security for their efforts to hold accountable 
human rights violators who seek safe haven in our country. But 
we have to do more. During today's hearing, we will explore 
what the Government can do to identify, investigate, and 
prosecute suspected perpetrators. We will also explore what the 
U.S. Government is doing to prevent those perpetrators from 
coming to the United States.
    To my knowledge--and I will stand corrected if the 
testimony shows otherwise--there has only been one indictment 
in the United States of a suspected perpetrator for committing 
a serious human rights abuse. That is unacceptable, and we have 
to ask why. Why do so many suspected human rights abusers seek 
safe haven in our Nation? Are we doing enough as a Government 
and as a people with existing authority? Are new laws granting 
our Government greater authority and jurisdiction necessary?
    Torture is the only serious human rights violation that is 
a crime under U.S. law if committed outside the United States 
by a non-U.S. national. That is why Senator Coburn and I have 
introduced legislation to give our Government authority to 
prosecute individuals found in the United States who have 
participated in genocide, human trafficking, and the use or 
recruitment of child soldiers anywhere in the world. I hope 
this hearing will shed light on whether additional loopholes in 
the law hinder effective human rights enforcement.
    The United States has a proud tradition of leadership in 
promoting human rights. By holding perpetrators of serious 
human rights abuses found in the United States accountable, we 
will demonstrate our commitment to upholding the human rights 
principles we have long advocated.
    Now we turn to our first panel of witnesses for their 
opening statements. I want to note for the record that, for 
reasons I do not understand, our Subcommittee did not receive 
the written statements from these witnesses until 5 p.m. last 
night. Judiciary Committee rules require witness testimony to 
be submitted at least 24 hours in advance of a hearing. Because 
the subject matter of this hearing is so important, I want to 
go ahead with these witnesses and their testimony, but I urge 
them to provide their written statements in advance in the 
future so we can at least review them and be in a better 
position to ask important questions.
    Each witness will have 5 minutes for an opening statement, 
and their complete statements will be made part of the record.
    First, we will swear in the witnesses, which is the custom 
and tradition of the Committee. I would ask them both to stand. 
Do you affirm that the testimony you are about to give before 
the Committee will be the truth, the whole truth, and nothing 
but the truth, so help you God?
    Ms. Mandelker. I do.
    Ms. Forman. I do.
    Senator Durbin. Let the record reflect that both witnesses 
answered in the affirmative.
    Our first witness, Sigal Mandelker, is here to represent 
the Justice Department. Since July of 2006, she has served as 
Deputy Assistant Attorney General in the Criminal Division. She 
oversees the Office of Special Investigations and the Domestic 
Security Section--the two Justice Department offices with 
primary responsibility for prosecuting serious human rights 
violators. Since 2002, she has held a number of senior 
positions in the administration, including counselor to the 
Department of Homeland Security Secretary Michael Chertoff, 
Counsel to the Deputy Attorney General, and Special Assistant 
to then-Assistant Attorney General of the Criminal Division, 
Michael Chertoff. Ms. Mandelker clerked for Supreme Court 
Justice Clarence Thomas and Judge Edith Jones on the Fifth 
Circuit Court of Appeals, received her bachelor's degree from 
the University of Michigan and her law degree from the 
University of Pennsylvania.
    Ms. Mandelker testified at the Subcommittee's first 
hearing, on genocide and the rule of law, so this is her second 
appearance before us. Welcome back. The floor is yours.

  STATEMENT OF SIGAL P. MANDELKER, DEPUTY ASSISTANT ATTORNEY 
GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, 
                              D.C.

    Ms. Mandelker. Thank you, Chairman Durbin, and thank you 
for inviting me to testify today. It is a great honor to 
testify before this Subcommittee once again to discuss what I 
consider to be a mission of the highest importance. Both as the 
Deputy Attorney General in the Criminal Division who oversees 
two key participants in that mission--the Domestic Security 
Section and the Office of Special Investigations--and also a 
child of Holocaust survivors, I am pleased to address the 
Department of Justice's ongoing efforts against the 
perpetrators of genocide, war crimes, and crimes against 
humanity. I am particularly pleased to testify alongside Marcy 
Forman from ICE who has been a key partner in our efforts.
    It is auspicious to testify before this Subcommittee today, 
November 14th, a date of considerable importance both in the 
perpetration and in the fight against human rights violations. 
It was on November 14th of 1935 that the Third Reich issued the 
first regulations implementing the notorious Nuremberg laws. 
Exactly 10 years later, after millions had already been 
massacred, the International Military Tribunal convened in 
Nuremberg, Germany. And precisely a half-century later, history 
repeated itself when the International Criminal Tribunal for 
the former Yugoslavia issued its first indictments for genocide 
arising out of the Srebrenica massacre.
    With this history in mind, as you know, Mr. Chairman, we 
are all compelled to think carefully and more strategically 
about how we can best use our tools and resources to ensure, 
first, that history does not repeat itself once again; and, 
second, that human rights violators do not find refuge in this 
country.
    At the Department of Justice's Criminal Division, where I 
work, we have five sections that work principally to accomplish 
this mission. First, as I mentioned, the Domestic Security 
Section and the Office of Special Investigations. We also have 
the Office of International Affairs, the Office of Overseas 
Prosecutorial Training, Development, and Assistance, and the 
International Criminal Investigative Training Assistance 
Program. We are continually taking new steps to enhance our 
capabilities and to maximize our resources.
    So, for example, we have recently refocused the mission of 
the Domestic Security Section so that it now has two primary 
missions: one, working on human rights violator cases; and, 
two, working on immigration fraud cases. And, of course, there 
is some overlap between the two.
    Similarly, OSI has refocused its work to accomplish the new 
mission that Congress gave us in 2004, namely, denaturalization 
of individuals who commit genocide, extra judicial killings, 
and torture. And the Assistant Attorney General for the 
Criminal Division has recently appointed a senior counsel to 
work principally on human rights-related issues.
    Of course, we cannot accomplish this mission alone, and we 
work very closely with the U.S. Attorney's Offices, ICE, and 
the FBI, as well as the State Department.
    We pursue this mission on multiple fronts. First, we seek 
to prevent perpetrators from entering the country. Indeed, we 
have helped the Department of Homeland Security in stopping 
more than 180 suspected World War II criminals at U.S. ports of 
entry and have prevented them from entering the country. As 
recently as August of this year, for example, CBP inspectors at 
JFK Airport prevented a former SS officer from entering the 
United States. Among the Nazi perpetrators who have been 
excluded is Franz Doppelreiter, a convicted Nazi criminal who 
was stopped in November 2004 at the Atlanta airport. He 
admitted under questioning at the airport that he had 
physically abused prisoners at the notorious Mauthausen 
concentration camp while serving in the SS.
    Second, we take proactive measures to identify persons who 
have, unfortunately, gained entry to the United States under 
the misimpression that the United States will be a safe haven 
for them. Where we can do so, we bring criminal charges or take 
other appropriate law enforcement actions. Where we cannot 
bring criminal charges or where justice would be better served 
by ensuring that these individuals stand trial elsewhere, we 
seek to arrest and extradite or transfer these individuals so 
that they can stand trial abroad; or if they have become 
citizens, to denaturalize them and accomplish their departure 
through administrative removal proceedings.
    Just recently, an immigration judge in Chicago ordered that 
Osyp Firishchak be removed from the United States for his role 
in a Ukrainian police unit that assisted in the annihilation of 
over 100,000 Jews in Nazi-occupied Lvov, Poland, during World 
War II.
    Last, acting principally in conjunction with the Department 
of State, we continue to take important initiatives aimed at 
enhancing the capacity of foreign governments and international 
tribunals to investigate and prosecute criminal cases against 
participants in genocide, war crimes, and crimes against 
humanity.
    Each of these areas--identification, exclusion, criminal 
prosecution, extradition, denaturalization, removal, and 
foreign capacity building--form our comprehensive approach.
    In conclusion, Mr. Chairman, I would like to express to you 
and to the Subcommittee the Department of Justice's 
appreciation for your leadership and this opportunity to 
discuss the Government's ongoing efforts to ensure that justice 
is aggressively pursued both here and abroad on behalf of the 
victims of mass atrocities. We are very grateful for the tools 
that Congress has provided us. Most important, we are committed 
to continuing to expand our already vigorous efforts to promote 
fulfillment of the tragically unkept promise of Nuremberg: that 
no man, woman, or child anywhere will ever again be subjected 
to the cruel ravages of genocide, war crimes, and crimes 
against humanity.
    Thank you, Mr. Chairman.
    [The prepared statement of Ms. Mandelker appears as a 
submission for the record.]
    Senator Durbin. Thank you, and thank you for your public 
service. I can tell from your introduction that it extends 
beyond your professional responsibility and certainly has 
touched your family personally, so thank you so much.
    Ms. Mandelker. Thank you, Mr. Chairman.
    Senator Durbin. Our next witness, Marcy Forman, is here to 
represent the Department of Homeland Security. Ms. Forman is 
Director of the Office of Investigations for U.S. Immigration 
and Customs Enforcement, known as ICE. In this capacity, she 
oversees the Human Rights Violators and Public Safety Unit, the 
Department of Homeland Security office with primary 
responsibility for investigating suspected human rights 
violators. Before taking this position, Ms. Forman was Deputy 
Assistant Director of the Financial Investigations Division of 
the ICE Office of Investigation. Ms. Forman has over 27 years 
of law enforcement experience, a master's of science from 
National-Louis University and a bachelor of science degree from 
American University.
    Thank you for joining us, and please proceed with your 
testimony.

       STATEMENT OF MARCY M. FORMAN, DIRECTOR, OFFICE OF 
INVESTIGATIONS, IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT 
             OF HOMELAND SECURITY, WASHINGTON, D.C.

    Ms. Forman. Thank you, Chairman. Before discussing our 
Human Rights Violators Program, I would like to take you back 
to July 16, 1995. On that date, eight men from an elite unit of 
the Bosnian Serb Army participated in an almost unimaginable 
atrocity in Srebrenica, a farm village in Bosnia and 
Herzegovina. According to one of the perpetrators, between 
1,000 and 1,200 male civilians were executed in a 5-hour 
period. The civilians were lined in groups of ten to fifteen 
and were summarily executed. The perpetrator, named Marko 
Boskic, who is depicted on this poster to my right, was one of 
the participants in this atrocity.
    In late 2002, ICE special agents learned that Marko Boskic 
was residing in the United States. This discovery resulted in a 
nearly 2-year investigation conducted by ICE and the FBI and 
substantiated Boskic's involvement in the murder of 1,000 to 
1,200 civilians. In an interview, Boskic admitted that he 
actually pulled the trigger resulting in the deaths of many 
civilians. On July 12, 2006, Boskic was convicted of visa fraud 
and later sentenced to 63 months in a Federal prison. Upon 
completion of his sentence in the United States, it is 
anticipated he will face charges for his atrocities in Bosnia.
    It is my privilege to appear before you today to discuss 
ICE's comprehensive efforts against human rights violators. ICE 
is a U.S. law enforcement agency that is at the forefront of 
investigating human rights violators involved with genocide, 
torture, persecution, and extra judicial killings.
    In 2003, ICE created the Human Rights Violators and Public 
Safety Unit and the Human Rights Law Division to investigate 
and litigate cases involving human rights violations. 
Contributing to the ICE effort is our Victim/Witness Program, 
which includes over 300 victim/witness coordinators who are 
trained to address the needs of the victims of these horrific 
acts.
    ICE has over 140 active investigations and is pursuing over 
800 leads and removal cases involving suspects from 
approximately 85 different countries. These cases are 
predominantly focused on Central and South America, Haiti, the 
Balkans, and Africa, and represent cases in various stages of 
investigation, prosecution, or removal proceedings. From fiscal 
year 2004 to date, ICE has made over 100 human rights-related 
arrests and obtained 57 indictments and 28 convictions. From 
fiscal year 2004, ICE has removed 238 human rights violators 
from the United States.
    Due to the fact that human rights violations and atrocities 
have occurred abroad, law enforcement is often unable to assert 
U.S. jurisdiction for the substantive crime. In some cases, our 
ability to apply criminal charges that could have been levied 
in the U.S. may have expired due to the statute of limitations. 
In these situations, ICE applies our administrative authorities 
to ensure that human rights violators are investigated and 
removed from the United States.
    For example, in September 2005, the ICE office in Phoenix, 
Arizona, investigated and arrested 20 former Bosnian Serb 
military members who allegedly belonged to units that were 
active during the Srebrenica massacre. The 5-year statute of 
limitations relating to criminal visa fraud or false statements 
had expired on seven of the 20 violators arrested. ICE was able 
to use its administrative authorities to arrest and place the 
seven offenders into administrative removal proceedings.
    Successful human rights violations investigations and 
prosecutions could not be achieved without partnering with 
other law enforcement agencies, non-governmental organizations, 
and foreign governments. These investigations require ICE to 
travel the world to find evidence and locate and interview 
victims and witnesses. ICE has established a global network 
through over 50 ICE offices in 39 countries, which has allowed 
us to foster strong international relationships. ICE partners 
with many U.S. Government agencies, including the Department of 
Justice, who is with us today.
    ICE has established relationships with the United Nations-
sponsored International Criminal Tribunal for the Former 
Yugoslavia and for Rwanda, and the Special Court for Sierra 
Leone. As I speak before the Committee today, one member of my 
staff, Richard Butler, is at the ICTY in The Hague, where he is 
preparing to testify as a Subject Matter Expert on the role of 
military forces and the responsibilities of their commanders 
for war crimes that occurred in Srebrenica. Mr. Butler spent 6 
years as a military expert at the ICTY, and ICE is fortunate to 
now have him on our staff.
    The following is another example that highlights our 
international cooperation in human rights violations. On April 
1, 2007, ICE arrested Ernesto Barreiro for visa fraud charges. 
Barreiro, a former Argentine army officer, was wanted by 
Argentinean authorities for commanding a clandestine torture 
facility operated by the military in the 1970s. As the chief of 
the La Perla detention camp, Barreiro is alleged to have been 
involved in at least a dozen cases of torture, kidnapping, or 
extra judicial killings. Barreiro was successfully prosecuted 
in the Eastern District of Virginia and upon completion of his 
sentence will be deported back to Argentina.
    The results that ICE has obtained in human rights violators 
cases often do not reflect the significant commitment of 
resources and time to these types of investigations. These 
cases are unique.
    In most cases, the atrocities committed by the targets of 
our investigations happened years or even decades earlier.
    Many of the atrocities have occurred in remote locations 
and have caused displacement of the victim population, 
resulting in many victims and witnesses scattered around the 
world.
    Many cases rely on documentary evidence to show where 
military or security units were located when atrocities were 
committed. Foreign military or other government records are 
often not available or, worse yet, have been destroyed. And law 
enforcement must, therefore, attempt to identify victims or 
witnesses wherever they may be.
    Human rights violators represent the worst of humanity. ICE 
is committed to dedicating the resources necessary to 
investigate, present for prosecution, and remove from the U.S. 
those individuals who have participated in these atrocities in 
order to ensure that the United States does not become a safe 
haven for human rights violators.
    Thank you, and thank you for having me at this hearing.
    [The prepared statement of Ms. Forman appears as a 
submission for the record.]
    Senator Durbin. Well, thank you both for your testimony, 
and, without objection, Senator Leahy's statement for the 
record will be entered into the official record of this 
proceeding.
    Ms. Forman, we are going to hear testimony today from Dr. 
Juan Romagoza about horrific torture that he suffered in El 
Salvador. A U.S. court held that two former Salvadorean 
generals were responsible for his torture in a civil suit. 
Today, those two individuals responsible for his torture are 
living freely in Florida.
    Why has the Department of Homeland Security not sought to 
remove these human rights abusers from our country?
    Ms. Forman. I am not totally familiar with those 
circumstances. I would have to get back to you and get you an 
answer on that question.
    Senator Durbin. I hope you will.
    Ms. Forman. I will.
    Senator Durbin. Let me ask you, has the Department of 
Homeland Security ever sought to remove someone from the United 
States on the basis of his or her command responsibility for 
serious human rights abuses like torture or extra judicial 
killing?
    Ms. Forman. I am not aware based on those conditions. I 
know each case is evaluated on a case-by-case basis, but I do 
not know specifically for that particular reason.
    Senator Durbin. So do you know whether command 
responsibility is taken into consideration as one of the 
reasons for your Department to act?
    Ms. Forman. I do not believe that is one of the conditions 
at this time.
    Senator Durbin. Can you tell me, do you know the reasoning 
behind that?
    Ms. Forman. No, I do not.
    Senator Durbin. Ms. Mandelker, you testified that the 
Justice Department is ``committed to bringing criminal 
prosecutions against individuals for substantive human rights-
related violations.'' In December 2006, the Justice Department 
indicted Chuckie Taylor for the crime of torture. I understand 
this is the first indictment the Justice Department has ever 
brought under the 1994 Torture Statute and the first it has 
ever brought for a substantive human rights violation.
    If our Department of Justice is committed to prosecuting 
human rights cases, why have we only had one human rights 
prosecution?
    Ms. Mandelker. Mr. Chairman, that is a very good question, 
and I can tell you that we are certainly committed to 
investigating and prosecuting more of these cases. You may be 
aware that we recently superseded in the Chuckie Taylor case 
bringing charges related to additional victims and acts of 
torture.
    I can also tell you that it is often the case that these 
sorts of cases are time-intensive, resource-intensive. They 
principally involve--or really solely involved incidents that 
occurred overseas, often distant in the past, and they involve 
foreign documents. We have to undertake to translate those 
documents, find witnesses. But we are committed to doing so.
    Of course, we have brought charges against individuals who 
we believe have committed human rights violations, whether we 
have brought them for visa fraud--we have the Nazi program in 
which we have denaturalized, I believe, over 100 individuals. 
But from experience, we know these are difficult cases to 
bring. What we are trying to do now at the Justice Department 
is think through strategically how we can attack this problem 
from a more sort of coordinated, and how can we ensure that we 
are committing the resources that we need to, to bring 
additional cases. That--
    Senator Durbin. So--go ahead.
    Ms. Mandelker. That is why, for example, as I mentioned, we 
have refocused the mission of the Domestic Security Section. 
That is why the Office of Special Investigations is taking on 
this new mission, and we are taking that mission very 
seriously.
    Senator Durbin. So going beyond the obvious evidentiary 
challenges and the challenges of having the staff to reach the 
goal of a successful prosecution, do you face legal obstacles?
    Ms. Mandelker. Sure, Mr. Chairman. As you know, first and 
foremost we can only prosecute individuals based within a 
particular time period, whether it is because of the statute of 
limitations or we can only prosecute those individuals for 
violations that occurred after enactment. So that in and of 
itself would be a challenge.
    Senator Durbin. We will have a suggestion from a later 
witness here to eliminate from U.S. law all statutes of 
limitation for atrocity crimes. What is your position on that 
recommendation?
    Ms. Mandelker. Mr. Chairman, I would have to get back to 
you on that particular question. I do not know that we have a 
formal administration view. But I am happy to take that 
question back and to get back to you.
    Senator Durbin. We will also have testimony that many 
nations around the world, friends and allies of the United 
States, have recently codified these war crimes and crimes 
characterized as atrocities so that they can be prosecuted 
within their own countries more effectively. Do you feel that 
this would give you additional tools to deal with these 
wrongdoers?
    Ms. Mandelker. If we were to amend those current--
    Senator Durbin. If we were to codify these war crimes as 
crimes within the United States.
    Ms. Mandelker. I see. Well, as you know, we do have a war 
crimes statute. That statute only reaches U.S.--where the 
perpetrator was a U.S. national or the victim was a U.S. 
national.
    Again, I would have to look at the specifics of a 
particular legislative proposal. I am happy to do so. Certainly 
it is going to be the case that if we have expanded statutory 
authority, we would be able to potentially bring more charges. 
But I cannot speak to any particular legislative proposal in 
the abstract. We are happy to take a look at anything that you 
would provide.
    Senator Durbin. I mentioned the case of Dr. Romagoza, who 
will be testifying, and it involved two former Salvadorean 
generals who were found liable under civil law and who continue 
to live in the United States without criminal prosecution. Has 
the Department of Justice considered criminal prosecution 
against these two individuals?
    Ms. Mandelker. Mr. Chairman, I am not aware that we have 
considered criminal prosecution. As with Ms. Forman, I am happy 
to take a look at those circumstances. Of course, you need to 
take a look at each case for its individual facts and 
circumstances to make any kind of a determination as to whether 
or not such a person would be eligible for prosecution under a 
human rights violation.
    Senator Durbin. I would like you to get back to me.
    You testified about the case of Kelbessa Negewo--I am sorry 
if I mispronounced it--who was accused of serious human rights 
abuses in Ethiopia and found safe haven in Atlanta, Georgia. 
Negewo was the first person to be charged under the 2004 law 
making torture and extra judicial killing grounds for removal 
from the United States.
    How many other individuals have been charged under this 
law?
    Ms. Mandelker. I am sorry. Under the--
    Senator Durbin. Under this law making torture and extra 
judicial killing grounds for removal.
    Ms. Mandelker. I would defer to my colleagues at the 
Department of Homeland Security since that is a matter--
    Senator Durbin. That is right. Ms. Forman, do you know?
    Ms. Forman. I do not have a specific number, but we have 
deported a number of individuals involved to their home country 
for prosecution. The Bosnian case that I had mentioned, where 
the seven of the 20 were removed for administrative 
proceedings, two of those individuals are currently facing 
prosecution in Bosnia.
    Senator Durbin. Do either of you have any idea of a 
reasonable range of the number of individuals in the United 
States today who are suspected of involvement in war crimes?
    Ms. Mandelker. I do not have a specific number, Mr. 
Chairman. I think it would be--
    Senator Durbin. Just an estimate. The video presentation 
said 1,000?
    Ms. Mandelker. Yes.
    Senator Durbin. We will have testimony later that it is 
larger. Do you have any idea?
    Ms. Mandelker. I noted that number, and I wondered actually 
where it came from, and I would be interested to see where it 
came from. I can tell you that we have a number of ongoing 
investigations into individuals who have become citizens and 
have either potentially committed previously genocide, torture, 
or extra judicial killings. But it would be inappropriate for 
me to give you a number. I simply do not have one.
    Senator Durbin. Ms. Forman, you testified that from fiscal 
year 2004 to the present, ICE has made over 100 human rights-
related arrests, obtained 57 indictments, and 28 convictions, 
and removed 238 human rights violators from the United States. 
How many of those arrests, indictments, convictions, and 
removals were for human rights violations? How many were for 
immigration violations?
    Ms. Forman. I would have to get back to you with the 
specific numbers broken down that way. But I will tell you many 
of these individuals--these cases are very difficult to prove, 
the substantive violation. And on the criminal cases, more 
often than not many of these individuals were charged with 
either immigration fraud, visa fraud, or false statements.
    Senator Durbin. My staff, incidentally, tells me, Ms. 
Mandelker, that the number of 1,000 investigations and 
deportation cases was provided by the Department of Homeland 
Security.
    I would like to ask you, Ms. Forman, in how many of the 238 
removals did you obtain assurances that the suspected human 
rights abuser would be prosecuted in his or her home country?
    Ms. Forman. That, too, I will have to get back with you. We 
have had successes, but I do not have a specific number for 
you.
    Senator Durbin. How large is the Human Rights Violators and 
Public Safety Unit?
    Ms. Forman. The headquarters component is approximately 
five people, but our agents, we have approximately 5,600 agents 
in our special agent in charge field offices. Many of those 
individuals are assigned to work these cases.
    Senator Durbin. How many at any given time would be 
assigned to work these cases?
    Ms. Forman. It all depends on--these cases are very 
complex, so normally it would be--we would have a unit that is 
dedicated, and the whole unit could be dedicated to the 
investigation, if that is what it took, plus our foreign arm, 
our foreign attache offices who are pursuing the leads for us.
    Senator Durbin. Are we talking in terms of dozens or 
hundreds?
    Ms. Forman. On a particular individual, it usually is--if 
we are searching for one or two, it could be two or three at 
one given time, dedicated full-time to pursuing the 
investigation.
    Senator Durbin. Your estimate, your Department estimate, is 
that we are talking about a possible range of 1,000 people who 
could be investigated. When you look at all the ongoing 
investigations at any given time in the Department of Homeland 
Security, how many staffers would be dedicated to those 
investigations?
    Ms. Forman. Well, some of these investigations do not reach 
our--due to statute of limitations, do not reach the criminal 
level, so the criminal investigators--I mean, the cadre--we 
have 26 special agent in charge offices. Each office has a 
component that works these types of cases, and we have the 
Human Rights Law Division in headquarters who addresses the 
administrative removal.
    Senator Durbin. Would there be more than 100 or fewer, at 
any given time, involved in all of the investigations?
    Ms. Forman. I would say the combination between the Legal 
Division, the agents, and the detention removal folks, probably 
at a given time about 100. It could be up to 100.
    Senator Durbin. Ms. Mandelker, you testified that two lead 
Justice Department offices in human rights enforcement are the 
Office of Special Investigations and the Domestic Security 
Section. How large is the OSI and how large is DSS?
    Ms. Mandelker. The Office of Special Investigations has up 
to 30 individuals on staff. That is a combination of lawyers, 
historians who have become experts in the various regions, 
paralegals and other administrative staff.
    The Domestic Security Section has approximately 14 trial 
attorneys.
    Senator Durbin. How many DSS attorneys focus on enforcing 
human rights laws?
    Ms. Mandelker. Mr. Chairman, as I mentioned, we have 
refocused recently the mission of the Domestic Security Section 
along two fronts: one is the human rights violators front, and 
one is immigration-related violations. At any given time the 
number of trial attorneys assigned to any particular mission 
might vary, but it is roughly, I would say, a 50/50 split.
    That said, there is also often overlap. We also, of course, 
work very closely with our colleagues in the U.S. Attorney's 
Offices on many of these cases.
    Senator Durbin. So about seven attorneys would be focused 
on human rights violations?
    Ms. Mandelker. That is approximately right.
    Senator Durbin. Is it true that OSI's jurisdiction extends 
only to denaturalization cases?
    Ms. Mandelker. Civil and criminal denaturalization.
    Senator Durbin. Has the Department considered creating an 
office to focus exclusively on human rights enforcement?
    Ms. Mandelker. Not that I am aware of, Mr. Chairman. But, 
again, we have recently taken this move to refocus the Domestic 
Security Section. I should mention that the Office of Special 
Investigations has also recently assisted on some of the visa 
fraud cases that we have brought against Bosnian Serbs who lied 
on their immigration forms. So OSI is principally focused on 
denaturalization, but we have participated in some other cases 
as well.
    Senator Durbin. Ms. Forman, you told us about this case of 
Marko Boskic who was convicted of visa fraud. He had been 
involved in the Srebrenica massacre involving a substantial 
number of people, and it turns out that he was prosecuted for 
visa fraud instead of serious human rights abuses.
    I would like either one of you to tell me--probably Ms. 
Mandelker would be appropriate. Why is it that the only thing 
we could find to charge this man with was visa fraud? It is 
reminiscent of convictions of Al Capone for tax fraud. It 
sounds to me like we were searching for anything to find him 
guilty of instead of the obvious. Why is that?
    Ms. Mandelker. Mr. Chairman, I actually was not at the 
Department at the time the charges were brought in the Boskic 
case. You know, I can tell you that in any particular case we 
look at the facts and circumstances and the possible charges 
that we can bring, and we are, of course, always committed to 
bring the most readily provable charges that would subject the 
individual to the highest penalties. But I cannot comment on a 
specific case.
    Senator Durbin. Well, then, let's go to the general 
question. Boskic admitted to killing many Bosnian civilians in 
Srebrenica. Under current law, is it possible to prosecute 
Boskic for these crimes in the United States?
    Ms. Mandelker. Again, Mr. Chairman, it would very much 
depend on the facts and circumstances of a particular case.
    Senator Durbin. Well, OK. The crime did not occur in the 
United States, and let's assume for the sake of discussion 
there were no American victims. Could he be prosecuted in the 
United States?
    Ms. Mandelker. If there were no American victims or they 
were not perpetrated by a U.S. national, sitting here today, it 
is difficult for me to come up with a potential charge that we 
could charge him with.
    Senator Durbin. So if the crime were genocide of Bosnian 
nationals committed by a Bosnian who was seeking safe haven in 
the United States, you do not believe we have a law that we 
could prosecute him for.
    Ms. Mandelker. That is correct, Mr. Chairman.
    Senator Durbin. I see that Senator Cardin is here, and I 
have gone way over 5 minutes, and I want to give him a chance 
to ask before I ask a few more questions. Senator Cardin?
    Senator Cardin. Well, first, Senator Durbin, thank you for 
holding this hearing. One of the reasons I was so pleased about 
the creation of this Subcommittee was to be able to focus on 
the human rights issues and how we can be more effective in 
dealing with human rights internationally.
    I certainly am very concerned about the issue you raised in 
your last question about America being a safe haven for those 
who have committed human rights violations in another country, 
then tried to avoid accountability by coming to our own 
country. That is unacceptable, and I thank you for your 
leadership in pursuing bills that deal with that.
    I want to deal with one of the bills that you are the 
sponsor of, and that is the trafficking issue. In trafficking, 
the United States has taken a strong international leadership 
position. I am very proud of the work that has been done in the 
OSCE, the Helsinki Commission, on promoting strong enforcement 
of laws to fight trafficking and to have zero tolerance in 
regards to trafficking.
    My question basically deals with the difficulty in 
sometimes dealing with the receiving countries. The United 
States is a receiving country of people who are trafficking, 
and I know that we have strong laws to deal with that. But I 
come back to the point as to whether our laws are effective in 
dealing with all of the players that are involved in 
trafficking and whether we can strengthen those laws. Senator 
Durbin has a bill to do that. And what has your experience been 
as far as effectively being able to investigate international 
networks which the United States is part of in trafficking of 
women or trafficking of labor?
    Ms. Mandelker. Senator Cardin, as you may know, the 
responsibility for trafficking lies within two divisions of the 
Department of Justice:
    The Civil Rights Division, which is responsible for the 
trafficking of adults, and they are also responsible for forced 
labor cases. So I would defer to the Civil Rights Division with 
respect to part of that question.
    We also have in the Criminal Division the Child 
Exploitation and Obscenity Section, which is responsible for 
child sex trafficking. And we have brought a number of 
trafficking cases that we actually consider to be domestic 
prostitution cases, which also qualify as child sex trafficking 
cases.
    We certainly need to do more. As you are probably aware, it 
is often the case that these are extremely difficult cases to 
bring because much of the activity, in fact, occurs overseas. 
We work very closely with ICE in that mission. We are committed 
to doing those cases. They are very important cases.
    In fact, I was recently in Bangkok, Thailand, and I had a 
briefing on sex tourism. These are terrible, terrible crimes. 
These children, whether in the United States, brought into the 
United States, or victimized overseas, are among the most 
vulnerable victims, children who are subject to sexual 
exploitation. They are difficult cases, but they are well worth 
the resources when you think about the victims, when you think 
about helping them can get on the course to a better life, and 
when you think about the need to bring these traffickers to 
justice so that they cannot victimize children again.
    Senator Cardin. Well, I agree completely with what you just 
said. I would feel a little more comfortable, though, if you 
could outline what additional tools would be helpful, either in 
change of law so that some of the venue issues or limitation 
issues that may be hindering your ability to pursue these cases 
are more effectively handled by our laws; and, second, whether 
you have the resources necessary, considering the complexity of 
these types of cases, they multi-state jurisdictional; and, 
last, whether we need stronger attention in the international 
diplomatic areas to pursue these types of cases.
    It has been brought to my attention that in some of the 
trafficking cases it has not gotten the type of attention in 
the country in which the traffickers originate, and that 
whether we need to put more international diplomacy to these 
issues.
    Ms. Mandelker. Senator, as to your latter question, as I am 
sure you are aware, the State Department is, in fact, very 
engaged internationally in terms of bringing attention to this 
important issue. And we also have, of course, within the 
Criminal Division individuals who participate in training 
overseas. We work cases with our partners, law enforcement 
partners overseas. I think, frankly, that Congress is a very 
important and strong partner in this effort because we must all 
collectively send the message that this activity will not be 
tolerated. The more cases that we bring, frankly, the more 
publicity that we bring to light on these types of cases, the 
more that individuals understand that there is accountability 
if they do commit these terrible crimes. I think it is very 
important that we collectively send that public message.
    With respect to resources, of course, we are very grateful 
for the resources that the Congress has given to the Department 
of Justice, and we are committed to using those resources 
effectively and to dedicating the appropriate resources to 
these sorts of cases.
    With respect to legislation, I sitting here today cannot 
give you a formal position on any particular piece of 
legislation, but we are always happy to work with the Congress 
on looking at legislation and looking at changes to the law if 
necessary.
    Senator Cardin. And please do not misconstrue my questions. 
I am proud of the leadership that the United States has played 
on fighting trafficking. I think we have raised this issue at 
the highest levels internationally, have placed high priority 
on it, have made significant progress internationally in 
dealing with it, have changed the attitudes within our military 
facilities where they are located in the host countries to deal 
with the issues. So I think we have done a lot to bring this 
issue forward. But I think more can be done, and I would very 
much encourage the type of activity within your agency to give 
us help as to where are the problems you are confronting and 
what we can do to try to deal with that. This is a continuing 
effort, and we need to continuously raise these issues.
    There are a lot of countries that we have very friendly 
relations with that are not doing what they need to do in this 
area.
    Thank you, Mr. Chairman.
    Senator Durbin. Thank you very much, Senator Cardin.
    Ms. Forman, I understand that ICE is developing a Human 
Rights Tracking Center to collect information on human rights 
abusers and war criminals. What does the Department of Homeland 
Security currently do to ensure that human rights violators do 
not enter the country in the first place?
    Ms. Forman. We work collectively with our partners. The 
center that we are proposing to create--we have not created it 
yet--would be a one-stop shopping for human rights violators, a 
repository. So the subject matter experts, the attorneys, the 
historians, the investigators, and all other relevant parties 
would be in one spot, and it would be a repository for a list 
that have already been identified all over the world of human 
rights violators so we can address it at the front end before 
these individuals working with our foreign counterparts, with 
the State Department, with our partners at DHS and DOJ to 
ensure these individuals do not get visas to come into this 
country.
    Senator Durbin. Ms. Mandelker, you testified that extensive 
efforts have been made to identify and exclude participants in 
genocide and other heinous mass atrocity crimes. You stated 
specifically that our Government has successfully stopped more 
than 180 suspected World War II criminals at the border. How 
many modern-day war criminals has our Government stopped at the 
border?
    Ms. Mandelker. Chairman Durbin, I would have to defer to 
CBP for that answer. We are--
    Senator Durbin. CBP would be?
    Ms. Mandelker. Customs and Border Protection, since they 
are responsible for the entrants at ports of entry. However, I 
do know that we are continually working to try to identify more 
individuals who can be entered into the border control system 
to ensure that such individuals are not permitted to enter the 
country. We certainly can and must do more, and we are thinking 
through carefully how we can enhance the number of individuals 
who are indeed entered into those systems.
    Senator Durbin. Ms. Forman, can you answer that question?
    Ms. Forman. No. I would have to get back to you.
    Senator Durbin. OK. The premise of this hearing is that, 
unfortunately, as Senator Cardin also noted, the United States 
has become a safe haven for notorious war criminals. That is 
certainly something that is a matter of great concern to all of 
us.
    Do you share my concern, after listening to your responses, 
of how limited our commitment is to changing this? When we talk 
about a handful of lawyers at the Department of Justice, or no 
more than 100 people in your Department of Homeland Security 
involved in this, I am afraid it leads one to believe that this 
is not a serious commitment. And when we hear of the obvious 
gross injustice of two Salvadorean generals who have been found 
liable in a civil court for torture, living safely in Miami 
without prosecution, it has to lead me to the conclusion that 
we are not serious about this. If we were serious, I think our 
laws would be changing. I think there would be more people 
focused on it.
    Would you like to tell me I am wrong?
    Ms. Mandelker. Well, Mr. Chairman, I share your strong and 
deep commitment to this issue, and what I can tell you is that 
within my capability and within my resources, we are dedicating 
a number of individuals in this fight. There is no question 
that it is unacceptable for this country to be a safe haven for 
human rights violators, and so we are, again, constantly 
thinking strategically how we can maximize our resources.
    So, for example, while I have a limited number of attorneys 
in the two sections that I noted--and, of course, we do have 
three other sections who work principally overseas who are also 
committed to this issue and are doing a lot of very good work--
we need to export our expertise to the U.S. Attorney's Offices. 
And so we are thinking about--or we are putting together a 
training course so that we can enlist additional U.S. 
Attorneys, prosecutors, to this fight. We do have a number of 
Assistant U.S. Attorneys who have been very helpful in this 
endeavor, but we need to maximize--there is no question that we 
need to maximize our resources. There is no question that we 
need to do more training. And I am particularly pleased, 
frankly, Mr. Chairman, to be at the Department of Justice at 
this time when there is a Subcommittee that is so dedicated to 
this issue and where we have the capability to expand our 
capabilities.
    But I share your concern, Mr. Chairman.
    Senator Durbin. Ms. Forman?
    Ms. Forman. What I can comment is when ICE has these types 
of investigations--I mentioned the 5,600 special agents--we 
will dedicate all the necessary resources to go after these 
individuals, both domestic and foreign, and what it takes to 
track these individuals down, certainly recognizing that we 
have human trafficking responsibilities and so forth. But there 
are cases we will dedicate the resources necessary to go after 
these individuals.
    Senator Durbin. Thank you, and--
    Senator Cardin. Could I ask a question, if you would yield?
    Senator Durbin. Certainly.
    Senator Cardin. Thank you. Because I understand your 
efforts to deport individuals who come in under fraudulent 
circumstances, and the laws are pretty clear about that. If you 
have the resources, you can be successful in dealing with that, 
including those who have been naturalized as far as their 
citizenship is concerned.
    But Senator Durbin asked a question a little bit earlier 
that had me concerned, and that is, if you have a non-American 
who is in this country who has committed or is alleged to have 
committed a human rights violation that would be a violation of 
our laws, but not involving an American, that we would be 
limited as to what we could do to hold that person accountable 
under current law. And there are bills here that strongly 
support holding accountable individuals who have violated 
international human rights standards, war crimes, genocide, 
those types of activities. I am concerned that just by allowing 
that person to leave our country, that person may escape 
accountability.
    Now, I am sensitive to the issues that we have with other 
countries as to their sovereignty and the right to prosecute in 
their countries and our relationships with other countries and 
how Americans will be treated in other countries. But it seems 
to me that when we are dealing with serious human rights 
violations, we need to strengthen our ability to hold 
criminally accountable those who have committed war crimes, 
particularly where the native country is not prepared to do 
that.
    So I just really want to underscore the point that Senator 
Durbin has said. I hope that we can work together to figure out 
how we can come up with the strongest possible laws in this 
country, consistent with our international obligations, to make 
it clear that the United States will not only we will prevent a 
safe haven for those who have committed human rights 
violations, but will hold accountable individuals who are under 
our control, they are in our country, who have violated 
international norms, who have committed war crimes, genocide 
and other types of human rights violations that are--not only 
do we want them out of our country, we want them held 
accountable. We want these people held accountable.
    Thank you, Mr. Chairman, for that, but I wanted to make 
sure that point is clear in our record, that it is not just 
deporting these individuals or taking away their naturalized 
citizenship. It is holding them accountable for the violations 
of human rights.
    Senator Durbin. Senator Cardin, thank you, and thanks to 
Ms. Forman and Ms. Mandelker for being our first panel at this 
important hearing. We are going to continue to work with you. I 
hope that you will get back to us. We will send you some 
written questions, and I hope you will get back to us on some 
of the questions that you needed additional time to prepare 
answers.
    Thank you very much.
    Ms. Forman. Thank you.
    Ms. Mandelker. Thank you.
    Senator Durbin. I now invite our second panel to the table. 
While they are taking their seats, I am going to give an 
introduction for each of them in the interest of time. Included 
in this panel is Ambassador David Scheffer, the Mayer Brown/
Robert A. Helman Professor of Law, and Director of the Center 
for International Human Rights at Northwestern University 
School of Law. From 1997 to 2001, Ambassador Scheffer was the 
U.S. Ambassador at Large for War Crimes Issues. In this 
capacity, he negotiated and coordinated U.S. support for the 
establishment and operation of international and hybrid 
criminal tribunals and U.S. responses to atrocities throughout 
the world. He also headed the Atrocities Prevention Inter-
Agency Working Group. Ambassador Scheffer recently held 
visiting professorships at Northwestern Law, the highly 
respected Georgetown University Law Center, and George 
Washington University Law School. He graduated from Harvard 
College, Oxford University, and the Georgetown University Law 
Center.
    Our next witness in the panel will be Pamela Merchant. 
Since 2005, Ms. Merchant has been the Executive Director of the 
Center for Justice and Accountability, a nonprofit legal 
organization dedicated to ending torture and other severe human 
rights abuses. She spent 8 years as a Federal prosecutor with 
the U.S. Department of Justice. Recently, she was Special 
Counsel to the California Attorney General. Ms. Merchant 
graduated with honors from Georgetown University and Boston 
College School of Law. We thank her for joining us.
    And our final witness is Dr. Juan Romagoza Arce, the 
Executive Director of La Clinica del Pueblo, a public health 
clinic which provides free, comprehensive health care and 
education services to the poor and uninsured in Washington, 
D.C. Dr. Romagoza was born in El Salvador and, as part of his 
medical training, set up medical clinics and provided health 
education to the underserved in the poor areas of San Salvador 
and neighboring communities.
    In December 1980, Dr. Romagoza was detained and tortured 
for 22 days at the National Guard headquarters in San Salvador. 
His torture has permanently deprived him of his ability to 
perform surgery. After his release from prison, he fled El 
Salvador and arrived in the United States in 1983.
    In 1999, Dr. Romagoza and two co-plaintiffs brought a civil 
suit against Generals Garcia and Vides Casanova for torture and 
other human rights abuses. In July 2002, a Federal jury 
returned a verdict against the generals, holding them 
responsible for the torture of Dr. Romagoza and his fellow 
plaintiffs.
    Dr. Romagoza has received many awards, including the 
Community Health Leadership Award from the Robert Wood Johnson 
Foundation, and was named one of Washingtonian Magazine's 
Washingtonians of the Year in 2005 for his work with La Clinica 
del Pueblo.
    It is an honor to have you, Doctor, as well as the other 
witnesses on this panel, before us today. And as I mentioned 
earlier, it is customary for us to administer an oath. I ask 
you all to please stand and raise your right hand. Do you 
affirm the testimony you are about to give before the Committee 
will be the truth, the whole truth, and nothing but the truth, 
so help you God?
    Mr. Scheffer. I do.
    Ms. Merchant. I do.
    Dr. Romagoza. I do.
    Senator Durbin. Thank you very much. The record will 
indicate that you answered in the affirmative.
    Professor Scheffer, before you start, I read your 
statement, and I also read the accompanying document, over 30 
pages. But it was very good, and I thank you for it. It really 
put a number of issues in perspective and helped me in 
preparing questions for the earlier witnesses. I would now like 
to invite you to speak for about 5 minutes. Your entire 
statement will be made part of the record, and then we will 
follow with the other two members of the panel before we ask 
questions.

   STATEMENT OF DAVID SCHEFFER, MAYER BROWN/ROBERT A. HELMAN 
   PROFESSOR OF LAW, NORTHWESTERN UNIVERSITY SCHOOL OF LAW, 
                       CHICAGO, ILLINOIS

    Mr. Scheffer. Thank you. I wish to thank you, Chairman 
Durbin, and Senator Coburn and Senator Cardin and all the other 
members of this Subcommittee for this opportunity.
    Senator Durbin, I am very proud to live and work in 
Illinois. I understand that Senator Coburn is unable to be with 
us today, but I want to note for the record that I take great 
pride in being born and raised in Norman, Oklahoma.
    From 1997 to 2001, I was the Ambassador at Large for War 
Crimes Issues. While I served and in the years since, I always 
maintained that war crimes work is and must remain nonpartisan 
and bipartisan, and I believe this Subcommittee proves that 
point in spades.
    After all that has been experienced since the precedents of 
the Nuremberg and Tokyo Military Tribunals and the scores of 
cases prosecuted by the international criminal tribunals during 
the last 15 years, one would be forgiven to assume that surely, 
in the United States, the law is now well established to enable 
U.S. courts--criminal and military--to investigate and 
prosecute the full range of genocide, crimes against humanity, 
and war crimes--what I call ``atrocity crimes''--that have been 
codified in treaty law, prosecuted before the international 
criminal tribunals, and well established as customary 
international law. That, however, is not the case. The fact 
remains that as we approach 2008, the United States remains a 
safe haven under too many circumstances for perpetrators of 
atrocity crimes.
    Unfortunately, U.S. Federal criminal law has become 
comparatively antiquated during the last 15 years in its 
coverage of atrocity crimes as international criminal law has 
evolved significantly during that period. The prospects of U.S. 
courts exercising jurisdiction, whether it be subject matter, 
territorial, personal, passive nationality, or protective 
jurisdiction, over atrocity crimes under current law remain 
relatively poor. In contrast, the United Kingdom, Australia, 
Canada, Germany, New Zealand, Argentina, Spain, and South 
Africa have leapt ahead of the United States in terms of their 
national courts being able to investigate and prosecute the 
full range of atrocity crimes. France, Japan, Mexico, 
Switzerland, Finland, Sweden, Brazil, and Norway are in the 
process of legislating incorporation of atrocity crimes into 
their respective criminal codes.
    Under too many scenarios, the United States remains an 
available safe haven for war criminals and atrocity lords who 
need not fear prosecution before U.S. courts for the commission 
of atrocity crimes if they reach U.S. territory, either legally 
or illegally. The notable exception has been the sole case, the 
Emmanuel ``Chuckie'' Taylor case, prosecuted under the criminal 
torture statute.
    But there has been some progress. I applaud the bipartisan 
work of this Subcommittee during 2007 with the Genocide 
Accountability Act, the Child Soldiers Accountability Act, and 
the Trafficking in Persons Accountability Act. This set of 
legislation, if enacted into law, would close critical gaps in 
U.S. law regarding the current inability to prosecute such 
crimes under certain circumstances.
    Unfortunately, this legislation composes only a fraction of 
atrocity crimes. Generally absent from U.S. law is the kind of 
jurisdictional regime that would provide the most pragmatic 
sphere of coverage to ensure that perpetrators of atrocity 
crimes cannot find safe haven in the United States. Current 
U.S. law in atrocity crimes typically exhibits a narrow range 
of jurisdiction covering actions of U.S. citizens, although not 
necessarily if such action takes place abroad, or crimes which 
occur on U.S. territory. I will summarize my recommendations as 
follows:
    The United States must eliminate any possibility that it 
would remain a safe haven for war criminals and atrocity lords 
who reach American shores and seek to avoid accountability for 
atrocity crimes.
    Two, enact the Genocide Accountability and Child Soldiers 
and Trafficking in Persons Accountability Acts of 2007 so that 
key gaps in Federal law are filled.
    Three, eliminate from U.S. law most or all statutes of 
limitations for atrocity crimes.
    Four, amend the Federal criminal code so that it enables 
Federal criminal courts to more effectively and unambiguously 
prosecute crimes against humanity and war crimes that are 
already codified in the statutes of the international and 
hybrid criminal tribunals and are defined as part of customary 
international law.
    Finally, recognize that until such amendments to Title 18 
of the U.S. Code are enacted, the United States has an 
antiquated criminal code. Further recognize that the United 
States stands at a comparative disadvantage with many of its 
major allies which have modernized their national criminal 
codes in recent years with incorporation of the atrocity crimes 
in part so as to shield their nationals from investigation and 
prosecution by the International Criminal Court by 
demonstrating national ability to prosecute such crimes and, 
thus, invoke the court's principle of complementarity.
    Paradoxically, even as a non-party to the Rome Statute of 
the International Criminal Court, the United States today 
essentially stands more exposed to its jurisdiction than do 
American allies which have modernized their criminal codes. 
Such modernizing exercises also reflect their pragmatic choice 
to minimize the exposure of the nationals of such nations to 
the scrutiny of international criminal tribunals because 
national courts will be able to carry that responsibility.
    My final comment: Filling the gaps in American law 
pertaining to atrocity crimes would demonstrate that the United 
States has the confidence to reject impunity for such crimes. 
The United States would no longer be a safe haven in reality or 
as a potential destination for untold numbers of perpetrators 
of atrocity crimes. Amending and thus modernizing Title 18 in 
the manner proposed in this testimony would signal the end to 
exceptionalism in atrocity crimes and place the United States 
on an equal footing with many of its allies which already have 
recast their criminal law to reflect the reality of 
international criminal and humanitarian law in our time.
    Thank you, and I would be happy to take any questions.
    [The prepared statement of Mr. Scheffer appears as a 
submission for the record.]
    Senator Durbin. Thank you, Professor, and we will have 
questions when we have completed this panel.
    Ms. Merchant, as I mentioned earlier, is with the Center 
for Justice and Accountability, and I note in her background 
that she is the winner of the third Thomas J. Dodd Prize in 
International Justice and Human Rights. I am sure that Chris 
Dodd, who is so proud of his father's service to our country, 
and recently published a book relative to correspondence that 
his father sent back from Nuremberg, will be glad to know that 
you are here, and I will tell him that. So please proceed with 
your statement.

 STATEMENT OF PAMELA MERCHANT, EXECUTIVE DIRECTOR, CENTER FOR 
     JUSTICE AND ACCOUNTABILITY, SAN FRANCISCO, CALIFORNIA

    Ms. Merchant. Thank you very much. Chairman Durbin, Senator 
Cardin, thank you so much for inviting the Center for Justice 
and Accountability and our client, Dr. Juan Romagoza Arce, to 
testify before this historic Subcommittee on Human Rights and 
the Law. It is truly an honor to be here today, and thank you 
so much for your leadership on this very, very important issue.
    The Center for Justice and Accountability is a nonprofit 
legal organization dedicated to ending torture and seeking 
justice. In the past 10 years, we have brought cases in the 
United States against human rights abuses from Bosnia, Chile, 
China, El Salvador, Haiti, Honduras, Indonesia, Peru, and 
Somalia. Therefore, we have a very unique perspective on this 
issue and ability to offer insights here today.
    We were founded by a torture treatment therapist who had a 
client who had been in a Bosnian detention camp and suffered 
extraordinary re-traumatization when he ran into his torturer 
in San Francisco. So the basis of our work is to provide an 
access for survivors to be able to confront their abusers and 
hold them accountable in court.
    As the Chairman has noted, the United States is a country 
that, while we have been particularly welcoming to survivors of 
torture, we also have become a haven for human rights abusers. 
It is estimated that over 400,000 survivors of politically 
motivated torture currently reside in the United States and 
that roughly 1,000 human rights abusers are here as well. And 
these abusers often live in the exact same community as their 
victims, which causes extreme anxiety and undermines justice 
and accountability movements in their home country.
    I would like to briefly address three of the issues that I 
raised in my written testimony: One is the need for more 
criminal prosecution; two is the importance of command 
responsibility theory of liability in criminal prosecutions and 
removal proceedings; and then some suggested legislative 
reforms.
    The United States should make the criminal prosecution of 
human rights abusers, either in the home country of the human 
rights violator or in the United States, a top priority. Today, 
as we have heard, the vast majority of human rights enforcement 
efforts in this country are removals and related prosecutions 
for lying on immigration forms.
    Criminal prosecutions are the most important form of 
accountability for victims of human rights abusers. The 
strongest message that the United States can send to human 
rights abusers around the world is that we will criminally 
prosecute them here when their home country will not. The fact 
that there has been only one case brought under the criminal 
torture statute in 13 years is troubling, and this needs to 
change.
    The next basis for prosecution, which we support if the 
criminal laws are inadequate, is for lying on immigration 
forms. That should be a second step.
    Finally, if there are inadequate grounds for prosecution, 
then deportation should be considered, but only in the context 
of the broader human rights agenda. A threshold consideration 
always should be whether the reintroduction of the human rights 
abuser to his or her home country will result in further 
violence or further destabilize that country. For example, we 
recently opposed efforts to send a death squad leader back to 
Haiti because we felt that he would further destabilize the 
country and because they do not have a sufficient functioning 
judiciary in place to prosecute human rights abusers.
    The next issue is command responsibility. Command 
responsibility is a well-established theory of liability which 
covers military officers or civilian superiors who knew or 
should have known about abuses that took place under their 
command and failed to take steps to stop the abuses or punish 
the offenders. This is a standard that has been applied in 
criminal cases in the United States, and it has been applied 
internationally and in civil cases. Real deterrence cannot be 
achieved unless these officials perceive that they may be held 
individually accountable, not just for committing the abuses 
themselves but for their failure to take reasonable action to 
stop others under their command from doing so.
    To that end, all criminal and human rights law should allow 
for the prosecution of those with command responsibility. 
Legislation which strengthens the rules regarding subordinates 
while allowing those with command responsibility for human 
rights abuses to live in this country sends the wrong message 
about our commitment to human rights.
    Further, in situations where removal or deportation is an 
appropriate remedy, we also should have a commitment to subject 
people with command responsibility to removal proceedings. We 
believe that the 2004 changes to the Immigration and 
Nationalization Act cover those who had command responsibility. 
Nonetheless, the Department of Homeland Security has failed to 
initiate removal proceedings against known human rights abusers 
in the United States with command responsibility. You will hear 
powerful testimony today from Dr. Romagoza about his torture 
and the fact that the two generals who were found responsible 
at trial and had command responsibility over those that were 
responsible for Dr. Romagoza's torture are still living in 
Florida.
    We urge the Department of Homeland Security to interpret 
provisions of the INA that make the command responsibility for 
the commission of torture and extrajudicial killings a ground 
for removal. And if they are not able to do that, then we 
invite Congress to amend the INA to include clearer language on 
command responsibility.
    Finally, to supplement what Ambassador Scheffer just said 
about the need for strengthening the current statutory 
framework, the leadership that this Committee, has shown by 
filing the three bills Senator Durbin mentioned is an extremely 
important step toward addressing this concern. I would like to 
add a couple other points.
    There should be a criminal law on the books for the crime 
of extrajudicial killing. There should also be one on the books 
for crimes against humanity. These are well-established, 
international crimes that have been around since Nuremberg. 
And, finally, the application of all these human rights laws 
need to be retroactive. There should not be an ex post facto 
concern for torture, extrajudicial killing, genocide, and 
crimes against humanity. These are all crimes that have been 
considered crimes since Nuremberg. If the application of these 
laws are not retroactive, the United States will remain a safe 
haven for those abusers who arrived here before, at least with 
the torture statute, before 1994.
    Thank you very much, and I am happy to answer any 
questions.
    [The prepared statement of Ms. Merchant appears as a 
submission for the record.]
    Senator Durbin. We will have some questions. Thank you, Ms. 
Merchant.
    Dr. Romagoza, thank you so much for being with us today. I 
read very carefully your statement and have learned a lot about 
your background. You have endured things which few, if any of 
us, could ever endure. It is inspiring to me that, despite all 
of the suffering that you have been through in your life, you 
have dedicated your life to reducing the suffering of the poor 
here in our Nation's capital, and I thank you so much for being 
with us today.
    I understand you have a translator with you, and you are 
now welcome to give your testimony.

STATEMENT OF JUAN ROMAGOZA ARCE, EXECUTIVE DIRECTOR, LA CLINICA 
DEL PUEBLO, WASHINGTON, D.C. (TRANSLATED FROM SPANISH BY SALLY 
                            HANLON)

    Dr. Romagoza. First of all, thank you. I want to 
congratulate the Chairman of the Committee, Senator Durbin, and 
also Senator Coburn and Senator Cardin, as well as the other 
members of this Subcommittee. Thank you for this opportunity to 
speak and especially to speak on behalf of the thousands of 
torture survivors who now live in this country and who cannot 
be with us today.
    I am a surgeon, a surgeon who cannot exercise his specialty 
of surgery. And the tools of a surgeon are his hands. But my 
hands have become useless as a result of the tortures.
    Today I will share with you my own personal story as a 
survivor, and I will give you my own personal perspective, give 
you my own point of view on being held responsible or 
accountability for crimes and torture.
    My story begins on December 12, 1980. On that day I was 
carrying out my profession and doing surgery for some of the 
rural communities of the poor in El Salvador when troops of the 
National Guard opened fire on the crowd there. And they also 
shot me in the foot. They grazed me with their bullets as well, 
and they detained me. They accused me of being a ``subversive 
leader'' because of the equipment and tools that I had, 
medical-surgical tools. And on that day and the next 22 days 
after it, I underwent unspeakable tortures at the hands of 
members of the National Guard of El Salvador. I was tortured 
with electric shocks three or four times a day in my ears, my 
tongue, my testicles, anus, and along the edges of my wounds. 
And those electrical shocks ended only when I fell into 
unconsciousness. And they forced me to come to by kicking me 
and applying cigarette burns to my body. They sodomized me with 
foreign objects, and they also gave me additional beatings and 
the experience of asphyxia with a hood over my head that 
contained calcium oxide. And throughout that whole time, I also 
suffered waterboarding. They called it the ``bucket of water.'' 
And I can tell you from my own personal experience that there 
is no room for doubt here. Yes, waterboarding is torture. And I 
was tortured sufficiently so that I could never return to my 
chosen career as a surgeon. They broke my arm with a shot in 
the left arm. They cut my fingers, making me lose the normal 
functioning and the use of those. And throughout this whole 
time, they never gave me any medical care for the wounds I 
suffered.
    And finally, thanks to God and to the efforts made by my 
family, they released me. But I was forced to flee from El 
Salvador. I came here to the United States where I did receive 
asylum, and I am now a U.S. citizen. And two of the men 
responsible for my tortures, General Garcia, the Minister of 
Defense at that time, as well as General Carlos Eugenio Vides 
Casanova, he was the General Director of the National Guard, 
and both of them moved here to South Florida. They are 
permanent residents here. Now they live comfortably, legally, 
and openly in South Florida.
    In July of the year 2002, I, together with some courageous 
co-plaintiffs, brought them to court, brought them to trial. 
That was in the U.S. Federal court through the help of the 
Center for Justice and Accountability. And, finally, I had the 
chance to come before the justice system and give my testimony 
against these generals and to speak to a U.S. jury about the 
tortures that I had endured. And the jury heard that truth, and 
they found the generals responsible, granting to me and my co-
plaintiffs compensatory damages of $54.6 million. And I know 
that we will never see those $54.6 million. But that wasn't 
what mattered to me. What mattered to me was this opportunity, 
this chance to confront in a Federal tribunal these human 
rights violators, and the value of this case is immense to me. 
And this is why I want to share with you a special moment for 
me during this case before the generals. The fact is that I 
felt a great strength or power coming over me. I felt myself in 
the bow of a huge ship and that there were people behind me, 
immense numbers of people. And they were rowing behind me, 
bringing me closer and closer to this moment. And I did not 
want to look back because I felt that if I did, I would weep, 
because I would see again the wounded ones, the tortured, the 
raped, the naked, the torn, the bleeding ones, as I saw them in 
the prisons of the National Guard in El Salvador. But I did 
feel the strength that they gave me, their support, their 
energy.
    And so to be part of this case and to have this opportunity 
to confront those generals for these terrible crimes provided 
me with the very best possible therapy that a survivor can 
have, that positive therapeutic value as a result of this civil 
remedy made available to me under the law on protection of 
torture victims. At the very least, they provided--they gave me 
my day in court, another day of life.
    Having to confront my torturers in a legal tribunal was one 
of the most difficult and important things that I've done in my 
entire life, one of the moments when I was most proud. But, 
nevertheless, my story and my efforts for justice are not over. 
These generals continue to live up here in the United States. 
They have not had to confront the possibility of their being 
deported. They have not been tried in a penal court, either in 
the United States or in El Salvador. And until that day comes, 
I will not be silent.
    Thank you for hearing me.
    [The prepared statement of Dr. Romagoza appears as a 
submission for the record.]
    Senator Durbin. Dr. Romagoza, thank you so much. This Human 
Rights and the Law Subcommittee has had many touching stories 
told by witnesses, and yours has truly touched our heart. I 
could not help but think as you were telling your story how 
painful and difficult it must have been to get up this morning 
and dress and come to tell this story again, to remember the 
painful details of the torture, and to share this with so many 
people, not only in this room but across America. It must have 
been a difficult morning preparing for this journey.
    I could not help but think as you testified of how this 
morning might have started for these two generals in Florida, 
in the soft breezes of South Florida, drinking coffee and 
reading the paper and going about their business under the 
protection of the United States of America. If this Judiciary 
Committee is about justice, that is wrong. It is wrong that you 
would have faced this horrible treatment by people who have 
been found responsible in the courts of our land and we still 
provide protection for the people responsible for it.
    I hope we can change that. I hope this hearing is in some 
way the beginning of a process that will seize your courage in 
testifying at that trial and then testifying today and lead us 
to do what needs to be done to restore justice in our own 
country.
    I would like to ask you, Doctor, if you could tell me--I 
read your statement about the courage it took for you and your 
plaintiffs to come forward. If these generals were to be 
deported back to El Salvador for trial, what do you think would 
happen? Have there been trials of those who have been 
responsible for similar crimes in El Salvador?
    Dr. Romagoza. Unfortunately, the conditions are not yet 
there for getting justice from these crimes that occurred over 
the 1980s and 1990s in El Salvador. In 1992, they declared a 
law of amnesty, and that was the Salvadoran Government that 
made that happen to avoid any trials having to do with the 
human rights violations of the 1980s and 1990s. And the United 
Nations, in its followup on the Peace Accords, recommended 
bringing to trial those--so that if they were to go back to El 
Salvador, there would be no problem, there is no case been 
brought yet, and it has been kind of ensured that it not be 
brought.
    Senator Durbin. Thank you.
    Dr. Romagoza. But there is an effort now and a concern for 
doing away with the amnesty law.
    Senator Durbin. Ms. Merchant, thank you to your center for 
helping Dr. Romagoza and giving him a chance to be here today. 
He describes in his statement one general whose office was just 
a few feet away from the prison cell where he was being 
tortured. And you raised this issue of command responsibility, 
which I asked about earlier and did not get a complete answer 
to. Is this the kind of case that you are thinking of, where 
the general may not have been directly involved in the torture, 
but may have responsibility similar to what we found at 
Nuremberg after the Holocaust?
    Ms. Merchant. Yes, exactly.
    Senator Durbin. Currently, is there a provision in the law 
of the United States allowing the prosecution of these two 
generals who are responsible in a command capacity for Dr. 
Romagoza's torture?
    Ms. Merchant. No. One of the questions is whether you could 
use the torture statute and interpret it in a broader way. The 
argument can be made that you could, the way that we did when I 
was a white-collar prosecutor, because obviously we always went 
up the chain of command in a company. But the Government's 
position so far has been that they cannot. And in a separate 
issue about whether or not these generals can be deported under 
the new section of the INA, which includes torture and 
extrajudicial killing as a means for a removal, our reading of 
that language is that it would cover command responsibility. 
But our understanding is that the Government does not accept 
that interpretation.
    Senator Durbin. I will come back with additional questions 
after Senator Cardin.
    Senator Cardin. Thank you very much.
    Dr. Romagoza, I also want to join with our Chairman in 
thanking you for being here. We hear numbers all the time about 
victims of torture and the numbers of people, and we sort of 
glaze over the numbers. But when you see the actual person, 
when you realize that each victim is a person who has family 
and is personally impacted by what has happened, it brings it 
home a lot clearer to us. Thank you very much for your courage 
to appear before our Committee.
    Professor Scheffer, I want to ask you a question in regards 
to a role that you played in your former life in regards to the 
Rome Statute of the ICC, the International Criminal Court. Let 
me preface the question by saying that I have the honor to 
represent the United States in the OSCE Parliamentary Assembly 
as a Vice President, and I am not sure whether I am attacked 
more because of Guantanamo Bay or our position on the ICC. It 
is about equal. And I guess Guantanamo Bay has taken over the 
lead recently, but I think maybe in a way they are related.
    I had questions, you had questions about the United States 
joining the ICC. But you raised those in a positive way rather 
than just withdrawing. We have now withdrawn, and I understand 
the risks involved in the ICC as it was moving forward. But it 
seems to me that when we are looking at what we are going to do 
with the detainees in Guantanamo Bay, it may have been helpful 
if we had an ICC we could turn to, to deal with some of those 
international crimes against humanity.
    So I just really want to get your thinking as to the 
credibility of the United States today in dealing with crimes 
against humanity in an international forum, whether we have 
suffered as a result of the way that Guantanamo Bay has been 
handled, the ICC has been handled, and other issues of late.
    Mr. Scheffer. Thank you, Senator. I think the credibility 
of the United States has been degraded considerably. I have 
seen this folloing my Government service over the last 7 years 
when I go overseas. It is very, very difficult to be in 
discussions with foreign colleagues and not be on the complete 
defensive with respect to what we had thought, at least when I 
had the privilege of serving in Government, we were in the 
leadership role of, which was to ensure the proper prosecution 
of these crimes by building the international criminal 
tribunals for the former Yugoslavia, for Rwanda, for Sierra 
Leone. That all happened in the 1990s, the negotiations and the 
follow-through on those tribunals.
    And with the International Criminal Court, President 
Clinton's expressed objective stated in 1995 was that by the 
end of the 20th century, there would be standing a permanent 
International Criminal Court. My job was to make sure, A, that 
it was the right kind of court and, B, do everything possible 
to see if the United States could be part of that court.
    We had certain questions. It was a negotiation. We had 
certain issues that clearly were of concern to us as that court 
was being structured. But by the end of the Clinton 
administration on December 31, 2000, we had rectified most of 
those issues, and we were able to sign the Rome Statute. We 
became a signatory to the Rome Statute. For me, that was, quite 
frankly, my proudest day in Government service when I was able 
to, under plenary power from the President, sign that statute.
    Since then, of course, we had the unsigning on May 6th of 
2002, and we must ask: do we want to be standing on the moral 
high ground on this issue? Or do we want to slip down the 
slopes and have to be in a position where we are constantly 
clawing our way back up, if possible? I think what has happened 
in recent years is that by not being part of that process, 
other nations, in fact, have been able to assume the leadership 
on international justice, and in addition to that, they are in 
the driver's seat in terms of the development of the law, which 
used to be our specialty. From Nuremberg onwards, we were in 
the driver's seat. We are not in the driver's seat anymore. 
Other nations have taken that position. It is simply because we 
are not in the room. We are not there representing our views. 
We are not bringing all of the skills and expertise of our 
Justice Department and of our Department of Defense attorneys 
to bear on these issues.
    So I think it is a serious problem, and I would close my 
comment with this: The problem with Guantanamo, Senator, is 
that you either have officials who are cognizant of how 
important these particular crimes are in international 
society--crimes against humanity, war crimes, genocide--and 
they operate knowing that there is an International Criminal 
Court and international criminal tribunals which are litigating 
these issues every single day. The law is evolving within these 
tribunals every single day. So if you set up a Guantanamo and 
you put some prisoners in there, you either act with knowledge 
of all that is occurring in these courts as to how these crimes 
are to be considered, how they are to be interpreted, how 
individuals are to be brought to justice with respect to the 
infraction of these particular crimes, or you act in ignorance 
of them.
    And what I see so often with Guantanamo and in Iraq and 
Afghanistan is this: It is as if we do not have a full 
knowledge of all of these legal developments that are taking 
place that would inform our decisionmaking as we go step-by-
step in how we detain prisoners, how we bring them to justice, 
how we basically handle the threats that they pose to us.
    All of that is being dealt with in international courts and 
in the foreign courts of other countries now. But we seem to be 
falling behind.
    Senator Cardin. I just might point out that the 
recommendations of the 9/11 Commission patterned some of your 
concerns by saying that we should be seeking international 
support for the manner in which we handle detainees and seeking 
international standards for that.
    I think we have a real dilemma now at Guantanamo Bay. We 
have individuals who clearly we are holding without giving them 
the rights of criminal defendants. And if we had an ICC we 
could turn to, we might very well be able to make significant 
progress against terrorism as being crimes against humanity. 
But instead we are handling it in isolation.
    Mr. Scheffer. If I may, Senator, it is an excellent point. 
In 2009, there will be a review conference of the Rome Statute 
of the International Criminal Court where the statute can be 
open for amendment. One of the crimes that we know will be on 
deck will be the crime of aggression, a crime that we should 
have incredible interest in and focus on.
    When I was the Ambassador, I actually enjoyed going to all 
of the discussions about how to bring the crime of aggression 
into the statute because we had a lot of friends at the table 
with us about how do you properly structure the definition and 
the trigger for that crime. We were never isolated on that 
issue. But we have been absent for 7 years from those working 
group discussions. I fear for where they may lead without our 
being back at the table. We cannot be at the table unless we 
are a state party to the Rome Statute in 2009.
    One of the other crimes that is available for consideration 
in 2009 and which was mandated in Rome in 1998 for 
consideration at the first review conference is the crime of 
international terrorism. Now, whether it will actually be on 
deck in 2009, whether all the prep work will have been done, is 
still very, very questionable. But the fact is the United 
States could actually take the lead and say we want 
international terrorism on deck, we want to have it properly 
defined, we want to be able to have a forum in which the 
leaders of these terrorist organizations can actually be 
brought to justice.
    I want to share Ms. Merchant's views entirely on command 
responsibility, which, by the way, I did not stress in my 
testimony simply because it is so self-evident now in 
international criminal law. These tribunals actually focus on 
the commanders. They do not go after the foot soldiers or the 
machete wielders. They go after the commanders because they 
only have a certain range of resources, and, of course, they 
want to go to where the decisions are being made to actually 
unleash these crimes. So the defendants before the tribunals 
are, in fact, at the command level, and the statutes of the 
tribunals provide for jurisdiction over the commanders.
    Senator Cardin. It seems obvious, I think, to all of us, 
except for those who are charged today with prosecuting our 
torture statutes or enforcing our immigration laws.
    Thank you, Mr. Chairman.
    Senator Durbin. Thank you very much.
    Before I ask Professor Scheffer a question, I want to say 
to Ms. Merchant and Dr. Romagoza, I am going to send a letter 
to the U.S. Attorney in the Southern District of Florida and 
ask officially what action is going to be taken against these 
two generals. I would like to hear this response. If he tells 
me he does not have the authority, I think it is a compelling 
argument for us to change the law. If he has the authority and 
is not going to use it, it is a compelling argument to change 
the U.S. Attorney.
    Let me ask you this, Professor Scheffer: This testimony and 
statement that you have given us suggests this kind of 
progression from Nuremberg forward, where the United States 
through the Geneva Conventions and other means expanded the 
notion of war crimes and the authority of the United States to 
deal with them.
    Then there is a clear break on page 19 where you talk about 
the Military Commissions Act of 2006, and the following page, 
where you make reference to the President's Executive order of 
July 20, 2007. You characterize these as ``regression.''
    Tell me what you mean by that. In other words, if this was 
a break in what had been America's historic tradition relative 
to human rights and war crimes, what was changed by those two 
things?
    Mr. Scheffer. Let me start with the Executive order, if I 
may, and sort of walk back.
    The Executive order, which we have only had a few months of 
experience with now, addressed what had happened in the 
Military Commissions Act with Common Article 3 of the Geneva 
Convention. This was a very standard formulation that had been 
around ever since the 1948 Geneva Conventions whereby certain 
fundamental violations of human rights were to be subject to 
the responsibility of states to ensure that these violations 
did not take place, whether it be an internal conflict in civil 
war or through various jurisprudence that has emerged. National 
government statements since then have confirmed that, those 
general principles of Common Article 3, also which were 
articulated and expanded in Protocol II of 1977, have become 
applicable to international conflicts as well. We do not have a 
debate anymore about whether or not Common Article 3 is really 
relevant to internal or international conflicts. It is 
generally relevant to both.
    The War Crimes Act of 1996, as amended in 1997, brought 
Common Article 3 into enforceability in this country. We were 
several decades late in doing so under the Geneva Conventions, 
but we did do it in 1997 with the amendment to the War Crimes 
Act.
    What happened with the Military Commissions Act, which was 
all in the context of Guantanamo and the individuals who are 
detained in Guantanamo, was to essentially say: we are going to 
take Common Article 3 seriously; we are going to provide very 
specific definitions for the infractions under Common Article 
3; but in doing so, the law was amended to extract from Federal 
law certain violations that we had established as criminal in 
1997. And the ones that were extracted are the ones that you 
might logically think could be charged with respect to our 
performance in Guantanamo. That is to me the disturbing 
character to what happened in the MCA.
    What happened further in the President's Executive order is 
that he alone is empowered under the MCA to interpret Common 
Article 3 and the Geneva Conventions. That itself was 
disturbing because one would have thought, with all due 
respect, that the U.S. Congress under the Constitution has the 
power to define offenses against the Law of Nations. I would 
say that is a pretty powerful interpretive tool on the part of 
the legislative branch.
    Senator Durbin. Dr. Romagoza talked about actions taken in 
El Salvador to create an amnesty for those who were responsible 
for his torture. Was there a provision in the Military 
Commissions Act relative to amnesty for those who were 
perpetrators, potentially perpetrators of torture?
    Mr. Scheffer. Well, there was no provision addressing the 
issue of amnesty, in other words, saying that if you had an 
amnesty you would be free from any possible prosecution under 
the MCA. But let me just say on the amnesty issue, Senator, it 
is a very good point. It is sometimes more of a policy issue 
than a legal issue, this issue of amnesty. I remember from my 
years in the Clinton administration my colleagues at the White 
House sometimes would turn and say, ``Look, David, we have got 
a dicey situation overseas. Let's not forget that amnesty may 
be a tool that is needed to resolve an armed conflict.''
    Granted, that is true. It is sometimes very necessary. But 
the way the law has evolved is, yes, amnesty for low-level 
perpetrators from international or domestic prosecution is 
often times a possible tool that you need on the table in order 
to reach a peace agreement. We have lots of debates about that 
in academia, but sometimes it is a tool.
    The issue, though, that we have reached by the year 2007, 
Senator, is it is simply intolerable and unacceptable in the 
21st century for there to be an amnesty at the command level 
for the commission of atrocity crimes.
    Senator Durbin. Is it not true that the Military 
Commissions Act had a retroactive definition of some forms of 
interrogation and detention?
    Mr. Scheffer. Oh, yes. I am sorry. Yes.
    Senator Durbin. And would that not in practical terms 
affect the liability--
    Mr. Scheffer. That is a de facto amnesty. I am sorry. I 
misunderstood your question. I was focusing on foreign 
amnesties. It is a perfect point. The MCA is de facto an 
amnesty bill or law for infractions of the War Crimes Act of 
1996 between 1996 and 2006. It is an amnesty bill.
    Senator Durbin. It is hard to imagine that we have reached 
this point. The debate in this room over the appointment of the 
last Attorney General brought this issue front and center 
again, and it will continue.
    I hope that this is the beginning of some conversation 
within the U.S. Senate about laws that we need to change so 
that we no longer serve as a safe haven for the abusers of Dr. 
Romagoza and so many others. And I hope that we will also 
dedicate resources far beyond what was described today to this 
issue. This is going to be a long, tortuous journey for the 
United States to reclaim its international image after what we 
have been through. But I trust in our values and I trust in our 
people, and I trust that ultimately we will, that America will 
come to understand that even great nations can make great 
mistakes. And in this case, we have made some.
    By and large, I believe that the traditions of Nuremberg 
and Geneva are still good, solid American traditions that we 
value, and I hope that we can prove that with our laws and with 
our actions in the months and years to come.
    Your testimony today was so important. Thank you, Doctor, 
again, and your translator. Very good. Even though I do not 
speak Spanish, I thought you did a great job.
    Ms. Hanlon. OK.
    Senator Durbin. Ms. Merchant, thank you for all that you do 
at the Center for Justice and Accountability. Professor 
Scheffer, thank you for being here today.
    This Subcommittee will stand adjourned. We will leave the 
record open for 10 days for the submission of questions and 
answers by members of the panel.
    [Whereupon, at 11:55 a.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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