    [Senate Hearing 111-1114]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 111-1114

       NO SAFE HAVEN: ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATORS, PART II

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

                                    HEARING

                                   before the

                    SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW

                                     of the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                OCTOBER 6, 2009

                                   __________

                              Serial No. J-111-53

                                   __________

             Printed for the use of the Committee on the Judiciary

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                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
    DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
    RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
    CHARLES E. SCHUMER, New York         JON KYL, Arizona
    RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
    BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
    SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
    AMY KLOBUCHAR, Minnesota
    EDWARD E. KAUFMAN, Delaware
    ARLEN SPECTER, Pennsylvania
    AL FRANKEN, Minnesota
                Bruce A. Cohen, Chief Counsel and Staff Director
                   Matthew S. Miner, Republican Chief Counsel

                    Subcommittee on Human Rights and the Law

                     RICHARD J. DURBIN, Illinois, Chairman
    RICHARD J. DURBIN, Illinois          TOM COBURN, Oklahoma
    RUSSELL D. FEINGOLD, Wisconsin       LINDSEY GRAHAM, South Carolina
    BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
    EDWARD E. KAUFMAN, Delaware
    ARLEN SPECTER, Pennsylvania
                          Joseph Zogby, Chief Counsel
                     Brooke Bacak, 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......     3
        prepared statement...........................................    84
    Durbin, Hon. Richard J., a U.S. Senator from the State of
      Illinois.......................................................     1
        prepared statement...........................................   104
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
      prepared statement.............................................   114

                                   WITNESSES

    Breuer, Lanny A., Assistant Attorney General, Criminal Division,
      Department of Justice, Washington, DC..........................     4
    Cummings, Arthur M., Executive Assistant Director, National
      Security Branch, Federal Bureau of Investigation, Washington,
      DC.............................................................    11
    Donahue, David T., Deputy Assistant Secretary for Visa Services,
      Bureau of Consular Affairs, Department of State, Washington, DC     9
    Morton, John T., Assistant Secretary for Immigration and Customs
      Enforcement, Department of Homeland Security, Washington, DC...     7

                             QUESTIONS AND ANSWERS

    Responses of Lanny A. Breuer to questions submitted by Senator
      Coburn.........................................................    23
    Responses of Arthur M. Cummings to questions submitted by Senator
      Coburn.........................................................    48
    Responses of David T. Donahue to questions submitted by Senator
      Coburn.........................................................    54
    Responses of John T. Morton to questions submitted by Senator
      Coburn.........................................................    63

                           SUBMISSIONS FOR THE RECORD

    Advocates for Human Rights, Robin Phillips, Executive Director,
      Minneapolis, Minnesota, statement..............................    67
    Breuer, Lanny A., Assistant Attorney General, Criminal Division,
      Department of Justice, Washington, DC, statement...............    74
    Crimes Against Humanity Act, June 24, 2009, letter...............    86
    Cummings, Arthur M., Executive Assistant Director, National
      Security Branch, Federal Bureau of Investigation, Washington,
      DC, statement..................................................    88
    Donahue, David T., Deputy Assistant Secretary for Visa Services,
      Bureau of Consular Affairs, Department of State, Washington,
      DC, statement..................................................    91
    Human Rights First, Washington, DC, statement....................   107
    Human Rights Watch, Elise Keppler, International Justice Senior
      Counsel, New York, New York, statement.........................   110
    Morton, John T., Assistant Secretary for Immigration and Customs
      Enforcement, Department of Homeland Security, Washington, DC,
      statement......................................................   115

       NO SAFE HAVEN: ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATORS, PART II

                                  ----------

                            TUESDAY, OCTOBER 6, 2009

                                           U.S. Senate,
                      Subcommittee on Human Rights and the Law,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 10:03 a.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Richard J.
    Durbin, Chairman of the Subcommittee, presiding.
        Present: Senators Durbin, Feingold, Franken, and Coburn.

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

        Chairman Durbin. Good morning, everybody, and welcome to
    this hearing of the Subcommittee on Human Rights and the Law of
    the Senate Judiciary Committee. This hearing will come to
    order. Today, we are going to consider ``No Safe Haven:
    Accountability for Human Rights Violators in the United States,
    Part II.''
        Two years ago, this Subcommittee held the first ever
    Congressional hearing on the enforcement of human rights laws
    in the United States. At that hearing, we learned that the
    Government was investigating over 1,000 suspected human rights
    violators from almost 90 countries who have found safe haven in
    our country. Today, we will examine what the Government has
    done since that hearing and what more we can do.
        For decades, the United States has led the fight for human
    rights around the world. But when human rights violators are
    able to live freely in our country, America's credibility is
    threatened.
        Throughout our history, America has provided sanctuary to
    victims of persecution. Sadly, some refugees arrive from
    distant shores to begin a new life, only to encounter those who
    tortured them or killed their loved ones.
        Two years ago, this Subcommittee heard compelling
    testimony, which I still remember to this day, from Dr. Juan
    Romagoza. He endured a 22-day ordeal of torture at the hands of
    the National Guard in El Salvador. As you may remember, those
    of you who have followed it, he has a clinic here in town where
    he helps poor people. Dr. Romagoza sought asylum in our country
    and received it, but later learned that the two generals who
    were responsible for his torture had also fled to the United
    States. While he had his clinic helping poor people, his hands
    had been deformed and mangled by his torturers so that he could
    no longer be a surgeon. Mean-while, these two generals
    responsible for his imprisonment were drinking Cuban coffee and
    buying lottery tickets in Miami.
        The Human Rights Subcommittee has worked to ensure our
    Government has the authority and resources to bring
    perpetrators to justice and to vindicate the rights of people
    like Dr. Romagoza.
        Since our hearing 2 years ago, this Subcommittee has
    produced landmark legislation to reform and modernize our human
    rights laws. And I want to thank my colleague Senator Coburn.
    We do not agree on a lot of things, but we sure agree on some
    of these things. And I think that----
        Senator Coburn. We agree on a lot more than everybody
    thinks we do.
        Chairman Durbin. A lot more. It kind of surprises people. A
    real odd couple here.
        The Genocide Accountability Act, the Child Soldiers
    Accountability Act, and the Trafficking in Persons
    Accountability Act, three bills which we co-authored, have all
    been signed into law. These laws give the Government the
    authority to prosecute perpetrators of genocide, child soldier
    recruitment, and human trafficking. This builds on the Anti-
    Atrocity Alien Deportation Act, important legislation authored
    by Judiciary Committee Chairman Pat Leahy in 2004 that allows
    the Government to deport perpetrators of torture and
    extrajudicial killing.
        I worked with Senator Mikulski and Senator Shelby on the
    Appropriations Committee to secure funds for the FBI and the
    Justice Department to hire additional agents and attorneys to
    investigate and prosecute human rights abuses. The fiscal year
    ended last week, and I was disappointed to learn that the FBI
    has not yet hired any new agents to investigate human rights
    violations.
        I want to commend Immigration and Customs Enforcement and
    the Justice Department for their success over the last 2 years
    in bringing human rights violators to justice.
        Since our hearing, ICE has deported a number of human
    rights violators. In addition to these significant cases, I was
    especially pleased to learn that last Friday ICE filed charges
    against the two generals in Miami responsible for the torture
    of Dr. Romagoza. Dr. Coburn and I have been urging the
    Government to deport the generals since our hearing 2 years
    ago. I look forward to the day when they are no longer in the
    United States.
        In May, the Government deported John Demjanjuk to Germany,
    where he will be tried for his involvement in the murder of
    more than 29,000 people at the Sobibor extermination camp in
    Nazi-occupied Poland. I want to commend the Justice Department
    for prevailing in a long and difficult legal struggle so that
    he will face the judgment that he truly deserves. This case
    sends a message that the United States is determined to bring
    human rights violators to justice, even if decades have passed
    since they committed their crimes.
        In another important victory, last year the Justice
    Department obtained the first ever Federal conviction for a
    human rights offense. Chuckie Taylor, the son of former
    Liberian president Charles Taylor, was sentenced to 97 years in
    prison for committing torture in Liberia.
        This was a groundbreaking case, but one case is not enough.
    We must ask ourselves why so many human rights abusers are
    still able to find safe haven in the United States of America.
        Unfortunately, there are still legal loopholes that allow
    human rights violators to escape accountability. For example,
    under current law, perpetrators of crimes against humanity who
    find safe haven in our country cannot be prosecuted. So Marko
    Boskic, who participated in the Srebrenica massacre in Bosnia
    and was living in Massachusetts, was charged with visa fraud,
    rather than crimes against humanity. Earlier this year, I
    introduced the Crimes Against Humanity Act, which would make it
    a violation of U.S. law to commit a crime against humanity. I
    look forward to working with my colleagues to pass this bill.
        Our Government should also use existing authority and
    resources more efficiently to increase the likelihood that
    human rights violators will be held accountable. Senator Coburn
    and I introduced the Human Rights Enforcement Act, which would
    combine the two offices in the Department of Justice with
    jurisdiction over human rights violations.
        I was pleased to learn that the Justice Department is
    planning such a consolidation.
        We have made great progress in the last 2 years, but there
    is a lot more to do. The United States is still that city on
    the hill. The world is watching us closely. When we bring human
    rights violators to justice, foreign governments are spurred
    into action, victims take heart, and future perpetrators may
    think twice.
        I now want to recognize my friend and colleague on this
    Committee, Senator Coburn, for an opening statement. Then we
    will turn to our witnesses.

    STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
                                OKLAHOMA

        Senator Coburn. Well, thank you, Senator Durbin, and I
    thank the witnesses for being here. This is an issue of prime
    importance, and you can see, when Senator Durbin and I can work
    and accomplish through our colleagues in the Senate and the
    House, what has happened over the last 2 years.
        I have a statement for the record that I would like for it
    to be accepted.
        Also, in reviewing our testimony 2 years ago, one of the
    things that we did not see was what is the estimated number. I
    am not sure we got a handle on that, the number of people that
    are here that fall under this definition. And so I would like
    to hear about that. I am glad that we have both the FBI and the
    State Department here today because I think that gives us the
    complement that we need in addressing the problem.
        The other thing I would note is I did not think anybody
    could be any worse than the Bush administration on timeliness.
    But 7 o'clock is when we got the last testimony last night, and
    that may not be the witnesses' problems, but it certainly is a
    problem for me if I am going to prepare for a hearing. With me
    being on five major committees, it is difficult. And I know
    that may be an OMB issue, but I would appreciate your taking it
    back. This hearing has been noticed for a while, and we should
    not have to get testimony at 7 o'clock last night when it
    violates our rules. And if I were Chairman, I would have
    canceled the hearing and we would have had the time to read
    more thoroughly the testimony.
        Thank you.
        [The prepared statement of Senator Coburn appears as a
    submission for the record.]
        Chairman Durbin. Thank you very much.
        We are going to turn to our witnesses for opening
    statements. Each witness will have 5 minutes, and their
    complete written statements will be made part of the record. I
    would like to ask the witnesses now if they would please stand
    and take an oath.
        Do you swear that the testimony you are about to give is
    the truth, the whole truth, and nothing but the truth, so help
    you God?
        Mr. Breuer. I do.
        Mr. Morton. I do.
        Mr. Donahue. I do.
        Mr. Cummings. I do.
        Chairman Durbin. Let the record reflect that all the
    witnesses have answered in the affirmative.
        Our first witness, Lanny Breuer, is Assistant Attorney
    General of the Justice Department's Criminal Division, where he
    oversees the two Justice Department offices responsible for
    prosecuting human rights violators. Previously, Mr. Breuer was
    a partner in the law firm of Covington & Burling and special
    counsel to President Clinton. He received a B.A. and J.D. from
    Columbia University.
        Mr. Breuer, when we first met after your nomination, you
    told me prosecuting human rights violators was personal for you
    because your parents were Holocaust survivors. I understand
    that your mother, Lilo Breuer, is here with you today and that
    she is commemorating two special anniversaries. Today is her
    89th birthday, and 70 years ago, she fled Nazi Europe after
    losing both of her parents in the Holocaust.
        Mr. Breuer, would you please introduce your mother?
        Mr. Breuer. Mr. Chairman, thank you. And here is my mother,
    Lilo Breuer. And you are right, Senator, this is actually her
    birthday today.
        [Applause.]
        Chairman Durbin. Mrs. Breuer, what an honor it is to have
    you here today, and I am sure you are proud of your son.
        Mr. Breuer. Thank you.
        Chairman Durbin. We are delighted that you are here.
        I also want to recognize and thank the following Justice
    Department officials for their dedication to prosecuting human
    rights violators: Deputy Assistant Attorney General Jason
    Weinstein, Office of Special Investigations Director Eli
    Rosenbaum, and the Domestic Security Section Chief Teresa
    McHenry.
        Mr. Breuer, thank you for joining us today, and the floor
    is yours.

       STATEMENT OF LANNY A. BREUER, ASSISTANT ATTORNEY GENERAL,
     CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

        Mr. Breuer. Thank you, Mr. Chairman.
        Mr. Chairman, Ranking Member Coburn, Senator Franken, I
    appreciate the opportunity to appear before you today to
    discuss the continuing efforts of the Department of Justice to
    pursue justice on behalf of the victims of human rights
    violations and war crimes.
        Today I would like to update the Subcommittee on some of
    the Department's major human rights law enforcement activities
    and accomplishments since we last presented testimony before
    the Subcommittee and on our plans to strengthen further the
    Department's already extremely robust enforcement program.
        As you know, we pursue our human rights on multiple fronts.
    The first of these is located at our borders where the U.S.
    Government attempts to prevent human rights violators from ever
    entering the United States. Even after perpetrators have gained
    entry into the United States, however, we have a wide range of
    tools at our disposal to bring them to justice, including
    criminal prosecution for substantive human rights violations,
    criminal prosecution for other offenses, immigration litigation
    including denaturalization and removal, and cooperation with
    our foreign partners to ensure that justice can be done when a
    suspect has been extradited or removed.
        We have had successes along all of these fronts, and I
    would like to highlight just a few for you.
        Last year, we secured the first ever conviction under the
    U.S. torture statute in the case of Roy Belfast, also known as
    ``Chuckie Taylor,'' son of former Liberian dictator Charles
    Taylor. Belfast was sentenced to 97 years in prison.
        In May of this year, the Department, along with our
    investigative partners, obtained the conviction of former army
    soldier Steven D. Green on 16 counts, including premeditated
    murder and aggravated sexual abuse arising out of the rape of a
    14-year-old Iraqi girl and the murder of the girl and the
    murder of her entire family in Iraq. Green was sentenced to
    five concurrent terms of life imprisonment.
        And, finally, on May 11th of this year, John Demjanjuk was
    removed to Germany by ICE agents. Immediately upon arrival in
    Germany, he was arrested and charged as an accessory to the
    murders of more than 29,000 Jews in the Sobibor extermination
    center in Nazi-occupied Poland.
        These and all of our successes would not be possible
    without close coordination. The Department works closely with
    our friends and colleagues at ICE and the FBI and the State
    Department and our valued partners in nongovernmental
    organizations to ensure that we use all available tools to the
    U.S. Government. Moreover, we are actively engaged with our
    foreign law enforcement partners to ensure that the U.S. and
    the global community are adequately equipped to pursue
    violators through extradition, mutual legal assistance
    requests, international training assistance, and capacity
    building.
        Although the Department is proud of all our efforts to
    prosecute human rights violators and build global capacity to
    address these atrocities, we can and will do more to pursue
    justice and achieve deterrence in these cases. We have reviewed
    the Human Rights Enforcement Act of 2009, which, Mr. Chairman,
    you and Senator Coburn have introduced, and which would combine
    the two offices in the Criminal Division with jurisdiction over
    human rights violations to create a new consolidated and
    streamlined Human Rights Enforcement Section.
        I myself, as I promised I would, have recently completed a
    comprehensive review of the Criminal Division's efforts in
    human rights enforcement. While no structural reform can take
    place without the approval of the Office of Management and
    Budget and notification to the House and Senate Appropriations
    Committees, based on my review I have recommended to the
    Attorney General that already outstanding efforts in this area
    would be enhanced by a merger of the Domestic Security Section
    and the Office of Special Investigations into a new section
    with responsibility for human rights enforcement, MEJA and SMTJ
    cases, and alien smuggling and related matters. That new
    section would be called the ``Human Rights and Special
    Prosecutions Section.'' The Attorney General has indicated his
    support for this change and the Department's strong commitment
    to enforcing human rights, and we expect to move forward on
    this. I truly believe that the new section will take our
    already outstanding human rights enforcement program to even
    greater heights.
        Mr. Chairman, as you have pointed out, I personally am
    extraordinarily committed to these kinds of cases. I believe
    they are in my DNA. And the Department of Justice is firmly
    committed to ensuring that no human rights violator or war
    criminal ever again finds safe haven in the United States. And
    we look forward to working with you to achieve that goal.
        I thank you for this opportunity to testify and would be
    pleased to take all your questions.
        [The prepared statement of Mr. Breuer appears as a
    submission for the record.]
        Chairman Durbin. Thank you, Mr. Breuer.
        Our next witness is John Morton, Assistant Secretary of
    Homeland Security for Immigration and Customs Enforcement. He
    oversees the Human Rights Violators and War Crimes Unit, the
    DHS office responsible for investigating human rights
    violators. Previously, Mr. Morton served in the Justice
    Department's Criminal Division as Acting Chief of the Domestic
    Security Section and Acting Deputy Assistant Attorney General,
    where he focused on human rights prosecutions. He has also
    served as an Assistant U.S. Attorney in the Eastern District of
    Virginia, and is a graduate of the University of Virginia Law
    School.
        Since the Human Rights Subcommittee's inception in January
    2007, we have worked closely with Mr. Morton, who has advised
    us on human rights investigations and prosecutions. We thank
    you for your valuable assistance.
        I also want to recognize and thank the following ICE
    officials for their commitment to denying safe haven to human
    rights violators: Erik Barnett, Mona Ragheb, Tom Annello, and
    Rick Butler. Mr. Barnett also worked as a detailee on my
    Judiciary Committee staff, and it is nice that he is here
    today.
        Mr. Morton, we look forward to your testimony.

         STATEMENT OF JOHN T. MORTON, ASSISTANT SECRETARY FOR
        IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. DEPARTMENT OF
                   HOMELAND SECURITY, WASHINGTON, DC

        Mr. Morton. Thank you, Mr. Chairman, Ranking Member Coburn,
    and Senator Franken. Thank you very much for inviting me to
    this hearing and for the opportunity to present Immigration and
    Customs Enforcement's recent efforts to hold human rights
    violators accountable and to deny them safe haven in the United
    States.
        As the primary criminal investigative arm of the Department
    of Homeland Security, ICE remains firmly committed to this
    mission, and you can be assured that I will personally promote
    aggressive human rights enforcement during my time as Assistant
    Secretary.
        The human rights program at ICE, while young, is healthy
    and growing. Since fiscal year 2004, ICE has successfully
    removed more than 300 suspected or known human rights violators
    from the United States. As I speak, we are pursuing more than
    180 human rights-related investigations--investigations which
    could ultimately support criminal or civil charges.
        In addition, we have more than 1,000 cases in immigration
    proceedings. These removal cases are at various stages of
    investigation and litigation and involve individuals known or
    suspected to have been involved in human rights violations in
    over 95 different countries.
        Let me highlight our commitment to this important work by
    addressing two cases of longstanding concern for this
    Committee--the cases that the Chairman just mentioned--that of
    Carlos Eugenio Vides-Casanova and Jose Guillermo Garcia. As the
    Subcommittee knows quite well, these two gentlemen are former
    Salvadoran defense ministers who now reside in the United
    States as lawful permanent residents and were found civilly
    liable for torture in Federal court in 2006. And while I cannot
    discuss the details of our efforts against these two men, I can
    confirm what the Chairman said today, which is we have charged
    these two individuals; we have put them in proceedings; we are
    going to try to remove them from the United States; and there
    are pending removal proceedings in Florida. We are going to
    move smartly on those two cases.
        Let me also briefly highlight the cooperation in a few
    cases--just to let the Chairman and the members of the
    Committee know that there really is a pretty strong sense of
    partnership in this particular area and a recognition that
    there is a need to get to work.
        First, the case of Chuckie Taylor. While it is only one
    case, it was a very, very important case, because it set the
    tone for what I hope is going to be aggressive enforcement in
    the future. It also represented an extraordinary level of
    cooperation between ICE and the FBI--the two investigative
    agencies involved--and an extremely strong commitment from the
    Department of Justice in the form of the Criminal Division and
    the U.S. Attorney's Office.
        Next, John Demjanjuk--again, referred to by the chairman--a
    tremendous effort by OSI at the Department of Justice over
    literally decades to see that this gentleman ultimately saw
    justice, even at the end of his life, for some horrific crimes
    in Nazi Germany. I am very pleased that ICE was able to support
    the ultimate removal effort. And with some difficulty, as
    everyone knows, we ultimately were able to remove him to
    Germany where he faces justice at long last.
        Finally, the case of Carlos de Graca Lopes, a citizen of
    Cape Verde, who entered the United States on a fraudulently
    obtained visitor's visa. An indictment was issued against him
    in his home country for various crimes, including the torture
    of prisoners that were in his care. He fled; he entered the
    United States. ICE agents arrested him; the U.S. Attorney's
    Office in Boston charged him with 14 counts of visa fraud,
    false statements, and perjury. He recently pled guilty. He is
    completing his term in Federal prison, at which point we intend
    to remove him to Cape Verde where he faces prosecution for
    torture.
        Our recent efforts include more than casework, however. Let
    me just briefly note that we have established last year a pilot
    project to create a human rights violators and war crimes
    center. I will not belabor the point, but just to let the
    Chairman and the Committee know that I have made that
    permanent, and we are going to staff it appropriately. We have
    a total of 23 people now in headquarters--agents, attorneys,
    and historians--devoted to the work of the center, and I am
    looking very hard at how within the existing resources we can
    continue to augment that effort, so that is a work in progress.
        My time is coming short here, so let me close with two
    things. First, I want to let the Committee know how much I
    support the recent decision that Mr. Breuer has announced to
    merge OSI and DSS. As someone who worked in DSS for a long time
    in the Criminal Division and has worked very closely with OSI,
    I know these are two very proud institutions. And I am very
    confident that the combination of those two institutions is
    going to lead to a much stronger whole. I can tell you without
    any question that the merger of those two institutions is going
    to lead to a much better and closer worker relationship with
    ICE. We are committed to investigating the cases that the
    Department of Justice charges.
        Let me also say how much I appreciate your leadership on
    these important issues. I congratulate you both on the
    enactment of the Child Soldiers Accountability Act, the
    Genocide Accountability Act, and the Trafficking Victims Act. I
    can say with all sincerity that the cause of human rights
    enforcement and accountability worldwide has been greatly
    advanced by the creation of this Subcommittee and by its work.
        Let me also thank the Subcommittee for the professional
    conduct of its staff. They are a pleasure to deal with and very
    committed to the Subcommittee's work. It is very nice to be in
    a situation in Washington in which you have highly motivated
    and professional staff working with our staff in the executive
    branch.
        I thank you and I look forward to answering any questions
    you may have.
        [The prepared statement of Mr. Morton appears as a
    submission for the record.]
        Chairman Durbin. Thanks, Mr. Morton.
        Our next witness, David Donahue, is here to represent the
    State Department. Mr. Donahue is the Deputy Assistant Secretary
    for Visa Services in the Bureau of Consular Affairs.
    Previously, he was Director of the Office of Policy
    Coordination of Public Affairs in the Bureau of Consular
    Affairs. He has served in the State Department for over 25
    years. Mr. Donahue graduated from St. Meinrad College in
    Indiana--on whose campus I once camped out as a Boy Scout.
        [Laughter.]
        Chairman Durbin. Mr. Donahue, thank you for----
        Mr. Donahue. It has never been the same since.
        Chairman Durbin. Never been the same. Mr. Donahue, thank
    you for joining us. Please proceed.

     STATEMENT OF DAVID T. DONAHUE, DEPUTY ASSISTANT SECRETARY FOR
     VISA SERVICES, BUREAU OF CONSULAR AFFAIRS, U.S. DEPARTMENT OF
                         STATE, WASHINGTON, DC

        Mr. Donahue. Thank you, Mr. Chairman, Ranking Member
    Coburn, and Senator Franken. I am pleased to be here today to
    discuss the matter of visas and human rights violators.
        Within the Department of State, the Bureau of Democracy,
    Human Rights, and Labor has the overall lead on human rights
    issues. Information on human rights violators is gathered by
    Foreign Service personnel at our embassies abroad. I am here to
    discuss the role of the Bureau of Consular Affairs, which
    issues and denies visas according to statute using information
    obtained through a visa interview and database checks.
        Our consular officers at over 200 visa processing posts
    review applications for over 8 million potential travelers each
    year. They take their roles as the first line of defense in
    preventing ineligible persons or those who may want to harm us
    from traveling to the United States very seriously. Most of our
    applicants are legitimate, and those who are not are denied
    visas.
        Determinations of eligibility are based on law. As the
    honorable members are aware, there is currently no broad-based
    visa ineligibility for human rights violators per se; however,
    there are several visa ineligibilities related to human rights
    concerns, including those for foreign government officials who
    have committed particularly severe violations of religious
    freedom; for individuals who have committed or conspired to
    commit a human-trafficking offense; for individuals involved in
    Nazi-related persecutions; for individuals who have engaged in
    genocide or for individuals who have committed acts of torture
    or extrajudicial killings; and for individuals who have engaged
    in the recruitment or use of a child soldier.
        Presidential proclamations under Section 212(f) of the
    Immigration and Nationality Act that suspend entry to the
    United States of those who would be detrimental to U.S.
    interests have been effective in denying visas to human rights
    violators from Burma, Cuba, Zimbabwe, and the Balkans--among
    other countries.
        Consular officers receive training on all visa
    ineligibilities, including those related to human rights
    violations. Consular officers use three basic tools to apply
    the law during a visa process: the application form itself, the
    interview, and interagency databases.
        Our paper and electronic applications ask whether an
    applicant has committed torture, genocide, extrajudicial or
    political killings, violations of religious freedom, Nazi-
    related persecutions, or other crimes and acts of violence. We
    are working to add a question about child soldier recruitment.
    Applicants must answer all questions prior to interview.
        After reviewing the visa application and applying their
    understanding of local history and society, consular officers
    may issue or deny a visa or use the interview to ask questions
    that may lead to or confirm a suspicion of ineligibility.
        Finally, perhaps the most effective method to detect human
    rights violators is to check an applicant against interagency
    databases. All applicants are checked against the State
    Department Consular Lookout and Support System, CLASS database,
    which includes many records from the Department of Homeland
    Security's Traveler Enforcement Compliance System, TECS, as
    well as the Department of Homeland Security's Automated
    Biographic Identification System, IDENT, our own facial
    recognition system, and the FBI's Criminal Justice Information
    System.
        We are working with the Department's Bureau of Democracy,
    Human Rights, and Labor to ensure that all records with
    personal identifying information in its Leahy amendment vetting
    database--this is called INVEST--will be incorporated into our
    CLASS database. INVEST, which is being developed now, will
    contain all data available to the Department on Leahy amendment
    vetting results.
        Consular officers depend on human rights officials abroad,
    regional bureaus, the Bureau of Democracy, Human Rights, and
    Labor, the Departments of Homeland Security and Justice, and
    the Federal Bureau of Investigation to develop information that
    can be entered into CLASS to inform our consular officers of
    possible ineligibilities. We recently entered 500 names from
    ICE into our databases of suspected human rights violators.
        Our CLASS database has lookouts for nine individuals based
    on possible participation in a severe violation of religious
    freedoms, 330 individuals based on possible involvement in
    trafficking in persons, 12,812 based on possible involvement in
    Nazi-related persecutions, 3,000 individuals based on possible
    involvement in genocide, and over 700 individuals based on
    possible involvement in torture and extrajudicial killings.
        Mr. Chairman, Senator Franken, I know your Subcommittee has
    grappled with this issue for many years. Your leadership on
    this topic is admirable and inspiring. We have denied visas to
    hundreds of human rights violators, but we believe we can do
    more, and I am dedicated to ensuring that anyone who has
    committed violations that would make him ineligible or
    inadmissible does not receive a visa.
        As noted, we are looking forward to the exchange of data
    between INVEST and CLASS. I am instructing consular section
    chiefs to maintain regular contacts with our human rights
    reporting officers abroad to ensure that anyone identified by
    these officers as potential human rights violators has a
    lookout in CLASS. We will also remind our consular officers of
    the available tools to deny visas to human rights violators.
        With this I conclude my testimony and welcome your
    questions.
        [The prepared statement of Mr. Donahue appears as a
    submission for the record.]
        Chairman Durbin. Thank you, Mr. Donahue.
        Our final witness is Arthur Cummings, representing the FBI,
    where he serves as Executive Assistant Director in the National
    Security Branch. He was previously the Deputy Assistant
    Director of the Counter Terrorism Division. He has served in
    the FBI for over 20 years. He is a graduate of the University
    of California at San Diego.
        I do want to note for the record, as Senator Coburn has,
    that it puts the Subcommittee at a distinct disadvantage when
    we do not receive your testimony until 6:30 p.m. the day
    before. We have not had the time we need to reflect on it and
    to prepare the kinds of questions which I really think should
    have been prepared for this hearing for your important agency.
        I also want to recognize Paul Tiao, Special Counsel to FBI
    Director Robert Mueller, who like Erik Barnett, has the
    disadvantage of having served on my staff. He was a detailee on
    my Judiciary Committee staff.
        We appreciate, Mr. Cummings, your coming here today and
    please proceed with your testimony.

    STATEMENT OF ARTHUR M. CUMMINGS, EXECUTIVE ASSISTANT DIRECTOR,
      NATIONAL SECURITY BRANCH, FEDERAL BUREAU OF INVESTIGATION,
                             WASHINGTON, DC

        Mr. Cummings. Thank you, Mr. Chairman, and good morning.
    Good morning, Ranking Member Coburn and Senator Franken. I am
    pleased to be here with you today to discuss the FBI's efforts
    as they relate to human rights enforcement. For its part, the
    FBI is committed to supplementing international communities'
    efforts to advance human rights.
        Our mission is to identify human rights violators in the
    United States and bring them to justice for violations
    committed within and outside the United States. We investigate
    violators of both human rights and traditional criminal
    violations.
        Since 1988 Congress has enacted a series of statutes that
    have expanded the FBI's investigative jurisdiction of human
    rights issues in the international arena. Executive Order
    13107, which outlined the implementation of human rights
    treaties, further expanded our responsibilities.
        Although our authority in this area has grown with the
    enactment of the aforementioned laws, our reach remains limited
    by legal restrictions. For example, for many well-known
    international human rights atrocities, the statutes of
    limitations have run or the atrocities took place before the
    laws were enacted, thereby implicating the ex post facto clause
    of the Constitution. Nonetheless, the FBI has had success in
    bringing human rights violators to justice and expects to have
    success in the future as well.
        The FBI supports the overarching U.S. Government principle
    that respect for human rights helps to secure peace and to
    deter aggression, promote the rule of law, combat crime and
    corruption, strengthen democracies, and prevent humanitarian
    crises. With additional funding for human rights enforcements
    provided by Congress in fiscal year 2009, we are expanding our
    investigative efforts in this area and further establishing a
    human rights offenses program.
        As part of this program the FBI will utilize four key
    strategies--joint investigations, training, intelligence
    collection, and assistance to international investigative
    bodies--to fulfill our commitment to the enforcement of human
    rights laws and the promotion of human rights principles.
        First, utilizing rule-of-law principles, the FBI will
    together with our domestic and international law enforcement
    partners investigate priority human rights cases using
    established investigative techniques and protocols.
        Second, the FBI will train its own personnel and those of
    our foreign counterparts to ensure that human rights
    investigations are conducted in a manner consistent with rule-
    of-law principles. This training will strengthen our
    investigative efforts and promote institutionalized respect for
    human rights.
        Third, the FBI will collect domestic and international
    intelligence on human rights violators and violations through
    its 56 field offices, 60 foreign legal attaches, network of
    sources within and outside the United States, and relationships
    with domestic and international law enforcement partners.
        Fourth, in response to requests from international and
    foreign investigative bodies, the FBI will continue to provide
    assistance that advances efforts to enforce human rights laws
    in foreign and international legal fora. The FBI has personnel
    at FBI headquarters dedicated to the management of its human
    rights offenses program. A program manager will ensure that the
    FBI's domestic field offices and foreign legal attaches are
    fully engaged in advancing our human rights mission.
        In addition, FBI plans to dedicate a number of additional
    personnel at headquarters to support the program. With this
    dedicated corps of personnel, the FBI intends to issue human
    rights intelligence requirements to its 56 domestic field
    offices and its 60 foreign legal attaches. We will develop
    performance measures and hold periodic reviews to ensure that
    agents and analysts in the field are actively addressing human
    rights cases.
        We also plan to identify human rights coordinators in each
    office and work with the Department of Justice's Criminal
    Division to conduct training that will enable us to develop a
    body of experts who are dedicated to the investigation and
    prosecution of human rights abuses.
        Eventually, the FBI believes that based on its domain
    analysis it will be in a position to forward deploy dedicated
    assistant legal attaches in countries with a history of human
    rights violations that fall within the scope of U.S. human
    rights laws. These ALATs would be expected to establish
    contacts with human rights officials in the embassies and local
    nongovernmental organizations, collect intelligence on human
    rights abuses, and support human rights investigations.
        Chairman Durbin, Ranking Member Coburn, and Senator
    Franken, I appreciate this opportunity to come before you today
    to share the work of the FBI, what we were doing and what we
    plan to do in the future, to address human rights violations. I
    am certainly happy to answer your questions.
        [The prepared statement of Mr. Cummings appears as a
    submission for the record.]
        Chairman Durbin. Thank you, Mr. Cummings.
        We will now turn to questions for the witnesses, and each
    Senator will have 7 minutes.
        I would like to ask Mr. Morton--I am glad that there is an
    effort afoot to hold these two generals who are responsible for
    the torture of Dr. Romagoza accountable. While removing them
    from the United States is important, it is not the same as
    prosecuting them for human rights crimes. Unfortunately, it is
    not possible to prosecute the two generals for Dr. Romagoza's
    torture because it took place before our torture law was
    enacted.
        Now, is it your understanding, Mr. Morton, that these
    individuals will be prosecuted in El Salvador?
        Mr. Morton. It is my understanding that we are going to
    inform the Salvadorans of what we are doing, work with them to
    come--make sure that they receive these two gentlemen--assuming
    we are successful, obviously; we have a removal proceeding
    first to go through--and that we are going to be fully
    cooperative with them in sharing all the information and
    evidence that we have.
        As to whether or not they will ultimately prosecute these
    two individuals, I cannot say.
        Chairman Durbin. Does your agency consider the likelihood a
    human rights violator will be prosecuted upon return to his
    home country when deciding whether to remove him?
        Mr. Morton. We do. Part of that calculation comes in up
    front with--I mean, we look at the priorities this way:
    wherever we can bring a substantive offense ourselves working
    with Mr. Breuer and the U.S. Attorney's Offices at the
    Department of Justice, that is where we want to start.
        As you have already alluded to and some of the other
    witnesses have alluded to, the law as it presently stands does
    not allow us to do that. Where we can, then, we have uniform
    priority on at least removing the people from the United
    States, and we want to promote prosecution in the home
    countries if prosecution is not possible here.
        Chairman Durbin. Mr. Cummings, I am disappointed the FBI
    has not yet hired any agents to investigate human rights
    violations with the funds we specifically provided you in the
    fiscal year 2009 appropriation. I would like for you to explain
    this delay. And I understand that currently there are no FBI
    agents dedicated to investigating human rights violations. I
    would like to know if that is correct.
        I also understand that the FBI currently has only six human
    rights cases while ICE in comparison has over 1,000 human
    rights cases. How do you explain this discrepancy?
        Mr. Cummings. Senator, you are correct in that there are
    only six human rights cases currently being worked by the FBI
    within those categories. The fact that we have not hired
    additional personnel does not in any way imply or state that
    the work is not being done.
        Currently, our human rights program, the torture, genocide,
    child soldier side of that, outside of the human trafficking
    work that we do, is a reactive program. We receive referrals.
    The great work that ICE does--we receive referrals from ICE, we
    receive sometimes complaints from citizens and sometimes
    actually information we get from the State Department.
        Those referrals are acted upon, each and every one, looking
    for that which would satisfy the elements of the crime and
    allow us to work that. So while there is not a single case
    agent working just human rights violations, there are agents
    working it in a number of different areas.
        It is not a program that stands by itself yet. We are
    working in that direction. We are working to move from what has
    been traditionally a reactive program, case-based, referral-
    based program, to that which will be an intelligence-led
    program, meaning what we are looking to do with your $1.5
    million is to actually build the program. That is undergirded
    by collection in those areas where these atrocities happen,
    where we will gain that intelligence, where we will then begin
    to collect information that will inform those cases. As it
    stands right now, the cases are informed by referrals.
        Chairman Durbin. And let me follow up on that. If I
    understand correctly, the FBI plans to use these resources that
    Congress provided to hire assistant legal attaches who will be
    based in foreign countries. Can you explain to the Committee
    how FBI officials based in foreign countries will help identify
    human rights violators in our country?
        Mr. Cummings. Yes, I can. The atrocities, the witnesses,
    most of the information regarding those individuals that may be
    in the United States will start with the countries overseas.
    The intelligence that leads us to either a witness or a victim
    or a perpetrator will almost always be in those foreign
    countries. We have to understand where those are, where those
    atrocities took place. We have to fully understand the
    collection environment there. How do we gain that information?
        In other words, right now we work on a reactive pace. That
    is not, I do not believe, going to satisfy your Committee. It
    certainly does not satisfy me and it would not satisfy the
    Director of the FBI if we are going to expand this program, and
    we have committed to doing so.
        So as we expand the program, if we do not have the reach
    overseas, we do not understand the intelligence that will force
    us to gain that information, we will not increase our caseload,
    and we will not on our own find those perpetrators, witnesses,
    or victims.
        Chairman Durbin. Mr. Donahue, Assistant Secretary Morton
    testified about ICE's efforts to bring to justice Juan Rivera-
    Rondon and Telmo Hurtado-Hurtado, two Peruvians who led the
    Accomarca massacre of 67 unarmed men, women, and children.
    Rivera-Rondon was removed to Peru, where he is in custody
    awaiting trial, while Hurtado is awaiting extradition.
        Retired Lieutenant General Jose Daniel Williams Zapata, who
    commanded Rivera-Rondon and Hurtado, has been detailed by the
    Peruvian Government to the Inter-American Defense Board, which
    is based right here in Washington, DC. In contrast to his
    subordinates who are facing extradition and trial for
    participation in a massacre, Williams Zapata, their commander,
    is living freely in the United States and was reportedly issued
    a G visa by the State Department.
        I believe our staff notified you that we might ask about
    this case. Why is Williams Zapata allowed to remain in the
    United States, unlike the two men under his command at the time
    of the massacre? Will the State Department revoke his visa?
        Mr. Donahue. Thank you, Mr. Chairman. The visas for Mr.
    Zapata, both his visitor visa and his G-1 visa, have been
    revoked. I am not sure where they are in the process of
    removal, but he is no longer in the United States under a visa.
        Mr. Breuer. I can address that a little bit further, Mr.
    Chairman. We worked closely with the State Department. They
    agreed to revoke his visa, and he has left the country.
        Chairman Durbin. Thank you.
        Senator Coburn.
        Senator Coburn. Thank you, Mr. Chairman, and thank you--
    and, again, happy birthday, Mrs. Breuer. Happy birthday, Mrs
    Breuer.
        Mrs. Breuer. Thank you very much.
        Senator Coburn. Mr. Chairman, I have a several-page list of
    questions that I would like to submit to the record, and if you
    all take 2 or 3 weeks to get them back to us, that is fine.
        [The questions appear as questions and answers for the
    record.]
        Senator Coburn. I want to go in a couple of directions.
    One, Mr. Morton, there are some significant human rights abuses
    occurring on our southern border today with the people that are
    transporting foreign nationals in, and I do not know if you are
    familiar with the history and the information about the rape
    trees in southern Arizona and Texas. If you are not, you should
    become aware of it.
        But, you know, there is not a greater civil rights
    violation than to say you are transporting somebody to freedom
    and then rape them along the way and hang their underwear on
    trees, and the fact that that is occurring because we have two
    agencies that are not working together is something that I will
    detail in specific questions to you. But it is something that
    not only should we be prosecuting, but we should be doing the
    things to prevent it which--and that is in no way a reflection
    on ICE, I want to say. I think the problem is on the other side
    of that, and I have talked with former Senator Salazar,
    Secretary Salazar about that and hope that we have some
    resolution.
        But it is an important question because we lack credibility
    when we, within our own Government, cannot stop violation of
    human rights on our border, and yet we are proclaiming we are
    going to prosecute everybody else that is doing it outside who
    comes here. So it is an important message of consistency that
    we need to solve.
        Mr. Breuer, how many prosecutions have been brought under
    the new Title 18 authority relating to child soldiers which we
    enacted in the last Congress? Do you have any data on that?
        Mr. Breuer. Senator, as of today--of course, this was
    enacted in October of 2008--there have been none yet.
        Senator Coburn. OK. So do we have cases underway?
        Mr. Breuer. What I can say, Senator, is that we are
    aggressively pursuing cases with respect to all the human
    rights statutes, and, obviously, we look very closely at this
    kind of conduct, which is, of course, reprehensible; and if we
    have a provable cases that we can bring, we absolutely will.
        Senator Coburn. OK. Mr. Morton testified that many of the
    offenses that are charged--visa fraud, naturalization fraud,
    false statements--carry only light sentences and do not have
    much of a deterrent effect. Do you agree with that, number one?
    And if, in fact, that is the case, when those charges are the
    only option, does that affect DOJ's position as far as pursuing
    a case? And, finally, what would you recommend we do about it
    if that is the case?
        Mr. Breuer. OK. Senator, I think it is fair to say that
    when we look at human rights cases, we employ whatever statutes
    we can to bring them. So we may bring statutes that are not
    quintessentially considered human rights statues, but we will
    bring the full panoply of cases.
        And you are absolutely right. As my friend Assistant
    Secretary Morton said, we do have disabilities. Some can be
    because of statute of limitations. Some can be because of
    jurisdictional grounds. So that is the disability. It is not a
    reason we do not pursue the case.
        In fact, as the Office of Special Investigation has shown
    through its glorious history, we will pursue a case if it is a
    righteous case to bring, regardless of what the ultimate
    punishment is, because we want to make a statement. And in some
    cases it may simply be that the person can no longer stay in
    the United States.
        I would be delighted to work with your staff in figuring
    out in certain cases whether we need to enhance penalties or
    frankly, Senator, whether in certain circumstances it may make
    sense to increase the statute of limitations, both of which
    would empower us greater.
        Senator Coburn. And there is a statute of limitations
    presently on visa fraud and----
        Mr. Breuer. There is, Senator. There is a statute of
    limitations with respect to visa fraud. I believe it is 5
    years. The question is about how you can--how you measure that.
    But it is a 5-year statute.
        Senator Coburn. Thank you.
        One other question, and this really does not fall, Mr.
    Breuer, under your direct responsibility. We have all these
    cold civil rights cases. And last year or the year before last,
    we passed the Emmett Till Civil Rights Act. And I was wondering
    if all these researchers and historians that you use in
    collaborating and collecting the data in terms of the human
    rights cases could be cross-utilized so that the Justice
    Department could use that expertise as well in helping to solve
    these unsolved civil rights crimes within our own borders.
        Mr. Breuer. Well, Senator, candidly, I have not thought
    about that. I think that is a terrific suggestion. One of the
    goals of combining, of course, the two sections into one is to
    give our historians even a greater latitude about the kinds of
    areas that they can work with. I would be happy to speak with
    you but, more importantly, to speak with my colleagues in the
    Civil Rights Section to see if that could be employed. And
    thank you for that suggestion.
        Senator Coburn. All right. Thank you.
        I think, Mr. Chairman, the rest of my questions are going
    to be going to all the witnesses. I do have one question for
    Mr. Donahue, and then I will finish up.
        Your testimony states that visa applications are referred
    to agencies in DC. for additional review and a security
    advisory opinion. You say that approximately 260,000 of these
    SAOs are processed every year, and these are generally used for
    individuals who may be ineligible because of human rights
    offenses.
        When cases are referred for an SAO, how much time does it
    take to issue the final opinion, on average? Just a guess.
        Mr. Donahue. Thank you for the question. They vary greatly.
    Many SAOs can be resolved in a matter of weeks, usually, if you
    do the--including all the interagency vetting. If it becomes a
    difficult case where there is more research that needs to be
    done--there is nothing conclusive, there are files held by
    different agencies. We want to check with our own bureaus of
    Democracy, Human Rights and Labor. We want to check with the
    embassy. They can take a longer amount of time. They can take
    months. But most cases are resolved in about--within a month
    now.
        Senator Coburn. How many of those 260,000 result in denial?
        Mr. Donahue. I do not have a figure. I can get that for
    you.
        Senator Coburn. Can you? OK. Well, I will submit all those.
        [The information appears as a submission for the record.]
        Senator Coburn. Mr. Chairman, I again want to thank you. I
    have to be on the floor for Mr. Perez's nomination. I will
    submit these questions for the record, and I appreciate your
    having it. And I apologize for not being able to stay for the
    rest of the hearing.
        Chairman Durbin. Thanks, Senator Coburn. There will be
    written questions sent to all the witnesses. I hope you can
    respond to them in a timely way. I thank Senator Coburn for his
    participation.
        I want to make a statement for the record. I am about to
    recognize Senator Feingold. This is not a violation of the
    human rights of Senator Franken, who was here earlier, but it
    turns out that Senator Feingold actually came before you did.
    And that is the tradition of the Committee. It is no
    reflection. And because of his prodigious seniority and early*
    arrival, I am now going to recognize Senator Feingold.
        Senator Franken. That is OK. We had a good outcome on the
    football game last night.
        Senator Feingold. Oh, I knew it.
        [Laughter.]
        Senator Feingold. Dick, I know you are trying to protect
    me, but that is a little painful.
        I thank you, Mr. Chairman. I do want to commend you for
    your leadership on human rights issues, however.
        Significant gains have been made in recent years to
    increase accountability for human rights abuses. That said, we
    still have a long way to go on this topic. We have made
    tremendous progress in the last 2 years toward passing
    legislation that will ensure adequate laws are in place to
    bring perpetrators of serious crimes to justice.
        But the executive branch has not done an adequate job of
    investigating and prosecuting perpetrators under these laws. As
    I know was mentioned, the successful prosecution of Chuckie
    Taylor was an important milestone, and I hope it will send a
    message to perpetrators of human rights abuses that the United
    States will not turn a blind eye toward torture and other
    egregious human rights violations, but it is absolutely
    unacceptable that this is the only human rights case that has
    been filed by the DOJ.
        I am disappointed that the United States has not done more
    to ensure that human rights abusers are held accountable for
    their crimes. According to DHS, in 2008 potentially more than
    1,000 abusers from 89 different countries had settled in our
    country, and yet we have only had one prosecution for a human
    rights offense.
        In order to hold these perpetrators accountable, there
    needs to be more coordination and cooperation among DOJ, ICE,
    and the FBI. I also think that the Department of State needs to
    be more proactive when assessing visa applications to ensure
    that we are not admitting individuals from high-conflict
    countries who may be wanted for human rights abuses.
        The failure to prosecute those guilty of torture, genocide,
    and other war crimes makes it more likely that such crimes will
    be repeated. And I have long believed that the protection of
    basic human rights and accountability for human rights abuses
    must be a cornerstone of American foreign policy. It is not
    enough to give lip service to these principles or to simply
    pass laws that are never enforced. We need to make sure that
    these cases are aggressively and proactively investigated and
    prosecuted.
        By ensuring these human rights violators are punished, we
    send the message that the United States is not a safe haven for
    abusers but, more importantly, that the world will not tolerate
    genocide, torture, or crimes against humanity. And I look
    forward to seeing whether the current administration will take
    a more proactive approach to address this very important issue,
    and I hope that this hearing will help us find ways to hold
    more perpetrators accountable for their actions.
        Mr. Morton, when we held a hearing on crimes-against-
    humanity issues, I focused on one example where perpetrators of
    human rights abuses found a safe haven on American soil. In
    1984, American church women who had been working with refugees
    in El Salvador were brutally murdered by members of the
    Salvadoran National Guard, and in command of these men were two
    Salvadoran generals who bear direct responsibility for this
    atrocity. These same generals that Senator Durbin mentioned in
    his opening statement are who we are talking about, and you
    were already questioned about them.
        It is my understanding from your testimony that notices to
    appear have finally been issued for both generals, and the
    Department is finally taking steps to remove these individuals
    from the country.
        Now, these individuals have been in the United States for
    almost 30 years. Can you explain to me why there has been such
    a tremendous delay in this case? What procedures are you
    planning to put in place to reduce delays in resolving
    outstanding human rights cases?
        Mr. Morton. I cannot speak to the 30-year process. What I
    can tell you is that I have been very aware for quite some time
    about these two cases, frankly, in large part because of the
    work of the Committee and the staff. I was aware of them when I
    was at the Department of Justice. And I am now in a position as
    Assistant Secretary to make some determinations on, you know,
    the people that should go into proceedings. And we have been
    working very closely with the Department of Justice. We have
    put both of these gentlemen into proceedings this past Friday.
    We did so explicitly on the grounds that they assisted or
    otherwise participated in torture in El Salvador. We are not
    mincing our words, and we are going to seek to remove them from
    the United States.
        Is 30 years too long? Of course it is too long. But we are
    going to do what we can now, and they are in removal
    proceedings. And, you know, it is obviously my hope that the
    Government prevails.
        Senator Feingold. What about as to procedures to avoid
    similar situations?
        Mr. Morton. Well, I think the real--while I agree that
    there is a lot of work to be done, I will say I do think a
    tremendous amount has happened in the last 2 years. There is a
    very, very close working relationship between the Department of
    Homeland Security and the Department of Justice, both FBI and
    the Criminal Division and U.S. Attorney's Offices. We need to
    just continue to organize ourselves. We need to--the work of
    the historians at the Department of Justice has been critical
    to identify these people. We need to get them in the databases
    so that they do not even get a visa to come here in the first
    place.
        We at ICE are going to try to adopt and have adopted some
    of the historian model that is at the Department of Justice to
    build up our own capability. And the people at this table need
    to meet quite regularly. We need to be aggressive. And we
    just--you know, we just do not need things to linger on the
    books.
        And I can tell you, I know the gentleman to my right quite
    well. I do not know the two gentlemen to my left as well, but I
    am confident that you are going to see a much more aggressive
    and proactive approach. But we have got to organize ourselves.
    The changes at the Department of Justice I think are going to
    be helpful. What we are doing at ICE is going to be helpful.
    And then you need to keep calling us up here and asking us
    tough questions about what we are doing.
        Senator Feingold. Mr. Breuer, in January 2008 the Justice
    Department stated in response to questions regarding
    prosecutions under a theory of command responsibility that the
    Department has not had occasion to consider whether an
    individual could be criminally prosecuted under the torture
    statute under a theory of command responsibility.
        Has DOJ now had occasion to re-examine these statutes? What
    is DOJ's policy regarding prosecution of heads of state and
    other high-ranking members of the military under a theory of
    command responsibility?
        Mr. Breuer. Senator, as you point out, command
    responsibility has not, at least in the criminal context,
    really been a central tenet of American jurisprudence. That is
    not to say it could not be, but it has not in the past.
        It seems to me, though, that these very same cases can
    probably be brought under theories of conspiracy and aiding and
    abetting. I am very willing to look hard at the command
    responsibility doctrine. I think given our history it is less
    likely that we will pursue that, more likely that we would
    pursue these very same cases through aiding and abetting and
    conspiracy.
        But it is an issue that I have thought about and we will
    continue to very seriously.
        Chairman Durbin. Mr. Donahue, the Federal Government
    expends significant resources removing human rights violators
    from our country. It would obviously be more efficient to stop
    these individuals from entering in the first place. However, it
    appears that consular officers are handicapped by limited
    information.
        You testified that CLASS, the consular database, contains
    information on the involvement of only nine individuals in
    violation of religious freedom, 330 in human trafficking, and
    707 in torture or extrajudicial killings. By contrast, CLASS
    includes information on 12,800 people involved in Nazi-related
    persecution.
        Unfortunately, many more than nine people around the world
    are involved in violation of religious freedom and more than
    330 in human trafficking, certainly more than 700 in torture
    and extrajudicial killing.
        Why are these numbers so low? What can the State Department
    do to improve the information about possible human rights
    violators in their own database so that we can avoid the
    embarrassment of having them settle in the United States and go
    through the expense and time involved in removing them?
        Mr. Donahue. Thank you, Mr. Chairman. I think that is a
    very good question and one that we have been working with as we
    prepared for this testimony.
        As you have stated the officers are dependent upon the
    information that is provided to them during the interview and
    in our databases. I think that, as Mr. Morton has mentioned, we
    need to work together between our different agencies, both
    within the State Department and within the Justice Department,
    the FBI, and the Department of Homeland Security, to ensure
    that all cases that are known about, all people that are known
    about, are added to the system so that a person is stopped,
    that the security advisory opinion is pursued, and a decision
    is made by people who know the details of these instances.
        But the problem right now I think is that there is not a
    systematic governmentwide way to do this, and I think we want
    to work to make that happen.
        Chairman Durbin. Mr. Morton testified about Carlos Lopes, a
    former prison warden from Cape Verde who was recently convicted
    of visa fraud. Lopes obtained a non-immigrant visa while he was
    under indictment for torturing prisoners. How is it possible
    for someone under indictment for torture to obtain a visa to
    come to the United States and what can we do to prevent this?
        Mr. Donahue. I do not have details. I know, as Mr. Morton
    said, that it was done under visa fraud, and it may have been
    that--we do not know who he presented himself to be. We also do
    not know when the information was placed into the databases,
    whether we had the negative information in the database at the
    time of the visa interview.
        We can get more information for the Chairman if you would
    like on this particular case.
        Chairman Durbin. I wish you would. I also understand that a
    report required by Section 556 of the Foreign Operations
    Appropriations Act of 2006 contained the names of approximately
    700 Colombian army and security service members under
    investigation for human rights abuses. I think we notified you
    we might ask about this.
        Mr. Donahue. Right.
        Chairman Durbin. Was the information in that report about
    Colombian human rights violators included in the CLASS database
    for consular officers so that for those people seeking visas
    from Colombia we would check against this list to see if they
    might be human rights violators?
        Mr. Donahue. We have checked a number of the names, and
    they are in our database. We continue to check them. One of the
    difficulties with lists like that is they often do not contain
    any other biographical information.
        It is very important in gathering this information that we
    gather dates of birth, places of birth. Otherwise, many, many
    innocent people are held up in their visa application process.
    So we will continue to work on that list.
        Chairman Durbin. Thank you.
        Mr. Morton, Kelbessa Negewo, who was accused of serious
    human rights abuses in Ethiopia and had found safe haven in
    Atlanta, Georgia, was the first person to be charged under
    Chairman Leahy's Anti-Atrocity Alien Deportation legislation
    enacted in 2004, which made torture and extrajudicial killing
    grounds for removal from the United States.
        How many other individuals have been charged under this
    law?
        Mr. Morton. I do not know the answer to that, Mr. Chairman.
    We have brought seven substantive charges under the torture or
    extrajudicial provisions, and we have had five people that we
    have turned around at the border on the same theory. But under
    the specific provision for Mr. Negewo, I do not know and let me
    get back to you on that.
        Chairman Durbin. Thank you. I would like to ask you, Mr.
    Breuer, and Mr. Cummings: One significant challenge to
    prosecuting human rights abusers for crimes committed in
    another country is securing and protecting witnesses. What kind
    of steps are we taking to deal with that challenge?
        Mr. Breuer. Mr. Chairman, you are right, it is an
    extraordinary burden. With respect to what we do at the
    Department of Justice, working with our friends at ICE and at
    the FBI and at State, is we--it is very labor intensive. Our
    own lawyers go out, often to very dangerous parts of the world;
    they meet with the witnesses themselves. When we can, we try to
    bring witnesses to the United States.
        But, frankly, Mr. Chairman, it is an extraordinary burden,
    and at times if we do not have the collaboration and
    cooperation of the host country, that poses a remarkable
    burden.
        I do not think there is an easy answer to it, it is labor
    intensive and it is costly, and some of the great career people
    behind me have worked countless hours in dealing with these
    very issues.
        It is a case-by-case matter. We work with our friends at
    ICE and the FBI to help us, but there are no easy answers
    there.
        Chairman Durbin. I would like to thank all the witnesses
    for coming today and my colleagues for joining us, and as I
    said, there will be some written questions.
        I would like to place in the record written statements from
    the following organizations and individuals:
        Advocates for Human Rights, Center for Justice and
    Accountability, Center for Victims of Torture, Human Rights
    First, Human Rights USA, Human Rights Watch, and Ambassador
    David Scheffer of Northwestern University Law School.
        [The statements appears as a submission for the record.]
        Chairman Durbin. I would also like to enter into the record
    a letter from 30 advocacy organizations in support of the
    Crimes Against Humanity Act. Without objection they'll be
    included.
        [The letter appears as a submission for the record.]
        Chairman Durbin. If there are no further comments, I am
    going to bring the hearing to a close. As we close it, I would
    like to acknowledge one person who is here and one who is not,
    and that, of course, would be Mrs. Breuer for joining us and
    Dr. Romagoza for inspiring us in an earlier hearing. They are
    from different generations and from different parts of the
    world, but they have a great deal in common. They have both
    survived horrible human rights abuses, and they had the courage
    to flee their homes and find sanctuary in our home country,
    where they became Americans and made great contributions.
        We owe it to both of them and countless others like them to
    ensure that America never provides safe haven to those who
    violate fundamental human rights. From John Demjanjuk who
    helped massacre over 29,000 Jews during World War II to the
    Salvadoran generals responsible for the torture of Dr.
    Romagoza, we have a responsibility to bring human rights
    violators to justice.
        I thank you all for helping us in that effort, and this
    hearing stands adjourned.
        [Whereupon, at 11:07 a.m., the Subcommittee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]