[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.] 





                                 
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