[Congressional Record Volume 147, Number 64 (Thursday, May 10, 2001)]
[Senate]
[Pages S4835-S4840]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Liberman, and Mr. Levin):
  S. 864. A bill to amend the Immigration and Nationality Act to 
provide that aliens who commit acts of torture, extrajudicial killings, 
or other specified atrocities abroad are inadmissible and removable and 
to establish within the Criminal Division of the Department of Justice 
an Office of Special Investigations having responsibilities under that 
Act with respect to all alien participants in war crimes, genocide, and 
the commission of acts of torture and extrajudicial killings abroad; to 
the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, I am pleased to introduce with Senators 
Lieberman and Levin the Anti-Atrocity Alien Deportation Act of 2001. I 
introduced similar legislation in the last Congress, and was pleased 
when the proposal garnered bipartisan support in both the House and the 
Senate. The measure was introduced in the last Congress by 
Representatives Foley, Franks and Ackerman as H.R. 2642 and H.R. 3058, 
and has again been introduced on April 4, 2001, by Representatives 
Foley and Ackerman as H.R. 1449. Moreover, the legislation passed the 
Senate, on November 5, 1999, as part of the Hatch-Leahy ``Denying Safe 
Havens to Internationals and War Criminals Act,'' S. 1754, but 
unfortunately was not acted on by the House. The problem of human 
rights abusers seeking and obtaining refuge in this country is real, 
and requires an effective response with the legal and enforcement 
changes proposed in this legislation. The loss last week by the United 
States of its seat on the U.N. Human Rights Commission is highly 
embarrassing and unfortunate, but by ensuring that our country is no 
safe haven for human rights abusers, we can lead the world by our 
actions.

[[Page S4836]]

  War criminals and human rights abusers have used loopholes in current 
law to enter and remain in this country. I have been appalled that this 
country has become a safe haven for those who exercised power in 
foreign countries to terrorize, rape, murder and torture innocent 
civilians. For example, three Ethiopian refugees proved in an American 
court that Kelbessa Negewo, a former senior government official in 
Ethiopia engaged in numerous acts of torture and human rights abuses 
against them in the late 1970's when they lived in that country. The 
court's descriptions of the abuse are chilling, and included whipping a 
naked woman with a wire for hours and threatening her with death in the 
presence of several men. The court's award of compensatory and punitive 
damages in the amount of $1,500,000 to the plaintiffs was subsequently 
affirmed by an appellate court. See Abebe-Jira v. Negewo, 72 F.3d 844 
(11th Cir. 1996). Yet, while Negewo's case was on appeal, the 
Immigration and Naturalization Service granted him citizenship.
  As Professor William Aceves of California Western School of Law has 
noted, this case reveals ``a glaring and troubling limitation in 
current immigration law and practice. This case is not unique. Other 
aliens who have committed gross human rights violations have also 
gained entry into the United States and been granted immigration 
relief.'' 20 Mich. J. Int'l.L. at 657. In fact, the Center for Justice 
and Accountability, a San Francisco human rights group, has identified 
approximately sixty suspected human rights violators now living in the 
United States.
  Unfortunately, criminals who wielded machetes and guns against 
innocent civilians in countries like Haiti, Chile, Yugoslavia and 
Rwanda have been able to gain entry to the United States through the 
same doors that we have opened to deserving refugees. We need to lock 
that door to those human rights abusers who seek a safe haven in the 
United States. To those human rights abusers who are already here, we 
should promptly show them the door out.
  We have unwittingly sheltered the oppressors along with the oppressed 
for too long. We should not let this situation continue. We waited too 
long after the last world war to focus prosecutorial resources and 
attention on Nazi war criminals who entered this country on false 
pretenses, or worse, with the collusion of American intelligence 
agencies. Last month, thousands of declassified CIA documents were made 
public, as a result of the Nazi War Crimes Disclosure Act that I was 
proud help enact in 1998, and made clear the extent that United States 
relied on and helped Nazi war criminals. As Eli M. Rosenbaum, the head 
of the Justice Department's Office of Special Investigations, noted, 
``These files demonstrate that the real winners of the Cold War were 
Nazi criminals.'' We should not repeat that mistake for other aliens 
who engaged in human rights abuses before coming to the United States. 
We need to focus the attention of our law enforcement investigators to 
prosecute and deport those who have committed atrocities abroad and who 
now enjoy safe harbor in the United States.
  When I first introduced this bill in 1999, the Pulitzer prize-winning 
paper, the Rutland Herald, opined on October 31, 1999, that:

       For the U.S. commitment to human rights to mean anything, 
     U.S. policies must be strong and consistent. It is not enough 
     to denounce war crimes in Bosnia and Kosovo or elsewhere and 
     then wink as the perpetrators of torture and mass murder slip 
     across the border to find a home in America.

  The Clinton Administration recognized the deficiencies in our laws. 
One Clinton Administration witness testified in February, 2000:

       Right now, only three types of human rights abuse could 
     prevent someone from entering or remaining in the United 
     States. The types of prohibited conduct include: (1) 
     genocide; (2) particularly severe violations of religious 
     freedom; and (3) Nazi persecutions. Even these types of 
     conduct are narrowly defined.

  Hearing on H.R. 3058, ``Anti-Atrocity Alien Deportation Act,'' before 
the Subcomm. on Immigration and Claims of the House Comm. On the 
Judiciary, 106th Cong., 2d Sess., Feb. 17, 2000 (Statement of James E. 
Costello, Associate Deputy Attorney General).
  The Anti-Atrocity Alien Deportation Act closes these loopholes. The 
Immigration and Nationality Act, INA, currently provides that (i) 
participants in Nazi persecutions during the time period from March 23, 
1933 to May 8, 1945, (ii) aliens who engaged in genocide, and (iii) 
aliens who committed particularly severe violations of religious 
freedom, are inadmissable to the United States and deportable. See 8 
U.S.C. Sec. 1182(a)(2)(G) & (3)(E) and Sec. 1227(a)(4)(D). The Justice 
Department's specialized OSI unit is authorized under a 1979 Attorney 
General order to investigate only Nazi war criminals, not any other 
human rights abuser. The bill would expand the grounds for 
inadmissibility and deportation to (1) add new bars for aliens who have 
engaged in acts, outside the United States, of ``torture'' and 
``extrajudicial killing'' and (2) remove limitations on the current 
bases for ``genocide'' and ``particularly severe violations of 
religious freedom.''

  The definitions for the new bases of ``torture'' and ``extrajudicial 
killing'' are derived from the Torture Victim Protection Act, which 
implemented the United Nations' ``Convention Against Torture and Other 
Cruel, Inhuman or Degrading Treatment or Punishment.'' These 
definitions are therefore already sanctioned by the Congress. The bill 
incorporates the definition of ``torture'' codified in the federal 
criminal code, 18 U.S.C. Sec.  2340, which prohibits:

       an act committed by a person acting under the color of law 
     specifically intended to inflict severe physical or mental 
     pain or suffering (other than pain or suffering incidental to 
     lawful sanctions) upon another person within his custody or 
     physical control. 18 U.S.C. Sec.  2340(1).

  ``Severe mental pain or suffering'' is further defined to mean:

       prolonged mental harm caused by or resulting from: (A) the 
     intentional infliction or threatened infliction of severe 
     physical pain or suffering; (B) the administration or 
     application, or threatened administration or application, of 
     mind-altering substances or other procedures calculated to 
     disrupt profoundly the senses or personality; and (C) the 
     threat of imminent death; or (D) the threat that another 
     person will imminently be subjected to death, severe physical 
     pain or suffering, or the administration or application of 
     mind-altering substances or other procedures calculated to 
     disrupt profoundly the senses or personality. 18 U.S.C. Sec.  
     2340(2).

  The Torture Victim Protection Act also included a definition for 
``extrajudicial killing.'' Specifically, this law establishes civil 
liability for wrongful death against any person ``who, under actual or 
apparent authority, or color of law, of any foreign nation . . . 
subjects an individual to extrajudicial killing,'' which is defined to 
mean ``a deliberated killing not authorized by a previous judgment 
pronounced by a regularly constituted court affording all the judicial 
guarantees which are recognized as indispensable by civilized peoples. 
Such term, however, does not include any such killing that, under 
international law, is lawfully carried out under the authority of a 
foreign nation.''
  The bill would not only add the new grounds for inadmissibility and 
deportation, it would expand two of the current grounds. First, the 
current bar to aliens who have ``engaged in genocide'' defines that 
term by reference to the ``genocide'' definition in the Convention on 
the Prevention and Punishment of the Crime of Genocide. 8 U.S.C. 
1182(a)(3)(E)(ii). For clarity and consistency, the bill would 
substitute instead the definition in the federal criminal code, 18 
U.S.C. Sec.  1091(a), which was adopted pursuant to the U.S. 
obligations under the Genocide Convention. The bill would also broaden 
the reach of the provision to apply not only to those who ``engaged in 
genocide,'' as in current law, but also to cover any alien who has 
ordered, incited, assisted or otherwise participated in genocide. This 
broader scope will ensure that the genocide provision addresses a more 
appropriate range of levels of complicity.
  Second, the current bar to aliens who have committed ``particularly 
severe violations of religious freedom,'' as defined in the 
International Religious Freedom Act of 1998, IFRA, limits its 
application to foreign government officials who engaged in such conduct 
within the last 24 months, and also bars from admission the 
individual's spouse and children, if any. The bill would delete 
reference to prohibited conduct occurring within a 24-month period 
since this limitation is not consistent with the strong stance of the 
United States to promote religious

[[Page S4837]]

freedom throughout the world. As Professor Aceves opines:

       This provision is unduly restrictive . . . The 24-month 
     time limitation for this prohibition is also unnecessary. A 
     perpetrator of human rights atrocities should not be able to 
     seek absolution by merely waiting two years after the 
     commission of these acts. William J. Aceves, supra, 20 Mich. 
     J. Int'l L., at 683.

  In addition, the bill would remove the current bar to admission for 
the spouse or children. This is a serious sanction that should not 
apply to individuals because of familial relationships that are not 
within an individual's control. None of the other grounds relating to 
serious human rights abuse prevent the spouse or child of an abuser 
from entering or remaining lawfully in the United States. Moreover, the 
purpose of these amendments is to make those who have participated in 
atrocities accountable for their actions. That purpose is not served by 
holding the family members of such individuals accountable for the 
offensive conduct over which they had no control.
  Changing the law to address the problem of human rights abusers 
seeking entry and remaining in the United States is only part of the 
solution. We also need effective enforcement. As one expert noted:

       [s]trong institutional mechanisms must be established to 
     implement this proposed legislation. At present, there does 
     not appear to be any agency within the Department of Justice 
     with the specific mandate of identifying, investigating and 
     prosecuting modern day perpetrators of human rights 
     atrocities. The importance of establishing a separate agency 
     for this function can be seen in the experiences of the 
     Office of Special Investigations. 20 Mich. J. Int'l L., at 
     689.

  We need to update OSI's mission to ensure effective enforcement. Our 
country has long provided the template and moral leadership for dealing 
with Nazi war criminals. The Justice Department's specialized unit, 
OSI, which was created to hunt down, prosecute, and remove Nazi war 
criminals who had slipped into the United States among their victims 
under the Displaced Persons Act, is an example of effective 
enforcement. Since the OSI's inception in 1979, 61 Nazi persecutors 
have been stripped of U.S. citizenship, 49 such individuals have been 
removed from the United States, and more than 150 have been denied 
entry.
  OSI was created almost 35 years after the end of World War II and it 
remains authorized only to track Nazi war criminals. Specifically, when 
Attorney General Civiletti established OSI within the Criminal Division 
of the Department of Justice, that office was directed to conduct all 
``investigative and litigation activities involving individuals, who 
prior to and during World War II, under the supervision of or in 
association with the Nazi government of Germany, its allies, and other 
affiliated [sic] governments, are alleged to have ordered, incited, 
assisted, or otherwise participated in the persecution of any person 
because of race, religion, national origin, or political opinion.'' 
(Attorney Gen. Order No. 851-79). The OSI's mission continues to be 
limited by that Attorney General Order.
  Little is being done about the new generation of international human 
rights abusers and war criminals living among us, and these delays are 
costly. As any prosecutor, or, in my case, former prosecutor, knows 
instinctively, such delays make documentary and testimonial evidence 
more difficult to obtain. Stale cases are the hardest to make. Since I 
introduced this bill in the last Congress, there have been no further 
developments in the Kelbessa Negewo case, he still remains living in 
Atlanta. In addition, there has been no action taken on Carlos Eugenio 
Vides Casanova, the former head of the Salvadoran National Guard, a 
unit whose members kidnaped, raped, and murdered four American 
churchwomen during the El Salvadoran civil war. Vides Casanova remains 
in the United States.
  We should not repeat the mistake of waiting decades before tracking 
down war criminals and human rights abusers who have settled in this 
country. War criminals should find no sanctuary in loopholes in our 
current immigration policies and enforcement. No war criminal should 
ever come to believe that he is going to find safe harbor in the United 
States.
  The Anti-Atrocity Alien Deportation Act would amend the Immigration 
and Nationality Act, 8 U.S.C. Sec.  1103, by directing the Attorney 
General to establish an Office of Special Investigations (OSI) within 
the Department of Justice with authorization to investigate, remove, 
denaturalize, prosecute or extradite any alien who has participated in 
Nazi persecution, torture, extrajudicial killing or genocide abroad. 
Not only would the bill provide statutory authorization for Office of 
Special Investigation, it would also expand its jurisdiction to deal 
with any alien who participated in torture, extrajudicial killing and 
genocide abroad, not just Nazis.
  The success of OSI in hunting Nazi war criminals demonstrates the 
effectiveness of centralized resources and expertise in these cases. 
OSI has worked, and it is time to update its mission. The knowledge of 
the people, politics and pathologies of particular regimes engaged in 
genocide and human rights abuses is often necessary for effective 
prosecutions of these cases and may best be accomplished by the 
concentrated efforts of a single office, rather than in piecemeal 
litigation around the country or in offices that have more diverse 
missions.
  The bill directs the Attorney General, in determining what action to 
take against a human rights abuser seeking entry into or found within 
the United States, to consider whether a prosecution should be brought 
under U.S. law or whether the alien should be deported to a country 
willing to undertake such a prosecution. As one human rights expert has 
noted:

       The justifiable outrage felt by many when it is discovered 
     that serious human rights abusers have found their way into 
     the United States may lead well-meaning people to call for 
     their immediate expulsion. Such individuals certainly should 
     not be enjoying the good life America has to offer. But when 
     we ask the question ``where should they be?'' the answer is 
     clear: they should be in the dock. That is the essence of 
     accountability, and it should be the central goal of any 
     scheme to penalize human rights abusers.

  Hearing on H.R. 5238, ``Serious Human Rights Abusers Accountability 
Act,'' before the Subcomm. on Immigration and Claims of the House Comm. 
On the Judiciary, 106th Cong., 2d Sess., Sept. 28, 2000 (Statement of 
Elisa Massimino, Director, Washington Office, Lawyers Committee For 
Human Rights).
  I appreciate that this part of the legislation has proven 
controversial within the Department of Justice, but others have 
concurred in my judgment that the OSI is an appropriate component of 
the Department to address the new responsibilities proposed in the 
bill. Professor Aceves, who has studied these matters extensively, has 
concluded that OSI's ``methodology for pursuing Nazi war criminals can 
be applied with equal rigor to other perpetrators of human rights 
violations. As the number of Nazi war criminals inevitably declines, 
the OSI can begin to enforce U.S. immigration laws against perpetrators 
of genocide and other gross violations of human rights.'' 20 Mich. J. 
Int'l. 657.
  Similarly, the Rutland Herald noted that the INS has never deported 
an immigrant on the basis of human rights abuses, by contrast to OSI's 
active deportations of ex-Nazis, while maintaining a list of 60,000 
suspected war criminals with the aim of barring them from entry. Based 
on this record, the Rutland Herald concluded that the legislation 
correctly looks to OSI to carry out the additional responsibilities 
called for in the bill, noting that:

       It resolves a turf war between the INS and the OSI in favor 
     of the OSI, which is as it should be. The victims of human 
     rights abuses are often victimized again when, seeking refuge 
     in the United States, they are confronted by the draconian 
     policies of the INS. It's a better idea to give the job of 
     finding war criminals to the office that has shown it knows 
     how to do the job.

  Unquestionably, the need to bring Nazi war criminals to justice 
remains a matter of great importance. Funds would not be diverted from 
the OSI's current mission. Additional resources are authorized in the 
bill for OSI's expanded duties.
  Finally, the bill directs the Attorney General to report to the 
Judiciary Committees of the Senate and the House on implementation of 
the new requirements in the bill, including procedures for referral of 
matters to OSI, any revisions made to INS forms to reflect amendments 
made by the bill, and the procedures developed, with adequate due 
process protection, to obtain sufficient evidence and determine whether 
an alien is deemed inadmissible under the bill.

[[Page S4838]]

  We must honor and respect the unique experiences of those who were 
victims in the darkest moment in world history. We may help honor the 
memories of the victims of the Holocaust by pursuing all human rights 
abusers and war criminals who enter our country. By so doing, the 
United States can provide moral leadership and show that we will not 
tolerate perpetrators of genocide, extrajudicial killing and torture, 
least of all here.
  I ask unanimous consent that the text of the bill and a sectional 
analysis be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 864

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Anti-Atrocity Alien 
     Deportation Act of 2001''.

     SEC. 2. INADMISSIBILITY AND REMOVABILITY OF ALIENS WHO HAVE 
                   COMMITTED ACTS OF TORTURE OR EXTRAJUDICIAL 
                   KILLINGS ABROAD.

       (a) Inadmissibility.--Section 212(a)(3)(E) of the 
     Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(E)) is 
     amended--
       (1) in clause (ii), by striking ``has engaged in conduct 
     that is defined as genocide for purposes of the International 
     Convention on the Prevention and Punishment of Genocide is 
     inadmissible'' and inserting ``ordered, incited, assisted, or 
     otherwise participated in conduct outside the United States 
     that would, if committed in the United States or by a United 
     States national, be genocide, as defined in section 1091(a) 
     of title 18, United States Code, is inadmissible'';
       (2) by adding at the end the following:
       ``(iii) Commission of acts of torture or extrajudicial 
     killings.--Any alien who, outside the United States, has 
     committed, ordered, incited, assisted, or otherwise 
     participated in the commission of--

       ``(I) any act of torture, as defined in section 2340 of 
     title 18, United States Code; or
       ``(II) under color of law of any foreign nation, any 
     extrajudicial killing, as defined in section 3(a) of Torture 
     Victim Protection Act of 1991;

     is inadmissible.''; and
       (3) in the subparagraph heading, by striking ``Participants 
     in nazi persecution or genocide'' and inserting 
     ``Participants in nazi persecution, genocide, or the 
     commission of any act of torture or extrajudicial killing''.
       (b) Removability.--Section 237(a)(4)(D) of such Act (8 
     U.S.C. 1227(a)(4)(D)) is amended--
       (1) by striking ``clause (i) or (ii)'' and inserting 
     ``clause (i), (ii), or (iii)''; and
       (2) in the subparagraph heading, by striking ``Assisted in 
     nazi persecution or engaged in genocide'' and inserting 
     ``Assisted in nazi persecution, participated in genocide, or 
     committed any act of torture or extrajudicial killing''.
       (c) Effective Date.--The amendments made by this section 
     shall apply to offenses committed before, on, or after the 
     date of the enactment of this Act.

     SEC. 3. INADMISSIBILITY AND REMOVABILITY OF FOREIGN 
                   GOVERNMENT OFFICIALS WHO HAVE COMMITTED 
                   PARTICULARLY SEVERE VIOLATIONS OF RELIGIOUS 
                   FREEDOM.

       (a) Section 212(a)(2)(G) of the Immigration and Nationality 
     Act (8 U.S.C. 1182(a)(2)(G)) is amended to read as follows:
       ``(G) Foreign government officials who have committed 
     particularly severe violations of religious freedom.--Any 
     alien who, while serving as a foreign government official, 
     was responsible for or directly carried out, at any time, 
     particularly severe violations of religious freedom, as 
     defined in section 3 of the International Religious Freedom 
     Act of 1998, are inadmissible.''.
       (b) Section 237(a)(4) of such Act (8 U.S.C. 1227(a)(4)) is 
     amended by adding at the end the following:
       ``(E) Participated in the commission of severe violations 
     of religious freedom.--Any alien described in section 
     212(a)(2)(G) is deportable.''.

     SEC. 4. BAR TO GOOD MORAL CHARACTER FOR ALIENS WHO HAVE 
                   COMMITTED ACTS OF TORTURE, EXTRAJUDICIAL 
                   KILLINGS, OR SEVERE VIOLATIONS OF RELIGIOUS 
                   FREEDOM.

       Section 101(f) of the Immigration and Nationality Act (8 
     U.S.C. 1101(f)) is amended--
       (1) by striking the period at the end of paragraph (8) and 
     inserting ``; and''; and
       (2) by adding at the end the following:
       ``(9) one who at any time has engaged in conduct described 
     in section 212(a)(3)(E) (relating to assistance in Nazi 
     persecution, participation in genocide, or commission of acts 
     of torture or extrajudicial killings) or 212(a)(2)(G) 
     (relating to severe violations of religious freedom).''.

     SEC. 5. ESTABLISHMENT OF THE OFFICE OF SPECIAL 
                   INVESTIGATIONS.

       (a) Amendment of the Immigration and Nationality Act.--
     Section 103 of the Immigration and Nationality Act (8 U.S.C. 
     1103) is amended by adding at the end the following:
       ``(g) The Attorney General shall establish within the 
     Criminal Division of the Department of Justice an Office of 
     Special Investigations with the authority of investigating, 
     and, where appropriate, taking legal action to remove, 
     denaturalize, prosecute, or extradite any alien found to be 
     in violation of clause (i), (ii), or (iii) of section 
     212(a)(3)(E). In determining such appropriate legal action, 
     consideration shall be given to--
       ``(1) the availability of prosecution under the laws of the 
     United States for any conduct that may form the basis for 
     removal and denaturalization; or
       ``(2) removal of the alien to a foreign jurisdiction that 
     is prepared to undertake a prosecution for such conduct.''.
       (b) Authorization of Appropriations.--
       (1) In general.--There are authorized to be appropriated to 
     the Department of Justice such sums as may be necessary to 
     carry out the additional duties established under section 
     103(g) of the Immigration and Nationality Act (as added by 
     this Act) in order to ensure that the Office of Special 
     Investigations fulfills its continuing obligations regarding 
     Nazi war criminals.
       (2) Availability of funds.--Amounts appropriated pursuant 
     to paragraph (1) are authorized to remain available until 
     expended.

     SEC. 6. REPORT ON IMPLEMENTATION OF THE ACT.

       Not later than 180 days after the date of enactment of this 
     Act, the Attorney General, in consultation with the 
     Commissioner of Immigration and Naturalization, shall submit 
     to the Committees on the Judiciary of the Senate and the 
     House of Representatives a report on implementation of this 
     Act that includes a description of--
       (1) the procedures used to refer matters to the Office of 
     Special Investigations in a manner consistent with the 
     amendments made by this Act;
       (2) the revisions, if any, made to immigration forms to 
     reflect changes in the Immigration and Nationality Act made 
     by the amendments contained in this Act; and
       (3) the procedures developed, with adequate due process 
     protection, to obtain sufficient evidence to determine 
     whether an alien may be inadmissible under the terms of the 
     amendments made by this Act.
                                  ____


    Sectional Analysis of Leahy Anti-Atrocity Alien Deportation Act


                                summary

       This bill would make the following four changes in our 
     country's enforcement capability against aliens who have 
     committed atrocities abroad and then try to enter or remain 
     in the United States:
       Amend the Immigration and Nationality Act (INA) to expand 
     the grounds for inadmissibility and deportation to cover 
     aliens who have engaged in acts of torture, as defined in 18 
     U.S.C. Sec. 2340, and extrajudicial killing, as defined in 
     the Torture Victim Protection Act, abroad, as well as expand 
     the scope of the current prohibitions on aliens who have 
     engaged in genocide and particularly severe violations of 
     religious freedom;
       Amend the INA to make clear that aliens who have committed 
     torture, extrajudicial killing or particularly severe 
     violations of religious freedom abroad do not have ``good 
     moral character'' and cannot qualify to become U.S. citizens 
     or for other immigration benefits;
       Direct the Attorney General to establish the Office of 
     Special Investigation (OSI) within the Criminal Division and 
     expand the OSI's authority to investigate, remove, 
     denaturalize, prosecute, or extradite any alien who 
     participated in torture, genocide and extrajudicial killing 
     abroad--not just Nazi war criminals; and
       Direct the Attorney General, in consultation with the INS 
     Commissioner, to report to the Judiciary Committees of the 
     Senate and House of Representatives on implementation of 
     procedures to refer matters to OSI, revise INS forms, and 
     procedures to obtain adequate evidence to develop ``watch 
     lists'' of aliens deemed inadmissible under the bill.


                          sec. 1. short title

       The bill may be cited as the ``Anti-Atrocity Alien 
     Deportation Act of 2001.''


 sec. 2. inadmissibility and removability of aliens who have committed 
            acts of torture or extrajudicial killing abroad

       Currently, the Immigration and Nationality Act (INA) 
     provides that (i) participants in Nazi persecutions during 
     the time period from March 23, 1933 to May 8, 1945, and (ii) 
     aliens who engaged in genocide, are inadmissible to the 
     United States. See 8 U.S.C. Sec. 1182(a)(3)(E)(i)&(ii). 
     Current law also provides that aliens who have participated 
     in Nazi persecutions or engaged in genocide are deportable. 
     See Sec. 1227(a)(4)(D). The bill would amend these sections 
     of the Immigration and Nationality Act by expanding the 
     grounds for inadmissibility and deportation to cover aliens 
     who have committed, ordered, incited, assisted, or otherwise 
     participated in the commission of acts of torture or 
     extrajudicial killing abroad and clarify and expand the scope 
     of the genocide bar.
       Subsection (a) would first amend the definition of 
     ``genocide'' in clause (ii) of section 212(a)(3) of the INA, 
     8 U.S.C. 1182(a)(3)(E)(ii). Currently, the ground of 
     inadmissibility relating to genocide refers to the definition 
     in the Convention on the Prevention and Punishment of the 
     Crime of Genocide. Article III of that Convention punishes 
     genocide, the conspiracy to commit genocide, direct and 
     public incitement to commit genocide, attempts to commit 
     genocide, and complicity in genocide. The bill would modify 
     the definition to refer instead to the ``genocide'' 
     definition in section 1091(a) of title 18, United States 
     Code, which was adopted to implement United States 
     obligations under the Convention and also prohibits attempts 
     and conspiracies to commit genocide.

[[Page S4839]]

       Specifically, section 1091(a) defines genocide as 
     ``whoever, whether in time of peace or in time of war, . . . 
     with the specific intent to destroy, in whole or in 
     substantial part, a national, ethnic, racial or religious 
     group as such: (1) kills members of that group; (2) causes 
     serious bodily injury to members of that group; (3) causes 
     the permanent impairment of the mental faculties of members 
     of the group through drugs, torture, or similar techniques; 
     (4) subjects the group to conditions of life that are 
     intended to cause the physical destruction of the group in 
     whole or in part; (5) imposes measures intended to prevent 
     births within the group; or (6) transfers by force children 
     of the group to another group.'' This definition includes 
     genocide by public or private individuals in times of peace 
     or war. While the federal criminal statute is limited to 
     those offenses committed within the United States or 
     offenders who are U.S. nationals, see 18 U.S.C. 1091(d), the 
     grounds for inadmissibility in the bill would apply to such 
     offenses committed outside the United States that would 
     otherwise be a crime if committed within the United States or 
     by a U.S. national.
       In addition, the bill would broaden the reach of the 
     inadmissibility bar to apply not only to those who ``engaged 
     in genocide,'' as in current law, but also to cover any alien 
     who has ordered, incited, assisted or otherwise participated 
     in genocide abroad. This broader scope will ensure that the 
     genocide provision addresses a more appropriate range of 
     levels of complicity.
       Second, subsection (a) would add a new clause to 8 U.S.C. 
     Sec. 1182(a)(3)(E) that would trigger operation of the 
     inadmissibility ground if an alien has ``committed, ordered, 
     incited, assisted, or otherwise participated in'' acts of 
     torture, as defined in section 2430 of title 18, United 
     States Code, or extrajudicial killings, as defined in section 
     3(a) the Torture Victim Protection Act. The statutory 
     language--``committed, ordered, incited, assisted, or 
     otherwise participated in''--is intended to reach the 
     behavior of persons directly or personally associated with 
     the covered acts. Attempts and conspiracies to commit these 
     crimes are encompassed in the ``otherwise participated in'' 
     language. This language addresses an appropriate range of 
     levels of complicity for which aliens should be held 
     accountable, and has been the subject of extensive judicial 
     interpretation and construction. See Fedorenko v. United 
     States, 449 U.S. 490, 514 (1981); Kalejs v. INS, 10 F. 3d 
     441, 444 (7th Cir. 1993); U.S. v. Schmidt, 923 F. 2d 1253, 
     1257-59 (7th Cir. 1991); Kulle v. INS, 825 F. 2d 1188, 1192 
     (7th Cir. 1987).
       The definitions of ``torture'' and ``extrajudicial 
     killing'' are contained in the Torture Victim Protection Act, 
     which served as the implementing legislation when the United 
     States joined the United Nations' ``Convention Against 
     Torture and Other Cruel, Inhuman or Degrading Treatment or 
     Punishment.'' This Convention entered into force with respect 
     to the United States on November 20, 1992 and imposes an 
     affirmative duty on the United States to prosecute torturers 
     within its jurisdiction. The Torture Victim Protection Act 
     provides both criminal liability and civil liability for 
     persons who, acting outside the United States and under 
     actual or apparent authority, or color of law, of any 
     foreign nation, commit torture or extrajudicial killing.
       The criminal provision passed as part of the Torture Victim 
     Protection Act defines ``torture'' to mean ``an act committed 
     by a person acting under the color of law specifically 
     intended to inflict severe physical or mental pain or 
     suffering (other than pain or suffering incidental to lawful 
     sanctions) upon another person within his custody or physical 
     control.'' 18 U.S.C. Sec. 2340(1). ``Severe mental pain or 
     suffering'' is further defined to mean the ``prolonged mental 
     harm caused by or resulting from (A) the international 
     infliction or threatened infliction of severe physical pain 
     or suffering; (B) the administration or application, or 
     threatened administration or application, of mind-altering 
     substances or other procedures calculated to disrupt 
     profoundly the senses or personality; and (C) the threat of 
     imminent death; or (D) the threat that another person will 
     imminently be subjected to death, severe physical pain or 
     suffering, or the administration or application of mind-
     altering substances or other procedures calculated to disrupt 
     profoundly the senses or personality.'' 18 U.S.C. 
     Sec. 2340(2).
       The bill also incorporates the definition of 
     ``extrajudicial killing'' from section 3(a) of the Torture 
     Victim Protection Act. This law establishes civil liability 
     for wrongful death against any person ``who, under actual or 
     apparent authority, or color of law, of any foreign nation . 
     . . subjects an individual to extrajudicial killing,'' which 
     is defined to mean ``a deliberated killing not authorized by 
     a previous judgment pronounced by a regularly constituted 
     court affording all the judicial guarantees which are 
     recognized as indispensable by civilized peoples. Such term, 
     however, does not include any such killing that, under 
     international law, is lawfully carried out under the 
     authority of a foreign nation.''
       Both definitions of ``torture'' and ``extrajudicial 
     killing'' require that the alien be acting under color of 
     law. A criminal conviction, criminal charge or a confession 
     are not required for an alien to be inadmissible or removable 
     under the new grounds added in this subsection of the bill.
       The final paragraph in subsection (a) would modify the 
     subparagraph heading to clarify the expansion of the grounds 
     for in admissibility from ``participation in Nazi persecution 
     or genocide'' to cover ``torture or extrajudicial killing.''
       Subsection (b) would amend section 237(a)(4)(D) of the INA, 
     8 U.S.C. Sec. 1227(a)(4)(D), which enumerates grounds for 
     deporting aliens who have been admitted into or are present 
     in the United States. The same conduct that would constitute 
     a basis of inadmissibility under subsection (a) is a ground 
     for deportability under this subsection of the bill. Under 
     current law, assisting in Nazi persecution and engaging in 
     genocide are already grounds for deportation. The bill would 
     provide that aliens who have committed any act of torture or 
     extrajudicial killing would also be subject to deportation. 
     In any deportation proceeding, the burden would remain on the 
     government to prove by clear and convincing evidence that the 
     alien's conduct brings the alien within a particular ground 
     of deportation.
       Subsection (c) regarding the ``effective date'' clearly 
     states that these provisions apply to acts committed before, 
     on, or after the date this legislation is enacted. These 
     provisions apply to all cases after enactment, even where the 
     acts in question occurred or where adjudication procedures 
     within the Immigration and Naturalization Service (INS) or 
     the Executive Office of Immigration Review were initiated 
     prior to the time of enactment.


    SEC. 3. INADMISSIBILITY AND REMOVABILITY OF FOREIGN GOVERNMENT 
    OFFICIALS WHO HAVE COMMITTED PARTICULARLY SEVERE VIOLATIONS OF 
                           RELIGIOUS FREEDOM

       This section of the bill would amend section 212(a)(2)(G) 
     of the INA, 8 U.S.C. Sec. 1182(a)(2)(G), which was added as 
     part of the International Religious Freedom Act of 1998 
     (IFRA), to expand the grounds for inadmissibility and 
     removability of aliens who commit particularly severe 
     violations of religious freedom. Current law bars the 
     admission of an individual who, while serving as a foreign 
     government official, was responsible for or directly carried 
     out particularly severe violations of religious freedom 
     within the last 24 months. 8 U.S.C. Sec. 1182(c)(2)(G). The 
     existing provision also bars from admission the individual's 
     spouse and children, if any. ``Particularly severe violations 
     of religious freedom'' is defined in section 3 of IFRA to 
     mean ``systematic, ongoing, egregious violation of religious 
     freedom, including violations such as (a) torture or cruel, 
     inhuman, or degrading treatment or punishment; (B) prolonged 
     detention without charges; (C) causing the disappearance of 
     persons or clandestine detention of those persons; or (D) 
     other flagrant denial of the right to life, liberty, or the 
     security of persons. While IRFA contains numerous provisions 
     to promote religious freedom and to prevent violations of 
     religious freedom throughout the world, including a wide 
     range of diplomatic sanctions and other formal expressions of 
     disapproval, section 212(a)(2)(G) is the only provision which 
     specifically targets individual abusers.
       Subsection (a) would delete the 24-month restriction in 
     section 212(a)(2)(G) since it limits the accountability, for 
     purposes of admission, to a two-year period. This limitation 
     is not consistent with the strong stance of the United States 
     to promote religious freedom throughout the world. 
     Individuals who have committed particularly severe violations 
     of religious freedom should be held accountable for their 
     actions and should be admissible to the United States 
     regardless of when the conduct occurred.
       In addition, this subsection would amend the law to remove 
     the current bar to admission for the spouse or children of a 
     foreign government official who has been involved in 
     particularly severe violations of religious freedom. The bar 
     of inadmissibility is a serious sanction that should not 
     apply to individuals because of familiar relationships that 
     are not within an individual's control. None of the other 
     grounds relating to serious human rights abuse prevent the 
     spouse or child of an abuser from entering or remaining 
     lawfully in the United States. Moreover, the purpose of these 
     amendments is to make those who have participated in 
     atrocities accountable for their actions. That purpose is not 
     served by holding the family members of such individuals 
     accountable for the offensive conduct over which they had no 
     control.
       Subsection (b) would amend section 237(a)(4) of the INA, 8 
     U.S.C. Sec. 1227(A)(4), which enumerates grounds for 
     deporting aliens who have been admitted into or are present 
     in the United States, to add a new clause (E), which provides 
     for the deportation of aliens described in subsection (a) of 
     the bill.
       The bill does not change the effective date for this 
     provision set forth in the original IFRA, which applies the 
     operation of the amendment to aliens ``seeking to enter the 
     United States on or after the date of the enactment of this 
     Act.''


SEC. 4. BAR TO GOOD MORAL CHARACTER FOR ALIENS WHO HAVE COMMITTED ACTS 
 OF TORTURE, EXTRAJUDICIAL KILLINGS, OR SEVERE VIOLATIONS OF RELIGIOUS 
                                FREEDOM.

       This section of the bill would amend section 101(f) of the 
     INA, 8 U.S.C. Sec. 1101(f), which provides the current 
     definition of ``good moral character,'' to make clear that 
     aliens who have committed torture, extrajudicial killing--
     severe violation of religious freedom abroad do not qualify. 
     Good moral character

[[Page S4840]]

     is a prerequisite for certain forms of immigration relief, 
     including naturalization, cancellation of removal for 
     nonpermanent residents, and voluntary departure at the 
     conclusion of removal proceedings. Aliens who have committed 
     torture or extrajudicial killing, or severe violations of 
     religious freedom abroad cannot establish good moral 
     character. Accordingly, this amendment prevents aliens 
     covered by the amendments made in sections 2 and 3 of the 
     bill from becoming United States citizens or benefitting from 
     cancellation of removal or voluntary departure. Absent such 
     an amendment there is no statutory bar to naturalization for 
     aliens covered by the proposed new grounds for 
     inadmissibility and deportation.


     SEC. 5. ESTABLISHMENT OF THE OFFICE OF SPECIAL INVESTIGATIONS

       Attorney General Civiletti established OSI in 1979 within 
     the Criminal Division of the Department of Justice, 
     consolidating within it all `investigative and litigation 
     activities involving individuals, who prior to and during 
     World War II, under the supervision of or in association with 
     the Nazi government of Germany, its allies, and other 
     affiliated [sic] governments, are alleged to have ordered, 
     incited, assisted, or otherwise participated in the 
     persecution of any person because of race, religion, national 
     origin, or political opinion.'' (Att'y Gen. Order No. 851-
     79). The OSI's mission continues to be limited by that 
     Attorney General Order.
       This section would amend the Immigration and Nationality 
     Act, 8 U.S.C. Sec. 1103, by directing the Attorney General to 
     establish an Office of Special Investigations within the 
     Department of Justice with authorization to investigate, 
     remove, denaturalize, prosecute or extradite any alien who 
     has participated in Nazi persecution, genocide, torture or 
     extrajudical killing abroad. This would expand OSI's current 
     authorized mission. In order to fulfill the United States' 
     obligation under the ``Convention Against Torture and Other 
     Cruel, Inhuman or Degrading Treatment or Punishment'' to hold 
     accountable torturers found in this country, the bill 
     expressly directs the Department of Justice to consider the 
     availability of prosecution under United States laws for any 
     conduct that forms the basis for removal and 
     denaturalization. In addition, the Department is directed to 
     consider deportation to foreign jurisdictions that are 
     prepared to undertake such a prosecution. Statutory and 
     regulatory provisions to implement Article 3 of that 
     Convention Against Torture, which prohibits the removal of 
     any person to a country where he or she would be tortured, 
     may also be part of this consideration. Additional funds are 
     authorized for these expanded duties to ensure that OSI 
     fulfills its continuing obligations regarding Nazi war 
     criminals.


              SEC. 6. REPORT OF IMPLEMENTATION OF THE ACT

       This section of the bill would direct the Attorney General, 
     in consultations with the INS Commissioner to report within 
     six months on implementation of the Act, including procedures 
     for referral of matters to OSI, any revisions made to INS 
     forms to reflect amendments made by the bill, and the 
     procedures developed, with adequate due process protection, 
     to obtain sufficient evidence and determine whether an alien 
     is deemed inadmissible under the bill.
                                 ______