[Congressional Record Volume 155, Number 200 (Wednesday, December 23, 2009)]
[Senate]
[Page S13869]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   THE TORTURE VICTIMS PROTECTION ACT

  Mr. LEAHY. Mr. President, the U.S. Supreme Court recently granted 
certiorari in a case involving the Torture Victim Protection Act of 
1991, TVPA, a law I supported from the earliest days following its 
introduction by Senator Specter in the summer of 1986. Senator Specter 
and I worked for years to see this historic human rights bill become 
law in 1991. Yet today I am concerned that the TVPA's crucial role in 
protecting human rights may be weakened or even rendered meaningless. 
The Supreme Court case, Samantar v. Yousuf, may decide the fate of this 
landmark law.
  The TVPA provides a Federal cause of action against any individual 
who subjects any person to torture or extrajudicial killing. This cause 
of action is available where the individual acts under actual or 
apparent authority, or under color of law of any foreign nation. 
Congress passed the TVPA in response to widespread use of official 
torture and summary executions that took place around the world, 
despite the universal consensus condemning such practices. Congress 
recognized that neither Federal nor international law was strong enough 
to curb such egregious human rights abuses. We enacted the TVPA to 
ensure accountability for those who commit atrocious violations of 
human rights.
  The case currently before the Supreme Court, Samantar v. Yousuf, 
raises the question of whether the Foreign Sovereign Immunities Act, 
FSIA, allows an action filed under the TVPA to be brought against a 
former government official of a foreign country who is now living in 
the United States. The answer is clear in the TVPA and its legislative 
history. The answer is yes. Congress expressly intended the TVPA to 
apply against former government officials. In enacting the TVPA, 
Congress made it explicit that the FSIA would almost never provide a 
defense to such persons. They can be sued under the TVPA to recoup 
damages caused by their torturous actions.
  The Senate clearly stated its intention to ensure that the TVPA 
operated in concert with existing law, specifically taking into account 
the FSIA, the Alien Tort Claims Act, and the United Nations Convention 
Against Torture, which the United States signed in 1988. This point was 
discussed extensively as we drafted and refined the legislation. The 
operation of the TVPA was considered in a hearing held by the Judiciary 
Committee's Subcommittee on Immigration and Refugee Affairs in June 
1990. The committee was not oblivious to the concerns raised at the 
time by the executive branch regarding sovereign immunity. We were 
cognizant of the role of the executive to manage foreign policy. We 
addressed each of these concerns in turn, but we were not persuaded 
that they outweighed the importance of creating a private cause of 
action under the TVPA. The full Congress agreed when it enacted the 
TVPA in March 1992.
  The TVPA was drafted, in part, in response to gaps in two existing 
laws: the Alien Tort Claims Act and the Convention Against Torture. In 
deciding whether the Alien Tort Claims Act could be used by victims of 
torture committed abroad, one Federal judge expressed concern that 
separation of powers principles required an explicit grant by Congress 
of a private right of action for lawsuits that affect foreign 
relations. The Alien Tort Claims Act did not have such an explicit 
grant. Congress responded by enacting the TVPA with an unambiguous 
basis for a cause of action.
  Similarly, the United States signature on the Convention Against 
Torture was an important and symbolic step in the prevention of 
torture, but the Convention fell short of the TVPA in at least two 
important respects. First, the Convention required that signatories 
open their courts to suits for damages caused by torture in their own 
countries. That policy was welcome but insufficient. The TVPA allows 
torture victims to sue their abuser without returning to the country of 
abuse. Congress took this step because it believed that governments 
that had allowed torture to occur within their jurisdiction would not 
necessarily provide meaningful redress to victims. Furthermore, torture 
victims who escaped from the country of abuse would not eagerly return 
to that country to file suit. Congress designed the TVPA specifically 
to respond to that situation by opening U.S. courts to these cases and 
providing a civil cause of action here in the United States for torture 
committed abroad.
  Second, by creating a Federal cause of action in our own courts, 
Congress ensured that torturers would no longer have a safe haven in 
the United States. The legislation served notice to individuals engaged 
in human rights violations that their actions were anathema to American 
values and they would not find shelter from accountability here.
  Congress explicitly drafted the TVPA to strengthen and expand the 
scope of action that victims of torture could take in our courts, but 
Congress was nonetheless conscious of the bill's limits. The TVPA was 
not meant to override traditional diplomatic immunities or the FSIA's 
grant of immunity to foreign governments. The act struck a balance. It 
protected well established notions of sovereign and diplomatic 
immunities for current political actors without creating a safe haven 
for the perpetrators of horrible acts after they left their official 
positions and settled in, or fled to, the United States.
  For example, Congress carefully created the cause of action against 
an ``individual'' to ensure that foreign states or their entities could 
not be sued under the act under any circumstances. Similarly, we 
discussed at length the fact that the legislation would not permit a 
suit against a former leader of a country merely because an isolated 
act of torture occurred somewhere in that country. But Congress neither 
intended nor imagined that the FSIA would provide former officials with 
a defense to a lawsuit brought under the TVPA. Such an interpretation 
would undermine the purpose of the law. The TVPA was not intended to 
cover the torturous acts of private individuals. To the contrary, in 
order for a defendant to be liable under the TVPA, the torture must 
have been taken ``under actual or apparent authority or under the color 
of law of a foreign nation.'' The Judiciary Committee explicitly stated 
in its report on the bill that, ``the FSIA should normally provide no 
defense to an action taken under the TVPA against a former official.''
  I hope that the Supreme Court studies this definitive and 
comprehensive history as it considers the case of Samantar v. Yousuf. 
Congress clearly intended the TVPA to extend to former officials of 
foreign countries if they choose to come to the United States after 
leaving their positions of authority. Congress also stated that the 
FSIA does not extend immunity to such individuals. Claims that a suit 
brought against a former official would undermine the FSIA and endanger 
foreign relations are simply inaccurate. Congress properly weighed the 
foreign policy concerns when it passed the TVPA. The Supreme Court 
should not overrule the well-considered judgment of Congress.

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