[Senate Report 108-209]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 373
108th Congress                                                   Report
                                 SENATE
 1st Session                                                    108-209

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



 
              ANTI-ATROCITY ALIEN DEPORTATION ACT OF 2003

                                _______
                                

               November 24, 2003.--Ordered to be printed

                                _______
                                

 Mr. Hatch, for the Committee on the Judiciary, submitted the following

                              R E P O R T

                         [To accompany S. 710]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 710) 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, having 
considered the same, reports favorably thereon with amendments 
and recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and need for S. 710......................................1
 II. Legislative History..............................................3
III. Vote of the Committee............................................3
 IV. Discussion.......................................................3
  V. Section-by-Section Analysis......................................9
 VI. Cost Estimate...................................................14
VII. Regulatory Impact Statement.....................................15
VIII.Changes in Existing Law.........................................16


                     I. PURPOSE AND NEED FOR S. 710

    The Anti-Atrocity Alien Deportation Act, S. 710, is 
intended to close loopholes in U.S. immigration laws that have 
allowed aliens who have committed serious forms of human rights 
abuses abroad to enter and remain in the country. A report 
issued on April 10, 2002, by Amnesty International asserts that 
nearly 150 alleged human rights abusers have been identified 
living in the U.S., and warned that the actual number may be as 
high as 1,000. The problem of human rights abusers seeking and 
obtaining refuge in this country requires an effective response 
with the legal and enforcement changes proposed in this 
legislation.
    The bill, as amended and reported by the Senate Committee 
on the Judiciary, would make the following significant changes 
in current law:
    First, the bill would amend the Immigration and Nationality 
Act (INA) to expand the grounds for inadmissibility and 
removability to cover aliens who have engaged abroad in acts of 
torture, as defined in 18 U.S.C. Sec. 2340, and extrajudicial 
killing, as defined in the Torture Victim Protection Act, as 
well as expand the scope of the current prohibitions on aliens 
who have engaged in genocide and particularly severe violations 
of religious freedom, while removing the current bar to 
admission for the spouses or children of foreign government 
officials who were involved in particularly severe violations 
of religious freedom.
    Second, the bill would amend the INA to clarify 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 such as asylum, 
refugee status, or withholding of deportation.
    Third, the bill would provide statutory authorization for 
the Office of Special Investigations (OSI) within the Criminal 
Division. It expands the OSI's authority to denaturalize any 
alien who participated in torture, genocide and extrajudicial 
killing abroad--not just Nazi war criminals--and directs that 
consideration be given to prosecution, either in the United 
States or by another country, for conduct that may form the 
basis for removal and denaturalization. The statutory 
authorization of the OSI is not intended to limit the current 
investigative and other administrative authorities of the 
Department of Homeland Security (DHS). The Committee strongly 
exhorts the DHS and the OSI to cooperate and to reach an 
understanding regarding each entity's role in the efforts to 
prosecute or denaturalize the group targeted by this 
legislation.
    Finally, the bill would direct the Attorney General, in 
consultation with the Secretary of the Department of Homeland 
Security, to report to the Judiciary Committees of the Senate 
and House of Representatives on (a) implementation of 
procedures to refer matters to OSI, (b) any revisions made to 
immigration forms pursuant to this act, and (c) the procedures 
developed, with adequate due process protection, to obtain 
sufficient evidence to determine whether an alien may be 
inadmissible under the terms of this Act. In addition, it 
requires yearly reports from the Attorney General and the 
Homeland Security Secretary concerning the number of criminal 
investigations and prosecutions conducted pursuant to this act, 
as well as the number and nationality of persons removed from 
or denied admission to the United States.

                        II. LEGISLATIVE HISTORY

    In the 106th Congress, legislation similar to S. 710 was 
originally introduced by Senators Leahy, Lieberman and Levin as 
S. 1375. The legislation passed the Senate on November 5, 1999, 
as title III of S. 1754, ``Denying Safe Havens to International 
and War Criminals Act,'' sponsored by Senators Hatch and Leahy. 
Representatives Foley and Ackerman introduced the measure in 
the House of Representatives in the 106th Congress as H.R. 2642 
and H.R. 3058. The House did not take any action on the 
legislation.
    In the 107th Congress, S. 864 was introduced on May 10, 
2001, by Senators Leahy, Lieberman and Levin. A substitute 
amendment to the bill sponsored by Senators Leahy and Hatch 
passed the Judiciary Committee unanimously on April 25, 2002. A 
version of this bill was introduced in the House on April 4, 
2001, as H.R. 1449, by Representatives Foley and Ackerman.
    In the 108th Congress, S. 710 was introduced on March 26, 
2003, by Senators Leahy, Hatch, Levin and Lieberman. A version 
of this bill was introduced on the same day in the House, as 
H.R. 1440, by Representatives Foley and Ackerman.

                       III. VOTE OF THE COMMITTEE

    The Senate Committee on the Judiciary met on November 6, 
2003, to consider the ``Anti-Atrocity Alien Deportation Act.'' 
The Committee approved a substitute amendment offered by 
Senators Leahy and Hatch and an amendment offered by Senator 
Feingold to S. 710 and approved the bill, as amended, by voice 
vote, with no objection noted, and ordered the bill to be 
reported favorably to the Senate.

                             IV. DISCUSSION

    U.S. immigration law currently does not prevent war 
criminals and human rights abusers from entering and remaining 
in the country. Through these legal loopholes, the United 
States has become a safe haven for those who exercised power in 
foreign countries to terrorize, rape, murder and torture 
innocent civilians. According to Amnesty International, nearly 
150 alleged human rights abusers have been identified living in 
the U.S., and the group warns that this number may be as high 
as 1,000.
    The problem of human rights abusers seeking and obtaining 
refuge in the United States is exemplified by the following 
case: Three Ethiopian refugees proved in an American court that 
Kelbessa Negewo, a former senior government official in the 
military dictatorship that ruled Ethiopia in the 1970s, engaged 
in numerous acts of torture and human rights abuses against 
them when they lived in that country. Negewo then moved to the 
United States only to work at the same Atlanta hotel as one of 
the very victims whom he had tortured. The court's descriptions 
of the abuse are chilling, and included his 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 civil case was on appeal, the Immigration and 
Naturalization Service granted him citizenship.
    This situation is an affront to the foreign victims of 
torture who have come to this country to flee such persecution, 
and to the American victims of such torture and their families. 
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.'' William J. Aceves, 
``Using Immigration Law to Protect Human Rights: A Legislative 
Proposal,'' 20 Mich. J. Int'l. L. 657, 659 (Summer, 1999).
    An April 2002 report by Amnesty International describes the 
case of Yusuf Abdi Ali. See United States of America: A Safe 
Haven for Torturers, Amnesty International USA, April 2002, at 
42-43. Ali served under the Somali warlord, Mohammed Siad 
Barre. The Barre regime was accused of egregious abuses, 
``including the routine torture of political prisoners, 
thousands of detentions without charge or trial, grossly unfair 
political trials, many of which resulted in executions and 
extrajudicial executions of thousands of civilians.'' Id. Ali 
sought refugee status in Canada after the Barre regime fell in 
1991. When allegations surfaced that he had ordered the 
execution of more than 100 Somalis, Ali was deported to the 
United States, through which he had passed in 1990 on a 
diplomatic visa. In 1998, Ali was arrested by the INS for 
fraud, based on charges that he denied participation in 
genocidal acts in his application for permanent residency. 
``The case was dismissed, reportedly because Ali had already 
withdrawn his application for residency status.'' Id.
    No torture victim should encounter their foreign torturers 
in a neighborhood in the United States. Emmanuel ``Toto'' 
Constant led the Haitian death squad, the Revolutionary Front 
for the Progress of Haiti. The group, known as FRAPH, is ``a 
legendary outfit of armed civilians who, together with the 
Haitian military, allegedly tortured, raped, and murdered 
thousands of people.'' David Grann, ``Giving the Devil his 
Due,'' Atlantic Monthly, June 2001, at 55. Constant currently 
lives with his aunt in a two-story home in Queens, N.Y. A 
Queens resident of Haitian descent, Emile Maceus, was shocked 
to find Constant--the man who had terrorized the Haitian 
population--at his door responding to a ``for sale'' sign in 
the yard. Id. Ray Laforest, another Queens resident forced to 
face his former tormentor, told the Atlantic Monthly that 
``Constant's men and other paramilitaries had dragged one of 
his friends from a church [in Haiti] and shot him in broad 
daylight.'' Id., at 58. Constant was arrested by the INS in 
1995 and found deportable, but was released a year later. Id., 
at 68. In November of 2000, a Haitian court sentenced Constant 
to life in prison with hard labor for his role in a 1994 
massacre. United States of America: A Safe Haven for Torturers, 
supra, at 34-35. Constant, however, still resides here.
    In another case, the victims of torture abroad were 
Americans. In 1980, four American churchwomen were raped and 
murdered by the Salvadoran NationalGuard. Two former officials 
in the government of El Salvador allegedly covered up the murders. 
According to the United Nations' Truth Commission in El Salvador, one 
of the officials ``concealed the fact that the murders had been carried 
out pursuant to superior orders,'' and the other ``made no serious 
effort to investigate those responsible for the murders.'' Id., at 48. 
Both of these Salvadoran former officials currently reside in Florida.
    The problems are clear, and the Justice Department has 
recognized the deficiencies in our laws. One witness testified 
in February 2000:

          The Department of Justice supports efforts to enhance 
        our ability to remove individuals who have committed 
        acts of torture abroad. The department also recognizes, 
        however, that our current immigration laws do not 
        provide strong enough bars for human rights abusers. * 
        * * 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 would provide a 
stronger bar to keep human rights abusers out of the U.S. The 
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 inadmissible to the United States and removable. 
See 8 U.S.C. Sec. 1182(a)(2)(G) & (3)(E) and 
Sec. 1227(a)(4)(D). The bill would expand the grounds for 
inadmissibility and removability 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 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).

    The federal criminal code further defines ``severe mental 
pain or suffering'' 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 thislimitation is not 
consistent with the strong stance of the United States to promote 
religious freedom throughout the world. As Professor Aceves wrote:

        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 of a violator. This is a 
serious sanction that should not apply to individuals because 
of familial relationships. 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. Effective enforcement is also 
critical. 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. William J. Aceves, supra, at 689.

    The OSI's mission must be updated to ensure effective 
enforcement. The U.S. has long provided the template and moral 
leadership for dealing with Nazi war criminals. The OSI 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, and it provides an example of 
effective enforcement. Since the OSI's inception in 1979, over 
70 Nazi persecutors have been stripped of U.S. citizenship, 
almost 60 such individuals have been removed from the United 
States, and at least 165 have been denied entry.
    The 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, by a 
1979 Attorney General order, established the 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 
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.
    Not enough is being done about the new generation of 
international human rights abusers living in the United States, 
and these delays are costly. Such delays make documentary and 
testimonial evidence more difficult to obtain. Stale cases are 
the hardest to make. The mistakes of the past--when decades 
passed before Nazi war criminals who settled in this country 
were tracked down and brought to justice--should not be 
repeated. War criminals should find no sanctuary in loopholes 
in current U.S. 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 
INA, 8 U.S.C. Sec. 1103, by directing the Attorney General to 
establish the OSI within the Department of Justice with 
authorization to denaturalize any alien who has participated in 
Nazi persecution, torture, extrajudicial killing or genocide 
abroad. Not only would the bill provide statutory authorization 
for the OSI, 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 the OSI in hunting Nazi war criminals 
demonstrates the effectiveness of centralized resources and 
expertise in these cases. The 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 would 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.
    These are the sound policy and practical reasons why 
experts in this area recommend that the United States 
``establish an office in the Justice Department similar to the 
one that has tracked Nazi war criminals, with an exclusive 
mandate to carry out the task of investigation [of suspected 
human rights abusers].'' William Schulz, supra, at p. 24; see 
also United States of America: A Safe Haven for Torturers, 
supra, at 43 (recommending that an office be established within 
the Department of Justice ``to have primary responsibility for 
investigating and prosecuting cases of torture and other crimes 
under international law'').
    Professor Aceves, who has studied these matters 
extensively, has concluded that the OSI's ``methodology for 
pursuing Nazi war criminals can be applied with equal rigor to 
other perpetrators of human rights violations. As the number 
ofNazi 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. at 690.
    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.
    Significantly, the bill further directs the Attorney 
General, in determining what action to take against a human 
rights abuser seeking entry to or found within the United 
States, to consider whether a prosecution should be brought 
under U.S. law or whether the alien should be extradited to a 
country willing to undertake such a prosecution. Despite 
ratifying the Convention Against Torture in 1994 and adopting a 
new law making torture anywhere in the world a crime, federal 
law enforcement has not used this authority. In fact, one 
recent observer noted that ``the US has never prosecuted a 
suspected torturer; nor has it ever extradited one under the 
Convention Against Torture, although it has surrendered one 
person to the International Criminal Tribunal for Rwanda.'' 
William Schulz, supra, at p. 23-24.
    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).
    Finally, the bill directs the Attorney General, in 
consultation with the Secretary for the Department of Homeland 
Security, 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.

                     V. SECTION-BY-SECTION ANALYSIS

Sec. 1. Short title

    The bill may be cited as the ``Anti-Atrocity Alien 
Deportation Act of 2003.''

Sec. 2. Inadmissability and deportability 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 inadmissable 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 INA 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.
    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, 
including those with command responsibility. Command 
responsibility holds a commander responsible for unlawful acts 
when (1) the forces who committed the abuses were subordinates 
of the commander (i.e., the forces were under his control 
either as a matter of law or as a matter of fact); (2) the 
commander knew, or, in light of the circumstances at the time, 
should have known, that subordinates had committed, were 
committing, or were about to commit unlawful acts; and (3) the 
commander failed to prove that he had taken the necessary and 
reasonable measures to (a) prevent or stop subordinates from 
committing such acts, or (b) investigate the acts committed by 
subordinates in a genuine effort to punish the perpetrators. 
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 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 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 inadmissibility 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 inquestion occurred or where adjudication procedures 
within the Department of Homeland Security (DHS) or the Executive 
Office of Immigration Review were initiated prior to the time of 
enactment.

Sec. 3. Inadmissibility and deportability 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 (IRFA), 
to expand the grounds for inadmissibility and deportability 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 IRFA 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 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 
not 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 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.
    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 IRFA, 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. Waiver of inadmissibility

    Under current law, most aliens who are otherwise 
inadmissible may receive a waiver under section 212(d)(3) of 
the INA to enter the nation as a nonimmigrant, where the 
Secretary of State recommends it and the Attorney General 
approves. Participants in Nazi persecutions or genocide, 
however, are not eligible for such a waiver. Our bill retains 
that prohibition. It does allow for the possibility, however, 
of waivers for those who commit acts of torture or 
extrajudicial killings.

Sec. 5. Bar to good moral character, asylum and refugee status, and 
        withholding of removal for aliens who have committed acts of 
        torture, extrajudicial killings, or severe violations of 
        religious freedom

    Subsection (a) of this section amends section 101(f) of the 
INA, 8 U.S.C. Sec. 1101(f), which defines ``good moral 
character,'' to make clear that aliens who have committed 
torture, extrajudicial killing, or severe violation of 
religious freedom abroad do not qualify. Good moral character 
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.
    Subsections (b), (c) and (d) render persons who are 
inadmissible under sections 212(a)(3)(E) of the INA, 8 U.S.C. 
1182(a)(3)(E), ineligible for asylum, refugee status, or 
withholding of removal respectively. Indeed, those who 
havepersecuted or otherwise harmed other persons should not be 
permitted to seek the protection of the United States government.

Sec. 6. 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 affiliatated 
[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.
    Subsection (a) would first amend the INA, 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 denaturalize any alien who has 
participated in Nazi persecution, genocide, torture or 
extrajudicial killing abroad. This would not only provide 
statutory authorization for OSI, but also expand OSI's current 
authorized mission beyond Nazi war criminals.
    The second part of this subsection would require the 
Attorney General to consult with the Secretary of the 
Department of Homeland Security before making decisions about 
prosecution or extradition of the aliens covered by this bill.
    The third part of this subsection sets forth specific 
considerations in determining the appropriate legal action to 
take against an alien who has participated in Nazi persecution, 
genocide, torture or extrajudicial killing abroad. 
Significantly, 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 extradition to foreign 
jurisdictions that are prepared to undertake such a 
prosecution. Statutory and regulatory provisions to implement 
Article 3 of the Convention Against Torture, which prohibits 
the removal of any person to a country where he or she would be 
tortured, must also be part of this consideration.
    Subsection (b) authorizes additional funds for these 
expanded duties to ensure that OSI fulfills its continuing 
obligations regarding Nazi war criminals.

Sec. 7. Report on implementation of the Act

    This section of the bill would direct the Attorney General, 
in consultation with the Homeland Security Secretary, 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.

                           VI. COST ESTIMATE

    The Congressional Budget Office (CBO) estimates that 
implementation of S. 710 will cost $6 million annually from 
2003 through 2006, and $7 million from 2007 to 2008. The 
estimate is based upon (1) the assumption that the necessary 
amounts will be appropriated near the start of each fiscal year 
and that outlays will follow the historical spending pattern of 
the OSI, and (2) the authorization level on the 2003 
appropriations for the OSI, with adjustment made for 
anticipated inflation.

S. 710.--Anti-Atrocity Alien Deportation Act of 2003

    Summary: S. 710 would authorize the appropriation of such 
sums as necessary for the Office of Special Investigations 
(OSI), an office within the Department of Justice whose primary 
mission is to investigate and prosecute persons involved in 
Nazi persecutions during World War II. The bill also would 
amend the Immigration and Nationality Act to make aliens who 
commit acts of torture and certain other atrocities 
inadmissable to and deportable from the United States.
    Assuming appropriation of the necessary amounts, CBO 
estimates that implementing S. 710 would cost $31 million over 
the 2004-2008 period. This estimate assumes that funding would 
be adjusted each year for inflation.
    Enacting the bill would not affect direct spending or 
receipts. S. 710 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
(UMRA) and would not affect the budgets of state, local, or 
tribal governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 710 is shown in the following table. For 
this estimate, CBO assumes that the necessary amounts will be 
appropriated near the start of each fiscal year and that 
outlays will follow the historical spending pattern of the OSI. 
Estimated authorization levels are based on the 2003 
appropriation for OSI--about $6 million--with annual 
adjustments for anticipated inflation. CBO estimates that 
implementing S. 710 would have no significant effect on 
spending by the Bureau of Citizenship and Immigration Services 
because of the small number of cases affected. The costs of 
this legislation fall within budget function 750 
(administration of justice).

----------------------------------------------------------------------------------------------------------------
                                                                  By fiscal year, in millions of dollars--
                                                           -----------------------------------------------------
                                                              2003     2004     2005     2006     2007     2008
----------------------------------------------------------------------------------------------------------------
                                        SPENDING SUBJECT TO APPROPRIATION

OSI Spending Under Current Law:
    Budget Authority \1\..................................        6        0        0        0        0        0
    Estimated Outlays.....................................        6        1        0        0        0        0
Proposed Changes:
    Estimated Authorization Level.........................        0        6        6        6        7        7
    Estimated Outlays.....................................        0        5        6        6        7        7
OSI Spending Under S. 710:
    Estimated Authorization Level \1\.....................        6        6        6        6        7        7
    Estimated Outlays.....................................        6        6        6        6        7        7
----------------------------------------------------------------------------------------------------------------
\1\ The 2003 level is the amount appropriated for that year for OSI. A full-year appropriation for 2004 for OSI
  has not yet been enacted.

    Intergovernmental and private-sector impact: S. 710 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Estimate prepared by: Federal costs: Mark Grabowicz; Impact 
on State, Local, and Tribal Governments: Melissa Merrell; and 
Impact on Private Sector: Paige Piper/Bach.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    VII. REGULATORY IMPACT STATEMENT

    In compliance with paragraph 11(b)(1), rule XXVI of the 
Standing Rules of the Senate, the Committee, after due 
consideration, concludes that S. 710 will not have significant 
regulatory impact.

                     VIII. CHANGES IN EXISTING LAW

    In the opinion of the Committee, it is necessary, in order 
to expedite the business of the Senate, to dispense with the 
requirements of paragraph 12 of rule XXVI of the Standing Rules 
of the Senate (relating to the showing of changes in existing 
law made by the bill as reported by the Committee).

                                
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