[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).