Statement of Senator Patrick Leahy At Hearing of the House Judiciary Subcommittee on Immigration and Claims on H.R. 3058, "Anti-Atrocity Alien Deportation Act"

February 17, 2000

I would like to thank Representative Smith and Representative Jackson-Lee for holding this hearing on this important piece of legislation. In addition, I commend Representatives Foley and Ackerman for their leadership in moving this bill forward.

Senate Action. I introduced S. 1375, the Anti-Atrocity Alien Deportation Act, on July 15, 1999, in the Senate, where the bill is cosponsored by Senators Kohl, Lieberman and Levin. Senator Hatch and I subsequently included this legislative proposal in S. 1754, the Denying Safe Haven to International and War Criminals Act, which we introduced on October 20, 1999. S. 1754 passed the Senate unanimously on November 4, 1999. I am delighted that this legislation has garnered bipartisan support both in the Senate and the House, where the measure has been introduced by Representatives Foley, Franks and Ackerman as H.R. 2642 and H.R. 3058. War criminals have used loopholes in current law to enter and remain in this country. I have been appalled that this country has become a safe haven for those who exercised power in foreign countries to terrorize, rape, and torture innocent civilians. For example, three Ethiopian refugees proved in an American court that Kelbessa Negewo, a former senior government official in Ethiopia, engaged in numerous acts of torture and human rights abuses against them in the late 1970's when they lived in that country. The court's descriptions of the abuse are chilling, including whipping a naked woman with a wire for hours and threatening her with death in the presence of several men. The court's award of compensatory and punitive damages in the amount of $1,500,000 to the plaintiffs was subsequently affirmed by an appellate court. See Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996). Yet, while Negewo's case was on appeal, the Immigration and Naturalization Service granted him citizenship.

As Professor William Aceves of California Western School of Law has noted, this case reveals "a glaring and troubling limitation in current immigration law and practice. This case is not unique. Other aliens who have committed gross human rights violations have also gained entry into the United States and been granted immigration relief." In fact, the Center for Justice and Accountability, a San Francisco human rights group, has identified approximately sixty suspected human rights violators now living in the United States.

Unfortunately, criminals who wielded machetes and guns against innocent civilians in countries like Haiti, Chile, Yugoslavia and Rwanda have been able to gain entry to the United States through the same doors that we have opened to deserving refugees. We need to lock that door to those war criminals who seek a safe haven in the United States. To those war criminals who are already here, we should promptly show them the door out.

We have unwittingly sheltered the oppressors along with the oppressed for too long. We should not let this situation continue. We waited too long after the last world war to focus prosecutorial resources and attention on Nazi war criminals who entered this country on false pretenses. We should not repeat that mistake for other aliens who engaged in human rights abuses before coming to the United States. We need to focus the attention of our law enforcement investigators to prosecute and deport those who have committed atrocities abroad and who now enjoy safe harbor in the United States.

The Rutland Herald from my home state of Vermont got it right when it opined on October 31, 1999, that: "For the U.S. commitment to human rights to mean anything, U.S. policies must be strong and consistent. It is not enough to denounce war crimes in Bosnia and Kosovo or elsewhere and then wink as the perpetrators of torture and mass murder slip across the border to find a home in America."

Anti-Atrocity Alien Deportation Act closes these loopholes. The Immigration and Nationality Act currently 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 and deportable. See 8 U.S.C.§1182(a)(3)(E)(i) and §1227(a)(4)(D). This legislation would amend these sections of the Immigration and Nationality Act by expanding the grounds for inadmissibility and deportation to cover aliens who have engaged in acts of torture abroad.

"Torture" is already defined in the Federal criminal code, 18 U.S.C. § 2340, in a law passed as part of the implementing legislation for the "Convention Against Torture," under which the United States has an affirmative duty to prosecute torturers within its boundaries regardless of their respective nationalities. 18 U.S.C. § 2340A (1994). As defined in the federal criminal code, torture means any act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering upon another person within his custody or physical control. This could include prolonged mental harm caused by or resulting from the infliction or threat to inflict physical pain, threats to kill another person, or the administration of mind-altering substances or procedures calculated to disrupt profoundly the senses or personality of another person. Under this definition, torturers include both those who issue the orders to torture innocent people as well as those who implement those orders.

We need to update OSI's mission to ensure effective enforcement. Our country has long provided the template and moral leadership for dealing with Nazi war criminals. The Justice Department has a specialized unit, the Office of Special Investigations (OSI), which was created to hunt down, prosecute, and remove Nazi war criminals who had slipped into the United States among their victims under the Displaced Persons Act. Since the OSI's inception in 1979, 61 Nazi persecutors have been stripped of U.S. citizenship, 49 such individuals have been removed from the United States, and more than 150 have been denied entry.

OSI was created almost 35 years after the end of World War II and it remains authorized only to track Nazi war criminals. Specifically, when Attorney General Civiletti established OSI within the Criminal Division of the Department of Justice, that office was directed to conduct all "investigative and litigation activities involving individuals, who prior to and during World War II, under the supervision of or in association with the Nazi government of Germany, its allies, and other affiliated [sic] governments, are alleged to have ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion." (Attorney Gen. Order No. 851-79). The OSI's mission continues to be limited by that Attorney General Order.

Little is being done about the new generation of international war criminals living among us, and these delays are costly. As any prosecutor -- or, in my case, former prosecutor -- knows instinctively, such delays make documentary and testimonial evidence more difficult to obtain. Stale cases are the hardest to make.

We should not repeat the mistake of waiting decades before tracking down war criminals and human rights abusers who have settled in this country. War criminals should find no sanctuary in loopholes in our current immigration policies and enforcement. No war criminal should ever come to believe that he is going to find safe harbor in the United States.

The Anti-Atrocity Alien Deportation Act would amend the Immigration and Nationality Act, 8 U.S.C. § 1103, by directing the Attorney General to establish an Office of Special Investigations (OSI) within the Department of Justice with authorization to investigate, remove, denaturalize, or prosecute any alien who has participated in torture or genocide abroad. Not only would the bill provide statutory authorization for Office of Special Investigation, it would also expand its jurisdiction to authorize investigations, prosecutions, and removal of any alien who participated in torture and genocide abroad -- not just Nazis.

The success of OSI in hunting Nazi war criminals demonstrates the effectiveness of centralized resources and expertise in these cases. OSI has worked, and it is time to update its mission. The knowledge of the people, politics and pathologies of particular regimes engaged in genocide and human rights abuses is often necessary for effective prosecutions of these cases and may best be accomplished by the concentrated efforts of a single office, rather than in piecemeal litigation around the country or in offices that have more diverse missions.

I appreciate that this part of the legislation has proven controversial within the Department of Justice, but others have concurred in my judgment that the OSI is an appropriate component of the department to address the new responsibilities proposed in the bill. Professor Aceves, who has studied these matters extensively, has concluded that OSI's "methodology for pursuing Nazi war criminals can be applied with equal rigor to other perpetrators of human rights violations. As the number of Nazi war criminals inevitably declines, the OSI can begin to enforce U.S. immigration laws against perpetrators of genocide and other gross violations of human rights."

Similarly, the Rutland Herald recently noted that the INS has never deported an immigrant on the basis of human rights abuses, by contrast to OSI's active deportations of ex-Nazis, while maintaining a list of 60,000 suspected war criminals with the aim of barring them from entry. Based on this record, the Rutland Herald concluded that the legislation correctly looks to OSI to carry out the additional responsibilities called for in the bill, noting that:

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

Unquestionably, the need to bring Nazi war criminals to justice remains a matter of great importance. Funds would not be diverted from the OSI's current mission. Additional resources are authorized in the bill for OSI's expanded duties.

This bill has both bipartisan support and important endorsements. We must honor and respect the unique experiences of those who were victims in the darkest moment in world history. We may help honor the memories of the victims of the Holocaust by pursuing all war criminals who enter our country. By so doing, the United States can provide moral leadership and show that we will not tolerate perpetrators of genocide and torture, least of all here. The bill has been endorsed by the Anti-Defamation League, the Orthodox Union, the American Jewish Committee, the Center for Justice and Accountability, and the International Educational Missions' Commission on War Criminals in the United States.

I thank this Subcommittee for its consideration of the legislation and urge its prompt consideration by the full House of Representatives.