[Senate Hearing 110-548]
[From the U.S. Government Publishing Office]
S. Hrg. 110-548
NO SAFE HAVEN: ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATORS IN THE UNITED
STATES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 14, 2007
__________
Serial No. J-110-63
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
------
Subcommittee on Human Rights and the Law
RICHARD J. DURBIN, Illinois, Chairman
EDWARD M. KENNEDY, Massachusetts TOM COBURN, Oklahoma
JOSEPH R. BIDEN, Jr., Delaware JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island SAM BROWNBACK, Kansas
Joseph Zogby, Chief Counsel
Mary Chesser, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma,
prepared statement............................................. 92
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 1
prepared statement and attachment............................ 94
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 109
WITNESSES
Arce, Juan Romagoza, M.D., Executive Director, La Clinica del
Pueblo, Washington, D.C. (translated from Spanish by Sally
Hanlon)........................................................ 24
Forman, Marcy M., Director, Office of Investigations, Immigration
and Customs Enforcement, Department of Homeland Security,
Washington, D.C................................................ 6
Mandelker, Sigal P., Deputy Assistant Attorney General, Criminal
Division, Department of Justice, Washington, D.C............... 4
Merchant, Pamela, Executive Director, Center for Justice and
Accountability, San Francisco, California...................... 21
Scheffer, David, Mayer Brown/Robert A. Helman Professor of Law,
Northwestern University School of Law, Chicago, Illinois....... 19
QUESTIONS AND ANSWERS
Responses of Dr. Juan Romagoza Arce to a question submitted by
Senator Durbin................................................. 33
Responses of Marcy M. Forman to questions submitted by Senators
Kyl and Durbin................................................. 34
Responses of Sigal P. Mandelker to questions submitted by
Senators Durbin and Kyl........................................ 51
Responses of Pamela Merchant to questions submitted by Senators
Durbin and Kyl................................................. 60
Responses of David Scheffer to questions submitted by Senators
Durbin and Kyl................................................. 72
SUBMISSIONS FOR THE RECORD
Amnesty International USA, statement............................. 78
Arce, Juan Romagoza, Executive Director, La Clinica del Pueblo,
Washington, D.C., statement.................................... 88
Forman, Marcy M., Director, Office of Investigations, Immigration
and Customs Enforcement, Department of Homeland Security,
Washington, D.C., statement.................................... 98
Human Rights Watch, New York, New York, statement................ 105
Mandelker, Sigal P., Deputy Assistant Attorney General, Criminal
Division, Department of Justice, Washington, D.C., statement... 111
Merchant, Pamela, Executive Director, Center for Justice and
Accountability, San Francisco, California, statement........... 122
Scheffer, David, Mayer Brown/Robert A. Helman Professor of Law,
Northwestern University School of Law, Chicago, Illinois,
statement...................................................... 131
NO SAFE HAVEN: ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATORS IN THE UNITED
STATES
----------
WEDNESDAY, NOVEMBER 14, 2007
U.S. Senate,
Subcommittee on Human Rights and the Law,
Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 10 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Richard J.
Durbin, Chairman of the Subcommittee, presiding.
Present: Senators Durbin and Cardin.
OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Senator Durbin. This hearing will come to order. Welcome to
``No Safe Haven: Accountability for Human Rights Violators in
the United States.'' This is the fifth hearing of the Judiciary
Committee's recently created Subcommittee on Human Rights and
the Law.
Unfortunately, our Ranking Member, Senator Coburn, has a
scheduling conflict and will not be able to join us today, but
I can tell you based on previous hearings how strongly he feels
about the mission of this Subcommittee.
After a few opening remarks and a video, we will turn to
our valuable witnesses.
First, an update on the activities of this Subcommittee.
This is the first time in Senate history that there has been a
Subcommittee focused on human rights and the law. This year, we
held the first congressional hearings on the law of genocide
and child soldiers. We have also held hearings on human
trafficking and the impact of the so-called ``material
support'' bar on victims of serious human rights abuses coming
to and staying in the United States.
I want to thank Senator Patrick Leahy, the Chairman of the
Senate Judiciary Committee, for giving me the opportunity of
creating this Subcommittee and for being so supportive all
along the way.
I have been joined by Senator Coburn in proposing
legislation to hold accountable perpetrators who have committed
genocide, human trafficking, and the use or recruitment of
child soldiers. The Genocide Accountability Act passed the
Senate unanimously and, after being reported last week by the
House Judiciary Committee, is awaiting action on the House
floor. The Trafficking in Persons Accountability Act and the
Child Soldiers Accountability Act have both been reported
unanimously by the Senate Judiciary Committee. I look forward
to working with my colleagues to enact these proposals into law
as soon as possible.
I said at the outset that the purpose of this Subcommittee
was not lamentation but legislation. We need to enact laws that
will further our purposes rather than just lamenting either the
past or present state of the world.
Today is another first. This is the first ever
congressional hearing on the enforcement of human rights laws
in the United States.
The end of the last century was marked by horrific human
rights abuses in places such as Bosnia and Rwanda. The early
years of this century have seen ongoing atrocities committed in
places like Darfur and Burma. While a growing number of
perpetrators of human rights abuses have been held accountable,
a much larger number of perpetrators have escaped
accountability.
Some of these human rights violators have fled to the
United States. It is almost inconceivable that our Nation has
become a safe haven for some of the most notorious war
criminals. It is hard to believe that it has become a hideout
for these hideous henchmen who have been involved in war crimes
around the world.
A growing number of perpetrators of human rights abuses
have been held accountable in international, hybrid and state
tribunals. A much larger number have escaped.
In the Subcommittee's last hearing, we discussed how our
immigration laws prevent some victims of human rights abuses
from finding refuge in the United States. What a cruel irony
that we have constructed laws that exclude victims but somehow
have allowed those who are responsible for these hideous acts
to find sanctuary in our midst.
How we as a country treat suspected perpetrators of serious
human rights abuses in the United States sends an important
message to the world about our commitment to human rights and
the rule of law. The late Simon Wiesenthal, the world's leading
hunter of ex-Nazis and those who were involved in the
Holocaust, often said the appropriate response to human rights
violations is ``justice, not vengeance.''
I am going to show a brief but graphic video we created for
this hearing. I have always tried to do that so that we could
put our actions today in the context of recent history.
[Videotape played.]
Senator Durbin. Our country has a long and proud tradition
of providing refuge to victims of persecution. These victims
hope to leave behind the terrible abuses they have suffered in
their countries of origin and begin a new life in the United
States. They should not have to come across those who tortured
them, as Edgegayehu Taye did at the hotel in Atlanta, Georgia,
where she worked as a waitress. One day, she walked out of an
elevator and saw Kelbesso Negewa, the man who had supervised
her torture in Ethiopia, who was working as a bellhop at the
same hotel. These victims should not have to fear retaliation
or threat of retaliation for speaking out against those who
persecuted them, as one of our witnesses today, Dr. Juan
Romagoza Arce, and many like him have experienced.
I want to commend the Justice Department and the Department
of Homeland Security for their efforts to hold accountable
human rights violators who seek safe haven in our country. But
we have to do more. During today's hearing, we will explore
what the Government can do to identify, investigate, and
prosecute suspected perpetrators. We will also explore what the
U.S. Government is doing to prevent those perpetrators from
coming to the United States.
To my knowledge--and I will stand corrected if the
testimony shows otherwise--there has only been one indictment
in the United States of a suspected perpetrator for committing
a serious human rights abuse. That is unacceptable, and we have
to ask why. Why do so many suspected human rights abusers seek
safe haven in our Nation? Are we doing enough as a Government
and as a people with existing authority? Are new laws granting
our Government greater authority and jurisdiction necessary?
Torture is the only serious human rights violation that is
a crime under U.S. law if committed outside the United States
by a non-U.S. national. That is why Senator Coburn and I have
introduced legislation to give our Government authority to
prosecute individuals found in the United States who have
participated in genocide, human trafficking, and the use or
recruitment of child soldiers anywhere in the world. I hope
this hearing will shed light on whether additional loopholes in
the law hinder effective human rights enforcement.
The United States has a proud tradition of leadership in
promoting human rights. By holding perpetrators of serious
human rights abuses found in the United States accountable, we
will demonstrate our commitment to upholding the human rights
principles we have long advocated.
Now we turn to our first panel of witnesses for their
opening statements. I want to note for the record that, for
reasons I do not understand, our Subcommittee did not receive
the written statements from these witnesses until 5 p.m. last
night. Judiciary Committee rules require witness testimony to
be submitted at least 24 hours in advance of a hearing. Because
the subject matter of this hearing is so important, I want to
go ahead with these witnesses and their testimony, but I urge
them to provide their written statements in advance in the
future so we can at least review them and be in a better
position to ask important questions.
Each witness will have 5 minutes for an opening statement,
and their complete statements will be made part of the record.
First, we will swear in the witnesses, which is the custom
and tradition of the Committee. I would ask them both to stand.
Do you affirm that the testimony you are about to give before
the Committee will be the truth, the whole truth, and nothing
but the truth, so help you God?
Ms. Mandelker. I do.
Ms. Forman. I do.
Senator Durbin. Let the record reflect that both witnesses
answered in the affirmative.
Our first witness, Sigal Mandelker, is here to represent
the Justice Department. Since July of 2006, she has served as
Deputy Assistant Attorney General in the Criminal Division. She
oversees the Office of Special Investigations and the Domestic
Security Section--the two Justice Department offices with
primary responsibility for prosecuting serious human rights
violators. Since 2002, she has held a number of senior
positions in the administration, including counselor to the
Department of Homeland Security Secretary Michael Chertoff,
Counsel to the Deputy Attorney General, and Special Assistant
to then-Assistant Attorney General of the Criminal Division,
Michael Chertoff. Ms. Mandelker clerked for Supreme Court
Justice Clarence Thomas and Judge Edith Jones on the Fifth
Circuit Court of Appeals, received her bachelor's degree from
the University of Michigan and her law degree from the
University of Pennsylvania.
Ms. Mandelker testified at the Subcommittee's first
hearing, on genocide and the rule of law, so this is her second
appearance before us. Welcome back. The floor is yours.
STATEMENT OF SIGAL P. MANDELKER, DEPUTY ASSISTANT ATTORNEY
GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON,
D.C.
Ms. Mandelker. Thank you, Chairman Durbin, and thank you
for inviting me to testify today. It is a great honor to
testify before this Subcommittee once again to discuss what I
consider to be a mission of the highest importance. Both as the
Deputy Attorney General in the Criminal Division who oversees
two key participants in that mission--the Domestic Security
Section and the Office of Special Investigations--and also a
child of Holocaust survivors, I am pleased to address the
Department of Justice's ongoing efforts against the
perpetrators of genocide, war crimes, and crimes against
humanity. I am particularly pleased to testify alongside Marcy
Forman from ICE who has been a key partner in our efforts.
It is auspicious to testify before this Subcommittee today,
November 14th, a date of considerable importance both in the
perpetration and in the fight against human rights violations.
It was on November 14th of 1935 that the Third Reich issued the
first regulations implementing the notorious Nuremberg laws.
Exactly 10 years later, after millions had already been
massacred, the International Military Tribunal convened in
Nuremberg, Germany. And precisely a half-century later, history
repeated itself when the International Criminal Tribunal for
the former Yugoslavia issued its first indictments for genocide
arising out of the Srebrenica massacre.
With this history in mind, as you know, Mr. Chairman, we
are all compelled to think carefully and more strategically
about how we can best use our tools and resources to ensure,
first, that history does not repeat itself once again; and,
second, that human rights violators do not find refuge in this
country.
At the Department of Justice's Criminal Division, where I
work, we have five sections that work principally to accomplish
this mission. First, as I mentioned, the Domestic Security
Section and the Office of Special Investigations. We also have
the Office of International Affairs, the Office of Overseas
Prosecutorial Training, Development, and Assistance, and the
International Criminal Investigative Training Assistance
Program. We are continually taking new steps to enhance our
capabilities and to maximize our resources.
So, for example, we have recently refocused the mission of
the Domestic Security Section so that it now has two primary
missions: one, working on human rights violator cases; and,
two, working on immigration fraud cases. And, of course, there
is some overlap between the two.
Similarly, OSI has refocused its work to accomplish the new
mission that Congress gave us in 2004, namely, denaturalization
of individuals who commit genocide, extra judicial killings,
and torture. And the Assistant Attorney General for the
Criminal Division has recently appointed a senior counsel to
work principally on human rights-related issues.
Of course, we cannot accomplish this mission alone, and we
work very closely with the U.S. Attorney's Offices, ICE, and
the FBI, as well as the State Department.
We pursue this mission on multiple fronts. First, we seek
to prevent perpetrators from entering the country. Indeed, we
have helped the Department of Homeland Security in stopping
more than 180 suspected World War II criminals at U.S. ports of
entry and have prevented them from entering the country. As
recently as August of this year, for example, CBP inspectors at
JFK Airport prevented a former SS officer from entering the
United States. Among the Nazi perpetrators who have been
excluded is Franz Doppelreiter, a convicted Nazi criminal who
was stopped in November 2004 at the Atlanta airport. He
admitted under questioning at the airport that he had
physically abused prisoners at the notorious Mauthausen
concentration camp while serving in the SS.
Second, we take proactive measures to identify persons who
have, unfortunately, gained entry to the United States under
the misimpression that the United States will be a safe haven
for them. Where we can do so, we bring criminal charges or take
other appropriate law enforcement actions. Where we cannot
bring criminal charges or where justice would be better served
by ensuring that these individuals stand trial elsewhere, we
seek to arrest and extradite or transfer these individuals so
that they can stand trial abroad; or if they have become
citizens, to denaturalize them and accomplish their departure
through administrative removal proceedings.
Just recently, an immigration judge in Chicago ordered that
Osyp Firishchak be removed from the United States for his role
in a Ukrainian police unit that assisted in the annihilation of
over 100,000 Jews in Nazi-occupied Lvov, Poland, during World
War II.
Last, acting principally in conjunction with the Department
of State, we continue to take important initiatives aimed at
enhancing the capacity of foreign governments and international
tribunals to investigate and prosecute criminal cases against
participants in genocide, war crimes, and crimes against
humanity.
Each of these areas--identification, exclusion, criminal
prosecution, extradition, denaturalization, removal, and
foreign capacity building--form our comprehensive approach.
In conclusion, Mr. Chairman, I would like to express to you
and to the Subcommittee the Department of Justice's
appreciation for your leadership and this opportunity to
discuss the Government's ongoing efforts to ensure that justice
is aggressively pursued both here and abroad on behalf of the
victims of mass atrocities. We are very grateful for the tools
that Congress has provided us. Most important, we are committed
to continuing to expand our already vigorous efforts to promote
fulfillment of the tragically unkept promise of Nuremberg: that
no man, woman, or child anywhere will ever again be subjected
to the cruel ravages of genocide, war crimes, and crimes
against humanity.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Mandelker appears as a
submission for the record.]
Senator Durbin. Thank you, and thank you for your public
service. I can tell from your introduction that it extends
beyond your professional responsibility and certainly has
touched your family personally, so thank you so much.
Ms. Mandelker. Thank you, Mr. Chairman.
Senator Durbin. Our next witness, Marcy Forman, is here to
represent the Department of Homeland Security. Ms. Forman is
Director of the Office of Investigations for U.S. Immigration
and Customs Enforcement, known as ICE. In this capacity, she
oversees the Human Rights Violators and Public Safety Unit, the
Department of Homeland Security office with primary
responsibility for investigating suspected human rights
violators. Before taking this position, Ms. Forman was Deputy
Assistant Director of the Financial Investigations Division of
the ICE Office of Investigation. Ms. Forman has over 27 years
of law enforcement experience, a master's of science from
National-Louis University and a bachelor of science degree from
American University.
Thank you for joining us, and please proceed with your
testimony.
STATEMENT OF MARCY M. FORMAN, DIRECTOR, OFFICE OF
INVESTIGATIONS, IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT
OF HOMELAND SECURITY, WASHINGTON, D.C.
Ms. Forman. Thank you, Chairman. Before discussing our
Human Rights Violators Program, I would like to take you back
to July 16, 1995. On that date, eight men from an elite unit of
the Bosnian Serb Army participated in an almost unimaginable
atrocity in Srebrenica, a farm village in Bosnia and
Herzegovina. According to one of the perpetrators, between
1,000 and 1,200 male civilians were executed in a 5-hour
period. The civilians were lined in groups of ten to fifteen
and were summarily executed. The perpetrator, named Marko
Boskic, who is depicted on this poster to my right, was one of
the participants in this atrocity.
In late 2002, ICE special agents learned that Marko Boskic
was residing in the United States. This discovery resulted in a
nearly 2-year investigation conducted by ICE and the FBI and
substantiated Boskic's involvement in the murder of 1,000 to
1,200 civilians. In an interview, Boskic admitted that he
actually pulled the trigger resulting in the deaths of many
civilians. On July 12, 2006, Boskic was convicted of visa fraud
and later sentenced to 63 months in a Federal prison. Upon
completion of his sentence in the United States, it is
anticipated he will face charges for his atrocities in Bosnia.
It is my privilege to appear before you today to discuss
ICE's comprehensive efforts against human rights violators. ICE
is a U.S. law enforcement agency that is at the forefront of
investigating human rights violators involved with genocide,
torture, persecution, and extra judicial killings.
In 2003, ICE created the Human Rights Violators and Public
Safety Unit and the Human Rights Law Division to investigate
and litigate cases involving human rights violations.
Contributing to the ICE effort is our Victim/Witness Program,
which includes over 300 victim/witness coordinators who are
trained to address the needs of the victims of these horrific
acts.
ICE has over 140 active investigations and is pursuing over
800 leads and removal cases involving suspects from
approximately 85 different countries. These cases are
predominantly focused on Central and South America, Haiti, the
Balkans, and Africa, and represent cases in various stages of
investigation, prosecution, or removal proceedings. From fiscal
year 2004 to date, ICE has made over 100 human rights-related
arrests and obtained 57 indictments and 28 convictions. From
fiscal year 2004, ICE has removed 238 human rights violators
from the United States.
Due to the fact that human rights violations and atrocities
have occurred abroad, law enforcement is often unable to assert
U.S. jurisdiction for the substantive crime. In some cases, our
ability to apply criminal charges that could have been levied
in the U.S. may have expired due to the statute of limitations.
In these situations, ICE applies our administrative authorities
to ensure that human rights violators are investigated and
removed from the United States.
For example, in September 2005, the ICE office in Phoenix,
Arizona, investigated and arrested 20 former Bosnian Serb
military members who allegedly belonged to units that were
active during the Srebrenica massacre. The 5-year statute of
limitations relating to criminal visa fraud or false statements
had expired on seven of the 20 violators arrested. ICE was able
to use its administrative authorities to arrest and place the
seven offenders into administrative removal proceedings.
Successful human rights violations investigations and
prosecutions could not be achieved without partnering with
other law enforcement agencies, non-governmental organizations,
and foreign governments. These investigations require ICE to
travel the world to find evidence and locate and interview
victims and witnesses. ICE has established a global network
through over 50 ICE offices in 39 countries, which has allowed
us to foster strong international relationships. ICE partners
with many U.S. Government agencies, including the Department of
Justice, who is with us today.
ICE has established relationships with the United Nations-
sponsored International Criminal Tribunal for the Former
Yugoslavia and for Rwanda, and the Special Court for Sierra
Leone. As I speak before the Committee today, one member of my
staff, Richard Butler, is at the ICTY in The Hague, where he is
preparing to testify as a Subject Matter Expert on the role of
military forces and the responsibilities of their commanders
for war crimes that occurred in Srebrenica. Mr. Butler spent 6
years as a military expert at the ICTY, and ICE is fortunate to
now have him on our staff.
The following is another example that highlights our
international cooperation in human rights violations. On April
1, 2007, ICE arrested Ernesto Barreiro for visa fraud charges.
Barreiro, a former Argentine army officer, was wanted by
Argentinean authorities for commanding a clandestine torture
facility operated by the military in the 1970s. As the chief of
the La Perla detention camp, Barreiro is alleged to have been
involved in at least a dozen cases of torture, kidnapping, or
extra judicial killings. Barreiro was successfully prosecuted
in the Eastern District of Virginia and upon completion of his
sentence will be deported back to Argentina.
The results that ICE has obtained in human rights violators
cases often do not reflect the significant commitment of
resources and time to these types of investigations. These
cases are unique.
In most cases, the atrocities committed by the targets of
our investigations happened years or even decades earlier.
Many of the atrocities have occurred in remote locations
and have caused displacement of the victim population,
resulting in many victims and witnesses scattered around the
world.
Many cases rely on documentary evidence to show where
military or security units were located when atrocities were
committed. Foreign military or other government records are
often not available or, worse yet, have been destroyed. And law
enforcement must, therefore, attempt to identify victims or
witnesses wherever they may be.
Human rights violators represent the worst of humanity. ICE
is committed to dedicating the resources necessary to
investigate, present for prosecution, and remove from the U.S.
those individuals who have participated in these atrocities in
order to ensure that the United States does not become a safe
haven for human rights violators.
Thank you, and thank you for having me at this hearing.
[The prepared statement of Ms. Forman appears as a
submission for the record.]
Senator Durbin. Well, thank you both for your testimony,
and, without objection, Senator Leahy's statement for the
record will be entered into the official record of this
proceeding.
Ms. Forman, we are going to hear testimony today from Dr.
Juan Romagoza about horrific torture that he suffered in El
Salvador. A U.S. court held that two former Salvadorean
generals were responsible for his torture in a civil suit.
Today, those two individuals responsible for his torture are
living freely in Florida.
Why has the Department of Homeland Security not sought to
remove these human rights abusers from our country?
Ms. Forman. I am not totally familiar with those
circumstances. I would have to get back to you and get you an
answer on that question.
Senator Durbin. I hope you will.
Ms. Forman. I will.
Senator Durbin. Let me ask you, has the Department of
Homeland Security ever sought to remove someone from the United
States on the basis of his or her command responsibility for
serious human rights abuses like torture or extra judicial
killing?
Ms. Forman. I am not aware based on those conditions. I
know each case is evaluated on a case-by-case basis, but I do
not know specifically for that particular reason.
Senator Durbin. So do you know whether command
responsibility is taken into consideration as one of the
reasons for your Department to act?
Ms. Forman. I do not believe that is one of the conditions
at this time.
Senator Durbin. Can you tell me, do you know the reasoning
behind that?
Ms. Forman. No, I do not.
Senator Durbin. Ms. Mandelker, you testified that the
Justice Department is ``committed to bringing criminal
prosecutions against individuals for substantive human rights-
related violations.'' In December 2006, the Justice Department
indicted Chuckie Taylor for the crime of torture. I understand
this is the first indictment the Justice Department has ever
brought under the 1994 Torture Statute and the first it has
ever brought for a substantive human rights violation.
If our Department of Justice is committed to prosecuting
human rights cases, why have we only had one human rights
prosecution?
Ms. Mandelker. Mr. Chairman, that is a very good question,
and I can tell you that we are certainly committed to
investigating and prosecuting more of these cases. You may be
aware that we recently superseded in the Chuckie Taylor case
bringing charges related to additional victims and acts of
torture.
I can also tell you that it is often the case that these
sorts of cases are time-intensive, resource-intensive. They
principally involve--or really solely involved incidents that
occurred overseas, often distant in the past, and they involve
foreign documents. We have to undertake to translate those
documents, find witnesses. But we are committed to doing so.
Of course, we have brought charges against individuals who
we believe have committed human rights violations, whether we
have brought them for visa fraud--we have the Nazi program in
which we have denaturalized, I believe, over 100 individuals.
But from experience, we know these are difficult cases to
bring. What we are trying to do now at the Justice Department
is think through strategically how we can attack this problem
from a more sort of coordinated, and how can we ensure that we
are committing the resources that we need to, to bring
additional cases. That--
Senator Durbin. So--go ahead.
Ms. Mandelker. That is why, for example, as I mentioned, we
have refocused the mission of the Domestic Security Section.
That is why the Office of Special Investigations is taking on
this new mission, and we are taking that mission very
seriously.
Senator Durbin. So going beyond the obvious evidentiary
challenges and the challenges of having the staff to reach the
goal of a successful prosecution, do you face legal obstacles?
Ms. Mandelker. Sure, Mr. Chairman. As you know, first and
foremost we can only prosecute individuals based within a
particular time period, whether it is because of the statute of
limitations or we can only prosecute those individuals for
violations that occurred after enactment. So that in and of
itself would be a challenge.
Senator Durbin. We will have a suggestion from a later
witness here to eliminate from U.S. law all statutes of
limitation for atrocity crimes. What is your position on that
recommendation?
Ms. Mandelker. Mr. Chairman, I would have to get back to
you on that particular question. I do not know that we have a
formal administration view. But I am happy to take that
question back and to get back to you.
Senator Durbin. We will also have testimony that many
nations around the world, friends and allies of the United
States, have recently codified these war crimes and crimes
characterized as atrocities so that they can be prosecuted
within their own countries more effectively. Do you feel that
this would give you additional tools to deal with these
wrongdoers?
Ms. Mandelker. If we were to amend those current--
Senator Durbin. If we were to codify these war crimes as
crimes within the United States.
Ms. Mandelker. I see. Well, as you know, we do have a war
crimes statute. That statute only reaches U.S.--where the
perpetrator was a U.S. national or the victim was a U.S.
national.
Again, I would have to look at the specifics of a
particular legislative proposal. I am happy to do so. Certainly
it is going to be the case that if we have expanded statutory
authority, we would be able to potentially bring more charges.
But I cannot speak to any particular legislative proposal in
the abstract. We are happy to take a look at anything that you
would provide.
Senator Durbin. I mentioned the case of Dr. Romagoza, who
will be testifying, and it involved two former Salvadorean
generals who were found liable under civil law and who continue
to live in the United States without criminal prosecution. Has
the Department of Justice considered criminal prosecution
against these two individuals?
Ms. Mandelker. Mr. Chairman, I am not aware that we have
considered criminal prosecution. As with Ms. Forman, I am happy
to take a look at those circumstances. Of course, you need to
take a look at each case for its individual facts and
circumstances to make any kind of a determination as to whether
or not such a person would be eligible for prosecution under a
human rights violation.
Senator Durbin. I would like you to get back to me.
You testified about the case of Kelbessa Negewo--I am sorry
if I mispronounced it--who was accused of serious human rights
abuses in Ethiopia and found safe haven in Atlanta, Georgia.
Negewo was the first person to be charged under the 2004 law
making torture and extra judicial killing grounds for removal
from the United States.
How many other individuals have been charged under this
law?
Ms. Mandelker. I am sorry. Under the--
Senator Durbin. Under this law making torture and extra
judicial killing grounds for removal.
Ms. Mandelker. I would defer to my colleagues at the
Department of Homeland Security since that is a matter--
Senator Durbin. That is right. Ms. Forman, do you know?
Ms. Forman. I do not have a specific number, but we have
deported a number of individuals involved to their home country
for prosecution. The Bosnian case that I had mentioned, where
the seven of the 20 were removed for administrative
proceedings, two of those individuals are currently facing
prosecution in Bosnia.
Senator Durbin. Do either of you have any idea of a
reasonable range of the number of individuals in the United
States today who are suspected of involvement in war crimes?
Ms. Mandelker. I do not have a specific number, Mr.
Chairman. I think it would be--
Senator Durbin. Just an estimate. The video presentation
said 1,000?
Ms. Mandelker. Yes.
Senator Durbin. We will have testimony later that it is
larger. Do you have any idea?
Ms. Mandelker. I noted that number, and I wondered actually
where it came from, and I would be interested to see where it
came from. I can tell you that we have a number of ongoing
investigations into individuals who have become citizens and
have either potentially committed previously genocide, torture,
or extra judicial killings. But it would be inappropriate for
me to give you a number. I simply do not have one.
Senator Durbin. Ms. Forman, you testified that from fiscal
year 2004 to the present, ICE has made over 100 human rights-
related arrests, obtained 57 indictments, and 28 convictions,
and removed 238 human rights violators from the United States.
How many of those arrests, indictments, convictions, and
removals were for human rights violations? How many were for
immigration violations?
Ms. Forman. I would have to get back to you with the
specific numbers broken down that way. But I will tell you many
of these individuals--these cases are very difficult to prove,
the substantive violation. And on the criminal cases, more
often than not many of these individuals were charged with
either immigration fraud, visa fraud, or false statements.
Senator Durbin. My staff, incidentally, tells me, Ms.
Mandelker, that the number of 1,000 investigations and
deportation cases was provided by the Department of Homeland
Security.
I would like to ask you, Ms. Forman, in how many of the 238
removals did you obtain assurances that the suspected human
rights abuser would be prosecuted in his or her home country?
Ms. Forman. That, too, I will have to get back with you. We
have had successes, but I do not have a specific number for
you.
Senator Durbin. How large is the Human Rights Violators and
Public Safety Unit?
Ms. Forman. The headquarters component is approximately
five people, but our agents, we have approximately 5,600 agents
in our special agent in charge field offices. Many of those
individuals are assigned to work these cases.
Senator Durbin. How many at any given time would be
assigned to work these cases?
Ms. Forman. It all depends on--these cases are very
complex, so normally it would be--we would have a unit that is
dedicated, and the whole unit could be dedicated to the
investigation, if that is what it took, plus our foreign arm,
our foreign attache offices who are pursuing the leads for us.
Senator Durbin. Are we talking in terms of dozens or
hundreds?
Ms. Forman. On a particular individual, it usually is--if
we are searching for one or two, it could be two or three at
one given time, dedicated full-time to pursuing the
investigation.
Senator Durbin. Your estimate, your Department estimate, is
that we are talking about a possible range of 1,000 people who
could be investigated. When you look at all the ongoing
investigations at any given time in the Department of Homeland
Security, how many staffers would be dedicated to those
investigations?
Ms. Forman. Well, some of these investigations do not reach
our--due to statute of limitations, do not reach the criminal
level, so the criminal investigators--I mean, the cadre--we
have 26 special agent in charge offices. Each office has a
component that works these types of cases, and we have the
Human Rights Law Division in headquarters who addresses the
administrative removal.
Senator Durbin. Would there be more than 100 or fewer, at
any given time, involved in all of the investigations?
Ms. Forman. I would say the combination between the Legal
Division, the agents, and the detention removal folks, probably
at a given time about 100. It could be up to 100.
Senator Durbin. Ms. Mandelker, you testified that two lead
Justice Department offices in human rights enforcement are the
Office of Special Investigations and the Domestic Security
Section. How large is the OSI and how large is DSS?
Ms. Mandelker. The Office of Special Investigations has up
to 30 individuals on staff. That is a combination of lawyers,
historians who have become experts in the various regions,
paralegals and other administrative staff.
The Domestic Security Section has approximately 14 trial
attorneys.
Senator Durbin. How many DSS attorneys focus on enforcing
human rights laws?
Ms. Mandelker. Mr. Chairman, as I mentioned, we have
refocused recently the mission of the Domestic Security Section
along two fronts: one is the human rights violators front, and
one is immigration-related violations. At any given time the
number of trial attorneys assigned to any particular mission
might vary, but it is roughly, I would say, a 50/50 split.
That said, there is also often overlap. We also, of course,
work very closely with our colleagues in the U.S. Attorney's
Offices on many of these cases.
Senator Durbin. So about seven attorneys would be focused
on human rights violations?
Ms. Mandelker. That is approximately right.
Senator Durbin. Is it true that OSI's jurisdiction extends
only to denaturalization cases?
Ms. Mandelker. Civil and criminal denaturalization.
Senator Durbin. Has the Department considered creating an
office to focus exclusively on human rights enforcement?
Ms. Mandelker. Not that I am aware of, Mr. Chairman. But,
again, we have recently taken this move to refocus the Domestic
Security Section. I should mention that the Office of Special
Investigations has also recently assisted on some of the visa
fraud cases that we have brought against Bosnian Serbs who lied
on their immigration forms. So OSI is principally focused on
denaturalization, but we have participated in some other cases
as well.
Senator Durbin. Ms. Forman, you told us about this case of
Marko Boskic who was convicted of visa fraud. He had been
involved in the Srebrenica massacre involving a substantial
number of people, and it turns out that he was prosecuted for
visa fraud instead of serious human rights abuses.
I would like either one of you to tell me--probably Ms.
Mandelker would be appropriate. Why is it that the only thing
we could find to charge this man with was visa fraud? It is
reminiscent of convictions of Al Capone for tax fraud. It
sounds to me like we were searching for anything to find him
guilty of instead of the obvious. Why is that?
Ms. Mandelker. Mr. Chairman, I actually was not at the
Department at the time the charges were brought in the Boskic
case. You know, I can tell you that in any particular case we
look at the facts and circumstances and the possible charges
that we can bring, and we are, of course, always committed to
bring the most readily provable charges that would subject the
individual to the highest penalties. But I cannot comment on a
specific case.
Senator Durbin. Well, then, let's go to the general
question. Boskic admitted to killing many Bosnian civilians in
Srebrenica. Under current law, is it possible to prosecute
Boskic for these crimes in the United States?
Ms. Mandelker. Again, Mr. Chairman, it would very much
depend on the facts and circumstances of a particular case.
Senator Durbin. Well, OK. The crime did not occur in the
United States, and let's assume for the sake of discussion
there were no American victims. Could he be prosecuted in the
United States?
Ms. Mandelker. If there were no American victims or they
were not perpetrated by a U.S. national, sitting here today, it
is difficult for me to come up with a potential charge that we
could charge him with.
Senator Durbin. So if the crime were genocide of Bosnian
nationals committed by a Bosnian who was seeking safe haven in
the United States, you do not believe we have a law that we
could prosecute him for.
Ms. Mandelker. That is correct, Mr. Chairman.
Senator Durbin. I see that Senator Cardin is here, and I
have gone way over 5 minutes, and I want to give him a chance
to ask before I ask a few more questions. Senator Cardin?
Senator Cardin. Well, first, Senator Durbin, thank you for
holding this hearing. One of the reasons I was so pleased about
the creation of this Subcommittee was to be able to focus on
the human rights issues and how we can be more effective in
dealing with human rights internationally.
I certainly am very concerned about the issue you raised in
your last question about America being a safe haven for those
who have committed human rights violations in another country,
then tried to avoid accountability by coming to our own
country. That is unacceptable, and I thank you for your
leadership in pursuing bills that deal with that.
I want to deal with one of the bills that you are the
sponsor of, and that is the trafficking issue. In trafficking,
the United States has taken a strong international leadership
position. I am very proud of the work that has been done in the
OSCE, the Helsinki Commission, on promoting strong enforcement
of laws to fight trafficking and to have zero tolerance in
regards to trafficking.
My question basically deals with the difficulty in
sometimes dealing with the receiving countries. The United
States is a receiving country of people who are trafficking,
and I know that we have strong laws to deal with that. But I
come back to the point as to whether our laws are effective in
dealing with all of the players that are involved in
trafficking and whether we can strengthen those laws. Senator
Durbin has a bill to do that. And what has your experience been
as far as effectively being able to investigate international
networks which the United States is part of in trafficking of
women or trafficking of labor?
Ms. Mandelker. Senator Cardin, as you may know, the
responsibility for trafficking lies within two divisions of the
Department of Justice:
The Civil Rights Division, which is responsible for the
trafficking of adults, and they are also responsible for forced
labor cases. So I would defer to the Civil Rights Division with
respect to part of that question.
We also have in the Criminal Division the Child
Exploitation and Obscenity Section, which is responsible for
child sex trafficking. And we have brought a number of
trafficking cases that we actually consider to be domestic
prostitution cases, which also qualify as child sex trafficking
cases.
We certainly need to do more. As you are probably aware, it
is often the case that these are extremely difficult cases to
bring because much of the activity, in fact, occurs overseas.
We work very closely with ICE in that mission. We are committed
to doing those cases. They are very important cases.
In fact, I was recently in Bangkok, Thailand, and I had a
briefing on sex tourism. These are terrible, terrible crimes.
These children, whether in the United States, brought into the
United States, or victimized overseas, are among the most
vulnerable victims, children who are subject to sexual
exploitation. They are difficult cases, but they are well worth
the resources when you think about the victims, when you think
about helping them can get on the course to a better life, and
when you think about the need to bring these traffickers to
justice so that they cannot victimize children again.
Senator Cardin. Well, I agree completely with what you just
said. I would feel a little more comfortable, though, if you
could outline what additional tools would be helpful, either in
change of law so that some of the venue issues or limitation
issues that may be hindering your ability to pursue these cases
are more effectively handled by our laws; and, second, whether
you have the resources necessary, considering the complexity of
these types of cases, they multi-state jurisdictional; and,
last, whether we need stronger attention in the international
diplomatic areas to pursue these types of cases.
It has been brought to my attention that in some of the
trafficking cases it has not gotten the type of attention in
the country in which the traffickers originate, and that
whether we need to put more international diplomacy to these
issues.
Ms. Mandelker. Senator, as to your latter question, as I am
sure you are aware, the State Department is, in fact, very
engaged internationally in terms of bringing attention to this
important issue. And we also have, of course, within the
Criminal Division individuals who participate in training
overseas. We work cases with our partners, law enforcement
partners overseas. I think, frankly, that Congress is a very
important and strong partner in this effort because we must all
collectively send the message that this activity will not be
tolerated. The more cases that we bring, frankly, the more
publicity that we bring to light on these types of cases, the
more that individuals understand that there is accountability
if they do commit these terrible crimes. I think it is very
important that we collectively send that public message.
With respect to resources, of course, we are very grateful
for the resources that the Congress has given to the Department
of Justice, and we are committed to using those resources
effectively and to dedicating the appropriate resources to
these sorts of cases.
With respect to legislation, I sitting here today cannot
give you a formal position on any particular piece of
legislation, but we are always happy to work with the Congress
on looking at legislation and looking at changes to the law if
necessary.
Senator Cardin. And please do not misconstrue my questions.
I am proud of the leadership that the United States has played
on fighting trafficking. I think we have raised this issue at
the highest levels internationally, have placed high priority
on it, have made significant progress internationally in
dealing with it, have changed the attitudes within our military
facilities where they are located in the host countries to deal
with the issues. So I think we have done a lot to bring this
issue forward. But I think more can be done, and I would very
much encourage the type of activity within your agency to give
us help as to where are the problems you are confronting and
what we can do to try to deal with that. This is a continuing
effort, and we need to continuously raise these issues.
There are a lot of countries that we have very friendly
relations with that are not doing what they need to do in this
area.
Thank you, Mr. Chairman.
Senator Durbin. Thank you very much, Senator Cardin.
Ms. Forman, I understand that ICE is developing a Human
Rights Tracking Center to collect information on human rights
abusers and war criminals. What does the Department of Homeland
Security currently do to ensure that human rights violators do
not enter the country in the first place?
Ms. Forman. We work collectively with our partners. The
center that we are proposing to create--we have not created it
yet--would be a one-stop shopping for human rights violators, a
repository. So the subject matter experts, the attorneys, the
historians, the investigators, and all other relevant parties
would be in one spot, and it would be a repository for a list
that have already been identified all over the world of human
rights violators so we can address it at the front end before
these individuals working with our foreign counterparts, with
the State Department, with our partners at DHS and DOJ to
ensure these individuals do not get visas to come into this
country.
Senator Durbin. Ms. Mandelker, you testified that extensive
efforts have been made to identify and exclude participants in
genocide and other heinous mass atrocity crimes. You stated
specifically that our Government has successfully stopped more
than 180 suspected World War II criminals at the border. How
many modern-day war criminals has our Government stopped at the
border?
Ms. Mandelker. Chairman Durbin, I would have to defer to
CBP for that answer. We are--
Senator Durbin. CBP would be?
Ms. Mandelker. Customs and Border Protection, since they
are responsible for the entrants at ports of entry. However, I
do know that we are continually working to try to identify more
individuals who can be entered into the border control system
to ensure that such individuals are not permitted to enter the
country. We certainly can and must do more, and we are thinking
through carefully how we can enhance the number of individuals
who are indeed entered into those systems.
Senator Durbin. Ms. Forman, can you answer that question?
Ms. Forman. No. I would have to get back to you.
Senator Durbin. OK. The premise of this hearing is that,
unfortunately, as Senator Cardin also noted, the United States
has become a safe haven for notorious war criminals. That is
certainly something that is a matter of great concern to all of
us.
Do you share my concern, after listening to your responses,
of how limited our commitment is to changing this? When we talk
about a handful of lawyers at the Department of Justice, or no
more than 100 people in your Department of Homeland Security
involved in this, I am afraid it leads one to believe that this
is not a serious commitment. And when we hear of the obvious
gross injustice of two Salvadorean generals who have been found
liable in a civil court for torture, living safely in Miami
without prosecution, it has to lead me to the conclusion that
we are not serious about this. If we were serious, I think our
laws would be changing. I think there would be more people
focused on it.
Would you like to tell me I am wrong?
Ms. Mandelker. Well, Mr. Chairman, I share your strong and
deep commitment to this issue, and what I can tell you is that
within my capability and within my resources, we are dedicating
a number of individuals in this fight. There is no question
that it is unacceptable for this country to be a safe haven for
human rights violators, and so we are, again, constantly
thinking strategically how we can maximize our resources.
So, for example, while I have a limited number of attorneys
in the two sections that I noted--and, of course, we do have
three other sections who work principally overseas who are also
committed to this issue and are doing a lot of very good work--
we need to export our expertise to the U.S. Attorney's Offices.
And so we are thinking about--or we are putting together a
training course so that we can enlist additional U.S.
Attorneys, prosecutors, to this fight. We do have a number of
Assistant U.S. Attorneys who have been very helpful in this
endeavor, but we need to maximize--there is no question that we
need to maximize our resources. There is no question that we
need to do more training. And I am particularly pleased,
frankly, Mr. Chairman, to be at the Department of Justice at
this time when there is a Subcommittee that is so dedicated to
this issue and where we have the capability to expand our
capabilities.
But I share your concern, Mr. Chairman.
Senator Durbin. Ms. Forman?
Ms. Forman. What I can comment is when ICE has these types
of investigations--I mentioned the 5,600 special agents--we
will dedicate all the necessary resources to go after these
individuals, both domestic and foreign, and what it takes to
track these individuals down, certainly recognizing that we
have human trafficking responsibilities and so forth. But there
are cases we will dedicate the resources necessary to go after
these individuals.
Senator Durbin. Thank you, and--
Senator Cardin. Could I ask a question, if you would yield?
Senator Durbin. Certainly.
Senator Cardin. Thank you. Because I understand your
efforts to deport individuals who come in under fraudulent
circumstances, and the laws are pretty clear about that. If you
have the resources, you can be successful in dealing with that,
including those who have been naturalized as far as their
citizenship is concerned.
But Senator Durbin asked a question a little bit earlier
that had me concerned, and that is, if you have a non-American
who is in this country who has committed or is alleged to have
committed a human rights violation that would be a violation of
our laws, but not involving an American, that we would be
limited as to what we could do to hold that person accountable
under current law. And there are bills here that strongly
support holding accountable individuals who have violated
international human rights standards, war crimes, genocide,
those types of activities. I am concerned that just by allowing
that person to leave our country, that person may escape
accountability.
Now, I am sensitive to the issues that we have with other
countries as to their sovereignty and the right to prosecute in
their countries and our relationships with other countries and
how Americans will be treated in other countries. But it seems
to me that when we are dealing with serious human rights
violations, we need to strengthen our ability to hold
criminally accountable those who have committed war crimes,
particularly where the native country is not prepared to do
that.
So I just really want to underscore the point that Senator
Durbin has said. I hope that we can work together to figure out
how we can come up with the strongest possible laws in this
country, consistent with our international obligations, to make
it clear that the United States will not only we will prevent a
safe haven for those who have committed human rights
violations, but will hold accountable individuals who are under
our control, they are in our country, who have violated
international norms, who have committed war crimes, genocide
and other types of human rights violations that are--not only
do we want them out of our country, we want them held
accountable. We want these people held accountable.
Thank you, Mr. Chairman, for that, but I wanted to make
sure that point is clear in our record, that it is not just
deporting these individuals or taking away their naturalized
citizenship. It is holding them accountable for the violations
of human rights.
Senator Durbin. Senator Cardin, thank you, and thanks to
Ms. Forman and Ms. Mandelker for being our first panel at this
important hearing. We are going to continue to work with you. I
hope that you will get back to us. We will send you some
written questions, and I hope you will get back to us on some
of the questions that you needed additional time to prepare
answers.
Thank you very much.
Ms. Forman. Thank you.
Ms. Mandelker. Thank you.
Senator Durbin. I now invite our second panel to the table.
While they are taking their seats, I am going to give an
introduction for each of them in the interest of time. Included
in this panel is Ambassador David Scheffer, the Mayer Brown/
Robert A. Helman Professor of Law, and Director of the Center
for International Human Rights at Northwestern University
School of Law. From 1997 to 2001, Ambassador Scheffer was the
U.S. Ambassador at Large for War Crimes Issues. In this
capacity, he negotiated and coordinated U.S. support for the
establishment and operation of international and hybrid
criminal tribunals and U.S. responses to atrocities throughout
the world. He also headed the Atrocities Prevention Inter-
Agency Working Group. Ambassador Scheffer recently held
visiting professorships at Northwestern Law, the highly
respected Georgetown University Law Center, and George
Washington University Law School. He graduated from Harvard
College, Oxford University, and the Georgetown University Law
Center.
Our next witness in the panel will be Pamela Merchant.
Since 2005, Ms. Merchant has been the Executive Director of the
Center for Justice and Accountability, a nonprofit legal
organization dedicated to ending torture and other severe human
rights abuses. She spent 8 years as a Federal prosecutor with
the U.S. Department of Justice. Recently, she was Special
Counsel to the California Attorney General. Ms. Merchant
graduated with honors from Georgetown University and Boston
College School of Law. We thank her for joining us.
And our final witness is Dr. Juan Romagoza Arce, the
Executive Director of La Clinica del Pueblo, a public health
clinic which provides free, comprehensive health care and
education services to the poor and uninsured in Washington,
D.C. Dr. Romagoza was born in El Salvador and, as part of his
medical training, set up medical clinics and provided health
education to the underserved in the poor areas of San Salvador
and neighboring communities.
In December 1980, Dr. Romagoza was detained and tortured
for 22 days at the National Guard headquarters in San Salvador.
His torture has permanently deprived him of his ability to
perform surgery. After his release from prison, he fled El
Salvador and arrived in the United States in 1983.
In 1999, Dr. Romagoza and two co-plaintiffs brought a civil
suit against Generals Garcia and Vides Casanova for torture and
other human rights abuses. In July 2002, a Federal jury
returned a verdict against the generals, holding them
responsible for the torture of Dr. Romagoza and his fellow
plaintiffs.
Dr. Romagoza has received many awards, including the
Community Health Leadership Award from the Robert Wood Johnson
Foundation, and was named one of Washingtonian Magazine's
Washingtonians of the Year in 2005 for his work with La Clinica
del Pueblo.
It is an honor to have you, Doctor, as well as the other
witnesses on this panel, before us today. And as I mentioned
earlier, it is customary for us to administer an oath. I ask
you all to please stand and raise your right hand. Do you
affirm the testimony you are about to give before the Committee
will be the truth, the whole truth, and nothing but the truth,
so help you God?
Mr. Scheffer. I do.
Ms. Merchant. I do.
Dr. Romagoza. I do.
Senator Durbin. Thank you very much. The record will
indicate that you answered in the affirmative.
Professor Scheffer, before you start, I read your
statement, and I also read the accompanying document, over 30
pages. But it was very good, and I thank you for it. It really
put a number of issues in perspective and helped me in
preparing questions for the earlier witnesses. I would now like
to invite you to speak for about 5 minutes. Your entire
statement will be made part of the record, and then we will
follow with the other two members of the panel before we ask
questions.
STATEMENT OF DAVID SCHEFFER, MAYER BROWN/ROBERT A. HELMAN
PROFESSOR OF LAW, NORTHWESTERN UNIVERSITY SCHOOL OF LAW,
CHICAGO, ILLINOIS
Mr. Scheffer. Thank you. I wish to thank you, Chairman
Durbin, and Senator Coburn and Senator Cardin and all the other
members of this Subcommittee for this opportunity.
Senator Durbin, I am very proud to live and work in
Illinois. I understand that Senator Coburn is unable to be with
us today, but I want to note for the record that I take great
pride in being born and raised in Norman, Oklahoma.
From 1997 to 2001, I was the Ambassador at Large for War
Crimes Issues. While I served and in the years since, I always
maintained that war crimes work is and must remain nonpartisan
and bipartisan, and I believe this Subcommittee proves that
point in spades.
After all that has been experienced since the precedents of
the Nuremberg and Tokyo Military Tribunals and the scores of
cases prosecuted by the international criminal tribunals during
the last 15 years, one would be forgiven to assume that surely,
in the United States, the law is now well established to enable
U.S. courts--criminal and military--to investigate and
prosecute the full range of genocide, crimes against humanity,
and war crimes--what I call ``atrocity crimes''--that have been
codified in treaty law, prosecuted before the international
criminal tribunals, and well established as customary
international law. That, however, is not the case. The fact
remains that as we approach 2008, the United States remains a
safe haven under too many circumstances for perpetrators of
atrocity crimes.
Unfortunately, U.S. Federal criminal law has become
comparatively antiquated during the last 15 years in its
coverage of atrocity crimes as international criminal law has
evolved significantly during that period. The prospects of U.S.
courts exercising jurisdiction, whether it be subject matter,
territorial, personal, passive nationality, or protective
jurisdiction, over atrocity crimes under current law remain
relatively poor. In contrast, the United Kingdom, Australia,
Canada, Germany, New Zealand, Argentina, Spain, and South
Africa have leapt ahead of the United States in terms of their
national courts being able to investigate and prosecute the
full range of atrocity crimes. France, Japan, Mexico,
Switzerland, Finland, Sweden, Brazil, and Norway are in the
process of legislating incorporation of atrocity crimes into
their respective criminal codes.
Under too many scenarios, the United States remains an
available safe haven for war criminals and atrocity lords who
need not fear prosecution before U.S. courts for the commission
of atrocity crimes if they reach U.S. territory, either legally
or illegally. The notable exception has been the sole case, the
Emmanuel ``Chuckie'' Taylor case, prosecuted under the criminal
torture statute.
But there has been some progress. I applaud the bipartisan
work of this Subcommittee during 2007 with the Genocide
Accountability Act, the Child Soldiers Accountability Act, and
the Trafficking in Persons Accountability Act. This set of
legislation, if enacted into law, would close critical gaps in
U.S. law regarding the current inability to prosecute such
crimes under certain circumstances.
Unfortunately, this legislation composes only a fraction of
atrocity crimes. Generally absent from U.S. law is the kind of
jurisdictional regime that would provide the most pragmatic
sphere of coverage to ensure that perpetrators of atrocity
crimes cannot find safe haven in the United States. Current
U.S. law in atrocity crimes typically exhibits a narrow range
of jurisdiction covering actions of U.S. citizens, although not
necessarily if such action takes place abroad, or crimes which
occur on U.S. territory. I will summarize my recommendations as
follows:
The United States must eliminate any possibility that it
would remain a safe haven for war criminals and atrocity lords
who reach American shores and seek to avoid accountability for
atrocity crimes.
Two, enact the Genocide Accountability and Child Soldiers
and Trafficking in Persons Accountability Acts of 2007 so that
key gaps in Federal law are filled.
Three, eliminate from U.S. law most or all statutes of
limitations for atrocity crimes.
Four, amend the Federal criminal code so that it enables
Federal criminal courts to more effectively and unambiguously
prosecute crimes against humanity and war crimes that are
already codified in the statutes of the international and
hybrid criminal tribunals and are defined as part of customary
international law.
Finally, recognize that until such amendments to Title 18
of the U.S. Code are enacted, the United States has an
antiquated criminal code. Further recognize that the United
States stands at a comparative disadvantage with many of its
major allies which have modernized their national criminal
codes in recent years with incorporation of the atrocity crimes
in part so as to shield their nationals from investigation and
prosecution by the International Criminal Court by
demonstrating national ability to prosecute such crimes and,
thus, invoke the court's principle of complementarity.
Paradoxically, even as a non-party to the Rome Statute of
the International Criminal Court, the United States today
essentially stands more exposed to its jurisdiction than do
American allies which have modernized their criminal codes.
Such modernizing exercises also reflect their pragmatic choice
to minimize the exposure of the nationals of such nations to
the scrutiny of international criminal tribunals because
national courts will be able to carry that responsibility.
My final comment: Filling the gaps in American law
pertaining to atrocity crimes would demonstrate that the United
States has the confidence to reject impunity for such crimes.
The United States would no longer be a safe haven in reality or
as a potential destination for untold numbers of perpetrators
of atrocity crimes. Amending and thus modernizing Title 18 in
the manner proposed in this testimony would signal the end to
exceptionalism in atrocity crimes and place the United States
on an equal footing with many of its allies which already have
recast their criminal law to reflect the reality of
international criminal and humanitarian law in our time.
Thank you, and I would be happy to take any questions.
[The prepared statement of Mr. Scheffer appears as a
submission for the record.]
Senator Durbin. Thank you, Professor, and we will have
questions when we have completed this panel.
Ms. Merchant, as I mentioned earlier, is with the Center
for Justice and Accountability, and I note in her background
that she is the winner of the third Thomas J. Dodd Prize in
International Justice and Human Rights. I am sure that Chris
Dodd, who is so proud of his father's service to our country,
and recently published a book relative to correspondence that
his father sent back from Nuremberg, will be glad to know that
you are here, and I will tell him that. So please proceed with
your statement.
STATEMENT OF PAMELA MERCHANT, EXECUTIVE DIRECTOR, CENTER FOR
JUSTICE AND ACCOUNTABILITY, SAN FRANCISCO, CALIFORNIA
Ms. Merchant. Thank you very much. Chairman Durbin, Senator
Cardin, thank you so much for inviting the Center for Justice
and Accountability and our client, Dr. Juan Romagoza Arce, to
testify before this historic Subcommittee on Human Rights and
the Law. It is truly an honor to be here today, and thank you
so much for your leadership on this very, very important issue.
The Center for Justice and Accountability is a nonprofit
legal organization dedicated to ending torture and seeking
justice. In the past 10 years, we have brought cases in the
United States against human rights abuses from Bosnia, Chile,
China, El Salvador, Haiti, Honduras, Indonesia, Peru, and
Somalia. Therefore, we have a very unique perspective on this
issue and ability to offer insights here today.
We were founded by a torture treatment therapist who had a
client who had been in a Bosnian detention camp and suffered
extraordinary re-traumatization when he ran into his torturer
in San Francisco. So the basis of our work is to provide an
access for survivors to be able to confront their abusers and
hold them accountable in court.
As the Chairman has noted, the United States is a country
that, while we have been particularly welcoming to survivors of
torture, we also have become a haven for human rights abusers.
It is estimated that over 400,000 survivors of politically
motivated torture currently reside in the United States and
that roughly 1,000 human rights abusers are here as well. And
these abusers often live in the exact same community as their
victims, which causes extreme anxiety and undermines justice
and accountability movements in their home country.
I would like to briefly address three of the issues that I
raised in my written testimony: One is the need for more
criminal prosecution; two is the importance of command
responsibility theory of liability in criminal prosecutions and
removal proceedings; and then some suggested legislative
reforms.
The United States should make the criminal prosecution of
human rights abusers, either in the home country of the human
rights violator or in the United States, a top priority. Today,
as we have heard, the vast majority of human rights enforcement
efforts in this country are removals and related prosecutions
for lying on immigration forms.
Criminal prosecutions are the most important form of
accountability for victims of human rights abusers. The
strongest message that the United States can send to human
rights abusers around the world is that we will criminally
prosecute them here when their home country will not. The fact
that there has been only one case brought under the criminal
torture statute in 13 years is troubling, and this needs to
change.
The next basis for prosecution, which we support if the
criminal laws are inadequate, is for lying on immigration
forms. That should be a second step.
Finally, if there are inadequate grounds for prosecution,
then deportation should be considered, but only in the context
of the broader human rights agenda. A threshold consideration
always should be whether the reintroduction of the human rights
abuser to his or her home country will result in further
violence or further destabilize that country. For example, we
recently opposed efforts to send a death squad leader back to
Haiti because we felt that he would further destabilize the
country and because they do not have a sufficient functioning
judiciary in place to prosecute human rights abusers.
The next issue is command responsibility. Command
responsibility is a well-established theory of liability which
covers military officers or civilian superiors who knew or
should have known about abuses that took place under their
command and failed to take steps to stop the abuses or punish
the offenders. This is a standard that has been applied in
criminal cases in the United States, and it has been applied
internationally and in civil cases. Real deterrence cannot be
achieved unless these officials perceive that they may be held
individually accountable, not just for committing the abuses
themselves but for their failure to take reasonable action to
stop others under their command from doing so.
To that end, all criminal and human rights law should allow
for the prosecution of those with command responsibility.
Legislation which strengthens the rules regarding subordinates
while allowing those with command responsibility for human
rights abuses to live in this country sends the wrong message
about our commitment to human rights.
Further, in situations where removal or deportation is an
appropriate remedy, we also should have a commitment to subject
people with command responsibility to removal proceedings. We
believe that the 2004 changes to the Immigration and
Nationalization Act cover those who had command responsibility.
Nonetheless, the Department of Homeland Security has failed to
initiate removal proceedings against known human rights abusers
in the United States with command responsibility. You will hear
powerful testimony today from Dr. Romagoza about his torture
and the fact that the two generals who were found responsible
at trial and had command responsibility over those that were
responsible for Dr. Romagoza's torture are still living in
Florida.
We urge the Department of Homeland Security to interpret
provisions of the INA that make the command responsibility for
the commission of torture and extrajudicial killings a ground
for removal. And if they are not able to do that, then we
invite Congress to amend the INA to include clearer language on
command responsibility.
Finally, to supplement what Ambassador Scheffer just said
about the need for strengthening the current statutory
framework, the leadership that this Committee, has shown by
filing the three bills Senator Durbin mentioned is an extremely
important step toward addressing this concern. I would like to
add a couple other points.
There should be a criminal law on the books for the crime
of extrajudicial killing. There should also be one on the books
for crimes against humanity. These are well-established,
international crimes that have been around since Nuremberg.
And, finally, the application of all these human rights laws
need to be retroactive. There should not be an ex post facto
concern for torture, extrajudicial killing, genocide, and
crimes against humanity. These are all crimes that have been
considered crimes since Nuremberg. If the application of these
laws are not retroactive, the United States will remain a safe
haven for those abusers who arrived here before, at least with
the torture statute, before 1994.
Thank you very much, and I am happy to answer any
questions.
[The prepared statement of Ms. Merchant appears as a
submission for the record.]
Senator Durbin. We will have some questions. Thank you, Ms.
Merchant.
Dr. Romagoza, thank you so much for being with us today. I
read very carefully your statement and have learned a lot about
your background. You have endured things which few, if any of
us, could ever endure. It is inspiring to me that, despite all
of the suffering that you have been through in your life, you
have dedicated your life to reducing the suffering of the poor
here in our Nation's capital, and I thank you so much for being
with us today.
I understand you have a translator with you, and you are
now welcome to give your testimony.
STATEMENT OF JUAN ROMAGOZA ARCE, EXECUTIVE DIRECTOR, LA CLINICA
DEL PUEBLO, WASHINGTON, D.C. (TRANSLATED FROM SPANISH BY SALLY
HANLON)
Dr. Romagoza. First of all, thank you. I want to
congratulate the Chairman of the Committee, Senator Durbin, and
also Senator Coburn and Senator Cardin, as well as the other
members of this Subcommittee. Thank you for this opportunity to
speak and especially to speak on behalf of the thousands of
torture survivors who now live in this country and who cannot
be with us today.
I am a surgeon, a surgeon who cannot exercise his specialty
of surgery. And the tools of a surgeon are his hands. But my
hands have become useless as a result of the tortures.
Today I will share with you my own personal story as a
survivor, and I will give you my own personal perspective, give
you my own point of view on being held responsible or
accountability for crimes and torture.
My story begins on December 12, 1980. On that day I was
carrying out my profession and doing surgery for some of the
rural communities of the poor in El Salvador when troops of the
National Guard opened fire on the crowd there. And they also
shot me in the foot. They grazed me with their bullets as well,
and they detained me. They accused me of being a ``subversive
leader'' because of the equipment and tools that I had,
medical-surgical tools. And on that day and the next 22 days
after it, I underwent unspeakable tortures at the hands of
members of the National Guard of El Salvador. I was tortured
with electric shocks three or four times a day in my ears, my
tongue, my testicles, anus, and along the edges of my wounds.
And those electrical shocks ended only when I fell into
unconsciousness. And they forced me to come to by kicking me
and applying cigarette burns to my body. They sodomized me with
foreign objects, and they also gave me additional beatings and
the experience of asphyxia with a hood over my head that
contained calcium oxide. And throughout that whole time, I also
suffered waterboarding. They called it the ``bucket of water.''
And I can tell you from my own personal experience that there
is no room for doubt here. Yes, waterboarding is torture. And I
was tortured sufficiently so that I could never return to my
chosen career as a surgeon. They broke my arm with a shot in
the left arm. They cut my fingers, making me lose the normal
functioning and the use of those. And throughout this whole
time, they never gave me any medical care for the wounds I
suffered.
And finally, thanks to God and to the efforts made by my
family, they released me. But I was forced to flee from El
Salvador. I came here to the United States where I did receive
asylum, and I am now a U.S. citizen. And two of the men
responsible for my tortures, General Garcia, the Minister of
Defense at that time, as well as General Carlos Eugenio Vides
Casanova, he was the General Director of the National Guard,
and both of them moved here to South Florida. They are
permanent residents here. Now they live comfortably, legally,
and openly in South Florida.
In July of the year 2002, I, together with some courageous
co-plaintiffs, brought them to court, brought them to trial.
That was in the U.S. Federal court through the help of the
Center for Justice and Accountability. And, finally, I had the
chance to come before the justice system and give my testimony
against these generals and to speak to a U.S. jury about the
tortures that I had endured. And the jury heard that truth, and
they found the generals responsible, granting to me and my co-
plaintiffs compensatory damages of $54.6 million. And I know
that we will never see those $54.6 million. But that wasn't
what mattered to me. What mattered to me was this opportunity,
this chance to confront in a Federal tribunal these human
rights violators, and the value of this case is immense to me.
And this is why I want to share with you a special moment for
me during this case before the generals. The fact is that I
felt a great strength or power coming over me. I felt myself in
the bow of a huge ship and that there were people behind me,
immense numbers of people. And they were rowing behind me,
bringing me closer and closer to this moment. And I did not
want to look back because I felt that if I did, I would weep,
because I would see again the wounded ones, the tortured, the
raped, the naked, the torn, the bleeding ones, as I saw them in
the prisons of the National Guard in El Salvador. But I did
feel the strength that they gave me, their support, their
energy.
And so to be part of this case and to have this opportunity
to confront those generals for these terrible crimes provided
me with the very best possible therapy that a survivor can
have, that positive therapeutic value as a result of this civil
remedy made available to me under the law on protection of
torture victims. At the very least, they provided--they gave me
my day in court, another day of life.
Having to confront my torturers in a legal tribunal was one
of the most difficult and important things that I've done in my
entire life, one of the moments when I was most proud. But,
nevertheless, my story and my efforts for justice are not over.
These generals continue to live up here in the United States.
They have not had to confront the possibility of their being
deported. They have not been tried in a penal court, either in
the United States or in El Salvador. And until that day comes,
I will not be silent.
Thank you for hearing me.
[The prepared statement of Dr. Romagoza appears as a
submission for the record.]
Senator Durbin. Dr. Romagoza, thank you so much. This Human
Rights and the Law Subcommittee has had many touching stories
told by witnesses, and yours has truly touched our heart. I
could not help but think as you were telling your story how
painful and difficult it must have been to get up this morning
and dress and come to tell this story again, to remember the
painful details of the torture, and to share this with so many
people, not only in this room but across America. It must have
been a difficult morning preparing for this journey.
I could not help but think as you testified of how this
morning might have started for these two generals in Florida,
in the soft breezes of South Florida, drinking coffee and
reading the paper and going about their business under the
protection of the United States of America. If this Judiciary
Committee is about justice, that is wrong. It is wrong that you
would have faced this horrible treatment by people who have
been found responsible in the courts of our land and we still
provide protection for the people responsible for it.
I hope we can change that. I hope this hearing is in some
way the beginning of a process that will seize your courage in
testifying at that trial and then testifying today and lead us
to do what needs to be done to restore justice in our own
country.
I would like to ask you, Doctor, if you could tell me--I
read your statement about the courage it took for you and your
plaintiffs to come forward. If these generals were to be
deported back to El Salvador for trial, what do you think would
happen? Have there been trials of those who have been
responsible for similar crimes in El Salvador?
Dr. Romagoza. Unfortunately, the conditions are not yet
there for getting justice from these crimes that occurred over
the 1980s and 1990s in El Salvador. In 1992, they declared a
law of amnesty, and that was the Salvadoran Government that
made that happen to avoid any trials having to do with the
human rights violations of the 1980s and 1990s. And the United
Nations, in its followup on the Peace Accords, recommended
bringing to trial those--so that if they were to go back to El
Salvador, there would be no problem, there is no case been
brought yet, and it has been kind of ensured that it not be
brought.
Senator Durbin. Thank you.
Dr. Romagoza. But there is an effort now and a concern for
doing away with the amnesty law.
Senator Durbin. Ms. Merchant, thank you to your center for
helping Dr. Romagoza and giving him a chance to be here today.
He describes in his statement one general whose office was just
a few feet away from the prison cell where he was being
tortured. And you raised this issue of command responsibility,
which I asked about earlier and did not get a complete answer
to. Is this the kind of case that you are thinking of, where
the general may not have been directly involved in the torture,
but may have responsibility similar to what we found at
Nuremberg after the Holocaust?
Ms. Merchant. Yes, exactly.
Senator Durbin. Currently, is there a provision in the law
of the United States allowing the prosecution of these two
generals who are responsible in a command capacity for Dr.
Romagoza's torture?
Ms. Merchant. No. One of the questions is whether you could
use the torture statute and interpret it in a broader way. The
argument can be made that you could, the way that we did when I
was a white-collar prosecutor, because obviously we always went
up the chain of command in a company. But the Government's
position so far has been that they cannot. And in a separate
issue about whether or not these generals can be deported under
the new section of the INA, which includes torture and
extrajudicial killing as a means for a removal, our reading of
that language is that it would cover command responsibility.
But our understanding is that the Government does not accept
that interpretation.
Senator Durbin. I will come back with additional questions
after Senator Cardin.
Senator Cardin. Thank you very much.
Dr. Romagoza, I also want to join with our Chairman in
thanking you for being here. We hear numbers all the time about
victims of torture and the numbers of people, and we sort of
glaze over the numbers. But when you see the actual person,
when you realize that each victim is a person who has family
and is personally impacted by what has happened, it brings it
home a lot clearer to us. Thank you very much for your courage
to appear before our Committee.
Professor Scheffer, I want to ask you a question in regards
to a role that you played in your former life in regards to the
Rome Statute of the ICC, the International Criminal Court. Let
me preface the question by saying that I have the honor to
represent the United States in the OSCE Parliamentary Assembly
as a Vice President, and I am not sure whether I am attacked
more because of Guantanamo Bay or our position on the ICC. It
is about equal. And I guess Guantanamo Bay has taken over the
lead recently, but I think maybe in a way they are related.
I had questions, you had questions about the United States
joining the ICC. But you raised those in a positive way rather
than just withdrawing. We have now withdrawn, and I understand
the risks involved in the ICC as it was moving forward. But it
seems to me that when we are looking at what we are going to do
with the detainees in Guantanamo Bay, it may have been helpful
if we had an ICC we could turn to, to deal with some of those
international crimes against humanity.
So I just really want to get your thinking as to the
credibility of the United States today in dealing with crimes
against humanity in an international forum, whether we have
suffered as a result of the way that Guantanamo Bay has been
handled, the ICC has been handled, and other issues of late.
Mr. Scheffer. Thank you, Senator. I think the credibility
of the United States has been degraded considerably. I have
seen this folloing my Government service over the last 7 years
when I go overseas. It is very, very difficult to be in
discussions with foreign colleagues and not be on the complete
defensive with respect to what we had thought, at least when I
had the privilege of serving in Government, we were in the
leadership role of, which was to ensure the proper prosecution
of these crimes by building the international criminal
tribunals for the former Yugoslavia, for Rwanda, for Sierra
Leone. That all happened in the 1990s, the negotiations and the
follow-through on those tribunals.
And with the International Criminal Court, President
Clinton's expressed objective stated in 1995 was that by the
end of the 20th century, there would be standing a permanent
International Criminal Court. My job was to make sure, A, that
it was the right kind of court and, B, do everything possible
to see if the United States could be part of that court.
We had certain questions. It was a negotiation. We had
certain issues that clearly were of concern to us as that court
was being structured. But by the end of the Clinton
administration on December 31, 2000, we had rectified most of
those issues, and we were able to sign the Rome Statute. We
became a signatory to the Rome Statute. For me, that was, quite
frankly, my proudest day in Government service when I was able
to, under plenary power from the President, sign that statute.
Since then, of course, we had the unsigning on May 6th of
2002, and we must ask: do we want to be standing on the moral
high ground on this issue? Or do we want to slip down the
slopes and have to be in a position where we are constantly
clawing our way back up, if possible? I think what has happened
in recent years is that by not being part of that process,
other nations, in fact, have been able to assume the leadership
on international justice, and in addition to that, they are in
the driver's seat in terms of the development of the law, which
used to be our specialty. From Nuremberg onwards, we were in
the driver's seat. We are not in the driver's seat anymore.
Other nations have taken that position. It is simply because we
are not in the room. We are not there representing our views.
We are not bringing all of the skills and expertise of our
Justice Department and of our Department of Defense attorneys
to bear on these issues.
So I think it is a serious problem, and I would close my
comment with this: The problem with Guantanamo, Senator, is
that you either have officials who are cognizant of how
important these particular crimes are in international
society--crimes against humanity, war crimes, genocide--and
they operate knowing that there is an International Criminal
Court and international criminal tribunals which are litigating
these issues every single day. The law is evolving within these
tribunals every single day. So if you set up a Guantanamo and
you put some prisoners in there, you either act with knowledge
of all that is occurring in these courts as to how these crimes
are to be considered, how they are to be interpreted, how
individuals are to be brought to justice with respect to the
infraction of these particular crimes, or you act in ignorance
of them.
And what I see so often with Guantanamo and in Iraq and
Afghanistan is this: It is as if we do not have a full
knowledge of all of these legal developments that are taking
place that would inform our decisionmaking as we go step-by-
step in how we detain prisoners, how we bring them to justice,
how we basically handle the threats that they pose to us.
All of that is being dealt with in international courts and
in the foreign courts of other countries now. But we seem to be
falling behind.
Senator Cardin. I just might point out that the
recommendations of the 9/11 Commission patterned some of your
concerns by saying that we should be seeking international
support for the manner in which we handle detainees and seeking
international standards for that.
I think we have a real dilemma now at Guantanamo Bay. We
have individuals who clearly we are holding without giving them
the rights of criminal defendants. And if we had an ICC we
could turn to, we might very well be able to make significant
progress against terrorism as being crimes against humanity.
But instead we are handling it in isolation.
Mr. Scheffer. If I may, Senator, it is an excellent point.
In 2009, there will be a review conference of the Rome Statute
of the International Criminal Court where the statute can be
open for amendment. One of the crimes that we know will be on
deck will be the crime of aggression, a crime that we should
have incredible interest in and focus on.
When I was the Ambassador, I actually enjoyed going to all
of the discussions about how to bring the crime of aggression
into the statute because we had a lot of friends at the table
with us about how do you properly structure the definition and
the trigger for that crime. We were never isolated on that
issue. But we have been absent for 7 years from those working
group discussions. I fear for where they may lead without our
being back at the table. We cannot be at the table unless we
are a state party to the Rome Statute in 2009.
One of the other crimes that is available for consideration
in 2009 and which was mandated in Rome in 1998 for
consideration at the first review conference is the crime of
international terrorism. Now, whether it will actually be on
deck in 2009, whether all the prep work will have been done, is
still very, very questionable. But the fact is the United
States could actually take the lead and say we want
international terrorism on deck, we want to have it properly
defined, we want to be able to have a forum in which the
leaders of these terrorist organizations can actually be
brought to justice.
I want to share Ms. Merchant's views entirely on command
responsibility, which, by the way, I did not stress in my
testimony simply because it is so self-evident now in
international criminal law. These tribunals actually focus on
the commanders. They do not go after the foot soldiers or the
machete wielders. They go after the commanders because they
only have a certain range of resources, and, of course, they
want to go to where the decisions are being made to actually
unleash these crimes. So the defendants before the tribunals
are, in fact, at the command level, and the statutes of the
tribunals provide for jurisdiction over the commanders.
Senator Cardin. It seems obvious, I think, to all of us,
except for those who are charged today with prosecuting our
torture statutes or enforcing our immigration laws.
Thank you, Mr. Chairman.
Senator Durbin. Thank you very much.
Before I ask Professor Scheffer a question, I want to say
to Ms. Merchant and Dr. Romagoza, I am going to send a letter
to the U.S. Attorney in the Southern District of Florida and
ask officially what action is going to be taken against these
two generals. I would like to hear this response. If he tells
me he does not have the authority, I think it is a compelling
argument for us to change the law. If he has the authority and
is not going to use it, it is a compelling argument to change
the U.S. Attorney.
Let me ask you this, Professor Scheffer: This testimony and
statement that you have given us suggests this kind of
progression from Nuremberg forward, where the United States
through the Geneva Conventions and other means expanded the
notion of war crimes and the authority of the United States to
deal with them.
Then there is a clear break on page 19 where you talk about
the Military Commissions Act of 2006, and the following page,
where you make reference to the President's Executive order of
July 20, 2007. You characterize these as ``regression.''
Tell me what you mean by that. In other words, if this was
a break in what had been America's historic tradition relative
to human rights and war crimes, what was changed by those two
things?
Mr. Scheffer. Let me start with the Executive order, if I
may, and sort of walk back.
The Executive order, which we have only had a few months of
experience with now, addressed what had happened in the
Military Commissions Act with Common Article 3 of the Geneva
Convention. This was a very standard formulation that had been
around ever since the 1948 Geneva Conventions whereby certain
fundamental violations of human rights were to be subject to
the responsibility of states to ensure that these violations
did not take place, whether it be an internal conflict in civil
war or through various jurisprudence that has emerged. National
government statements since then have confirmed that, those
general principles of Common Article 3, also which were
articulated and expanded in Protocol II of 1977, have become
applicable to international conflicts as well. We do not have a
debate anymore about whether or not Common Article 3 is really
relevant to internal or international conflicts. It is
generally relevant to both.
The War Crimes Act of 1996, as amended in 1997, brought
Common Article 3 into enforceability in this country. We were
several decades late in doing so under the Geneva Conventions,
but we did do it in 1997 with the amendment to the War Crimes
Act.
What happened with the Military Commissions Act, which was
all in the context of Guantanamo and the individuals who are
detained in Guantanamo, was to essentially say: we are going to
take Common Article 3 seriously; we are going to provide very
specific definitions for the infractions under Common Article
3; but in doing so, the law was amended to extract from Federal
law certain violations that we had established as criminal in
1997. And the ones that were extracted are the ones that you
might logically think could be charged with respect to our
performance in Guantanamo. That is to me the disturbing
character to what happened in the MCA.
What happened further in the President's Executive order is
that he alone is empowered under the MCA to interpret Common
Article 3 and the Geneva Conventions. That itself was
disturbing because one would have thought, with all due
respect, that the U.S. Congress under the Constitution has the
power to define offenses against the Law of Nations. I would
say that is a pretty powerful interpretive tool on the part of
the legislative branch.
Senator Durbin. Dr. Romagoza talked about actions taken in
El Salvador to create an amnesty for those who were responsible
for his torture. Was there a provision in the Military
Commissions Act relative to amnesty for those who were
perpetrators, potentially perpetrators of torture?
Mr. Scheffer. Well, there was no provision addressing the
issue of amnesty, in other words, saying that if you had an
amnesty you would be free from any possible prosecution under
the MCA. But let me just say on the amnesty issue, Senator, it
is a very good point. It is sometimes more of a policy issue
than a legal issue, this issue of amnesty. I remember from my
years in the Clinton administration my colleagues at the White
House sometimes would turn and say, ``Look, David, we have got
a dicey situation overseas. Let's not forget that amnesty may
be a tool that is needed to resolve an armed conflict.''
Granted, that is true. It is sometimes very necessary. But
the way the law has evolved is, yes, amnesty for low-level
perpetrators from international or domestic prosecution is
often times a possible tool that you need on the table in order
to reach a peace agreement. We have lots of debates about that
in academia, but sometimes it is a tool.
The issue, though, that we have reached by the year 2007,
Senator, is it is simply intolerable and unacceptable in the
21st century for there to be an amnesty at the command level
for the commission of atrocity crimes.
Senator Durbin. Is it not true that the Military
Commissions Act had a retroactive definition of some forms of
interrogation and detention?
Mr. Scheffer. Oh, yes. I am sorry. Yes.
Senator Durbin. And would that not in practical terms
affect the liability--
Mr. Scheffer. That is a de facto amnesty. I am sorry. I
misunderstood your question. I was focusing on foreign
amnesties. It is a perfect point. The MCA is de facto an
amnesty bill or law for infractions of the War Crimes Act of
1996 between 1996 and 2006. It is an amnesty bill.
Senator Durbin. It is hard to imagine that we have reached
this point. The debate in this room over the appointment of the
last Attorney General brought this issue front and center
again, and it will continue.
I hope that this is the beginning of some conversation
within the U.S. Senate about laws that we need to change so
that we no longer serve as a safe haven for the abusers of Dr.
Romagoza and so many others. And I hope that we will also
dedicate resources far beyond what was described today to this
issue. This is going to be a long, tortuous journey for the
United States to reclaim its international image after what we
have been through. But I trust in our values and I trust in our
people, and I trust that ultimately we will, that America will
come to understand that even great nations can make great
mistakes. And in this case, we have made some.
By and large, I believe that the traditions of Nuremberg
and Geneva are still good, solid American traditions that we
value, and I hope that we can prove that with our laws and with
our actions in the months and years to come.
Your testimony today was so important. Thank you, Doctor,
again, and your translator. Very good. Even though I do not
speak Spanish, I thought you did a great job.
Ms. Hanlon. OK.
Senator Durbin. Ms. Merchant, thank you for all that you do
at the Center for Justice and Accountability. Professor
Scheffer, thank you for being here today.
This Subcommittee will stand adjourned. We will leave the
record open for 10 days for the submission of questions and
answers by members of the panel.
[Whereupon, at 11:55 a.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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