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Intra- And Inter-Agency Cooperation In The Investigation And Litigation Of Cases Involving Modern Human Rights Violators

by Stephen J. Paskey

I. Introduction

From the beginning of the Office of Special Investigations' (OSI) existence in 1979, cooperation between OSI and other offices and agencies, including the U.S. Attorneys' Offices (USAOs), has been an important factor in the successful prosecution of civil denaturalization cases against persons who assisted in Nazi persecution. In each of those cases, OSI has received valuable assistance from immigration authorities (previously Immigration and Naturalization Service (INS), now Department of Homeland Security (DHS)) during the investigation phase, and from the USAOs during subsequent litigation in the federal courts. The flow of expertise and assistance, however, has not been a one-way street. OSI continues to reach out to the USAOs to offer its assistance and expertise in civil and criminal cases involving the illegal procurement of naturalized U.S. citizenship and other matters, including those involving suspected terror-linked individuals.

Despite the assistance provided by DHS and the USAOs, to a great degree, OSI has been self-reliant in the World War II cases. OSI possesses the expertise and resources needed to pursue each case from the initial investigation through a trial and any appeals. In cases involving post-World War II human rights violators, however, the situation will be very different.

The World War II cases involved countries in western and eastern Europe, while the modern cases involve a far greater number of countries, as well as relatively recent conflicts. As a result, modern investigations present a much broader range of factual issues. The State Department (State) and components of the intelligence community may have an interest in the underlying circumstances and/or significant information about an investigative subject. In many of the modern cases, it may be possible for the U.S. Government to pursue criminal prosecution, either for human rights abuses committed overseas (under the torture statute at 18 U.S.C. 2340A), or for offenses committed during the process of obtaining a visa or naturalization (such as false statements and/or the unlawful procurement of citizenship in violation of 18 U.S.C. 1425). Because the abuses committed under Nazi authority during World War II were not prosecutable under U.S. laws when they were committed, the criminal prosecution of OSI's World War II subjects for any such offenses has not been an option. In addition, in all but a few World War II cases, the statute of limitations has expired on any action involving the illegal procurement of citizenship in violation of 18 U.S.C. 1425 or other fraud-related offenses committed during the naturalization process.

Consequently, the successful investigation and litigation of the modern cases will require extensive cooperation and coordination, both within the Department of Justice (Department) and between the Department and other federal agencies. The discussion that follows is intended to give the reader an overview of key issues relating to this cooperation, the role of the USAOs in the modern cases, and the assistance that OSI can provide to USAOs in other types of cases involving the illegal procurement of U.S. citizenship.

II. The legal framework for the modern cases

The legal framework for the investigation and litigation of cases involving the unlawful procurement of U.S. citizenship arises from provisions contained in Titles 8 and 28 of the United States Code. The Secretary of Homeland Security (the Secretary) is charged with the administration and enforcement of U.S. immigration and nationality laws, including the investigation of civil and criminal cases involving any person who has illegally procured U.S. citizenship. See INA 103, 8 U.S.C. 1103 (detailing the Secretary's authority). See also 8 C.F.R. 340.2 (discussing investigation of matters involving unlawful naturalization). As with other criminal matters, the Federal Bureau of Investigation (FBI) has investigative authority for criminal violations of U.S. immigration and naturalization laws-in this instance, an authority that runs concurrently with that of DHS. See 28 U.S.C. 533 (outlining the authority of FBI officials, and noting that other agencies may have concurrent investigatory authority).

In general, responsibility for the litigation of such cases (whether criminal or civil) rests with the U.S. Attorneys. Pursuant to 28 U.S.C. 547, the U.S. Attorneys are directed to prosecute all criminal offenses against the United States, and all civil actions "in which the United States is concerned." Moreover, with regard to civil denaturalization cases, the INA expressly provides that "[i]t shall be the duty of the United States attorneys . . . to institute proceedings" for the denaturalization of any naturalized citizen residing in their district whose U.S. citizenship was illegally procured or procured by concealment of a material fact or wilful misrepresentation. See INA 340(a), 8 U.S.C. 1451(a).

For the past twenty-five years, however, civil denaturalization cases involving persons who took part in Nazi-sponsored acts of persecution have been handled differently. As discussed elsewhere in this issue, in 1979 the Attorney General issued an order directing that OSI shall have the responsibility to "investigate and take legal action" to denaturalize and deport persons who assisted in Nazi persecution. See Order No. 851- 79 (Sept. 4, 1979). With the passage of new legislation, OSI now also has authority to investigate and take legal action in cases involving modern human rights violators. As amended by the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Pub. L. No. 108-408 5501-06, 118 Stat. 3638 (2004), the INA provides that OSI has authority "to detect and investigate, and, where appropriate, take legal action to denaturalize" any naturalized person who assisted in genocide, Nazi persecution, torture, or extrajudicial killing committed abroad under color of foreign law. See INA 103(h)(1), 8 U.S.C. 1103(h)(1); INA 212(a)(3)(E), 8 U.S.C. 1182(a)(3)(E).

In enacting the new provisions concerning human rights violators, Congress noted that priority should be given to the criminal prosecution of such persons, or their extradition to a foreign jurisdiction that is prepared to undertake prosecution. INA 103(h)(3), 8 U.S.C. 1103(h)(3). Congress also specified that, in making determinations concerning criminal prosecution or extradition, the Attorney General must consult with the Secretary. INA 103(h)(3), 8 U.S.C. 1103(h)(3).

Taken together, these various provisions implicate the involvement of multiple components within both the Department and DHS in any case involving the unlawful procurement of U.S. citizenship by a modern human rights violator. The interests of other federal agencies arise from the nature of their own missions, such as State's role in foreign affairs and the intelligence agencies' responsibility for gathering and analyzing foreign intelligence.

III. The organizational framework for intra- and inter-agency cooperation

As the preceding statutory framework makes clear, close cooperation between interested offices and agencies is essential for the successful investigation and litigation of cases involving the unlawful procurement of U.S. citizenship by modern human rights violators. To that end, the Department and DHS have spearheaded the creation of an ad hoc interagency working group to facilitate the coordination of federal law enforcement efforts in such cases. Through an extensive series of meetings that began in early 2005, this interagency working group has begun to develop procedures for gathering and sharing information about human rights violators, and for determining what measures should be taken by which federal components in individual cases. The group has also undertaken an effort to revise various immigration and naturalization forms, as needed, to ensure that applicants provide sworn answers to appropriate questions about their activities abroad before they are granted benefits under the INA. False statements may, of course, provide a basis for denaturalization and/or criminal prosecution.

Within the Department, current participants in this group include representatives from OSI and several other components of the Criminal Division, as well as the FBI. DHS has been represented by officials from Citizenship and Immigration Services and both legal and investigative offices within the agency's Bureau of Immigration and Customs Enforcement (ICE). The other participating agencies are the Central Intelligence Agency and State, the latter of which has been represented by the Office of the Ambassador at Large for War Crimes Issues, as well as by consular officials. Additional agencies and components have been, and will continue to be, consulted and invited to participate as appropriate.

In addition to these interagency efforts, the Criminal Division has formed an internal working group to coordinate investigations and information sharing, as well as criminal and civil prosecutions. That group is comprised of senior managers and attorneys from OSI, the Domestic Security Section (DSS), the Counterterrorism Section (CTS), and the Office of International Affairs (OIA) (all of whom also participate in the interagency group). Any matter that is referred to, or otherwise comes to the attention of, any one of these Department components is shared with the other components, and each such matter is then reviewed for potential investigation, criminal prosecution, extradition, and/or civil denaturalization proceedings. Depending on the circumstances, this assessment may include consideration of the potential for successful criminal prosecution under 18 U.S.C. 1425 (unlawful procurement of citizenship or naturalization), which, upon conviction, results in denaturalization under 8 U.S.C. 1451(e).

Through extensive consultation, information sharing, and other cooperative activities, both the interagency working group and the Criminal Division group have already made significant progress in promoting the effective enforcement of the provisions relating to modern human rights violators. With respect to civil denaturalization investigations in the modern cases, OSI and the ICE Office of Investigations have established a close working relationship. Currently, when ICE becomes aware of a suspected human rights violator who has become a naturalized U.S. citizen, that information is provided to OSI, along with the names of the ICE personnel assigned to the investigation. Similarly, if OSI identifies suspected human rights violators living in the United States (regardless of whether those persons are aliens or naturalized citizens), it notifies ICE at the headquarters level. This mutual notification system ensures that joint investigations of naturalized citizens can be commenced promptly. In addition, OSI ensures that the other participants in the Criminal Division working group are advised of all such investigations. OSI and ICE have already utilized these procedures in numerous cases involving both aliens and naturalized citizens, and joint investigations are in progress.

Cases involving human rights violators are referred to the Department in a number of ways. Federal law enforcement agencies, including ICE, FBI, the Diplomatic Security Service, and others, may refer these matters directly to the Criminal Division or to the local USAO. Foreign governments may identify suspects in communications sent to OIA or to other Criminal Division components in connection with extradition requests, requests for legal assistance, and the like. In addition, OSI is working closely with State, whose staff, both those based in Washington D.C. and officers serving at U.S. embassies and consulates overseas, have been briefed on the relevant provisions of IRTPA and advised to refer any potential cases involving naturalized citizens to OSI. U.N.-sponsored war crimes tribunals have been yet another source of information, especially the International Criminal Tribunal for the former Yugoslavia (ICTY). Finally, some investigative leads have come from nongovernmental sources, including human rights groups, the media, and concerned citizens.

IV. The role of the USAOs in modern human rights violator cases

A. Civil denaturalization cases

The role of the USAOs in civil denaturalization cases involving modern human rights violators is largely a matter of each U.S. Attorney's discretion, and each USAO is encouraged to assist OSI in the investigation and litigation of these cases in whatever manner best suits its individual priorities, expertise, and resources. Obviously, in any related criminal prosecutions (whether for abuses committed overseas or immigration violations), the USAOs have primary responsibility for the litigation of the case, as they do in other criminal cases.

Historically, the USAOs generally have not been involved in the investigation phase of the World War II cases, except to a limited extent when OSI has conducted a voluntary prefiling, sworn interview with a prospective defendant. Nonetheless, there have been exceptions. For example, in the fall of 2002, the USAO for the Eastern District of Michigan worked closely with OSI and investigators from both the FBI and the former INS in a successful effort to locate Johann Leprich, a former concentration camp guard who went into hiding after his naturalized U.S. citizenship was revoked. Leprich was arrested in July 2003, was ordered removed from the United States in November 2003, and remains in DHS custody pending his appeals from that decision. In re Johann Leprich, In Removal Proceedings, File A 08 272 762 (Detroit, MI, Nov. 21, 2003), aff'd, In re Leprich, File A 08 272 762 (BIA, Mar. 5, 2004), appeal docketed, No. 04-3337 (6th Cir. Mar. 17, 2004).

To some extent, the ability of the USAOs to provide input during the preliminary investigative phase of cases involving the illegal procurement of naturalization has been limited by the fact that, as a general rule, DHS (like its INS predecessor) does not always notify a USAO of any such preliminary investigations in its district. Normally, until the preliminary investigation has been completed and DHS personnel have concluded that the case should be pursued as a criminal or civil matter, local USAOs are not contacted.

During the litigation phase of civil denaturalization cases involving World War II suspects, USAOs have generally acted as local counsel for OSI. It is hoped that this practice will continue in the modern denaturalization cases. The actual role of an AUSA assigned to an OSI matter will vary depending on factors such as the AUSA's interest in the case, workload, and experience. A more complete description of the AUSAs role in an OSI prosecution may be found on page 23 of this issue of the United States Attorneys' Bulletin.

B. Criminal cases

In criminal prosecutions involving naturalized U.S. citizens who participated in human rights violations, OSI and other Criminal Division components will provide whatever assistance is necessary.

Litigation-related activity involving suspected participants in torture, genocide, and war crimes, is subject to additional Department notification and approval requirements. In a January 25, 2005 Memorandum, the Deputy Attorney General issued guidance to all United States Attorneys concerning notification in such cases. Pursuant to this Memorandum, U.S. Attorneys are required to notify the Criminal Division before initiating or declining to initiate investigations, as well as to provide notification of any significant developments in these matters. In addition, prior approval of the Assistant Attorney General (AAG) in charge of the Criminal Division, or the AAG's designee, is required before taking certain actions in torture, war crimes, and genocide matters. Such actions include, inter alia, filing an application for a search warrant or a material witness warrant; filing a criminal complaint or seeking return of an indictment; and dismissing a charge for which prior AAG approval was initially required, including as part of a plea agreement. These requirements apply in all investigations in which a U.S. Attorney contemplates charging an offense involving torture (18 U.S.C. 2340 and 2340A), war crimes (18 U.S.C. 2441), genocide (18 U.S.C. 1091-1093), or any other statute (such as 18 U.S.C. 1001 or 1425) in which proof of the offense (for example, a false statement or fraud) will require proving that torture, a war crime, or genocide, was committed.

Deputy Attorney General Comey's guidance of January 2005 concerning matters involving terrorism, genocide, war crimes, and other related offenses has been implemented on a temporary basis for a period of one year, at the conclusion of which the Attorney General's Advisory Committee and the Assistant Attorney General for the Criminal Division will confer with the Deputy Attorney General and the Attorney General to determine whether these provisions should be adopted on a permanent basis, and, if so, whether any modifications are appropriate. The guidance is scheduled to be finalized in January 2006 and will then be included in the United States Attorneys' Manual.

V. Assistance that OSI can provide to USAOs in other cases

Over the past twenty-five years, the majority of reported appellate cases involving the unlawful procurement of naturalized citizenship have been investigated, litigated, and won, by OSI. As a result, OSI has developed the broad range of expertise needed to prevail in such cases, including expertise in foreign archival research, the ability to locate fact witnesses to events that happened overseas decades earlier, and the use of expert historian witnesses at trial. OSI has also developed expertise in the full range of pertinent legal issues, such as evidentiary issues relating to ancient foreign documents and the scope of 8 U.S.C. 1451(a)'s provisions dealing with the illegal procurement of naturalization. In addition, OSI has developed significant expertise in legal issues relating to expatriation.

Even before OSI's jurisdiction was expanded to include the modern cases, OSI had begun providing advice and assistance to the USAOs in other civil and criminal matters involving the unlawful procurement of naturalized U.S. citizenship, including one case in which a Cuban immigrant was successfully prosecuted in the Southern District of Florida for lying on his naturalization application about his former Communist Party membership and his role in the persecution of political dissidents. (The defendant, Eriberto Mederos, had worked in a Cuban psychiatric hospital and had administered severe, debilitating electric shocks, without any legitimate medical purpose, to dissidents who were being detained there.) See Charles Rabin, Accused Cuban Torturer, 79, Dies, Miami Herald, Aug. 24, 2002, at 1B. As civil and criminal denaturalization actions are increasingly utilized in terrorism cases, including cases in which a prosecution for a terror-related offense cannot be mounted, OSI has also provided advice to USAOs regarding the prosecution of such cases.

Upon request, OSI assists the USAOs by, among other things, reviewing prosecution memos and indictments, discussing legal issues and strategy, and providing samples of briefs, expert reports, and other materials. OSI is also able to query DHS databases to determine whether a suspect is a naturalized citizen, is developing a wide range of contacts with human rights experts and organizations that are able to assist in these cases, and can provide such information on request. OSI welcomes any request for assistance on matters within its areas of expertise.

VI. Conclusion

Modern-day perpetrators of torture, genocide, and other serious human rights abuses, were long able to immigrate to the United States with near-impunity, but that has now changed. The legal and organizational frameworks needed to detect and investigate such persons, and to pursue appropriate criminal and civil actions against them, are largely in place. With the cooperation of all interested federal offices and agencies -including the USAOs- we can collectively ensure that the perpetrators of human rights violations committed overseas will not find a safe haven in the United States.

This article originally appeared in the January 2006 issue of the United States Attorneys' Bulletin, Volume 54, Number 1.

About The Author

Stephen J. Paskey has been a trial attorney with the Office of Special Investigations since 1998. He entered the Justice Department under the Attorney General's Honors Program in 1995, and served from 1995 through 1998 as Assistant District Counsel for the former Immigration and Naturalization Service in Arlington, Virginia. From 1994 through 1995, he was law clerk to the Honorable Arrie Davis of the Maryland Court of Appeals. He has taught immigration law at the University of Maryland School of Law as an adjunct professor.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.