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[Congressional Record: May 10, 2001 (Senate)]
[Page S4824-S4846]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr10my01-164]                         

......................................................
 
          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
                                 
      By Mrs. FEINSTEIN (for herself, Mr. Kyl, Mr. Graham, Mr. Reid, 
        Mr. Bingaman, Mr. Kerry, and Mr. McCain):
  S. 862. A bill to amend the Immigration and Nationality Act to 
authorize appropriations for fiscal years 2002 through 2006 to carry 
out the State Criminal Alien Assistance Program; to the Committee on 
the Judiciary.
  Mrs. FEINSTEIN. Mr. President, I rise today to introduce the ``State 
Criminal Alien Assistance Program Reauthorization Act of 2001,'' 
bipartisan legislation that would authorize funds to relieve State and 
county governments of the some of the high costs of incarcerating 
persons who enter this country illegally and are later convicted of 
felonies or multiple misdemeanors. I am pleased to be joined in 
introducing this bill by Senators Jon Kyl, Bob Graham, John McCain, 
Harry Reid, Jeff Bingaman, and John Kerry.
  The broad principle on which this bill is based is simple: the 
control of illegal immigration is a Federal responsibility. The Federal 
government's failure to control illegal immigration, and the financial 
and human consequences of this failure are, thus, Federal 
responsibilities as well.
  More and more, the fiscal consequences of illegal immigration are 
being dealt to the states and local counties. The ``State Criminal 
Alien Assistance Program Reauthorization Act of 2001'' would properly 
vest the fiscal burden of incarcerating illegal immigrants who commit 
crimes with the Federal government. It would do this by authorizing up 
to $750 million for federal reimbursement to the States and county 
governments for the direct costs associated with incarcerating 
undocumented felons.
  At the initiative of my colleague from Florida, Senator Bob Graham, 
the Federal government took the first steps in 1994 in addressing these 
costs by authorizing reimbursements to State and local governments 
through the State Criminal Alien Assistance Program, SCAAP, established 
by the Violent Crime and Law Enforcement Act of 1994. Since 1997, the 
authorization level for SCAAP has been $650 million. Last year, the 
provision authorizing SCAAP funding through the Violent Crime Reduction 
Trust Fund expired. Enactment of the reauthorization legislation would 
constitute an acknowledgment that these costs, though borne by other 
levels of government, remain the Federal government's obligation.
  Winning enactment of this authorization bill is half of what Congress 
needs to do to provide adequate funding to states and counties for this 
important program. Congress also must appropriate an adequate level of 
funding for SCAAP, and my colleagues and I will be working in the 
Appropriations Committee to assure that this is done.
  This bill would help all states that are experiencing increasing 
costs from incarcerating undocumented felons, both low-impact and high-
impact states. Even in historically low impact states and counties 
SCAAP funding has been on the rise. SCAAP funding to Fairfax County, 
Virginia, for example, has risen from $14,906 in FY 1999 to $2 million 
in FY 2000. In the County of Outgamie, Wisconsin, SCAAP funding has 
jumped from $0 in FY 1999 to $548,458 in FY 2000. In the State of 
Mississippi, SCAAP funding rose from $47,171 in FY 1999 to $$780,795 in 
FY 2000.
  Clearly, these numbers suggest that the increasing costs to states 
and local governments for incarcerating criminal aliens is not just a 
problem for States on the southwest border but, rather, it is a 
nationwide problem.
  High impact States, like California, continue to face extraordinary 
criminal alien incarceration costs. In February 1997, there were 17,904 
undocumented felons in the California correctional system with 
Immigration and Naturalization Service holds. By the end of February 
2001, there were 20,937 illegal alien inmates in the system with INS 
holds. This year, California taxpayers can expect to spend $576.1 
million to pay for what is, indeed, a Federal obligation. In fact, 
1995, the first year in which SCAAP funding was awarded, California has 
spent a total of $3.8 billion in costs directly associated with 
incarcerating undocumented criminal aliens.
  Local counties often shoulder a disproportional share of the burden 
of criminal aliens as well. In California, for example, counties are 
responsible for providing local law enforcement, detention, 
prosecution, probation and indigent defense services. While SCAAP only 
reimburses a portion of the costs directly related to the incarceration 
of undocumented criminal aliens, most other indirect criminal justice 
expenditures, are fully borne by County taxpayers.
  Furthermore, while funding levels for SCAAP has remained about the 
same, the number of local governments applying for the awards has 
greatly increased over the past few years. In fiscal year 1996, local 
governments were reimbursed at a rate of approximately 60 percent for 
the costs of incarcerating criminal aliens convicted of a felony or two 
or more misdemeanors when only 90 jurisdictions applied for such 
reimbursement. For fiscal year 2000, 361 local jurisdictions applied 
for SCAAP funding, and reimbursement amounted to less than 40 percent 
of the costs incurred by these jurisdictions.
  SCAAP funding is especially important to Los Angeles County, which 
has a larger undocumented immigrant population than any single state 
except California, and operates the nation's largest local criminal 
justice system. Los Angeles County also has a violent crime rate which 
is far higher than the national average, and accounts for about one out 
of every 16 violent crimes committed in the United States.
  A recent study conducted by the Los Angeles County Sheriff's 
Department concluded that 23 percent of the County's inmate population 
consisted of criminal aliens in 2000. The study further found that the 
impact of criminal aliens on the criminal justice system in Los Angeles 
County had doubled from approximately $75 million in 1990 to more than 
$150 million in 1999.

[[Page S4833]]

  There are numerous other jurisdictions in California that are 
significantly affected by criminal aliens, including the border 
counties of San Diego and Imperial. Like Los Angeles County, these 
counties are not being adequately reimbursed for the costs associated 
with the incarceration of criminal aliens.
  In FY 1999 San Diego and Imperial counties spent a combined $56 
million on law enforcement and indirect costs involving illegal aliens, 
whether criminal or not. These costs include criminal alien 
incarceration, justice and court costs, emergency medical care, 
autopsies, and burials of indigents. SCAAP compensated these counties 
for only $8 million or 15 percent of these costs which went solely to 
the cost of incarcerating criminal aliens.
  Border counties, however, are taking a hit in other areas: San Diego, 
has to spend 7 percent of its total public safety budget to cover other 
costs, including indigent defense, court and emergency medical costs; 
Imperial County expends 16 percent of its public safety budget to cover 
these costs.
  The structure of public financing in California makes it extremely 
difficult for local governments, especially county governments, to 
increase their sources of revenue. This problem is greatly exacerbated 
when they are also forced to pay for costs related to the Federal 
responsibility of controlling illegal immigration.
  Without the ability to raise taxes in any significant way to deal 
with the costs associated with criminal illegal aliens, counties are 
forced to cut back on other expenditures that would otherwise benefit 
the legal resident population.
  It is unfortunate, that at a time when Congress is concerned about 
unfunded mandates, the Administration has seen fit to proposed cutting 
SCAAP funding by almost $300 million for fiscal year 2002. Given the 
increasing numbers of illegal aliens that California and other states 
incarcerate each year, the Administration's decision in this regard is 
perplexing.
  If the Administration has its way, States and local counties would 
face an unfair set of choices with real consequences: either cut other 
essential local law enforcement programs and community services, or 
raise local taxes. Neither of these are acceptable options.
  I am pleased that this legislation has the support of such 
organizations as the National Association of Counties and the 
California Correctional Peace Officers Association. I ask for unanimous 
consent that their letters in support of this measure be printed in the 
Record.
  I also ask unanimous consent that the letter to President Bush, 
signed by a bipartisan group of Senators, expressing concern about the 
proposed cuts in SCAAP funding and the text of the bill be printed into 
the Record.
  I join my colleagues in introducing the SCAAP reauthorization bill 
today in hopes that it will go further to alleviate some of the fiscal 
hardships States and local counties incur when they must take on a 
Federal responsibility. I look forward to working with my colleagues to 
move it through the Senate.
  There being no objection, the material was ordered to be printed in 
the Record, as follows;

                                 S. 862

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``State Criminal Alien 
     Assistance Program Reauthorization Act of 2001''.

     SEC. 2. AUTHORIZATION OF APPROPRIATIONS FOR FISCAL YEARS 2002 
                   THROUGH 2006.

       Section 241(i)(5) of the Immigration and Nationality Act (8 
     U.S.C. 1251(i)(5)) is amended--
       (1) by striking ``and'' at the end of subparagraph (E);
       (2) by striking the period at the end of subparagraph (F) 
     and inserting ``; and''; and
       (3) by adding at the end the following new subparagraph:
       ``(G) $750,000,000 for each of fiscal years 2002 through 
     2006.''.
                                  ____



                                                  U.S. Senate,

                                      Washington, DC, May 8, 2001.
     Hon. George W. Bush, 
     President of the United States, The White House, Washington, 
         DC.
       Dear Mr. President: We write out of deep concern over your 
     Fiscal Year 2002 Budget proposal to cut funding for the State 
     Criminal Alien Assistance Program (SCAAP) by nearly 50 
     percent. We ask that you reconsider this recommendation and, 
     instead, at a minimum, support funding this program at $750 
     million. SCAAP is a vitally important program that assists 
     states in recovering the costs associated with the 
     incarceration of criminal aliens. We would strongly oppose 
     cuts in this important program.
       As you are well aware, control of our nation's borders is 
     under the exclusive jurisdiction of the Federal government. 
     Unfortunately, Federal efforts are often not adequate to 
     combat illegal immigration. As a consequence, such high 
     impact states as California, Arizona, New Mexico, Texas, 
     Florida, New York, Washington, Nevada and Massachusetts 
     continue to face extraordinary costs associated with 
     incarcerating criminal aliens. Much of these costs are borne 
     by counties, some of which are among the poorest in the 
     nation and traditionally operate with slim budgets and 
     staffing.
       By some estimates, the total annual cost to states and 
     county governments exceeds $1.6 billion. In light of this 
     growing burden, your FY 02 budget proposal inexplicably 
     recommends cutting funding for this urgently needed program 
     by $300 million.
       Unless the Administration supports and Congress 
     appropriates sufficient funds for SCAAP, our state and local 
     governments will continue to unfairly shoulder the burden of 
     bearing the costs of a Federal responsibility. Given the 
     upward trend in incarceration costs, any shortfall in SCAAP 
     funding would force states to draw funds away from other, 
     cash-strapped crime control and prevention programs. In 
     short, the impact on the states would be devastating.
       Therefore, we urge you to support funding for this 
     important program at a level of $750 million.
           Sincerely,
     Dianne Feinstein.
     Bob Graham.
     Jon Kyl.
     Harry Reid.
                                  ____



                             National Association of Counties,

                                      Washington, DC, May 1, 2001.
     Hon. George W. Bush,
     The President, The White House, Washington, DC.
       Dear Mr. President: The National Association of counties 
     strongly supports the State Criminal Alien Assistance program 
     (SCAAP) at least at its full authorization level. However, we 
     believe the program needs to be funded at a much higher level 
     than proposed, in order to address the serious shortfall in 
     meeting costs to counties.
       As of today, SCAAP only reimburses counties at a rate of 40 
     percent of actual expenses. To truly meet our annual costs 
     for the incarceration of alien undocumented criminals, this 
     considerable increase in funding would be needed. Moreover, 
     due to recent changes in the administration of the program, 
     significant costs such as inmate recreation and drug 
     treatment expenses are no longer recognized.
       While immigration policy is solemnly within federal 
     responsibility, many of the expenses associated with it 
     burden counties and state governments. Costs of providing 
     services for undocumented aliens extend to county hospitals 
     and county health departments and county human service 
     agencies. With the upward trend in incarceration costs, 
     counties depend even more on federal programs such as SCAAP 
     since most of our local correctional agencies are at or near 
     capacity.
       We strongly urge you to fund SCAAP at least at its full 
     authorization level.
           Sincerely,
                                                   Larry E. Naake,
     Executive Director.
                                  ____



                             Pinellas County Sheriff's Office,

                                        Largo, FL, April 27, 2001.
     Senator Bob Graham,
     Senate Hart Building,
     Washington, DC.
       Dear Mr. President: We write to you in response to your 
     Fiscal Year 2002 budget proposal to cut funding for the state 
     Criminal Alien Assistance Program (SCAAP) by more than 50 
     percent. We urge you not to reduce the program but rather 
     secure funding at a minimum of the current appropriation 
     level. As of today, SCAAP only partly reimburses the actual 
     expenses borne by state and local governments. To truly meet 
     our annual costs for the incarceration of alien undocumented 
     criminals, a considerable increase in the funding would be 
     needed. Due to recent changes in the administration of the 
     program, significant costs such as inmate recreation and drug 
     treatment expenses are no longer recognized.
       While immigration policy is solemnly within federal 
     responsibility, many of the expenses associated with it 
     burden local jurisdictions. Costs of providing services for 
     undocumented aliens extend to the municipal police, local 
     hospitals and health care department. With the upward trend 
     in incarceration costs, counties depend even more on federal 
     programs such as SCAAP since any undocumented alien caught 
     committing a state felony or several misdemeanors enters the 
     state or county criminal justice system.
       We strongly ask you to reconsider your proposed cuts for 
     SCAAP and instead secure financial assistance for the states 
     and counties.
           Sincerely,
                                                  Everett S. Rice,
                                                          Sheriff.

[[Page S4834]]

     
                                  ____
                              Collier County Sheriff's Office,

                                       Naples, FL, April 27, 2001.
     Re State Criminal Alien Assistance Program (SCAAP).

     President George W. Bush,
     The White House,
     Washington, DC.
       Dear Mr. President: We write to you in response to your 
     Fiscal Year 2002 budget proposal to cut funding for the State 
     Criminal Alien Assistance Program (SCAAP) by more than 50 
     percent. We urge you not to reduce the program but rather 
     secure funding at a minimum of the current appropriation 
     level. As of today, SCAAP only partially reimburses the 
     actual expenses borne by state and local governments. To 
     truly meet our annual costs for the incarceration of alien 
     undocumented criminals, a considerable increase in the 
     funding would be needed. Due to recent changes in the 
     administration of the program, significant costs such as 
     inmate recreation and drug treatment expenses are no longer 
     recognized.
       While immigration policy is solemnly within federal 
     responsibility, many of the expenses associated with it 
     burden local jurisdictions. Costs of providing services for 
     undocumented aliens extend to local law enforcement agencies, 
     local hospitals, and health care departments. With the upward 
     trend in incarcerations costs, counties depend even more on 
     federal programs such as SCAAP since any undocumented alien 
     caught committing a state felony or several misdemeanors 
     enters the state or county criminal justice system.
       We strongly urge you to reconsider your proposed cuts for 
     SCAAP and instead secure financial assistance for the states 
     and counties.
           Sincerely,
                                                       Don Hunter,
     Sheriff.
                                  ____

                         Hillsborough County Sheriff's Office,

                                           Tampa, FL, May 2, 2001.
     Hon. Bob Graham,
     U.S. Senate,
     Washington, DC.
       Dear Senator Graham: Enclosed is the original and a copy of 
     my letter to President Bush regarding the State Criminal 
     Alien Assistance Program. I appreciate the pro active stance 
     that you have taken to counter the proposed funding cut.
       We have examined Senate Bill 169 and do not feel that it is 
     a reasonable alternative. Each county and state, regardless 
     of its geographic location, should have equal opportunity to 
     apply for reimbursement using the same formula and criteria.
       The other questions that you posed regarding the efficiency 
     and effectiveness of the current SCAAP program are on point, 
     but we do not have supporting statistics or documentation 
     readily available. I would simply suggest that adequate 
     funding for the program in its current form is of greatest 
     importance.
       Thank you again for taking the lead to protect the SCAAP 
     program.
           Sincerely,
                                                    Cal Henderson,
     Sheriff.
                                  ____

                                           California Correctional

                                   Peace Officers Association,

                                      Sacramento, CA, May 9, 2001.
     Hon. Dianne Feinstein,
     Senate Hart Building,
     Washington, DC.
       Dear Senator Feinstein: I am writing on behalf of the 
     California Correctional Peace Officers Association (CCPOA), 
     representing approximately 28,000 correctional officers and 
     parole agents in the State of California, to express our 
     strong support for legislation you plan to introduce to 
     reauthorize the State Criminal Alien Assistance Program 
     (SCAAP).
       It is our understanding that your bill would reauthorize 
     the SCAAP program at an increased level of $750,000,000 for 
     fiscal years 2002 through 2006. As you know, this program 
     reimburses state and local governments for the costs of 
     incarcerating criminal aliens. This program pays for the 
     incarceration costs of criminals who have illegally entered 
     or stayed in our country, have committed at least one felony 
     or two misdemeanor crimes while in this country, and are 
     serving time in local jails or state prisons. SCAAP 
     recognizes that the federal government has sole jurisdiction 
     over preventing illegal immigration and should be accountable 
     for the consequences of illegal immigration. States and 
     counties should not have to bear the financial consequences 
     of the federal government's failure to prevent illegal 
     immigration.
       CCPOA was disappointed that the President's $265 million in 
     funding for this program, a decrease of $299 million from 
     last year, because ``SCAAP reimburses a relatively small 
     portion of states incarceration costs and contributes little 
     to reducing violent crime.'' SCAAP does only reimburse a 
     small portion of states' incarceration costs, which is 
     exactly why appropriations for this program need to be 
     increased, not decreased. The program was never intended to 
     reduce violent crime. It was intended, and has succeeded, in 
     allowing state and local resources to be used on state and 
     local crime issues, rather than federal responsibilities.
       Again, CCPOA commends you for your leadership in this area. 
     Please contact our Washington representative, Shannon Lahey 
     if we can be of any assistance to you in securing the passage 
     of this important legislation.
           Sincerely,
                                                     Mike Jimenez,
     Executive Vice President.
                                  ____

                             National Association of Counties,

                                      Washington, DC, May 9, 2001.
     Hon. Diane Feinstein,
     U.S. Senate, Washington, DC.
       Dear Senator Feinstein: I understand you will be 
     introducing legislation tomorrow that will raise the SCAAP 
     authorization level to $750 million annually. The National 
     Association of Counties (NACo) wishes to go on record in 
     support of your legislation.
       NACo recognizes that securing the nation's border from 
     illegal immigration is clearly the responsibility of the 
     federal government and that Congress should fully reimburse 
     counties for the costs of incarcerating undocumented aliens.
       We look forward to working with you on this issue.
           Sincerely,
                                                   Larry E. Naake,
                                               Executive Director.

  Mr. GRAHAM. Mr. President, I rise today, with my colleagues Senators 
Feinstein, Kyl, and others, to reauthorize the State Criminal Alien 
Assistance Program, or SCAAP.
  SCAAP was created as part of the 1994 Violent Crime Control and Law 
Enforcement Act because the federal government recognized the 
responsibility we have to alleviate the impact of immigration policy on 
state and local governments.
  The federal government has sole jurisdiction over national 
immigration policy, and we should do all possible so that our federal 
decisions and actions do not cause a financial burden on states and 
localities.
  SCAAP is a reimbursement program that sends dollars to our counties 
and states to help offset the costs associated with jailing illegal or 
criminal aliens.
  SCAAP also established and now facilitates a process to better 
identify undocumented criminal aliens and to expedite the transfer of 
illegal aliens from state facilities and county jails to federal 
institutions in preparation for deportation, or other federal 
proceedings.
  Thus, I was greatly concerned looking through the President's budget 
that this program was cut by more than 50 percent this year.
  At the moment, SCAAP only provides reimbursement for about 37 cents 
of every dollar a state spends on criminal aliens.
  We barely cover half the costs as is, and this is before the program 
was cut in half in this most recent budget.
  For FY99, state and local governments incurred $1.5 billion in costs 
associated with criminal aliens which were eligible for reimbursement 
under the SCAAP program. In FY98, costs to state and local governments 
were even higher: $1.7 billion. This past year, $1.6 billion was spent 
by state and local governments on these concerns. Yet, we funded the 
program at $585 million in each of those years.
  It's not as much reimbursement as is needed, but the reimbursement 
gives an appropriate and respectful amount of relief to state and local 
law enforcement budgets for the benefits they are providing to the 
federal government.
  The National Governors Association has the reauthorization of this 
program as one of their top priorities for this year. I am certain that 
they also join me in asking that the program at least maintain funding 
levels of last year, if not a funding increase that will get them a 
more fair reimbursement for the dollars they spend.
  The National Association of Counties supports reauthorization and 
full funding of SCAAP.
  They make the point that state and local taxpayers should not have to 
bear the costs of criminal aliens. They are a federal responsibility, 
and should be transferred to federal custody in an expeditious manner.
  Last year, every state, and more than 220 local governments received 
reimbursement under SCAAP.
  This affects us all. I do not want to see the federal government 
backtrack on our obligation to state and local governments in the area 
of immigration.
  Lastly, statements in the President's budget about this program 
concern me.
  Two reasons were given for the cut of $299 million which this program 
endured.
  The first was that it ``reimburses a relatively small portion of 
states' incarceration costs.''

[[Page S4835]]

  This statement is true. As I've said, it only reimburses state or 
local governments about 37 cents of each dollar they spend on illegal 
immigrants and criminal aliens.
  However, this is no reason to further cut the program! If anything, 
if we agree on the premise that immigration policy is a federal 
responsibility, then it is reason to fully fund the program.
  I have never seen a rationale given where there is clear federal 
jurisdiction, like in this case, that specifically says: we can only 
reimburse states a small portion of what we owe them, so let's cut the 
program in half. I fail to see how this accomplishes the most effective 
public policy.
  The second reason that is given for the program cut is that it has 
contributed ``little to reducing violent crime.''
  Again--on it's face--this statement may be true, although I have not 
been able to obtain any supporting documentation that verifies it. But, 
regardless, that was never the Congressional intent of the program.
  The intent of the program, clearly spelled out in the 1994 Crime 
bill, was to reimburse state, and later on through amendments in 1996, 
local governments for the costs they incur because of federal 
immigration policy. And, secondly, to expedite the transfer of criminal 
aliens from the state and local facilities where they may be originally 
held, into the federal system. I would argue that this, in and of 
itself, does reduce crime.
  But I find it unfair that a program should be penalized with a 50 
percent budget cut because it failed to achieve a goal that was never 
intended for the program.
  Whichever side of the immigration debate you may be on--a more 
expansive immigration policy, or a more restrictive immigration 
policy--if you agree with the premise that immigration is the 
responsibility of and obligation of the federal government--then you 
should join us in our efforts to reauthorize and fully fund the SCAAP 
program.
  I commend my colleagues, especially Senator Feinstein and Senator 
Kyl, for their tireless work on this issue. I look forward to seeing 
the program reauthorized and funded at an appropriate level this 
Congress.
  Mr. McCAIN. Mr. President, I am pleased to join my distinguished 
colleagues in introducing this important legislation to reauthorize the 
State Criminal Alien Assistance Program, SCAAP. Our bill will provide a 
higher level of federal reimbursement to states and localities across 
America whose budgets are disproportionately affected by the costs 
associated with illegal immigration.
  The premise of our bill, and of current law governing this type of 
federal reimbursement to the states, is that controlling illegal 
immigration is principally the responsibility of the federal 
government, not the states. Local jurisdictions in many areas of our 
country, and especially along the southwest border, are burdened by the 
excessive costs of incarcerating criminal illegal aliens and providing 
emergency medical care to illegal immigrants. In a typical year, the 
federal government reimburses states and localities for less than 40 
percent of these costs.
  Regrettably, the Bush Administration's proposed FY 2002 budget would 
slash SCAAP funding by 50 percent from its current, already-
insufficient level of $575 million. The National Governors' Association 
and the National Association of Counties, whose members deal with the 
problem of illegal immigration on a daily basis, believe we should 
increase, not cut, funding for this program, and I agree. SCAAP money 
flows to all 50 states and 350 local governments, with more applying 
for this assistance every year. Rather than forcing local residents to 
subsidize local jails and hospitals because of our government's failure 
to adequately reimburse them for illegal alien incarceration and 
medical costs, I hope we will take responsibility as a nation for 
protecting our borders and covering the contingencies that arise at the 
local level when we fail to do so.
  The State Criminal Alien Assistance Program is an important 
expression of our government's commitment to border control, and to the 
quality of life of Americans who suffer the costs of illegal 
immigration. I thank my colleagues for considering the merits of our 
bill.
...................................................................
                                 ______
                                 
      By Mr. LEAHY (for himself, Mr. Liberman, and Mr. Levin):
  S. 864. A bill to amend the Immigration and Nationality Act to 
provide that aliens who commit acts of torture, extrajudicial killings, 
or other specified atrocities abroad are inadmissible and removable and 
to establish within the Criminal Division of the Department of Justice 
an Office of Special Investigations having responsibilities under that 
Act with respect to all alien participants in war crimes, genocide, and 
the commission of acts of torture and extrajudicial killings abroad; to 
the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, I am pleased to introduce with Senators 
Lieberman and Levin the Anti-Atrocity Alien Deportation Act of 2001. I 
introduced similar legislation in the last Congress, and was pleased 
when the proposal garnered bipartisan support in both the House and the 
Senate. The measure was introduced in the last Congress by 
Representatives Foley, Franks and Ackerman as H.R. 2642 and H.R. 3058, 
and has again been introduced on April 4, 2001, by Representatives 
Foley and Ackerman as H.R. 1449. Moreover, the legislation passed the 
Senate, on November 5, 1999, as part of the Hatch-Leahy ``Denying Safe 
Havens to Internationals and War Criminals Act,'' S. 1754, but 
unfortunately was not acted on by the House. The problem of human 
rights abusers seeking and obtaining refuge in this country is real, 
and requires an effective response with the legal and enforcement 
changes proposed in this legislation. The loss last week by the United 
States of its seat on the U.N. Human Rights Commission is highly 
embarrassing and unfortunate, but by ensuring that our country is no 
safe haven for human rights abusers, we can lead the world by our 
actions.

[[Page S4836]]

  War criminals and human rights abusers have used loopholes in current 
law to enter and remain in this country. I have been appalled that this 
country has become a safe haven for those who exercised power in 
foreign countries to terrorize, rape, murder and torture innocent 
civilians. For example, three Ethiopian refugees proved in an American 
court that Kelbessa Negewo, a former senior government official in 
Ethiopia engaged in numerous acts of torture and human rights abuses 
against them in the late 1970's when they lived in that country. The 
court's descriptions of the abuse are chilling, and included whipping a 
naked woman with a wire for hours and threatening her with death in the 
presence of several men. The court's award of compensatory and punitive 
damages in the amount of $1,500,000 to the plaintiffs was subsequently 
affirmed by an appellate court. See Abebe-Jira v. Negewo, 72 F.3d 844 
(11th Cir. 1996). Yet, while Negewo's case was on appeal, the 
Immigration and Naturalization Service granted him citizenship.
  As Professor William Aceves of California Western School of Law has 
noted, this case reveals ``a glaring and troubling limitation in 
current immigration law and practice. This case is not unique. Other 
aliens who have committed gross human rights violations have also 
gained entry into the United States and been granted immigration 
relief.'' 20 Mich. J. Int'l.L. at 657. In fact, the Center for Justice 
and Accountability, a San Francisco human rights group, has identified 
approximately sixty suspected human rights violators now living in the 
United States.
  Unfortunately, criminals who wielded machetes and guns against 
innocent civilians in countries like Haiti, Chile, Yugoslavia and 
Rwanda have been able to gain entry to the United States through the 
same doors that we have opened to deserving refugees. We need to lock 
that door to those human rights abusers who seek a safe haven in the 
United States. To those human rights abusers who are already here, we 
should promptly show them the door out.
  We have unwittingly sheltered the oppressors along with the oppressed 
for too long. We should not let this situation continue. We waited too 
long after the last world war to focus prosecutorial resources and 
attention on Nazi war criminals who entered this country on false 
pretenses, or worse, with the collusion of American intelligence 
agencies. Last month, thousands of declassified CIA documents were made 
public, as a result of the Nazi War Crimes Disclosure Act that I was 
proud help enact in 1998, and made clear the extent that United States 
relied on and helped Nazi war criminals. As Eli M. Rosenbaum, the head 
of the Justice Department's Office of Special Investigations, noted, 
``These files demonstrate that the real winners of the Cold War were 
Nazi criminals.'' We should not repeat that mistake for other aliens 
who engaged in human rights abuses before coming to the United States. 
We need to focus the attention of our law enforcement investigators to 
prosecute and deport those who have committed atrocities abroad and who 
now enjoy safe harbor in the United States.
  When I first introduced this bill in 1999, the Pulitzer prize-winning 
paper, the Rutland Herald, opined on October 31, 1999, that:

       For the U.S. commitment to human rights to mean anything, 
     U.S. policies must be strong and consistent. It is not enough 
     to denounce war crimes in Bosnia and Kosovo or elsewhere and 
     then wink as the perpetrators of torture and mass murder slip 
     across the border to find a home in America.

  The Clinton Administration recognized the deficiencies in our laws. 
One Clinton Administration witness testified in February, 2000:

       Right now, only three types of human rights abuse could 
     prevent someone from entering or remaining in the United 
     States. The types of prohibited conduct include: (1) 
     genocide; (2) particularly severe violations of religious 
     freedom; and (3) Nazi persecutions. Even these types of 
     conduct are narrowly defined.

  Hearing on H.R. 3058, ``Anti-Atrocity Alien Deportation Act,'' before 
the Subcomm. on Immigration and Claims of the House Comm. On the 
Judiciary, 106th Cong., 2d Sess., Feb. 17, 2000 (Statement of James E. 
Costello, Associate Deputy Attorney General).
  The Anti-Atrocity Alien Deportation Act closes these loopholes. The 
Immigration and Nationality Act, INA, currently provides that (i) 
participants in Nazi persecutions during the time period from March 23, 
1933 to May 8, 1945, (ii) aliens who engaged in genocide, and (iii) 
aliens who committed particularly severe violations of religious 
freedom, are inadmissable to the United States and deportable. See 8 
U.S.C. Sec. 1182(a)(2)(G) & (3)(E) and Sec. 1227(a)(4)(D). The Justice 
Department's specialized OSI unit is authorized under a 1979 Attorney 
General order to investigate only Nazi war criminals, not any other 
human rights abuser. The bill would expand the grounds for 
inadmissibility and deportation to (1) add new bars for aliens who have 
engaged in acts, outside the United States, of ``torture'' and 
``extrajudicial killing'' and (2) remove limitations on the current 
bases for ``genocide'' and ``particularly severe violations of 
religious freedom.''

  The definitions for the new bases of ``torture'' and ``extrajudicial 
killing'' are derived from the Torture Victim Protection Act, which 
implemented the United Nations' ``Convention Against Torture and Other 
Cruel, Inhuman or Degrading Treatment or Punishment.'' These 
definitions are therefore already sanctioned by the Congress. The bill 
incorporates the definition of ``torture'' codified in the federal 
criminal code, 18 U.S.C. Sec.  2340, which prohibits:

       an act committed by a person acting under the color of law 
     specifically intended to inflict severe physical or mental 
     pain or suffering (other than pain or suffering incidental to 
     lawful sanctions) upon another person within his custody or 
     physical control. 18 U.S.C. Sec.  2340(1).

  ``Severe mental pain or suffering'' is further defined to mean:

       prolonged mental harm caused by or resulting from: (A) the 
     intentional infliction or threatened infliction of severe 
     physical pain or suffering; (B) the administration or 
     application, or threatened administration or application, of 
     mind-altering substances or other procedures calculated to 
     disrupt profoundly the senses or personality; and (C) the 
     threat of imminent death; or (D) the threat that another 
     person will imminently be subjected to death, severe physical 
     pain or suffering, or the administration or application of 
     mind-altering substances or other procedures calculated to 
     disrupt profoundly the senses or personality. 18 U.S.C. Sec.  
     2340(2).

  The Torture Victim Protection Act also included a definition for 
``extrajudicial killing.'' Specifically, this law establishes civil 
liability for wrongful death against any person ``who, under actual or 
apparent authority, or color of law, of any foreign nation . . . 
subjects an individual to extrajudicial killing,'' which is defined to 
mean ``a deliberated killing not authorized by a previous judgment 
pronounced by a regularly constituted court affording all the judicial 
guarantees which are recognized as indispensable by civilized peoples. 
Such term, however, does not include any such killing that, under 
international law, is lawfully carried out under the authority of a 
foreign nation.''
  The bill would not only add the new grounds for inadmissibility and 
deportation, it would expand two of the current grounds. First, the 
current bar to aliens who have ``engaged in genocide'' defines that 
term by reference to the ``genocide'' definition in the Convention on 
the Prevention and Punishment of the Crime of Genocide. 8 U.S.C. 
1182(a)(3)(E)(ii). For clarity and consistency, the bill would 
substitute instead the definition in the federal criminal code, 18 
U.S.C. Sec.  1091(a), which was adopted pursuant to the U.S. 
obligations under the Genocide Convention. The bill would also broaden 
the reach of the provision to apply not only to those who ``engaged in 
genocide,'' as in current law, but also to cover any alien who has 
ordered, incited, assisted or otherwise participated in genocide. This 
broader scope will ensure that the genocide provision addresses a more 
appropriate range of levels of complicity.
  Second, the current bar to aliens who have committed ``particularly 
severe violations of religious freedom,'' as defined in the 
International Religious Freedom Act of 1998, IFRA, limits its 
application to foreign government officials who engaged in such conduct 
within the last 24 months, and also bars from admission the 
individual's spouse and children, if any. The bill would delete 
reference to prohibited conduct occurring within a 24-month period 
since this limitation is not consistent with the strong stance of the 
United States to promote religious

[[Page S4837]]

freedom throughout the world. As Professor Aceves opines:

       This provision is unduly restrictive . . . The 24-month 
     time limitation for this prohibition is also unnecessary. A 
     perpetrator of human rights atrocities should not be able to 
     seek absolution by merely waiting two years after the 
     commission of these acts. William J. Aceves, supra, 20 Mich. 
     J. Int'l L., at 683.

  In addition, the bill would remove the current bar to admission for 
the spouse or children. This is a serious sanction that should not 
apply to individuals because of familial relationships that are not 
within an individual's control. None of the other grounds relating to 
serious human rights abuse prevent the spouse or child of an abuser 
from entering or remaining lawfully in the United States. Moreover, the 
purpose of these amendments is to make those who have participated in 
atrocities accountable for their actions. That purpose is not served by 
holding the family members of such individuals accountable for the 
offensive conduct over which they had no control.
  Changing the law to address the problem of human rights abusers 
seeking entry and remaining in the United States is only part of the 
solution. We also need effective enforcement. As one expert noted:

       [s]trong institutional mechanisms must be established to 
     implement this proposed legislation. At present, there does 
     not appear to be any agency within the Department of Justice 
     with the specific mandate of identifying, investigating and 
     prosecuting modern day perpetrators of human rights 
     atrocities. The importance of establishing a separate agency 
     for this function can be seen in the experiences of the 
     Office of Special Investigations. 20 Mich. J. Int'l L., at 
     689.

  We need to update OSI's mission to ensure effective enforcement. Our 
country has long provided the template and moral leadership for dealing 
with Nazi war criminals. The Justice Department's specialized unit, 
OSI, which was created to hunt down, prosecute, and remove Nazi war 
criminals who had slipped into the United States among their victims 
under the Displaced Persons Act, is an example of effective 
enforcement. Since the OSI's inception in 1979, 61 Nazi persecutors 
have been stripped of U.S. citizenship, 49 such individuals have been 
removed from the United States, and more than 150 have been denied 
entry.
  OSI was created almost 35 years after the end of World War II and it 
remains authorized only to track Nazi war criminals. Specifically, when 
Attorney General Civiletti established OSI within the Criminal Division 
of the Department of Justice, that office was directed to conduct all 
``investigative and litigation activities involving individuals, who 
prior to and during World War II, under the supervision of or in 
association with the Nazi government of Germany, its allies, and other 
affiliated [sic] governments, are alleged to have ordered, incited, 
assisted, or otherwise participated in the persecution of any person 
because of race, religion, national origin, or political opinion.'' 
(Attorney Gen. Order No. 851-79). The OSI's mission continues to be 
limited by that Attorney General Order.
  Little is being done about the new generation of international human 
rights abusers and war criminals living among us, and these delays are 
costly. As any prosecutor, or, in my case, former prosecutor, knows 
instinctively, such delays make documentary and testimonial evidence 
more difficult to obtain. Stale cases are the hardest to make. Since I 
introduced this bill in the last Congress, there have been no further 
developments in the Kelbessa Negewo case, he still remains living in 
Atlanta. In addition, there has been no action taken on Carlos Eugenio 
Vides Casanova, the former head of the Salvadoran National Guard, a 
unit whose members kidnaped, raped, and murdered four American 
churchwomen during the El Salvadoran civil war. Vides Casanova remains 
in the United States.
  We should not repeat the mistake of waiting decades before tracking 
down war criminals and human rights abusers who have settled in this 
country. War criminals should find no sanctuary in loopholes in our 
current immigration policies and enforcement. No war criminal should 
ever come to believe that he is going to find safe harbor in the United 
States.
  The Anti-Atrocity Alien Deportation Act would amend the Immigration 
and Nationality Act, 8 U.S.C. Sec.  1103, by directing the Attorney 
General to establish an Office of Special Investigations (OSI) within 
the Department of Justice with authorization to investigate, remove, 
denaturalize, prosecute or extradite any alien who has participated in 
Nazi persecution, torture, extrajudicial killing or genocide abroad. 
Not only would the bill provide statutory authorization for Office of 
Special Investigation, it would also expand its jurisdiction to deal 
with any alien who participated in torture, extrajudicial killing and 
genocide abroad, not just Nazis.
  The success of OSI in hunting Nazi war criminals demonstrates the 
effectiveness of centralized resources and expertise in these cases. 
OSI has worked, and it is time to update its mission. The knowledge of 
the people, politics and pathologies of particular regimes engaged in 
genocide and human rights abuses is often necessary for effective 
prosecutions of these cases and may best be accomplished by the 
concentrated efforts of a single office, rather than in piecemeal 
litigation around the country or in offices that have more diverse 
missions.
  The bill directs the Attorney General, in determining what action to 
take against a human rights abuser seeking entry into or found within 
the United States, to consider whether a prosecution should be brought 
under U.S. law or whether the alien should be deported to a country 
willing to undertake such a prosecution. As one human rights expert has 
noted:

       The justifiable outrage felt by many when it is discovered 
     that serious human rights abusers have found their way into 
     the United States may lead well-meaning people to call for 
     their immediate expulsion. Such individuals certainly should 
     not be enjoying the good life America has to offer. But when 
     we ask the question ``where should they be?'' the answer is 
     clear: they should be in the dock. That is the essence of 
     accountability, and it should be the central goal of any 
     scheme to penalize human rights abusers.

  Hearing on H.R. 5238, ``Serious Human Rights Abusers Accountability 
Act,'' before the Subcomm. on Immigration and Claims of the House Comm. 
On the Judiciary, 106th Cong., 2d Sess., Sept. 28, 2000 (Statement of 
Elisa Massimino, Director, Washington Office, Lawyers Committee For 
Human Rights).
  I appreciate that this part of the legislation has proven 
controversial within the Department of Justice, but others have 
concurred in my judgment that the OSI is an appropriate component of 
the Department to address the new responsibilities proposed in the 
bill. Professor Aceves, who has studied these matters extensively, has 
concluded that OSI's ``methodology for pursuing Nazi war criminals can 
be applied with equal rigor to other perpetrators of human rights 
violations. As the number of Nazi war criminals inevitably declines, 
the OSI can begin to enforce U.S. immigration laws against perpetrators 
of genocide and other gross violations of human rights.'' 20 Mich. J. 
Int'l. 657.
  Similarly, the Rutland Herald noted that the INS has never deported 
an immigrant on the basis of human rights abuses, by contrast to OSI's 
active deportations of ex-Nazis, while maintaining a list of 60,000 
suspected war criminals with the aim of barring them from entry. Based 
on this record, the Rutland Herald concluded that the legislation 
correctly looks to OSI to carry out the additional responsibilities 
called for in the bill, noting that:

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

  Unquestionably, the need to bring Nazi war criminals to justice 
remains a matter of great importance. Funds would not be diverted from 
the OSI's current mission. Additional resources are authorized in the 
bill for OSI's expanded duties.
  Finally, the bill directs the Attorney General to report to the 
Judiciary Committees of the Senate and the House on implementation of 
the new requirements in the bill, including procedures for referral of 
matters to OSI, any revisions made to INS forms to reflect amendments 
made by the bill, and the procedures developed, with adequate due 
process protection, to obtain sufficient evidence and determine whether 
an alien is deemed inadmissible under the bill.

[[Page S4838]]

  We must honor and respect the unique experiences of those who were 
victims in the darkest moment in world history. We may help honor the 
memories of the victims of the Holocaust by pursuing all human rights 
abusers and war criminals who enter our country. By so doing, the 
United States can provide moral leadership and show that we will not 
tolerate perpetrators of genocide, extrajudicial killing and torture, 
least of all here.
  I ask unanimous consent that the text of the bill and a sectional 
analysis be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 864

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Anti-Atrocity Alien 
     Deportation Act of 2001''.

     SEC. 2. INADMISSIBILITY AND REMOVABILITY OF ALIENS WHO HAVE 
                   COMMITTED ACTS OF TORTURE OR EXTRAJUDICIAL 
                   KILLINGS ABROAD.

       (a) Inadmissibility.--Section 212(a)(3)(E) of the 
     Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(E)) is 
     amended--
       (1) in clause (ii), by striking ``has engaged in conduct 
     that is defined as genocide for purposes of the International 
     Convention on the Prevention and Punishment of Genocide is 
     inadmissible'' and inserting ``ordered, incited, assisted, or 
     otherwise participated in conduct outside the United States 
     that would, if committed in the United States or by a United 
     States national, be genocide, as defined in section 1091(a) 
     of title 18, United States Code, is inadmissible'';
       (2) by adding at the end the following:
       ``(iii) Commission of acts of torture or extrajudicial 
     killings.--Any alien who, outside the United States, has 
     committed, ordered, incited, assisted, or otherwise 
     participated in the commission of--

       ``(I) any act of torture, as defined in section 2340 of 
     title 18, United States Code; or
       ``(II) under color of law of any foreign nation, any 
     extrajudicial killing, as defined in section 3(a) of Torture 
     Victim Protection Act of 1991;

     is inadmissible.''; and
       (3) in the subparagraph heading, by striking ``Participants 
     in nazi persecution or genocide'' and inserting 
     ``Participants in nazi persecution, genocide, or the 
     commission of any act of torture or extrajudicial killing''.
       (b) Removability.--Section 237(a)(4)(D) of such Act (8 
     U.S.C. 1227(a)(4)(D)) is amended--
       (1) by striking ``clause (i) or (ii)'' and inserting 
     ``clause (i), (ii), or (iii)''; and
       (2) in the subparagraph heading, by striking ``Assisted in 
     nazi persecution or engaged in genocide'' and inserting 
     ``Assisted in nazi persecution, participated in genocide, or 
     committed any act of torture or extrajudicial killing''.
       (c) Effective Date.--The amendments made by this section 
     shall apply to offenses committed before, on, or after the 
     date of the enactment of this Act.

     SEC. 3. INADMISSIBILITY AND REMOVABILITY OF FOREIGN 
                   GOVERNMENT OFFICIALS WHO HAVE COMMITTED 
                   PARTICULARLY SEVERE VIOLATIONS OF RELIGIOUS 
                   FREEDOM.

       (a) Section 212(a)(2)(G) of the Immigration and Nationality 
     Act (8 U.S.C. 1182(a)(2)(G)) is amended to read as follows:
       ``(G) Foreign government officials who have committed 
     particularly severe violations of religious freedom.--Any 
     alien who, while serving as a foreign government official, 
     was responsible for or directly carried out, at any time, 
     particularly severe violations of religious freedom, as 
     defined in section 3 of the International Religious Freedom 
     Act of 1998, are inadmissible.''.
       (b) Section 237(a)(4) of such Act (8 U.S.C. 1227(a)(4)) is 
     amended by adding at the end the following:
       ``(E) Participated in the commission of severe violations 
     of religious freedom.--Any alien described in section 
     212(a)(2)(G) is deportable.''.

     SEC. 4. BAR TO GOOD MORAL CHARACTER FOR ALIENS WHO HAVE 
                   COMMITTED ACTS OF TORTURE, EXTRAJUDICIAL 
                   KILLINGS, OR SEVERE VIOLATIONS OF RELIGIOUS 
                   FREEDOM.

       Section 101(f) of the Immigration and Nationality Act (8 
     U.S.C. 1101(f)) is amended--
       (1) by striking the period at the end of paragraph (8) and 
     inserting ``; and''; and
       (2) by adding at the end the following:
       ``(9) one who at any time has engaged in conduct described 
     in section 212(a)(3)(E) (relating to assistance in Nazi 
     persecution, participation in genocide, or commission of acts 
     of torture or extrajudicial killings) or 212(a)(2)(G) 
     (relating to severe violations of religious freedom).''.

     SEC. 5. ESTABLISHMENT OF THE OFFICE OF SPECIAL 
                   INVESTIGATIONS.

       (a) Amendment of the Immigration and Nationality Act.--
     Section 103 of the Immigration and Nationality Act (8 U.S.C. 
     1103) is amended by adding at the end the following:
       ``(g) The Attorney General shall establish within the 
     Criminal Division of the Department of Justice an Office of 
     Special Investigations with the authority of investigating, 
     and, where appropriate, taking legal action to remove, 
     denaturalize, prosecute, or extradite any alien found to be 
     in violation of clause (i), (ii), or (iii) of section 
     212(a)(3)(E). In determining such appropriate legal action, 
     consideration shall be given to--
       ``(1) the availability of prosecution under the laws of the 
     United States for any conduct that may form the basis for 
     removal and denaturalization; or
       ``(2) removal of the alien to a foreign jurisdiction that 
     is prepared to undertake a prosecution for such conduct.''.
       (b) Authorization of Appropriations.--
       (1) In general.--There are authorized to be appropriated to 
     the Department of Justice such sums as may be necessary to 
     carry out the additional duties established under section 
     103(g) of the Immigration and Nationality Act (as added by 
     this Act) in order to ensure that the Office of Special 
     Investigations fulfills its continuing obligations regarding 
     Nazi war criminals.
       (2) Availability of funds.--Amounts appropriated pursuant 
     to paragraph (1) are authorized to remain available until 
     expended.

     SEC. 6. REPORT ON IMPLEMENTATION OF THE ACT.

       Not later than 180 days after the date of enactment of this 
     Act, the Attorney General, in consultation with the 
     Commissioner of Immigration and Naturalization, shall submit 
     to the Committees on the Judiciary of the Senate and the 
     House of Representatives a report on implementation of this 
     Act that includes a description of--
       (1) the procedures used to refer matters to the Office of 
     Special Investigations in a manner consistent with the 
     amendments made by this Act;
       (2) the revisions, if any, made to immigration forms to 
     reflect changes in the Immigration and Nationality Act made 
     by the amendments contained in this Act; and
       (3) the procedures developed, with adequate due process 
     protection, to obtain sufficient evidence to determine 
     whether an alien may be inadmissible under the terms of the 
     amendments made by this Act.
                                  ____


    Sectional Analysis of Leahy Anti-Atrocity Alien Deportation Act


                                summary

       This bill would make the following four changes in our 
     country's enforcement capability against aliens who have 
     committed atrocities abroad and then try to enter or remain 
     in the United States:
       Amend the Immigration and Nationality Act (INA) to expand 
     the grounds for inadmissibility and deportation to cover 
     aliens who have engaged in acts of torture, as defined in 18 
     U.S.C. Sec. 2340, and extrajudicial killing, as defined in 
     the Torture Victim Protection Act, abroad, as well as expand 
     the scope of the current prohibitions on aliens who have 
     engaged in genocide and particularly severe violations of 
     religious freedom;
       Amend the INA to make clear that aliens who have committed 
     torture, extrajudicial killing or particularly severe 
     violations of religious freedom abroad do not have ``good 
     moral character'' and cannot qualify to become U.S. citizens 
     or for other immigration benefits;
       Direct the Attorney General to establish the Office of 
     Special Investigation (OSI) within the Criminal Division and 
     expand the OSI's authority to investigate, remove, 
     denaturalize, prosecute, or extradite any alien who 
     participated in torture, genocide and extrajudicial killing 
     abroad--not just Nazi war criminals; and
       Direct the Attorney General, in consultation with the INS 
     Commissioner, to report to the Judiciary Committees of the 
     Senate and House of Representatives on implementation of 
     procedures to refer matters to OSI, revise INS forms, and 
     procedures to obtain adequate evidence to develop ``watch 
     lists'' of aliens deemed inadmissible under the bill.


                          sec. 1. short title

       The bill may be cited as the ``Anti-Atrocity Alien 
     Deportation Act of 2001.''


 sec. 2. inadmissibility and removability of aliens who have committed 
            acts of torture or extrajudicial killing abroad

       Currently, the Immigration and Nationality Act (INA) 
     provides that (i) participants in Nazi persecutions during 
     the time period from March 23, 1933 to May 8, 1945, and (ii) 
     aliens who engaged in genocide, are inadmissible to the 
     United States. See 8 U.S.C. Sec. 1182(a)(3)(E)(i)&(ii). 
     Current law also provides that aliens who have participated 
     in Nazi persecutions or engaged in genocide are deportable. 
     See Sec. 1227(a)(4)(D). The bill would amend these sections 
     of the Immigration and Nationality Act by expanding the 
     grounds for inadmissibility and deportation to cover aliens 
     who have committed, ordered, incited, assisted, or otherwise 
     participated in the commission of acts of torture or 
     extrajudicial killing abroad and clarify and expand the scope 
     of the genocide bar.
       Subsection (a) would first amend the definition of 
     ``genocide'' in clause (ii) of section 212(a)(3) of the INA, 
     8 U.S.C. 1182(a)(3)(E)(ii). Currently, the ground of 
     inadmissibility relating to genocide refers to the definition 
     in the Convention on the Prevention and Punishment of the 
     Crime of Genocide. Article III of that Convention punishes 
     genocide, the conspiracy to commit genocide, direct and 
     public incitement to commit genocide, attempts to commit 
     genocide, and complicity in genocide. The bill would modify 
     the definition to refer instead to the ``genocide'' 
     definition in section 1091(a) of title 18, United States 
     Code, which was adopted to implement United States 
     obligations under the Convention and also prohibits attempts 
     and conspiracies to commit genocide.

[[Page S4839]]

       Specifically, section 1091(a) defines genocide as 
     ``whoever, whether in time of peace or in time of war, . . . 
     with the specific intent to destroy, in whole or in 
     substantial part, a national, ethnic, racial or religious 
     group as such: (1) kills members of that group; (2) causes 
     serious bodily injury to members of that group; (3) causes 
     the permanent impairment of the mental faculties of members 
     of the group through drugs, torture, or similar techniques; 
     (4) subjects the group to conditions of life that are 
     intended to cause the physical destruction of the group in 
     whole or in part; (5) imposes measures intended to prevent 
     births within the group; or (6) transfers by force children 
     of the group to another group.'' This definition includes 
     genocide by public or private individuals in times of peace 
     or war. While the federal criminal statute is limited to 
     those offenses committed within the United States or 
     offenders who are U.S. nationals, see 18 U.S.C. 1091(d), the 
     grounds for inadmissibility in the bill would apply to such 
     offenses committed outside the United States that would 
     otherwise be a crime if committed within the United States or 
     by a U.S. national.
       In addition, the bill would broaden the reach of the 
     inadmissibility bar to apply not only to those who ``engaged 
     in genocide,'' as in current law, but also to cover any alien 
     who has ordered, incited, assisted or otherwise participated 
     in genocide abroad. This broader scope will ensure that the 
     genocide provision addresses a more appropriate range of 
     levels of complicity.
       Second, subsection (a) would add a new clause to 8 U.S.C. 
     Sec. 1182(a)(3)(E) that would trigger operation of the 
     inadmissibility ground if an alien has ``committed, ordered, 
     incited, assisted, or otherwise participated in'' acts of 
     torture, as defined in section 2430 of title 18, United 
     States Code, or extrajudicial killings, as defined in section 
     3(a) the Torture Victim Protection Act. The statutory 
     language--``committed, ordered, incited, assisted, or 
     otherwise participated in''--is intended to reach the 
     behavior of persons directly or personally associated with 
     the covered acts. Attempts and conspiracies to commit these 
     crimes are encompassed in the ``otherwise participated in'' 
     language. This language addresses an appropriate range of 
     levels of complicity for which aliens should be held 
     accountable, and has been the subject of extensive judicial 
     interpretation and construction. See Fedorenko v. United 
     States, 449 U.S. 490, 514 (1981); Kalejs v. INS, 10 F. 3d 
     441, 444 (7th Cir. 1993); U.S. v. Schmidt, 923 F. 2d 1253, 
     1257-59 (7th Cir. 1991); Kulle v. INS, 825 F. 2d 1188, 1192 
     (7th Cir. 1987).
       The definitions of ``torture'' and ``extrajudicial 
     killing'' are contained in the Torture Victim Protection Act, 
     which served as the implementing legislation when the United 
     States joined the United Nations' ``Convention Against 
     Torture and Other Cruel, Inhuman or Degrading Treatment or 
     Punishment.'' This Convention entered into force with respect 
     to the United States on November 20, 1992 and imposes an 
     affirmative duty on the United States to prosecute torturers 
     within its jurisdiction. The Torture Victim Protection Act 
     provides both criminal liability and civil liability for 
     persons who, acting outside the United States and under 
     actual or apparent authority, or color of law, of any 
     foreign nation, commit torture or extrajudicial killing.
       The criminal provision passed as part of the Torture Victim 
     Protection Act defines ``torture'' to mean ``an act committed 
     by a person acting under the color of law specifically 
     intended to inflict severe physical or mental pain or 
     suffering (other than pain or suffering incidental to lawful 
     sanctions) upon another person within his custody or physical 
     control.'' 18 U.S.C. Sec. 2340(1). ``Severe mental pain or 
     suffering'' is further defined to mean the ``prolonged mental 
     harm caused by or resulting from (A) the international 
     infliction or threatened infliction of severe physical pain 
     or suffering; (B) the administration or application, or 
     threatened administration or application, of mind-altering 
     substances or other procedures calculated to disrupt 
     profoundly the senses or personality; and (C) the threat of 
     imminent death; or (D) the threat that another person will 
     imminently be subjected to death, severe physical pain or 
     suffering, or the administration or application of mind-
     altering substances or other procedures calculated to disrupt 
     profoundly the senses or personality.'' 18 U.S.C. 
     Sec. 2340(2).
       The bill also incorporates the definition of 
     ``extrajudicial killing'' from section 3(a) of the Torture 
     Victim Protection Act. This law establishes civil liability 
     for wrongful death against any person ``who, under actual or 
     apparent authority, or color of law, of any foreign nation . 
     . . subjects an individual to extrajudicial killing,'' which 
     is defined to mean ``a deliberated killing not authorized by 
     a previous judgment pronounced by a regularly constituted 
     court affording all the judicial guarantees which are 
     recognized as indispensable by civilized peoples. Such term, 
     however, does not include any such killing that, under 
     international law, is lawfully carried out under the 
     authority of a foreign nation.''
       Both definitions of ``torture'' and ``extrajudicial 
     killing'' require that the alien be acting under color of 
     law. A criminal conviction, criminal charge or a confession 
     are not required for an alien to be inadmissible or removable 
     under the new grounds added in this subsection of the bill.
       The final paragraph in subsection (a) would modify the 
     subparagraph heading to clarify the expansion of the grounds 
     for in admissibility from ``participation in Nazi persecution 
     or genocide'' to cover ``torture or extrajudicial killing.''
       Subsection (b) would amend section 237(a)(4)(D) of the INA, 
     8 U.S.C. Sec. 1227(a)(4)(D), which enumerates grounds for 
     deporting aliens who have been admitted into or are present 
     in the United States. The same conduct that would constitute 
     a basis of inadmissibility under subsection (a) is a ground 
     for deportability under this subsection of the bill. Under 
     current law, assisting in Nazi persecution and engaging in 
     genocide are already grounds for deportation. The bill would 
     provide that aliens who have committed any act of torture or 
     extrajudicial killing would also be subject to deportation. 
     In any deportation proceeding, the burden would remain on the 
     government to prove by clear and convincing evidence that the 
     alien's conduct brings the alien within a particular ground 
     of deportation.
       Subsection (c) regarding the ``effective date'' clearly 
     states that these provisions apply to acts committed before, 
     on, or after the date this legislation is enacted. These 
     provisions apply to all cases after enactment, even where the 
     acts in question occurred or where adjudication procedures 
     within the Immigration and Naturalization Service (INS) or 
     the Executive Office of Immigration Review were initiated 
     prior to the time of enactment.


    SEC. 3. INADMISSIBILITY AND REMOVABILITY OF FOREIGN GOVERNMENT 
    OFFICIALS WHO HAVE COMMITTED PARTICULARLY SEVERE VIOLATIONS OF 
                           RELIGIOUS FREEDOM

       This section of the bill would amend section 212(a)(2)(G) 
     of the INA, 8 U.S.C. Sec. 1182(a)(2)(G), which was added as 
     part of the International Religious Freedom Act of 1998 
     (IFRA), to expand the grounds for inadmissibility and 
     removability of aliens who commit particularly severe 
     violations of religious freedom. Current law bars the 
     admission of an individual who, while serving as a foreign 
     government official, was responsible for or directly carried 
     out particularly severe violations of religious freedom 
     within the last 24 months. 8 U.S.C. Sec. 1182(c)(2)(G). The 
     existing provision also bars from admission the individual's 
     spouse and children, if any. ``Particularly severe violations 
     of religious freedom'' is defined in section 3 of IFRA to 
     mean ``systematic, ongoing, egregious violation of religious 
     freedom, including violations such as (a) torture or cruel, 
     inhuman, or degrading treatment or punishment; (B) prolonged 
     detention without charges; (C) causing the disappearance of 
     persons or clandestine detention of those persons; or (D) 
     other flagrant denial of the right to life, liberty, or the 
     security of persons. While IRFA contains numerous provisions 
     to promote religious freedom and to prevent violations of 
     religious freedom throughout the world, including a wide 
     range of diplomatic sanctions and other formal expressions of 
     disapproval, section 212(a)(2)(G) is the only provision which 
     specifically targets individual abusers.
       Subsection (a) would delete the 24-month restriction in 
     section 212(a)(2)(G) since it limits the accountability, for 
     purposes of admission, to a two-year period. This limitation 
     is not consistent with the strong stance of the United States 
     to promote religious freedom throughout the world. 
     Individuals who have committed particularly severe violations 
     of religious freedom should be held accountable for their 
     actions and should be admissible to the United States 
     regardless of when the conduct occurred.
       In addition, this subsection would amend the law to remove 
     the current bar to admission for the spouse or children of a 
     foreign government official who has been involved in 
     particularly severe violations of religious freedom. The bar 
     of inadmissibility is a serious sanction that should not 
     apply to individuals because of familiar relationships that 
     are not within an individual's control. None of the other 
     grounds relating to serious human rights abuse prevent the 
     spouse or child of an abuser from entering or remaining 
     lawfully in the United States. Moreover, the purpose of these 
     amendments is to make those who have participated in 
     atrocities accountable for their actions. That purpose is not 
     served by holding the family members of such individuals 
     accountable for the offensive conduct over which they had no 
     control.
       Subsection (b) would amend section 237(a)(4) of the INA, 8 
     U.S.C. Sec. 1227(A)(4), which enumerates grounds for 
     deporting aliens who have been admitted into or are present 
     in the United States, to add a new clause (E), which provides 
     for the deportation of aliens described in subsection (a) of 
     the bill.
       The bill does not change the effective date for this 
     provision set forth in the original IFRA, which applies the 
     operation of the amendment to aliens ``seeking to enter the 
     United States on or after the date of the enactment of this 
     Act.''


SEC. 4. BAR TO GOOD MORAL CHARACTER FOR ALIENS WHO HAVE COMMITTED ACTS 
 OF TORTURE, EXTRAJUDICIAL KILLINGS, OR SEVERE VIOLATIONS OF RELIGIOUS 
                                FREEDOM.

       This section of the bill would amend section 101(f) of the 
     INA, 8 U.S.C. Sec. 1101(f), which provides the current 
     definition of ``good moral character,'' to make clear that 
     aliens who have committed torture, extrajudicial killing--
     severe violation of religious freedom abroad do not qualify. 
     Good moral character

[[Page S4840]]

     is a prerequisite for certain forms of immigration relief, 
     including naturalization, cancellation of removal for 
     nonpermanent residents, and voluntary departure at the 
     conclusion of removal proceedings. Aliens who have committed 
     torture or extrajudicial killing, or severe violations of 
     religious freedom abroad cannot establish good moral 
     character. Accordingly, this amendment prevents aliens 
     covered by the amendments made in sections 2 and 3 of the 
     bill from becoming United States citizens or benefitting from 
     cancellation of removal or voluntary departure. Absent such 
     an amendment there is no statutory bar to naturalization for 
     aliens covered by the proposed new grounds for 
     inadmissibility and deportation.


     SEC. 5. ESTABLISHMENT OF THE OFFICE OF SPECIAL INVESTIGATIONS

       Attorney General Civiletti established OSI in 1979 within 
     the Criminal Division of the Department of Justice, 
     consolidating within it all `investigative and litigation 
     activities involving individuals, who prior to and during 
     World War II, under the supervision of or in association with 
     the Nazi government of Germany, its allies, and other 
     affiliated [sic] governments, are alleged to have ordered, 
     incited, assisted, or otherwise participated in the 
     persecution of any person because of race, religion, national 
     origin, or political opinion.'' (Att'y Gen. Order No. 851-
     79). The OSI's mission continues to be limited by that 
     Attorney General Order.
       This section would amend the Immigration and Nationality 
     Act, 8 U.S.C. Sec. 1103, by directing the Attorney General to 
     establish an Office of Special Investigations within the 
     Department of Justice with authorization to investigate, 
     remove, denaturalize, prosecute or extradite any alien who 
     has participated in Nazi persecution, genocide, torture or 
     extrajudical killing abroad. This would expand OSI's current 
     authorized mission. In order to fulfill the United States' 
     obligation under the ``Convention Against Torture and Other 
     Cruel, Inhuman or Degrading Treatment or Punishment'' to hold 
     accountable torturers found in this country, the bill 
     expressly directs the Department of Justice to consider the 
     availability of prosecution under United States laws for any 
     conduct that forms the basis for removal and 
     denaturalization. In addition, the Department is directed to 
     consider deportation to foreign jurisdictions that are 
     prepared to undertake such a prosecution. Statutory and 
     regulatory provisions to implement Article 3 of that 
     Convention Against Torture, which prohibits the removal of 
     any person to a country where he or she would be tortured, 
     may also be part of this consideration. Additional funds are 
     authorized for these expanded duties to ensure that OSI 
     fulfills its continuing obligations regarding Nazi war 
     criminals.


              SEC. 6. REPORT OF IMPLEMENTATION OF THE ACT

       This section of the bill would direct the Attorney General, 
     in consultations with the INS Commissioner to report within 
     six months on implementation of the Act, including procedures 
     for referral of matters to OSI, any revisions made to INS 
     forms to reflect amendments made by the bill, and the 
     procedures developed, with adequate due process protection, 
     to obtain sufficient evidence and determine whether an alien 
     is deemed inadmissible under the bill.
                                 ______
                                 
 

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