ELI M. ROSENBAUM
DIRECTOR OF THE OFFICE OF SPECIAL INVESTIGATIONS
DEPARTMENT OF JUSTICE
UNITED STATES HOUSE OF REPRESENTATIVES
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS
“OVERSIGHT OF THE CONVENTION AGAINST TORTURE”
July 11, 2003
Chairman Hostettler, Ranking Member Jackson-Lee, and Members of the Subcommittee, I am pleased to have the opportunity to appear before you today concerning the application of the United Nations Convention Against Torture or Other Cruel, Inhumane, or Degrading Treatment or Punishment (commonly known as the Convention Against Torture (“CAT”)) to foreign nationals who have participated in war crimes, torture, and other human rights violations prior to arriving in the United States.
My name is Eli M. Rosenbaum, and I am the Director of the Office of Special Investigations (OSI) in the Justice Department’s Criminal Division.
I would like to preface my statement by noting the Administration's commitment to the Torture Convention. On June 26, 2003, United Nations International Day in Support of Victims of Torture, the United States joined in global commemorations of the date in 1987 when the CAT came into force, and President Bush urged all governments "to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment." The Department of Justice echoes this commitment.
I would also note that OSI has had only limited experience with the Torture Convention. As the Subcommittee is aware, OSI was created in 1979 and was charged by the Attorney General with the task of investigating and taking legal action to denaturalize and deport persons who participated in acts of persecution sponsored by Nazi Germany or its allies during World War II. The unit’s creation was largely a response to Congressional dissatisfaction with the Government’s performance in the Nazi cases, nearly all of which had been lost in the courts, with the result that just two Nazi criminals had been removed from the United States in the three-and-a-half decades immediately following the end of World War II. Over the past 24 years, OSI has won the denaturalization of 71 Nazi persecutors and has accomplished the removal of 57 such persons. Twenty Nazi cases are before the courts at this time. Through a border control watchlist program, OSI, with the assistance of personnel of the Immigration and Naturalization Service, now serving with the Department of Homeland Security, has prevented more than 160 suspected Axis persecutors from entering the United States. To date, however, only one OSI respondent has filed a claim under the Torture Convention. That application was denied by an immigration judge earlier this year – without a hearing – and the case is currently on appeal.
Notwithstanding OSI’s limited experience to date with CAT, I believe that we can offer a useful perspective on the difficulties involved in obtaining the removal of persons who participated in war crimes, torture, and other abuses. OSI’s prosecutors have litigated some of the most complex immigration cases handled by the Justice Department over the past two decades, and all of OSI’s cases have required the Government to prove, by clear and convincing evidence, the respondent’s participation in Nazi crimes against humanity, specifically in acts of persecution committed against Jewish civilians and other victims during World War II. Based in part on that experience, I can offer several observations.
First, the Convention Against Torture, as ratified and implemented, does not contain the bars to relief applicable to asylum and statutory withholding of removal. The statutes dealing with political asylum and withholding of removal, for example, provide that certain malefactors are statutorily barred from eligibility, including persons who assisted in persecution, persons who have committed serious crimes outside the United States, and persons who are considered a danger to United States national security. The Convention Against Torture, as a mandatory form of relief, does not exclude these malefactors.
When Congress enacted the Holtzman Amendment in 1979 to provide for the exclusion and deportation of persons who had assisted in Axis-sponsored persecution, it provided that such persons were automatically barred from virtually all forms of relief or protection from removal available under the Immigration and Nationality Act, including asylum, withholding of removal, suspension of deportation, and cancellation of removal. Thus, OSI’s cases have very rarely
In contrast, there are no mandatory bars to protection under the Convention Against Torture. A person who has committed the most heinous acts – including Nazi crimes and acts of terrorism – or a person who constitutes a grave danger to the national security of the United States, is nonetheless eligible for protection under the Convention Against Torture if that individual can prove that he or she is “more likely than not” to be tortured in the designated destination country.
Second, while claims have been rare in the World War II cases to date, the situation is likely to be different with removal actions involving “modern-day” human rights violators. The Convention Against Torture did not enter into force with respect to the United States until November 20, 1994, and the pertinent provisions of Article 3 were not implemented in United States law until 1999. Thus, the majority of OSI’s cases were litigated before protection under the Convention was available. Defendants in recent OSI cases have generally refrained from filing CAT claims, presumably because the Government has sought their removal to countries in Europe that are signatories to the Convention and where torture is prohibited and rare, and where there is simply no credible reason to believe that any of those countries would inflict torture as punishment for actions taken on behalf of a long-defunct regime with which they either never clashed or with which they were last at war more than five decades ago. In contrast, some “modern-day” human rights violators are likely to be nationals of countries that are politically unstable, where torture is likely to be used and legal protections against torture are not available. These cases are, of course, handled by the Department of Homeland Security before the immigration judges and the Board of Immigration Appeals, and are litigated before the courts of the United States by the Civil Division’s Office of Immigration Litigation.
Under those circumstances, some “modern-day” human rights violators may be able to put forward at least a colorable claim of prospective torture, and it will not be possible for an immigration judge to dismiss the claim without a hearing (as was done in the OSI case I mentioned earlier), particularly if the respondent is a national of a country in which one persecutory regime has been replaced by another set of inhumane leaders.
Third, one can expect that many alleged human rights violators will file frivolous claims under CAT for the purpose of delaying their ultimate removal from the United States. Meritless claims or arguments are routinely advanced in removal proceedings by aliens who have little or no prospect of avoiding removal. This has been true in removal cases generally, and it has certainly been true in OSI’s cases. In our time-sensitive efforts to denaturalize and remove Nazi persecutors, OSI attorneys regularly must defend against frivolous challenges to the court’s jurisdiction and respond to long-discredited legal defenses and arguments.
However, the Government’s experience suggests that CAT claims are likely to be filed in many removal cases brought against torturers and other human rights abusers. In FY 2002, immigration judges adjudicated 17,302 CAT claims, of which 558, or just over 3 percent, were granted. Seventy-five of these aliens were granted CAT-based deferral of removal after being adjudged ineligible for withholding of deportation.
I would like to thank the Subcommittee for the opportunity to present this testimony, and I would be pleased to respond to any questions that the Subcommittee may have.