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S. HRG. 110–548 

NO SAFE HAVEN: ACCOUNTABILITY FOR HUMAN 

RIGHTS VIOLATORS IN THE UNITED STATES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

NOVEMBER 14, 2007 

Serial No. J–110–63 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW

RICHARD J. DURBIN, Illinois, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

RUSSELL D. FEINGOLD, Wisconsin 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

TOM COBURN, Oklahoma 

JON KYL, Arizona 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

JOSEPH ZOGBY, Chief Counsel 

MARY CHESSER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma, prepared 

statement .............................................................................................................. 92 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 1 

prepared statement and attachment .............................................................. 94 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 109 

WITNESSES 

Arce, Juan Romagoza, M.D., Executive Director, La Clı ́nica del Pueblo, Washington, D.C. (translated from Spanish by Sally Hanlon) .................................. 24 

Forman, Marcy M., Director, Office of Investigations, Immigration and Customs Enforcement, Department of Homeland Security, Washington, D.C. .... 6 

Mandelker, Sigal P., Deputy Assistant Attorney General, Criminal Division, 

Department of Justice, Washington, D.C. .......................................................... 4 

Merchant, Pamela, Executive Director, Center for Justice and Accountability, 

San Francisco, California .................................................................................... 21 

Scheffer, David, Mayer Brown/Robert A. Helman Professor of Law, Northwestern University School of Law, Chicago, Illinois ......................................... 19 

QUESTIONS AND ANSWERS 

Responses of Dr. Juan Romagoza Arce to a question submitted by Senator 

Durbin ................................................................................................................... 33 

Responses of Marcy M. Forman to questions submitted by Senators Kyl 

and Durbin ............................................................................................................ 34 

Responses of Sigal P. Mandelker to questions submitted by Senators Durbin 

and Kyl .................................................................................................................. 51 

Responses of Pamela Merchant to questions submitted by Senators Durbin 

and Kyl .................................................................................................................. 60 

Responses of David Scheffer to questions submitted by Senators Durbin and 

Kyl ......................................................................................................................... 72

SUBMISSIONS FOR THE RECORD 

Amnesty International USA, statement ................................................................ 78 

Arce, Juan Romagoza, Executive Director, La Clı ́nica del Pueblo, Washington, 

D.C., statement .................................................................................................... 88 

Forman, Marcy M., Director, Office of Investigations, Immigration and Customs Enforcement, Department of Homeland Security, Washington, D.C., 

statement .............................................................................................................. 98 

Human Rights Watch, New York, New York, statement ..................................... 105 

Mandelker, Sigal P., Deputy Assistant Attorney General, Criminal Division, 

Department of Justice, Washington, D.C., statement ....................................... 111 

Merchant, Pamela, Executive Director, Center for Justice and Accountability, 

San Francisco, California, statement ................................................................. 122 

Scheffer, David, Mayer Brown/Robert A. Helman Professor of Law, Northwestern University School of Law, Chicago, Illinois, statement ...................... 131 

(1) 

NO SAFE HAVEN: ACCOUNTABILITY FOR 

HUMAN RIGHTS VIOLATORS IN THE UNITED 

STATES 

WEDNESDAY, NOVEMBER 14, 2007 

U.S. SENATE, 

SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 10 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Richard J. Durbin, 

Chairman of the Subcommittee, presiding. 

Present: Senators Durbin and Cardin. 

OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. 

SENATOR FROM THE STATE OF ILLINOIS 

Senator DURBIN. This hearing will come to order. Welcome to 

‘‘No Safe Haven: Accountability for Human Rights Violators in the 

United States.’’ This is the fifth hearing of the Judiciary Committee’s recently created Subcommittee on Human Rights and the 

Law. 

Unfortunately, our Ranking Member, Senator Coburn, has a 

scheduling conflict and will not be able to join us today, but I can 

tell you based on previous hearings how strongly he feels about the 

mission of this Subcommittee. 

After a few opening remarks and a video, we will turn to our valuable witnesses. 

First, an update on the activities of this Subcommittee. This is 

the first time in Senate history that there has been a Subcommittee focused on human rights and the law. This year, we 

held the first congressional hearings on the law of genocide and 

child soldiers. We have also held hearings on human trafficking 

and the impact of the so-called ‘‘material support’’ bar on victims 

of serious human rights abuses coming to and staying in the 

United States. 

I want to thank Senator Patrick Leahy, the Chairman of the 

Senate Judiciary Committee, for giving me the opportunity of creating this Subcommittee and for being so supportive all along the 

way. 

I have been joined by Senator Coburn in proposing legislation to 

hold accountable perpetrators who have committed genocide, 

human trafficking, and the use or recruitment of child soldiers. The 

Genocide Accountability Act passed the Senate unanimously and, 

after being reported last week by the House Judiciary Committee, 

2 

is awaiting action on the House floor. The Trafficking in Persons 

Accountability Act and the Child Soldiers Accountability Act have 

both been reported unanimously by the Senate Judiciary Committee. I look forward to working with my colleagues to enact these 

proposals into law as soon as possible. 

I said at the outset that the purpose of this Subcommittee was 

not lamentation but legislation. We need to enact laws that will 

further our purposes rather than just lamenting either the past or 

present state of the world. 

Today is another first. This is the first ever congressional hearing on the enforcement of human rights laws in the United States. 

The end of the last century was marked by horrific human rights 

abuses in places such as Bosnia and Rwanda. The early years of 

this century have seen ongoing atrocities committed in places like 

Darfur and Burma. While a growing number of perpetrators of 

human rights abuses have been held accountable, a much larger 

number of perpetrators have escaped accountability. 

Some of these human rights violators have fled to the United 

States. It is almost inconceivable that our Nation has become a 

safe haven for some of the most notorious war criminals. It is hard 

to believe that it has become a hideout for these hideous henchmen 

who have been involved in war crimes around the world. 

A growing number of perpetrators of human rights abuses have 

been held accountable in international, hybrid and state tribunals. 

A much larger number have escaped. 

In the Subcommittee’s last hearing, we discussed how our immigration laws prevent some victims of human rights abuses from 

finding refuge in the United States. What a cruel irony that we 

have constructed laws that exclude victims but somehow have allowed those who are responsible for these hideous acts to find sanctuary in our midst. 

How we as a country treat suspected perpetrators of serious 

human rights abuses in the United States sends an important message to the world about our commitment to human rights and the 

rule of law. The late Simon Wiesenthal, the world’s leading hunter 

of ex-Nazis and those who were involved in the Holocaust, often 

said the appropriate response to human rights violations is ‘‘justice, 

not vengeance.’’ 

I am going to show a brief but graphic video we created for this 

hearing. I have always tried to do that so that we could put our 

actions today in the context of recent history. 

[Videotape played.] 

Senator DURBIN. Our country has a long and proud tradition of 

providing refuge to victims of persecution. These victims hope to 

leave behind the terrible abuses they have suffered in their countries of origin and begin a new life in the United States. They 

should not have to come across those who tortured them, as 

Edgegayehu Taye did at the hotel in Atlanta, Georgia, where she 

worked as a waitress. One day, she walked out of an elevator and 

saw Kelbesso Negewa, the man who had supervised her torture in 

Ethiopia, who was working as a bellhop at the same hotel. These 

victims should not have to fear retaliation or threat of retaliation 

for speaking out against those who persecuted them, as one of our 

3 

witnesses today, Dr. Juan Romagoza Arce, and many like him have 

experienced. 

I want to commend the Justice Department and the Department 

of Homeland Security for their efforts to hold accountable human 

rights violators who seek safe haven in our country. But we have 

to do more. During today’s hearing, we will explore what the Government can do to identify, investigate, and prosecute suspected 

perpetrators. We will also explore what the U.S. Government is 

doing to prevent those perpetrators from coming to the United 

States. 

To my knowledge—and I will stand corrected if the testimony 

shows otherwise—there has only been one indictment in the United 

States of a suspected perpetrator for committing a serious human 

rights abuse. That is unacceptable, and we have to ask why. Why 

do so many suspected human rights abusers seek safe haven in our 

Nation? Are we doing enough as a Government and as a people 

with existing authority? Are new laws granting our Government 

greater authority and jurisdiction necessary? 

Torture is the only serious human rights violation that is a crime 

under U.S. law if committed outside the United States by a nonU.S. national. That is why Senator Coburn and I have introduced 

legislation to give our Government authority to prosecute individuals found in the United States who have participated in genocide, 

human trafficking, and the use or recruitment of child soldiers anywhere in the world. I hope this hearing will shed light on whether 

additional loopholes in the law hinder effective human rights enforcement. 

The United States has a proud tradition of leadership in promoting human rights. By holding perpetrators of serious human 

rights abuses found in the United States accountable, we will demonstrate our commitment to upholding the human rights principles 

we have long advocated. 

Now we turn to our first panel of witnesses for their opening 

statements. I want to note for the record that, for reasons I do not 

understand, our Subcommittee did not receive the written statements from these witnesses until 5 p.m. last night. Judiciary Committee rules require witness testimony to be submitted at least 24 

hours in advance of a hearing. Because the subject matter of this 

hearing is so important, I want to go ahead with these witnesses 

and their testimony, but I urge them to provide their written statements in advance in the future so we can at least review them and 

be in a better position to ask important questions. 

Each witness will have 5 minutes for an opening statement, and 

their complete statements will be made part of the record. 

First, we will swear in the witnesses, which is the custom and 

tradition of the Committee. I would ask them both to stand. Do you 

affirm that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Ms. MANDELKER. I do. 

Ms. FORMAN. I do. 

Senator DURBIN. Let the record reflect that both witnesses answered in the affirmative. 

4 

Our first witness, Sigal Mandelker, is here to represent the Justice Department. Since July of 2006, she has served as Deputy Assistant Attorney General in the Criminal Division. She oversees 

the Office of Special Investigations and the Domestic Security Section—the two Justice Department offices with primary responsibility for prosecuting serious human rights violators. Since 2002, 

she has held a number of senior positions in the administration, including counselor to the Department of Homeland Security Secretary Michael Chertoff, Counsel to the Deputy Attorney General, 

and Special Assistant to then-Assistant Attorney General of the 

Criminal Division, Michael Chertoff. Ms. Mandelker clerked for Supreme Court Justice Clarence Thomas and Judge Edith Jones on 

the Fifth Circuit Court of Appeals, received her bachelor’s degree 

from the University of Michigan and her law degree from the University of Pennsylvania. 

Ms. Mandelker testified at the Subcommittee’s first hearing, on 

genocide and the rule of law, so this is her second appearance before us. Welcome back. The floor is yours. 

STATEMENT OF SIGAL P. MANDELKER, DEPUTY ASSISTANT 

ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT 

OF JUSTICE, WASHINGTON, D.C. 

Ms. MANDELKER. Thank you, Chairman Durbin, and thank you 

for inviting me to testify today. It is a great honor to testify before 

this Subcommittee once again to discuss what I consider to be a 

mission of the highest importance. Both as the Deputy Attorney 

General in the Criminal Division who oversees two key participants in that mission—the Domestic Security Section and the Office of Special Investigations—and also a child of Holocaust survivors, I am pleased to address the Department of Justice’s ongoing 

efforts against the perpetrators of genocide, war crimes, and crimes 

against humanity. I am particularly pleased to testify alongside 

Marcy Forman from ICE who has been a key partner in our efforts. 

It is auspicious to testify before this Subcommittee today, November 14th, a date of considerable importance both in the perpetration and in the fight against human rights violations. It was 

on November 14th of 1935 that the Third Reich issued the first 

regulations implementing the notorious Nuremberg laws. Exactly 

10 years later, after millions had already been massacred, the 

International Military Tribunal convened in Nuremberg, Germany. 

And precisely a half-century later, history repeated itself when the 

International Criminal Tribunal for the former Yugoslavia issued 

its first indictments for genocide arising out of the Srebrenica massacre. 

With this history in mind, as you know, Mr. Chairman, we are 

all compelled to think carefully and more strategically about how 

we can best use our tools and resources to ensure, first, that history does not repeat itself once again; and, second, that human 

rights violators do not find refuge in this country. 

At the Department of Justice’s Criminal Division, where I work, 

we have five sections that work principally to accomplish this mission. First, as I mentioned, the Domestic Security Section and the 

Office of Special Investigations. We also have the Office of International Affairs, the Office of Overseas Prosecutorial Training, DeVerDate Aug 31 2005 11:20 Oct 21, 2008 Jkt 043914 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43914.TXT SJUD1 PsN: CMORC
5 

velopment, and Assistance, and the International Criminal Investigative Training Assistance Program. We are continually taking 

new steps to enhance our capabilities and to maximize our resources. 

So, for example, we have recently refocused the mission of the 

Domestic Security Section so that it now has two primary missions: 

one, working on human rights violator cases; and, two, working on 

immigration fraud cases. And, of course, there is some overlap between the two. 

Similarly, OSI has refocused its work to accomplish the new mission that Congress gave us in 2004, namely, denaturalization of individuals who commit genocide, extra judicial killings, and torture. 

And the Assistant Attorney General for the Criminal Division has 

recently appointed a senior counsel to work principally on human 

rights-related issues. 

Of course, we cannot accomplish this mission alone, and we work 

very closely with the U.S. Attorney’s Offices, ICE, and the FBI, as 

well as the State Department. 

We pursue this mission on multiple fronts. First, we seek to prevent perpetrators from entering the country. Indeed, we have 

helped the Department of Homeland Security in stopping more 

than 180 suspected World War II criminals at U.S. ports of entry 

and have prevented them from entering the country. As recently as 

August of this year, for example, CBP inspectors at JFK Airport 

prevented a former SS officer from entering the United States. 

Among the Nazi perpetrators who have been excluded is Franz 

Doppelreiter, a convicted Nazi criminal who was stopped in November 2004 at the Atlanta airport. He admitted under questioning at 

the airport that he had physically abused prisoners at the notorious Mauthausen concentration camp while serving in the SS. 

Second, we take proactive measures to identify persons who 

have, unfortunately, gained entry to the United States under the 

misimpression that the United States will be a safe haven for 

them. Where we can do so, we bring criminal charges or take other 

appropriate law enforcement actions. Where we cannot bring criminal charges or where justice would be better served by ensuring 

that these individuals stand trial elsewhere, we seek to arrest and 

extradite or transfer these individuals so that they can stand trial 

abroad; or if they have become citizens, to denaturalize them and 

accomplish their departure through administrative removal proceedings. 

Just recently, an immigration judge in Chicago ordered that 

Osyp Firishchak be removed from the United States for his role in 

a Ukrainian police unit that assisted in the annihilation of over 

100,000 Jews in Nazi-occupied Lvov, Poland, during World War II. 

Last, acting principally in conjunction with the Department of 

State, we continue to take important initiatives aimed at enhancing the capacity of foreign governments and international tribunals 

to investigate and prosecute criminal cases against participants in 

genocide, war crimes, and crimes against humanity. 

Each of these areas—identification, exclusion, criminal prosecution, extradition, denaturalization, removal, and foreign capacity 

building—form our comprehensive approach. 

6 

In conclusion, Mr. Chairman, I would like to express to you and 

to the Subcommittee the Department of Justice’s appreciation for 

your leadership and this opportunity to discuss the Government’s 

ongoing efforts to ensure that justice is aggressively pursued both 

here and abroad on behalf of the victims of mass atrocities. We are 

very grateful for the tools that Congress has provided us. Most important, we are committed to continuing to expand our already vigorous efforts to promote fulfillment of the tragically unkept promise 

of Nuremberg: that no man, woman, or child anywhere will ever 

again be subjected to the cruel ravages of genocide, war crimes, 

and crimes against humanity. 

Thank you, Mr. Chairman. 

[The prepared statement of Ms. Mandelker appears as a submission for the record.] 

Senator DURBIN. Thank you, and thank you for your public service. I can tell from your introduction that it extends beyond your 

professional responsibility and certainly has touched your family 

personally, so thank you so much. 

Ms. MANDELKER. Thank you, Mr. Chairman. 

Senator DURBIN. Our next witness, Marcy Forman, is here to 

represent the Department of Homeland Security. Ms. Forman is 

Director of the Office of Investigations for U.S. Immigration and 

Customs Enforcement, known as ICE. In this capacity, she oversees the Human Rights Violators and Public Safety Unit, the Department of Homeland Security office with primary responsibility 

for investigating suspected human rights violators. Before taking 

this position, Ms. Forman was Deputy Assistant Director of the Financial Investigations Division of the ICE Office of Investigation. 

Ms. Forman has over 27 years of law enforcement experience, a 

master’s of science from National-Louis University and a bachelor 

of science degree from American University. 

Thank you for joining us, and please proceed with your testimony. 

STATEMENT OF MARCY M. FORMAN, DIRECTOR, OFFICE OF INVESTIGATIONS, IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C. 

Ms. FORMAN. Thank you, Chairman. Before discussing our 

Human Rights Violators Program, I would like to take you back to 

July 16, 1995. On that date, eight men from an elite unit of the 

Bosnian Serb Army participated in an almost unimaginable atrocity in Srebrenica, a farm village in Bosnia and Herzegovina. According to one of the perpetrators, between 1,000 and 1,200 male 

civilians were executed in a 5-hour period. The civilians were lined 

in groups of ten to fifteen and were summarily executed. The perpetrator, named Marko Boskic, who is depicted on this poster to my 

right, was one of the participants in this atrocity. 

In late 2002, ICE special agents learned that Marko Boskic was 

residing in the United States. This discovery resulted in a nearly 

2-year investigation conducted by ICE and the FBI and substantiated Boskic’s involvement in the murder of 1,000 to 1,200 civilians. In an interview, Boskic admitted that he actually pulled the 

trigger resulting in the deaths of many civilians. On July 12, 2006, 

7 

Boskic was convicted of visa fraud and later sentenced to 63 

months in a Federal prison. Upon completion of his sentence in the 

United States, it is anticipated he will face charges for his atrocities in Bosnia. 

It is my privilege to appear before you today to discuss ICE’s 

comprehensive efforts against human rights violators. ICE is a U.S. 

law enforcement agency that is at the forefront of investigating 

human rights violators involved with genocide, torture, persecution, 

and extra judicial killings. 

In 2003, ICE created the Human Rights Violators and Public 

Safety Unit and the Human Rights Law Division to investigate and 

litigate cases involving human rights violations. Contributing to 

the ICE effort is our Victim/Witness Program, which includes over 

300 victim/witness coordinators who are trained to address the 

needs of the victims of these horrific acts. 

ICE has over 140 active investigations and is pursuing over 800 

leads and removal cases involving suspects from approximately 85 

different countries. These cases are predominantly focused on Central and South America, Haiti, the Balkans, and Africa, and represent cases in various stages of investigation, prosecution, or removal proceedings. From fiscal year 2004 to date, ICE has made 

over 100 human rights-related arrests and obtained 57 indictments 

and 28 convictions. From fiscal year 2004, ICE has removed 238 

human rights violators from the United States. 

Due to the fact that human rights violations and atrocities have 

occurred abroad, law enforcement is often unable to assert U.S. jurisdiction for the substantive crime. In some cases, our ability to 

apply criminal charges that could have been levied in the U.S. may 

have expired due to the statute of limitations. In these situations, 

ICE applies our administrative authorities to ensure that human 

rights violators are investigated and removed from the United 

States. 

For example, in September 2005, the ICE office in Phoenix, Arizona, investigated and arrested 20 former Bosnian Serb military 

members who allegedly belonged to units that were active during 

the Srebrenica massacre. The 5-year statute of limitations relating 

to criminal visa fraud or false statements had expired on seven of 

the 20 violators arrested. ICE was able to use its administrative 

authorities to arrest and place the seven offenders into administrative removal proceedings. 

Successful human rights violations investigations and prosecutions could not be achieved without partnering with other law enforcement agencies, non-governmental organizations, and foreign 

governments. These investigations require ICE to travel the world 

to find evidence and locate and interview victims and witnesses. 

ICE has established a global network through over 50 ICE offices 

in 39 countries, which has allowed us to foster strong international 

relationships. ICE partners with many U.S. Government agencies, 

including the Department of Justice, who is with us today. 

ICE has established relationships with the United Nations-sponsored International Criminal Tribunal for the Former Yugoslavia 

and for Rwanda, and the Special Court for Sierra Leone. As I speak 

before the Committee today, one member of my staff, Richard Butler, is at the ICTY in The Hague, where he is preparing to testify 

8 

as a Subject Matter Expert on the role of military forces and the 

responsibilities of their commanders for war crimes that occurred 

in Srebrenica. Mr. Butler spent 6 years as a military expert at the 

ICTY, and ICE is fortunate to now have him on our staff. 

The following is another example that highlights our international cooperation in human rights violations. On April 1, 2007, 

ICE arrested Ernesto Barreiro for visa fraud charges. Barreiro, a 

former Argentine army officer, was wanted by Argentinean authorities for commanding a clandestine torture facility operated by the 

military in the 1970s. As the chief of the La Perla detention camp, 

Barreiro is alleged to have been involved in at least a dozen cases 

of torture, kidnapping, or extra judicial killings. Barreiro was successfully prosecuted in the Eastern District of Virginia and upon 

completion of his sentence will be deported back to Argentina. 

The results that ICE has obtained in human rights violators 

cases often do not reflect the significant commitment of resources 

and time to these types of investigations. These cases are unique. 

In most cases, the atrocities committed by the targets of our investigations happened years or even decades earlier. 

Many of the atrocities have occurred in remote locations and 

have caused displacement of the victim population, resulting in 

many victims and witnesses scattered around the world. 

Many cases rely on documentary evidence to show where military or security units were located when atrocities were committed. 

Foreign military or other government records are often not available or, worse yet, have been destroyed. And law enforcement 

must, therefore, attempt to identify victims or witnesses wherever 

they may be. 

Human rights violators represent the worst of humanity. ICE is 

committed to dedicating the resources necessary to investigate, 

present for prosecution, and remove from the U.S. those individuals 

who have participated in these atrocities in order to ensure that 

the United States does not become a safe haven for human rights 

violators. 

Thank you, and thank you for having me at this hearing. 

[The prepared statement of Ms. Forman appears as a submission 

for the record.] 

Senator DURBIN. Well, thank you both for your testimony, and, 

without objection, Senator Leahy’s statement for the record will be 

entered into the official record of this proceeding. 

Ms. Forman, we are going to hear testimony today from Dr. Juan 

Romagoza about horrific torture that he suffered in El Salvador. A 

U.S. court held that two former Salvadorean generals were responsible for his torture in a civil suit. Today, those two individuals responsible for his torture are living freely in Florida. 

Why has the Department of Homeland Security not sought to remove these human rights abusers from our country? 

Ms. FORMAN. I am not totally familiar with those circumstances. 

I would have to get back to you and get you an answer on that 

question. 

Senator DURBIN. I hope you will. 

Ms. FORMAN. I will. 

Senator DURBIN. Let me ask you, has the Department of Homeland Security ever sought to remove someone from the United 

9 

States on the basis of his or her command responsibility for serious 

human rights abuses like torture or extra judicial killing? 

Ms. FORMAN. I am not aware based on those conditions. I know 

each case is evaluated on a case-by-case basis, but I do not know 

specifically for that particular reason. 

Senator DURBIN. So do you know whether command responsibility is taken into consideration as one of the reasons for your Department to act? 

Ms. FORMAN. I do not believe that is one of the conditions at this 

time. 

Senator DURBIN. Can you tell me, do you know the reasoning behind that? 

Ms. FORMAN. No, I do not. 

Senator DURBIN. Ms. Mandelker, you testified that the Justice 

Department is ‘‘committed to bringing criminal prosecutions 

against individuals for substantive human rights-related violations.’’ In December 2006, the Justice Department indicted Chuckie 

Taylor for the crime of torture. I understand this is the first indictment the Justice Department has ever brought under the 1994 Torture Statute and the first it has ever brought for a substantive 

human rights violation. 

If our Department of Justice is committed to prosecuting human 

rights cases, why have we only had one human rights prosecution? 

Ms. MANDELKER. Mr. Chairman, that is a very good question, 

and I can tell you that we are certainly committed to investigating 

and prosecuting more of these cases. You may be aware that we 

recently superseded in the Chuckie Taylor case bringing charges 

related to additional victims and acts of torture. 

I can also tell you that it is often the case that these sorts of 

cases are time-intensive, resource-intensive. They principally involve—or really solely involved incidents that occurred overseas, 

often distant in the past, and they involve foreign documents. We 

have to undertake to translate those documents, find witnesses. 

But we are committed to doing so. 

Of course, we have brought charges against individuals who we 

believe have committed human rights violations, whether we have 

brought them for visa fraud—we have the Nazi program in which 

we have denaturalized, I believe, over 100 individuals. But from experience, we know these are difficult cases to bring. What we are 

trying to do now at the Justice Department is think through strategically how we can attack this problem from a more sort of coordinated, and how can we ensure that we are committing the resources that we need to, to bring additional cases. That— 

Senator DURBIN. So—go ahead. 

Ms. MANDELKER. That is why, for example, as I mentioned, we 

have refocused the mission of the Domestic Security Section. That 

is why the Office of Special Investigations is taking on this new 

mission, and we are taking that mission very seriously. 

Senator DURBIN. So going beyond the obvious evidentiary challenges and the challenges of having the staff to reach the goal of 

a successful prosecution, do you face legal obstacles? 

Ms. MANDELKER. Sure, Mr. Chairman. As you know, first and 

foremost we can only prosecute individuals based within a particular time period, whether it is because of the statute of limitaVerDate Aug 31 2005 11:20 Oct 21, 2008 Jkt 043914 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43914.TXT SJUD1 PsN: CMORC
10 

tions or we can only prosecute those individuals for violations that 

occurred after enactment. So that in and of itself would be a challenge. 

Senator DURBIN. We will have a suggestion from a later witness 

here to eliminate from U.S. law all statutes of limitation for atrocity crimes. What is your position on that recommendation? 

Ms. MANDELKER. Mr. Chairman, I would have to get back to you 

on that particular question. I do not know that we have a formal 

administration view. But I am happy to take that question back 

and to get back to you. 

Senator DURBIN. We will also have testimony that many nations 

around the world, friends and allies of the United States, have recently codified these war crimes and crimes characterized as atrocities so that they can be prosecuted within their own countries 

more effectively. Do you feel that this would give you additional 

tools to deal with these wrongdoers? 

Ms. MANDELKER. If we were to amend those current— 

Senator DURBIN. If we were to codify these war crimes as crimes 

within the United States. 

Ms. MANDELKER. I see. Well, as you know, we do have a war 

crimes statute. That statute only reaches U.S.—where the perpetrator was a U.S. national or the victim was a U.S. national. 

Again, I would have to look at the specifics of a particular legislative proposal. I am happy to do so. Certainly it is going to be the 

case that if we have expanded statutory authority, we would be 

able to potentially bring more charges. But I cannot speak to any 

particular legislative proposal in the abstract. We are happy to 

take a look at anything that you would provide. 

Senator DURBIN. I mentioned the case of Dr. Romagoza, who will 

be testifying, and it involved two former Salvadorean generals who 

were found liable under civil law and who continue to live in the 

United States without criminal prosecution. Has the Department of 

Justice considered criminal prosecution against these two individuals? 

Ms. MANDELKER. Mr. Chairman, I am not aware that we have 

considered criminal prosecution. As with Ms. Forman, I am happy 

to take a look at those circumstances. Of course, you need to take 

a look at each case for its individual facts and circumstances to 

make any kind of a determination as to whether or not such a person would be eligible for prosecution under a human rights violation. 

Senator DURBIN. I would like you to get back to me. 

You testified about the case of Kelbessa Negewo—I am sorry if 

I mispronounced it—who was accused of serious human rights 

abuses in Ethiopia and found safe haven in Atlanta, Georgia. 

Negewo was the first person to be charged under the 2004 law 

making torture and extra judicial killing grounds for removal from 

the United States. 

How many other individuals have been charged under this law? 

Ms. MANDELKER. I am sorry. Under the— 

Senator DURBIN. Under this law making torture and extra judicial killing grounds for removal. 

Ms. MANDELKER. I would defer to my colleagues at the Department of Homeland Security since that is a matter— 

11 

Senator DURBIN. That is right. Ms. Forman, do you know? 

Ms. FORMAN. I do not have a specific number, but we have deported a number of individuals involved to their home country for 

prosecution. The Bosnian case that I had mentioned, where the 

seven of the 20 were removed for administrative proceedings, two 

of those individuals are currently facing prosecution in Bosnia. 

Senator DURBIN. Do either of you have any idea of a reasonable 

range of the number of individuals in the United States today who 

are suspected of involvement in war crimes? 

Ms. MANDELKER. I do not have a specific number, Mr. Chairman. 

I think it would be— 

Senator DURBIN. Just an estimate. The video presentation said 

1,000? 

Ms. MANDELKER. Yes. 

Senator DURBIN. We will have testimony later that it is larger. 

Do you have any idea? 

Ms. MANDELKER. I noted that number, and I wondered actually 

where it came from, and I would be interested to see where it came 

from. I can tell you that we have a number of ongoing investigations into individuals who have become citizens and have either potentially committed previously genocide, torture, or extra judicial 

killings. But it would be inappropriate for me to give you a number. I simply do not have one. 

Senator DURBIN. Ms. Forman, you testified that from fiscal year 

2004 to the present, ICE has made over 100 human rights-related 

arrests, obtained 57 indictments, and 28 convictions, and removed 

238 human rights violators from the United States. How many of 

those arrests, indictments, convictions, and removals were for 

human rights violations? How many were for immigration violations? 

Ms. FORMAN. I would have to get back to you with the specific 

numbers broken down that way. But I will tell you many of these 

individuals—these cases are very difficult to prove, the substantive 

violation. And on the criminal cases, more often than not many of 

these individuals were charged with either immigration fraud, visa 

fraud, or false statements. 

Senator DURBIN. My staff, incidentally, tells me, Ms. Mandelker, 

that the number of 1,000 investigations and deportation cases was 

provided by the Department of Homeland Security. 

I would like to ask you, Ms. Forman, in how many of the 238 removals did you obtain assurances that the suspected human rights 

abuser would be prosecuted in his or her home country? 

Ms. FORMAN. That, too, I will have to get back with you. We have 

had successes, but I do not have a specific number for you. 

Senator DURBIN. How large is the Human Rights Violators and 

Public Safety Unit? 

Ms. FORMAN. The headquarters component is approximately five 

people, but our agents, we have approximately 5,600 agents in our 

special agent in charge field offices. Many of those individuals are 

assigned to work these cases. 

Senator DURBIN. How many at any given time would be assigned 

to work these cases? 

Ms. FORMAN. It all depends on—these cases are very complex, so 

normally it would be—we would have a unit that is dedicated, and 

12 

the whole unit could be dedicated to the investigation, if that is 

what it took, plus our foreign arm, our foreign attache offices who 

are pursuing the leads for us. 

Senator DURBIN. Are we talking in terms of dozens or hundreds? 

Ms. FORMAN. On a particular individual, it usually is—if we are 

searching for one or two, it could be two or three at one given time, 

dedicated full-time to pursuing the investigation. 

Senator DURBIN. Your estimate, your Department estimate, is 

that we are talking about a possible range of 1,000 people who 

could be investigated. When you look at all the ongoing investigations at any given time in the Department of Homeland Security, 

how many staffers would be dedicated to those investigations? 

Ms. FORMAN. Well, some of these investigations do not reach 

our—due to statute of limitations, do not reach the criminal level, 

so the criminal investigators—I mean, the cadre—we have 26 special agent in charge offices. Each office has a component that works 

these types of cases, and we have the Human Rights Law Division 

in headquarters who addresses the administrative removal. 

Senator DURBIN. Would there be more than 100 or fewer, at any 

given time, involved in all of the investigations? 

Ms. FORMAN. I would say the combination between the Legal Division, the agents, and the detention removal folks, probably at a 

given time about 100. It could be up to 100. 

Senator DURBIN. Ms. Mandelker, you testified that two lead Justice Department offices in human rights enforcement are the Office 

of Special Investigations and the Domestic Security Section. How 

large is the OSI and how large is DSS? 

Ms. MANDELKER. The Office of Special Investigations has up to 

30 individuals on staff. That is a combination of lawyers, historians 

who have become experts in the various regions, paralegals and 

other administrative staff. 

The Domestic Security Section has approximately 14 trial attorneys. 

Senator DURBIN. How many DSS attorneys focus on enforcing 

human rights laws? 

Ms. MANDELKER. Mr. Chairman, as I mentioned, we have refocused recently the mission of the Domestic Security Section along 

two fronts: one is the human rights violators front, and one is immigration-related violations. At any given time the number of trial 

attorneys assigned to any particular mission might vary, but it is 

roughly, I would say, a 50/50 split. 

That said, there is also often overlap. We also, of course, work 

very closely with our colleagues in the U.S. Attorney’s Offices on 

many of these cases. 

Senator DURBIN. So about seven attorneys would be focused on 

human rights violations? 

Ms. MANDELKER. That is approximately right. 

Senator DURBIN. Is it true that OSI’s jurisdiction extends only to 

denaturalization cases? 

Ms. MANDELKER. Civil and criminal denaturalization. 

Senator DURBIN. Has the Department considered creating an office to focus exclusively on human rights enforcement? 

Ms. MANDELKER. Not that I am aware of, Mr. Chairman. But, 

again, we have recently taken this move to refocus the Domestic 

13 

Security Section. I should mention that the Office of Special Investigations has also recently assisted on some of the visa fraud cases 

that we have brought against Bosnian Serbs who lied on their immigration forms. So OSI is principally focused on denaturalization, 

but we have participated in some other cases as well. 

Senator DURBIN. Ms. Forman, you told us about this case of 

Marko Boskic who was convicted of visa fraud. He had been involved in the Srebrenica massacre involving a substantial number 

of people, and it turns out that he was prosecuted for visa fraud 

instead of serious human rights abuses. 

I would like either one of you to tell me—probably Ms. 

Mandelker would be appropriate. Why is it that the only thing we 

could find to charge this man with was visa fraud? It is reminiscent of convictions of Al Capone for tax fraud. It sounds to me like 

we were searching for anything to find him guilty of instead of the 

obvious. Why is that? 

Ms. MANDELKER. Mr. Chairman, I actually was not at the Department at the time the charges were brought in the Boskic case. 

You know, I can tell you that in any particular case we look at the 

facts and circumstances and the possible charges that we can 

bring, and we are, of course, always committed to bring the most 

readily provable charges that would subject the individual to the 

highest penalties. But I cannot comment on a specific case. 

Senator DURBIN. Well, then, let’s go to the general question. 

Boskic admitted to killing many Bosnian civilians in Srebrenica. 

Under current law, is it possible to prosecute Boskic for these 

crimes in the United States? 

Ms. MANDELKER. Again, Mr. Chairman, it would very much depend on the facts and circumstances of a particular case. 

Senator DURBIN. Well, OK. The crime did not occur in the United 

States, and let’s assume for the sake of discussion there were no 

American victims. Could he be prosecuted in the United States? 

Ms. MANDELKER. If there were no American victims or they were 

not perpetrated by a U.S. national, sitting here today, it is difficult 

for me to come up with a potential charge that we could charge 

him with. 

Senator DURBIN. So if the crime were genocide of Bosnian nationals committed by a Bosnian who was seeking safe haven in the 

United States, you do not believe we have a law that we could 

prosecute him for. 

Ms. MANDELKER. That is correct, Mr. Chairman. 

Senator DURBIN. I see that Senator Cardin is here, and I have 

gone way over 5 minutes, and I want to give him a chance to ask 

before I ask a few more questions. Senator Cardin? 

Senator CARDIN. Well, first, Senator Durbin, thank you for holding this hearing. One of the reasons I was so pleased about the creation of this Subcommittee was to be able to focus on the human 

rights issues and how we can be more effective in dealing with 

human rights internationally. 

I certainly am very concerned about the issue you raised in your 

last question about America being a safe haven for those who have 

committed human rights violations in another country, then tried 

to avoid accountability by coming to our own country. That is unacVerDate Aug 31 2005 11:20 Oct 21, 2008 Jkt 043914 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43914.TXT SJUD1 PsN: CMORC
14 

ceptable, and I thank you for your leadership in pursuing bills that 

deal with that. 

I want to deal with one of the bills that you are the sponsor of, 

and that is the trafficking issue. In trafficking, the United States 

has taken a strong international leadership position. I am very 

proud of the work that has been done in the OSCE, the Helsinki 

Commission, on promoting strong enforcement of laws to fight trafficking and to have zero tolerance in regards to trafficking. 

My question basically deals with the difficulty in sometimes dealing with the receiving countries. The United States is a receiving 

country of people who are trafficking, and I know that we have 

strong laws to deal with that. But I come back to the point as to 

whether our laws are effective in dealing with all of the players 

that are involved in trafficking and whether we can strengthen 

those laws. Senator Durbin has a bill to do that. And what has 

your experience been as far as effectively being able to investigate 

international networks which the United States is part of in trafficking of women or trafficking of labor? 

Ms. MANDELKER. Senator Cardin, as you may know, the responsibility for trafficking lies within two divisions of the Department 

of Justice: 

The Civil Rights Division, which is responsible for the trafficking 

of adults, and they are also responsible for forced labor cases. So 

I would defer to the Civil Rights Division with respect to part of 

that question. 

We also have in the Criminal Division the Child Exploitation and 

Obscenity Section, which is responsible for child sex trafficking. 

And we have brought a number of trafficking cases that we actually consider to be domestic prostitution cases, which also qualify 

as child sex trafficking cases. 

We certainly need to do more. As you are probably aware, it is 

often the case that these are extremely difficult cases to bring because much of the activity, in fact, occurs overseas. We work very 

closely with ICE in that mission. We are committed to doing those 

cases. They are very important cases. 

In fact, I was recently in Bangkok, Thailand, and I had a briefing 

on sex tourism. These are terrible, terrible crimes. These children, 

whether in the United States, brought into the United States, or 

victimized overseas, are among the most vulnerable victims, children who are subject to sexual exploitation. They are difficult 

cases, but they are well worth the resources when you think about 

the victims, when you think about helping them can get on the 

course to a better life, and when you think about the need to bring 

these traffickers to justice so that they cannot victimize children 

again. 

Senator CARDIN. Well, I agree completely with what you just 

said. I would feel a little more comfortable, though, if you could 

outline what additional tools would be helpful, either in change of 

law so that some of the venue issues or limitation issues that may 

be hindering your ability to pursue these cases are more effectively 

handled by our laws; and, second, whether you have the resources 

necessary, considering the complexity of these types of cases, they 

multi-state jurisdictional; and, last, whether we need stronger atVerDate Aug 31 2005 11:20 Oct 21, 2008 Jkt 043914 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43914.TXT SJUD1 PsN: CMORC
15 

tention in the international diplomatic areas to pursue these types 

of cases. 

It has been brought to my attention that in some of the trafficking cases it has not gotten the type of attention in the country 

in which the traffickers originate, and that whether we need to put 

more international diplomacy to these issues. 

Ms. MANDELKER. Senator, as to your latter question, as I am 

sure you are aware, the State Department is, in fact, very engaged 

internationally in terms of bringing attention to this important 

issue. And we also have, of course, within the Criminal Division individuals who participate in training overseas. We work cases with 

our partners, law enforcement partners overseas. I think, frankly, 

that Congress is a very important and strong partner in this effort 

because we must all collectively send the message that this activity 

will not be tolerated. The more cases that we bring, frankly, the 

more publicity that we bring to light on these types of cases, the 

more that individuals understand that there is accountability if 

they do commit these terrible crimes. I think it is very important 

that we collectively send that public message. 

With respect to resources, of course, we are very grateful for the 

resources that the Congress has given to the Department of Justice, and we are committed to using those resources effectively and 

to dedicating the appropriate resources to these sorts of cases. 

With respect to legislation, I sitting here today cannot give you 

a formal position on any particular piece of legislation, but we are 

always happy to work with the Congress on looking at legislation 

and looking at changes to the law if necessary. 

Senator CARDIN. And please do not misconstrue my questions. I 

am proud of the leadership that the United States has played on 

fighting trafficking. I think we have raised this issue at the highest 

levels internationally, have placed high priority on it, have made 

significant progress internationally in dealing with it, have 

changed the attitudes within our military facilities where they are 

located in the host countries to deal with the issues. So I think we 

have done a lot to bring this issue forward. But I think more can 

be done, and I would very much encourage the type of activity 

within your agency to give us help as to where are the problems 

you are confronting and what we can do to try to deal with that. 

This is a continuing effort, and we need to continuously raise these 

issues. 

There are a lot of countries that we have very friendly relations 

with that are not doing what they need to do in this area. 

Thank you, Mr. Chairman. 

Senator DURBIN. Thank you very much, Senator Cardin. 

Ms. Forman, I understand that ICE is developing a Human 

Rights Tracking Center to collect information on human rights 

abusers and war criminals. What does the Department of Homeland Security currently do to ensure that human rights violators do 

not enter the country in the first place? 

Ms. FORMAN. We work collectively with our partners. The center 

that we are proposing to create—we have not created it yet—would 

be a one-stop shopping for human rights violators, a repository. So 

the subject matter experts, the attorneys, the historians, the investigators, and all other relevant parties would be in one spot, and 

16 

it would be a repository for a list that have already been identified 

all over the world of human rights violators so we can address it 

at the front end before these individuals working with our foreign 

counterparts, with the State Department, with our partners at 

DHS and DOJ to ensure these individuals do not get visas to come 

into this country. 

Senator DURBIN. Ms. Mandelker, you testified that extensive efforts have been made to identify and exclude participants in genocide and other heinous mass atrocity crimes. You stated specifically 

that our Government has successfully stopped more than 180 suspected World War II criminals at the border. How many modernday war criminals has our Government stopped at the border? 

Ms. MANDELKER. Chairman Durbin, I would have to defer to 

CBP for that answer. We are— 

Senator DURBIN. CBP would be? 

Ms. MANDELKER. Customs and Border Protection, since they are 

responsible for the entrants at ports of entry. However, I do know 

that we are continually working to try to identify more individuals 

who can be entered into the border control system to ensure that 

such individuals are not permitted to enter the country. We certainly can and must do more, and we are thinking through carefully how we can enhance the number of individuals who are indeed entered into those systems. 

Senator DURBIN. Ms. Forman, can you answer that question? 

Ms. FORMAN. No. I would have to get back to you. 

Senator DURBIN. OK. The premise of this hearing is that, unfortunately, as Senator Cardin also noted, the United States has become a safe haven for notorious war criminals. That is certainly 

something that is a matter of great concern to all of us. 

Do you share my concern, after listening to your responses, of 

how limited our commitment is to changing this? When we talk 

about a handful of lawyers at the Department of Justice, or no 

more than 100 people in your Department of Homeland Security 

involved in this, I am afraid it leads one to believe that this is not 

a serious commitment. And when we hear of the obvious gross injustice of two Salvadorean generals who have been found liable in 

a civil court for torture, living safely in Miami without prosecution, 

it has to lead me to the conclusion that we are not serious about 

this. If we were serious, I think our laws would be changing. I 

think there would be more people focused on it. 

Would you like to tell me I am wrong? 

Ms. MANDELKER. Well, Mr. Chairman, I share your strong and 

deep commitment to this issue, and what I can tell you is that 

within my capability and within my resources, we are dedicating 

a number of individuals in this fight. There is no question that it 

is unacceptable for this country to be a safe haven for human 

rights violators, and so we are, again, constantly thinking strategically how we can maximize our resources. 

So, for example, while I have a limited number of attorneys in 

the two sections that I noted—and, of course, we do have three 

other sections who work principally overseas who are also committed to this issue and are doing a lot of very good work—we need 

to export our expertise to the U.S. Attorney’s Offices. And so we 

are thinking about—or we are putting together a training course 

17 

so that we can enlist additional U.S. Attorneys, prosecutors, to this 

fight. We do have a number of Assistant U.S. Attorneys who have 

been very helpful in this endeavor, but we need to maximize—there 

is no question that we need to maximize our resources. There is no 

question that we need to do more training. And I am particularly 

pleased, frankly, Mr. Chairman, to be at the Department of Justice 

at this time when there is a Subcommittee that is so dedicated to 

this issue and where we have the capability to expand our capabilities. 

But I share your concern, Mr. Chairman. 

Senator DURBIN. Ms. Forman? 

Ms. FORMAN. What I can comment is when ICE has these types 

of investigations—I mentioned the 5,600 special agents—we will 

dedicate all the necessary resources to go after these individuals, 

both domestic and foreign, and what it takes to track these individuals down, certainly recognizing that we have human trafficking 

responsibilities and so forth. But there are cases we will dedicate 

the resources necessary to go after these individuals. 

Senator DURBIN. Thank you, and— 

Senator CARDIN. Could I ask a question, if you would yield? 

Senator DURBIN. Certainly. 

Senator CARDIN. Thank you. Because I understand your efforts 

to deport individuals who come in under fraudulent circumstances, 

and the laws are pretty clear about that. If you have the resources, 

you can be successful in dealing with that, including those who 

have been naturalized as far as their citizenship is concerned. 

But Senator Durbin asked a question a little bit earlier that had 

me concerned, and that is, if you have a non-American who is in 

this country who has committed or is alleged to have committed a 

human rights violation that would be a violation of our laws, but 

not involving an American, that we would be limited as to what we 

could do to hold that person accountable under current law. And 

there are bills here that strongly support holding accountable individuals who have violated international human rights standards, 

war crimes, genocide, those types of activities. I am concerned that 

just by allowing that person to leave our country, that person may 

escape accountability. 

Now, I am sensitive to the issues that we have with other countries as to their sovereignty and the right to prosecute in their 

countries and our relationships with other countries and how 

Americans will be treated in other countries. But it seems to me 

that when we are dealing with serious human rights violations, we 

need to strengthen our ability to hold criminally accountable those 

who have committed war crimes, particularly where the native 

country is not prepared to do that. 

So I just really want to underscore the point that Senator Durbin 

has said. I hope that we can work together to figure out how we 

can come up with the strongest possible laws in this country, consistent with our international obligations, to make it clear that the 

United States will not only we will prevent a safe haven for those 

who have committed human rights violations, but will hold accountable individuals who are under our control, they are in our 

country, who have violated international norms, who have committed war crimes, genocide and other types of human rights violaVerDate Aug 31 2005 11:20 Oct 21, 2008 Jkt 043914 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43914.TXT SJUD1 PsN: CMORC
18 

tions that are—not only do we want them out of our country, we 

want them held accountable. We want these people held accountable. 

Thank you, Mr. Chairman, for that, but I wanted to make sure 

that point is clear in our record, that it is not just deporting these 

individuals or taking away their naturalized citizenship. It is holding them accountable for the violations of human rights. 

Senator DURBIN. Senator Cardin, thank you, and thanks to Ms. 

Forman and Ms. Mandelker for being our first panel at this important hearing. We are going to continue to work with you. I hope 

that you will get back to us. We will send you some written questions, and I hope you will get back to us on some of the questions 

that you needed additional time to prepare answers. 

Thank you very much. 

Ms. FORMAN. Thank you. 

Ms. MANDELKER. Thank you. 

Senator DURBIN. I now invite our second panel to the table. 

While they are taking their seats, I am going to give an introduction for each of them in the interest of time. Included in this panel 

is Ambassador David Scheffer, the Mayer Brown/Robert A. Helman 

Professor of Law, and Director of the Center for International 

Human Rights at Northwestern University School of Law. From 

1997 to 2001, Ambassador Scheffer was the U.S. Ambassador at 

Large for War Crimes Issues. In this capacity, he negotiated and 

coordinated U.S. support for the establishment and operation of 

international and hybrid criminal tribunals and U.S. responses to 

atrocities throughout the world. He also headed the Atrocities Prevention Inter-Agency Working Group. Ambassador Scheffer recently held visiting professorships at Northwestern Law, the highly 

respected Georgetown University Law Center, and George Washington University Law School. He graduated from Harvard College, 

Oxford University, and the Georgetown University Law Center. 

Our next witness in the panel will be Pamela Merchant. Since 

2005, Ms. Merchant has been the Executive Director of the Center 

for Justice and Accountability, a nonprofit legal organization dedicated to ending torture and other severe human rights abuses. She 

spent 8 years as a Federal prosecutor with the U.S. Department of 

Justice. Recently, she was Special Counsel to the California Attorney General. Ms. Merchant graduated with honors from Georgetown University and Boston College School of Law. We thank her 

for joining us. 

And our final witness is Dr. Juan Romagoza Arce, the Executive 

Director of La Clı ́nica del Pueblo, a public health clinic which provides free, comprehensive health care and education services to the 

poor and uninsured in Washington, D.C. Dr. Romagoza was born 

in El Salvador and, as part of his medical training, set up medical 

clinics and provided health education to the underserved in the 

poor areas of San Salvador and neighboring communities. 

In December 1980, Dr. Romagoza was detained and tortured for 

22 days at the National Guard headquarters in San Salvador. His 

torture has permanently deprived him of his ability to perform surgery. After his release from prison, he fled El Salvador and arrived 

in the United States in 1983. 

19 

In 1999, Dr. Romagoza and two co-plaintiffs brought a civil suit 

against Generals Garcia and Vides Casanova for torture and other 

human rights abuses. In July 2002, a Federal jury returned a verdict against the generals, holding them responsible for the torture 

of Dr. Romagoza and his fellow plaintiffs. 

Dr. Romagoza has received many awards, including the Community Health Leadership Award from the Robert Wood Johnson 

Foundation, and was named one of Washingtonian Magazine’s 

Washingtonians of the Year in 2005 for his work with La Clı ́nica 

del Pueblo. 

It is an honor to have you, Doctor, as well as the other witnesses 

on this panel, before us today. And as I mentioned earlier, it is customary for us to administer an oath. I ask you all to please stand 

and raise your right hand. Do you affirm the testimony you are 

about to give before the Committee will be the truth, the whole 

truth, and nothing but the truth, so help you God? 

Mr. SCHEFFER. I do. 

Ms. MERCHANT. I do. 

Dr. ROMAGOZA. I do. 

Senator DURBIN. Thank you very much. The record will indicate 

that you answered in the affirmative. 

Professor Scheffer, before you start, I read your statement, and 

I also read the accompanying document, over 30 pages. But it was 

very good, and I thank you for it. It really put a number of issues 

in perspective and helped me in preparing questions for the earlier 

witnesses. I would now like to invite you to speak for about 5 minutes. Your entire statement will be made part of the record, and 

then we will follow with the other two members of the panel before 

we ask questions. 

STATEMENT OF DAVID SCHEFFER, MAYER BROWN/ROBERT A. 

HELMAN PROFESSOR OF LAW, NORTHWESTERN UNIVERSITY SCHOOL OF LAW, CHICAGO, ILLINOIS 

Mr. SCHEFFER. Thank you. I wish to thank you, Chairman Durbin, and Senator Coburn and Senator Cardin and all the other 

members of this Subcommittee for this opportunity. 

Senator Durbin, I am very proud to live and work in Illinois. I 

understand that Senator Coburn is unable to be with us today, but 

I want to note for the record that I take great pride in being born 

and raised in Norman, Oklahoma. 

From 1997 to 2001, I was the Ambassador at Large for War 

Crimes Issues. While I served and in the years since, I always 

maintained that war crimes work is and must remain nonpartisan 

and bipartisan, and I believe this Subcommittee proves that point 

in spades. 

After all that has been experienced since the precedents of the 

Nuremberg and Tokyo Military Tribunals and the scores of cases 

prosecuted by the international criminal tribunals during the last 

15 years, one would be forgiven to assume that surely, in the 

United States, the law is now well established to enable U.S. 

courts—criminal and military—to investigate and prosecute the full 

range of genocide, crimes against humanity, and war crimes—what 

I call ‘‘atrocity crimes’’—that have been codified in treaty law, prosecuted before the international criminal tribunals, and well estabVerDate Aug 31 2005 11:20 Oct 21, 2008 Jkt 043914 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43914.TXT SJUD1 PsN: CMORC
20 

lished as customary international law. That, however, is not the 

case. The fact remains that as we approach 2008, the United States 

remains a safe haven under too many circumstances for perpetrators of atrocity crimes. 

Unfortunately, U.S. Federal criminal law has become comparatively antiquated during the last 15 years in its coverage of atrocity 

crimes as international criminal law has evolved significantly during that period. The prospects of U.S. courts exercising jurisdiction, 

whether it be subject matter, territorial, personal, passive nationality, or protective jurisdiction, over atrocity crimes under current 

law remain relatively poor. In contrast, the United Kingdom, Australia, Canada, Germany, New Zealand, Argentina, Spain, and 

South Africa have leapt ahead of the United States in terms of 

their national courts being able to investigate and prosecute the 

full range of atrocity crimes. France, Japan, Mexico, Switzerland, 

Finland, Sweden, Brazil, and Norway are in the process of legislating incorporation of atrocity crimes into their respective criminal 

codes. 

Under too many scenarios, the United States remains an available safe haven for war criminals and atrocity lords who need not 

fear prosecution before U.S. courts for the commission of atrocity 

crimes if they reach U.S. territory, either legally or illegally. The 

notable exception has been the sole case, the Emmanuel ‘‘Chuckie’’ 

Taylor case, prosecuted under the criminal torture statute. 

But there has been some progress. I applaud the bipartisan work 

of this Subcommittee during 2007 with the Genocide Accountability 

Act, the Child Soldiers Accountability Act, and the Trafficking in 

Persons Accountability Act. This set of legislation, if enacted into 

law, would close critical gaps in U.S. law regarding the current inability to prosecute such crimes under certain circumstances. 

Unfortunately, this legislation composes only a fraction of atrocity crimes. Generally absent from U.S. law is the kind of jurisdictional regime that would provide the most pragmatic sphere of coverage to ensure that perpetrators of atrocity crimes cannot find 

safe haven in the United States. Current U.S. law in atrocity 

crimes typically exhibits a narrow range of jurisdiction covering actions of U.S. citizens, although not necessarily if such action takes 

place abroad, or crimes which occur on U.S. territory. I will summarize my recommendations as follows: 

The United States must eliminate any possibility that it would 

remain a safe haven for war criminals and atrocity lords who reach 

American shores and seek to avoid accountability for atrocity 

crimes. 

Two, enact the Genocide Accountability and Child Soldiers and 

Trafficking in Persons Accountability Acts of 2007 so that key gaps 

in Federal law are filled. 

Three, eliminate from U.S. law most or all statutes of limitations 

for atrocity crimes. 

Four, amend the Federal criminal code so that it enables Federal 

criminal courts to more effectively and unambiguously prosecute 

crimes against humanity and war crimes that are already codified 

in the statutes of the international and hybrid criminal tribunals 

and are defined as part of customary international law. 

21 

Finally, recognize that until such amendments to Title 18 of the 

U.S. Code are enacted, the United States has an antiquated criminal code. Further recognize that the United States stands at a comparative disadvantage with many of its major allies which have 

modernized their national criminal codes in recent years with incorporation of the atrocity crimes in part so as to shield their nationals from investigation and prosecution by the International 

Criminal Court by demonstrating national ability to prosecute such 

crimes and, thus, invoke the court’s principle of complementarity. 

Paradoxically, even as a non-party to the Rome Statute of the 

International Criminal Court, the United States today essentially 

stands more exposed to its jurisdiction than do American allies 

which have modernized their criminal codes. Such modernizing exercises also reflect their pragmatic choice to minimize the exposure 

of the nationals of such nations to the scrutiny of international 

criminal tribunals because national courts will be able to carry that 

responsibility. 

My final comment: Filling the gaps in American law pertaining 

to atrocity crimes would demonstrate that the United States has 

the confidence to reject impunity for such crimes. The United 

States would no longer be a safe haven in reality or as a potential 

destination for untold numbers of perpetrators of atrocity crimes. 

Amending and thus modernizing Title 18 in the manner proposed 

in this testimony would signal the end to exceptionalism in atrocity 

crimes and place the United States on an equal footing with many 

of its allies which already have recast their criminal law to reflect 

the reality of international criminal and humanitarian law in our 

time. 

Thank you, and I would be happy to take any questions. 

[The prepared statement of Mr. Scheffer appears as a submission 

for the record.] 

Senator DURBIN. Thank you, Professor, and we will have questions when we have completed this panel. 

Ms. Merchant, as I mentioned earlier, is with the Center for Justice and Accountability, and I note in her background that she is 

the winner of the third Thomas J. Dodd Prize in International Justice and Human Rights. I am sure that Chris Dodd, who is so 

proud of his father’s service to our country, and recently published 

a book relative to correspondence that his father sent back from 

Nuremberg, will be glad to know that you are here, and I will tell 

him that. So please proceed with your statement. 

STATEMENT OF PAMELA MERCHANT, EXECUTIVE DIRECTOR, 

CENTER FOR JUSTICE AND ACCOUNTABILITY, SAN FRANCISCO, CALIFORNIA 

Ms. MERCHANT. Thank you very much. Chairman Durbin, Senator Cardin, thank you so much for inviting the Center for Justice 

and Accountability and our client, Dr. Juan Romagoza Arce, to testify before this historic Subcommittee on Human Rights and the 

Law. It is truly an honor to be here today, and thank you so much 

for your leadership on this very, very important issue. 

The Center for Justice and Accountability is a nonprofit legal organization dedicated to ending torture and seeking justice. In the 

past 10 years, we have brought cases in the United States against 

22 

human rights abuses from Bosnia, Chile, China, El Salvador, Haiti, 

Honduras, Indonesia, Peru, and Somalia. Therefore, we have a very 

unique perspective on this issue and ability to offer insights here 

today. 

We were founded by a torture treatment therapist who had a client who had been in a Bosnian detention camp and suffered extraordinary re-traumatization when he ran into his torturer in San 

Francisco. So the basis of our work is to provide an access for survivors to be able to confront their abusers and hold them accountable in court. 

As the Chairman has noted, the United States is a country that, 

while we have been particularly welcoming to survivors of torture, 

we also have become a haven for human rights abusers. It is estimated that over 400,000 survivors of politically motivated torture 

currently reside in the United States and that roughly 1,000 

human rights abusers are here as well. And these abusers often 

live in the exact same community as their victims, which causes 

extreme anxiety and undermines justice and accountability movements in their home country. 

I would like to briefly address three of the issues that I raised 

in my written testimony: One is the need for more criminal prosecution; two is the importance of command responsibility theory of 

liability in criminal prosecutions and removal proceedings; and 

then some suggested legislative reforms. 

The United States should make the criminal prosecution of 

human rights abusers, either in the home country of the human 

rights violator or in the United States, a top priority. Today, as we 

have heard, the vast majority of human rights enforcement efforts 

in this country are removals and related prosecutions for lying on 

immigration forms. 

Criminal prosecutions are the most important form of accountability for victims of human rights abusers. The strongest message 

that the United States can send to human rights abusers around 

the world is that we will criminally prosecute them here when 

their home country will not. The fact that there has been only one 

case brought under the criminal torture statute in 13 years is troubling, and this needs to change. 

The next basis for prosecution, which we support if the criminal 

laws are inadequate, is for lying on immigration forms. That should 

be a second step. 

Finally, if there are inadequate grounds for prosecution, then deportation should be considered, but only in the context of the 

broader human rights agenda. A threshold consideration always 

should be whether the reintroduction of the human rights abuser 

to his or her home country will result in further violence or further 

destabilize that country. For example, we recently opposed efforts 

to send a death squad leader back to Haiti because we felt that he 

would further destabilize the country and because they do not have 

a sufficient functioning judiciary in place to prosecute human 

rights abusers. 

The next issue is command responsibility. Command responsibility is a well-established theory of liability which covers military 

officers or civilian superiors who knew or should have known about 

abuses that took place under their command and failed to take 

23 

steps to stop the abuses or punish the offenders. This is a standard 

that has been applied in criminal cases in the United States, and 

it has been applied internationally and in civil cases. Real deterrence cannot be achieved unless these officials perceive that they 

may be held individually accountable, not just for committing the 

abuses themselves but for their failure to take reasonable action to 

stop others under their command from doing so. 

To that end, all criminal and human rights law should allow for 

the prosecution of those with command responsibility. Legislation 

which strengthens the rules regarding subordinates while allowing 

those with command responsibility for human rights abuses to live 

in this country sends the wrong message about our commitment to 

human rights. 

Further, in situations where removal or deportation is an appropriate remedy, we also should have a commitment to subject people 

with command responsibility to removal proceedings. We believe 

that the 2004 changes to the Immigration and Nationalization Act 

cover those who had command responsibility. Nonetheless, the Department of Homeland Security has failed to initiate removal proceedings against known human rights abusers in the United States 

with command responsibility. You will hear powerful testimony 

today from Dr. Romagoza about his torture and the fact that the 

two generals who were found responsible at trial and had command 

responsibility over those that were responsible for Dr. Romagoza’s 

torture are still living in Florida. 

We urge the Department of Homeland Security to interpret provisions of the INA that make the command responsibility for the 

commission of torture and extrajudicial killings a ground for removal. And if they are not able to do that, then we invite Congress 

to amend the INA to include clearer language on command responsibility. 

Finally, to supplement what Ambassador Scheffer just said about 

the need for strengthening the current statutory framework, the 

leadership that this Committee, has shown by filing the three bills 

Senator Durbin mentioned is an extremely important step toward 

addressing this concern. I would like to add a couple other points. 

There should be a criminal law on the books for the crime of 

extrajudicial killing. There should also be one on the books for 

crimes against humanity. These are well-established, international 

crimes that have been around since Nuremberg. And, finally, the 

application of all these human rights laws need to be retroactive. 

There should not be an ex post facto concern for torture, 

extrajudicial killing, genocide, and crimes against humanity. These 

are all crimes that have been considered crimes since Nuremberg. 

If the application of these laws are not retroactive, the United 

States will remain a safe haven for those abusers who arrived here 

before, at least with the torture statute, before 1994. 

Thank you very much, and I am happy to answer any questions. 

[The prepared statement of Ms. Merchant appears as a submission for the record.] 

Senator DURBIN. We will have some questions. Thank you, Ms. 

Merchant. 

Dr. Romagoza, thank you so much for being with us today. I read 

very carefully your statement and have learned a lot about your 

24 

background. You have endured things which few, if any of us, could 

ever endure. It is inspiring to me that, despite all of the suffering 

that you have been through in your life, you have dedicated your 

life to reducing the suffering of the poor here in our Nation’s capital, and I thank you so much for being with us today. 

I understand you have a translator with you, and you are now 

welcome to give your testimony. 

STATEMENT OF JUAN ROMAGOZA ARCE, EXECUTIVE DIRECTOR, LA CLINICA DEL PUEBLO, WASHINGTON, D.C. (TRANSLATED FROM SPANISH BY SALLY HANLON) 

Dr. ROMAGOZA. First of all, thank you. I want to congratulate the 

Chairman of the Committee, Senator Durbin, and also Senator 

Coburn and Senator Cardin, as well as the other members of this 

Subcommittee. Thank you for this opportunity to speak and especially to speak on behalf of the thousands of torture survivors who 

now live in this country and who cannot be with us today. 

I am a surgeon, a surgeon who cannot exercise his specialty of 

surgery. And the tools of a surgeon are his hands. But my hands 

have become useless as a result of the tortures. 

Today I will share with you my own personal story as a survivor, 

and I will give you my own personal perspective, give you my own 

point of view on being held responsible or accountability for crimes 

and torture. 

My story begins on December 12, 1980. On that day I was carrying out my profession and doing surgery for some of the rural 

communities of the poor in El Salvador when troops of the National 

Guard opened fire on the crowd there. And they also shot me in 

the foot. They grazed me with their bullets as well, and they detained me. They accused me of being a ‘‘subversive leader’’ because 

of the equipment and tools that I had, medical-surgical tools. And 

on that day and the next 22 days after it, I underwent unspeakable 

tortures at the hands of members of the National Guard of El Salvador. I was tortured with electric shocks three or four times a day 

in my ears, my tongue, my testicles, anus, and along the edges of 

my wounds. And those electrical shocks ended only when I fell into 

unconsciousness. And they forced me to come to by kicking me and 

applying cigarette burns to my body. They sodomized me with foreign objects, and they also gave me additional beatings and the experience of asphyxia with a hood over my head that contained calcium oxide. And throughout that whole time, I also suffered 

waterboarding. They called it the ‘‘bucket of water.’’ And I can tell 

you from my own personal experience that there is no room for 

doubt here. Yes, waterboarding is torture. And I was tortured sufficiently so that I could never return to my chosen career as a surgeon. They broke my arm with a shot in the left arm. They cut my 

fingers, making me lose the normal functioning and the use of 

those. And throughout this whole time, they never gave me any 

medical care for the wounds I suffered. 

And finally, thanks to God and to the efforts made by my family, 

they released me. But I was forced to flee from El Salvador. I came 

here to the United States where I did receive asylum, and I am 

now a U.S. citizen. And two of the men responsible for my tortures, 

General Garcia, the Minister of Defense at that time, as well as 

25 

General Carlos Eugenio Vides Casanova, he was the General Director of the National Guard, and both of them moved here to South 

Florida. They are permanent residents here. Now they live comfortably, legally, and openly in South Florida. 

In July of the year 2002, I, together with some courageous coplaintiffs, brought them to court, brought them to trial. That was 

in the U.S. Federal court through the help of the Center for Justice 

and Accountability. And, finally, I had the chance to come before 

the justice system and give my testimony against these generals 

and to speak to a U.S. jury about the tortures that I had endured. 

And the jury heard that truth, and they found the generals responsible, granting to me and my co-plaintiffs compensatory damages of 

$54.6 million. And I know that we will never see those $54.6 million. But that wasn’t what mattered to me. What mattered to me 

was this opportunity, this chance to confront in a Federal tribunal 

these human rights violators, and the value of this case is immense 

to me. And this is why I want to share with you a special moment 

for me during this case before the generals. The fact is that I felt 

a great strength or power coming over me. I felt myself in the bow 

of a huge ship and that there were people behind me, immense 

numbers of people. And they were rowing behind me, bringing me 

closer and closer to this moment. And I did not want to look back 

because I felt that if I did, I would weep, because I would see again 

the wounded ones, the tortured, the raped, the naked, the torn, the 

bleeding ones, as I saw them in the prisons of the National Guard 

in El Salvador. But I did feel the strength that they gave me, their 

support, their energy. 

And so to be part of this case and to have this opportunity to confront those generals for these terrible crimes provided me with the 

very best possible therapy that a survivor can have, that positive 

therapeutic value as a result of this civil remedy made available to 

me under the law on protection of torture victims. At the very 

least, they provided—they gave me my day in court, another day 

of life. 

Having to confront my torturers in a legal tribunal was one of 

the most difficult and important things that I’ve done in my entire 

life, one of the moments when I was most proud. But, nevertheless, 

my story and my efforts for justice are not over. These generals 

continue to live up here in the United States. They have not had 

to confront the possibility of their being deported. They have not 

been tried in a penal court, either in the United States or in El Salvador. And until that day comes, I will not be silent. 

Thank you for hearing me. 

[The prepared statement of Dr. Romagoza appears as a submission for the record.] 

Senator DURBIN. Dr. Romagoza, thank you so much. This Human 

Rights and the Law Subcommittee has had many touching stories 

told by witnesses, and yours has truly touched our heart. I could 

not help but think as you were telling your story how painful and 

difficult it must have been to get up this morning and dress and 

come to tell this story again, to remember the painful details of the 

torture, and to share this with so many people, not only in this 

room but across America. It must have been a difficult morning 

preparing for this journey. 

26 

I could not help but think as you testified of how this morning 

might have started for these two generals in Florida, in the soft 

breezes of South Florida, drinking coffee and reading the paper and 

going about their business under the protection of the United 

States of America. If this Judiciary Committee is about justice, that 

is wrong. It is wrong that you would have faced this horrible treatment by people who have been found responsible in the courts of 

our land and we still provide protection for the people responsible 

for it. 

I hope we can change that. I hope this hearing is in some way 

the beginning of a process that will seize your courage in testifying 

at that trial and then testifying today and lead us to do what needs 

to be done to restore justice in our own country. 

I would like to ask you, Doctor, if you could tell me—I read your 

statement about the courage it took for you and your plaintiffs to 

come forward. If these generals were to be deported back to El Salvador for trial, what do you think would happen? Have there been 

trials of those who have been responsible for similar crimes in El 

Salvador? 

Dr. ROMAGOZA. Unfortunately, the conditions are not yet there 

for getting justice from these crimes that occurred over the 1980s 

and 1990s in El Salvador. In 1992, they declared a law of amnesty, 

and that was the Salvadoran Government that made that happen 

to avoid any trials having to do with the human rights violations 

of the 1980s and 1990s. And the United Nations, in its followup on 

the Peace Accords, recommended bringing to trial those—so that if 

they were to go back to El Salvador, there would be no problem, 

there is no case been brought yet, and it has been kind of ensured 

that it not be brought. 

Senator DURBIN. Thank you. 

Dr. ROMAGOZA. But there is an effort now and a concern for 

doing away with the amnesty law. 

Senator DURBIN. Ms. Merchant, thank you to your center for 

helping Dr. Romagoza and giving him a chance to be here today. 

He describes in his statement one general whose office was just a 

few feet away from the prison cell where he was being tortured. 

And you raised this issue of command responsibility, which I asked 

about earlier and did not get a complete answer to. Is this the kind 

of case that you are thinking of, where the general may not have 

been directly involved in the torture, but may have responsibility 

similar to what we found at Nuremberg after the Holocaust? 

Ms. MERCHANT. Yes, exactly. 

Senator DURBIN. Currently, is there a provision in the law of the 

United States allowing the prosecution of these two generals who 

are responsible in a command capacity for Dr. Romagoza’s torture? 

Ms. MERCHANT. No. One of the questions is whether you could 

use the torture statute and interpret it in a broader way. The argument can be made that you could, the way that we did when I was 

a white-collar prosecutor, because obviously we always went up the 

chain of command in a company. But the Government’s position so 

far has been that they cannot. And in a separate issue about 

whether or not these generals can be deported under the new section of the INA, which includes torture and extrajudicial killing as 

a means for a removal, our reading of that language is that it 

27 

would cover command responsibility. But our understanding is that 

the Government does not accept that interpretation. 

Senator DURBIN. I will come back with additional questions after 

Senator Cardin. 

Senator CARDIN. Thank you very much. 

Dr. Romagoza, I also want to join with our Chairman in thanking you for being here. We hear numbers all the time about victims 

of torture and the numbers of people, and we sort of glaze over the 

numbers. But when you see the actual person, when you realize 

that each victim is a person who has family and is personally impacted by what has happened, it brings it home a lot clearer to us. 

Thank you very much for your courage to appear before our Committee. 

Professor Scheffer, I want to ask you a question in regards to a 

role that you played in your former life in regards to the Rome 

Statute of the ICC, the International Criminal Court. Let me preface the question by saying that I have the honor to represent the 

United States in the OSCE Parliamentary Assembly as a Vice 

President, and I am not sure whether I am attacked more because 

of Guantanamo Bay or our position on the ICC. It is about equal. 

And I guess Guantanamo Bay has taken over the lead recently, but 

I think maybe in a way they are related. 

I had questions, you had questions about the United States joining the ICC. But you raised those in a positive way rather than 

just withdrawing. We have now withdrawn, and I understand the 

risks involved in the ICC as it was moving forward. But it seems 

to me that when we are looking at what we are going to do with 

the detainees in Guantanamo Bay, it may have been helpful if we 

had an ICC we could turn to, to deal with some of those international crimes against humanity. 

So I just really want to get your thinking as to the credibility of 

the United States today in dealing with crimes against humanity 

in an international forum, whether we have suffered as a result of 

the way that Guantanamo Bay has been handled, the ICC has been 

handled, and other issues of late. 

Mr. SCHEFFER. Thank you, Senator. I think the credibility of the 

United States has been degraded considerably. I have seen this 

folloing my Government service over the last 7 years when I go 

overseas. It is very, very difficult to be in discussions with foreign 

colleagues and not be on the complete defensive with respect to 

what we had thought, at least when I had the privilege of serving 

in Government, we were in the leadership role of, which was to ensure the proper prosecution of these crimes by building the international criminal tribunals for the former Yugoslavia, for Rwanda, 

for Sierra Leone. That all happened in the 1990s, the negotiations 

and the follow-through on those tribunals. 

And with the International Criminal Court, President Clinton’s 

expressed objective stated in 1995 was that by the end of the 20th 

century, there would be standing a permanent International Criminal Court. My job was to make sure, A, that it was the right kind 

of court and, B, do everything possible to see if the United States 

could be part of that court. 

We had certain questions. It was a negotiation. We had certain 

issues that clearly were of concern to us as that court was being 

28 

structured. But by the end of the Clinton administration on December 31, 2000, we had rectified most of those issues, and we were 

able to sign the Rome Statute. We became a signatory to the Rome 

Statute. For me, that was, quite frankly, my proudest day in Government service when I was able to, under plenary power from the 

President, sign that statute. 

Since then, of course, we had the unsigning on May 6th of 2002, 

and we must ask: do we want to be standing on the moral high 

ground on this issue? Or do we want to slip down the slopes and 

have to be in a position where we are constantly clawing our way 

back up, if possible? I think what has happened in recent years is 

that by not being part of that process, other nations, in fact, have 

been able to assume the leadership on international justice, and in 

addition to that, they are in the driver’s seat in terms of the development of the law, which used to be our specialty. From Nuremberg onwards, we were in the driver’s seat. We are not in the driver’s seat anymore. Other nations have taken that position. It is 

simply because we are not in the room. We are not there representing our views. We are not bringing all of the skills and expertise of our Justice Department and of our Department of Defense 

attorneys to bear on these issues. 

So I think it is a serious problem, and I would close my comment 

with this: The problem with Guantanamo, Senator, is that you either have officials who are cognizant of how important these particular crimes are in international society—crimes against humanity, war crimes, genocide—and they operate knowing that there is 

an International Criminal Court and international criminal tribunals which are litigating these issues every single day. The law is 

evolving within these tribunals every single day. So if you set up 

a Guantanamo and you put some prisoners in there, you either act 

with knowledge of all that is occurring in these courts as to how 

these crimes are to be considered, how they are to be interpreted, 

how individuals are to be brought to justice with respect to the infraction of these particular crimes, or you act in ignorance of them. 

And what I see so often with Guantanamo and in Iraq and Afghanistan is this: It is as if we do not have a full knowledge of all 

of these legal developments that are taking place that would inform our decisionmaking as we go step-by-step in how we detain 

prisoners, how we bring them to justice, how we basically handle 

the threats that they pose to us. 

All of that is being dealt with in international courts and in the 

foreign courts of other countries now. But we seem to be falling behind. 

Senator CARDIN. I just might point out that the recommendations 

of the 9/11 Commission patterned some of your concerns by saying 

that we should be seeking international support for the manner in 

which we handle detainees and seeking international standards for 

that. 

I think we have a real dilemma now at Guantanamo Bay. We 

have individuals who clearly we are holding without giving them 

the rights of criminal defendants. And if we had an ICC we could 

turn to, we might very well be able to make significant progress 

against terrorism as being crimes against humanity. But instead 

we are handling it in isolation. 

29 

Mr. SCHEFFER. If I may, Senator, it is an excellent point. In 

2009, there will be a review conference of the Rome Statute of the 

International Criminal Court where the statute can be open for 

amendment. One of the crimes that we know will be on deck will 

be the crime of aggression, a crime that we should have incredible 

interest in and focus on. 

When I was the Ambassador, I actually enjoyed going to all of 

the discussions about how to bring the crime of aggression into the 

statute because we had a lot of friends at the table with us about 

how do you properly structure the definition and the trigger for 

that crime. We were never isolated on that issue. But we have been 

absent for 7 years from those working group discussions. I fear for 

where they may lead without our being back at the table. We cannot be at the table unless we are a state party to the Rome Statute 

in 2009. 

One of the other crimes that is available for consideration in 

2009 and which was mandated in Rome in 1998 for consideration 

at the first review conference is the crime of international terrorism. Now, whether it will actually be on deck in 2009, whether 

all the prep work will have been done, is still very, very questionable. But the fact is the United States could actually take the lead 

and say we want international terrorism on deck, we want to have 

it properly defined, we want to be able to have a forum in which 

the leaders of these terrorist organizations can actually be brought 

to justice. 

I want to share Ms. Merchant’s views entirely on command responsibility, which, by the way, I did not stress in my testimony 

simply because it is so self-evident now in international criminal 

law. These tribunals actually focus on the commanders. They do 

not go after the foot soldiers or the machete wielders. They go after 

the commanders because they only have a certain range of resources, and, of course, they want to go to where the decisions are 

being made to actually unleash these crimes. So the defendants before the tribunals are, in fact, at the command level, and the statutes of the tribunals provide for jurisdiction over the commanders. 

Senator CARDIN. It seems obvious, I think, to all of us, except for 

those who are charged today with prosecuting our torture statutes 

or enforcing our immigration laws. 

Thank you, Mr. Chairman. 

Senator DURBIN. Thank you very much. 

Before I ask Professor Scheffer a question, I want to say to Ms. 

Merchant and Dr. Romagoza, I am going to send a letter to the 

U.S. Attorney in the Southern District of Florida and ask officially 

what action is going to be taken against these two generals. I 

would like to hear this response. If he tells me he does not have 

the authority, I think it is a compelling argument for us to change 

the law. If he has the authority and is not going to use it, it is a 

compelling argument to change the U.S. Attorney. 

Let me ask you this, Professor Scheffer: This testimony and 

statement that you have given us suggests this kind of progression 

from Nuremberg forward, where the United States through the Geneva Conventions and other means expanded the notion of war 

crimes and the authority of the United States to deal with them. 

30 

Then there is a clear break on page 19 where you talk about the 

Military Commissions Act of 2006, and the following page, where 

you make reference to the President’s Executive order of July 20, 

2007. You characterize these as ‘‘regression.’’ 

Tell me what you mean by that. In other words, if this was a 

break in what had been America’s historic tradition relative to 

human rights and war crimes, what was changed by those two 

things? 

Mr. SCHEFFER. Let me start with the Executive order, if I may, 

and sort of walk back. 

The Executive order, which we have only had a few months of 

experience with now, addressed what had happened in the Military 

Commissions Act with Common Article 3 of the Geneva Convention. This was a very standard formulation that had been around 

ever since the 1948 Geneva Conventions whereby certain fundamental violations of human rights were to be subject to the responsibility of states to ensure that these violations did not take place, 

whether it be an internal conflict in civil war or through various 

jurisprudence that has emerged. National government statements 

since then have confirmed that, those general principles of Common Article 3, also which were articulated and expanded in Protocol II of 1977, have become applicable to international conflicts 

as well. We do not have a debate anymore about whether or not 

Common Article 3 is really relevant to internal or international 

conflicts. It is generally relevant to both. 

The War Crimes Act of 1996, as amended in 1997, brought Common Article 3 into enforceability in this country. We were several 

decades late in doing so under the Geneva Conventions, but we did 

do it in 1997 with the amendment to the War Crimes Act. 

What happened with the Military Commissions Act, which was 

all in the context of Guantanamo and the individuals who are detained in Guantanamo, was to essentially say: we are going to take 

Common Article 3 seriously; we are going to provide very specific 

definitions for the infractions under Common Article 3; but in 

doing so, the law was amended to extract from Federal law certain 

violations that we had established as criminal in 1997. And the 

ones that were extracted are the ones that you might logically 

think could be charged with respect to our performance in Guantanamo. That is to me the disturbing character to what happened in 

the MCA. 

What happened further in the President’s Executive order is that 

he alone is empowered under the MCA to interpret Common Article 3 and the Geneva Conventions. That itself was disturbing because one would have thought, with all due respect, that the U.S. 

Congress under the Constitution has the power to define offenses 

against the Law of Nations. I would say that is a pretty powerful 

interpretive tool on the part of the legislative branch. 

Senator DURBIN. Dr. Romagoza talked about actions taken in El 

Salvador to create an amnesty for those who were responsible for 

his torture. Was there a provision in the Military Commissions Act 

relative to amnesty for those who were perpetrators, potentially 

perpetrators of torture? 

Mr. SCHEFFER. Well, there was no provision addressing the issue 

of amnesty, in other words, saying that if you had an amnesty you 

31 

would be free from any possible prosecution under the MCA. But 

let me just say on the amnesty issue, Senator, it is a very good 

point. It is sometimes more of a policy issue than a legal issue, this 

issue of amnesty. I remember from my years in the Clinton administration my colleagues at the White House sometimes would turn 

and say, ‘‘Look, David, we have got a dicey situation overseas. Let’s 

not forget that amnesty may be a tool that is needed to resolve an 

armed conflict.’’ 

Granted, that is true. It is sometimes very necessary. But the 

way the law has evolved is, yes, amnesty for low-level perpetrators 

from international or domestic prosecution is often times a possible 

tool that you need on the table in order to reach a peace agreement. We have lots of debates about that in academia, but sometimes it is a tool. 

The issue, though, that we have reached by the year 2007, Senator, is it is simply intolerable and unacceptable in the 21st century for there to be an amnesty at the command level for the commission of atrocity crimes. 

Senator DURBIN. Is it not true that the Military Commissions Act 

had a retroactive definition of some forms of interrogation and detention? 

Mr. SCHEFFER. Oh, yes. I am sorry. Yes. 

Senator DURBIN. And would that not in practical terms affect the 

liability— 

Mr. SCHEFFER. That is a de facto amnesty. I am sorry. I misunderstood your question. I was focusing on foreign amnesties. It 

is a perfect point. The MCA is de facto an amnesty bill or law for 

infractions of the War Crimes Act of 1996 between 1996 and 2006. 

It is an amnesty bill. 

Senator DURBIN. It is hard to imagine that we have reached this 

point. The debate in this room over the appointment of the last Attorney General brought this issue front and center again, and it 

will continue. 

I hope that this is the beginning of some conversation within the 

U.S. Senate about laws that we need to change so that we no 

longer serve as a safe haven for the abusers of Dr. Romagoza and 

so many others. And I hope that we will also dedicate resources far 

beyond what was described today to this issue. This is going to be 

a long, tortuous journey for the United States to reclaim its international image after what we have been through. But I trust in our 

values and I trust in our people, and I trust that ultimately we 

will, that America will come to understand that even great nations 

can make great mistakes. And in this case, we have made some. 

By and large, I believe that the traditions of Nuremberg and Geneva are still good, solid American traditions that we value, and I 

hope that we can prove that with our laws and with our actions 

in the months and years to come. 

Your testimony today was so important. Thank you, Doctor, 

again, and your translator. Very good. Even though I do not speak 

Spanish, I thought you did a great job. 

Ms. HANLON. OK. 

Senator DURBIN. Ms. Merchant, thank you for all that you do at 

the Center for Justice and Accountability. Professor Scheffer, thank 

you for being here today. 

32 

This Subcommittee will stand adjourned. We will leave the 

record open for 10 days for the submission of questions and answers by members of the panel. 

[Whereupon, at 11:55 a.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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