Senator MURKOWSKI. If the United States goes ahead and adopts the recommendations currently before us, what is the time frame when this will all come into a formal convention under United Nations?

Mr. SOFAER. We would then prepare legislation.

Mr. RICHARD. It is my understanding that the convention is already in effect. There have been a sufficient number of signatories to bring the convention into effect.

We would hope to have prepared and submitted to Congress in a very short time after the Senate acts appropriate implementing legislation and once the legislation is passed, we would then deposit our instrument of ratification.

Senator MURKOWSKI. I want to make sure I understand you. The inference is that we do have a U.N. convention currently, but the 50 or so nations that have ratified it are participants in an ongoing convention that is in effect now.

Mr. SOFAER. Yes.

Senator MURKOWSKI. The 72 nations or the other 22 are in the same position as the United States, then, in the process of ratifying. Are we a signatory?

Mr. SOFAER. We are a signatory, yes.

Senator MURKOWSKI. But we have not ratified?

Mr. SOFAER. We have not ratified, not yet.

Senator MURKOWSKI. So, we would just become a party to, upon legislative action?

Mr. SOFAER. Right, because we do not want to submit our instruments of ratification until the Congress has adopted the legislation we need to implement this.

Senator MURKOWSKI. Thank you.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you very much. I have no further questions. At this point I would turn to Senator Helms to see if he has any more.

Senator HELMS. I want to ask a few questions which are intended simply to illustrate what I think to be the weaknesses of this proposed convention. These were inherent in the genocide treaty as well. These are the kind of questions that Sam Ervin raised. Admittedly, he said he was just a country lawyer, but I thought he was a pretty good one.

We do have a crime of torture in the U.S. Code, do we not?

Mr. RICHARD. There is no specific torture statute. There are a variety of criminal statutes, both at the Federal and State levels, that would address that conduct which we are referring to as torture, whether it be in terms of assaults, civil rights statutes, and the like. So, we have adequate statutes, criminal statutes, to reach the conduct, sir.

Senator HELMS. And that would be the basis on which we would try or extradite alleged offenders, is that right?

Mr. RICHARD. Well, there is an area of coverage mandated by the convention in which we do not have existing legislation, and that relates to, among other things, activities by U.S. nationals abroad. We would not currently have jurisdiction over those activities, and the convention would mandate that we create jurisdiction. Likewise, we have no present jurisdiction over alleged torturous acts

committed by others abroad who are subsequently found in the United States. The so-called universal jurisdiction would have to be created by legislation.

Senator HELMS. I think my point just floated off.

Mr. RICHARD. I am sorry, Senator.

Senator HELMS. On what basis would we try or extradite alleged offenders?

Mr. SOFAER. Well, we could use the existing statute, Senator, but we plan to have additional criminal legislation adopted by the Congress making torture a crime.

Senator HELMS. But you do not know what that is now, do you? Mr. SOFAER. No, we do not, Senator. I mean, we know pretty much what it will look like.

Senator HELMS. Well, I will tell you I am naive enough that I am even troubled by how you would define inhuman or degrading treatment. That is a broad, broad thing, How would you define it?

Mr. SOFAER. There is no criminal penalty for a violation of that provision. The violations of that part of the convention are treated in a radically different manner than the violations of the torture concept, and I agree with you, Senator. I think that that is a very vague phrase, and that is why we have proposed the reservation, as a reservation, not merely an understanding that that phrase be interpreted in the same manner as our cruel and unusual punishment clause in the Constitution.

Senator HELMS. All right. Hypothetically again, if a law enforcement official in New York tortures a suspect in custody in New York whose alleged criminal activity took place in New York, would this torture convention apply?

Mr. SOFAER. Yes.

Senator HELMS. Well, how does the so-called Federal-State reservation, to which you alluded, work? Can you explain that to a layman?

Mr. SOFAER. Well, in our system, as you know, Senator, there are some things that are done by our States and local governments and other things done by the Federal Government. The prosecution of crimes would continue to be handled at the local level in many respects. Extradition would be handled by the Department of Justice and, at a later stage, the Department of State.

We simply wanted to make clear that we would not be violating the convention if there were certain steps that had to be taken by local or state government under our constitutional system. It is really sort of a carving out of a piece of what you are so concerned about, Senator. It is saying to the world we have a constitutional system, and we just want you to know that in implementing this convention we are going to abide by our constitutional system of federalism in doing so.

We are still obliged to implement it, but it must be done consistent with the framework of the U.S. Constitution.

Senator HELMS. But that was the big hang up in the genocide convention for years and years, and years. Are you telling me now that you are willing to include a sovereignty clause, period, in this one, just as a previous administration finally agreed to include a sovereignty clause in the genocide treaty?

Mr. SOFAER. We believe such a clause is unnecessary.

Senator HELMS. Well, if it is not necessary, what harm would it do if it will satisfy old malcontents like me?

Mr. SOFAER. The harm that we believe it could do is that it could be raised by people in extradition hearings and criminal prosecutions as a defense where it really lacks any merit. But, we understand your feelings, Senator, and we are eager for this process to go forward, and we hope the committee will consider all of these matters and move the process along.

We do not want a repetition of the genocide convention, and I think the American Bar Association and the human rights groups also do not want a repetition of the genocide convention, and I hope this committee does not want a repetition of the genocide convention.

That is why we believe we should get together and work together to prevent that.

Senator HELMS. Well, I just told staff to get up a letter that will go to the Attorney General and to you, also, offering to sit down and work out these details because there is a multiplicity of them. Mr. Chairman, may I ask one more question? I notice my time is

up.

The CHAIRMAN. Certainly.

Senator HELMS. I might add that I am bothered that only four Senators have shown up this morning for this, and I commend Senator Murkowski, and my good Chairman, and Senator Pressler, but this is terribly important; and I think that we ought to insist that we have a good attendance by Senators. Otherwise they will say well, I am against torture, and they will vote for this convention. And if that was the only prerequisite, you know, I will vote against torture. I am against genocide. I was all along.

Let me turn now to understanding C which is on page 2 of your list of provisos. It says, "The United States understands that 'sanctions' includes judicially imposed sanctions and other enforcement actions authorized by United States or by judicial interpretation of such law provided that such sanctions or actions are not clearly prohibited under international law."

Now, does that understanding mean that international law is superior to domestic law?

Mr. SOFAER. Well, it would be with respect to anything that was torture because it would be part of domestic law.

If you adopt this treaty, it is not just international law. The standard becomes part of our law.

Senator HELMS. We go back to sovereignty now in the Constitution of the United States. Nothing, nothing as far as this Senator is concerned, supersedes the Constitution of the United States, and what you have told me seems to be a deviation from that.

Mr. SOFAER. Oh, no, Senator, no. It is part of the contemplated process within the Constitution. There is nothing unconstitutional about a prohibition on torture. Heavens no.

Senator HELMS. There you go again.

What I am saying is: Why cannot this understanding be written in comprehensible English? It is not.

I bet I could hand it to any one of the people back there in the audience, and they would ask what the hell does it mean.

And this is one of the things, Mr. Chairman, that I hope we can work out when your representatives and mine, or ours, get togeth

er.

Mr. SOFAER. I can say, and I am sure I speak for Mr. Richard, Senator, that there is no need for a letter. We agree right now to meet with the members of the committee staff, your staff, and to take up any question they wish to raise.

Senator HELMS. All right, then, I will say to my folks, you get in touch with their folks. OK.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you.

Senator Murkowski.

Senator MURKOWSKI. Perhaps, Senator Helms, that is why we have judges to interpret for us. One the other hand, sometimes that can get us in trouble, too.

Senator HELMS. Well, that depends on the judge, does it not? [Laughter.]

Senator MURKOWSKI. Just one last question, and I am sure this is something that would appear self-evident to some, but I am just curious as to both your answers-if they are the same, why then we only have to hear it once.

Why would a country like Libya want to be a signatory to this? What is the advantage? They are bad guys in our broad view.

Mr. SOFAER. Well, they want to take the position that they do not torture, and they want to be seen as adhering to that position, and that is probably good for the world, that even people we do not approve of. And some countries have become signatories and members, of this convention, parties to this convention where we believe torture is going on, and we believe that it is an advantage that they feel the moral compulsion to adhere.

We will certainly want to utilize the leverage of this convention to reveal the phoniness and the lies behind some of that.

Senator MURKOWSKI. Well, is this not kind of a hypocritical approach, though? Libya does not want to give us information or turn over to us someone they are torturing or what have you. They will simply ignore it. So do not some of them use this to achieve their own ends, but if it is something that is not in their best interest, they will just ignore it?

We have seen treaties before in the U.N. where countries have walked off and done their own thing. I just wonder why a country-and I pick out Libya at random-would find it advantageous when they are certainly circumspect in our minds.

Mr. RICHARD. If I may make an observation in that regard. If you take it the next step, let us assume that a country like Libya is a member, a party to the convention, and one of its officials is found in the United States. The we receive complains from abroad against that individual regarding alleged torture that he or she masterminded in Libya. Pursuant to the convention we would be in a legitimate position to ask Libya for evidence pertaining to those charges and, to the extent that it was not forthcoming, I think it would reflect on its commitment to abide by the principles of the convention.

So, I think, just to complement what Judge Sofaer has indicated, it is better for the process that they be a member of the convention than not, just in terms of its overall implementation.

Senator MURKOWSKI. I have no further questions.

The CHAIRMAN. Thank you very much.

Thank you very much, Judge Sofaer and Mr. Richard for being with us.

We now come to our public witnesses, who are Mr. Winston Nagan, Chairman of the Board of Directors of Amnesty International USA; Mr. David Forte, Professor of Law, Cleveland Marshal College of Law; Mr. James Silkenat, Chairman of the Section of International Law and Practice of the American Bar Association; Mr. Charles Rice, Professor of Law at Notre Dame; and Mr. David Weissbrodt, Briggs & Morgan Professor of Law at the University of Minnesota.

I would add that I have to leave here at 20 minutes to 12:00. So, I would hope that one of my colleagues would be willing to wrap up. If not, we will take the written statements. But I will still have to recess the committee at 11:40 a.m.

In view of the time constraints, I would hope each of you could digest your statements. Your statements will appear in full in the written record.

I would suggest that we start out with Mr. Winston Nagan, Chairman of the Board of Directors of Amnesty International USA. Would you lead off?

STATEMENT OF WINSTON NAGAN, CHAIRMAN, BOARD OF DIRECTORS, AMNESTY INTERNATIONAL USA, GAINESVILLE, FLORIDA Mr. NAGAN. Mr. Chairman, I will read an excerpt from my oral statement because of the time constraints, and would ask that the full statement be placed in the record.

Mr. Chairman, I am Winston Nagan, a Chairman of the Board of Directors of Amnesty International, USA. Amnesty commends you for holding these hearings. We appreciate the opportunity to testify in support of U.S. ratification of the Convention Against Torture. Torture shocks the conscience of all humankind. It is repugnant to the American people. It is condemned as an affront to human dignity by our government, by the Congress, by the courts, and Presidents of the United States. The Convention Against Torture not only codifies international law with respect to torture, it also coincides with the conviction of the American people that torture has no place in a world that honors even the most limited conception of human decency and freedom.

Although there is near universal condemnation of torture, the practice of torture is widespread. Amnesty has documented the systematic use of torture in more than one-third of the countries of the world in the past decade, with additional instances of torture reported from many more countries.

I have with me a list of the major reports Amnesty has published in the last year with torture noted in the title, and I ask to submit this list into the record of these hearings.

Amnesty is uniquely positioned to stress the critical need for the ratification of the Convention Against Torture. We have kept up