THE TORTURE VICTIM PROTECTION ACT WEDNESDAY, MARCH 23, 1988 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON HUMAN RIGHTS Washington, DC. The subcommittee met at 2:15 p.m. in room 2255, Rayburn House Mr. YATRON. The subcommittee meets today to consider H.R. This legislation, which provides a legal mechanism to combat the This bill will allow victims of torture, or their representatives, International human rights violators visiting or residing in the I ask our knowledgeable witnesses to help our subcommittee by (1) tions, not only regarding the Torture Victim Protection Act, but also about any other viable means of combating this crime. I would now like to call on Congressman Chris Smith from New Jersey, if you have a statement or any comments that you would like to make. Mr. SMITH of New Jersey. Thank you, Mr. Chairman. I welcome our distinguished witnesses before the subcommittee today. As a co-sponsor of H.R. 1417, Mr. Yatron, I commend you for your leadership on this issue and for convening this hearing today, which, I know, will lead to a quick mark-up in the near future. Thank you, Mr. Chairman. Mr. YATRON. I thank my colleague for his comments. I would also like to say, for the record, that our ranking member of the subcommittee, Congressman Solomon, is now on the Floor with the budget and will be here as soon as he possibly can. Today our witnesses will be testifying as a panel. Before we begin, I would like to ask each of the witnesses to try to keep their statements to ten minutes or less. That way we can maximize the time that we have for the question-and-answer period. And, of course, your entire written statements will be included in the record. Today we are pleased to welcome Father Robert Drinan, Professor of Law at Georgetown University Law Center, and former Member of Congress from the State of Massachusetts, who will be testifying on behalf of the American Bar Association; Mr. Michael Posner, Executive Director, Lawyers Committee for Human Rights, accompanied by Mr. Eric Biel, Esq., with Arnold and Porter; Ms. Alice Henkin, Chair, Committee on International Human Rights, Association of the Bar of the City of New York; and Ms. Patricia Rengel, Co-Director, Washington Office, Amnesty International U.S.A. Father Drinan, we welcome you. It's good to see you again. You may begin with your statement. STATEMENT OF FATHER ROBERT DRINAN, PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER, AND FORMER MEMBER OF CONGRESS FROM THE STATE OF MASSACHUSETTS, ON BEHALF OF THE AMERICAN BAR ASSOCIATION Father DRINAN. Thank you very much, Mr. Chairman and Congressman Smith. May I first say, Mr. Chairman, all of us follow the work of this subcommittee and your own distinguished leadership with the greatest gratitude. You can't possibly imagine how much your work and the findings of this subcommittee resonate all around the world. The best words I have heard in many days, Congressman Smith, is what you just suggested-that we have a quick markup of this bill. We don't hear that very often in Congress, and we welcome those words. Mr. Chairman, as you suggested, I submit the testimony for the record and let me speak briefly about some of the points here. Mr. YATRON. Without objection, it will be included in its entirety. Father DRINAN. Mr. Chairman, you remember the days when you and I followed the work of Congressman Don Fraser and the evolution of Section 502B and the rest is history. As you said so well, Mr. Chairman, this bill that we are testifying about today is to strengthen and clarify existing law and that it does not really add to the law. It wants simply to implement something that I am going to mention in a moment. I am pleased. Congressman Weiss, we welcome you here. Father DRINAN. We have almost passed the bill already. [Laughter.] Mr. Chairman, the American Bar Association [ABA] adopted a resolution in 1975 reaffirming its support of the rule of law in the international community. Since that time, the ABA has become increasingly involved in the international debate on all of these issues, frequently protesting persecution of lawyers and judges, sending trial observers, and supporting the Genocide Treaty, and all of the major human rights conventions. I am now, Mr. Chairman, the Secretary of the Section on Individual Rights and Responsibilities of the American Bar Association. I was very gratified when the ABA, a relatively conservative organization, said that they approve the Torture Victim Protection Act and they authorized me to testify. This is a new development when, now, for the first time, we have a hearing on this. We all know that systematic and institutionalized human rights violations constitute a violation of international law and that the Congress has the right and, yes, the duty to legislate in accordance with the law of nations. This proposed legislation would eliminate any uncertainty in this area, and I would think that this would encourage our Western allies and other nations to adopt similar domestic remedies so that the people who are victimized by some dictator, whether it is in the East or the West, could, in fact, under appropriate circumstances, go to a federal court and get appropriate remedies. I was very pleased, Mr. Chairman, when the ABA approved of this legislation in July 1985. They all saw the essence of what it is, that we should clearly establish a federal right of action for both aliens and U.S. citizens against persons who under color of lawthat's the essence of it-under color of law engage in acts of torture or extrajudicial killing. I have three or four suggestions here, Mr. Chairman. I am not certain that they are very important. They are minor amendments. One says that the proposed legislation directs courts to decline a case when there has been a remedy already in another forum. We call for strengthening of that and say, not merely decline the case but dismiss the case. Secondly, it is hoped that the treaty will be approved for ratification very shortly, that is, the U.N. Torture Convention.1 We would suggest adding a strengthening phrase, not merely is coercing forbidden but intimidating is also forbidden. And third, we want to define more carefully extrajudicial killing. 1 See appendix 4. Finally, we would wonder about the appropriate place to put this in the U.S. Code. It is suggested by the ABA that this is an amendment to Chapter 85 of Title 28 of the U.S. Code. That would permit the deletion of the reference in the bill to the U.N. Participation Act of 1945, as the provisions of that act deal more specifically with the administration of U.S. participation in the United Nations rather than with the matter that we have here. Mr. Chairman, I have telescoped my testimony but there is abundant testimony on this particular bill. There is no controversy in the human rights community, nor do I know of any controversy in the legal community or the international relations community. And I am gratified for what Congressman Smith said, that he knows of no real substantial difficulty. I commend you for your leadership, for having this hearing. I hope that one of the great glories of the 100th Congress will be a bill sponsored by Congressman Yatron and Congressman Smith, and that it will once again clarify the fact that the United States in its foreign relations protects not merely its interests but also its ideals. Thank you very much. [The prepared statement of Father Drinan follows:] PREPARED STATEMENT OF FATHER ROBERT DRINAN ON BEHALF OF THE AMERICAN BAR ASSOCIATION Mr. Chairman and Members of the Subcommittee: My name is Robert Drinan. I am a former member of Congress, and now a professor of law at Georgetown University Law Center. I am also a former Chairman of the American Bar Association's Standing Committee on World Order Under Law, and am currently Secretary of the Association's Section of Individual Rights and Responsibilities. It is my pleasure to appear before you this afternoon on behalf of the American Bar Association to express the ABA's views on an important legislative initiative, The Torture Victim Protection Act. In 1975 the American Bar Association adopted a resolution reaffirming its support for the rule of law in the international community, and the need to maintain internationally recognized standards of fairness and justice. In the past decade, the ABA has become increasingly involved in the international debate on these issues, frequently protesting persecution of lawyers and judges, sending trial observers to important trials in other countries, and supporting U.S. ratification of the Genocide Convention and other principal human rights treaties. These actions are consistent with the eighth goal of the American Bar Association which encourages active ABA involvement in programs that promote the rule of law worldwide. Today's hearing addresses a related, and important |