In testimony before this committee yesterday, Amnesty International presented a twelve-point program for the prevention of torture. Several aspects of this program provide à useful starting point for specific action that the United States Government, and Congress in particular, can undertake to help deter future acts of torture. One of Amnesty International's 12 points is that "those responsible for torture should be brought to justice." Amnesty proposes that this principle should apply wherever the torturer happens to be, regardless of the place of torture or the nationality of its victim. In short, Amnesty International urges that "there should be no 'safe haven' for torturers." A separate but related component of Amnesty's program is that "victims of torture and their dependents should be entitled to obtain financial compensation." These principles suggest two potential legislative initiatives which I believe warrant serious consideration. First, Congress should undertake legislative action to clarify the right of torture victims to seek redress in U.S. courts, regardless of their nationality or where or by whom they were tortured. Second, fully implementing the principle that there should be no "safe haven" for torturers, Congress should enact legislation that would exclude from entry into the U.S. any person who, acting under the color of state authority, is found to have been directly involved in the practice of torture. The Filartiga Case: The Need for Legislation to Seek Redress in U.S. Courts The first initiative, affording effective legal redress for torture victims, can be accomplished simply by clarifying and extending the scope of an existing law, the Alien Tort Claims Act, which is codified at 28 U.S.C. § 1350. That law establishes federal court jurisdiction over suits brought by aliens for a tort "committed in violation of the law of nations or a treaty of the United States." Enacted in 1789, this law has been invoked in only a handful of cases in its almost two hundred-year history. In 1980 a federal court of appeals in New York interpreted this statute to allow aliens to sue a foreign official for torture committed outside the United States. landmark case - - Filartiga v. Pena-Irala, 630 F2d. 876 (2nd involved the brutal torture and murder of a The Cir. 1980) young man, Joelito Filartiga, in Paraguay in 1976. Relying on section 1350, in 1979 the victim's family, represented by the Center for Constitutional Rights, brought a lawsuit against the Paraguayan security force officer who had tortured Mr. Filartiga to death. By chance, the torturer, Americo Norberto Pena-İrala, was visiting New York, where he was served with a summons and civil complaint in a tort action seeking monetary damages. In the much-heralded Filartega opinion, the Second Circuit Court of Appeals found that section 1350 enables U.S. courts to review a claim for damages by torture victims or their families, even if the act of torture took place outside the United States. In reaching this decision, the court court itself noted, "[t]here are few, if any, issues in for purposes of civil liability the like the pirate This principle reflects more than a universal moral aversion to torturers. nations must take responsibility to curb torture, since the victim is not likely to obtain redress in a country that officially sanctions torture. In the period since Filartiga was decided, its practical wisdom and its legal soundness have been widely noted both in the United States and elsewhere. At the same time, there has been a certain amount of confusion regarding the intended scope of section 1350, particularly with respect to cases of torture occurring outside the United States. In the recent case of Tel-Oren v. Libyan Arab Republic, F.2d (D.C. Cir. 1984), the District of Columbia Circuit dismissed an action brought under sections 1350 and 1331 against several defendants accused of an act of terrorism. In doing so, the three-judge panel announced three widely differing views of the Alien Tort Claims Act. While the Tel-Oren case raises a number of complex legal issues that we need not address today, the sharp differences among the three judges who considered the case make clear the need for congressional clarification of the law. Significantly, each of the judges specifically called for clarification, and one judge indicated that lack of congressional guidance was key to his reluctance to follow the Filartiga holding. While Tel-Oren points up the need for general clarification of section 1350's application to torture cases, it also highlights one unambiguous anomoly in the law that Congress can and should rectify. 28 U.S.C. S 1350 enables aliens but not U.S. citizens to sue in federal courts in tort for violations of the law of nations, including torture. While it may be possible that citizens could sue under another more general jurisdictional statute 28 U.S.C. S 1331 - neither the D.C. District Court nor its Court of Appeals was willing to say so. It makes little sense for U.S. law to extend a significant protection against torture to aliens, but not to our own citizens. Accordingly, Congress should consider amending 28 U.S.C. S 1350 to allow lawsuits brought by U.S. citizens as well as aliens. This can be done simply by deleting the words "by an alien" from section 1350. In the course of making such an amendment, Congress should also make it clear that section 1350 authorizes civil actions based on torture, regardless of where the violation occurred. In this way it could help to resolve some of the legal issues posed by Filartiga and Tel-Oren and encourage reliance on this provision in future cases. To date, few lawsuits have been brought under section 1350. It is likely that even if the changes I propose were made, section 1350 would be invoked rarely. The reasons are obvious. Torturers do not often present themselves to |