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their victims while visiting the United States and the chances
To help clarify and further institutionalize this
Legislation Barring Torturers from
A second area warranting congressional action involves the manner in which our immigration laws treat torturers who seek to enter our country. Since the 1880's we have had immigration laws that exclude aliens who are deemed undesirable. There are currently 33 exclusion categories, including some categories that many people find unwarranted and unduly restrictive.
In recent months, for example, there has been increasing criticism of the so-called "ideological exclusion" provisions of the Immigration and Nationality Act (Sections 212(a)(27), (28) and (29)). Several months ago Congressman Barney Frank introduced legislation that would substantially amend the most controversial aspects of these provisions. Lawyers Committee, along with the American Civil Liberties Union and others, support these legislative efforts to eliminate laws that serve little purpose and have the undesirable effect of restricting free association and free expression of ideas.
While we believe that these and a number of the other exclusion provisions are overbroad, we find it troubling that there is no specific provision in current law that prevents torturers from entering our country. Current immigration laws do exclude persons convicted of crimes of moral turpitude (Section 212(a)(9)), as well as those who pose a threat to national security (Section 212(a)(29)) or whose entry would prejudice the national interest (Section . 212(a)(27)). While it is possible that some torturers would be excluded under these provisions, many would not.
It is highly unlikely that persons engaged in systematic torture would be excludable on the basis that they were convicted by their government of a crime of moral turpitude. In most countries where torture is practiced systematically, those who carry out these policies act under
the color of government authority.
Additionally, while some torturers may be denied entry under the so-called ideological exclusion provisions, (Sections (212(a)(27) and 212(a)(29)), these questionable statutes are clearly not intended, nor have they in practice been used, to exclude torturers. In any case, they do not compel the exclusion of torturers. To address this issue Congress should consider adopting an amendment to the Immigration and Nationality Act that would specifically exclude those who directly engage in systematic physical torture under the color of law. Such a law would serve the interests of United States citizens by keeping this undesirable class of persons out of our country. At the same time, it would provide a signal to the rest of the world that the United States will no longer be a "safe haven" for torturers.
In making this proposal I am not unmindful of the potential for abuse in its application. The Lawyers Committee is routinely involved in the representation of aliens, particularly those seeking asylum in this country. Accordingly, we are well aware of the abuses of discretion that can, and often do, occur in the current application of U.S. immigration laws. The Lawyers Committee has been and will continue to be critical of such abuses.
In order to protect against improper application of this law, it should be carefully limited to those who personally carried out acts of physical torture. To minimize
proof problems, in making a decision to exclude an alien on this basis, U.S. officials should rely heavily on reports by recognized human rights organizations and reports by intergovernmental organizations. Wherever possible, a decision to exclude an alien should not be based on a single accusation by an individual who claims that he or she was tortured. In other words the law should be written in a manner that will ensure that no one will be excluded on the basis of a personal vendetta.
A second restriction that should be incorporated into this provision is that the act of torture must be carried out under the color of law. This would give U.S. officials the authority to exclude security force and military officers from other countries who carry out torture as part of a governmental policy, and who therefore are not subject to criminal prosecution. Under this limitation, those who carry out torture pursuant to higher orders would not be able to cite those orders as a defense.
Finally, we believe generally that decisions regarding the exclusion of aliens should be reviewable judicially. Recognizing that this raises a much broader series of issues that go beyond the scope of these hearings, I will not address those issues today. I note, however, that these issues have been the subject of a comprehensive report prepared in March 1984 by the Immigration and Nationality Law Committee of the Association of the Bar of the City of New
York, entitled "Visa Denials on Ideological Grounds: An
Mr. Chairman, the point of my testimony is that torture should not be viewed as an abstract problem that occurs elsewhere, upon which we can have little effect. In fact, there are several very practical measures that this committee and the Congress can undertake to respond to the horrendous practices of torture occurring in the world today. I believe that this country can and should become a model for other nations, both by extending practical remedies to all torture victims, and by excluding torturers from our shores.
Mr. YATRON. Thank you very much, Mr. Posner, for your statement, and also for your recommendations. The subcommittee will look into them.
And, now, Professor Mueller, you may proceed, sir.
STATEMENT OF GERHARD MUELLER, DISTINGUISHED PROFESSOR OF CRIMINAL JUSTICE, RUTGERS UNIVERSITY
Mr. MUELLER. Thank you, Mr. Chairman.
Let me apologize, first of all, for not having a prepared statement. I received your letter of invitation only yesterday, upon return from Europe, but I will provide such a statement if you wish.
Mr. YATRON. We would appreciate that. So, as I said before, if you can summarize the information to be provided in your full prepared statement, it will be included in the record.
We thank you for making the effort to get here in such a short period of time after your trip.
Mr. MUELLER. I am not representing any organization. I am here as a professor, and perhaps I should mention that, as the Former Director of the U.N. Crime Prevention and Criminal Justice Branch.
It is that unit of the United Nations which is responsible for coordinating the activities of governments in the area of crime prevention. It extends to the area of enforcement or implementation of human rights in criminal justice.
My office was responsible for preparing the Declaration against Torture which has been mentioned on a number of occasions in these hearings, and the Unilateral Declaration against Torture, of 1977. We have implemented a questionnaire procedure distributed to all governments in order to obtain information about the extent of compliance with the Declaration against Torture.