A law awaits its first defendant

1994 anti-torture statute still sits unused

BY MATTHEW MCALLESTER | STAFF CORRESPONDENT

March 14, 2006

WASHINGTON - When federal investigators find foreign war crimes suspects living in the United States, there are two ways to go after them.

Prosecutors can charge suspects with immigration fraud - lying about past crimes or military service to get into the country - which usually results in a short prison sentence followed by a deportation order.

Or they can use the 1994 federal torture statute, which makes it a crime for anyone living in the United States to have deliberately tortured another person overseas after the passage of the law. No such case has ever been brought.

Some federal officials, legal experts and human rights activists believe it is high time the Justice Department used a law against war criminals living in the United States that has been on the books for more than 11 years.

"This is not exotic," said Elisa Massimino, Washington director of Human Rights First. "You can look this up in the regular American criminal code. It doesn't come out of Geneva or the UN; it's right there in our domestic law. Torture's illegal."

"It's a law that Congress passed and we should be using," said Pamela Merchant, executive director of the Center for Justice and Accountability, which has successfully sued foreign war criminals and torturers for damages in U.S. courts. "To have a law on the books that we're not using doesn't serve the interests of justice."

There is no evidence to suggest the Justice Department's refusal to initiate or sanction any torture cases is a result of a political decision or culture. But some observers question whether in an era of U.S. entanglements in scandals involving torture and secret imprisonment, the Justice Department would green-light the prosecution of a torture case in the United States. Attorney General Alberto Gonzales disputed that at a news briefing yesterday.

"Well, I certainly hope that to the extent there are laws on the books and there are cases that can be brought, that we will in fact pursue those cases," he said.

"The United States will vigorously enforce federal criminal law, including the anti-torture statute," said Brian Roehr-kasse, a spokesman for the Justice Department. "The Department of Justice will investigate credible allegations of torture and if the circumstances warrant prosecution, the department will prosecute."

As White House counsel in 2002, Gonzales cleared a Justice Department memo that argued that the torture statute did not apply to "the president's detention and interrogation of enemy combatants." The same memo, critics said, greatly raised the bar for the degree of violence used during interrogation to constitute torture.

Although the Justice Department revised the interpretation in a 2004 memo, Gonzales told senators at his confirmation hearings for attorney general last year, "I don't have a disagreement with the conclusions then reached by the department" - referring to the 2002 memo.

U.S. on the spot

Legal experts and some lawyers involved in war crimes tribunals described such a U.S. torture case as being potentially damaging to the Bush administration in two main ways. First, lawyers for the defense probably would cite the United States' own recent cases and policies related to torture and detention as a reason to dismiss the case. Second, if a suspect were to be convicted, the precedent probably would make it easier for prosecutors in a post-Bush administration Justice Department or in other countries to arrest U.S. politicians, soldiers or intelligence officers for suspected involvement in torture.

When told of the Justice Department's January decision not to approve a torture case against Marko Boskic, an alleged executioner in the Bosnian Serb Army who is in custody in Massachusetts, Massimino said: "I would be very suspicious about the decision of the Justice Department about allowing prosecution to go ahead under the current environment because of the concerns they have about the liability of U.S. personnel."

Merchant, a former prosecutor for the Justice Department, said: "This is the kind of case you want to take on. Because when you're evaluating how to bring a case, you're looking at which statute makes the most sense. Lying on your immigration form is not at the heart of what he did wrong. What he did wrong was participating in the massacre.

"The analogy is someone who runs someone down with a car and instead of prosecuting for manslaughter or murder you give them a speeding ticket ... Our country should be taking a lead on this."

The torture statute states: "Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life."

To use such a law against a foreigner living in this country, experts say, would open up soldiers or intelligence officials who torture people overseas to prosecution in U.S. civilian courts - and possible death penalties.

There is no law other than the torture statute that enables American prosecutors to try foreign residents with genocide, extrajudicial killing or any other war crime. U.S. attorneys are not allowed to initiate such a case without approval from the Justice Department in Washington.

"You could line up 100 people against the wall and shoot them all, but is that necessarily torture?" said Claude Arnold, who heads the Human Rights Violators and Public Safety Unit of Immigration and Customs Enforcement at the Department of Homeland Security. ICE is litigating and investigating about 1,000 cases involving alleged human rights abusers from more than 85 countries.

Deportees get to pick country

A person being deported can choose to go to any country that will accept him or her, legal experts and prosecutors say, making it easier for deportees to avoid prosecution by the country where their alleged crimes occurred. The exceptions are when there is a request for extradition and an agreement with the country making the request, or when the secretary of state decides it is in the national interest to send the suspect back to his or her country.

The law, federal officials say, means that once war crimes suspects have spent time in prison for comparatively minor immigration violations, many can seek and gain sanctuary in countries that are unlikely to prosecute them.

In testimony in December to the House Subcommittee on Science, the Department of State, Justice and Commerce, and Related Agencies, the government's leading Nazi hunter, Eli Rosenbaum, emphasized the importance of seeking modern-day war criminals living in the United States because "there can be a nexus between terrorism and human rights violations, and hence individuals may be found in the United States who participated in both categories of heinous offenses. Indeed, the most notorious state sponsors of terrorism have also had some of the world's worst human rights records."

In December 2004, Congress passed the Anti-Atrocity Alien Deportation Act, which expanded the federal government's ability to prosecute people living in the United States who had committed torture, genocide or other crimes against humanity. The law also empowered Rosenbaum's Nazi-hunting Office of Special Operations within the Justice Department to denaturalize citizens other than Nazis who have committed war crimes. Several members of Congress, including Rep. Gary Ackerman (D-Jamaica Estates) had been pushing for such a change in the law for several years and managed to include it within the large National Intelligence Reform Act.

But critics say the law only amounts to more ways to deport a problem rather than dealing with it in U.S. courts.

"I just wish we could get through to people that picking up a Salvadoran general in Miami and telling him he has to retire in Costa Rica is not a punishment," Massimino said. "Yeah, you're evil, but you can go be evil somewhere else."

Prosecutors, investigators and human rights advocates say, however, that elements of the federal government have never been more focused on the problem of rapists and murderers from foreign wars and conflicts arriving to live prosperous and safe lives in the United States.

"Perpetrators of egregious human rights abuses who have immigrated here also pose a threat to public safety in this country," Rosenbaum said in his testimony. "They possess, after all, a demonstrated propensity to engage in acts of violence. It is particularly unfair to require surviving victims of human rights abuses who have made new homes here to share their adopted homeland with their former tormenters."

Tom Brune of the Newsday Washington Bureau contributed to this story.