M Y NAME is Firuz Kazemzadeh. I am
professor of history, chairman of the
Committee on Middle Eastern Studies at Yale
University, and vice-chairman of the National
Spiritual Assembly of the BaháIs of the
United States.
Twice in the last two years American
Bahá'Is have presented to the Sub-Commit-
tee on Human Rights and International Or-
ganizations of the House Committee on For-
eign Affairs amply documented testimony on
the persecution of the Bahá'is in Iran. The
material is available to the government and
the public. However, today I shall confine
myself to a narrower and sadder subject—tor-
ture.
Over the last four years the authorities of
the Islamic Republic of Iran have used tor-
ture as an instrument of policy. Among the
victims of torture, members of the Bahá'I
community have occupied a special place.
They have committed no crimes, participated
in no antigovernment activities, presented no
danger to the regime, yet they have been made
an object of unrestrained hatred on the part
of the clerical rulers and their supporters.
I shall present to the Committee evidence
of torture, names of its victims, and even of
one or two of its official practitioners. I shall
also point out the changes in the pattern of
application of torture.
However, because so many find the per-
secution of the peaceful Bahá'I community in
Iran utterly incomprehensible, I shall take the
liberty of sketching briefly the background of
relations between the Shiite establishment and
the Bahá'I Faith.
The Bahá'I Faith, a monotheistic world re-
ligion, originated in the middle of the nine-
teenth century in Iran. From its inception it
became the target of hostility on the part of
the Muslim Shiite clergy which believed that
the eternal dialogue between God and roan
had ended with the Prophet Muhammad, that
Islam was the final revelation, and that any
post-Islamic religion must necessarily he a
heresy whose followers deserved death.
The Shiite clergy which wielded enormous
power in nineteenth-century Iran, incited the
secular authorities to a campaign that took
the lives of some twenty thousand men,
women, and children hut failed to eradicate
the new faith.
The introduction into Iran of modern na-
tionalism and secularism alleviated the situ-
ation of the BaháI community in the twen-
tieth century hut did not mitigate the hatred
of the Shiite clerical establishment. However.
the vocabulary of invective changed. If earlier
the Bahá'is had been denounced as heretics,
now they were accused of being agents of for-
eign movements and powers—Russia, Brit-
ain, Israel, the United States—depending on
current political fashion. Periodically, the
mullahs gained the governments cooperation
in attacking the Baháis, killing a few, con-
fiscating literature, closing down Bahái cen-
ters, dismissing BahflIs from govemnmenr
jobs, and otherwise harassing them.
The Iranian revolution of 1978—79 was
made by a broad coalition in which the Mus-
lim Shiite clergy played a predominant role.
Within a few months of the collapse of the
old regime the mullahs emerged as rulers
more despotic and less restrained than the
monarchy they had overthrown had ever been.
In the process of consolidating their power
the mullahs unleashed a reign of terror against
Torture of the Bahá'Is in Iran
TESTIMONY BY FIRUZ KAZEMZADEH
21
BP000277
22 WORLD ORDER: SPRING 1984
all whom they saw as their political oppo-
nents, ideological rivals, or spiritual compet-
itors.
The BaháIs had not taken part in the rev-
olutionary upheaval. As a matter of religious
principle they strictly abstained from all po-
litical activity and would not engage in viol-
ence which is strictly forbidden in the writ-
ings of their faith. Partly because of that they
are now accused of having supported the old
regime. However, the Islamic authorities did
not need added justification for attacking the
BaháIs. The President of the Revolutionary
Court of Shiraz, Hujjatu'l-Islam Qazai, clear-
ly revealed the underlying religious motiva-
tion of such attacks when he publicly stated
early in 1983 that the Muslim nation of Iran
ill, God willing, fulfil the prayer of Noah
(mentioned in the Koran):
And Noah said, Lord, leave not a single
family of Infidels on the Earth:
For if thou leave them, they will be-
guile thy servants and will beget only sin-
ners, infidels.'
The Iranian nation [ the judge contin-
ued has determined to establish the Gov-
ernment of God on earth. Therefore, it
cannot tolerate the perverted Bahá'Is who
are instruments of Satan and followers of
the devil and of the superpowers and their
agents. . , . It is absolutely certain that in
the Islamic Republic of iran there is no
place for Bahá'is and Bahaism I take
this opportunity to advise all fair-minded
and intelligent Bahá'Is to return to the
bosom of highly esteemed Islam Be-
fore it is too late the Bahá'Is should recant
Bahaism, which is condemned by reason
and logic. Otherwise, the day will soon
come when the Islamic nation will deal
with them in accordance with its religious
obligations, as it has dealt with other hyp-
ocrites....”
While such threats were being uttered by
cabinet ministers, high-ranking judges, and
other officials, a well-organized campaign of
persecution was being conducted throughout
the country. Its principal elements were:
1. The extermination of Bahá'I leader-
ship through the imprisonment and in
many cases the execution of prominent
Bahá'Is, particularly of members of Spir-
itual Assemblies—the elected governing
bodies of the BaháI community.
2. The confiscation of all community
property such as national and local centers,
meeting halls, cemeteries, hospitals, his-
torical buildings, monuments and shrines,
libraries, archives, membership records,
and administrative files.
3. Economic strangulation through dis-
missal of Bahá'Is from all government jobs,
which in Iran include the National Oil
Company, the airlines, the railways, much
of industry, and all of education; boycott
of Bahá'I-owned businesses, refusal to pay
pensions to retired employees, and even
the destruction of agricultural crops and
trees owned by Bahá'Is.
4. The dismissal of Bahá'I children and
youth from universities, high schools, and
even from primary schools.
5. The outlawing of Bahá'I organiza-
tions—a particularly serious blow for a
faith that has no clergy an4 in which elect-
ed Spiritual Assemblies perform all the
functions normally entrusted to ministers
or priests.
6. The psychological pressure inflicted
on individuals through threats, insults,
various forms of intimidation, and con-
stant reiteration that they are members of
a despised, subversive, and accursed group.
7. The application of torture as a means
of compelling recantation of one's faith and
conversion to Islam, or compelling confes-
sion of crimes that had never been com-
mitted. It is on the last item in the above
catalogue of horrors that I intend to dwell
in the time remaining to me this morning.
Individual cruelty, unauthorized maltreat-
ment of prisoners, and random beatings in-
flictèd by angry guards on inmates, even when
they are common criminals convicted in fair
trial, are intolerable occurences for which the
authorities must bear responsibility whether
or not they knew or encouraged such behav-
ior. The systematic application of torture by
TORTIJ R I UI THE i3A HA' is
the state is a far more grievous evil.
The ultimate stage of barbarity is reached
when torture is used for purely ideological or
religious purposes, when blood is shed, bod-
ies are broken, nails and teeth pulled, ribs
crushed, to make a prisoner give up a belief
and adopt the views and values of his tor-
mentors. When whips, hot irons, rods, knives,
sticks, and chains are made the tools of per-
suasion in matters of thought and spirit, we
witness the most revolting perversion, a be-
trayal of all humanity. When such instru-
ments are used in the service of religion, the
essence of that religion is dishonored by its
own fanatical votaries.
THE AUTHOR T1ES of the Islamic Republic of
Iran have used and are currently using torture
against the Bahá'Is, systematically and re-
lentlessly, for two purposes: 1.. To force recan-
tation of faith and conversion to Islam, 2. To
extract false confessions of spying and other
illegal activities allegedly performed by the
Bahá'Is in the service of Zionism, imperal-
ism, and the superpowers.
Though hundreds of Bahá'i have been
subjected to physical and mental abuse by
Revolutionary Guards, jailers, and even
judges, I will speak of only a few cases which
have been carefully verified.
One of the earliest instances of torture was
reported from the city of Hamadan where,
on June 4, 1981, bodies of seven executed
members of the local Spiritual Assembly were
released to their families for burial. Each body
bore unmistakable signs of heavy torture. The
victims were:
Dr. Firuz Nairni
Dr. Naser Vafai
Mr. Tarazollah Khozeyn
Mr. Hoseyn Motlaq
Mr. Soheyl Habibi
Mr. Sohrab Habibi
Mr. Hoseyn Khandel
Each had been given the opportunity to re-
cant the Bahá'I Faith and to embrace Islam;
each had refused, had been tortured, and had
been put to death. The funeral of the heroes
was attended by thousands of Bahá'Is and
Muslims wishing openly to express their grief
for the innocent and highly respected men
who had been so cruelly destroyed.
A year later, in June 1982, Mr. A.A.A., a
bank employee, was arrested with five [ sic)
other Bahá'Is. An eyewitness has written that
upon arrival in the infamous Evin prison the
five Bahá'Is were brought before an interro-
gator, the notorious torturer Mesbah Tolui,
who accused them of Zionism. An eyewitness
writes:
A.A.A. objected. “1 am not a Zionist,' he
said, “I am a Bahá'I”; upon which the in-
terrogator slapped him in the face and
struck him with hand and fist. . . . Then
with two pointed rods, perhaps two pen-
cils, the interrogator poked through the
blindfold at A.A.A.'s eyes.
A few days later Mr. A.A.A. was again
questioned:
the interrogator demanded that A.A.A.
recant the Bahá'I Faith and name the
members of certain administrative bodies
in the Bahá'I community When the
interrogator met with resistance on the part
of A.A.A., he took him to another room,
accompanied by several guards, who pro-
ceeded to hurl him down against the hard
surface of a bench, causing his forehead
and jaws to be severely injured and to
bleed. . . . Then with something like a
wire his feet were tied. . . . his arms were
pulled forward and tied. . , . He was now
lying on his abdomen with hands and feet
tied and the soles of his feet turned up-
ward. Tolui ordered the guards to start
lashing and to continue until A.A.A. re-
canted and gave the names of committee
members or died. . . . The blows were
aimed at the five toes of each foot so that
each toe received its share of the total
number of three hundred blows.
The next fully verified episode of torture
occurred in March 1983 in Shiraz. Its victims
were Mr. Yadollah Mahmudnezhad and Mrs.
Tuba Zaerpur, who were arrested because of
their prominence in the Shiraz Bahá'i corn-
mu n ity.
Mrs. Zaerpur, after fifty-five days in soli-
23
24 WORLD ORDER: SPRING 1984
tary confinement, was returned to the general
prison in early March. Before her execution
on March 12, 1983, Mrs. Zaerpur told a fel-
low prisoner, who survived to tell the story,
of her interrogation and trial.
As a result of repeated lashing Mrs. Zaer-
pur was painfully injured and had sore
spots all over her body. . . . On the first
day she was given fifty strokes of the wbip,
on the second day one-hundred strokes,
and on the third day seventy-four strokes
with a cable whip, some on her shoulders
and some on her back. . . . The sore spots
on her body were so painful that she could
not sleep for many nights. Her toes were
bleeding and the toenails fell off as a result
of injuries, in spite of all the suffering, Mrs.
Zaerpur never complained. She prayed all
the time. She was the embodiment of spir-
itual strength and resignation to the will
of God and a source of comfort to all of
us.
In June 1983 five Bahá'Is were put to death
in Shiraz after extensive torture. They were:
Dr. Bahram Afnan
Mr. Jamshid Siavushi
Mrs. Tahereh Siavthhi
Mrs. Nosrat Yaldai
Mr. Soheyl Hushmand
In each case the torturers tried to force re-
cantation and conversion to Islam. Having
failed in their purpose, they executed their
victims.
In January 1984 Mr. Rahmatollah Haki-
man died in jail in Kerman under suspicious
circumstances. In March 1984 in Baft, prov-
ince of Kerman, Mr. Nosratollah Ziai and in
Tehran, Mr. Moshen Razavi died under
equally suspicious circumstances. Evidence
suggests strongly that all three had been tor-
tured. The refusal of the authorities to release
bodies for decent burial and interment in un-
disclosed graves almost always indicate that
the victims had been tortured.
More recently the actions of Iranian au-
thorities took an even more sinister turn.
Whereas earlier the main purpose of torture
was to compel conversion to Islam, during
the past few weeks torture has been used pri-
manly to extract false confessions of serious
crimes, primarily spying. Presumably, these
confessions to trumped up charges would im-
plicate other BaháIs and provide a plausible
pretext for further executions of the members
of BaháI leadership in Iran. The victims ex-
ecuted after torture on April 9, 1984, in Teh-
ran were:
Mr. Rahim Rahimian
Professor Kamran Lotfi
Mr. Yaclollah Sahenian
Mr. Ali-Mohammad Zamani
Reliable information indicates that of the
703 BaháIs known to be languishing in pris-
ons, at least Il, 3 of them women, have suf-
fered torture inflicted upon them in an at-
tempt to force them to confess to crimes they
had not committed. A few have broken down
and confessed to false charges. Some of the
confessions were videotaped for possible use
on Iranian television. Presumably the spec-
tacle of Bahá'is confessing their crimes on
camera would lend verisimilitude to the ac-
cusations for which the government has no
evidence whatsoever. It should be noted that
the Islamic authorities have confiscated and
now hold all the records of the BaháI com-
munity comprising literally tens of thousands
of documents. Not having found a single in-
criminating item, Iran 's Islamic prosecutors
and judges resorted to torture as a means of
convicting Bahá'Is out of their own mouths.
It would not be the first time the rulers of
the Islamic Republic offered confessions ex-
tracted by torture as the only proof of guilt.
ANIER ICAN Bahá Is are deeply concerned
about the fate of over seven hundred of their
coreligionists in Iran's prisons. We are partic-
ularly anxious about those who have been or
will be tortured. Though we have the names
of at least eleven Bahá'is in Tehran antI else-
where who have been tortured, we cannot
make them public for fear of retaliation
against these prisoners and other innocent
Bahá'Is though we are prepared to submit
the information to the Committee in confi-
dence.
1'()IUFURE OF 1I IF 1L FI,/IS
The National Spiritual Assembly of the
Bahá'Is of the United States does not wish to
make specific recommendations to the Com-
mittee at present. However, we strongly con-
demn torture as one of the most heinous
crimes aganist humanity. It can never be jus-
tified, no matter what the circumstances. That
torture is used at all and that its practice is
spreading testifies to the fragility of civili-
zation and to the ease with which humanity
reverts to barbarism. Alas, the twentieth cen-
wry provides only too many examples of such
atavistic behavior.
‘ X 1 e, American Baháis, feel that the United
States cannot ignore torture no matter where
or by whom it is practiced, for torture is a
threat to our dearest convictions and an af-
front to our most deep-seated feelings. Ac-
quiescence to torture is a compromise with
evil unworthy of this nation.
We hope that the government of the United
States together with the governments of all
nations that profess love of humanity will
seek, through the United Nations and through
all other legitimate means, the total eradi-
cation of torture from the earth.
25
26 WORLD ORDER: SPRING 1984
BAHA'IS TORTURED IN IRAN
BAHA'IS EXECUTED AFTER BEING TORTURED:
Mrs. Tuba Zaerpur Shiraz
Mr. Yadollah Mahmudnezhad Shiraz
Dr. Bahram Afnan
Mr. Jamshid Siavushi
Mrs. Tahereh Siavushi
Mrs. Nosrat Yaldai
Mr. Soheyl Hushinand
Mr. Rahim Rahimiari
Mr. Kamran Lotfi
Mr. Yadollah Saberian
Mr. Ali-Mohammad Zamani
I 1r. Jahangir Hedayati
PRISON UNDER SUSPICIOUS
Kerman January 1984
Tehran March 13, 1984
BaIt, Kerman March 1984
EXECUTED BAHAIS WHOSE BODIES BORE EVIDENCE OF HEAVY
TORTURE:
Dr. Firuz Nairni Hamadan June 14, 1981
Dr. Naser Vafai Harnadan June 14, 1981
Mr. Tarazollah Khozeyn Hamadan June 14, 1981
Mr. Hoseyn Motlaq Hainadan June 14, 1981
Mr. Soheyl 1-labibi Hamadan June 14, 1981
Mr. Sohrab Hahibi Hamadan June 14, 1981
Mr. Hoseyn Khandel Hamadan June 14, 198!
(Many executed BaháIs whose names are not included here were buried by the authorities
without notification to relatives or friends. It is presumed the reason was to cover evidence
of torture.)
Mr. Tehran
(Arrested in the hospital atter surgery; mistreated on the way to the prison)
BAHA'IS NOW IMPRISONED WHO ARE KNOWN TO HAVE BEEN
TORTURED:
Mr.
Mr.
Qasr/Evin
Gowhardasht/Evin
Gowhardasht/Evin
Gowhardasht/Evin
Gowhardasht/ Evin
Gowhardasht/ Evin
Gowhardasht/Evin
Gowhardasht/Evin
Shiraz
Shiraz
Shiraz
Shiraz
Shir iz
Gowhardasht/Evin
Gowhardasht/Evin
Gowhardasht/Evin
Gowhardasht/Evin
Gowhardasht/Evin
March 12, 1983
March 12, 1983
June 16, 1983
June 16, 1983
June 18, 1983
June 18, 1983
June 2%, 1983
April 9, 1984
April 9, 1984
April 9, 1984
May 15, 1984
May 15, 1984
BAHAIS WHO DIED IN
CIRCUMSTANCES:
Mr. Rahmatollah Hakiman
Mr. Mobsen Razavi
Mr. Nosratollah Ziai
Mr. Serakhs
(Tortured to such an extent that he lost his eyesight.)
Mrs.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Es fah an
Es ía h an
Mr.
Torture: The United States
Response
TESTIMONY BY MICHAEL H. POSNER
M R. CHAIRMAN, thank you for inviting
me to testify. My name is Michael Pos-
ncr. 1 am the Executive Director of the Law-
yers Committee for International Human
Rights. Since 1978 the Lawyers Committee
has served as a public interest law center that
works to develop international human rights
and refugee law and legal procedures.
Mr. Chairman, we welcome your initiative
in convening these hearings on the important
and deeply troubling subject of torture. In
the course of these hearings you have heard
from several witnesses who have described
practices of numerous governments through-
out the world that use torture as a part of a
broader effort to suppress dissent. While vir-
tually every nation now condemns torture in
principle, in practice at least one-third of the
worlds governments use, tolerate, or condone
torture or extreme mistreatment of prisoners.
In its testimony before this committee to-
day Amnesty International has presented a
twelve-point program for the prevention of
torture. Several aspects of this program pro-
vide a useful starting point for specific action
that the United States government, and Con-
gress in particular, can undertake to help de-
ter future acts of torture.
One of Amnesty Internationals twelve
points is that ‘‘those responsible for torture
should be brought to justice.' Amnesty pro-
poses that this principle should apply wher-
ever 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 tor-
turers.” A separate hut related component of
Amnesty's program is that “victims of tor-
ture and their dependents should be entitled
to obtain financial compensation.”
These principles suggest two potential leg-
islative initiatives which I believe warrant se-
rious 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, act-
ing under the color of state authority, is found
to have been directly involved in the practice
of torture.
The Filartiga Case: The Need/or
Legislation Clarifying the Right of
All Torture Victims to Seek
Redress in U.S. Courts
THE FIRST initiative, affording effective legal
redress for torture victims, can he accom-
plished 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 ju-
risdiction over suits brought by aliens for a
tort “committed in violation of the law of
nations or a treaty of the United States.” En-
acted 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
27
28 /voRI.D ORDER: SPRING 1984
to sue a foreign official for torture committed
outside the United States. The landmark
case_Filart ga p. Pena-Irala, 630 F.2d 876
(2nd Cir. 1980)—involved the brutal torture
and murder of a young man, Joelito Filartiga,
in Paraguay in 1976. Relying on section 1350,
in 1979 the victims family, represented by
the Center for Constitutional Rights, brought
a lawsuit against the Paraguayan securky force
officer who had tortured Mr. Filartiga to
death. By chance, the torturer, Americo Nor-
herto Pena-Irala, was visiting New York,
where he was served with a summons and
civil complaint in a tort action seeking mon-
etary damage.
In the much-heralded Filartega op nion,
the Second Circuit Court of Appeals found
that section 1350 enables U.S. courts to re-
view a claim for damages by torture victims
or their families, even if the act of torture
took place outside the United States. In
teaching this decision, the court found that
deliberate torture perpetrated under color of
official authority violates universally accepted
norms of the international law of human
rights, regardless of the nationality of the
parties. 630 F.2d at 878.”
This ruling was hardly surprising. As the
Filartiga court itself noted, ‘ [ tThere are few,
if any, issues in international law today on
which opinion seems to be so united as lim-
itations on a states power to torture persons
held in custody.' 630 F.2d at 881. Reinforc-
ing this principle, a near-final draft Restate-
ment of Foreign Relations Law prepared by
the American Law Institute explicitly recog-
nizes that torture as state policy is a violation
of customary international law. American Law
institute, Restatement of the Foreign Rela-
tions Law of the United States (Revised), Tent.
Draft No.3, S 702, Reporters' Notes, No. 5
(Mar. 15, 1982).
in short, the Filartiga decision simply rec-
ognizes that, as a principle of international
law, the right to be free from torture is now
a matter of universal concern. Building on
this principle, the court found that torture is
an appropriate subject for U.S. courts to con-
sider, regardless of where it took place. In the
court's words, ‘‘for purposes of civil liability
the torturer has become—like the pirate and
slave trader before hirn—hostis humani ge-
neris, an enemy of all mankind. 630 F.2d at
890.”
This principle reflects more than a univer-
sal moral aversion to torturers. It acknowl-
edges the fact that all nations must take re-
sponsibility 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 re-
garding 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 Re-
public, — F.2d — (D.C. Cir. 1984), the Dis-
trict of Columbia Circuit dismissed an action
brought under sections 1350 and 1331 against
several defendants accused of an act of ter-
rorism. In doing so, the three-judge panel an-
nounced 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 dif-
ferences among the three judges who consid-
ered the case make clear the need for congres-
sional clarification of the law. Significantly,
each of the judges specifically called for clar-
ification, and one judge indicated that lack of
congressional guidance was key to his reluct-
ance to follow the Filartiga holding.
While Tel-Oren points up the need for
general clarification of section 1350's appli-
cation to torture cases, it also highlights one
unambiguous anomoly in the law that Con-
gress can and should rectify. 28 U.S.C. 51350
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 an-
other more general jurisdictional statute— 28
U.S.C. 5 1331—neither the D.C. District
Court nor its Court of Appeals was willing
to say so.
TORTURE: THE US. RESPONSE
It makes little sense for U.S. law to extend
a significant protection against torture to al-
iens but not to our own citizens. Accordingly,
Congress should consider amending 28 U.S.C.
§ 1350 to allow lawsuits brought by U.S. cit-
izens as well as aliens. This can be done sim-
ply by deleting the words “by an alien” from
section 1350.
In the course of making such an amend-
ment, Congress should also make it clear that
section 1350 authorizes civil actions based on
torture, regardless of where the violation oc-
curred. In this way it could help to resolve
some of the legal issues poser! 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 their victims while visiting the
United States and the chances of collecting a
money judgment are slim. Nonetheless, the
practical and symbolic impact of the Filar-
tiga decision cannot be understated. In that
case we as a nation took a position that sig-
nificantly enhances the rights of aliens who
have been brutally tortured. Torturers who
may wish to visit or live in the United States
now understand that they also may be subject
to civil action and may risk a judgment for
money damages based on their violations of
international human rights law. Hopefully
other nations will take note of this develop-
rnent in our law and extend it to their own
legal systems.
To help clarify and further institutionalize
this process, what I am proposing is simply
that Congress strengthen the Second Circuit's
interpretation of U.S. law by endorsing it. At
the same time Congress should extend the
legal protection afforded by section 1350 to
United States citizens. The Lawyers Com-
mittee is eager to work with this Committee
and the Judiciary Committees in both Hous-
es to help shape legislation that would ad-
dress these concerns.
Legislation Barring Torturers from
Entering the U,zited States
A SECOND area warranting congressional ac-
tion involves the manner in which our im-
migration laws treat torturers who seek to en-
ter our country. Since the 1880s we have had
immigration laws that exclude aliens who are
deemed undesirable. There are currently thir-
ty-three 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'S provisions of the Im-
migration 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.
The 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 associa-
tion and free expression of ideas.
While we believe that these and a number
of the other exclusion provisions are over-
broad, we find it troubling that there is no
specific provision in current law that prevents
torturers from entering our countr. Current
immigration laws do exclude persons con-
victed 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 in-
terest (Section 212(a)(27)). While it is pos-
sible that some torturers would be excluded
und r 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 sys-
tematically, 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
2I2(a)(29)), these questionable statutes are
29
30 WORLD ORDER: SPRING 1984
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 con-
sider adopting an amendment to the Immi-
gration and Nationality Act that would sp-
cifically exclude those who directly engage in
systematic physical torture under the color of
law. Such a law would serve the intere sts of
United States citizens by keeping this un-
desirable 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 well aware
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. Ac-
cordingly, we know that abuses of discretion
can, and often do, occur in the current ap-
plication of U.S. immigration laws. The Law-
yers Committee has been and will continue
to be critical of such abuses.
in order to protect against improper ap-
plication of this law, we suggest that it should
be carefully limited to those who personally
carried out acts of physical torture. To min-
imize 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 such as Amnesty
International and reports by intergovernmen-
tal organizations. Wherever possible, a de-
cision 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 incor-
porated 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 au-
thority 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 Update.” Again
the Lawyers Committee would welcome the
opportunity to work with appropriate
congressional committees to help conceptual-
ize an exclusion category that would exclude
torturers but at the same time protect the
rights of those legitimately seeking entry to
our country.
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 tor-
ture 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.
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