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Torture of the Baha’is in Iran (World Order – Spring 1984)

          
          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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