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"By some estimates, more than 400,000 survivors of torture live in the
United States..."
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http://www.nybooks.com/articles/15289
The New York Review of Books
April 25, 2002
The Torturers Among Us
By William F. Schulz
On February 13, 1978, Edgegayehu Taye, a twenty-one-year-old employee of
Ethiopia's Ministry of Agriculture, was taken into custody by the military
government. Her father had been a prominent official in the previous regime
of Haile Selassie, and this may have been the cause of her arrest.
Transported to a detention center, Taye was ordered to remove her clothes.
With her arms and legs bound, she was suspended from a pole and threatened
with death if she refused to admit that she was a member of a political
opposition group. For several hours guards beat her and poured water on her
wounds to increase the pain. Finally she was cut down from the pole and
taken to a prison cell but received no medical care for her injuries. For
the next three years Edgegayehu Taye languished in various prisons in Addis
Ababa until, with no explanation, she was released. During her years in
custody she was never charged with a crime.
Not surprisingly, Taye took the first opportunity she had to flee Ethiopia;
she escaped to Canada and eventually moved to Atlanta, Georgia, where she
found work in a hotel. By a remarkable coincidence, an Ethiopian named
Kelbessa Negewo had also sought refuge in the United States in the 1980s and
had also found a job in the very same hotel; and he was, Taye believed, the
Ethiopian official in charge of the detention center to which she had been
sent in February 1978. He had not only overseen her torture but participated
in it. Taye and two other Ethiopian women filed suit against him in
September 1990 under the Alien Tort Claims Act, legislation that provides
that federal courts have jurisdiction over tort actions filed by aliens
alleging violations of international law. The Federal District Court in
Atlanta found that Negewo had indeed tortured Taye and the other two women
and awarded them $1.5 million in compensatory and punitive damages.
But the story was not to end with the court's decision. For while the
Atlanta lawsuit was pending against him, Kelbessa Negewo had been applying
for naturalization and, although the Immigration and Naturalization Service
had apparently been informed of the court's judgment, it granted his
application. Despite the finding that he was a torturer, Kelbessa Negewo is
today a US citizen residing in this country.[1]
Since the attacks of September 11, the US government has been assiduous in
rounding up people it suspects of some connection with terrorism. At least
1,200 immigrants living in the United States were taken into custody in the
days and weeks following the attack. Many of them have been held for months
without knowing the reasons why they have been detained and in some cases
they have not had access to an attorney. None of them has been charged with
any terrorism-related crimes.[2] And yet hundreds, if not thousands, of
foreign nationals who have been plausibly accused of the most heinous human
rights crimes, including torture and assassination, either have lived or
still live freely in the US. The government has never criminally prosecuted
a single one of them.
By some estimates, more than 400,000 survivors of torture live in the United
States.[3] The exact number of people now in the US who have abused human
rights in other countries is of course much harder to pin down; they have
very good reasons not to identify themselves. But those who investigate such
cases point to some clues. Since it was founded in 1998, the Center for
Justice and Accountability, for example, which files civil lawsuits on
behalf of torture survivors, has reviewed cases involving more than one
hundred alleged human rights violators living in the United States. The
International Educational Missions has identified more than 150 such cases,
principally in southern Florida, and estimates that there are approximately
1,100 nationwide. The National Security Division of the INS, which has
coordinated government investigations into suspected abusers of human rights
since 1998, says it has considered about four hundred cases. The division's
director, Walter D. Cadman, acknowledges that the number of torturers and
other human rights violators at large in the US may be as high as a
thousand.[4] Whatever the exact figure, the problem is not trivial,
particularly since persons charged with torture or massacre may have
committed crimes against many victims.[5]
Some of those who have allegedly committed human rights crimes and now
benefit from being residents have received sporadic attention in the press
over the years. Emmanuel Constant, for example, the head of the
Revolutionary Armed Front for the Progress of Haiti (FRAPH), the most feared
paramilitary group in Haiti following the 1991 coup which removed President
Jean-Bertrand Aristide from power, has lived openly in New York City since
1994, although he was convicted in absentia in his home country of serious
human rights violations.[6]When the INS detained him in 1995, Constant
claimed to have been on the payroll of the CIA, a claim that was widely
reported in the press. He was released shortly thereafter and the Justice
Department has indicated as recently as November 2000 that it has no plans
to deport him.[7]
Similarly, the national press reported the civil suit filed against two
Salvadoran generals living in Florida on behalf of the four American nuns
murdered in 1980 by the Salvadoran National Guard. The United Nations�
sponsored Truth Commission in El Salvador concluded that the officer who had
headed the National Guard at the time of the murders concealed the fact that
they had been carried out by the guardsmen on orders from their superiors;
the other general, then minister of defense, had failed to investigate the
crime. Nonetheless, a jury found the two not liable for the crimes�a verdict
that is currently under appeal�and the generals both remain legal residents
of the US.[8]
------------------------------------------------------------------------
Most of the US residents who are strongly suspected of human rights crimes
have managed to avoid publicity. In 1988 the Federal District Court for the
Southern District of Florida, for example, found probable cause to believe
that former Salvadoran army captain Alvaro Rafael Saravia Marino was a
"knowing, active participant" in the plot to assassinate Monsignor Oscar
Romero, archbishop of El Salvador, in 1980. But El Salvador has not tried to
extradite him and Saravia has reportedly been living comfortably in the
United States since 1985. He may even have applied for political asylum.[9]
Am-nesty International is aware of at least 150 other suspected human rights
violators who are living in the US and have largely avoided attention or
punitive action. In most cases their names cannot be revealed because this
would alert them to the fact that they may be the targets of lawsuits or
investigations.[10]
Thanks to the courage and determination of victims of torture and their
families, civil lawsuits against human rights violators are becoming more
and more common. In a 1980 decision in a suit brought by two Paraguayan
plaintiffs against a former official involved in the torture of one of their
relatives in Paraguay, the Court of Appeals for the Second Circuit upheld
both the constitutionality of the Alien Tort Claims Act and the jurisdiction
of federal courts to hear suits brought against abusers by aliens living in
the US.[11] Since then, the number of such cases has grown significantly.
The complaint filed in 1998 by Kemal Mehinovic, a Bosnian Muslim, against
Nikola Vukovic, a former Bosnian Serb soldier, is typical. For many years
Mehinovic lived with his wife and two children in Bosanski Samac, a town of
some 30,000 people, including 17,000 Muslims and Croats, in northeastern
Bosnia-Herzegovina. With the breakup of the former Yugoslavia, the Bosnian
Serb army gained control of the community and, through intimidation, forced
displacement, torture, and summary execution, managed to reduce the
population of Muslims and Croats to three hundred by 1995.
Mehinovic was among those terrorized by Bosnian Serb forces. Taken into
custody in May 1992, he was beaten repeatedly with metal pipes and wooden
batons. During the next two and a half years he was subjected to relentless
torture, both physical and psychological; he was forced to lick his own
blood off a police station wall and was fired at with bullets that barely
missed his head. According to Mehinovic, Nikola Vukovic was one of his most
persistent torturers.
When Mehinovic, who was finally released in a prisoner exchange in 1994 and
came to the United States the next year, learned in 1998 that Vukovic, too,
had settled in the US with his family, he and three other Bosnians filed a
civil complaint against him. A trial was held in October 2001 but neither
Vukovic nor his counsel appeared and a final ruling is now pending.
In other cases the INS has moved to deport people accused of human rights
crimes, such as former Haitian army colonel Carl Dorelian, who emigrated to
the US in 1994. Dorelian, who won $3.2 million in the Florida lottery during
his years here, was convicted in absentia in Haiti of helping to mastermind
the April 1994 massacre at Raboteau in which approximately fifty civilians
were killed. He was arrested by the INS in June 2001 and faces deportation.
But such action has been relatively rare.[12]
2.
In 1994 the United States ratified the Convention Against Torture, which
requires that the states that are party to it take into custody anyone in
their territories alleged to have committed acts of torture or take other
legal measures to ensure the presence and availability of such persons. Upon
being notified of such allegations, states are to make a preliminary inquiry
into the facts and, if the inquiry shows that prosecution is warranted, they
must decide whether to extradite the alleged offender for trial elsewhere or
to prosecute the person themselves.[13] The same year that the US ratified
the convention, Congress adopted legislation to make torture a crime, no
matter where it occurs.[14] In the case of torturers, the United States has
therefore recognized the concept of "universal jurisdiction," the notion
that such offenders are hostis humani generis, or enemies of humanity, and
that all states have the authority to prosecute them.[15] Nonetheless, the
US has never prosecuted a suspected torturer; nor has it ever extradited one
under the Convention Against Torture, although it has surrendered one person
to the International Criminal Tribunal for Rwanda. The US government prefers
to rely, when it acts at all, on immigration law and procedures to deal with
such alleged criminals.[16]
This reluctance derives in part from the Justice Department's interpretation
of the 1994 legislation that made torture anywhere in the world a criminal
offense in the US. In the department's view, prosecution of acts committed
before that legislation was passed (as many of those in question were) would
be ex post facto prosecutions and would therefore be unconstitutional. But
the 1994 legislation does not make criminal what had once been legal
conduct. Torture has long been recognized as a crime under both national and
international law and those who committed acts of torture in any country
could not plausibly claim they weren't aware of its illegality.[17]
US reluctance to extradite or prosecute torturers may not, however, be
solely a matter of legal scruples. The Constant case, to cite only one,
raised much speculation that US intelligence agencies had intervened to
protect someone who had been helpful to them. The case of Tom�s Ricardo
Anderson Kohatsu, an officer in Peru's Army Intelligence Services, prompts
further suspicion that politics may often take precedence over the pursuit
of justice.
Anderson Kohatsu was convicted in 1997 by a Peruvian military court for
misusing his authority in connection with the torture of two Peruvian army
intelligence officers who were accused of leaking government information to
political opposition groups. One of the officers died as a result of the
brutality and her body was dismembered; the other was left a paraplegic.
Peru's Supreme Council of Military Justice subsequently overturned Anderson
Kohatsu's conviction.
Freed from any restrictions on his travel, Anderson Kohatsu arrived in
Washington, D.C., in March 2000, to testify, ironically enough, before the
Inter-American Commission on Human Rights. On his way back to Peru, he
stopped in Houston to change planes; federal agents, alerted by several
human rights groups of his presence in the country, took him off his plane
for questioning. After several hours, thanks to the intervention of the
State Department, Anderson Kohatsu was released and allowed to depart.
Undersecretary of State Thomas Pickering claimed that he was entitled to
diplomatic immunity and hence could not be arrested, though human rights
groups and apparently the Justice Department disagreed. It seemed that the
State Department was more concerned about US relations with the Fujimori
government and its intelligence services than with the merits of the case
against Anderson Kohatsu. Commenting on whether he had immunity, a Justice
Department official said: "Our position was he did not. [The State
Department] position was he did. We lost."[18]
Other countries have been far less hesitant to invoke universal jurisdiction
than the United States. Between 1998 and 2000 the Spanish magistrate
Baltasar Garz�n made intensive and widely publicized efforts to extradite
General Augusto Pinochet from the United Kingdom to stand trial for
terrorism, torture, murder, genocide, and crimes against humanity. Belgium
has successfully prosecuted four Rwandan nationals, convicting them of war
crimes in connection with the 1994 genocide.[19] Less widely publicized but
just as important was the 1999 verdict of a Swiss military tribunal that the
former mayor of Mushubati, Rwanda, had committed war crimes. In August 2000,
Mexico, responding to proceedings initiated by magistrate Garzon, this time
against a former Argentine military officer accused of the torture and
murder of Spanish citizens during Argentina's "Dirty War," arrested the
suspect and subsequently announced that he would be extradited to Spain. And
in Germany in February 2001, a court upheld a finding of guilt against a
Bosnian Serb named Maxim Sokolovic for complicity in genocide in Bosnia.
Sokolovic is currently serving a nine-year sentence.
If the United States is to meet its obligations under the Convention Against
Torture and to avoid looking like a weak link in the growing worldwide net
that is gradually denying human rights criminals a place to hide, it will
have to move beyond its current use of immigration violations to deal with
suspected human rights violators. Because the US does not fully comply with
international standards for the treatment of refugees, people charged with
violating immigration regulations often have less access to counsel or
judicial appeal than those facing criminal charges do. Moreover, refusing to
seek criminal charges can imply that the US is equivocal about the
importance of the crimes that suspects are thought to have committed.
Eriberto Mederos, a former hospital orderly in Havana's National Psychiatric
Hospital, for instance, became a US citizen in 1993 and reportedly received
two state nursing licenses. But Mederos is alleged to have tortured Cuban
political prisoners in the 1970s by applying electroshock to patients lying
on a bare floor covered in their urine and feces. The INS arrested Mederos
in September 2001, almost ten years after allegations against him had first
been made public. A federal grand jury then indicted him not for torture but
on charges of having fraudulently obtained US citizenship by denying that he
had ever persecuted anyone�a far less serious charge.[20]
------------------------------------------------------------------------
In order to prosecute those whom it believes guilty of human rights crimes,
the US should empower the Justice Department, not the State Department, to
decide whether to investigate and bring charges against suspected violators.
It should also establish an office in the Justice Department similar to the
one that has tracked Nazi war criminals, with an exclusive mandate to carry
out the task of investigation. But first the government must recognize the
costs of providing torturers a safe haven in this country.
Those costs are enormous. By harboring people guilty of horrendous crimes,
the US finds itself in the company of countries whose disdain for human
rights is well known�countries like Saudi Arabia, which has allowed Idi
Amin, the notorious former president of Uganda, to live undisturbed in
Riyadh for more than two decades. What kind of message does the US send if
it will go to any corner of the globe to fight terrorism but will not turn
the full power of its judicial system against those who now live in the US
and who are suspected of having terrorized people in their own countries?
According to testimony heard by the United Nations Historical Clarification
Commission in Guatemala in 1999, for example, Donaldo Alvarez Ruiz, former
minister of the interior in that country, was alleged to have personally
supervised the work of death squads responsible for the disappearances and
executions of thousands. Alvarez is said to have lived in the US until very
recently and to continue to make frequent visits to this country. The US has
been fervent in its opposition to the International Criminal Court before
which people can be charged with genocide, war crimes, and crimes against
humanity. The US's own flawed record in confronting people who are alleged
to have committed terrible human rights crimes makes its resistance to the
court appear even more indefensible.
For many survivors of torture, the experience drains the world of its color.
"I cannot read poetry anymore," Jacobo Timerman said after months of
mistreatment in Argentinian prisons during the "Dirty War," "because reading
poetry is an experience full of feelings." Bringing those responsible for
such suffering to justice may help to deter torturers who believe they can
find a haven in the US; and prosecution can bring to public attention the
many victims for whom justice will never be done. After he had filed his
charges against Nikola Vukovic, Kemal Mehinovic observed, "I survived those
years in the camps. This is for those who didn't." Through civil suits and
public witness, many survivors are taking what steps they can to see that
acts of torture be recognized and punished. Is it too much to ask that the
American government lend them a hand?
Notes
[1] The story of Edgegayehu Taye and Kelbessa Negewo, as well as much of the
material in this article, is drawn from a new report by Amnesty
International entitled United States of America: A Safe Haven for Torturers
(April 2002). The report's primary author is Professor William J. Aceves of
California Western School of Law in San Diego.
[2] In fact, between eight hundred and nine hundred of those initially
detained have apparently been released. Some one hundred were charged with
criminal offenses not related to the events of September 11 and others were
charged with minor visa violations. Of the latter, Cheikh Melainine ould
Belal, a Mauritanian diplomat's twenty-year-old son, who had overstayed his
tourist visa by six weeks, was typical. Released after forty days in
custody, Belal was quoted as saying, "I used to like the United States, but
now I don't understand it. I was going to learn English, but now I don't
want to ever speak it again" ("Wide-Ranging Federal Sweep Changes Attitudes
of Immigrants About US," The New York Times, December 5, 2001).
Approximately three hundred people, mostly accused of visa violations, are
still in detention. (See Amnesty International, Amnesty International's
Concerns Regarding Post September 11 Detentions in the USA, March 2002.)
[3] See Discretionary Funds for Assistance for Treatment of Torture
Survivors, 66 Fed. Reg. 13771 (2001).
[4] Amnesty International, United States of America: A Safe Haven for
Torturers, pp. 17�18.
[5] For comparison's sake, consider that the Office of Special
Investigations that was established by the Justice Department in 1978 to
track Nazi war criminals in the US had, as of 1999, stripped sixty-one of
them of their US citizenship and deported forty-nine. (See "New Leahy Bill
Enhances Federal Efforts to Track Down and Deport War Criminals," press
release from the office of Senator Patrick Leahy, July 16, 1999.)
[6] Amnesty International believes that trials in absentia are inconsistent
with the right to be tried in person and would support a new trial before
different judges if Constant were to be returned to Haiti. Haitian law also
entitles Constant to a new trial upon his return.
[7] "Convicted in Haiti, 'Toto' Constant Fears Extradition," Newsday,
November 18, 2000. The government's unwillingness to extradite Constant to
stand trial in Haiti seems all the more curious in light of the recent
announcement by Otto J. Reich, the acting assistant secretary of state for
the Western Hemisphere, that the US will deny visas to foreign officials who
it believes are guilty of corruption ("US Official Aims to Bar Corrupt Latin
Officials," The New York Times, March 13, 2002).
[8] Still another civil suit has been filed against the two generals by
three Salvadorans: a doctor who was abducted and tortured by the National
Guard in 1980, a church layworker who was abducted and raped by guardsmen in
1979, and a professor at the University of El Salvador who was dragged from
his classroom and tortured by the National Police in 1983. A trial date is
pending.
[9] "Scores Accused of Atrocities Committed in Other Countries Are Quietly
Living in US," Miami Herald, July 22, 2001.
[10] Amnesty International, United States of America: A Safe Haven for
Torturers, p. 18.
[11] Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
[12] Sometimes, when deportation has occurred, suspicions have been raised
regarding the government's motives. The best example may be that of two
former Honduran military officers linked by the National Commissioner for
the Protection of Human Rights in Honduras to the notorious Battalion 3-16,
a covert military intelligence unit responsible for widespread abduction,
torture, and murder of political figures in Honduras in the 1980s. The two
were deported from the US in early 2001, a short time before John
Negroponte, a former US ambassador to Honduras, who was accused of failing
to report human rights abuses during his tenure in that post, was nominated
to be US ambassador to the United Nations; see Stephen Kinzer, "Our Man in
Honduras," The New York Review, September 20, 2001.
[13] Taking care to respect the principle of non-refoulement, that is, the
principle that no one should be returned to a country where there is reason
to believe they will be subjected to torture.
[14] 18 U.S.C. 2340 et seq. While Amnesty International applauds this
legislation in general, it firmly opposes its imposition of the death
penalty against those responsible for the death of torture victims.
[15] Torture is not the only crime subject to universal jurisdiction. The
Geneva Conventions provide, for example, that all state parties have an
obligation to search for those alleged to have committed grave breaches,
such as murder, during international conflict, and to bring such individuals
before their courts. And US courts have recognized that universal
jurisdiction applies in the case of airplane hijacking and hostage taking
(United States v. Yunis, 681 F. Supp. 896, 901 (D.D.C. 1988).
[16] In 2001, for example, the INS detained seven aliens in Florida who were
alleged to have committed human rights abuses in foreign countries. (See
"INS Arrests 7 Suspected Rights Violators," Sun-Sentinel, May 9, 2001.)
[17] The International Covenant on Civil and Political Rights, which the US
has ratified, qualifies the ex post facto defense regarding acts that
constituted a criminal offense "according to the general principles of law
recognized by the community of nations" at the time they were committed
(Article 15(2)), a condition that is certainly met by acts of torture.
[18] "US Frees Accused Torturer; Human Rights Groups Decry Ruling on
Peruvian," The Washington Post, March 11, 2000.
[19] The Democratic Republic of the Congo (DRC) recently was successful in
its challenge before the International Court of Justice at The Hague of an
arrest warrant issued by a Belgian judge against the DRC's minister of
foreign affairs for alleged violations of international humanitarian law.
The court ruled that states may not prosecute officials of other states
while they are in office; but this ruling will not preclude prosecution of
former officials or other defendants.
[20] See "A Tale of Torture and Intrigue," US News & World Report, September
10, 2001.
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