[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4674 Introduced in House (IH)]






108th CONGRESS
  2d Session
                                H. R. 4674

To prohibit the return of persons by the United States, for purposes of 
detention, interrogation, or trial, to countries engaging in torture or 
                  other inhuman treatment of persons.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 23, 2004

  Mr. Markey introduced the following bill; which was referred to the 
                  Committee on International Relations

_______________________________________________________________________

                                 A BILL


 
To prohibit the return of persons by the United States, for purposes of 
detention, interrogation, or trial, to countries engaging in torture or 
                  other inhuman treatment of persons.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. FINDINGS.

    The Congress finds the following:
            (1) The United Nations Convention against Torture or Other 
        Cruel, Inhuman or Degrading Treatment or Punishment (in this 
        section referred to as the ``Convention against Torture'' ) 
        defines torture as ``any act by which severe pain or suffering, 
        whether physical or mental, is intentionally inflicted on a 
        person for such purposes as obtaining from him or a third 
        person information or a confession. . . .'', and that it may be 
        ``inflicted by or at the instigation of or acquiescence of a 
        public official or other person acting in an official 
        capacity.''.
            (2) The Universal Declaration of Human Rights states that 
        ``No one shall be subjected to torture or to cruel, inhuman, or 
        degrading treatment or punishment.''.
            (3) The prohibition on torture and other ill-treatment has 
        been incorporated into the numerous international and regional 
        human rights treaties, including--
                    (A) Article 7 of the International Covenant on 
                Civil and Political Rights (ICCPR), ratified by 153 
                countries, including the United States in 1992;
                    (B) the Convention against Torture, ratified by 136 
                countries, including the United States in 1994;
                    (C) the European Convention for the Protection of 
                Human Rights and Fundamental Freedoms;
                    (D) the African Charter on Human and Peoples' 
                Rights; and
                    (E) the American Convention on Human Rights.
            (4) The prohibition against torture is also fundamental to 
        the laws governing the conduct of parties in armed conflicts, 
        which establish a duty to protect the life, health, and safety 
        of civilians and other noncombatants, including soldiers who 
        are captured or who have laid down their arms, including the 
        Geneva Conventions which prohibit ``violence of life and 
        person, in particular murder of all kinds, mutilation, cruel 
        treatment, and torture'', ``outrages upon personal dignity, in 
        particular humiliating, and degrading treatment'', and the use 
        of force to obtain information, stipulating that ``No physical 
        or moral coercion shall be exercised against protected persons, 
        in particular to obtain information from them or from third 
        parties.''.
            (5) The United States Government informed the United 
        Nations in 1999 that in the United States, the use of torture 
        ``is categorically denounced as a matter of policy and as a 
        tool of state authority . . . No official of the government, 
        Federal, State, or local, civilian, or military, is authorized 
        to commit or to instruct anyone else to commit torture. Nor may 
        any official condone or tolerate torture in any form . . . 
        Every act of torture within the meaning of the [Convention 
        against Torture] is illegal under existing Federal and State 
        law, and any individual who commits such an act is subject to 
        penal sanctions as specified in criminal statutes.''.
            (6) The practice of torture violates numerous provisions of 
        the United States Constitution and its Bill of Rights, 
        including the right under the Fourth Amendment to be free of 
        unreasonable search or seizure, which encompasses the right to 
        not be abused by the police, the right under the Fifth 
        Amendment against self-incrimination, which encompasses the 
        right to remain silent during interrogations, the guarantees of 
        due process under the Fifth and the Fourteenth Amendments, 
        which ensure fundamental fairness in criminal justice system, 
        and the right under the Eighth Amendment to be free of cruel or 
        unusual punishment.
            (7) In numerous cases, the United States Supreme Court has 
        condemned the use of force amounting to torture or other forms 
        of ill treatment during interrogations, including such 
        practices as whipping, slapping, depriving a prisoner of food, 
        water, or sleep, keeping a prisoner naked or in a small cell 
        for prolonged periods, holding a gun to a prisoner's head, or 
        threatening a prisoner with mob violence.
            (8) Article 4 of the Convention against Torture obligates 
        State parties to ensure that all acts of torture are criminal 
        offenses under domestic legislation, and the United States has 
        insisted that existing Federal and State laws render illegal 
        any act falling within the definition of torture under the 
        Convention against Torture.
            (9) Article 3 of the Convention against Torture expressly 
        prohibits sending a person to another State ``where there are 
        substantial grounds for believing that he would be in danger of 
        being subjected to torture.''.
            (10) Section 2242(a) of the Foreign Affairs Reform and 
        Restructuring Act of 1998, as contained in Public Law 105-277 
        (8 U.S.C. 1231 note) states that ``It shall be the policy of 
        the United States not to expel, extradite, or otherwise effect 
        the involuntary return of any person to a country in which 
        there are substantial grounds for believing the person would be 
        in danger of being subjected to torture, regardless of whether 
        the person is physically present in the United States.''.
            (11) Transferring, rendering, returning, or extraditing 
        persons in the custody of the United States to any other 
        country where torture or cruel, inhuman, or degrading treatment 
        is commonly used by the government in interrogation and 
        detention is inconsistent with international human rights law, 
        the Constitutional protections against torture or inhuman 
        treatment, and the values and principles upon which the United 
        States was founded.

SEC. 2. TRANSFER OF PERSONS IN CUSTODY.

    (a) Reports to Congress.--Beginning 6 months after the date of the 
enactment of this Act and every 6 months thereafter, the Secretary of 
State shall submit to the appropriate congressional committees a list 
of each country where torture or cruel, inhuman, or degrading treatment 
is commonly used by the government of that country in interrogation and 
detention.
    (b) Prohibition on Transferring Persons.--No person in the custody 
of a United States Government department, agency, or official may be 
transferred, rendered, or returned to the custody of the government of 
a country included on the most recent list submitted under subsection 
(a) for the purpose of detention, interrogation, or trial.
    (c) Waivers.--
            (1) Authority.--The Secretary of State may waive the 
        prohibition contained in subsection (b) with respect to the 
        government of a country if the Secretary certifies to the 
        appropriate congressional committees that--
                    (A) that government has made significant, 
                verifiable progress in eliminating the acts of torture 
                or cruel, inhuman, or degrading treatment that were the 
                basis for the inclusion of that country on the list; or
                    (B) there is in place a mechanism that assures the 
                United States in a verifiable manner that a person 
                transferred, rendered, or returned will not be tortured 
                or subjected to cruel, inhuman, or degrading treatment 
                in that country, including, at a minimum, immediate, 
                unfettered, and continuing access, from the point of 
                return, to each such person by an independent 
                humanitarian organization.
            (2) Assurances insufficient.--Written or verbal assurances 
        made to the United States by the government of a country that 
        persons in its custody will not be tortured or subjected to 
        cruel, inhuman, or degrading treatment, are not sufficient to 
        meet the requirements of paragraph (1)(B).
    (d) Treaty-Based Extradition Exemption.--The prohibition contained 
in subsection (b) shall not be construed to apply to the legal 
extradition of a person under a bilateral or multilateral extradition 
treaty if, prior to such extradition, that person has recourse to a 
court in the United States of competent jurisdiction to challenge the 
extradition on the basis that there are substantial grounds for 
believing that the person would be in danger of being subjected to 
torture or cruel, inhuman, or degrading treatment in the country 
requesting such extradition.
                                 <all>