[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 952 Introduced in House (IH)]
109th CONGRESS
1st Session
H. R. 952
To prohibit the transfer or return of persons by the United States, for
the purpose of detention, interrogation, trial, or otherwise, to
countries where torture or other inhuman treatment of persons occurs.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 17, 2005
Mr. Markey (for himself, Mr. Filner, Mr. Owens, Mr. Frank of
Massachusetts, Mr. Lewis of Georgia, Ms. Schakowsky, Mr. Grijalva, Mr.
Honda, Ms. McCollum of Minnesota, Mr. Kucinich, Mr. Hinchey, Mr.
Lantos, Mr. Pastor, Mr. Serrano, Mr. McDermott, Mr. Blumenauer, Mr.
McGovern, Mr. Sanders, Mr. George Miller of California, Mr. Holt, Mr.
Olver, Mr. Stark, Mrs. Davis of California, Ms. Lee, Ms. Woolsey, Mr.
Waxman, Mr. Sabo, Mr. Doggett, Mr. Conyers, Mr. Tierney, Mr. Allen, Mr.
Davis of Illinois, Mrs. Maloney, and Ms. Millender-McDonald) introduced
the following bill; which was referred to the Committee on
International Relations
_______________________________________________________________________
A BILL
To prohibit the transfer or return of persons by the United States, for
the purpose of detention, interrogation, trial, or otherwise, to
countries where torture or other inhuman treatment of persons occurs.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Torture Outsourcing Prevention
Act''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) The Universal Declaration of Human Rights states that
``No one shall be subjected to torture or to cruel, inhuman, or
degrading treatment or punishment.''.
(2) The United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (in this
Act 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 which may be
``inflicted by or at the instigation of or acquiescence of a
public official or other person acting in an official
capacity.''.
(3) Article 4 of the Convention against Torture obligates
State parties to ensure that all acts of torture are criminal
offenses under domestic legislation, and current United States
law, under section 2340A of title 18, United States Code, makes
torture a crime when committed outside of the United States.
(4) 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.'' It further provides that in
making such determinations, governments must take into account
the existence of ``a consistent pattern of gross, flagrant, or
mass violations of human rights.''.
(5) In order to discourage the use of torture in
interrogation, Article 15 of the Convention against Torture
requires all state Parties to ``ensure that any statement which
is established to have been made as a result of torture shall
not be invoked as evidence in any proceedings''.
(6) 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 154
countries, including the United States in 1992;
(B) the Convention against Torture, ratified by 139
countries, including the United States in 1994;
(C) the American Convention on Human Rights;
(D) the European Convention for the Protection of
Human Rights and Fundamental Freedoms; and
(E) the African Charter on Human and Peoples'
Rights.
(7) The prohibition against torture and inhumane treatment
is also fundamental to the laws governing the conduct of
parties in armed conflicts, as enshrined in the Geneva
Conventions of 1949 and their Protocols, 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, 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 prohibit 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.''.
(8) 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.''.
(9) In the United States, 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 not to 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.
(10) 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.
(11) Section 2242(a) of the Foreign Affairs Reform and
Restructuring Act of 1998 (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.'' . To do otherwise
would violate our obligations under Article 3 of the Convention
against Torture.
(12) Transferring, rendering, removing, 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 in the detention and interrogation
of individuals is inconsistent with international human rights
law, including various human rights treaties ratified by the
United States, the Constitutional protections against torture
or inhuman treatment, and the values and principles upon which
the United States was founded.
(13) Recent practices have weakened the safeguards under
applicable laws, such as the procedures under the immigration
laws of the United States governing removals from the United
States, and persons have been transferred from the custody of
the United States to that of other governments entirely outside
of any legal framework.
(14) It is critically important that all transfers of
individuals to other countries occur with full due process of
law and in conformity with the obligations of the United States
under article 3 of the Convention Against Torture.
(15) The reliance on diplomatic or other assurances from a
government that it will not torture or ill-treat a person
returned to that government is an ineffective safeguard for
protecting persons from torture or ill treatment. Such
assurances from a government known to engage in systematic
torture are inherently unreliable. There is strong evidence
that governments such as those of Egypt, Syria, and Uzbekistan
have violated such assurances they have provided.
(16) The United Nation's leading expert on torture, the
Special Rapporteur on Torture, recently examined the practice
of rendition in situations that implicate the prohibition on
returning persons to countries where they may face torture. The
Special Rapporteur noted with concern that such practices
appear to be on the rise over the past 3 years. After examining
the growing use of diplomatic or other assurances described in
paragraph (14), the Special Rapporteur stated that such
assurances may not be used in circumstances where a country has
a record of ``systematic practice of torture''. In such cases,
the individual's right not to be subjected to torture must be
respected, and the individual may not be returned to that
country.
SEC. 3. TRANSFER OF PERSONS.
(a) Reports to Congress.--Beginning 30 days after the date of the
enactment of this Act and every 12 months thereafter, the Secretary of
State shall complete and submit to the appropriate congressional
committees a list of countries where there are substantial grounds for
believing that torture or cruel, inhuman, or degrading treatment is
commonly used in the detention of or interrogation of individuals. The
list shall be compiled on the basis of the information contained in the
most recent annual report of the Secretary of State submitted to the
Speaker of the House of Representatives and the Committee on Foreign
Relations of the Senate under section 116(d) of the Foreign Assistance
Act of 1961 (22 U.S.C. 2151n(d)).
(b) Prohibition on Transferring Persons.--Any person who is
imprisoned, detained, or held for transfer to another country by, or is
otherwise in the custody of, a department, agency, or official of the
United States Government, or any contractor of any such department or
agency, may not be transferred, rendered, or returned--
(1) to a country included on the most recent list submitted
under subsection (a), for the purpose of detention,
interrogation, trial, or otherwise; or
(2) to any other country if there are substantial grounds
to believe that the person will be transferred to a country
included in the most recent list submitted under subsection
(a).
(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 ended the acts of torture
or cruel, inhuman, or degrading treatment that were the
basis for the inclusion of that country on the list;
and
(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 transferred, rendered, or returned to the country 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.--(1) 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.
(2) Assurances Insufficient.--Written or verbal assurances made to
the United States by the government of a country that persons
transferred, rendered, or returned to the country will not be tortured
or subjected to cruel, inhuman, or degrading treatment, are not
sufficient basis for believing that the person would not be in
subjected to torture or cruel, inhuman, or degrading treatment in the
country requesting such extradition pursuant to paragraph (1).
SEC. 4. IMPLEMENTATION OF OBLIGATION NOT TO RETURN TO RISK OF TORTURE.
(a) In General.--Section 2242 of the Foreign Affairs Reform and
Restructuring Act of 1998 (8 U.S.C. 1231 note) is amended by striking
subsection (b) and inserting the following:
``(b) Regulations.--
``(1) Issuance.--Not later than 120 days after the date of
the enactment of the Torture Outsourcing Prevention Act, the
heads of the appropriate Government agencies shall prescribe
regulations to implement the obligations of the United States
under Article 3 of the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, subject to any reservations, understandings,
declarations and provisos contained in the United States Senate
resolution of ratification of the Convention.
``(2) Requirements of regulations.--Regulations issued by
the head of an agency under paragraph (1) shall set forth--
``(A) the responsibilities of the agency, its
employees, and its contractors to comply, both within
and outside of the United States, with the obligations
of the United States under Article 3 of the Convention
Against Torture referred to in paragraph (1); and
``(B) the process by which a person may raise and
adjudicate in an independent judicial forum a claim
that his or her transfer would be in violation of
Article 3 of the Convention Against Torture referred to
in paragraph (1), including the process by which the
individual being transferred can challenge any
diplomatic or other assurances received from the
government to which the individual would be returned
that the individual will not be subjected to torture or
ill treatment.
``(3) Definition.--For purposes of this subsection, the
term `appropriate Government agencies' means the intelligence
community (as defined in section 3(4) of the National Security
Act of 1947 (50 U.S.C. 401a(4))), the Departments of State,
Defense, Homeland Security, and Justice, the United States
Secret Service, the United States Marshals Service, and any
other law enforcement, national security, intelligence, or
homeland security agency which imprisons, detains, or transfers
prisoners or detainees, or which otherwise takes or assumes
custody of persons, or transfers persons to another country.''.
(b) Existing Regulations.--
(1) In general.--The amendment made by subsection (a) does
not nullify any regulations issued by an agency, before the
effective date of this Act, under section 2242(b) of the
Foreign Affairs Reform and Restructuring Act of 1998. In such a
case, the agency shall amend such regulations to comply with
the amendment made by subsection (a) of this section.
(2) Special rule concerning immigration laws.--
Notwithstanding any other provision of this Act, or any
amendment made by this Act, nothing in this Act shall be
construed to affect immigration laws (as defined in section
101(a)(17) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(17))), or regulations issued pursuant to immigration
laws, except that the Secretary of Homeland Security, not later
than 120 days after the date of the enactment of this Act,
shall revise the regulations issued by the Secretary to
implement section 2242 of the Foreign Affairs Reform and
Restructuring Act of 1998 (8 U.S.C. 1231 note) so as to ensure
that written or verbal assurances made by the government of a
country that a person in immigration proceedings in the United
States (including asylum proceedings) will not be tortured or
subjected to cruel, inhuman, or degrading treatment if the
person is removed by the United States to the country are not,
standing alone, a sufficient basis for believing that the
person would not be tortured or subjected to such treatment if
the alien were removed to the country.
SEC. 5. SAVINGS CLAUSE.
Nothing in this Act or the amendments made by this Act shall be
construed to eliminate, limit, or constrain in any way the rights that
an individual has under the Convention Against Torture or any other
applicable law.
SEC. 6. EFFECTIVE DATE.
This Act takes effect on the date that is 30 days after the date of
the enactment of this Act.
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