[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.
                                 <all>