[House Report 109-374]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-374

======================================================================

 
    DIRECTING THE SECRETARY OF STATE, THE SECRETARY OF DEFENSE, THE 
     SECRETARY OF HOMELAND SECURITY, AND THE ATTORNEY GENERAL, AND 
 REQUESTING THE PRESIDENT, TO PROVIDE CERTAIN INFORMATION TO THE HOUSE 
   OF REPRESENTATIVES RELATING TO EXTRAORDINARY RENDITION OF CERTAIN 
                            FOREIGN PERSONS

                                _______
                                

 February 10, 2006.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

Mr. Hyde, from the Committee on International Relations, submitted the 
                               following

                             ADVERSE REPORT

                             together with

                            DISSENTING VIEWS

                       [To accompany H. Res. 593]

    The Committee on International Relations, to whom was 
referred the resolution (H. Res. 593) directing the Secretary 
of State, the Secretary of Defense, the Secretary of Homeland 
Security, and the Attorney General, and requesting the 
President, to provide certain information to the House of 
Representatives relating to extraordinary rendition of certain 
foreign persons, having considered the same, reports 
unfavorably thereon without amendment and recommends that the 
resolution not be agreed to.

                           TABLE OF CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     2
Hearings.........................................................     3
Committee Consideration..........................................     3
Votes of the Committee...........................................     4
Committee Oversight Findings.....................................     4
Constitutional Authority Statement...............................     4
Dissenting Views.................................................     5

                          Purpose and Summary

    House Resolution 593 requests the President and directs the 
Secretary of State, the Secretary of Defense, the Secretary of 
Homeland Security, and the Attorney General to transmit to the 
House of Representatives not later than 14 days after the date 
of the adoption of the resolution all documents and records in 
their possession relating to the rendition, transfer, or return 
to a foreign country of any foreign person who has been 
imprisoned, detained, or held for transfer to another country 
by, or has otherwise been in the custody of, a department, 
agency, or official of the United States Government, or any 
contractor of any such department or agency.

                Background and Need for the Legislation

    House Resolution 593 is a resolution of inquiry, which 
pursuant to Rule XIII, clause 7 of the Rules of the House of 
Representatives, directs the Committee to act on the resolution 
within 14 legislative days or a privileged motion to discharge 
the Committee is in order. H. Res. 593 was introduced and 
referred to the Committee on International Relations on 
December 8, 2005. The Committee held a markup session on 
February 8, 2006. The Committee ordered H. Res. 593 reported 
adversely on February 8, 2006.
    Under the Rules and Precedents of the House, a resolution 
of inquiry is one of the methods used by the House to obtain 
information from the executive branch. According to Deschler's 
Procedure it is a ``simple resolution making a direct request 
or demand of the President or the head of an executive 
department to furnish the House of Representatives with 
specific factual information in the possession of the executive 
branch.'' \1\
---------------------------------------------------------------------------
    \1\ Deschler's Precedents, H. Doc. No. 94-661, 94th Cong., 2d 
Sess., vol. 7, ch. 24, section 8.
---------------------------------------------------------------------------
    On December 8, 2005, Rep. Markey of Massachusetts 
introduced H. Res. 593. The resolution seeks all documents and 
records in the possession of the President, the Secretary of 
State, the Secretary of Defense, the Secretary of Homeland 
Security, and the Attorney General relating to the rendition, 
transfer, or return to a foreign country of any foreign person 
who has been imprisoned, detained, or held for transfer to 
another country by, or has otherwise been in the custody of, a 
department, agency, or official of the United States 
Government, or any contractor of any such department or 
agency.\2\
---------------------------------------------------------------------------
    \2\ H. Res. 593, 109th Cong. (December 8, 2005).
---------------------------------------------------------------------------
    The Committee has now reported twelve resolutions of 
inquiry. In the debate surrounding these most recent 
resolutions, proponents have accused the United States 
Government of abusing detainees in its custody and of capturing 
suspected terrorists and delivering them to countries for the 
purpose of torture. The accusations come despite President 
Bush's repeated assurances that the United States does not 
believe in the use of torture. In January of 2005, the 
President told the American people that, ``Torture is never 
acceptable, nor do we hand over people to countries that do 
torture.'' Secretary of State Condoleezza Rice has likewise 
stated, without qualification, that, ``The United States has 
not transported anyone, and will not transport anyone to a 
country when we believe he will be tortured. Where appropriate, 
the United States seeks assurances that transferred persons 
will not be tortured.''
    Renditions are legal under U.S. and international law. U.S. 
regulations implementing Article 3 of the United Nations 
Convention against Torture permit the consideration of 
diplomatic assurances in removal/extradition decisions.\3\ In 
its Second Periodic Report to the United Nations Committee 
against Torture, the United States reported that it: ``. . . 
obtains assurances, as appropriate, from the foreign government 
to which a detainee is transferred that it will not torture the 
individual being transferred. If assurances [are] not 
considered sufficient when balanced against treatment concerns, 
the United States would not transfer the person to the control 
of that government unless the concerns are satisfactorily 
resolved.'' \4\
---------------------------------------------------------------------------
    \3\ 8 C.F.R. Sec.  208.16-18, 1208.16-18 (relating to removal of 
aliens); 22 C.F.R. Sec.  95.2 (relating to extradition of persons).
    \4\ Second Periodic Report of the United States of America to the 
Committee against Torture, submitted May 6, 2005.
---------------------------------------------------------------------------
    The United States Government has an obligation to protect 
its citizens. We have to work with our allies to find practical 
ways to defend ourselves against our enemies. Rendition is a 
legal way to hold these enemies accountable for their crimes. 
As Secretary Rice stated before departing for her recent trip 
to Europe, ``[f]or decades, the United States and other 
countries have used `rendition' to transport terrorist suspects 
from the country where they were captured to their home country 
or to other countries where they can be questioned, held, or 
brought to justice.'' \5\
---------------------------------------------------------------------------
    \5\ Secretary of State Condoleezza Rice, Remarks Upon Her Departure 
to Europe (December 5, 2005).
---------------------------------------------------------------------------
    To the extent Congressional oversight of the Executive's 
use of rendition is necessary, such oversight is inappropriate 
for the International Relations Committee because of the 
extreme sensitivity of the material at issue. Materials 
regarding rendition necessarily include operational techniques 
that can alert our enemies to our methods. The Supreme Court 
has cautioned against Congressional action that ``interferes 
with the command of the forces and the conduct of [military] 
campaigns.'' \6\ Both the Chairman of the House Permanent 
Select Committee on Intelligence, Rep. Hoekstra, and the 
Chairman of the House Armed Services Committee, Rep. Hunter, 
agreed that investigations into extraordinary rendition were 
within the jurisdiction of the Intelligence Committee.\7\ 
Senator Rockefeller, the Vice-Chairman of the Senate Select 
Committee on Intelligence, in arguing for a review of 
rendition, stated, ``[n]o other committee in Congress has the 
jurisdiction to review this issue.''
---------------------------------------------------------------------------
    \6\ Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1836).
    \7\ 151 Congressional Record H 11859 (Dec 15, 2005).
---------------------------------------------------------------------------
    Because rendition is an important and legal tool in the war 
on terror, and because its review is more appropriate for the 
Intelligence Committees, which are better-suited for 
investigating highly sensitive issues, the Committee voted to 
report House Resolution 593 adversely.

                                Hearings

    The Committee did not hold hearings on H. Res. 593.

                        Committee Consideration

    On February 8, 2006, the Full Committee marked up the 
resolution, H. Res. 593, pursuant to notice, in open session. 
The Committee agreed to a motion to report the resolution 
adversely to the House by a record vote of 24 ayes to 16 nays.

                         Votes of the Committee

    Clause (3)(b) of rule XIII of the Rules of the House of 
Representatives requires that the results of each record vote 
on an amendment or motion to report, together with the names of 
those voting for or against, be printed in the Committee 
report. The following record votes occurred during 
consideration of H. Res. 593:
Vote to report to the House adversely:
    Voting yes: Hyde, Smith (NJ), Burton, Ros-Lehtinen, 
Rohrabacher, Royce, King, Chabot, Tancredo, Issa, Flake, Davis, 
Green, Weller, Pence, McCotter, Harris, Wilson, Boozman, 
Barrett, Mack, Fortenberry, McCaul, and Poe.
    Voting no: Leach, Paul, Lantos, Faleomavaega, Sherman, 
Wexler, Engel, Delahunt, Crowley, Berkley, Napolitano, Schiff, 
Watson, Smith (WA), Chandler and Cardoza.
    H. Res. 593 was ordered reported adversely to the House by 
a vote of 24 ayes to 16 noes.

                      Committee Oversight Findings

    The Committee held no oversight activities under clause 
2(b)(1) of rule X of the Rules of the House of Representatives.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this resolution in article I, section 1 of the Constitution.

                            Dissenting Views

    We are deeply disappointed with the majority's rejection of 
this resolution of inquiry relating to U.S. policy towards 
torture and cruel, inhumane and degrading treatment, 
particularly in the context of the rejection of two other 
related resolutions on the same day. We believe that in order 
to fulfill our constitutional responsibilities, this Committee 
and the Republican-controlled Congress more generally must 
immediately do more to investigate the issues presented by 
these resolutions.
    The United States has been a leader in human rights 
throughout its history. President Woodrow Wilson countered 
colonialism by advocating self-determination. Eleanor Roosevelt 
led the fight to adopt the Universal Declaration of Human 
Rights in the 1940's, which was the first international 
instrument to prohibit torture and cruel, inhumane and 
degrading treatment. President's Truman and Kennedy put 
protecting freedom at the heart of U.S. foreign policy. 
President Carter renewed the focus of U.S. foreign policy on 
human rights and democracy. And President Ronald Reagan helped 
shepherd the Convention Against Torture and Cruel, Inhumane and 
Degrading Treatment.
    With respect to our own institution, over the past 15 
years, this House has been at the forefront of efforts to 
combat torture around the world. In 1992, Congress adopted a 
measure to create a private cause of action in U.S. courts 
against those who perpetrate torture. In 1994, this very 
committee adopted the implementing legislation for the 
Convention Against Torture, clearing the way for U.S. 
ratification of that critical treaty. And since 1998, our 
committee has adopted a number of measures to provide relief to 
victims of torture around the world. The Congressional 
attention to this matter is a legacy of which we should all be 
proud. It is based on our own shared values that torture and 
inhumane treatment is not acceptable anywhere, and should be 
stamped out wherever it exists.
    It is therefore with dismay that we have learned of the 
abuses of individuals who have been detained by the U.S. 
Government, either at the hands of our military force who we 
believe have not been given the proper leadership or at the 
hands of agents of foreign governments to whom the United 
States has have turned over a number of individuals. These 
revelations, most graphically demonstrated in the images of the 
abuse at Abu Ghraib prison in Iraq which were seared into the 
minds of millions of people around the globe. Indeed, beyond 
the simple moral imperative to stop such abuses and the 
historic commitment of the United States to abide by its 
international obligations, the international reaction to the 
images at Abu Ghraib demonstrates to us that these events do 
not merely implicate the principles described above, but go to 
the core of our national security. For it is these graphic 
images that are used by our enemies in Al-Qaeda and its 
affiliates to generate greater hostility against this country 
and recruit more terrorists to be used to attack us and our 
friends and allies.
    It is against this backdrop that the three resolutions of 
inquiry have been filed, seeking in the absence of any 
comprehensive investigation by our Republican colleagues, 
information on the Administration's approach to interrogation 
of suspected terrorists and the treatment of detainees. Such an 
investigation is critical and long overdue to counter the 
notion that the United States does not care about these abuses. 
By launching a thorough investigation and tracing the evidence 
wherever it leads, we can help repair our damaged leadership in 
the area of human rights. We hope that these three resolutions 
will help contribute to a new momentum to launching such an 
investigation.
    H. Res. 593, introduced by our colleague Representative 
Markey addresses the issue of the U.S. policies towards 
extraordinary rendition. ``Rendition'' is a term used in the 
international law enforcement community for the transfer of 
suspects from one country to another. Extradition, generally 
pursuant to treaty, is the formal mechanism for renditions, 
although occasionally removal or deportation of an alien 
without a formal extradition process is another lawful manner 
of rendition. Transfers are also effectuated through a process 
as ``extraordinary rendition'' or ``irregular rendition,'' 
which involves the extrajudicial transfer of a person from one 
State to another.
    Renditions are not new and have long been a tool for 
international law enforcement cooperation. However, this 
practice has come more into the public eye since September 11, 
2001. According to press reports, the President has expanded 
the CIA's authority to conduct renditions, and some reports 
suggest that over 100 terrorism related renditions have 
occurred. These renditions of terrorist suspects have been 
surrounded by allegations of abuse by the receiving country, 
confusion as to what type of assurances regarding treatment 
have been obtained by the U.S. and allegations that the 
rendition occurred without the consent of the country from 
which the suspect was transferred. Examples of such cases 
include:

         A dual Canadian-Syrian citizen, Maher Arar, 
        was allegedly rendered to Syria, where he was allegedly 
        tortured and interrogated for suspected terrorist 
        activities with the acquiescence of the United States. 
        Canada has established a commission to review this 
        episode and Arar has filed a suit in U.S. courts.

         U.S. intelligence operatives allegedly seized 
        in Italy and rendered to Egypt an Islamic cleric, 
        allegedly without the consent of the Italian 
        Government. Italy has issued arrest warrants for 
        thirteen persons allegedly involved in the case.

         Mamdouh Habib, an Egyptian-born Australian in 
        American custody, was allegedly transported from 
        Pakistan to Afghanistan to Egypt to Guantanamo Bay. Now 
        back home in Australia, Habib alleges that he was 
        tortured during his six months in Egypt with beatings 
        and electric shocks, and hung from the walls by hooks.

    The Administration has stated publicly that renditions have 
occurred but have denied all wrongdoing. For example, Attorney 
General Gonzales has been quoted as saying that the U.S. does 
not send any person ``to countries where we believe or we know 
that they're going to be tortured''. The CIA Director has said 
that ``we have more oversight [over renditions] than we did 
before''. Secretary of State Rice stated before her December 
trip to Europe that ``the United States has not transported 
anyone, and will not transport anyone to a country where we 
believe he will be tortured. Where appropriate the United 
States seeks assurances that transferred persons will not be 
tortured.''
    However, there is little publicly available information 
from government sources regarding the nature and type of 
renditions, the type of assurances that have been obtained by 
the United States, and what type of monitoring there is of 
these assurances to ensure that these statements are validated 
by the facts. To date, we are not aware of any Congressional 
hearing that has taken place specifically on the subject of 
torture.
    We note that Representative Markey, the sponsor of H. Res. 
593, has introduced H.R. 952, the Torture Outsourcing 
Prevention Act of 2005, which would prohibit rendition to any 
country that commonly uses torture during detention and which 
was referred to the Committee on International Relations. The 
Committee has not considered nor held a hearing on the 
legislation, in that context we deeply regret the opposition of 
our Republican colleagues to Mr. Markey's resolution.
    H. Res. 624, introduced by Mr. Ackerman, addresses the 
Administration's approach to the application of the Convention 
Against Torture and the Geneva Conventions and the role of the 
State Department in devising that approach.
    The United States is obligated under the Convention Against 
Torture to ban not only torture but also cruel, inhumane and 
degrading treatment. In addition, under Common Article 3 of the 
Geneva Conventions, the United States has a duty to treat all 
prisoners of war or civilian detainees humanely. The 
application of these international treaty obligations, however, 
has been controversial. In early 2002, the President decided 
that the Geneva Conventions did not apply to detainees that the 
Administration determined to be ``unlawful enemy combatants.'' 
In mid-2002, the Justice Department provided a memorandum to 
then White House Counsel Alberto Gonzales strictly limiting the 
application of the Convention Against Torture, a memorandum 
which was subsequently withdrawn after it became public. In 
2003, a Defense Department working group established procedures 
based on this memorandum, which was subsequently overturned 
when it became public. And in 2005, Attorney General Gonzalez 
declared that the Convention Against Torture did not limit the 
United States actions outside the United States, which was 
immediately disputed by former Legal Adviser Abe Sofaer, who 
helped shepherd the treaty through the Senate in 1984.
    The shifting interpretation of U.S. legal obligations under 
these various conventions as applied by the U.S. government led 
to confusion, with some military officers expressing their 
severe discomfort with the lack of standards as to what is 
considered ``humane'' under U.S. law. Many argue that this 
confusion contributed to a number of abuses by U.S. military 
and civilian forces since September 11th, 2001. In addition to 
the abuses that took place in Abu Ghraib in the Fall of 2003, 
according to several outside groups, there have been 87 
documented deaths in U.S. custody. Allegations of abuse 
relating to misuse of the Koran to other inhumane practices 
have been widely reported in the press.
    This changing mosaic of interpretation of key human rights 
obligations of the United States raises the question of how our 
Government reached its legal conclusions. Press reports suggest 
that lawyers in the Justice Department and the White House 
reached decisions about the application of the Geneva 
Conventions prior to consulting with the Department of State's 
legal office, the Office of the Legal Adviser, and only made 
modest changes after a formal objection was lodged by then 
Secretary of State Powell. The various memoranda prepared by 
the Justice Department and the Defense Department regarding 
treatment of detainees and the application of the Convention 
Against Torture were apparently done without any consultation 
whatsoever with the Office of the Legal Adviser.
    If these allegations are accurate, this process represents 
a fundamental breakdown in government. The Office of the Legal 
Adviser is the foremost repository of U.S. Government expertise 
on international law. While the Justice Department has been 
given the formal responsibility of providing legal opinions on 
behalf of the U.S. Government, failure to consult with the 
State Department, perhaps because of fears as to what the 
Department would argue, is not a process which is designed to 
lead to a coherent and accurate conclusion on this matter. 
Indeed, not only has the Administration admitted that some of 
its own original legal theories were, at a minimum, overbroad, 
but these problems have caused significant friction with U.S. 
allies and the international community.
    Although there have been numerous (although arguably 
incomplete, as will be discussed below) investigations into the 
actual abuses themselves, and there have been some hearings in 
the Senate where the issue of the overruling of Defense 
Department military and career lawyers has been discussed, we 
are not aware of any hearing regarding the failure of the White 
House and the Justice Department to have a full and formal 
vetting of controversial legal theories with the Department of 
State.
    This is not an academic question. With the enactment of the 
McCain Amendment banning torture and cruel, inhumane and 
degrading treatment as part of the FY2006 Defense Authorization 
and Appropriations Acts, there remain a number of open 
questions regarding the application and implementation of these 
legal standards. Failure of the Administration to fully consult 
the agencies and offices that have the greatest expertise may 
well lead to future mistakes and problems in the implementation 
of this critical amendment.
    H. Res. 642, introduced by Representative Lee, addresses 
the issues related to detainee treatment that arose prior to 
Secretary of State Rice's December trip to Europe. That trip, 
which had been billed as intending to turn a new page in the 
Translatlantic relationship instead centered on news reports 
from November 2005 which indicated that the United States had 
secret facilities in European countries, including using a 
Soviet-era compound in Eastern Europe, where ``ghost 
detainees'' who had not been reported to the International 
Committee of the Red Cross were being detained and 
interrogated. These reports set off a fire storm of criticism 
on the eve of a Secretary Rice's trip, overshadowed her own 
agenda, and forced the United States to make new pronouncements 
regarding its detainee policy.
    H. Res. 642 asks for information related to these 
announcements immediately before and during the trip. For 
example, prior to the trip, Attorney General Gonzales had 
stated that the Convention Against Torture does not obligate 
the U.S. Government outside the United States, a position that 
was the subject of strenuous objections by former U.S. 
officials. During the trip, Secretary Rice seemed to back 
track, suggesting that ``as a matter of policy , the United 
States obligations under the CAT, which prohibits . . . cruel 
and inhumane and degrading treatment, those obligations extend 
to U.S. personnel wherever they are, whether they are in the 
United States or outside the United States.'' Whether this 
constitutes a change in legal position or a statement of policy 
remains unclear. Secretary Rice had a number of discussions 
with leaders of Western European countries that defused to some 
degree the tensions over the reports of secret detention 
facilities. However, both the Council of Europe and the 
European Parliament have ongoing investigations of European 
complicity with the U.S. practice of extraordinary renditions 
and the issue of the secret prisons, although a recent interim 
report of the Council of Europe did not find any ``irrefutable 
evidence'' of secret facilities. The breadth of these inquiries 
raises the question as to why the U.S. Congress is not pursuing 
its own investigation. Ms. Lee's resolution tries to start such 
an investigation.
    The gaps in Congress' investigation of the torture issue 
presented by these resolutions of inquiry points to a lack of 
oversight and points to the problem of unity of government. In 
addition to issues relating to extraordinary rendition, secret 
facilities in Europe and broken government processes, many 
point to other gaps or questions in the Administration's own 
investigation of terrorism abuses:

         The Independent Commission headed by former 
        Secretary of Defense Schlesinger that ``there is both 
        institutional and personal responsibility at higher 
        levels,'' but there have been no prosecutions against 
        senior officers for the abuses themselves.

         For example, Colonel Thomas Pappas, who 
        commanded the military intelligence unit at Abu Ghraib, 
        has not been prosecuted but was given a reprimand, paid 
        a $4000 fee, and now has been given immunity for 
        testifying against two dog handlers, and an officer 
        under his command.

         Lieutenant General Randall Schmidt, who 
        investigated allegations by the FBI of interrogation 
        abuses at Guantanamo, recommended a reprimand of 
        General Geoffrey Miller, who some have alleged 
        recommended the use of dogs to intimidate detainees, 
        but General Miller's commanding officer rejected this 
        recommendation.

         And now, General Miller has invoked his right 
        against self-incrimination.

         Moreover, the Independent Commission and one 
        investigating officer, General Fay, also have stated 
        that detainee treatment by other government agencies 
        remains unclear.

    We urge our Republican colleagues to support the 
establishment of an independent commission to investigate these 
abuses, as proposed by our colleague Representative Waxman and 
Senator Levin. By doing so we can prove to the world that we 
are serious about accountability for human rights violations 
and counter the damage to our national security done by them.
    The questions presented by the three resolutions rejected 
by the Majority and the questions described above demand 
answers. Our failure to even ask these questions is a 
fundamental abdication of Congress' constitutional 
responsibility to conduct oversight of the Executive Branch. We 
urge our members to reconsider and schedule hearings in the 
near future.

                                   Tom Lantos.
                                   Howard L. Berman.
                                   Gary L. Ackerman.
                                   Eni F. H. Faleomavaega.
                                   Donald M. Payne.
                                   Sherrod Brown.
                                   Robert Wexler.
                                   Eliot L. Engel.
                                   William D. Delahunt.
                                   Barbara Lee.
                                   Joseph Crowley.
                                   Earl Blumenauer.
                                   Grace F. Napolitano.
                                   Adam B. Schiff.
                                   Diane E. Watson.
                                   Adam Smith.
                                   Betty McCollum.
                                   Ben Chandler.

                                  
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