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.

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

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.

END