S.Amdt. 2239

1. Adds SEC. 1070. PROHIBITION ON EXPULSION, RETURN, OR EXTRADITION OF PERSONS BY THE UNITED STATES TO COUNTRIES ENGAGING IN TORTURE at the end of subtitle E of title X

   Adds a section

   Inserted: SEC. 1070. PROHIBITION ON EXPULSION, RETURN, OR EXTRADITION OF PERSONS BY THE UNITED STATES TO COUNTRIES ENGAGING IN TORTURE.

   Inserted: (a) Prohibition.--

   Inserted: (1) In general.--Part IV of title 28, United States Code, is amended by adding at the end the following new chapter:

   Inserted: "CHAPTER 181--EXPULSION, RETURN, OR EXTRADITION OF PERSONS TO COUNTRIES ENGAGING IN TORTURE

   Inserted: "Sec.

   Inserted: "4101. Definitions.

   Inserted: "4102. Prohibition on expulsion, return, or extradition of persons by the United States to countries engaging in torture.

   Inserted: "4103. Approval of Foreign Intelligence Surveillance Court required for transfers of persons between foreign countries.

   Inserted: "4104. Annual reports on countries using torture.

   Inserted: "Sec. 4101. Definitions "In this chapter:

   Inserted: "(1) The term 'appropriate congressional committees' means--

   Inserted: "(A) the Committees on Armed Services, Foreign Relations, Homeland Security and Government Affairs, and the Judiciary and the Select Committee on Intelligence of the Senate; and

   Show 52 more inserted paragraphsShow less

   Inserted: "(B) the Committees on Armed Services, Homeland Security, the Judiciary, and International Relations, and the Permanent Select Committee on Intelligence of the House of Representatives.

   Inserted: "(2) The term 'appropriate government agencies' means the following:

   Inserted: "(A) The elements of the intelligence community (as defined in or specified under section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))).

   Inserted: "(B) Any element (other than an element referred to in subparagraph (A)) of the Department of State, the Department of Defense, the Department of Homeland Security, the Department of Justice or any other Federal law enforcement, national security, intelligence, or homeland security agency that takes or assumes custody or control of persons or transports persons in its custody or control outside the United States.

   Inserted: "(3) The term 'Foreign Intelligence Surveillance Court' means the court established by section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)).

   Inserted: "(4) The term 'substantial grounds', in the case of an evidentiary showing, means a showing that a fact is more likely than not.

   Inserted: "Sec. 4102. Prohibition on expulsion, return, or extradition of persons by the United States to countries engaging in torture

   Inserted: "(a) Prohibition.--No person in the custody or control of any department, agency, officer, or employee of the United States, or any contractor thereof, shall be expelled, returned, or extradited to another country, whether directly or indirectly, unless--

   Inserted: "(1) such person--

   Inserted: "(A) is being legally extradited under a bilateral or multilateral extradition treaty or legally removed under the immigration laws of the United States; and

   Inserted: "(B) has recourse to a United States court of competent jurisdiction before such extradition or removal to challenge such extradition or removal on the basis that there are substantial grounds for believing that such person would be in danger of being subjected to torture in the receiving country;

   Inserted: "(2) in the case of a transfer of such person from the territory of the United States through means other than those covered by paragraph (1), such person has recourse to an appropriate district court of the United States before such transfer to challenge such transfer on the basis that there are substantial grounds for believing that such person would be in danger of being subjected to torture in the receiving country; or

   Inserted: "(3) in the case of the transfer of such person from one foreign country to another foreign country, the transfer has the prior approval of the Foreign Intelligence Surveillance Court in accordance with section 4103 of this title.

   Inserted: "(b) Jurisdiction.--

   Inserted: "(1) Jurisdiction of district courts.--In the event the district courts of the United States do not have jurisdiction under any other provision of law to hear a challenge described in subsection (a)(2), the district courts of the United States shall have jurisdiction to hear such a challenge by reason of this section.

   Inserted: "(2) Jurisdiction of foreign intelligence surveillance court.--The Foreign Intelligence Surveillance Court shall have jurisdiction to consider petitions under section 4103 of this title in accordance with the provisions of that section, and to make determinations, certifications, and approvals of and with respect to such petitions as provided in that section.

   Inserted: "(c) Release of Certain Persons.--If the legal basis for detention of a person to be transferred under subsection (a)(2) no longer applies pending such transfer, including the dismissal or final disposition of criminal charges, immigration proceedings, or material witness obligations, such person shall be released unless the attorney for the appropriate government agency first obtains a warrant from a district court of the United States authorizing continuing detention of such person, upon a showing that--

   Inserted: "(1) there are substantial grounds to believe such person would not be in danger of being subjected to torture in the receiving country;

   Inserted: "(2) there is probable cause to believe such person is an agent of a foreign power (as that term is defined in section 101(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)); and

   Inserted: "(3) the detention of such person pending transfer is necessary to ensure the safety of the community or the appearance of such person for transfer.

   Inserted: "(d) Presumption of Substantial Grounds.--

   Inserted: "(1) In general.--If the receiving country is included among the countries on the most current list submitted to the appropriate congressional committees by the Secretary of State under section 4104 of this title, a court reviewing the proposed transfer of a person under paragraph (1) or (2) of subsection (a), or a court reviewing an application for a warrant with respect to a person under subsection (c), shall, except as provided in paragraph (2), presume there are substantial grounds for believing that such person would be in danger of being subjected to torture in the receiving country.

   Inserted: "(2) Exception.--The presumption in paragraph (1) shall not apply with respect to a person if the head of the appropriate government agency concerned makes an affirmative showing to the court that there is in place a mechanism to assure the head of the agency, in a verifiable manner, that such person will not be tortured in the receiving country including, at a minimum, immediate, unfettered, and continuing access from the point of transfer to such person by the International Committee of the Red Cross or its designee.

   Inserted: "Sec. 4103. Approval of Foreign Intelligence Surveillance Court required for transfers of persons between foreign countries

   Inserted: "(a) In General.--The Foreign Intelligence Surveillance Court shall, upon a petition submitted under subsection (b), approve the transfer of a person covered by such petition from one foreign country to another foreign country for purposes of section 4102(a)(3) of this title if the Court determines and certifies that there are substantial grounds to believe such person would not be in danger of being subjected to torture in the receiving country.

   Inserted: "(b) Petition.--

   Inserted: "(1) In general.--The head of an appropriate government agency seeking the transfer of a person from one foreign country to another foreign country for purposes of section 4102(a)(3) of this title shall submit to the Foreign Intelligence Surveillance Court a petition seeking the approval and certification of the Court under subsection (a).

   Inserted: "(2) Elements.--The petition submitted under this subsection with respect to a person shall include the following:

   Inserted: "(A) The name, nationality, and current location of such person.

   Inserted: "(B) A factual explanation of the facts that caused, or are expected to cause, such person to be within the custody or control, whether direct or indirect, of the United States Government.

   Inserted: "(C) The specific purpose for the transfer covered by the petition, including the receiving country of the transfer.

   Inserted: "(D) A declaration that the transfer does not violate any applicable law or treaty of the United States.

   Inserted: "(E) Any other information the Court considers appropriate for purposes of this section.

   Inserted: "(c) Presumption of Substantial Grounds.--

   Inserted: "(1) In general.--If the receiving country in a petition under subsection (b) is included among the countries on the most current list submitted to the appropriate congressional committees by the Secretary of State under section 4104 of this title, the Foreign Intelligence Surveillance Court shall, except as provided in paragraph (2), presume there are substantial grounds for believing that the person covered by the petition would be in danger of being subjected to torture in the receiving country.

   Inserted: "(2) Exception.--The presumption in paragraph (1) shall not apply with respect to a person if the head of the appropriate government agency concerned makes an affirmative showing to the Court that there is in place a mechanism to assure the head of the agency, in a verifiable manner, that such person will not be tortured in the receiving country including, at a minimum, immediate, unfettered, and continuing access from the point of transfer to such person by the International Committee of the Red Cross or its designee.

   Inserted: "Sec. 4104. Annual reports on countries using torture

   Inserted: "(a) Annual Reports Required.--The Secretary of State shall submit to the appropriate congressional committees on an annual basis a report listing each country where torture is known to be used.

   Inserted: "(b) Basis of Reports.--Each report 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)).".

   Inserted: (2) Clerical amendments.--The tables of chapters at the beginning of title 28, United States Code, and at the beginning of part IV of such title, are each amended by adding after the item relating to chapter 180 the following new item:

   Inserted: "181. Expulsion, Return, or Extradition of Persons to Countries Engaging in Torture.....................................4101".....

   Inserted: (b) Regulations.--

   Inserted: (1) Interim regulations.--Not later than 60 days after the effective date of this section under subsection (e), the heads of the appropriate government agencies shall prescribe interim regulations for the purpose of carrying out chapter 181 of title 28, United States Code (as added by subsection (a)), and implementing the obligations of the United States under Article 3 of the Convention Against Torture, subject to any reservations, understandings, declarations, and provisos contained in the Senate resolution advising and consenting to the ratification of the Convention Against Torture.

   Inserted: (2) Final regulations.--Not later than 180 days after interim regulations are prescribed under paragraph (1), and following a period of notice and opportunity for public comment on such interim regulations, the heads of the appropriate government agencies shall prescribe final regulations for the purposes described in paragraph (1).

   Inserted: (3) Definitions.--In this subsection:

   Inserted: (A) Appropriate government agencies.--The term "appropriate government agencies" has the meaning given that term in section 4101 of title 28, United States Code (as so added).

   Inserted: (B) Convention against torture.--The term "Convention Against Torture" means the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

   Inserted: (c) Initial Report on Countries Using Torture.--The Secretary of State shall submit the initial report required by section 4104(a) of title 28, United States Code (as so added), not later than 30 days after the effective date of this section under subsection (e).

   Inserted: (d) Repeal of Superseded Authority.--

   Inserted: (1) Repeal.--Section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (division G of Public Law 105-277; 112 Stat. 2681-822; 8 U.S.C. 1231 note) is repealed.

   Inserted: (2) Temporary continuation of effectiveness of current regulations.--Regulations prescribed under section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 that are in effect on the effective date of this section under subsection (e) shall remain in effect until the heads of the appropriate government agencies prescribe interim regulations under subsection (b)(1).

   Inserted: (e) Effective Date.--This section and the amendments made by this section shall take effect on the date that is 30 days after the date of the enactment of this Act.

   Original wording

   At the end of subtitle E of title X, add the following:

Read automatically from the Congressional Record. Check the original before relying on it.

As printed