[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4674 Introduced in House (IH)]
108th CONGRESS
2d Session
H. R. 4674
To prohibit the return of persons by the United States, for purposes of
detention, interrogation, or trial, to countries engaging in torture or
other inhuman treatment of persons.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 23, 2004
Mr. Markey introduced the following bill; which was referred to the
Committee on International Relations
_______________________________________________________________________
A BILL
To prohibit the return of persons by the United States, for purposes of
detention, interrogation, or trial, to countries engaging in torture or
other inhuman treatment of persons.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. FINDINGS.
The Congress finds the following:
(1) The United Nations Convention against Torture or Other
Cruel, Inhuman or Degrading Treatment or Punishment (in this
section 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 that it may be
``inflicted by or at the instigation of or acquiescence of a
public official or other person acting in an official
capacity.''.
(2) The Universal Declaration of Human Rights states that
``No one shall be subjected to torture or to cruel, inhuman, or
degrading treatment or punishment.''.
(3) 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 153
countries, including the United States in 1992;
(B) the Convention against Torture, ratified by 136
countries, including the United States in 1994;
(C) the European Convention for the Protection of
Human Rights and Fundamental Freedoms;
(D) the African Charter on Human and Peoples'
Rights; and
(E) the American Convention on Human Rights.
(4) The prohibition against torture is also fundamental to
the laws governing the conduct of parties in armed conflicts,
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, including the
Geneva Conventions which 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 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.''.
(5) 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.''.
(6) 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 to
not 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.
(7) 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.
(8) Article 4 of the Convention against Torture obligates
State parties to ensure that all acts of torture are criminal
offenses under domestic legislation, and the United States has
insisted that existing Federal and State laws render illegal
any act falling within the definition of torture under the
Convention against Torture.
(9) 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.''.
(10) Section 2242(a) of the Foreign Affairs Reform and
Restructuring Act of 1998, as contained in 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.''.
(11) Transferring, rendering, 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 by the government in interrogation and
detention is inconsistent with international human rights law,
the Constitutional protections against torture or inhuman
treatment, and the values and principles upon which the United
States was founded.
SEC. 2. TRANSFER OF PERSONS IN CUSTODY.
(a) Reports to Congress.--Beginning 6 months after the date of the
enactment of this Act and every 6 months thereafter, the Secretary of
State shall submit to the appropriate congressional committees a list
of each country where torture or cruel, inhuman, or degrading treatment
is commonly used by the government of that country in interrogation and
detention.
(b) Prohibition on Transferring Persons.--No person in the custody
of a United States Government department, agency, or official may be
transferred, rendered, or returned to the custody of the government of
a country included on the most recent list submitted under subsection
(a) for the purpose of detention, interrogation, or trial.
(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 made significant,
verifiable progress in eliminating the acts of torture
or cruel, inhuman, or degrading treatment that were the
basis for the inclusion of that country on the list; or
(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 in its custody 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.--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.
<all>