110 HR 1352 IH: Torture Outsourcing Prevention U.S. House of Representatives 2007-03-06 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I 110th CONGRESS 1st Session H. R. 1352 IN THE HOUSE OF REPRESENTATIVES March 6, 2007 Mr. Markey (for himself, Mr. Waxman, Mr. Conyers, Mr. George Miller of California, Mr. Capuano, Mr. Van Hollen, Mr. Allen, Mr. Blumenauer, Mr. Davis of Illinois, Mrs. Davis of California, Mr. Grijalva, Mr. Hinchey, Mr. Holt, Mr. Kucinich, Ms. Lee, Mr. Lewis of Georgia, Mrs. Maloney of New York, Ms. McCollum of Minnesota, Mr. McGovern, Mr. Payne, Mr. Serrano, Mr. Pastor, Ms. Schakowsky, Mr. Tierney, Ms. Woolsey, Ms. Baldwin, Mrs. Capps, Ms. DeLauro, Mr. Farr, Ms. Jackson-Lee of Texas, Ms. Matsui, Mr. McNulty, Mr. Meehan, Mr. Michaud, Mr. Moran of Virginia, Mr. Nadler, Mr. Olver, Mr. Price of North Carolina, Mr. Rothman, Mr. Thompson of California, Mr. Udall of New Mexico, Ms. Watson, Mr. McDermott, Mr. Rush, Mr. Honda, and Mr. Sires) introduced the following bill; which was referred to the Committee on Foreign Affairs A BILL To prohibit the return or other transfer 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, and for other purposes.

1.

Short title

This Act may be cited as the Torture Outsourcing Prevention Act.

2.

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 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 or control of, a department, agency, or official of the United States Government, or any contractor of any such department or agency, may not, regardless of the nationality or location of that person, be rendered, returned, or otherwise transferred— (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)

Process

A person may not, regardless of the nationality or location of the person, be rendered, returned, or otherwise transferred by a department, agency, or official of the United States Government, or any contractor of any such department or agency, to any country not otherwise described in paragraph (1) or (2) of subsection (b), unless the person has been given an opportunity to challenge the rendering, return, or transfer in a court in the United States of competent jurisdiction, on the grounds that the person would, upon such rendering, return, or transfer, be in danger of being subjected to torture or cruel, inhuman, or degrading treatment. (d)

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 rendered, returned, or otherwise transferred 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 rendered, returned, or otherwise transferred 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). (e)

Treaty-based extradition exemption

(1)

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. (2)

Assurances insufficient

Written or verbal assurances made to the United States by the government of a country that persons rendered, returned, or otherwise transferred to the country will not be tortured or subjected to cruel, inhuman, or degrading treatment, are not a 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).

3.

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 that imprisons, detains, or transfers prisoners or detainees, or that 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 person were removed to the country.

4.

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 and Other Cruel, Inhuman or Degrading Treatment or Punishment, or any other applicable law.

5.

Effective date

This Act takes effect on the date that is 30 days after the date of the enactment of this Act.