I 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. FINDINGS. 

4 The Congress finds the following: 

5 (1) The United Nations Convention against 

6 Torture or Other Cruel, Inhuman or Degrading 

7 Treatment or Punishment (in this section referred to 

8 as the ‘‘Convention against Torture’’ ) defines tor-
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1 ture as ‘‘any act by which severe pain or suffering, 

2 whether physical or mental, is intentionally inflicted 

3 on a person for such purposes as obtaining from him 

4 or a third person information or a confes5 sion. . . .’’, and that it may be ‘‘inflicted by or at 

6 the instigation of or acquiescence of a public official 

7 or other person acting in an official capacity.’’. 

8 (2) The Universal Declaration of Human 

9 Rights states that ‘‘No one shall be subjected to tor10 ture or to cruel, inhuman, or degrading treatment or 

11 punishment.’’. 

12 (3) The prohibition on torture and other ill13 treatment has been incorporated into the numerous 

14 international and regional human rights treaties, in15 cluding— 

16 (A) Article 7 of the International Covenant 

17 on Civil and Political Rights (ICCPR), ratified 

18 by 153 countries, including the United States in 

19 1992; 

20 (B) the Convention against Torture, rati21 fied by 136 countries, including the United 

22 States in 1994; 

23 (C) the European Convention for the Pro24 tection of Human Rights and Fundamental 

25 Freedoms; 
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1 (D) the African Charter on Human and 

2 Peoples’ Rights; and 

3 (E) the American Convention on Human 

4 Rights. 

5 (4) The prohibition against torture is also fun6 damental to the laws governing the conduct of par7 ties in armed conflicts, which establish a duty to 

8 protect the life, health, and safety of civilians and 

9 other noncombatants, including soldiers who are 

10 captured or who have laid down their arms, includ11 ing the Geneva Conventions which prohibit ‘‘violence 

12 of life and person, in particular murder of all kinds, 

13 mutilation, cruel treatment, and torture’’, ‘‘outrages 

14 upon personal dignity, in particular humiliating, and 

15 degrading treatment’’, and the use of force to obtain 

16 information, stipulating that ‘‘No physical or moral 

17 coercion shall be exercised against protected persons, 

18 in particular to obtain information from them or 

19 from third parties.’’. 

20 (5) The United States Government informed 

21 the United Nations in 1999 that in the United 

22 States, the use of torture ‘‘is categorically denounced 

23 as a matter of policy and as a tool of state authority 

24 . . . No official of the government, Federal, State, 

25 or local, civilian, or military, is authorized to commit 
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1 or to instruct anyone else to commit torture. Nor 

2 may any official condone or tolerate torture in any 

3 form . . . Every act of torture within the meaning 

4 of the [Convention against Torture] is illegal under 

5 existing Federal and State law, and any individual 

6 who commits such an act is subject to penal sanc7 tions as specified in criminal statutes.’’. 

8 (6) The practice of torture violates numerous 

9 provisions of the United States Constitution and its 

10 Bill of Rights, including the right under the Fourth 

11 Amendment to be free of unreasonable search or sei12 zure, which encompasses the right to not be abused 

13 by the police, the right under the Fifth Amendment 

14 against self-incrimination, which encompasses the 

15 right to remain silent during interrogations, the 

16 guarantees of due process under the Fifth and the 

17 Fourteenth Amendments, which ensure fundamental 

18 fairness in criminal justice system, and the right 

19 under the Eighth Amendment to be free of cruel or 

20 unusual punishment. 

21 (7) In numerous cases, the United States Su22 preme Court has condemned the use of force 

23 amounting to torture or other forms of ill treatment 

24 during interrogations, including such practices as 

25 whipping, slapping, depriving a prisoner of food, 
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1 water, or sleep, keeping a prisoner naked or in a 

2 small cell for prolonged periods, holding a gun to a 

3 prisoner’s head, or threatening a prisoner with mob 

4 violence. 

5 (8) Article 4 of the Convention against Torture 

6 obligates State parties to ensure that all acts of tor7 ture are criminal offenses under domestic legislation, 

8 and the United States has insisted that existing 

9 Federal and State laws render illegal any act falling 

10 within the definition of torture under the Convention 

11 against Torture. 

12 (9) Article 3 of the Convention against Torture 

13 expressly prohibits sending a person to another 

14 State ‘‘where there are substantial grounds for be15 lieving that he would be in danger of being subjected 

16 to torture.’’. 

17 (10) Section 2242(a) of the Foreign Affairs Re18 form and Restructuring Act of 1998, as contained in 

19 Public Law 105–277 (8 U.S.C. 1231 note) states 

20 that ‘‘It shall be the policy of the United States not 

21 to expel, extradite, or otherwise effect the involun22 tary return of any person to a country in which 

23 there are substantial grounds for believing the per24 son would be in danger of being subjected to torture, 
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1 regardless of whether the person is physically 

2 present in the United States.’’. 

3 (11) Transferring, rendering, returning, or ex4 traditing persons in the custody of the United States 

5 to any other country where torture or cruel, inhu6 man, or degrading treatment is commonly used by 

7 the government in interrogation and detention is in8 consistent with international human rights law, the 

9 Constitutional protections against torture or inhu10 man treatment, and the values and principles upon 

11 which the United States was founded. 

12 SEC. 2. TRANSFER OF PERSONS IN CUSTODY. 

13 (a) REPORTS TO CONGRESS.—Beginning 6 months 

14 after the date of the enactment of this Act and every 6 

15 months thereafter, the Secretary of State shall submit to 

16 the appropriate congressional committees a list of each 

17 country where torture or cruel, inhuman, or degrading 

18 treatment is commonly used by the government of that 

19 country in interrogation and detention. 

20 (b) PROHIBITION ON TRANSFERRING PERSONS.—No 

21 person in the custody of a United States Government de22 partment, agency, or official may be transferred, rendered, 

23 or returned to the custody of the government of a country 

24 included on the most recent list submitted under sub-
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1 section (a) for the purpose of detention, interrogation, or 

2 trial. 

3 (c) WAIVERS.— 

4 (1) AUTHORITY.—The Secretary of State may 

5 waive the prohibition contained in subsection (b) 

6 with respect to the government of a country if the 

7 Secretary certifies to the appropriate congressional 

8 committees that— 

9 (A) that government has made significant, 

10 verifiable progress in eliminating the acts of 

11 torture or cruel, inhuman, or degrading treat12 ment that were the basis for the inclusion of 

13 that country on the list; or 

14 (B) there is in place a mechanism that 

15 assures the United States in a verifiable man16 ner that a person transferred, rendered, or re17 turned will not be tortured or subjected to 

18 cruel, inhuman, or degrading treatment in that 

19 country, including, at a minimum, immediate, 

20 unfettered, and continuing access, from the 

21 point of return, to each such person by an inde22 pendent humanitarian organization. 

23 (2) ASSURANCES INSUFFICIENT.—Written or 

24 verbal assurances made to the United States by the 

25 government of a country that persons in its custody 
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1 will not be tortured or subjected to cruel, inhuman, 

2 or degrading treatment, are not sufficient to meet 

3 the requirements of paragraph (1)(B). 

4 (d) TREATY-BASED EXTRADITION EXEMPTION.— 

5 The prohibition contained in subsection (b) shall not be 

6 construed to apply to the legal extradition of a person 

7 under a bilateral or multilateral extradition treaty if, prior 

8 to such extradition, that person has recourse to a court 

9 in the United States of competent jurisdiction to challenge 

10 the extradition on the basis that there are substantial 

11 grounds for believing that the person would be in danger 

12 of being subjected to torture or cruel, inhuman, or degrad13 ing treatment in the country requesting such extradition. 

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