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Pending U.S. Legislation on Renditions to Torture

In response to the growing phenomenon of rendering terrorist suspects to a risk of torture, members of the U.S. Congress have introduced legislation to put an end to the practice. Bills are currently pending in both the House of Representatives and the Senate that would fill the gaps in U.S. law and policy regarding the nonrefoulement obligation. In the House of Representatives, Representative Edward J. Markey introduced a bill entitled the “Torture Outsourcing Prevention Act” (hereinafter “Markey bill”) in February, 2005,¹¹⁹ and in the Senate, Senator Patrick Leahy introduced the “Convention against Torture Implementation Act 2005” in March, 2005.¹²⁰ 

The bills are very similar in substance and scope. Both reaffirm the requirement to conduct an individualized assessment of the risk of torture to persons facing transfer, but they add an additional layer of protection for transfers that occur outside of an extradition proceeding or immigration removal proceeding. The bills require the State Department to develop and maintain a list of countries where torture is practiced. Transfers to the countries on the list are categorically prohibited when they occur outside of a legal process in which the person can challenge their transfer based on a risk of torture. The Secretary of State can waive the prohibition by certifying that a country on the list has “ended” the acts of torture that were the basis for its inclusion on the list and that there was a verifiable mechanism in place to ensure that any person transferred to said country would not be tortured or ill-treated. It is important to note that the bills sanction the use of post-return monitoring only in countries where the State Department certifies that torture is no longer in use.

The most crucial element of the bills in putting a stop to current U.S. renditions is their language on diplomatic assurances. The bills state that diplomatic assurances provide an insufficient basis for determining that a person is not at risk of torture, thereby precluding their use to circumvent the nonrefoulement obligation.

Both bills are pending in Congress, as of May 16, 2005.