Re: Pass the Torture Outsourcing Prevention Act

Dear Representative Markey:

The American Civil Liberties Union is pleased to endorse the ""Torture Outsourcing Prevention Act,"" a bill that would put a stop to the appalling practice of sending prisoners to countries which practice torture for interrogation under the pretext that ""diplomatic assurances"" are sufficient to ensure their humane treatment.

As the bill makes clear, the United States is bound by the Constitution, international law and basic principals of morality to refrain from torture and all forms of cruel, inhuman and degrading treatment. Likewise, the United States has a basic obligation to prevent such treatment, and may not tacitly permit such treatment by others with a wink and a nod.

Unfortunately, the U.S. government has adopted a practice of transferring prisoners to countries that practice torture. It relies on unverifiable ""diplomatic assurances"" that prisoners will not be tortured, assurances that have been violated time and time again without consequence.

Your bill would put a stop to this practice by generally prohibiting the transfer of prisoners to countries that the State Department has determined regularly engage in torture, or to any country where there are ""substantial grounds"" to believe the person will in turn be transferred to such a country.

The prohibition can be waived, but only if the Secretary of State certifies (1) that the country has ended the torture or cruel, inhuman and degrading treatment that put the country on the list and (2) a mechanism exists that allows humane treatment to be verified. At a minimum, such a mechanism would have to include ""immediate, unfettered and continuing access"" by an independent humanitarian organization to each such detainee. The bill also specifically provides that ""diplomatic assurances"" cannot be enough to be the basis for a waiver, and requires all government agencies to enact or revise regulations to ensure that any person held in custody may challenge a transfer in an ""independent judicial forum"" on the basis of the Convention Against Torture.

Extradition and immigration proceedings to countries that practice torture and ill-treatment are addressed separately. For extradition, the bill does not provide a flat prohibition, but requires that the accused have access to a United States court in order to challenge the extradition on the basis that there are ""substantial grounds"" that the prisoner would face torture or mistreatment, and explicitly provides that ""diplomatic assurances"" are insufficient. Likewise, the bill does not exempt nationals of countries that practice torture and ill-treatment from the immigration laws, but does require the Secretary of Homeland Security to revise immigration regulations to ensure that ""diplomatic assurances,"" standing alone, are insufficient grounds for permitting deportation to such a country to go forward.

We thank you for your leadership in introducing this legislation and urge Congress to enact it without delay.

Sincerely,

Gregory T. Nojeim
Acting Director
Washington Legislative Office  

Timothy H. Edgar
National Security Policy Counsel