ACLU Letter to the House of Representatives Urging Cosponsorship of The Torture Outsourcing Prevention Act

UPHOLD THE RULE OF LAW--COSPONSOR THE TORTURE OUTSOURCING PREVENTION ACT

RE:     The Torture Outsourcing Prevention Act Restores the Rule of Law and Bolsters the American Values of Freedom and Accountability

Dear Representative:

The American Civil Liberties Union strongly urges you to support the Torture Outsourcing Prevention Act that Congressman Edward Markey will introduce tomorrow.  The Torture Outsourcing Prevention Act will help restore the rule of law--and American values of freedom and accountability.  The bill would forever stop the federal government from secretly kidnapping people and sending them to foreign governments that commonly use torture or cruel, inhuman, or degrading treatment in detention or interrogation.

The Federal Government Kidnapped an Innocent Canadian Citizen and Sent Him to a Syrian Torture Cell for Ten Months

The federal government has acted lawlessly in targeting persons, sometimes on the basis of mistaken identity, kidnapping them without ever making an arrest or seeking charges in any court, and then shipping them off to foreign torture cells.  In a highly publicized kidnapping, the federal government seized an innocent Canadian citizen, Maher Arar, while he was switching planes at John F. Kennedy Airport in New York.  The federal government held him in solitary confinement for nine days without charges or any access to an attorney, and then flew him through Jordan to Syria. 

The federal government did not stop the Syrian government from brutally torturing the Canadian citizen that the United States sent to Syria.  In a Syrian torture cell, he was tortured repeatedly, including suffering repeated whippings with a two-inch thick electrical cable, before being released by Syria ten months later.  The Syrian government said that it found no connection between the Canadian citizen and any terrorist or criminal organization or activity. 

Upon his return home to Canada, the Canadian government not only did not charge him with any offenses, but instead opened a formal investigation into why a Canadian citizen was rendered by the U.S. federal government to torture.  After the thorough investigation, including a review of all documents held by the federal government, the Canadian government determined that there was no reason that Mr. Arar should have been detained or subjected to any mistreatment.  The Conservative Prime Minister of Canada recently made a nationally televised apology to Mr. Arar and his family, and provided $10 million Canadian dollars to him.  At the same time—and, according to the Canadian government, based on the same “evidence”--the U.S. federal government is keeping Mr. Arar on a no-fly list, despite having no charges against him.

Unfortunately, the kidnapping and torture of an innocent Canadian citizen is not an isolated example.  At the same time that the United States has condemned numerous countries for torturing and abusing their citizens, the federal government has shipped persons to those same countries based on nothing more than a promise that they will not torture them.  The federal government has shipped its kidnapped persons off to a “who’s who” of torture violators--including Syria, Uzbekistan, Egypt, and Yemen.

The number of persons rendered by the federal government to foreign countries that engage in torture is large.  In fact, the prime minister of Egypt--which the U.S. State Department has found to have a horrific human rights record--stated on Meet the Press in 2005 that his country alone has received 60-70 persons from the U.S. federal government.  The federal government sent those persons to Egyptian prisons, despite the notorious reputation of Egypt for maintaining torture cells.

Congress has acted at least twice to prohibit the federal government from transferring persons to foreign countries when “there are substantial grounds for believing that the person would be in danger of being subjected to torture.”  However, the State Department now believes that those laws do not apply when the federal government seizes people outside of the fifty states.  This reckless interpretation of federal law has opened the door to sending persons to foreign torture cells on the basis of nothing more than a promise that the foreign country will not engage in torture.

 In 1986, at the request of President Ronald Reagan, the Senate ratified the Convention Against Torture, which includes a specific provision that prohibits rendering persons to torture.   Specifically, the federal government may not “expel, return, or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”  In 1998, Congress reinforced this prohibition against rendering a person to torture when it enacted a law that provides, “[i]t 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.”

Both the Senate-ratified Convention Against Torture and the 1998 statute were clear that the federal government cannot seize a person either in a New York airport or on a European street and send that person to a torture country, particularly without meaningful accountability such as U.S. inspection and monitoring of the person’s confinement.  The objective of both laws is to ensure that the federal government cannot render any person to torture or abuse.

However, the federal government has gutted enforceability of the law.  State Department lawyers are playing word games with federal law and now argue that federal law does not prohibit kidnapping persons and sending them to foreign torture cells.

State Department lawyers now find no federal prohibition on sending these persons to foreign torture cells because, in their unprecedented interpretation:

- They believe that the 1998 law does not prohibit rendering persons to foreign torture cells because the statute provides that not rendering to torture is the “policy” of the United States--which somehow means, in their view, that the statute is not a binding prohibition.  In this interpretation, the statute is not a prohibition, but merely advice that was passed by Congress and signed by the President.

- They believe that the Senate-ratified Convention Against Torture does not apply to persons that the federal government kidnaps overseas because they are not “returning” a person to a torture country.  In this view, “return” of a person can only occur if the person is within U.S. borders.  In this baseless definition of “return,” it does not matter that the person is in the custody or control of the United States.

- They believe that the entire Senate-ratified Convention Against Torture is inapplicable to the federal government when acting outside of the fifty states because an unrelated section of the treaty discusses a separate duty to pass laws preventing torture in all United States territory.  The result of this incorrect interpretation of the Senate-ratified treaty is that the federal government now believes that this law does not prohibit the federal government from sending persons to foreign torture cells, as long as those persons are not on U.S. soil at the time that they are in U.S. custody or control.

The combined result of these word games by State Department lawyers is that the federal government no longer views itself as bound by the Convention Against Torture or by the 1998 statute when it seizes persons overseas and sends them to foreign countries that the State Department itself documents as engaging in systematic and widespread torture or abuse.

The Torture Outsourcing Prevention Act would forever prohibit the federal government from sending persons to foreign torture cells.  It closes all of the loopholes that have been opened by unprecedented government interpretations of the Senate-ratified Convention Against Torture and the 1998 federal statute.  Specifically, it provides:

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 [to a country found by the Secretary of State to be a country where] . . . torture or cruel, inhuman, or degrading treatment is commonly used in the detention or interrogation of individuals.

This provision reinforces the longstanding ban against rendering persons to torture, and should withstand any effort to undermine it.  The bill also shuts other loopholes by prohibiting transfer to a country that will then transfer the person to a torture country, ensuring judicial review of the torture question during treaty-based extraditions, and requiring the federal government to issue new regulations implementing the law. 

We strongly urge you to stand up for American values of freedom and accountability by cosponsoring the Torture Outsourcing Prevention Act. 

Sincerely,

Caroline Fredrickson
Director                                       

Christopher E. Anders
Legislative Counsel