The bill would supplement the existing legal prohibition on returning individuals to
countries where they are likely to be tortured by requiring the State Department to
establish a list of countries that commonly use torture in detention and interrogation. It
would prohibit U.S. officials or contractors from transferring any person in their custody
to a country on the list, unless those transfers occur as part of an immigration or
extradition proceeding where the individual has an opportunity to raise a Convention
against Torture claim in a judicial forum, including the opportunity to challenge the
reliability and sufficiency of any diplomatic assurances.
Under the bill, the Secretary of State could waive the prohibition if she could certify that
a country on the list had “ended” the acts of torture and ill-treatment that were the basis
for the inclusion of the country 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 illtreated. Written or oral assurances against torture from a government would not be
sufficient to constitute such a verifiable mechanism. In all cases, the bill would prevent
reliance on diplomatic assurances as the basis for determining that an individual is not at
risk of torture.
To ensure compliance with these provisions, the bill would require the Secretary of
Homeland Security to revise the immigration regulations implementing article 3 of the
Convention against Torture:
…to ensure that written or verbal assurances made by 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 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 alien
were removed to the country.124
It would also require the other government agencies to issue regulations regarding the
responsibilities of U.S. government officials and contractors to comply with article 3 of
the Convention against Torture both within and outside the U.S.
124
Ibid., p. 14.
HUMAN RIGHTS WATCH VOL. 17 NO. 4(D)
42
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