which Sen. Kerry should co-sponsor. It only went up on the 25th, but that deals specifically with torture.
SA 5058. Mr. LEAHY submitted an amendment intended to be proposed to amendment SA 5036 proposed by Mr. FRIST to the bill H.R. 6061, to establish operational control over the international land and maritime borders of the United States; which was ordered to lie on the table; as follows:
On page 83, strike line 1 and all that follows through page 93, line 4, and insert the following:
SEC. 6. REVISION TO WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL CODE.
(a) In General.--Section 2441 of title 18, United States Code, is amended--
(1) in subsection (c), by striking paragraph (3) and inserting the following new paragraph (3):
``(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or''; and
(2) by adding at the end the following new subsection:
``(d) Common Article 3 Violations.--
``(1) GRAVE BREACH OF COMMON ARTICLE 3.--In subsection (c)(3), the term `grave breach of common Article 3' means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
``(A) TORTURE.--The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
``(B) CRUEL, UNUSUAL, OR INHUMANE TREATMENT OR PUNISHMENT.--The act of a person who subjects another person in the custody or under the physical control of the United States Government, regardless of nationality or physical location, to cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the Constitution of the United States.
``(C) PERFORMING BIOLOGICAL EXPERIMENTS.--The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.
``(D) MURDER.--The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this section, one or more persons taking no active part in hostilities, including those placed out of active combat by sickness, wounds, detention, or any other cause.
``(E) MUTILATION OR MAIMING.--The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this section, one or more persons taking no active part in hostilities, including those placed out of active combat by sickness, wounds, detention, or any other cause, by disfiguring such person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of the body of such person or persons, without any legitimate medical or dental purpose.
``(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.--The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.
``(G) RAPE.--The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.
``(H) SEXUAL ASSAULT OR ABUSE.--The act of person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact.
``(I) TAKING HOSTAGES.--The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons.
``(2) DEFINITIONS.--In the case of an offense under subsection (a) by reason of subsection (c)(3)--
``(A) the term `severe mental pain or suffering' shall be applied for purposes of paragraph (1)(A) in accordance with the meaning given that term in section 2340(2) of this title;
``(B) the term `serious bodily injury' shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113(b)(2) of this title; and
``(C) the term `sexual contact' shall be applied for purposes of paragraph (1)(G) in accordance with the meaning given that term in section 2246(3) of this title.
``(3) INAPPLICABILITY OF CERTAIN PROVISIONS WITH RESPECT TO COLLATERAL DAMAGE OR INCIDENT OF LAWFUL ATTACK.--The intent specified for the conduct stated in subparagraphs (D), (E), and (F) of paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to--
``(A) collateral damage; or
``(B) death, damage, or injury incident to a lawful attack.
``(4) INAPPLICABILITY OF TAKING HOSTAGES TO PRISONER EXCHANGE.--Paragraph (1)(I) does not apply to an offense under subsection (a) by reason of subsection (c)(3) in the case of a prisoner exchange during wartime.''.
(b) Construction.--Such section is further amended by adding at the end the following new subsections:
``(e) Inapplicability of Foreign Sources of Law in Interpretation.--No foreign source of law shall be considered in defining or interpreting the obligations of the United States under this title.
``(f) Nature of Criminal Sanctions.--The criminal sanctions in this section provide penal sanctions under the domestic law of the United States for grave breaches of the international conventions done at Geneva August 12, 1949. Such criminal sanctions do not alter the obligations of the United States under those international conventions.''.
(c) Protection of Certain United States Government Personnel.--Such section is further amended by adding at the end the following new subsection:
``(g) Protection of Certain United States Government Personnel.--The provisions of section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to any criminal prosecution relating to the detention and interrogation of individuals described in such provisions that is grounded in an offense under subsection (a) by reason of subsection (c)(3) with respect to actions occurring between September 11, 2001, and December 30, 2005.''.