Detainee Treatment Act

The Detainee Treatment Act of 2005 (DTA) is an Act of the United States Congress that prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay; requires military interrogations to be performed according to the U.S. Army Field Manual for Human Intelligence Collector Operations; and strips federal courts of jurisdiction to consider habeas corpus petitions filed by prisoners in Guantanamo, or other claims asserted by Guantanamo detainees against the U.S. government, as well as limiting appellate review of decisions of the Combatant Status Review Tribunals and Military Commissions.^[1] On June 12, 2008, the Supreme Court, in the case of Boumediene v. Bush, ruled 5-4 that the Military Commissions Act of 2006 unconstitutionally limited detainee's access to judicial review and that detainees have the right to challenge their detention in conventional civilian courts.^[2]

Legislative details

The amendment affected the United States Senate Department of Defense Appropriations Act, 2006 (DOD Act); the amendment is commonly referred to as the Amendment on (1) the Army Field Manual and (2) Cruel, Inhumane, Degrading Treatment, amendment #1977 and also known as the McCain Amendment 1977. It became the Detainee Treatment Act of 2005 (DTA) as Division A, Title X of the DOD Act.^[3] The amendment prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay, by confining interrogations to the techniques in FM 34-52 Intelligence Interrogation. Also, section 1005(e) of the DTA prohibits aliens detained in Guantanamo Bay from applying for a writ of habeas corpus.^[4] Certain portions of the amendment were enacted as 42 U.S.C. § 2000dd.

Amendment 1977 amended the Defense Appropriations Bill for 2005 (H.R.2863) passed by the United States House of Representatives. The amendment was introduced to the Senate by Senator John McCain (R-Arizona) on October 3, 2005 as S.Amdt.1977.

The amendment was co-sponsored by Senators Lindsey Graham, Chuck Hagel, Gordon H. Smith, Susan M. Collins, Lamar Alexander, Richard Durbin, Carl Levin, John Warner, Lincoln Chafee, John E. Sununu, and Ken Salazar.

On October 5, 2005, the United States Senate voted 90-9 to support the amendment.^[5]

The Senators who voted against the amendment were Wayne Allard (R-CO), Christopher Bond (R-MO), Tom Coburn (R-OK), Thad Cochran (R-MS), John Cornyn (R-TX), James Inhofe (R-OK), Pat Roberts (R-KS), Jeff Sessions (R-AL), and Ted Stevens (R-AK).

Signing statement by President Bush

After approving the bill President Bush issued a signing statement: an official document in which a president lays out his interpretation of a new law. In it Bush said:^[6]

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

The Boston Globe quoted an anonymous senior administration official saying, "Of course the president has the obligation to follow this law, (but) he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case. We are not expecting that those two responsibilities will come into conflict, but it's possible that they will".^[7]

Criticism

The Act sets the Army's standards of interrogation as the standard for all agencies in the Department of Defense. It further prohibits all other agencies of the U.S. government, such as the CIA, from subjecting any person in their custody to "cruel, inhuman, or degrading treatment or punishment." However, the Act does not provide detailed guidelines that spell out the meaning of that phrase.^[8] In an effort to provide clarification, Congress passed legislation in 2008 to similarly constrain the intelligence community to the Field Manual's techniques.^[9] McCain voted against this bill and recommended that President Bush follow through on his threat to veto it, arguing that the CIA already could not engage in torture but should have more options than afforded to military interrogators.^[10] That bill was passed by both chambers of Congress but, once vetoed, failed to pass with sufficient votes to override the executive veto.^[11]

The Detainee Treatment Act cited the U.S. Army's Field Manual on interrogation as the authoritative guide to interrogation techniques, but did not cite a specific edition of the Manual. The contents of the Manual are controlled by the Department of Defense, and thus the executive branch controls whether a given technique will be permitted or banned. The Manual has been revised since the Amendment became law. The Department of Defense has claimed that none of the techniques permitted by the new Field Manual 2-22.3 are classified.^[12]

Also, the Detainee Treatment Act's anti-torture provisions were modified by the Graham-Levin Amendment, which was also attached to the $453-billion 2006 Defense Budget Bill. The Graham-Levin Amendment permits the Department of Defense to consider evidence obtained through torture of Guantanamo Bay detainees, and expands the prohibition of habeas corpus for redetainees, which subsequently leaves detainees no legal recourse if they are tortured.^[1]

Critics say these two actions deflate the Detainee Treatment Act from having any real power in stopping torture by the United States government, and these were the true reasons why President Bush and McCain "conceded" to Congressional demands. The mainstream media credited their concession to "overwhelming Congressional support" for the measure.^[13][14]

Amnesty International claims that the amendment's loopholes actually signal that torture is now official US policy.^[15]

Criticisms have also been directed at Senators Lindsey Graham and Jon Kyl for their amicus curiae brief filed in the Hamdan v. Rumsfeld case, in which they argued that the Detainee Treatment Act's passage sufficed to deny the Supreme Court jurisdiction over the case. Language in the Congressional Record that the majority opinion cites was inserted into the Record for the day on which the amendment passed by Graham and Kyl after the legislation had already been enacted, and furthermore that the language in question was worded in such a manner as to imply it had been recorded in live debate. The revised Record contains such phrasing as Kyl's "Mr. President, I see that we are nearing the end of our allotted time" and Sen. Sam Brownback's "If I might interrupt". Brownback has not responded to press inquiries.^[16] Justice Scalia's dissent noted this as an example of his longstanding hostility to the use of legislative history. Scalia wrote:

Worst of all is the Court’s reliance on the legislative history of the DTA to buttress its implausible reading ... These statements were made when Members of Congress were fully aware that our continuing jurisdiction over this very case was at issue. ... The question was divisive, and floor statements made on both sides were undoubtedly opportunistic and crafted solely for use in the briefs in this very litigation. ... [T]he handful of floor statements that the Court treats as authoritative do not “reflec[t] any general agreement[,]” [t]hey reflect the now-common tactic — which the Court once again rewards — of pursuing through floor-speech ipse dixit what could not be achieved through the constitutionally prescribed method of putting language into a bill that a majority of both Houses vote for and the President signs.

— (Emphases in original)

See also

• Command responsibility
• United Nations Convention Against Torture
• Extraordinary rendition
• Ethical arguments regarding torture
• Psychology of torture
• Ticking time bomb scenario
• Unitary Executive
• Unlawful Combatant
• Military Commissions Act of 2006
• Hamdan v. Rumsfeld
• Guantanamo captives' appeals in Washington DC Courts
• Military Commissions Act of 2009
• Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010

References

1. ^ ^{a b} Malinowski, Tom (December 15, 2005), "Landmark Torture Ban Undercut: Congress Would Allow Evidence Obtained by Torture", quote (Human Rights Watch), http://www.hrw.org/en/news/2005/12/15/us-landmark-torture-ban-undercut, retrieved April 25, 2009 

   ... President Bush yesterday accepted Senator John McCain’s amendment banning the use of cruel, inhuman and degrading treatment by U.S. personnel anywhere in the world, and prohibiting U.S. military interrogators from using interrogation techniques not listed in the U.S. Army Field Manual on Intelligence Interrogation

2. ^ Stout, David (June 13, 2008), Justices Rule Terror Suspects Can Appeal in Civilian Courts, The New York Times, http://www.nytimes.com/2008/06/13/washington/12cnd-gitmo.html?&hp=&pagewanted=all, retrieved April 25, 2009 
3. ^ See Pub.L. 109-148, div. A, tit. X, §§ 1001-1006, 119 Stat. 2680, 2739-44 (2005). Congress also enacted a nearly identical version of the DTA as a component of the National Defense Authorization Act for Fiscal Year 2006, see Pub.L. 109-163, div. A, tit. XIV, §§ 1401-1406, 119 Stat. 3136, 3474-80 (2006) -- an appropriations authorization act that the President signed into law on January 6, 2006 (a week after he signed the original DTA into law). The December 2005 and January 2006 versions of the DTA are generally identical except for certain provisions in the section relating to training of Iraqi security forces (section 1006 of the Dec. '05 DTA and section 1406 of the Jan. '06 DTA). As of 2009, there had been no litigation challenging the validity of either of the DTA statutes on these grounds.
4. ^ 109th U.S. Congress (2005-12-18), Conference Committee Report 109-359 to accompany H.R. 2863, House of Representatives, http://www.pegc.us/detainee_act_2005.html, retrieved 2008-11-02 

   See n.3. Section 1405(e) of the Jan. '06 DTA purports to make changes to 28 U.S.C. § 2241, the habeas corpus statute, that are nearly identical to those made by section 1005(e) of the Dec. '05 DTA. The current codified version of § 2241 states in a footnote that two subsection (e)s for the section have been enacted.

5. ^ "U.S. Senate Roll Call Votes 109th Congress - 1st Session". United States Senate. October 5, 2005. http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=1&vote=00249. 
6. ^ Bush, George W. (December 30, 2005). "President's Statement on Signing of H.R. 2863". The White House. http://georgewbush-whitehouse.archives.gov/news/releases/2005/12/print/20051230-8.html. Retrieved April 25, 2009. 
7. ^ Savage, Charlie (January 4, 2006), Bush could bypass new torture ban; Waiver right is reserved, The Boston Globe, http://www.boston.com/news/nation/washington/articles/2006/01/04/bush_could_bypass_new_torture_ban/?page=full, retrieved April 25, 2009 
8. ^ "Detainee Treatment Act of 2005", Harvard Human Rights Journal 19, Spring 2006, http://www.law.harvard.edu/students/orgs/hrj/iss19/suleman.shtml#Heading55, retrieved April 25, 2009 
9. ^ "U.S. Senate Roll Call Votes 110th Congress - 2nd Session". United States Senate. February 13, 2008. http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=2&vote=00022. 
10. ^ Quaid, Libby (February 21, 2008) (AP), McCain urges Bush to veto waterboard bill, San Franscico Chronicle, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/02/21/MNJDV5S7S.DTL&type=printable, retrieved April 25, 2009 
11. ^ "H.R.2082: Major Congressional Actions", 110th Congress, March 11, 2008
12. ^ Dept. of Defense (September 6, 2006), Briefing with Deputy Assistant Secretary Stimson and Lt. Gen. Kimmons, The Pentagon, http://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=3712, retrieved April 25, 2009 
13. ^ Henry, Ed (December 15, 2005), McCain, Bush agree on torture ban, CNN.com, http://www.cnn.com/2005/POLITICS/12/15/torture.bill/, retrieved April 25, 2009 
14. ^ NBC News, AP (December 15, 2005), Bush accepts Sen. McCain’s torture policy, MSNBC.com, http://www.msnbc.msn.com/id/10480690/, retrieved April 25, 2009 
15. ^ McCoy, Alfred W. (March 2006), Invisible in Plain Sight: CIA Torture Techniques Go Mainstream, Amnesty International Magazine, http://www.amnestyusa.org/amnesty-magazine/amnesty-magazine/page.do?id=1105051, retrieved April 25, 2009 
16. ^ Bazelon, Emily (March 27, 2006), Invisible Men: Did Lindsey Graham and Jon Kyl mislead the Supreme Court?, Slate.com, http://www.slate.com/toolbar.aspx?id=2138750, retrieved April 25, 2009 

External links

• Bush, McCain and 'torture' - Robert J. Caldwell, The San Diego Union-Tribune - September 24, 2006
• Text of Amendment
• Senators who voted for and against the amendment
• McCain statement
• Editorial The McCain Amendment would hamstring U.S. interrogators. WSJ Opinion Journal (October 30, 2005)
• McCain and the Not So Effectual Ban on Torture- Matthew R. McNabb, National Security Crimes Blog
• Umansky, Eric Detention Tension Slate (November 2, 2005)
• Detainee Treatment Act of 2005 (White House), JURIST, (December 31, 2005)
• McCain Undermined: The 'Obedience to Orders' Defense, JURIST, (January 6, 2006)
• No Habeas at Guantanamo? The Executive and the Dubious Tale of the DTA, JURIST, (March 6, 2006)
• Why the McCain Torture Ban Won't Work: The Bush legacy of legalized torture by Professor Alfred W. McCoy, TomDispatch, February 8, 2006
• Invisible Men: Did Lindsey Graham and Jon Kyl mislead the Supreme Court? by Emily Bazelon, Slate, March 27, 2006
• The criticized amicus brief filed by Senators Graham and Kyl on Dec. 21, 2005
• Smintheus, "Has McCain Flip-Flopped on Torture?" Daily Kos, April 11, 2008.
• Human Rights First; Undue Process: An Examination of Detention and Trials of Bagram Detainees in Afghanistan in April 2009 (2009)
• Human Rights First; Tortured Justice: Using Coerced Evidence to Prosecute Terrorist Suspects (2008)
• Human Rights First; Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality