Detainee Treatment Act

Detainee Treatment Act

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The Detainee Treatment Act of 2005 (DTA) is an Act
Act of Congress
An Act of Congress is a statute enacted by government with a legislature named "Congress," such as the United States Congress or the Congress of the Philippines....

 of the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 that prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay
Guantanamo Bay detainment camp
The Guantanamo Bay detention camp is a detainment and interrogation facility of the United States located within Guantanamo Bay Naval Base, Cuba. The facility was established in 2002 by the Bush Administration to hold detainees from the war in Afghanistan and later Iraq...

; 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. On June 12, 2008, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

, in the case of Boumediene v. Bush
Boumediene v. Bush
Boumediene v. Bush, 553 U.S. 723 , was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba...

, ruled 5-4 that the Military Commissions Act of 2006
Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...

 unconstitutionally limited detainee's access to judicial review and that detainees have the right to challenge their detention in conventional civilian courts.

Legislative details


The amendment affected the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

 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. The amendment prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay
Guantanamo Bay detainment camp
The Guantanamo Bay detention camp is a detainment and interrogation facility of the United States located within Guantanamo Bay Naval Base, Cuba. The facility was established in 2002 by the Bush Administration to hold detainees from the war in Afghanistan and later Iraq...

, by confining interrogations to the techniques in FM 34-52 Intelligence Interrogation
FM 34-52 Intelligence Interrogation
The US Army Field Manual on Interrogation, sometimes known by the military nomenclature FM 34-52, is a 177-page manual describing to military interrogators how to conduct effective interrogations while conforming with US and international law...

. Also, section 1005(e) of the DTA prohibits aliens detained in Guantanamo Bay from applying for a writ of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...

. Certain portions of the amendment were enacted as .

Amendment 1977 amended the passed by the United States House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

. The amendment was introduced to the Senate by Senator John McCain
John McCain
John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....

 (R
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...

-Arizona
Arizona
Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...

) on October 3, 2005 as S.Amdt.1977.

The amendment was co-sponsored by Senators Lindsey Graham
Lindsey Graham
Lindsey Olin Graham is the senior U.S. Senator from South Carolina and a member of the Republican Party. Previously he served as the U.S. Representative for .-Early life, education and career:...

, Chuck Hagel
Chuck Hagel
Charles Timothy "Chuck" Hagel is a former United States Senator from Nebraska. A member of the Republican Party, he was first elected in 1996 and was reelected in 2002...

, Gordon H. Smith, Susan M. Collins, Lamar Alexander
Lamar Alexander
Andrew Lamar Alexander is the senior United States Senator from Tennessee and Conference Chair of the Republican Party. He was previously the 45th Governor of Tennessee from 1979 to 1987, United States Secretary of Education from 1991 to 1993 under President George H. W...

, Richard Durbin, Carl Levin
Carl Levin
Carl Milton Levin is a Jewish-American United States Senator from Michigan, serving since 1979. He is the Chairman of the Senate Committee on Armed Services. He is a member of the Democratic Party....

, John Warner
John Warner
John William Warner, KBE is an American Republican politician who served as Secretary of the Navy from 1972 to 1974 and as a five-term United States Senator from Virginia from January 2, 1979, to January 3, 2009...

, Lincoln Chafee
Lincoln Chafee
Lincoln Davenport Chafee is an American politician who has been the 74th Governor of Rhode Island since January 2011. Prior to his election as governor, Chafee served in the United States Senate as a Republican from 1999 until losing his Senate re-election bid in 2006 to Democrat Sheldon...

, John E. Sununu
John E. Sununu
John Edward Sununu is a former Republican United States Senator from New Hampshire, of Lebanese and Palestinian Christian ancestry. Sununu was the youngest member of the Senate for his entire six year term. He is the son of former New Hampshire Governor John H...

, and Ken Salazar
Ken Salazar
Kenneth Lee "Ken" Salazar is the current United States Secretary of the Interior, in the administration of President Barack Obama. A member of the Democratic Party, he previously served as a United States Senator from Colorado from 2005 to 2009. He and Mel Martinez were the first Hispanic U.S...

.

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

The Senators who voted against the amendment were Wayne Allard
Wayne Allard
Alan Wayne Allard is a member of the Republican Party, and was a United States Senator from Colorado. He did not seek re-election in 2008.-Early life:...

 (R-CO), Christopher Bond
Kit Bond
Christopher Samuel "Kit" Bond is a former United States Senator from Missouri and a member of the Republican Party. First elected to the U.S. Senate in 1986, he defeated Democrat Harriett Woods by a margin of 53%-47%. He was re-elected in 1992, 1998, and 2004...

 (R-MO), Tom Coburn
Tom Coburn
Thomas Allen "Tom" Coburn, M.D. , is an American politician, medical doctor, and Southern Baptist deacon. A member of the Republican Party, he currently serves as the junior U.S. Senator from Oklahoma. In the Senate, he is known as "Dr. No" for his tendency to place holds on and vote against bills...

 (R-OK), Thad Cochran
Thad Cochran
William Thad Cochran is the senior United States Senator from Mississippi and a member of the Republican Party. First elected to the Senate in 1978, he is the ranking member of the Senate Committee on Appropriations and was its chairman and 2005 to 2007.-Early life:He was born in Pontotoc,...

 (R-MS), John Cornyn
John Cornyn
John Cornyn, III is the junior United States Senator for Texas, serving since 2003. He is a member of the Republican Party. He was elected Chairman of the National Republican Senatorial Committee for the 111th U.S. Congress....

 (R-TX), James Inhofe (R-OK), Pat Roberts
Pat Roberts
Charles Patrick "Pat" Roberts is the senior United States Senator from Kansas. A member of the Republican Party, he has served since 1997...

 (R-KS), Jeff Sessions
Jeff Sessions
Jefferson Beauregard "Jeff" Sessions III is the junior United States Senator from Alabama. First elected in 1996, Sessions is a member of the Republican Party...

 (R-AL), and Ted Stevens
Ted Stevens
Theodore Fulton "Ted" Stevens, Sr. was a United States Senator from Alaska, serving from December 24, 1968, until January 3, 2009, and thus the longest-serving Republican senator in history...

 (R-AK).

Signing statement by President Bush


After approving the bill President Bush issued a signing statement
Signing statement
A signing statement is a written pronouncement issued by the President of the United States upon the signing of a bill into law. They are usually printed along with the bill in United States Code Congressional and Administrative News ....

: an official document in which a president lays out his interpretation of a new law. In it Bush said:
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".

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
Central Intelligence Agency
The Central Intelligence Agency is a civilian intelligence agency of the United States government. It is an executive agency and reports directly to the Director of National Intelligence, responsible for providing national security intelligence assessment to senior United States policymakers...

, 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. In an effort to provide clarification, Congress passed legislation in 2008 to similarly constrain the intelligence community to the Field Manual's techniques. 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. That bill was passed by both chambers of Congress but, once vetoed, failed to pass with sufficient votes to override the executive veto.

The Detainee Treatment Act cited the U.S. Army's Field Manual on interrogation
FM 34-52 Intelligence Interrogation
The US Army Field Manual on Interrogation, sometimes known by the military nomenclature FM 34-52, is a 177-page manual describing to military interrogators how to conduct effective interrogations while conforming with US and international law...

 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.

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
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...

for redetainees, which subsequently leaves detainees no legal recourse
Legal recourse
A legal recourse is an action that can be taken by an individual or a corporation to attempt to remedy a legal difficulty.* A lawsuit if the issue is a matter of civil law* Many contracts require mediation or arbitration before a dispute can go to court...

 if they are tortured.

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.

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

Criticisms have also been directed at Senators Lindsey Graham
Lindsey Graham
Lindsey Olin Graham is the senior U.S. Senator from South Carolina and a member of the Republican Party. Previously he served as the U.S. Representative for .-Early life, education and career:...

 and Jon Kyl
Jon Kyl
Jon Llewellyn Kyl is the junior U.S. Senator from Arizona and the Senate Minority Whip, the second-highest position in the Republican Senate leadership. In 2010 he was recognized by Time magazine as one of the 100 most influential people in the world for his persuasive role in the Senate.The son...

 for their amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...

brief filed in the Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...

 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
Congressional Record
The Congressional Record is the official record of the proceedings and debates of the United States Congress. It is published by the United States Government Printing Office, and is issued daily when the United States Congress is in session. Indexes are issued approximately every two weeks...

 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
Sam Brownback
Samuel Dale "Sam" Brownback is the 46th and current Governor of Kansas. A member of the Republican Party, he served as a U.S. Senator from Kansas from 1996 to 2011, and as a U.S. Representative for Kansas's 2nd congressional district from 1995 to 1996...

's "If I might interrupt". Brownback has not responded to press inquiries. Justice Scalia's dissent noted this as an example of his longstanding hostility to the use of legislative history. Scalia wrote:

See also

  • Command responsibility
    Command responsibility
    Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....

  • United Nations Convention Against Torture
    United Nations Convention Against Torture
    The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is an international human rights instrument, under the review of the United Nations, that aims to prevent torture around the world....

  • Extraordinary rendition
    Extraordinary rendition
    Extraordinary rendition is the abduction and illegal transfer of a person from one nation to another. "Torture by proxy" is used by some critics to describe situations in which the United States and the United Kingdom have transferred suspected terrorists to other countries in order to torture the...

  • Ethical arguments regarding torture
    Ethical arguments regarding torture
    Ethical arguments have arisen regarding torture, and its debated value to society. Despite worldwide condemnation and the existence of treaty provisions that forbid it, some countries still use it...

  • Psychology of torture
    Psychology of torture
    Torture, whether physical or psychological or both, depends on complicated interpersonal relationships between those who torture, those tortured, bystanders and others. Torture also involves deeply personal processes in those tortured, in those who torture and in others...

  • Ticking time bomb scenario
    Ticking time bomb scenario
    The ticking time bomb scenario is a thought experiment that has been used in the ethics debate over whether torture can ever be justified.Simply stated, the consequentialist argument is that nations, even those such as the United States that legally disallow torture, can justify its use if they...

  • Unitary Executive
  • Unlawful Combatant
    Unlawful combatant
    An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action.The Geneva Conventions apply in wars...

  • Military Commissions Act of 2006
    Military Commissions Act of 2006
    The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...

  • Hamdan v. Rumsfeld
    Hamdan v. Rumsfeld
    Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...

  • Guantanamo captives' appeals in Washington DC Courts
    Guantanamo captives' appeals in Washington DC Courts
    Guantananmo detainees have been allowed to initiate appeals in Washington DC Courts since the passage of the Detainee Treatment Act of 2005 closed off the right of Guantanamo captives to submit new petitions of habeas corpus....

  • Military Commissions Act of 2009
    Military Commissions Act of 2009
    The United States House of Representatives passed a bill, known as the Military Commissions Act of 2009, which amended the Military Commissions Act of 2006.Formally, it is Title XVIII of the National Defense Authorization Act for Fiscal Year 2010 ....

  • Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010
    Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010
    The Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 is a bill introduced by United States Senator John McCain, sponsored by Joe Lieberman and eight other Republican Senators. Its counterpart in the House is H.R...


External links