DETAINEE TREATMENT ACT OF 2005 PUBP 759 Jasmine Miller Marc Numedahl

Agenda  Overview of Provisions  History of DTA  Leading Cases  Overview of Problems  The Issue  Pros and Cons  Our Proposal  Implications  Conclusion

Overview: DTA 2005  DTA enacted pursuant to the DOD, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, the Pandemic Influenza Act of 2006, and the National Defense Authorization Act for 2006  Provisions referred to the McCain Amendments  DTA intended to close many of the loopholes that compromised the civil liberties of detainees at GB, Iraq and Afghanistan that existed prior to its implementation

DTA Provisions TITLE X: MATTERS RELATING TO DETAINEES  SEC SHORT TITLE: DETAINEE TREATMENT ACT OF 2005  SEC UNIFORM INTERROGATION STANDARDS FOR PERSONS UNDER DETENTION OF DOD  SEC PROHIBITS CRUEL, INHUMAN, OR DEGRADING TREATMENT FOR PERSONS UNDER CUSTODY OF US GOVERNMENT  SEC PROTECTS US GOVERNMENT PERSONNEL WHO ENGAGE IN AUTHORIZED INTERROGATIONS  SEC PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE OF THE US  SEC TRAINING OF IRAQI FORCES REGARDING TREATMENT OF DETAINEES

Overview: DTA Provision 1002  UNIFORM INTERROGATION STANDARDS FOR PERSONS UNDER DETENTION OF DOD  Persons under custody of DOD or a DOD facility shall not be subject to treatment or interrogation not authorized under the Army Field Manual on Intel Interrogation Does not apply to persons under custody of DOD pursuant to criminal or immigration law of the US  Nothing in this section should be assumed to affect the rights given by US Constitution to any person under jurisdiction of US

Overview: DTA Provision 1003  PROHIBITS CRUEL, INHUMAN, OR DEGRADING TREATMENT FOR PERSONS UNDER CUSTODY OF US GOVERNMENT  No persons under custody or physical control of US should be subject to cruel or inhuman treatment despite their nationality or physical location  Nothing here should be assumed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.  This section shall not be replaced, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.  Cruel, Inhuman, or Degrading Treatment or Punishment Defined

Overview: DTA Provision 1004  PROTECTS US GOVERNMENT PERSONNEL WHO ENGAGE IN AUTHORIZED INTERROGATIONS  Protects all authorized US personnel who engage in authorized civil action or criminal prosecution of persons declared to be a formal threat to the US Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.  The US government may provide counsel to represent any US personnel mentioned in the above for any civil action or criminal prosecution arising out of practices detailed above.

Overview: DTA Provision 1005  PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE OF THE US  Secretary of Defense must submit to committees procedures for Combatant Status Review Tribunals and the Administrative Review Boards for procedures in operation in GB, Cuba Afghanistan and Iraq  Detailed Procedures for Status Review (will discuss)

Overview: DTA Provision 1006  TRAINING OF IRAQI FORCES REGARDING TREATMENT OF DETAINEES  All DOD personnel and contractors in Iraq are to be made aware of the procedures listed in the Army Field Manual for Intel Interrogations and all receive training regarding the international obligations and laws applicable to the human detention of detainees, including protections afforded under the Geneva Conventions and the Convention Against Torture  All DOD and US personnel trained must acknowledge that they have been trained in such manner  Language translations of the Army Field Manual must be provided  Every unit of the Iraqi military forces trained by DOD personnel or contractor personnel of the DOD must receive a copy of the manual  The Secretary of Defense must submit a plan to date them annually as to how he will make sure that the requirements under this section are met

History of 2005 DTA 2003  DOD approves 24 new controversial interrogation techniques for GB detainees  17 from the US military field manual and 4 required notice from Rumsfeld when used.  DOJ withdraws 2002 memos giving a narrow definition of torture  DOJ memo provides an expanded definition of torture and omits the legal liability and presidential authority issues

History of 2005 DTA 2004  US Supreme Ct. begins hearing oral arguments on the status of detainees at GB.  The first pictures of US soldiers brutalizing Iraqi detainees in Abu Graib are published  Supreme Ct decides 3 landmark cases in the war on terror  Hamdi et al v. Rumsfeld (2004)  Rasul v. Bush (2004)  Rumsfeld v. Padilla et al (2004)

History of 2005 DTA 2004 Continued  House and Senate approves an anti-torture amendment to the Defense Authorization Bill  Former Pres. Bush then declares that some non-Iraqi prisoners captured by American forces in Iraq are not entitled to the protections of the Geneva Conventions  10+ current and former GB detainees lodge new allegations of prisoner abuse. FBI documents accts.  DOJ revises its definition of torture

History of 2005 DTA 2005  Pentagon sends investigators to GB to look into allegations  DOJ opens a wide-ranging investigation based on FBI reports  New evidence emerged supporting detainee abuse at Abu Graib prison  ACLU sues Rumsfeld for putting into practice interrogation methods resulting in torture

History of 2005 DTA 2005 Continued  US military drafts a new doctrine for prison operations that aims to fix problems that contributed to the abuse in Iraq  Congress barred the US government from using any money in a newly passed emergency spending bill to subject anyone in American custody to torture or cruel, inhuman, or degrading behavior” prevented under the Constitution  December 2005, Congress and Pres. Bush passes the DTA

History of 2005 DTA Post-DTA 2005  Army releases an updated version of the Field Manual that implements the requirements of DTA  8 additional techniques are expressly prohibited from being used  Former Pres. Bush says he would veto any bill that forced the CIA to follow procedures in the Army Field Manual  Pres. Obama issues an Executive Order that requires all US agencies conducting interrogations of persons during armed conflicts to comply with the Army Field Manual requirements. No exceptions

Leading Cases Hamdan v. Rumsfeld (2006)  The SC of the US held that military commissions set up by the Bush Administration to try detainees at GB lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.”

Leading Cases Boumediene v. Bush (2008)  The majority SC held that the constitutionally guaranteed right of habeas corpus review applies to persons held in GB and to persons designated as enemy combatants on that territory.  If Congress intends to suspend this right, an adequate substitute must offer the prisoner a meaningful opportunity to demonstrate he is held pursuant to an erroneous application or interpretation of relevant law, and the reviewing decision-making must have some ability to correct errors, to assess the sufficiency of the government's evidence, and to consider relevant exculpating evidence.  The court found that the petitioners had met their burden of establishing that DTA of 2005 failed to provide an adequate substitute for habeas corpus.

Leading Cases Al Odah v. United States (2008)  US Cts. have jurisdiction to consider legal appeals filed on behalf of foreign citizens held by the United States military in GB Naval Base, Cuba  SC held that the degree of control exercised by the US over the GB base was sufficient to trigger the application of habeas corpus rights  The right to habeas corpus is not dependent on citizenship status

Limitations of DTA 2005  SEC  No Limit on the CIA  Changes to the Army Field Manual on Intelligence Interrogation  The Provision on Applicability  SEC  Extraordinary or Irregular Rendition  Defining Cruel, Inhuman, or Degrading Treatment and Punishments  Overriding Presidential Powers as Commander-in-Chief (Refer to handout of 2005 DTA provisions)

Limitations of DTA 2005  SEC  Valid legal defense for officials engaging in unauthorized interrogation  SEC  Prohibits Courts from hearing Writ of Habeas Corpus filed by Alien Detainees at Guantanamo Bay, Cuba (Refer to handout of 2005 DTA provisions)

Problem/Issue How do we modify the DTA to mitigate the limitations previously listed? How do we define Cruel, Inhuman, Degrading Treatment & Punishments? How do we reconcile Congressional and Commander in Chief powers?

Our Proposal  Codify President Obama’s Executive Order 13491, “Ensuring Lawful Interrogations.”  Establish Special Interagency Task Force on Interrogation and Transfer Policies  Universal usage of Army Field Manual on Interrogations across all Federal agencies  Definition of Cruel, Inhuman, Degrading Treatment and Punishment consistent with UN CAT and Geneva Conventions.

Pros vs. Cons ConsPros ExpertiseAccountabilityConsistencyStructureFlexibilityDoD Manuel Commander in Chief

Reign in the Intel Community  Prohibit contractors supporting the USG from performing interrogation techniques on enemy combatants.  Close all CIA “Black Sites”  Use Army Field Manuel as guidelines for interrogations

Definitions of CIDTP  Sec. 2(f): "Treated humanely," "violence to life and person," "murder of all kinds," "mutilation," "cruel treatment," "torture," "outrages upon personal dignity," and "humiliating and degrading treatment" refer to, and have the same meaning as, those same terms in Common Article 3.

Congress vs. Commander In Chief  Two Views:  One: The President, as Commander in Chief, and authorized by AUMF, has the authority to order the CIA to conduct enhanced interrogation techniques.  Two: The AUMF gave the President the authority to carry out all acts necessary and appropriate to conduct war. However, appropriate consideration includes adherence to international treaties and established US precedence to conducting interrogations.

President Obama’s Executive Order on detainee treatment rightly clarifies and strengthens the intentionally broad sections of the DTA of The interagency task force should continually monitor and, if needed, modify detainee treatment to meet existing conditions. Conclusion