Sunday, February 22, 2009

The Detainee Treatment Act

Congress passed the Detainee Treatment Act ("DTA") act in 2006 because of concerns about the way detainees were being treated by U.S. military and other authorities. A January 23rd report by the Congressional Research Service detailed the DTA. I have summarized this report because I think this to be a very relevant national security law topic, and one that we should have at least a passing understanding of.

The report begins by outlining the three provisions applicable to interrogation of detainees:

1) Army Field Manual Standards- The DTA mandates that no person in the custody of the Department of Defense can be subject to interrogation that goes beyond the rules laid out in the Army Field Manual. This was meant to eliminate procedures that the DoD previously applied to detainees that it did not consider to be POWs, thus allowing it to use a wider (and consquently unacceptable) range of interrogations methods on these individuals. Lacking in this provision is its effect on non-DoD personnel. This provision does not apply Army Field Manual restrictions to personnel not working for DoD. Also notable is that it does not foreclose the ability of the DoD to amend the Field Manual.

2) Prohibition on Cruel, Inhumane, or Degrading Treatment or Punishment- This applies across the entire U.S. government, including non-DoD personnel. The "cruel, inhumane, or degrading" threshold is determined by the Fifth, Eighth, and Fourteenth Amendments to the Constitution and is applicable to anyone in U.S. custody "regardless of geographic location or nationality." The report points out that this threshold can be a moving target since it is dependent on judicial decisions and legal scholarship, however here are some acts that violate the threshold: 1) handcuffing to a hitching post for an extended period of time; 2) temperatures that do not reach the reasonable level of comfort; 3) interrogation for an unreasonable amount of time as determined by the circumstances.

Another interesting point the report makes is that the DTA does not explicitly prohibit the transferring of prisoners to other countries where these standards do not apply. This has been a tool the U.S. has used and Obama has given no order that explicitly bans this practice yet.

3) Protecting Personnel Engaged in Authorized Interrogations- This provision protects interrogators from criminal or civil liability arising out of an interrogation that might not meet standards as long as the interrogator had a good faith belief that what he was doing was authorized. The DTA says that advice of counsel is an important factor in determining this.

The next part of the report looks at the legal developments in the area of detention and interrogation that followed the passage of the DTA.

1) Updated Army Field Manual- The update assimilated the DTA's mandates and explicitly prohibited "cruel, inhuman, or degrading treatment." Specific acts prohibited were: 1) forcing detainee to be naked, perform sexual acts, or pose sexuall; 2) hoods over the head or duct tape over the eyes; 3) beatings, electrical shocks, burns, etc.; 4) waterboarding; 5) using dogs to intimidate; 6) inducing hypothermia or heat injury; 7) mock executions; 8) deprivation of food, water, or medical care. The report also mentions that the new Field Manual included 19 acceptable interrogation techniques.

2) Hamdan v. Rumsfeld- This case resulted in Common Article 3 of the Geneva Conventions of 1949 applying to those captured in the fight against Al-Qaeda. The report says that this resulted in criminal liability for U.S. personnel that violated any part of Common Article 3. The Military Commissions Act of 2006 ("MCA") sought to mitigate the effects of the Hamdan decision. First, it made only certain violations of Common Article 3 criminally punishable and retroactively implemented the DTA's defense provision for interrogators that may have committed violations between September 11, 2001 and December 30, 2005. The report points out that the MCA only criminalizes "grave breaches" of Common Article 3. Second, the MCA authorizes the President to pass Executive Orders enlarging the scope of non-violative conduct as long as the conduct is not considered a "grave breach."

3) Interrogation Techniques by Intelligence Agencies Authorized Under the Bush Administration/The Repeal of This Authorization by President Obama- Before the passage of the DTA, Bush's Department of Justice issued several, now infamous, classified opinions. These opinions authorized certain interrogations techniques that it said the DTA would not bar. There was congressional outcry, but the Bush administration claimed that the appropriate congressmen were aware of the DoJ opinions and approved of them. In 2007, President Bush used his previously mentioned enlarging power under the MCA to issue an Executive Order. This order outlined interrogations techniques applied to "Al Qaeda, the Taliban, and other associated organizations" and to those possessing information that could stop a terrorist attack on the U.S. and allied nations. The report points out that this order is interesting in the fact that it bars certain practices and does not approve of any; however, the report goes on to say that it is unclear from this order whether techniques such as waterboarding, hooding, sleep deprivation, or forced standing were barred. This suggests the Bush administration used this list of negatives as a way to distract people from interrogation practices that it wanted to allow.

As I've discussed before these DoJ opinions and the Bush's order were repealed by Obama when he took office and Obama's order now only authorizes interrogations techniques in line with what is in the Army Field Manual.

The final section of the report briefly outlines attermpts by Congress to pass legislation that would affect interrogation techniques. I will not outline them here, but you can check them out in the report. I would like to point out that the report suggests the possibility that Obama's presidential order regarding interrogation may take away Congress's motivation to pass legislation to further clarify the laws surrounding interrogation. I don't think this will be the case. Obama's order limits interrogation techniques to only those enumerated in the Army Field Manual, but that seems to be a very general solution to a complicated problem. I don't believe that the DTA, MCA, and the executive order come close to solving the problem of what methods the U.S. believes it can rightly use in attempting to gain intelligence or in attempting to stop an attack. I also believe a big question about the policy of sending prisoners to other countries goes unanswered. Will the Obama administration deal with this issue or will it see some usefulness in the policy and continue it? I believe that there are some techniques that are clearly too much such as those that involve mutilation or other serious physical harm. But I also believe that there may be some interrogation techniques that are currently banned that don't need to be. Again I think we still need to refine our approach to the new fight against terrorism.

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