DETAINEE TREATMENT ACT OF 2005

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DETAINEE TREATMENT ACT OF 2005

• PUBP 759
• Jasmine Miller
• Marc Numedahl

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Agenda

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

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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

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DTA ProvisionsTITLE X MATTERS RELATING TO
DETAINEES

• SEC. 1001 SHORT TITLE DETAINEE TREATMENT ACT OF
  2005
• SEC. 1002 UNIFORM INTERROGATION STANDARDS FOR
  PERSONS UNDER DETENTION OF DOD
• SEC. 1003 PROHIBITS CRUEL, INHUMAN, OR DEGRADING
  TREATMENT FOR PERSONS UNDER CUSTODY OF US
  GOVERNMENT
• SEC. 1004 PROTECTS US GOVERNMENT PERSONNEL WHO
  ENGAGE IN AUTHORIZED INTERROGATIONS
• SEC. 1005 PROCEDURES FOR STATUS REVIEW OF
  DETAINEES OUTSIDE OF THE US
• SEC. 1006 TRAINING OF IRAQI FORCES REGARDING
  TREATMENT OF DETAINEES

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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

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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

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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.

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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)

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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

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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

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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)

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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

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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

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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

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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

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Leading CasesHamdan 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.

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Leading CasesBoumediene 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.

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Leading CasesAl 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

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Limitations of DTA 2005

• SEC. 1002
• No Limit on the CIA
• Changes to the Army Field Manual on Intelligence
  Interrogation
• The Provision on Applicability
• SEC. 1003
• 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)

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Limitations of DTA 2005

• SEC. 1004
• Valid legal defense for officials engaging in
  unauthorized interrogation
• SEC. 1005
• Prohibits Courts from hearing Writ of Habeas
  Corpus filed by Alien Detainees at Guantanamo
  Bay, Cuba
• (Refer to handout of 2005 DTA provisions)

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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?

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Our Proposal

• Codify President Obamas 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.

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Pros vs. Cons
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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

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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.

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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.

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Conclusion

• President Obamas Executive Order on detainee
  treatment rightly clarifies and strengthens the
  intentionally broad sections of the DTA of 2005.
  The interagency task force should continually
  monitor and, if needed, modify detainee treatment
  to meet existing conditions.