Detainee Treatment Act

The McCain Detainee Amendment is a proposed amendment to the United States Senate Department of Defense Authorization bill, 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. The amendment would prohibit inhumane treatment of prisoners, including prisoners at Guantanamo Bay by confining interrogations to the techniques in the US Army Field Manual on Interrogation.

Legislative history of amendment 1977

Amendment 1977 would amend the defense appropriations bill for 2005 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. [1]

Debate within the Republican Party

Vice President Dick Cheney has proposed that the CIA be exempt from the Amendment.

On November 2, 2005, the New York Times reported that the administration of President George W. Bush is sharply divided on the issue and are debating "whether a new set of Defense Department standards for handling terror suspects should adopt language from the Geneva Conventions prohibiting 'cruel,' 'humiliating' and 'degrading' treatment. Proponents argue that this language would move the U.S. detention policies closer to international law, would prevent further abuse of detainees and build international support in the War against Terror and against Islamic extremists.

The opponents, including Vice President Cheney, argue that the language is vague, would not be acceptable to critics of the U.S. and would interfere with the ability to combat terrorists. A few days before the submission of the McCain detainee amendment, the United States State Department submitted its Periodic Report of the United States of America to the United Nations Committee Against Torture to the U.N.; the report denied allegations of abuse at Guantanamo Bay and Afghanistan, but did not address detainees held by the CIA.

Others pose the hypothetical question of the appropriate limits of interrogation of a terrorist who has information regarding a suitcase bomb or nuclear device -- the ticking time bomb scenario. There are many similar arguments On November 6, 2005, Senator McCain appeared on Fox News and argued that torture does not produce accurate information and that the image of the U.S. is damaged by the perception that it supports torture.

Statement by Senator John McCain on October 5, 2005

John McCain
Senior Senator, Arizona
In office January, 1987–Present
Preceded by	Barry Goldwater
Succeeded by	Incumbent (2011)
Personal details
Nationality	american
Political party	Republican
Spouse	Cindy McCain

Senator McCain delivered the following statement on October 5 2005 from the floor of the United States Senate on Amendment 1977:

Mr. President, I call up amendment #1977, which is filed at the desk.

The Department of Defense Appropriations bill is one of the most important funding measures considered by Congress. Equally important is the Department of Defense Authorization bill, and it is very unfortunate that we are forced to consider this funding measure without having completed our important work on the authorization bill. Despite the efforts of the Chairman and Ranking Member of the Armed Services Committee, who have worked to bring up and dispense with the authorization bill in a reasonable manner, they have been unable to reach an agreement with the leadership. As a result, the authorizers have filed the authorization bill and a procedural vote will occur on it this evening.

The Senate has an obligation to address the authorizing legislation, just as it has an obligation to deal with the issue that apparently led to the bill being pulled from the floor – America’s treatment of its detainees. Several weeks ago I received a letter from Captain Ian Fishback, a member of the 82nd Airborne Division at Fort Bragg, and a veteran of combat in Afghanistan and Iraq. Over 17 months he struggled to get answers from his chain of command to a basic question: what standards apply to the treatment of enemy detainees? But he found no answers. In his remarkable letter, he pleads with Congress, asking us to take action, to establish standards, to clear up the confusion – not for the good of the terrorists, but for the good of our soldiers and our country. The Captain closes his letter by saying, “I strongly urge you to do justice to your men and women in uniform. Give them clear standards of conduct that reflect the ideals they risk their lives for.” I believe that the Congress has a responsibility to answer this call – a call that has come not just from this one brave soldier but from so many of our men and women in uniform.

We owe it to them, Mr. President. We sent them to fight for us in Afghanistan and Iraq. We placed extraordinary pressure on them to extract intelligence from detainees. But then we threw out the rules that our soldiers had trained on, and replaced them with a confusing and constantly changing array of standards. We demanded intelligence without ever clearly telling our troops what was permitted and what was forbidden. And then when things went wrong, we blamed them and we punished them. We have to do better than that.

I can understand why some administration lawyers might want ambiguity, so that every hypothetical option is theoretically open, even those the President has said he does not want to exercise. But war does not occur in theory, and our troops are not served by ambiguity. They are crying out for clarity. The Congress cannot shrink from this duty, we cannot hide our heads, pulling bills from the floor and avoiding votes. We owe it to our soldiers, during this time of war, to take a stand.

And so while I would prefer to offer this amendment to the DOD Authorization bill, I am left with no choice but to offer it to this appropriations measure. I would note that I am offering this amendment in accordance with the options afforded under Rule 16 of the Standing Rules of the Senate. The amendment I will now offer combines the two amendments that I previously filed to the authorizing measure.

This amendment would (1) establish the Army Field Manual as the uniform standard for the interrogation of Department of Defense detainees and (2) prohibit cruel, inhuman, and degrading treatment of persons in the detention of the U.S. government.

Mr. President, to fight terrorism we need intelligence. That much is obvious. What should also be obvious is that the intelligence we collect must be reliable and acquired humanely, under clear standards understood by all our fighting men and women. To do differently would not only offend our values as Americans, but undermine our war effort, because abuse of prisoners harms – not helps – us in the war on terror. First, subjecting prisoners to abuse leads to bad intelligence, because under torture a detainee will tell his interrogator anything to make the pain stop. Second, mistreatment of our prisoners endangers U.S. troops who might be captured by the enemy – if not in this war, then in the next. And third, prisoner abuses exact on us a terrible toll in the war of ideas, because inevitably these abuses become public. When they do, the cruel actions of a few darken the reputation of our country in the eyes of millions. American values should win against all others in any war of ideas, and we can’t let prisoner abuse tarnish our image.

And yet reports of detainee abuse continue to emerge, in large part, I believe, because of confusion in the field as to what is permitted and what is not. The amendment I am proposing will go a long way toward clearing up this confusion.

Army Field Manual

The first part of this amendment would establish the Army Field Manual as the uniform standard for the interrogation of Department of Defense detainees. The Army Field Manual and its various editions have served America well, through wars against both regular and irregular foes. It embodies the values Americans have embraced for generations, while preserving the ability of our interrogators to extract critical intelligence from ruthless foes. Never has this been more important than today, in the midst of the war on terror.

The Army Field Manual authorizes interrogation techniques that have proven effective in extracting life-saving information from the most hardened enemy prisoners. It is consistent with our laws and, most importantly, our values. Let us not forget that al-Qaeda sought not just to destroy American lives on September 11, but American values – our way of life and all we cherish. We fight not just to preserve our lives and liberties but also American values, and we will never allow the terrorists to take those away. In this war that we must win - that we will win - we must never simply fight evil with evil.

This amendment would establish the Army Field Manual as the standard for interrogation of all detainees held in DOD custody. The Manual has been developed by the Executive Branch for its own uses, and a new edition, written to take into account the needs of the war on terror and with a new classified annex, is due to be issued soon. My amendment would not set the Field Manual in stone – it could be changed at any time.

The advantage of setting a standard for interrogation based on the Field Manual is to cut down on the significant level of confusion that still exists with respect to which interrogation techniques are allowed. The Armed Services Committee has held hearings with a slew of high-level Defense Department officials, from regional commanders, to judge advocate generals, to the Department’s deputy general counsel. A chief topic of discussion in these hearings was what specific interrogation techniques are permitted in what environments, with which DOD detainees, by whom, and when. And the answers have included a whole lot of confusion. If the Pentagon’s top minds can’t sort these matters out after exhaustive debate and preparation, how in the world do we expect our enlisted men and women to do so?

Detainees Guantanmo Bay, 2002

Confusion about the rules results in abuses in the field. We need a clear, simple, and consistent standard, and we have it in the Army Field Manual on Interrogation. That’s not just my opinion, but that of many more distinguished military minds than mine. I would refer you to a letter expressing strong support for this amendment, signed by 28 former high-ranking military officers, including General Joseph Hoar, who commanded Centcom; General John Shalikashvili, former Chairman of the Joint Chiefs; RADM John Hutson and RADM Don Guter, who each served as the Navy’s top JAG; and LTGEN Claudia Kennedy, who served as Deputy Chief of Staff for Army Intelligence. These and other distinguished officers believe that the abuses at Abu Ghraib, Guantanamo and elsewhere took place in part because our soldiers received ambiguous instructions, which in some cases authorized treatment that went beyond what the Field Manual allows, and that, had the Manual been followed across the board, we could have avoided the prisoner abuse scandal. Mr. President, wouldn’t any of us do whatever we could to have prevented that? By passing this amendment, our service members can follow the Manual consistently from now on. Our troops deserve no less.

Cruel, Inhumane, Degrading Treatment

The second part of this amendment really shouldn’t be objectionable to anyone since I’m actually not proposing anything new. The prohibition against cruel, inhumane and degrading treatment has been a longstanding principle in both law and policy in the United States. Before I get into why this amendment is necessary, let me first review the history.

The Universal Declaration of Human Rights, adopted in 1948, states simply that “No one shall be subject to torture or cruel, inhuman or degrading treatment or punishment.” The International Covenant on Civil and Political Rights, to which the U.S. is a signatory, states the same. The binding Convention Against Torture, negotiated by the Reagan administration and ratified by the Senate, prohibits cruel, inhuman, and degrading treatment. On last year’s DOD Authorization bill, the Senate passed a bipartisan amendment reaffirming that no detainee in U.S. custody can be subject to torture or cruel treatment, as the U.S. has long defined those terms. All of this seems to be common sense, in accordance with longstanding American values.

But since last year’s DOD bill, a strange legal determination was made that the prohibition in the Convention Against Torture against cruel, inhuman, or degrading treatment does not legally apply to foreigners held outside the U.S. They can, apparently, be treated inhumanely. This is the administration’s position, even though Judge Abe Soafer, who negotiated the Convention Against Torture for President Reagan, said in a recent letter that the Reagan administration never intended the prohibition against cruel, inhuman, or degrading treatment to apply only on U.S. soil.

What all this means is that America is the only country in the world that asserts a legal right to engage in cruel and inhuman treatment. But the crazy thing is that it is not even necessary, because the Administration has said that it will not engage in cruel, inhuman or degrading treatment as a matter of policy. What this also means is that confusion about the rules becomes rampant again. We have so many differing legal standards and loopholes that our lawyers and generals are confused – just imagine our troops serving in prisons and the field.

So the amendment I am offering simply codifies what is current policy and reaffirms what was assumed to be existing law for years. In light of the administration’s stated commitment, it should require no change in our current interrogation and detention practices. What it would do is restore clarity on a simple and fundamental question: Does America treat people inhumanely? My answer is no, and from all I’ve seen, America’s answer has always been no.

Mr. President, let me just close by noting that I hold no brief for the prisoners. I do hold a brief for the reputation of the United States of America. We are Americans, and we hold ourselves to humane standards of treatment of people no matter how evil or terrible they may be. To do otherwise undermines our security, but it also undermines our greatness as a nation. We are not simply any other country. We stand for something more in the world – a moral mission, one of freedom and democracy and human rights at home and abroad. We are better than these terrorists, and we will we win. The enemy we fight has no respect for human life or human rights. They don’t deserve our sympathy. But this isn’t about who they are. This is about who we are. These are the values that distinguish us from our enemies.

I urge my colleagues to support this amendment.

Signing statment by President Bush

After approving the Bill President Bush issued a so called signing statement: an official document in which a president lays out his interpretation of a new law.[2] In it Bush said:

"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."

Critics note that, by invoking the unitary executive, he in effect claims the right to bypass this law if needed. [3][4][5][6][7]

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." [8]

See also

• United Nations Convention Against Torture
• Extraordinary rendition
• Torture
• Ethical arguments regarding torture
• Psychology of torture
• Ticking time bomb scenario
• Unitary Executive

Reference

• Text of Amendment
• McCain statement
• Editorial The McCain Amendment would hamstring U.S. interrogators. WSJ Opinion Journal (October 30, 2005)
• Umansky, Eric Detention Tension Slate (November 2, 2005)
• McCain Undermined: The 'Obedience to Orders' Defense, JURIST, (January 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