Order Code RS22312
November 2, 2005
CRS Report for Congress
Received through the CRS Web
Overview and Analysis of Senate Amendment
Concerning Interrogation of Detainees
Lee Wood
Law Clerk
American Law Division
Summary
On October 5, 2005, the Senate adopted a floor amendment (S.Amdt. 1977),
proposed by Senator John McCain with 11 co-sponsors, that would (1) require
Department of Defense (DOD) personnel to employ United States Army Field Manual
guidelines while interrogating detainees, and (2) prohibit the “cruel, inhuman and
degrading treatment or punishment of persons under the detention, custody, or control
of the United States Government.” The amendment modified the Defense Department
FY2006 Appropriations bill (H.R. 2863), which had passed the House on June 20, 2005,
without a comparable provision. The defense appropriations bill is currently before a
conference committee.1
On October 5, 2005, the Senate adopted a floor amendment (S.Amdt. 1977),
proposed by Senator John McCain with 11 co-sponsors, that would (1) require
Department of Defense (DOD) personnel to employ United States Army Field Manual
guidelines while interrogating detainees, and (2) prohibit the “cruel, inhuman and
degrading treatment or punishment of persons under the detention, custody, or control of
the United States Government.”2 Adopted on a roll call vote of 90-9, the amendment
modified the Defense Department FY2006 Appropriations bill (H.R. 2863), which had
passed the House on June 20, 2005, without a comparable provision. The defense
appropriations bill is currently before a conference committee. Reportedly,3 President
Bush has stated that he will veto the bill should it be presented to him with the
amendment still included.
The adoption of S.Amdt. 1977 by the Senate comes amidst controversy over
interrogation and detention techniques employed by the United States against enemy
1 This report was prepared under the general supervision of Michael Garcia, legislative attorney.
2 S.Amdt. 1977 to H.R. 2863 (Oct. 5, 2005)
3 Charles Babington and Shailagh Murray, “Senate Supports Interrogation Limits,” Washington
Post, Oct. 6, 2005, p. A1.
Congressional Research Service { The Library of Congress

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combatants and terrorist suspects being detained in Iraq, Afghanistan, and other locations.
Senate adoption of S.Amdt. 1977 followed several earlier attempts for floor votes on
similar proposals.4
Summary and Analysis of Senate Amendment 1977
S.Amdt. 1977 contains two provisions, described in the following sections.
Applying U.S. Army Field Manual Standards. The first provision of S.Amdt.
1977 provides that no person in the custody or effective control of the DOD or under
detention in a DOD facility shall be subject to any interrogation treatment or technique
that is not authorized by and listed in the United States Army Field Manual on
Intelligence Interrogation. An exception to this general requirement is made for
individuals being held pursuant to U.S. criminal or immigration laws. S.Amdt. 1977 does
not require non-DOD agencies, such as nonmilitary intelligence and law enforcement
agencies, to employ manual guidelines with respect to interrogations they conduct.
The United States Army Field Manual addresses intelligence interrogation under FM
34-52, detailing certain procedures for the treatment and questioning of persons by
military personnel.5 FM 34-52 also contains a section regarding the applicability of the
1949 Geneva Conventions. According to the manual, these Conventions, including the
1949 Geneva Convention on the Treatment of Prisoners of War, are to be “strictly
observed and enforced by the United States Forces without regard to whether they are
legally binding upon this country and its specific relations with any other specific
country.”6 In applying these standards, the manual requires soldiers to adhere to the
4 During floor debate of the National Defense Authorization Act for FY2006 (S. 1042) on July
25, 2005, Senator John McCain (AZ) offered S.Amdt. 1556 and S.Amdt. 1557 to attach at the end
of subtitle G of title X of the bill. Under S.Amdt. 1556, the U.S. government would be prohibited
from using “cruel, inhuman, or degrading treatment or punishment” against individuals in its
custody or under its control. This provision also originally included a presidential waiver clause,
which was later removed by Senator McCain on July 27, 2005, for being “inconsistent with the
overall intent” of the amendment.
S.Amdt. 1557 applied to the permissible interrogation techniques of DOD. Here, the United
States Army Field Manual would act as the sole guide in the field to define restricted and
allowable interrogation procedures. During debate of the amendment, Senator John Warner
(VA), a cosponsor, offered S.Amdt. 1566, which reflected the same language of Senator
McCain’s amendment, but listed the Secretary of Defense as the source for defining what
interrogation techniques could be used.
While both S.Amdt. 1556 and S.Amdt. 1557 were considered and debated on the Senate
floor, ultimately no action was taken regarding their passage. The National Defense
Authorization Act for FY2006’s status is currently in question as it is unclear if the two houses
will act to pass it this year.
5 Department of the Army Field Manual 34-52, Intelligence Interrogation (1992), available at
[http://www4.army.mil/ocpa/reports/ArmyIGDetaineeAbuse/FM34-52IntelInterrogation.pdf]
6 Id.

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Geneva Convention’s prohibition against “cruel treatment and torture” and “[o]utrages
upon personal dignity, in particular, humiliating and degrading treatment.”7
Were S.Amdt. 1977 to become law, it would not prevent DOD from subsequently
amending the manual. Indeed, the manual is undergoing review and revisions with a new
version to be published in the near future.8 The manual has both an unclassified and
classified section. Until the new version is released, it is unknown how much of the
interrogation section will be available for public reference.
Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment.
The second provision of S.Amdt. 1977 prohibits persons in the custody or under the
control of the U.S. government, regardless of their nationality or physical location, from
being subjected to “cruel, inhuman, or degrading treatment or punishment.” The
amendment specifies that this restriction is without geographical limitation as to where
and when the government must abide by it. Unlike the first section of S.Amdt. 1977, this
provision covers not only DOD activities, but also intelligence and law enforcement
activities occurring both inside and outside the United States. It does not appear that this
provision would prevent U.S. agencies from transferring persons to other states where
those persons would face “cruel, inhuman, or degrading treatment or punishment,” so
long as such persons were no longer in custody or under control of the United States,
though such transfers might otherwise be limited by applicable treaty and statute
provisions.9 S.Amdt. 1977 also provides that this provision may “not be superseded,
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.”
In interpreting whether treatment falls below this standard, the amendment defines
“cruel, unusual, and inhuman treatment or punishment” to cover those acts prohibited
under the Fifth, Eighth, and Fourteenth Amendments to the Constitution, as stated in U.S.
reservations to the U.N. Convention Against Torture and Other Forms of Cruel and
Inhuman or Degrading Treatment or Punishment (CAT).10 The Constitution applies to
U.S. citizens abroad, thereby protecting them from the extraterritorial infliction by U.S.
state or federal officials of cruel, inhuman, or degrading treatment or punishment that is
7 Geneva Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3316 , entered into
force Oct. 21, 1950. For additional background, see CRS Report RL32567, Lawfulness of
Interrogation Techniques under the Geneva Conventions, by Jennifer K. Elsea.
8 Sen. John McCain during debate of the Department of Defense Appropriations Act for FY-
2006, CONG. REC. S11063 (daily ed., Oct. 5, 2005). (“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.”)
9 See CRS Report RL32890, Renditions: Constraints Imposed by Laws on Torture, by Michael
John Garcia.
10 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984) (hereinafter
“CAT”). Ratified by the U.S. in 1994, CAT prohibits parties from engaging in torture, and also
requires them to take measures to end “cruel, unusual, and inhuman treatment or punishment”
within territories under their respective jurisdiction. Id. at arts. 1-3, 16.

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prohibited under the Fifth, Eighth, and/or Fourteenth Amendments.11 However,
noncitizens arguably only receive constitutional protections after they have effected enty
the United States.12 Still, S.Amdt. 1977 prohibits persons under U.S. custody or control
from being subjected to “cruel, inhuman, or degrading treatment or punishment” of any
kind prohibited by the Fifth, Eight, and Fourteenth Amendments, regardless of their
geographic location or nationality. Accordingly, it appears that S.Amdt. 1977 is intended
to ensure that persons under U.S. custody or control abroad cannot be subjected to
treatment that would be deemed unconstitutional if it occurred in U.S. territory.
The scope of Fifth, Eighth, and Fourteenth Amendment prohibitions upon harsh
treatment or punishment is subject to evolving case law interpretation and constant legal
and scholarly debate.13 The types of acts that fall within “cruel, inhuman, or degrading
treatment or punishment” contained in S.Amdt. 1977 may change over time and may not
always be clear. Heightening this uncertainty is the possible difficulty of comparing
situations that might arise in the context of hostilities and “the war on terror” with
interrogation, detention, and incarceration within the U.S. criminal justice system. For
example, a U.S. court might employ a different standard for determining whether
interrogation techniques employed against a criminal suspect are “cruel” treatment
prohibited under the Constitution than it would for employing those same techniques
upon an enemy combatant in a war zone.
Nevertheless, there may be instructive examples of treatment in a criminal law
context that have been deemed to be prohibited under the Fifth, Eighth, and Fourteenth
Amendments. A sampling might include, inter alia:
11 See, e.g., Reid v. Covert, 354 U.S. 1, 6 (1957) (“When the Government reaches out to punish
a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution
provide to protect his life and liberty should not be stripped away just because he happens to be
in another land.”).
12 See, e.g., Verdugo-Urquidez v. United States, 494 U.S. 259, 270-71 (1990) (“aliens receive
constitutional protections when they have come within the territory of the United States and
developed substantial connections with the country”). But see Rasul v. Bush, 124 S.Ct. 2686, n.15
(2004) (noting in dicta that petitioners’ allegations that they had been held in Executive detention
for more than two years “in territory subject to the long-term, exclusive jurisdiction and control
of the United States, without access to counsel and without being charged with any wrongdoing
— unquestionably describe ‘custody in violation of the Constitution or laws or treaties of the
United States’”) (citing federal habeas statute 28 U.S.C. § 2241(c)(3), under which petitioners
challenged their detention).
13 The Eight Amendment’s prohibition on “cruel and unusual punishment” concerns the
imposition of a criminal punishment. Ingraham v. Wright, 430 U.S. 651 (1977). The
constitutional restraint of persons in other areas, such as pre-trial interrogation, is found in the
Due Process Clauses of the Fifth Amendment (concerning obligations owed by the U.S. federal
government) and Fourteenth Amendment (concerning duties owed by U.S. state governments).
These due process rights protect persons from executive abuses which “shock the conscience.”
See Rochin v. California, 342 U.S. 165 (1952).

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! handcuffing an individual to a hitching post in a standing position for an
extended period of time that “surpasses the need to quell a threat or
restore order”;14
! maintaining temperatures and ventilation systems in detention facilities
that fail to meet reasonable levels of comfort;15 and
! prolonged interrogation over an unreasonably extended period of time,16
including interrogation of a duration that might not seem unreasonable
in a vacuum, but becomes such when evaluated in the totality of the
circumstances.17
Again, whether such conduct would also be considered “cruel, inhuman, or
degrading punishment or treatment prohibited by the Fifth, Eighth, and Fourteenth
Amendment” when employed in other circumstances (e.g., against terrorist suspects or
enemy combatants abroad), or whether different constitutional standards could govern
such conduct, remains unclear.
Conduct that has not been deemed to violate the Fifth, Eighth, and/or Fourteenth
Amendments includes, inter alia:
! The double-celling of those in custody, at least so long as it does not lead
to deprivations of essentials, an unreasonable increase in violence, or
create other conditions intolerable for confinement.18
! Solitary or isolated confinement, so long as such confinement is within
a cell in acceptable condition and is not of an unreasonable duration.19
! In detention situations, the use of constant lighting in prisoner cells is
allowed as the detainees’ inconvenience and discomfort is outweighed by
the need to protect safety and welfare of the other detainees and staff.20
14 Hope v. Pelzer, 536 U.S. 730 (2002).
15 Chandler v. Crosby, 379 F.3d 1278 (11th Cir. 2004).
16 Haynes v. Washington, 373 U.S. 503 (1963). See also Davis v. North Carolina, 384 U.S. 737
(1966) (holding that confession of escaped convict held incommunicado 16 days was involuntary,
even though he was interrogated only an hour each day he was held); Greenwald v. Wisconsin,
390 U.S. 519 (1968).
17 E.g. Leyra v. Denno, 347 U.S. 556 (1954); Johnson v. New Jersey, 384 U.S. 719 (1966);
Ashdown v. Utah, 357 U.S. 426 (1958).
18 Rhodes v. Chapman, 452 U.S. 337 (1981). The Court stated that, “General considerations fall
far short in themselves of proving cruel and unusual punishment, for there is no evidence that
double celling under these circumstances either inflicts unnecessary or wanton pain or is grossly
disproportionate to the severity of crimes warranting imprisonment.” Here, the condition of the
cells was modern and well-equipped. This contributed to the Court’s decision for allowing it in
this situation, but also showed that the decision does not preclude all other situations of double
celling from being cruel and unusual.
19 Hutto v. Finney, 437 U.S. 678 (1978). The Court indicated that factors involved in the
determination of constitutionality under the Eighth Amendment’s “cruel and unusual”prohibition
include the physical conditions of the cell and the length of time of confinement.
20 Shanks v. Litscher, 02-C-0064-C, 2003 U.S. Dist. Lexis 24590 (W.D. Wis. Jan. 29, 2003).

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Again, it might not be clear that these and similar treatments may never be deemed
constitutionally impermissible outside the criminal context, including when such
treatments are used upon enemy combatants or terrorist suspects who have not been
charged with a criminal offense.

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