Order Code RL33655
CRS Report for Congress
Received through the CRS Web
Interrogation of Detainees:
Overview of the McCain Amendment
Updated October 23, 2006
Michael John Garcia
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
Interrogation of Detainees:
Overview of the McCain Amendment
Summary
Controversy has arisen regarding U.S. treatment of enemy combatants and
terrorist suspects detained in Iraq, Afghanistan, and other locations, and whether such
treatment complies with U.S. statutes and treaties such as the U.N. Convention
Against Torture and Other Forms of Cruel and Inhuman or Degrading Treatment or
Punishment (CAT) and the 1949 Geneva Conventions. Congress approved
additional guidelines concerning the treatment of detainees via the Detainee
Treatment Act (DTA), which was enacted pursuant to both the Department of
Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf
of Mexico, and Pandemic Influenza Act, 2006 (P.L. 109-148), and the National
Defense Authorization Act for FY2006 (P.L. 109-163). Among other things, the
DTA contains provisions that (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.”
These provisions of the DTA, which were first introduced by Senator John McCain,
have popularly been referred to as the “McCain Amendment.” This report discusses
the McCain Amendment, as modified and subsequently enacted into law.
This report also discusses the application of the McCain Amendment by the
DOD in the updated 2006 version of the Army Field Manual, particularly in light of
the Supreme Court’s ruling in Hamdan v. Rumsfeld. In addition, the report discusses
the Military Commissions Act of 2006 (P.L. 109-366), which was signed into law on
October 17, 2006. The Act includes provisions that reference or amend the McCain
Amendment. For a discussion of the provisions in the DTA that limit judicial review
of challenges to U.S. detention policy, see CRS Report RL33180, Guantanamo
Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea and
Kenneth Thomas.
Contents
Summary and Analysis of the McCain Amendment . . . . . . . . . . . . . . . . . . . . . . . 1
Applying U.S. Army Field Manual Standards . . . . . . . . . . . . . . . . . . . . . . . . 2
Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment . . . 3
Protection of U.S. Personnel Engaged in Authorized Interrogations . . . . . . . 7
Recent Legislative Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Interrogation of Detainees:
Overview of the McCain Amendment
Amidst controversy regarding U.S. treatment of enemy combatants and terrorist
suspects detained in Iraq, Afghanistan, and other locations, Congress approved
additional guidelines concerning the treatment of persons in U.S. custody and control
via the Detainee Treatment Act (DTA), which was enacted pursuant to both the
Department of Defense, Emergency Supplemental Appropriations to Address
Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006 (P.L. 109-148),
and the National Defense Authorization Act for FY2006 (P.L. 109-163). Among
other things, the DTA contains provisions that (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.” These provisions, added to the defense appropriations and
authorization bills via amendments introduced by Senator John McCain, have
popularly been referred to as the “McCain Amendment.”1 As subsequently modified,
the McCain Amendment also provides certain legal protections and assistance to U.S.
personnel engaged in the authorized interrogation of a terrorist suspect.
Summary and Analysis of the McCain Amendment
The McCain Amendment, as modified and enacted into law, contains three
provisions, which are described in the following sections.
1 On October 5, 2005, the Senate adopted a floor amendment (S.Amdt. 1977) proposed by
Senator McCain to the House-passed defense appropriations bill, restricting the types of
interrogation techniques employed by U.S. personnel. On November 4, 2005, Senator
McCain proposed an identically worded amendment (S.Amdt. 2425) to S. 1042, the National
Defense Authorization Act for FY2006, which also was adopted by the Senate. The Senate
subsequently substituted the language of S. 1042, as amended, for the House-passed version
of H.R. 1815, and then passed the amended bill by unanimous consent. The conference
committees appointed to resolve differences between the House- and Senate-passed versions
of the defense appropriations and authorization bills retained the McCain Amendment in the
conference report and added identical provisions providing certain legal protections and
assistance to U.S. personnel subjected to legal action on account of their involvement in the
authorized interrogation of a terrorist suspect. The Department of Defense, Emergency
Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic
Influenza Act, 2006 (P.L. 109-148), as amended and passed by the House and Senate, was
signed into law on December 30, 2005. The National Defense Authorization Act for
FY2006 (P.L. 109-163), as amended and passed by the House and Senate, was signed into
law on January 6, 2006.
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Applying U.S. Army Field Manual Standards
The first provision of the McCain Amendment provides that no person in the
custody or effective control of the DOD or detained 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.2 An exception
to this general requirement is made for individuals being held pursuant to U.S.
criminal or immigration laws. The McCain Amendment does not require non-DOD
agencies, such as non-military intelligence and law enforcement agencies, to employ
Field 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.3 At the time the McCain Amendment was enacted, FM 34-52
also contained 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, were 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.”4 In applying these
standards, the Field Manual required soldiers to adhere to the Geneva Convention’s
prohibition against “cruel treatment and torture” and “[o]utrages upon personal
dignity, in particular, humiliating and degrading treatment.”5
The McCain Amendment does not prevent DOD from subsequently amending
the Field Manual. As discussed later, an updated version of the Army Field Manual
was released on September 6, 2006. The 2006 Manual contains general requirements
that are similar to those in the earlier version of the Manual, requiring all detainees
to be treated in a manner consistent with the Geneva Conventions, and prohibiting
the use of torture or cruel, inhuman, and degrading treatment in any circumstance.
It further provides that the only authorized interrogation techniques or approaches are
those included in the Manual.
2 P.L. 109-148, Title X, § 1002 (2005); P.L. 109-163, Title XIV, § 1402 (2006).
3 At the time the McCain Amendment was enacted, the Field Manual provisions concerning
interrogation had last been revised in 1992. Department of the Army Field Manual 34-52,
Intelligence Interrogation (1992), available at [http://www4.army.mil/ocpa/reports/Army
IGDetaineeAbuse/FM34-52IntelInterrogation.pdf] [hereafter “1992 FM”]. An updated and
revised Field Manual was released on September 6, 2006. Department of the Army Field
Manual 34-52, Human Intelligence Collector Operations (2006) [hereafter “2006 FM”],
available at [http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/dod/armyfm2223human
intel.pdf].
4 1992 FM, supra note 3.
5 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.
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Prohibition on Cruel, Inhuman, or Degrading Treatment or
Punishment
The second provision of the McCain Amendment prohibits persons in the
custody or control of the U.S. government, regardless of their nationality or physical
location, from being subjected to “cruel, inhuman, or degrading treatment or
punishment.”6 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 the McCain Amendment, this provision covers not only DOD activities,
but also intelligence and law enforcement activities occurring both inside and outside
the United States. This provision does not appear to prohibit U.S. agencies from
transferring persons to other countries where those persons would face “cruel,
inhuman, or degrading treatment or punishment,” so long as such persons were no
longer in U.S. custody or control. However, such transfers might nonetheless be
limited by applicable treaties and statutes.7 The McCain Amendment 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.”8
In interpreting whether treatment falls below this standard, the McCain
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).9 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 prohibited under the Fifth, Eighth,
and/or Fourteenth Amendments.10 However, noncitizens arguably only receive
constitutional protections after they have entered the United States.11
6 P.L. 109-148, Title X, § 1003; P.L. 109-163, Title XIV, § 1402.
7 See CRS Report RL32890, Renditions: Constraints Imposed by Laws on Torture, by
Michael John Garcia.
8 P.L. 109-148, Title X, § 1003; P.L. 109-163, Title XIV, § 1402.
9 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) [hereafter “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.
10 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.”).
11 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
(continued...)
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The McCain Amendment 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, Eighth, and Fourteenth Amendments, regardless of their
geographic location or nationality. Accordingly, it appears that the McCain
Amendment is intended to ensure that persons in U.S. custody or control abroad
cannot be subjected to treatment that would be deemed unconstitutional if it occurred
in the United States.12
The scope of the 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 the McCain
Amendment 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. Courts have recognized that
circumstances often determine whether conduct “shocks the conscience” and violates
11 (...continued)
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).
Whether the Rasul ruling meant only that federal habeas jurisdiction extended to
Guantanamo, or more broadly found that non-citizens detained at Guantanamo possessed
constitutional rights, has been subject to conflicting rulings by district courts. Compare
Khalid v. Bush, 355 F. Supp.2d 311 (D.D.C. 2005) (holding that while federal habeas statute
covers Guantanamo detainees, non-citizens detained there do not receive constitutional
protections) with In re Guantanamo Detainees, 355 F. Supp.2d 443 (D.D.C. 2005) (reading
Rasul to mean that persons detained at Guantanamo are owed constitutional protections).
For further information, see CRS Report RS22173, Detainees at Guantánamo Bay, by
Jennifer Elsea.
12 The McCain Amendment also appears aimed at resolving controversy concerning U.S.
implementation of CAT Article 16, which obligates CAT parties to prevent cruel, inhuman,
or degrading treatment or punishment within territories under their jurisdiction. When the
U.S. ratified CAT, it did so with the reservation that the “cruel, inhuman, or degrading
treatment or punishment” prohibited by CAT covered only those types of actions prohibited
by the U.S. Constitution. There is some legal dispute as to whether CAT Article 16, as read
in light of U.S. reservations, applies to non-citizens held outside the United States. For
further background, see CRS Report RL32438, U.N. Convention Against Torture (CAT):
Overview and Application to Interrogation Techniques, by Michael John Garcia.
13 The Eighth 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, e.g, Rochin v. California, 342 U.S. 165 (1952).
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a person’s due process rights.14 Accordingly, a U.S. court might employ a different
standard to determine whether interrogation techniques employed against a criminal
suspect are unconstitutionally harsh than it would use to assess whether those same
techniques were unconstitutional if employed against an enemy combatant in a war
zone.
Nevertheless, types of treatment in a criminal law context that have been
deemed prohibited under the Fifth, Eighth, and Fourteenth Amendments may be
instructive to a reviewing court. A sampling might include, inter alia:
! 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”;15
! maintaining temperatures and ventilation systems in detention
facilities that fail to meet reasonable levels of comfort;16 and
! prolonged interrogation over an unreasonably extended period of
time,17 including interrogation of a duration that might not seem
unreasonable in a vacuum, but becomes such when evaluated in the
totality of the circumstances.18
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:
14 E.g., County of Sacramento v. Lewis, 523 U.S. 833, 850-851 (1998) (noting that conduct
that shocks in one circumstance might not be considered so egregious in another); Miller
v. City of Philadelphia, 174 F.3d 368, 375 (3rd Cir.1999) (“The exact degree of wrongfulness
necessary to reach the ‘conscience-shocking’ level depends upon the circumstances of a
particular case”). Nevertheless, there may be some actions which are constitutionally
prohibited no matter what the circumstance. See Lewis, 523 U.S. at 856 (1998) (Kennedy,
J., concurring).
15 Hope v. Pelzer, 536 U.S. 730 (2002).
16 Chandler v. Crosby, 379 F.3d 1278 (11th Cir. 2004).
17 Haynes v. Washington, 373 U.S. 503 (1963). See also Greenwald v. Wisconsin, 390 U.S.
519 (1968); Davis v. North Carolina, 384 U.S. 737 (1966) (holding that confession of
escaped convict held incommunicado for 16 days was involuntary, even though he was
interrogated only an hour each day he was held).
18 See 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).
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! 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;19
! solitary or isolated confinement, so long as such confinement is
within a cell in acceptable condition and is not of an unreasonable
duration;20 and
! in detention situations, the use of constant lighting in prisoner cells
when the detainees’ inconvenience and discomfort is outweighed by
the need to protect safety and welfare of the other detainees and
staff.21
Again, it is not 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.
On September 6, 2006, the Army released an updated version of the Field
Manual that implements the requirements of the McCain Amendment. The Manual
prohibits cruel, inhuman, and degrading treatment. Eight techniques are expressly
prohibited from being used in conjunction with intelligence interrogations:
! forcing the detainee to be naked, perform sexual acts, or pose in a
sexual manner;
! placing hoods or sacks over the head of a detainee; using duct tape
over the eyes;
! applying beatings, electric shock, burns, or other forms of physical
pain;
! waterboarding;
! using military working dogs;
! inducing hypothermia or heat injury;
! conducting mock executions; and
! depriving the detainee of necessary food, water, or medical care.22
In addition, the Manual restricts the use of certain other interrogation
techniques, but these restrictions may be due to other legal obligations besides those
imposed by the McCain Amendment.23
19 Rhodes v. Chapman, 452 U.S. 337 (1981).
20 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.
21 Shanks v. Litscher, 02-C-0064-C, 2003 U.S. Dist. Lexis 24590 (W.D. Wis. Jan. 29, 2003).
22 2006 FM, supra note 3, at 5-75.
23 The Manual provides that three interrogation techniques may only be used with higher-
level approval: (1) “Mutt and Jeff”, a good-cop, bad-cop interrogation tactic where a
detainee is made to identify with the more friendly interrogator; (2) “false flag,” where a
(continued...)
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Protection of U.S. Personnel Engaged in Authorized
Interrogations
The conference committees established to resolve differences between the
House- and Senate-passed versions of the defense appropriations and authorization
bills inserted an additional provision into the McCain Amendment, providing certain
legal protections and assistance to U.S. personnel engaged in authorized
interrogations.24 As modified, the McCain Amendment provides a legal defense to
U.S. personnel in any civil or criminal action brought against them on account of
their participation in the authorized interrogation of suspected foreign terrorists. The
amendment specifies that a legal defense exists to civil action or criminal prosecution
when the U.S. agent “did not know that the [interrogation] practices were unlawful
and a person of ordinary sense and understanding would not know the practices were
unlawful.” A good faith reliance on the advice of counsel is specified to be “an
important factor, among others, to consider in assessing whether a person of ordinary
sense and understanding would have known the practices to be unlawful.” The
McCain Amendment further states that the specification of a “good-faith” defense
neither extinguishes any other defenses available to U.S. personnel nor accords such
personnel with immunity from criminal prosecution.
In addition, the McCain Amendment permits the U.S. government to employ
legal counsel for and pay the court costs of U.S. personnel in any legal actions
brought against them in foreign judicial tribunals and administrative agencies on
account of such persons’ participation in authorized interrogations.
Recent Legislative Developments
In the 2006 case of Hamdan v. Rumsfeld,25 the Supreme Court rejected the Bush
Administration’s long-standing position that Common Article 3 of the 1949 Geneva
Conventions was inapplicable to the present armed conflict with Al Qaeda. Among
other things, Common Article 3 prohibits protected persons from being subjected to
violence, outrages upon personal dignity, torture, and cruel or degrading treatment.
As a result of the Court’s ruling in Hamdan, questions arose regarding permissible
interrogation tactics that could be used against Al Qaeda suspects, and whether U.S.
personnel could face criminal liability for the harsh interrogation of such persons
23 (...continued)
detainee is made to believe he is being held by another country known to subject prisoners
to harsh interrogation; and (3) separation, by which detainees are separated so that they
cannot coordinate their stories. Separation may not be used against “lawful combatants,”
as this tactic is prohibited under the 1949 Geneva Convention Relative to the Treatment of
Prisoners of War, but is permitted in some circumstances against unlawful combatants. Id.
at Appendix M.
24 P.L. 109-148, Title X, § 1004; P.L. 109-163, Title XIV, § 1404.
25 126 S.Ct. 2749 (2006).
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under the War Crimes Act,26 which made it a criminal offense to commit any
violation of Common Article 3. Several bills introduced in response to the Hamdan
decision contained provisions that referenced the McCain Amendment. One of these
proposals, S. 3930, the Military Commissions Act of 2006 (P.L. 109-366), was
signed into law on October 17, 2006.27
With respect to criminal conduct, the Military Commissions Act amends the
War Crimes Act provisions concerning Common Article 3, so that only specified
violations would be punishable (as opposed to any Common Article 3 violation, as
was previously the case). The Military Commissions Act criminalizes torture and
certain less severe forms of cruel treatment against persons protected by Common
Article 3,28 but it does not criminalize all conduct that violates the standards of the
McCain Amendment (i.e., cruel, inhuman, or degrading treatment of the kind
26 18 U.S.C. § 2441. For background on the War Crimes Act and the amendments made to
it by the Military Commissions Act of 2006 (S. 3930; P.L. 109-366), see CRS Report
RL33662, The War Crimes Act: Current Issues, by Michael John Garcia.
27 On September 6, 2006, the Bush Administration submitted draft legislation to Congress
authorizing military commissions to try detainees, amending the War Crimes Act, and
specifying conduct complying with Common Article 3. White House Press Release, Fact
Sheet: The Administration’s Legislation to Create Military Commissions (Sept. 6, 2006),
available at [http://www.whitehouse.gov/news/releases/2006/09/20060906-6.html]; Draft
Legislation, Military Commissions Act of 2006, available at [http://www.law.georgetown
.edu/faculty/nkk/documents/MilitaryCommissions.pdf]. In response, several legislative
proposals were thereafter introduced concerning these matters, including S. 3901, the
Military Commissions Act of 2006, introduced by Senator John Warner; S. 3861, the
Bringing Terrorists to Justice Act of 2006 and S. 3886, the Terrorist Tracking,
Identification, and Prosecution Act of 2006, both introduced by Senator Bill Frist; and H.R.
6054, the Military Commissions Act of 2006, introduced by Representative Duncan Hunter.
S. 3861, S. 3886, and H.R. 6054 were largely identical to the draft legislation proposed by
the Bush Administration, while S. 3901 somewhat differed. Soon thereafter, three other
bills were introduced: S. 3929 and S. 3930, which were both entitled the Military
Commissions Act of 2006 and were introduced by Senator Mitch McConnell; and H.R.
6166, also entitled the Military Commissions Act of 2006, which was introduced by
Representative Duncan Hunter. Reportedly, S. 3929/S. 3930 and H.R. 6166 reflected an
agreement reached by the Bush Administration and certain lawmakers to resolve differences
in the approach taken by S. 3901 and that taken by S. 3861, S. 3886, and H.R. 6054. Kate
Zernike & Sheryl Gay Stolberg, Differences Settled in Deal Over Detainee Treatment, NY
TIMES, Sept. 23, 2006, at A9. H.R. 6166 was passed by the House on September 27, 2006,
while S. 3930 was passed by the Senate on September 28, 2006, and by the House on
September 29, 2006. Although the provisions of S. 3929/S. 3930 and H.R. 6166 were largely
similar, there were initially some differences between the bills. However, S. 3930 was
subsequently amended so that it contained the same provisions as House-passed H.R. 6166,
and this amended version of S. 3930 was thereafter passed by the House and Senate and
enacted as P.L. 109-366.
28 For purposes of international law, “torture” is considered a particularly severe form of
cruel or inhumane treatment. See CRS Report RL32438, U.N. Convention Against Torture
(CAT): Overview and Application to Interrogation Techniques, by Michael John Garcia, at
2, 17-18.
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prohibited under the Fifth, Eighth, and Fourteenth Amendments).29 The Military
Commissions Act also retroactively applies the McCain Amendment’s provision
establishing a defense for U.S. personnel relating to the authorized treatment of
detainees, so that defense could be employed by U.S. personnel charged with a War
Crimes Act offense based on conduct that occurred between September 11, 2001,
and December 30, 2005.
The Military Commissions Act also includes provisions concerning authorized
conduct under Common Article 3 more generally. Under U.S. treaty obligations,
U.S. personnel cannot commit any violation of Common Article 3, even though the
Military Commissions Act amends the War Crimes Act so that U.S. personnel would
only be subject to criminal penalty for severe violations of Common Article 3. The
Military Commissions Act provides that it is generally a violation of Common
Article 3 to engage in conduct (1) inconsistent with the McCain Amendment or (2)
enumerated in the War Crimes Act, as amended by the Military Commissions Act,
as constituting a “grave breach” of Common Article 3. It should be noted that most,
if not all, activities specified by the War Crimes Act, as amended, as “grave
breaches” of Common Article 3 (e.g., rape, murder, torture, cruel treatment) are
probably already be impermissible under McCain Amendment standards.
Additionally, the McCain Amendment arguably imposes less stringent requirements
concerning the treatment of detainees than the plain text of Common Article 3, and
may permit U.S. personnel to engage in more aggressive means of interrogation than
Common Article 3 might otherwise allow.30
The Military Commissions Act also authorizes the President, pursuant to an
Executive Order published in the Federal Register, to more restrictively interpret the
meaning and application of Convention requirements and promulgate administrative
regulations implementing this interpretation. Although the President is generally
permitted to interpret the Geneva Conventions so as to enlarge the scope of conduct
deemed not to violate them, the Act does not permit the President to interpret and
apply the Conventions so as to permit “grave breaches.” Presidential interpretations
of the Conventions are deemed authoritative (if published and concerning non-grave
breaches) as a matter of U.S. law to the same degree as other administrative
regulations, though judicial review of such interpretations might be more limited.31
29 See CRS Report RL33662, supra note 26, at 6-8. One proposal considered by the 109th
Congress, S. 3901, would have amended the War Crimes Act to expressly criminalize
treatment of persons protected under Common Article 3 that violated McCain Amendment
standards.
30 For example, it is unclear whether the McCain Amendment’s prohibition upon “cruel,
inhuman, and degrading treatment” is coextensive with Common Article 3’s restrictions on
“violence against the person” and “outrages upon personal dignity.”
31 The Military Commissions Act prohibits the Geneva Conventions from being invoked in
habeas or civil proceedings to which the United States or a current or former agent of the
United States is a party. This bar could be interpreted in a fashion that would prevent any
judicial challenge to the interpretation and application of the Conventions except in criminal
proceedings. Persons might still be able to indirectly challenge the application of the
Conventions in some non-criminal cases, to the extent that Convention provisions are
(continued...)
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The Military Commissions Act amends the McCain Amendment to require the
Federal Government to provide or employ counsel and pay fees related to any
prosecution or civil action against U.S. personnel for authorized detention or
interrogation activities.
In addition, the Act includes a provision restating the McCain Amendment’s
prohibition on cruel, inhuman, and degrading treatment or punishment of persons
under the detention, custody, or control of the U.S. Government. It further requires
the President to establish administrative rules and procedures ensuring compliance
with this provision. Accordingly, it would appear that detainees are required in all
circumstances to be treated in a manner consistent with McCain Amendment
standards, even if the President interprets the Geneva Conventions as not requiring
such treatment.
31 (...continued)
incorporated into another source of law that may be invoked in a judicial proceeding.