Order Code RL33655
Interrogation of Detainees:
Overview of the McCain Amendment
Updated December 11, 2007
Michael John Garcia
Legislative Attorney
American Law Division
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, Title X), and the
National Defense Authorization Act for FY2006 (P.L. 109-163, Title XIV). 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 (MCA) (P.L. 109-366), which contains
provisions that reference or amend the McCain Amendment, along with the
Executive Order signed by President Bush that references MCA and McCain
Amendment standards when describing guidelines for the treatment of detainees by
the Central Intelligence Agency (CIA). For a discussion of the provisions in the DTA
that limit judicial review of challenges to U.S. detention policy, see CRS Report
RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal
Court, by Jennifer K. Elsea and Kenneth R. Thomas.
Finally, this report briefly describes legislation introduced in the 110th Congress
that references interrogation standards or requirements initially established by the
McCain Amendment. Discussed legislation includes H.R. 2082, the Intelligence
Authorization Act for Fiscal Year 2008, as reported out of conference on December
6, 2007, and H.R. 4156, the Orderly and Responsible Iraq Redeployment
Appropriations Act, 2008, which was passed by the House on November 14, 2007.
Both bills would bar the CIA and other intelligence agencies from employing any
interrogation tactic that is not authorized by the Army Field Manual, effectively
prohibiting these agencies from employing certain harsh interrogation techniques,
including waterboarding, regardless of whether those techniques had otherwise been
deemed legally permissible. The White House has indicated that the President would
veto legislation requiring the CIA to use only those interrogation techniques
authorized under the Army Field Manual.
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 . . . . . . . 8
Effects of Hamdan v. Rumsfeld and the MCA . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Post-MCA Developments Regarding the Treatment of Detainees . . . . . . . 11
Recent Legislative Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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 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 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 The Field Manual
establishes procedures for the treatment and questioning of persons by military
personnel.3 Prior to the enactment of the McCain Amendment, DOD had authorized
certain interrogation techniques for possible use in the interrogation of security
detainees whom the Administration had deemed to be ineligible for prisoner of war
status under the Geneva Conventions — namely, Taliban fighters designated as
“unlawful combatants” and members of Al Qaeda. These techniques were more
aggressive than those authorized by the Army Field Manual, and were prohibited
from being used against lawful prisoners of war.4
Though the McCain Amendment generally requires the interrogation of persons
in DOD custody to be consistent with Field Manual requirements, an exception 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 McCain Amendment does not prevent DOD from subsequently amending
the Field Manual. As discussed later, an updated version of the Army Field 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
3 4 - 5 2 , I N T E L L I G E N C E I N T E R R O G A T I O N ( 1 9 9 2 ) , a v a i l a b l e a t
[http://www4.army.mil/ocpa/reports/ArmyIGDetaineeAbuse/FM34-52IntelInterrogation.pdf]
(hereinafter “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) (hereinafter “2006 FM”), available at
[http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/dod/armyfm2223humanintel.pdf].
4 In December 2002, the Department of Defense approved several new techniques for
possible use in the interrogation of suspected Al Qaeda and Taliban fighters, who were
deemed ineligible for lawful prisoner of war status under the 1949 Geneva Conventions.
These techniques were more aggressive than those authorized for use against lawful
prisoners of war, and included, among other things, (1) hooding and other sensory
deprivation; (2) the use of stress positions, including forced standing for a maximum of four
hours; (3) stripping detainees of their clothes; (4) removing religious objects belonging to
detainees; and (5) using dogs to intimidate detainees. Memorandum from William Haynes
II, General Counsel of the Department of Defense, Re: Counter-Resistance Techniques,
November 22, 2002, available at [http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/
02.12.02.pdf]. In early 2003, authorization to employ most of these additional techniques
was rescinded following internal military criticism, though some interrogation techniques,
including sensory deprivation and environmental manipulation, remained permissible upon
high-level approval. FINAL REPORT OF THE INDEPENDENT PANEL TO REVIEW DOD
DETENTION OPERATIONS at 7, Appendix D (August 2004), available at [http://www.
defenselink.mil/news/Aug2004/d20040824finalreport.pdf].
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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.
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.”5 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.6 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.”7
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).8 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
5 P.L. 109-148, Title X, § 1003; P.L. 109-163, Title XIV, § 1402.
6 See CRS Report RL32890, Renditions: Constraints Imposed by Laws on Torture, by
Michael John Garcia.
7 P.L. 109-148, Title X, § 1003; P.L. 109-163, Title XIV, § 1402.
8 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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Fourteenth Amendments.9 However, noncitizens arguably only receive constitutional
protections after they have entered the United States.10
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.11
The scope of the Fifth, Eighth, and Fourteenth Amendment prohibitions upon
harsh treatment or punishment is subject to evolving case law interpretation and
9 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.”).
10 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”); In re Iraq and Afghanistan
Detainees Litigation, 479 F.Supp.2d 85 (D.D.C.,2007) (finding that aliens detained in
Afghanistan and Iraq did not have Fifth Amendment right to be protected from torture
allegedly inflicted by U.S. military personnel). 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). 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 courts. In June 2007, the Supreme Court granted certiorari
to hear the consolidated cases of Boumediene v. Bush and Al Odah v. United States, which
concern the availability of habeas and constitutional protections to persons detained in
Guantanamo. See Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), cert. granted by 127
S.Ct. 3078 (2007); Al Odah v. United States, 476 F. 3d 981 (D.C. Cir. 2007), cert. granted
by 127 S.Ct. 3067 (2007). For further discussion, see CRS Report RL33180, Enemy
Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea
and Kenneth R. Thomas.
11 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.
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constant legal and scholarly debate.12 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
a person’s due process rights.13 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”;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
12 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).
13 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).
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 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).
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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 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.20
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;
17 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).
18 Rhodes v. Chapman, 452 U.S. 337 (1981).
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. January 29,
2003).
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! 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.21
In addition, the Manual restricts the use of other interrogation techniques, but
these restrictions may be due to other legal obligations besides those imposed by the
McCain Amendment.22
In October 2007, the New York Times reported that in early 2005, the
Department of Justice issued a legal opinion, which remains classified, authorizing
the use of certain harsh interrogation techniques against terrorist suspects, including
head-slapping, simulated drowning (waterboarding), and exposure to frigid
temperatures.23 Later that year, as Congress considered enactment of the McCain
Amendment, the DOJ reportedly issued another classified opinion declaring that
these techniques would not be barred under the McCain Amendment, at least when
employed against terrorist suspects with crucial information regarding a future
terrorist attack.24 According to the New York Times, the memorandums “remain in
effect, and their legal conclusions have been confirmed by several more recent
memorandums” that are not publicly available.25 The opinions have been the subject
of controversy, with some Members of Congress disputing their legal conclusions
and claiming that they had been unaware of the opinions’ existence at the time the
McCain Amendment was considered.26 For its part, the White House has claimed
21 2006 FM, supra note 3, at 5-75.
22 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
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.
23 Scott Shane, et al., Secret U.S. Endorsement Of Severe Interrogations, NY TIMES, October
4, 2007, at A1.
24 Id.
25 Id.
26 David Johnson and Scott Shane, Debate Erupts On Techniques Used by C.I.A., NY TIMES,
October 5, 2007, at A1. The McCain Amendment does not describe the type of interrogation
techniques that were believed to constitute “cruel, inhuman, or degrading treatment.”
During Senate consideration of the legislation, Senator Richard Durbin, a co-sponsor of the
McCain Amendment, suggested that waterboarding, exposure to frigid temperatures, and
sleep deprivation were “examples of conduct that is clearly prohibited by the McCain
(continued...)
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that appropriate congressional committees or Members were informed about
interrogation techniques that had been approved by the Administration.27
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 legal
protections and assistance to U.S. personnel engaged in authorized interrogations.28
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 originally permitted 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. The Military
Commissions Act of 2006 (MCA, P.L. 109-366) subsequently amended 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.29
26 (...continued)
[A]mendment.” 151 CONG.REC. S14274 (December 21, 2005).
27 See Sheryl Gay Stolberg, Bush Says Interrogation Methods Aren’t Torture, NY TIMES,
October 6, 2007, at A1 (quoting President Bush as stating that approved interrogation
techniques were “fully disclosed” to appropriate Members); White House Office of the
Press Secretary, Press Briefing by White House Press Secretary Dana Perino, October 5,
2007, available at [http://www.whitehouse.gov/news/releases/2007/10/20071005-4.html]
(claiming that appropriate congressional committees were “fully briefed” regarding
approved interrogation methods).
28 P.L. 109-148, Title X, § 1004; P.L. 109-163, Title XIV, § 1404.
29 P.L. 109-366, § 8(a) (2006).
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Effects of Hamdan v. Rumsfeld and the MCA
In the 2006 case of Hamdan v. Rumsfeld,30 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
under the War Crimes Act,31 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, the Military Commissions Act of 2006, was signed into law on October
17, 2006.32
With respect to criminal conduct, the MCA amended the War Crimes Act
provisions concerning Common Article 3, so that only specified violations would be
30 126 S.Ct. 2749 (2006).
31 18 U.S.C. § 2441. For background on the War Crimes Act and the amendments made to
it by the MCA, see CRS Report RL33662, The War Crimes Act: Current Issues, by Michael
John Garcia.
32 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 (September 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, September 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.
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punishable (as opposed to any Common Article 3 violation, as was previously the
case).33 While the MCA expressly criminalized torture and certain less severe forms
of cruel treatment against persons protected by Common Article 3,34 it did not
criminalize all conduct that violates the standards of the McCain Amendment (i.e.,
cruel, inhuman, or degrading treatment of the kind prohibited under the Fifth, Eighth,
and Fourteenth Amendments).35 The MCA also retroactively applied 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 (i.e., the date that the McCain
Amendment was enacted).36
The MCA also included 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 MCA amended
the War Crimes Act so that U.S. personnel would only be subject to criminal penalty
for severe violations of Common Article 3. The MCA provided 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
MCA, as constituting a “grave breach” of Common Article 3.37 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 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.38
33 P.L. 109-366, § 6(b).
34 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.
35 See CRS Report RL33662, supra note 31, 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. Similar legislation has been introduced in 110th Congress. See H.R. 1415
(introduced March 8, 2007); S 576 (introduced February 13, 2007).
36 P.L. 109-366, § 8(b). The MCA did not directly amend the McCain Amendment’s
provision providing an affirmative defense to persons who engaged in authorized
interrogations. Accordingly, even though the MCA specifies that the McCain Amendment’s
affirmative defense provision applies retroactively to certain criminal prosecutions, this
specification arguably does not limit the Amendment’s application to other criminal or civil
actions involving authorized interrogation methods.
37 Id., § 6(a).
38 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.”
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The MCA also authorized 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.39 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 did not permit the President to interpret and apply the
Conventions so as to permit “grave breaches.”40 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.41
The MCA amended 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.42
In addition, the act included 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 required
the President to establish administrative rules and procedures ensuring compliance
with this provision.43 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.
Post-MCA Developments Regarding
the Treatment of Detainees
As previously mentioned, the MCA authorizes the President, acting pursuant to
an Executive Order published in the Federal Register, to more restrictively interpret
the meaning and application of Common Article 3 of the Geneva Convention, and
39 P.L. 109-366, § 6(a)(3).
40 Id.
41 The MCA 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 incorporated into another
source of law that may be invoked in a judicial proceeding. The Military Commission Act
also revoked U.S. courts’ jurisdiction to hear habeas corpus petitions by aliens in U.S.
custody as enemy combatants. Id., § 7. The constitutionality of the MCA’s provisions
limiting habeas jurisdiction and prohibiting the Geneva Conventions from being invoked as
a source of rights in judicial proceedings has been subject to legal challenge. For
background and development of recent litigation, see generally CRS Report RL33180,
Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K.
Elsea and Kenneth R. Thomas.
42 P.L. 109-366, § 8(a).
43 Id., § 6(c).
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promulgate administrative regulations implementing this interpretation,44 so long as
these rules do not authorize conduct subject to criminal penalty under the War
Crimes Act.
On July 20, 2007, President Bush signed an Executive Order interpreting
Common Article 3, as applied to the detention and interrogation of certain alien
detainees by the CIA, when those aliens (1) are determined to be members or
supporters of Al Qaeda, the Taliban, or associated organizations; and (2) likely
possess information that could assist in detecting or deterring a terrorist attack
against the United States and its allies, or could provide help in locating senior
leadership within Al Qaeda or the Taliban.45 The Executive Order does not
specifically authorize the use of any particular interrogation techniques with respect
to detainees, but instead bars any CIA detention and interrogation program from
employing certain practices. Specifically, the Order prohibits the use of
! torture, as defined under the Federal Torture Statute (18 U.S.C. §
2340);
! cruel, inhuman, and degrading treatment, as defined under the
McCain Amendment and the MCA;
! any activities subject to criminal penalties under the War Crimes Act
(e.g., murder, rape, mutilation);
! other acts of violence serious enough to be considered comparable
to the kind expressly prohibited under the War Crimes Act;
! willful and outrageous acts of personal abuse done for the purpose
of humiliating or degrading the individual in a manner so serious
that any reasonable person, considering the circumstances, would
deem the acts to be beyond the bounds of human decency, such as
sexual or sexually indecent acts undertaken for the purpose of
humiliation, forcing the individual to perform sexual acts or to pose
sexually, threatening the individual with sexual mutilation, or using
the individual as a human shield; or
! acts intended to denigrate the religion, religious practices, or
religious objects of the individual.
The scope of activity prohibited by the Order is not immediately apparent.
Although some types of conduct barred by the Order are easily recognizable (e.g.,
murder, rape, the performance of sexual acts), it is not readily apparent as to what
interrogation techniques would fall under the Order’s prohibition against acts deemed
to be “cruel, inhuman, and degrading” or “beyond the bounds of human decency.”
Certain interrogation techniques that have been the subject of controversy and are
expressly prohibited from being used by the military under the most recent version
of the Army Field Manual — waterboarding, hooding, sleep deprivation, or forced
standing for prolonged periods, for example — are not specifically addressed by the
44 P.L. 109-366, § 6(a)(3).
45 Executive Order 13340, Interpretation of the Geneva Conventions Common Article 3 as
Applied to a Program of Detention and Interrogation Operated by the Central Intelligence
Agency, 72 FED. REG. 40707 (July 20, 2007). The Executive Order may also be viewed at
[http://www.whitehouse.gov/news/releases/2007/07/20070720-4.html].
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Order. Whether or not such conduct is deemed by the Executive to be barred under
the more general restrictive language of the Order remains unclear.
In a public address on September 7, 2007, CIA director Gen. Michael Hayden
stated that “no one ever claimed that the Army Field Manual exhausted all the lawful
tools that America could have to protect itself,” and suggested that additional
interrogation techniques may be employed by the CIA than are permitted to be used
by DOD personnel.46 Nonetheless, it has been reported that at least some
controversial interrogation techniques have been barred by the CIA. According to
ABC News, waterboarding has not been used by the CIA since 2003, and was
specifically prohibited by Gen. Hayden when he became CIA director in 2006.47
Recent Legislative Developments
In the 110th Congress, several pieces of legislation have been introduced that are
intended to limit the use of certain interrogation techniques against security detainees
by members of the intelligence community. H.R. 2082, the Intelligence
Authorization Act for Fiscal Year 2008, as reported out of conference on December
6, 2007, would generally bar any person, in the custody or effective control of either
an element of the intelligence community or a contractor or subcontractor of the
intelligence community, from being subjected to any treatment or interrogation tactic
not authorized by the Army Field Manual. This prohibition would effectively bar the
CIA and others from employing certain controversial interrogation techniques, such
as waterboarding or sleep deprivation, that are barred by the Army Field Manual,
regardless of whether the intelligence community had previously deemed such
techniques as legally permissible. H.R. 2082 would not prohibit the Army Field
Manual from being revised in the future, meaning that the scope of prohibited
conduct could potentially be modified. H.R. 2082 also contains a provision requiring
the Director of National Intelligence to report to appropriate committees concerning
detention or interrogation methods approved or discontinued following enactment of
the McCain Amendment and MCA, along with the legal basis behind the decision
to approve or rescind authorization of such techniques.
H.R. 4156, the Orderly and Responsible Iraq Redeployment Appropriations Act,
2008, which was passed by the House on November 14, 2007, would generally bar
all federal agencies, including the CIA, from using any treatment or interrogation
tactic that is not authorized or listed by the Army Field Manual. Agencies would still
be permitted to use non-Field Manual standards with respect to any individual being
held pursuant to U.S. criminal or immigration laws. H.R. 4114, introduced by
46 Transcript of Remarks by Central Intelligence Agency Director Gen. Michael V. Hayden
at the Council on Foreign Relations, September 7, 2007, available at [https://www.cia.gov/
news-information/speeches-testimony/general-haydens-remarks-at-the-council-on-foreign-
relations.html] (rush transcript).
47 Brian Ross et al., ABC News, CIA Bans Waterboarding in Terror Interrogations,
September 14, 2007, at [http://blogs.abcnews.com/theblotter/2007/09/cia-bans-water-.html].
ABC subsequently reported that waterboarding had only been used on three Al Qaeda
members. Brian Ross and Richard Esposito, ABC News, Only Three Have Been
W a t e r b o a r d e d b y C I A , N o v e m b e r 2 , 2 0 0 7 , a t
[http://blogs.abcnews.com/theblotter/2007/11/exclusive-only-.html].
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Representative Nadler on November 8, 2007; S. 1943, introduced by Senator
Kennedy on August 2, 2007; and S. 1876, introduced by Senator Biden on July 5,
2007, would impose similar requirements. However, S. 1943 would also
independently bar the use of the eight techniques described in the 2006 Field Manual
as constituting “cruel, inhuman, or degrading treatment.”48
S. 576, introduced by Senator Dodd on February 13, 2007, and a companion
bill, H.R. 1415, introduced by Representative Nadler on March 8, 2007, would
modify MCA and War Crimes Act provisions concerning the interrogation of
detainees. Among other things, both bills would amend the War Crimes Act to
criminalize treatment of protected persons which violated McCain Amendment
standards, or which denied such persons the right to be tried for war crimes before
a regularly constituted court. The two bills would also amend the MCA by requiring
the President to notify Geneva Convention parties that the United States expects U.S.
persons detained in a conflict not of an international character to be treated in a
manner consistent with U.S. interpretation and application of Common Article 3.
The White House has indicated that the President would veto legislation
requiring the CIA to use only those interrogation techniques authorized under the
Army Field Manual. In a statement released on November 16, 2007, the White
House claimed that such legislation would “jeopardize the safety of the American
people by undermining the CIA’s enhanced interrogation program, which has helped
the United States capture senior al Qaeda leaders and disrupt multiple attacks against
the homeland.”49 The White House also alleged that legislation requiring all security
detainees to be treated in accordance with Field Manual provisions would not be
“consistent with the President’s obligation to take all lawful measures to protect the
citizens of the United States from future attacks.”50
48 See supra at 6-7.
49 Executive Office of the President, Statement of Administration Policy: H.R. 4156 —
Making Emergency Supplemental Appropriations for the Department of Defense for the
Fiscal Year Ending September 30, 2008, and for other purposes, November 16, 2007,
available at [http://www.whitehouse.gov/omb/legislative/sap/110-1/hr4156sap-h.pdf].
50 Id.