Detainee Treatment Act - Criticism

Criticism

The Act sets the Army's standards of interrogation as the standard for all agencies in the Department of Defense. It further prohibits all other agencies of the U.S. government, such as the CIA, from subjecting any person in their custody to "cruel, inhuman, or degrading treatment or punishment." However, the Act does not provide detailed guidelines that spell out the meaning of that phrase. In an effort to provide clarification, Congress passed legislation in 2008 to similarly constrain the intelligence community to the Field Manual's techniques. McCain voted against this bill and recommended that President Bush follow through on his threat to veto it, arguing that the CIA already could not engage in torture but should have more options than afforded to military interrogators. That bill was passed by both chambers of Congress but, once vetoed, failed to pass with sufficient votes to override the executive veto.

The Detainee Treatment Act cited the U.S. Army's Field Manual on interrogation as the authoritative guide to interrogation techniques, but did not cite a specific edition of the Manual. The contents of the Manual are controlled by the Department of Defense, and thus the executive branch controls whether a given technique will be permitted or banned. The Manual has been revised since the Amendment became law. The Department of Defense has claimed that none of the techniques permitted by the new Field Manual 2-22.3 are classified.

Also, the Detainee Treatment Act's anti-torture provisions were modified by the Graham-Levin Amendment, which was also attached to the $453-billion 2006 Defense Budget Bill. The Graham-Levin Amendment permits the Department of Defense to consider evidence obtained through torture of Guantanamo Bay detainees, and expands the prohibition of habeas corpus for redetainees, which subsequently leaves detainees no legal recourse if they are tortured.

Critics say these two actions deflate the Detainee Treatment Act from having any real power in stopping torture by the United States government, and these were the true reasons why President Bush and McCain "conceded" to Congressional demands. The mainstream media credited their concession to "overwhelming Congressional support" for the measure.

Amnesty International claims that the amendment's loopholes actually signal that torture is now official US policy.

Criticisms have also been directed at Senators Lindsey Graham and Jon Kyl for their amicus curiae brief filed in the Hamdan v. Rumsfeld case, in which they argued that the Detainee Treatment Act's passage sufficed to deny the Supreme Court jurisdiction over the case. Language in the Congressional Record that the majority opinion cites was inserted into the Record for the day on which the amendment passed by Graham and Kyl after the legislation had already been enacted, and furthermore that the language in question was worded in such a manner as to imply it had been recorded in live debate. The revised Record contains such phrasing as Kyl's "Mr. President, I see that we are nearing the end of our allotted time" and Sen. Sam Brownback's "If I might interrupt". Brownback has not responded to press inquiries. Justice Scalia's dissent noted this as an example of his longstanding hostility to the use of legislative history. Scalia wrote:

Worst of all is the Court’s reliance on the legislative history of the DTA to buttress its implausible reading ... These statements were made when Members of Congress were fully aware that our continuing jurisdiction over this very case was at issue. ... The question was divisive, and floor statements made on both sides were undoubtedly opportunistic and crafted solely for use in the briefs in this very litigation. ... he handful of floor statements that the Court treats as authoritative do not “reflec any general agreement” hey reflect the now-common tactic — which the Court once again rewards — of pursuing through floor-speech ipse dixit what could not be achieved through the constitutionally prescribed method of putting language into a bill that a majority of both Houses vote for and the President signs.

— (Emphases in original)