Overcoming NDAA Hysteria with A Straightforward Factual Application of the Detainee Treatment Act (2005) and Other Domestic Laws and International Treaties.
Since the recent signing of the NDAA by President Obama, there has been a significant amount of Internet hysteria over the implications of what it does and does not mean to the Creator endowed, unalienable rights to life, liberty and the pursuit of happiness acknowledged in the Declaration of Independence and secured to each American in the Bill of Rights (Articles I through Article IX, inclusive). It is very important for all Americans to remain vigilant against any incursion, purported modification or pretended limitation of these unalienable rights, regardless of legislative motive, whether to prevent or police terrorism under alleged war-time exigencies or otherwise. It is also very important to remain calm and informed about what is a real threat to liberty and what is not.
In another post at this site, President Obama’s December 31, 2011, Signing Statement was recently provided and discussed in the context of the NDAA. This is one of several continuations of that post
Knowledge is power and an informed citizenry is the only real protection and security which exists to shed light upon threats to our Creator endowed, unalienable rights to life, liberty and the pursuit of happiness. To that end, this post has been compiled and delivered.
Select References Used in the Post Include:
Appendix 1 below is John MCain’s May 11, 2011 eloquent speech on the import of the National Defense Authorization Act of 2011 (NDAA) as not changing very specific protections provided to Americans in the Detainee Treatment Act of 2005. This speech is provided to give a brief context surrounding the NDAA and the fact that it has not superseded the Detainee Treatment Act codified at, among other places: 18 U.S.C. 2340–2340A, 18 U.S.C. Sections 1001 -1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, nor does it extricate or exempt America from its treaty obligations under all provisions of the Convention Against Torture, adopted in 1984 and ratified by 146 countries. [See also Germany: Human Rights Watch Submission to the United Nations Committee against Torture, Human Rights Watch, October 17, 2011]
Appendix 2 signed by the United States on April 18, 1988 and ratified on October 21, 1994. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Appendix 3 “The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens” By Michael Garcia, Legislative Attorney, American Law Division, UPDATED April 4, 2066.
Appendix 4 (provided at the end of this post) below sets out the debate on the Senate floor in December 2011 regarding the NDAA and the Detainee Treatment Act.
Appendix 5 (provided at the end of this post) below sets out the express response of the United States to the UNITED NATIONS in 1996 concerning rights and remedies for violations of unalienable, fundamental rights of Americans: COMMISSION ON HUMAN RIGHTS, Fifty-second session, Item 8 of the provisional agenda, Economic and Social Council – GENERAL, E/CN.4/1996/29/Add.2 — 18 January 1996 — Original: ENGLISH, QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO ANY FORM OF DETENTION OR IMPRISONMENT, Right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms
Brief Analysis:From the inception, it should e pointed out that the Detainee Treatment Act of 2005 plays a prominent role in this post. Before getting into the meat of this discussion, it should be pointed out that there is a material discrepancy and variance between Sections 1003 (a)-(d) of Enrolled Bill:
Department of Defense Appropriations Act, 2006 (Enrolled Bill [Final as Passed Both House and Senate] – ENR)and the text of 18 U.S.C. Sections 2340A. The material variance is in the language pf Section 2340 from Section 1002-1003 of the enrolled Bill, in that Section 2340A purpots to limit the “reach” of the enrolled Bill excluding the United States from it’s application. This language: “Whoever outside the United States commits or attempts to commit …” is not to be found in the Enrolled Bill of Pub.L. 108-775, H.R. 2863. A simple comparison of the two side by side confirms this statement. When such a material variance occurs, the actual statute is legal evidence of the law over a conflicting codification found in the United States Code. 1 U.S.C. Section 112 (61 Stat. 633, See Leg.History here).
“…The United States Statutes at Large shall be legal evidence of laws, concurrent resolutions, treaties, international agreements other than treaties, proclamations by the President, and proposed or ratified amendments to the Constitution of the United States therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.”
SOURCE: “Is this provision a fact to file away for a game on legal trivia? Not by a long shot. The evidentiary value of United States Statues at Large is important for legal analysis, writing, and advocacy of all kinds and may well affect the outcome of a case. How to Find the Law, Cohen, Berring, & Olson (West Publishing Co. 1989) contains an informative discussion of the distinction between the “positive law” contained in the United States Statutes at Large as opposed to the “prima facie” law in many of the Titles of the United States Code.
Cohen, Berring & Olson cite some cases where the distinction has been critical to the outcome of the case. Rayer’s Inc. v. United States, 265 F.2d 615 (3d Cir. 1959) reminds us that editors, publishers, and printers are not perfect. In this case, the compilers of the United States Code printed a portion of a bill that was excised upon final passage. United States Statutes at Large got it right.
The court in a later case, Abell v. United States, 518 F.2d 1369, 1376 (Ct. Cl. 1965), held that even if a title of the United States Code has been re-enacted as “positive law,” if its provisions conflict with the United States Statutes at Large, the latter will prevail. The Abell court relied upon United States v. Welden, 377 U.S. 95 (1964). (Some titles of the United States Code have been reenacted as “positive law.” 1 U.S.C. § 204. A list designating titles containing “positive law” is found in the front of each United States Code volume.)
Stephan v. United States, 319 U.S. 423 (1943) “The fact that the words of 18 U.S.C. § 681 have lingered on in the successive editions of the United States Code is immaterial. By 1 U.S.C. § 54(a), the Code establishes “prima facie” the laws of the United States. But the very meaning of “prima facie” is that the Code cannot prevail over the Statutes at Large when the two are inconsistent. Cf. Warner v. Goltra, 293 U. S. 155, 293 U. S. 161; Cloverleaf Butter Co. v. Patterson, 315 U. S. 148, 315 U. S. 164 n. 16.”
These cases turn on close interpretation of the original bills and their amendments. Therefore, if you are contemplating an issue of federal law that contains complicated amendments, it may be worth the time to seek out the provisions of the actual bill as signed by the President. Since the paper editions of United States Statutes at Large are not published promptly and may lag several legislative sessions behind the one most recently completed, electronic databases can provide updated information to fill the paper gap. Westlaw, Lexis-Nexis, and Congressional Information Service (CIS) are subscription services that contain Public Law databases.
It is quite clear from the portions of the NDAA emphasized in bold faced font immediately below, that all protections afforded Americans remain intact and unaffected under or by virtue of their unalienable rights to life, liberty and the pursuit of happiness as expressed in the Declaration of Independence and as secured under the Bill of Rights (Articles I- Article IX, inclusive); and further described in the Detainee Treatment Act (2005) codified at, among other places: 18 U.S.C. 2340–2340A, and 18 U.S.C. Sections 1001 -1003 of the Detainee Treatment Act of 2005, and 42 U.S.C. 2000dd, and as further described in America’s treaty obligations under all provisions of the Convention Against Torture, adopted in 1984 and ratified by 146 countries. More specifically, with reference to the express requirements of the Detainee Treatment Act (2005), the 2011 NDAA did and does not:
…specifically repeal, modify or supersede Section 1003(c) of the Detainee Treatment Act which states: “…(c) Limitation on Supersedure- The provisions of this section shall 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.” [Emphasis added]
…specifically repeal, modify or supersede Sections 1003(a) or (b) of the Detainee Treatment Act which states:
(a) In General- No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.
(b) Construction- Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.” [Emphasis added]
…specifically repeal, modify or supersede Sections 1002 (c) of the Detainee Treatment Act which states: “(c) Construction- Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.” [Emphasis added]
…specifically repeal, modify or supersede Sections 1003 (d) of the Detainee Treatment Act defining cruel, inhuman or degrading treatment or punishment against which the unalienable rights of the Declaration of Independence, the Fifth, Eighth, Ninth and possibly the Fourteenth Amendments clearly are designed to protect and secure. Section 1003 (d) states: “(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined- In this section, the term `cruel, inhuman, or degrading treatment or punishment’ means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.” [Emphasis added]
…specifically repeal, modify or supersede Sections 1004 (a) of the Detainee Treatment Act defining the limit of placed upon protections available to United States Government personnel engaged in authorized interrogations applying only to detention and interrogations of aliens. Section 1004 (a) states: “SEC. 1004. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL ENGAGED IN AUTHORIZED INTERROGATIONS.
(a) Protection of United States Government Personnel – In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should 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. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.” [Emphasis added]
…specifically repeal, modify or supersede requirements of the Federal torture statute, 18 U.S.C. 2340–2340A, Section 1001 -1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained:
18 USC § 2340. Definitions
As used in this chapter—
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
18 USC § 2340A. Torture.
(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
18 USC § 2340B. Exclusive remedies.
Nothing in this chapter shall be construed as precluding the application of State or local laws on the same subject, nor shall anything in this chapter be construed as creating any substantive or procedural right enforceable by law by any party in any civil proceeding. [Emphasis edded]
42 USC § 2000dd–1. Protection of United States Government personnel engaged in authorized interrogations.
(a) Protection of United States Government personnel.
In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should 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. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.
The United States Government shall provide or employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation of an officer, employee, member of the Armed Forces, or other agent described in subsection (a), with respect to any civil action or criminal prosecution or investigation arising out of practices described in that subsection, whether before United States courts or agencies, foreign courts or agencies, or international courts or agencies, under the same conditions, and to the same extent, to which such services and payments are authorized under section 1037 of title 10.
Convention Against Torture, Common Article 3 – “International Law on Torture
There is perhaps no more basic prohibition in international law than the ban on torture. In the aftermath of the horrors of World War II, the community of nations unequivocally repudiated torture. The 1948 Universal Declaration on Human Rights and the 1950 European Convention on Human Rights share the injunction that “No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.” The 1949 Geneva Conventions setting out the laws of war prohibit torture and ill-treatment of all combatants, prisoners of war and civilians, in all circumstances of international and non-international armed conflict. Article 3, common to all of the Geneva Conventions, prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”
The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), the most detailed expression of the international community’s censure, defines torture as:
“…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” [Emphasis added]
The Convention against Torture clarifies the absolute nature of the prohibition:
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency may be invoked as a justification for torture.
The prohibition against torture and ill-treatment has risen to the level of jus cogens, that is, a peremptory norm of international law. As such it is considered part of the body of customary international law that binds all states, whether or not they have ratified the treaties in which the prohibition against torture is enshrined. The jus cogens character of the prohibition applies to torture committed on a widespread and systematic basis—a crime against humanity—and to torture committed against a single victim. Peremptory norms, such as the prohibition against torture, apply in peacetime as well as during war, conflict or state of emergency, and are, in the words of the International Court of Justice, “intransgressible.” [Emphasis added]
Article 15 of the Convention against Torture imposes on all states the obligation to ensure that “any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” The drafters of the Convention made it clear that the exclusionary rule, as the ban on torture evidence is called, was designed as a disincentive to torture by eliminating the possibility of using its fruits in decision-making processes. It is therefore inextricably linked to the goal of preventing and eradicating torture. [Emphasis added]
The obligation to prevent and punish torture
Specific obligations to prevent and suppress torture derive from both international treaty law and customary international law. States Parties must make torture, attempts to torture, and complicity and participation in torture, criminal offenses under national law. States must ensure that no statement established to have been made as a result of torture is invoked as evidence in any proceedings. And States may not expel, return or extradite any person to a country where there are substantial grounds for believing he or she would be in danger of being tortured. [Emphasis added]
The Convention against Torture requires States to take proactive steps to prevent torture through appropriate training of all personnel involved in the custody, interrogation or treatment of detained persons and to conduct a “systematic review [of] interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of prisoners subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction.” [Emphasis added]
Torture is a crime of universal jurisdiction – national courts have the power to try alleged perpetrators of torture even if neither the suspect nor the victim are nationals of the country where the court is located, and the crime took place outside that country. The Convention against Torture imposes the obligation on all states parties to prosecute suspected torturers present in their territory, or extradite them for the purposes of prosecution. [Emphasis added]
The prohibition on torture gives rise to the obligation erga omnes – an obligation toward the international community as a whole owing to the fundamental and universal nature of the norm – to take steps to eradicate torture worldwide. This includes the obligation of all States to prevent and suppress torture and other forms of ill-treatment in territories under their jurisdiction, but also to refrain from encouraging, assisting or recognizing such abuses. [Emphasis added]
Torture material as evidence
International law prohibits in absolute terms the use of evidence obtained through torture in any proceedings. This exclusionary rule, contained in Article 15 of the Convention against Torture, applies to “any proceedings” and has been interpreted to include civil, criminal and administrative court proceedings as well as a broad range of decision-making processes by state officials. [Emphasis added]
The UN Committee Against Torture, tasked with monitoring compliance with the Convention against Torture, has interpreted the exclusionary rule as applicable to extradition proceedings.
The principle rationale behind the exclusionary rule is to remove any incentive to engage in torture by making it impossible to use statements extracted through such abuse. It is therefore linked inextricably to the goal of preventing torture.
In practice, however, it can be difficult to exclude evidence, at any stage of the process, on the grounds that it was obtained through torture. In some jurisdictions, the burden is explicitly on the defendant (or applicant in civil cases) to show that the material was obtained under torture. In others, the standard of proof is set so high that in practice the evidence can only be excluded if the affected person is able to provide the court with information demonstrating that it was so obtained. When the torture took place in a third country, this can be an arduous task even if a defendant or applicant suffered the torture themselves. When the information was obtained from a third person in circumstances that are secret, it is likely to be extremely difficult or impossible.
It is for that reason that UN Special Rapporteur on torture Manfred Nowak and Council of Europe Commissioner for Human Rights Thomas Hammarberg both argue that the burden should be shouldered by the prosecutor to establish convincingly that contested evidence was not obtained through torture.
A related problem is the use of so-called fruit of the poisoned tree: corroborating evidence collected as a result of investigations prompted by statements obtained under torture. The Convention against Torture is silent on whether the exclusionary rule applies to this kind of evidence. The ban on the use at trial of secondary evidence that was derived from coercive interrogation is, however, a well-established principle in US jurisprudence. The European Court of Human Rights has also suggested that the exclusionary rule with respect to torture is applicable to the fruit of the poisoned tree. In its Jalloh v. Germany judgment, the European Court affirmed that “incriminating evidence—whether in the form of a confession or real evidence—obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture—should never be relied on as proof of the victim’s guilt, irrespective of its probative value.”
Detainee Treatment Act of 2005 [White House]
Detainee Treatment Act of 2005, as included in the Department of Defense Appropriations Act, 2006 and agreed to by the US House and Senate and signed by President Bush, December 30, 2005 [incorporating the McCain Amendment and the Graham-Levin Amendment on detainees]. Full text from THOMAS:
TITLE X–MATTERS RELATING TO DETAINEES
SEC. 1001. SHORT TITLE.
This title may be cited as the `Detainee Treatment Act of 2005′.
SEC. 1002. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.
(a) In General- No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation. [Emphasis added]
(b) Applicability- Subsection (a) shall not apply with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.
(c) Construction- Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States. [Emphasis added]
SEC. 1003. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT OF PERSONS UNDER CUSTODY OR CONTROL OF THE UNITED STATES GOVERNMENT.
(a) In General- No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment. [Emphasis added]
(b) Construction- Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section. [Emphasis added]
(c) Limitation on Supersedure- The provisions of this section shall 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. [Emphasis added]
(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined- In this section, the term `cruel, inhuman, or degrading treatment or punishment’ means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984. [Emphasis added]
SEC. 1004. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL ENGAGED IN AUTHORIZED INTERROGATIONS.
(a) Protection of United States Government Personnel- In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should 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. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities. [Emphasis added]
(b) Counsel- The United States Government may provide or employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation of an officer, employee, member of the Armed Forces, or other agent described in subsection (a), with respect to any civil action or criminal prosecution arising out of practices described in that subsection, under the same conditions, and to the same extent, to which such services and payments are authorized under section 1037 of title 10, United States Code.
SEC. 1005. PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE UNITED STATES.
(a) Submittal of Procedures for Status Review of Detainees at Guantanamo Bay, Cuba, and in Afghanistan and Iraq-
(1) IN GENERAL- Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives a report setting forth–
(A) the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee ; and
(B) the procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or under the physical control of the Department of Defense in those countries.
(2) DESIGNATED CIVILIAN OFFICIAL- The procedures submitted to Congress pursuant to paragraph (1)(A) shall ensure that the official of the Department of Defense who is designated by the President or Secretary of Defense to be the final review authority within the Department of Defense with respect to decisions of any such tribunal or board (referred to as the `Designated Civilian Official’) shall be a civilian officer of the Department of Defense holding an office to which appointments are required by law to be made by the President, by and with the advice and consent of the Senate.
(3) CONSIDERATION OF NEW EVIDENCE- The procedures submitted under paragraph (1)(A) shall provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee .
(b) Consideration of Statements Derived With Coercion-
(1) ASSESSMENT- The procedures submitted to Congress pursuant to subsection (a)(1)(A) shall ensure that a Combatant Status Review Tribunal or Administrative Review Board, or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall, to the extent practicable, assess–
(A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and
(B) the probative value (if any) of any such statement.
(2) APPLICABILITY- Paragraph (1) applies with respect to any proceeding beginning on or after the date of the enactment of this Act.
(c) Report on Modification of Procedures- The Secretary of Defense shall submit to the committees specified in subsection (a)(1) a report on any modification of the procedures submitted under subsection (a). Any such report shall be submitted not later than 60 days before the date on which such modification goes into effect.
(d) Annual Report-
(1) REPORT REQUIRED- The Secretary of Defense shall submit to Congress an annual report on the annual review process for aliens in the custody of the Department of Defense outside the United States. Each such report shall be submitted in unclassified form, with a classified annex, if necessary. The report shall be submitted not later than December 31 each year.
(2) ELEMENTS OF REPORT- Each such report shall include the following with respect to the year covered by the report:
(A) The number of detainees whose status was reviewed.
(B) The procedures used at each location.
(e) Judicial Review of Detention of Enemy Combatants-
(1) IN GENERAL- Section 2241 of title 28, United States Code, is amended by adding at the end the following:
`(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider–
`(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or
`(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who–
`(A) is currently in military custody; or
`(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.’.
(2) REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION-
(A) IN GENERAL- Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.
(B) LIMITATION ON CLAIMS- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien–
(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.
(C) SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of–
(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government’s evidence); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.
(D) TERMINATION ON RELEASE FROM CUSTODY- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.
(3) REVIEW OF FINAL DECISIONS OF MILITARY COMMISSIONS-
(A) IN GENERAL- Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).
(B) GRANT OF REVIEW- Review under this paragraph–
(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or
(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit.
(C) LIMITATION ON APPEALS- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien–
(i) who was, at the time of the proceedings pursuant to the military order referred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a final decision has been rendered pursuant to such military order.
(D) SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of–
(i) whether the final decision was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.
(4) RESPONDENT- The Secretary of Defense shall be the named respondent in any appeal to the United States Court of Appeals for the District of Columbia Circuit under this subsection.
(f) Construction- Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States.
(g) United States Defined- For purposes of this section, the term `United States’, when used in a geographic sense, is as defined in section 101(a)(38) of the Immigration and Nationality Act and, in particular, does not include the United States Naval Station, Guantanamo Bay, Cuba.
(h) Effective Date-
(1) IN GENERAL- This section shall take effect on the date of the enactment of this Act.
(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.
SEC. 1006. TRAINING OF IRAQI FORCES REGARDING TREATMENT OF DETAINEES.
(a) Required Policies-
(1) IN GENERAL- The Secretary of Defense shall ensure that policies are prescribed regarding procedures for military and civilian personnel of the Department of Defense and contractor personnel of the Department of Defense in Iraq that are intended to ensure that members of the Armed Forces, and all persons acting on behalf of the Armed Forces or within facilities of the Armed Forces, ensure that all personnel of Iraqi military forces who are trained by Department of Defense personnel and contractor personnel of the Department of Defense receive training regarding the international obligations and laws applicable to the humane detention of detainees, including protections afforded under the Geneva Conventions and the Convention Against Torture.
(2) ACKNOWLEDGMENT OF TRAINING- The Secretary shall ensure that, for all personnel of the Iraqi Security Forces who are provided training referred to in paragraph (1), there is documented acknowledgment of such training having been provided.
(3) DEADLINE FOR POLICIES TO BE PRESCRIBED- The policies required by paragraph (1) shall be prescribed not later than 180 days after the date of the enactment of this Act.
(b) Army Field Manual-
(1) TRANSLATION- The Secretary of Defense shall provide for the United States Army Field Manual on Intelligence Interrogation to be translated into arabic and any other language the Secretary determines appropriate for use by members of the Iraqi military forces.
(2) DISTRIBUTION- The Secretary of Defense shall provide for such manual, as translated, to be provided to each unit of the Iraqi military forces trained by Department of Defense personnel or contractor personnel of the Department of Defense.
(c) Transmittal of Regulations- Not less than 30 days after the date on which regulations, policies, and orders are first prescribed under subsection (a), the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives copies of such regulations, policies, or orders, together with a report on steps taken to the date of the report to implement this section.
(d) Annual Report- Not less than one year after the date of the enactment of this Act, and annually thereafter, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the implementation of this section.
REMARKS BY SENATOR JOHN McCAIN ON THE FLOOR OF THE U.S. SENATE ON THE DEBATE ON THE USE OF TORTURE
May 12, 2011
“Mr. President, the successful end of the ten-year manhunt to bring Osama bin Laden to justice has appropriately heightened the nation’s appreciation for the diligence, patriotism and courage of our armed forces and our intelligence community. They are a great credit and inspiration to the country that has asked so much of them, and like all Americans, I am in their debt.
“But their success has also reignited debate over whether the so-called, ‘enhanced interrogation techniques’ of enemy prisoners, including waterboarding, were instrumental in locating bin Laden, and whether they are necessary and justifiable means for securing valuable information that might help prevent future terrorist attacks against us and our allies and lead to the capture or killing of those who would perpetrate them. Or are they, and should they be, prohibited by our conscience and laws as torture or cruel, inhuman and degrading treatment.
“I believe some of these practices – especially waterboarding, which is a mock execution, and thus to me, indisputably torture – are and should be prohibited in a nation that is exceptional in its defense and advocacy of human rights. I believe they are a violation of the Detainee Treatment Act of 2005, the Military Commissions Act of 2006, and Common Article Three of the Geneva Conventions, all of which forbid cruel, inhuman and degrading treatment of all captured combatants, whether they wear the uniform of a country or are essentially stateless.
“I opposed waterboarding and similar so-called ‘enhanced interrogation techniques’ before Osama bin Laden was brought to justice. And I oppose them now. I do not believe they are necessary to our success in our war against terrorists, as the advocates of these techniques claim they are.
“Even more importantly, I believe that if America uses torture, it could someday result in the torture of American combatants. Yes, I know that Al-Qaeda and other terrorist organizations do not share our scruples about the treatment of enemy combatants, and have and will continue to subject American soldiers and anyone they capture to the cruelest mistreatment imaginable. But we must bear in mind the likelihood that some day we will be involved in a more conventional war against a state and not a terrorist movement or insurgency, and be careful that we do not set a standard that another country could use to justify their mistreatment of our prisoners.
“And, lastly, it is difficult to overstate the damage that any practice of torture or cruel, inhuman and degrading treatment by Americans does to our national character and historical reputation – to our standing as an exceptional nation among the countries of the world. It is too grave to justify the use of these interrogation techniques. America has made its progress in the world not only by avidly pursuing our geopolitical interests, but by persuading and inspiring other nations to embrace the political values that distinguish us. As I’ve said many times before, and still maintain, this is not about the terrorists. It’s about us.
“I understand the reasons that governed the decision to approve these interrogation methods, and I know that those who approved them and those who employed them in the interrogation of captured terrorists were admirably dedicated to protecting the American people from harm. I know they were determined to keep faith with the victims of terrorism, and prove to our enemies that the United States would pursue justice tirelessly, relentlessly and successfully, no matter how long it took. I know their responsibilities were grave and urgent, and the strain of their duty was considerable. I admire their dedication, and love of country. But I dispute that it was right to use these methods, which I do not believe were in the best interests of justice or our security or the ideals that define us and which we have sacrificed much to defend.
“I don’t believe anyone should be prosecuted for having used these techniques in the past, and I agree that the Administration should state definitively that no one will be. As one of the authors of the Military Commissions Act, which I believe prohibits waterboarding and other ‘enhanced interrogation techniques,’ we wrote into the language of the law that no one who before the enactment of the law should be prosecuted. I don’t think it’s helpful or wise to revisit that policy.
“Many advocates of these techniques have asserted their use on terrorists in our custody, particularly, Khalid Sheikh Mohammed, revealed the trail to bin Laden – a trail which had gone cold in recent years, but would now lead to his destruction. The former Attorney General of the United States, Michael Mukasey, recently claimed that ‘the intelligence that led to bin Laden… began with a disclosure from Khalid Sheikh Mohammed, who broke like a dam under the pressure of harsh interrogation techniques that included waterboarding. He loosed a torrent of information – including eventually the nickname of a trusted courier of bin Laden.’ That is false.
“With so much misinformation being fed into such an essential public debate as this one, I asked the Director of Central Intelligence, Leon Panetta, for the facts. And I received the following information:
“The trail to bin Laden did not begin with a disclosure from Khalid Sheikh Mohammed, who was waterboarded 183 times. We did not first learn from Khalid Sheikh Mohammed the real name of bin Laden’s courier, or his alias, Abu Ahmed al-Kuwaiti – the man who ultimately enabled us to find bin Laden. The first mention of the name Abu Ahmed al-Kuwaiti, as well as a description of him as an important member of Al-Qaeda, came from a detainee held in another country. The United States did not conduct this detainee’s interrogation, nor did we render him to that country for the purpose of interrogation. We did not learn Abu Ahmed’s real name or alias as a result of waterboarding or any ‘enhanced interrogation technique’ used on a detainee in U.S. custody. None of the three detainees who were waterboarded provided Abu Ahmed’s real name, his whereabouts, or an accurate description of his role in Al-Qaeda.
“In fact, not only did the use of ‘enhanced interrogation techniques’ on Khalid Sheikh Mohammed not provide us with key leads on bin Laden’s courier, Abu Ahmed; it actually produced false and misleading information. Khalid Sheikh Mohammed specifically told his interrogators that Abu Ahmed had moved to Peshawar, got married, and ceased his role as an Al-Qaeda facilitator – which was not true, as we now know. All we learned about Abu Ahmed al-Kuwaiti through the use of waterboarding and other ‘enhanced interrogation techniques’ against Khalid Sheik Mohammed was the confirmation of the already known fact that the courier existed and used an alias.
“I have sought further information from the staff of the Senate Intelligence Committee, and they confirm for me that, in fact, the best intelligence gained from a CIA detainee – information describing Abu Ahmed al-Kuwaiti’s real role in Al-Qaeda and his true relationship to Osama bin Laden – was obtained through standard, non-coercive means, not through any ‘enhanced interrogation technique.’
“In short, it was not torture or cruel, inhuman, and degrading treatment of detainees that got us the major leads that ultimately enabled our intelligence community to find Osama bin Laden. I hope former Attorney General Mukasey will correct his misstatement. It’s important that he do so because we are again engaged in this important debate, with much at stake for America’s security and reputation. Each side should make its own case, but do so without making up its own facts.
“For my part, I would oppose any legislation, if any should be proposed, that is intended to authorize the administration to return to the use of waterboarding or other methods of interrogation that I sincerely believe are torture or cruel, inhuman and degrading, and as such, unworthy of and injurious to our country. This debate is ongoing, but I don’t believe it will lead to a change in current policy prohibiting these methods.
“So, perhaps this is just a debate for the history books. But it is still important, because Americans in a future age, as well as their leaders, might face these same questions. We should do our best to provide them a record of our debates and decisions that is notable not just for its passion, but for its deliberativeness and for opinions that were informed by facts and formed with scrupulous care by both sides for the security of the American people and the success of the ideals we cherish. We have a duty to leave future American generations with a history that will offer them not confusion but instruction as they face their crises and challenges, and try to lead America safely and honorably through them. Both sides can’t be right, of course. But both sides can be honest, diligent and sincere.
“Let me briefly elaborate my reasons for opposing the return to these interrogation policies.
“Obviously, to defeat our enemies we need intelligence, but intelligence that is reliable. We should not torture or treat inhumanely terrorists we have captured. I believe the abuse of prisoners harms, not helps, our war effort. In my personal experience, the abuse of prisoners sometimes produces good intelligence, but often produces bad intelligence because under torture a person will say anything he thinks his captors want to hear – whether it is true or false – if he believes it will relieve his suffering. Often, information provided to stop the torture is deliberately misleading. And what the advocates of cruel and harsh interrogation techniques can never prove is that we could not have gathered the same intelligence through other, more humane means – as a review of the facts provides solid reason to be confident that we can. The costs of assuming otherwise can be hugely detrimental.
“It has also been reported, and the staff of the Senate Intelligence Committee confirms for me, that a man named Ibn al-Sheikh al-Libi, who had been captured by the United States and rendered to Egypt, where we believe he was tortured, provided false and misleading information about Saddam Hussein’s weapons of mass destruction programs. That false information was ultimately included in Secretary of State Colin Powell’s statement to the UN Security Council, and, I assume, helped to influence the Bush Administration’s decision to invade Iraq.
“Furthermore, I think it supremely unfair to the men and woman in our intelligence community and military who labored for a decade to locate Osama bin Laden to claim falsely that they only succeeded because we used torture to extract actionable intelligence from a few detainees several years ago. I have not found evidence to suggest that torture – or, since so much of our disagreement is definitional, interrogation methods that I believe are torture, and which I believe are prohibited by U.S. law and international treaty obligations we are not just a party to, but leading advocates of – played an important part in finding and killing bin Laden. Rather, I think his death at the hands of the United States argues quite the contrary: that we can succeed without resort to these methods.
“It is also the case that the mistreatment of enemy prisoners endangers our own troops who might someday be held captive. While some enemies, and Al-Qaeda surely, will never be bound by the principle of reciprocity, we should have concern for those Americans captured by more conventional enemies, if not in this war then in the next. Until about 1970, North Vietnam ignored its obligations not to mistreat the Americans they held prisoner, claiming that we were engaged in an unlawful war against them and thus not entitled to the protections of the Geneva Conventions. But when their abuses became widely known and incited unfavorable international attention, they substantially decreased their mistreatment of our POWs.
“Some have argued that if it is right to kill bin Laden, then it should also be right to torture him had he been captured rather than killed. I disagree. First, the Americans who killed bin Laden were on a military mission against the leader of a terrorist organization with which we are at war. It was not a law enforcement operation or primarily an intelligence operation. They could not be certain that bin Laden, even though he was unarmed, did not possess some means of harming them – a suicide vest, for instance – and they were correctly instructed to take no unnecessary chances in their completion of their mission.
“Second, bin Laden was a mass murderer. Had we captured him, he would have eventually received the ultimate sanction for his terrible crimes, as captured war criminals in previous wars have. But war criminals captured, tried and executed in World War II, for instance, were not tortured in advance of their execution, either in retaliation for their crimes or to elicit information that might have helped us locate, apprehend and convict other war criminals. This was not done because civilized nations have long made a distinction between killing and injuring in the heat of combat, on the one hand, and the deliberate infliction of physical torment on an incapacitated fighter, on the other. This distinction is recognized not only in longstanding American values and practices, but also in the Geneva Conventions that provide legal protections for our own fighting men and women.
“All of these arguments have the force of right, but ultimately, even they are beside the most important point. There are many arguments to be made against torture on practical grounds. As I have said, I believe torture produces unreliable information, hinders our fight against global terrorism, and harms our national interest and reputation. But ultimately, this debate is about far more than technical or practical issues. It is about far more than whether torture works or does not work. It is about far more than utilitarian matters. Ultimately, this is about morality. What is at stake here is the very idea of America – the America whose values have inspired the world and instilled in the hearts of its citizens the certainty that, no matter how hard we fight, no matter how dangerous our adversary, in the course of vanquishing our enemies we do not comprise our deepest values. We are America, and we hold ourselves to a higher standard. That is what is really at stake.
“Though Osama bin Laden is dead, America remains at war, and to prevail in this war we need more than victories on the battlefield. This is a war of ideas as well, a struggle to advance freedom in the face of terror in places where oppressive rule has bred the malevolence that feeds an ideology of violent extremism. Prisoner abuses exact a terrible toll on us in this war of ideas. They inevitably become public, and when they do they threaten our moral standing, and expose us to false but widely disseminated charges that democracies are no more inherently idealistic and moral than other regimes. I understand that Islamic extremists who resort to terror would destroy us utterly if they could obtain the weapons to do so. But to defeat them utterly we must also prevail in our defense of the universal values that ultimately have the greatest power to eradicate this evil ideology.
“Though it took a decade to find him, there is one consolation for bin Laden’s ten-year evasion of justice. He lived long enough to see what some are calling the Arab Spring, the complete repudiation of bin Laden’s worldview and the cruel disregard for innocent life and human dignity he used to advance it. In Egypt and Tunisia, Arabs successfully reclaimed their rights from autocracies to determine their own destiny without resort to violence or the deliberate destruction of innocent life. And now Arabs are trying, valiantly, by means as just as their cause, to do the same in Syria and elsewhere.
“As the United States discusses and debates what role we should play to influence the course of the Arab Spring, can we not all agree that the first and most obvious thing we can do is stand as an example of just government and equal justice under the law – as a champion of the idea that that an individual’s human rights are superior to the will of the majority or the wishes of government? Individuals might forfeit their life and liberty as punishment for breaking laws, but even then, as recognized in our Constitution’s prohibition of cruel and unusual punishment, they are still entitled to respect for their basic human dignity, even if they have denied that respect to others.
“I don’t mourn the loss of any terrorist’s life. Nor do I care if in the course of serving their malevolent cause they suffer great harm. They have earned their terrible punishment in this life and the next. What I do mourn is what we lose when by official policy or official neglect we allow, confuse or encourage those who fight this war for us to forget that best sense of ourselves, that which is our greatest strength – that when we fight to defend our security we also fight for an idea, not a tribe, not a land, not a king, not a twisted interpretation of an ancient religion, but for an idea that all men are endowed by their Creator with inalienable rights.
“It is indispensable to our success in this war that those we ask to fight it know that in the discharge of their dangerous responsibilities to our country they are never expected to forget that they are Americans, and the valiant defenders of a sacred idea of how nations should be governed and conduct their relations with others – even our enemies.
“And those of us who have given them this onerous duty are obliged by our history, and the many terrible sacrifices that have been made in our defense, to make clear to them that they need not risk our country’s honor to prevail; that they are always – through the violence, chaos and heartache of war, through deprivation and cruelty and loss – they are always, always, Americans, and different, stronger and better than those who would destroy us.
Appendix 2 Regarding the NDAA Sections 1031 and 1038 in Relation to the Detainee Treatment Act of 2005)
Subtitle D–Detainee Matters
SEC. 1031. REVIEW OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) In General.–Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall, in consultation with appropriate officials in the Executive Office of the President, the Director of National Intelligence, the Secretary of State, the Secretary of Homeland Security, and the Attorney General, submit to the appropriate committees of Congress a report setting forth the following:
(1) A statement of the position of the Executive Branch on the appropriate role for the Armed Forces of the United States in the detention and prosecution of covered persons (as defined in subsection (b)).
(2) A statement and assessment of the legal authority asserted by the Executive Branch for such detention and prosecution.
(3) A statement of any existing deficiencies or anticipated deficiencies in the legal authority for such detention and prosecution.
(b) Covered Persons.–A covered person under this section is any person, other than a member of the Armed Forces of the United States, whose detention or prosecution by the Armed Forces of the United States is consistent with the laws of war and based on authority provided by any of the following:
(1) The Authorization for Use of Military Force (Public Law 107-40).
(2) The Authorization for Use of Military Force Against Iraq Resolution 2002 (Public Law 107-243).
(3) Any other statutory or constitutional authority for use of military force.
(c) Congressional Action.–Each of the appropriate committees of Congress may, not later than 45 days after receipt of the report required by subsection (a), hold a hearing on the report, and shall, within 45 days of such hearings, report to Congress legislation, if such committee determines legislation is appropriate and advisable, modifying or expanding the authority of the Executive Branch to carry out detention and prosecution of covered persons.
(d) Appropriate Committees of Congress Defined.–In this section, the term “appropriate committees of Congress” means–
(1) the Committee on Armed Services, the Committee on the Judiciary, and the Select Committee on Intelligence of the Senate; and
(2) the Committee on Armed Services, the Committee on the Judiciary, and the Permanent Select Committee on Intelligence of the House of Representatives.
For those interested in what has happened to Kelly Ayotte’s amendment that would create a classified interrogation techniques section of the Army Field Manual, read the colliquoy between Senators Ayotte, Lieberman, and Graham about the amendment starting on page 40 of the edited transcript. The text of the amendment is included below:
(Purpose: To authorize lawful interrogation methods in addition to those authorized by the Army Field Manual for the collection of foreign intelligence information through interrogations)
At the end of subtitle D of title X, add the following:
SEC. 1038. AUTHORITY FOR LAWFUL INTERROGATION METHODS IN ADDITION TO THE INTERROGATION METHODS AUTHORIZED BY THE ARMY FIELD MANUAL.
(a) Authority.–Notwithstanding section 1402 of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), the personnel of the United States Government specified in subsection (c) are hereby authorized to engage in interrogation for the purpose of collecting foreign intelligence information using methods set forth in the classified annex required by subsection (b) provided that such interrogation methods comply with all applicable laws, including the laws specified in subsection (d).
(b) Classified Annex.–Not later than 90 days after the date of the enactment of this Act, and on such basis thereafter as may be necessary for the effective collection of foreign intelligence information, the Secretary of Defense shall, in consultation with the Director of National Intelligence and the Attorney General, ensure the adoption of a classified annex to Army Field Manual 2-22.3 that sets forth interrogation techniques and approaches, in addition to those specified in Army Field Manual 2-22.3, that may be used for the effective collection of foreign intelligence information.
(c) Covered Personnel.–The personnel of the United States Government specified in this subsection are the officers and employees of the elements of the intelligence community that are assigned to or support the entity responsible for the interrogation of high value detainees (currently known as the “High Value Detainee Interrogation Group”), or a successor entity.
(d) Specified Laws.–The law specified in this subsection is as follows:
(1) The United Nations Convention Against Torture, signed at New York, February 4, 1985.
(2) Chapter 47A of title 10, United States Code, relating to military commissions (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
(3) The Detainee Treatment Act of 2005 (title XIV of Public Law 109-163).
(4) Section 2441 of title 18, United States Code.
(e) Supersedure of Executive Order.–The provisions of Executive Order No. 13491, dated January 22, 2009, shall have no further force or effect, to the extent such provisions are inconsistent with the provisions of this section.
(f) Definitions.–In this section:
(1) ELEMENT OF THE INTELLIGENCE COMMUNITY.–The term “element of the intelligence community” means an element of the intelligence community listed or designated under section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
(2) FOREIGN INTELLIGENCE INFORMATION.–The term “foreign intelligence information” has the meaning given that term in section 101(e) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(e)).
Senator Ayotte withdrew a different amendment, No. 1067, as it will be considered by the conference committee once (and if) the Senate passes its version of the bill. That amendment would require notification of Congress when a terrorist suspect is captured. The text of that amendment is here:
(Purpose: To require notification of Congress with respect to the initial custody and further disposition of members of al-Qaeda and affiliated entities)
At the end of subtitle D of title X, add the following:
SEC. 1038. REQUIRED NOTIFICATION OF CONGRESS WITH RESPECT TO THE INITIAL CUSTODY AND FURTHER DISPOSITION OF MEMBERS OF AL-QAEDA AND AFFILIATED ENTITIES.
(a) Required Notification With Respect to Initial Custody.–
(1) IN GENERAL.–When a covered person, as defined in subsection (c), is taken into the custody of the United States Government, the Secretary of Defense and the Director of National Intelligence shall notify the specified congressional committees, as defined in subsection (d), within 10 days.
(2) REPORTING REQUIREMENT.–The notification submitted pursuant to paragraph (1) shall be in classified form and shall include, at a minimum, the suspect’s name, nationality, date of capture by or transfer to the United States Government, location of such capture or transfer, places of custody since capture or transfer, suspected terrorist affiliation and activities, and agency responsible for interrogation.
(b) Required Notification With Respect to Further Disposition.–
(1) IN GENERAL.–Not later than 10 days before a change of disposition under section 1031(c) is effected, the Secretary of Defense and the Director of National Intelligence shall notify and inform the specified congressional committees of such intended disposition.
(2) REPORTING REQUIREMENT.–The notification required under paragraph (1) shall be in classified form and shall include the relevant facts, justification, and rationale that serves as the basis for the disposition option chosen.
(c) Covered Persons.–For the purposes of this section, a covered person is a person who–
(1) is a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and
(2) has participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
(d) Specified Congressional Committees.–In this section, the term “specified congressional committees” means–
(1) the Committee on Armed Services of the Senate;
(2) the Committee on Armed Services of the House of Representatives;
(3) the Select Committee on Intelligence of the Senate; and
(4) the Permanent Select Committee on Intelligence of the House of Representatives.
(e) Effective Date.–This section shall take effect 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (c) who are taken into the custody or brought under the control of the United States on or after that date.
Appendix 5 COMMISSION ON HUMAN RIGHTS, Fifty-second session
Item 8 of the provisional agenda, Economic and Social Council – GENERAL, E/CN.4/1996/29/Add.2 — 18 January 1996 — Original: ENGLISH
QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO ANY FORM OF DETENTION OR IMPRISONMENT Right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms
Report of the Secretary-General prepared pursuant to Commission resolution 1995/34
United States of America
[5 January 1996]
1. The United States Constitution, and the constitutions of the several states and other constituent units, set forth essential guarantees of fundamental rights generally paralled to those set forth in the International Covenant on Civil and Political Rights. There is no single statute or mechanism by which fundamental freedoms are guaranteed or enforced in the United States legal system. Rather, domestic laws provide extensive protection through enforcement of constitutional provisions and a variety of statutes which typically provide for judicial and/or administrative remedies. This reply presents federal statutes already enacted. Because of their large number and variety, legislation of the several states of the union and pending federal legislation are not covered.
2. The strong commitment of the United States to the restitution, compensation and rehabilitation of victims of grave violations of human rights and fundamental freedoms is reflected in the United States Constitution and in several important federal statutes. This legislation primarily applies to violations occurring within the jurisdiction of the United States. The relevant statutes safeguard the fundamental rights of people in the United States in accordance with the tenets of the United States Constitution. A more detailed analysis of these and other relevant laws is set forth in the initial report of the United States of America to the Human Rights Committee under the International Covenant on Civil and Political Rights (CCPR/C/81/Add.4, 24 August 1994).
United States Constitution
3. To the extent that gross violations of human rights or fundamental freedoms constitute violations of rights, privileges, or immunities secured by the United States Constitution, victims of such violations within the jurisdiction of the United States may obtain compensation for their injuries by suing the responsible government officers directly under the provisions of the Constitution. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); Davis v. Passman, 442 U.S. 228 (1979). Moreover, because human rights violations contemplate government action or action under colour of law, victims of such violations also have statutory causes of action.
Civil Rights Act of 1871
4. Principal among federal civil rights laws aimed at redressing violations of fundamental rights and freedoms is 42 U.S.C. 1983, which states:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage of any state or territory or the District of Colombia subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
5. Actions “under color of state law,” within the meaning of Section 1983, may be perpetrated by federal, state, or local officials. However, some officials, such as judges, enjoy either absolute or qualified immunity. Bradley v. Fisher, 80 U.S. 335 (1972). Other officials enjoy qualified immunity only. Generally, prosecutors enjoy absolute immunity from suit for their involvement in the judicial phase of the criminal process but are afforded only qualified immunity for law enforcement functions. Burns v. Reed, 500 U.S. 478 (1991). Such immunity will not be afforded where an official has violated clearly established statutory or constitutional rights under circumstances in which a reasonable person would have known of the existence of the rights and of the violation. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
6. Section 1983 is invoked in private suits before the United States courts. Situations giving rise to Section 1983 actions include claims by prisoners that they have been subjected to cruel or unusual punishment, in violation of the Eighth Amendment; claims by arrested individuals that law enforcement officers used excessive force, in violation of the Fourth Amendment; and claims by individuals that state or local authorities have denied them equal protection of the laws, in violation of the Fifth and Fourteenth Amendments, through some form of arbitrary discrimination. The most common relief under Section 1983 is money damages, subject to the limitations of official immunity. Injunctive relief is also available and is widely used to provide relief under Section 1983.
7. Conspiracies to deny human rights and fundamental freedoms, apart from being punishable by criminal sanctions, may be redressed by civil suits for damages under 42 U.S.C. 1985. Where the right is one enumerated in the Constitution as being secured only from “state action”, there must be official actors in the conspiracy. Brotherhood of Carpenters and Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825 (1983).
8. In addition to these federal remedies, the several states of the union have their own laws and judicial procedures by which official action may be challenged and compensation or other relief sought.
Federal Tort Claims Act
9. Another statutory remedy for violations of certain constitutional rights by governmental entities is provided by the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346 (b), 2671 et seq., and analogous state tort claim statutes. The FTCA waives the sovereign immunity of the United States with respect to certain torts. “Discretionary” acts and many “intentional” torts are not included, but the statute does waive the sovereign immunity of the United States with respect to claims arising out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution, based on the acts or omissions of “investigative or law enforcement officers” of the United States Government. The act defines an “investigative or law enforcement officer” as an officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of federal law. This definition may include Department of Defense personnel acting in a law enforcement capacity.
Civil Rights of Institutionalized Persons Act
10. Under this statute, codified at 42 U.S.C. 1997, the Attorney-General of the United States may initiate civil actions when there is a reason to believe that a person, acting on behalf of a state or local government, has subjected an institutionalized person to “egregious or flagrant conditions which deprive such persons of any rights, privileges or immunities secured or protected by the Constitution or laws of the United States”. Equitable relief provides the appropriate remedy in such suits.
Equal Access to Justice Act
11. The Equal Access to Justice Act, 28 U.S.C. 2412, allows a federal court to award costs and reasonable attorney’s fees and expenses necessary to bring a suit for violation of civil rights. However, an award is made only where the court finds that the United States Government has, in fact, violated the individual’s civil rights.
12. In addition to the civil remedies noted above, federal, state and local officials, we well as private persons, who violate the rights of others, may be subject to prosecution under a host of federal and State criminal statutes (for example, for murder, rape, assault, abduction, etc.). United States Department of Defense personnel may also be subject to criminal prosecution under the Uniform Code of Military Justice, 10 U.S.C. 801-946. The primary authority for federal criminal prosecution of human rights violations is found in 18 U.S.C. 241 and 242. Sections 241 and 242 provide a criminal analog to Sections 1983 and 1985, and allow the Attorney-General to prosecute individuals who violate fundamental rights under colour of law.
Legislation related to international law
Alien Tort Claims Act
13. The Aliens Tort Claims Act of 1789 (“ATCA”), 28 U.S.C. 1350, represents an early effort by the United States Government to provide a remedy to individuals whose rights have been violated under international law. The ATCA provides that “the district courts shall have original jurisdiction in any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”.
14. Only aliens (non-United States citizens) may sue under the ATCA. The jurisdiction of the district courts to hear ATCA claims is limited by the constitutional requirements that the court obtain proper personal jurisdiction over the defendant: the perpetrator of the violation must be present within the territorial jurisdiction of the court or be subject to the court’s longarm jurisdiction.
15. This statute was originally enacted to provide a remedy to individuals who suffered a “tort” at the hands of privateers seeking prize money under the law of admiralty. More recently, it has been applied to cases of human rights violations. See Filartiga v. Pena-Irala, 630 F.2d 774 (2d Cir. 1980).
Torture Victims Protection Act
16. The Torture Victims Protection Act of 1991 (“TVPA”) 28 U.S.C. 1350 note, complements the ATCA. See H.R. Rep. No. 367, 102d Cong. 2d Sess. 4 (1992). While the ATCA only provides a remedy to foreign nationals, the TVPA allows both foreign nationals and United States citizens to sue for damages any individual who engages in torture or extrajudicial killing under “actual or apparent authority, or under color of law of any foreign nation. See Filartiga v. Pena-Irala, 630 F.2d 774 (2d Cir. 1980). However, foreign Governments are protected from suit in the United States by the Foreign Sovereign Immunities Act of 1976 and the Act of State Doctrine.
17. In addition to imposing criminal sanctions on international terrorists, the Anti-terrorism Act, 18 U.S.C. 2331 et seq., provides that victims of international terrorism may seek compensation for terrorist acts. Section 2333 allows any United States national injured in his or her person or property by international terrorism, or that person’s heirs or survivors, to sue in a United States district court for damages. The Act provides for treble damages and litigation costs, including attorney’s fees, to be awarded to successful claimants.
18. The statute also provides that any final judgement in the United States or in a foreign State in favour of the Government in a criminal proceeding against the alleged perpetrator on the same facts estops the defendant in a civil proceeding brought under 18 U.S.C. 2331 from denying the essential allegations made by the plaintiff in the civil proceeding.
Specific cases of restitution or compensation
19. The United States has also taken the initiative to provide compensation for past wrongs committed by the Government, even when the victim does not technically have a cause of action. For example, where times of crisis have resulted in a failure of the constitutional and legislative checks on government power, the United States has shown a willingness to compensate for wrongs done. Examples of these, include the following.
20. In December 1993, it became widely known that between 1944 and 1974, the United States Government conducted and sponsored a number of experiments involving exposure of humans to radiation. The United States Government has undertaken to examine the propriety of these experiments and to make public as much information about these experiments as possible. The President established an advisory committee on human radiation experiments under a January 1994 executive order. The United States Congress and the executive branch are currently considering the extent to which compensation may be appropriate in various cases. Individual and class-action lawsuits are also pending in some cases, most of which have been brought under the Federal Tort Claims Act, discussed above.
Japanese internment restitution
21. During the Second World War, the United States evacuated many Americans of Japanese origin from the west coast and relocated them to internment camps. In recent years, the United States Government has acknowledged that, while these measures may have resulted from legitimate concerns of national security, the evacuation and internment violated the civil rights of these American citizens. Accordingly, the United States Government has undertaken to provide restitution to those injured as a result of internment. Under Section 105 of the Civil Liberties Act of 1988, the United States Government must provide redress to American citizens and permanent resident aliens of Japanese ancestry who were forcibly evacuated, relocated, and interned by the United States Government during the Second World War.
22. Grave violations of human rights and fundamental freedoms are prohibited and strictly punished in the United States. The laws of the United States and the several states of the union provide many avenues for restitution, compensation and rehabilitation for those who have fallen victim to grave violations of human rights or fundamental freedoms either in the United States or abroad.
23. The Government of the United States remains committed to the eradication of grave violations of human rights and fundamental freedoms all over the world and to the promotion of the rights of victims of such violations to restitution, compensation and rehabilitation.