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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.

Related Legislation:
• H.R.2082
• H.R.4156

Related Reports:
• RL33655

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