McCain Detainee Amendment

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The McCain Detainee Amendment prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay and requires military interrogations to be performed according to the Code of Military Justice.^[1]

1 Legislative details
2 Signing statement by President Bush
3 Criticism
4 See also
5 References
6 External links

Legislative details

The amendment affected the United States Senate Department of Defense Appropriations Act, 2006, commonly referred to as the Amendment on (1) the Army Field Manual and (2) Cruel, Inhumane, Degrading Treatment, amendment #1977 and also known as the McCain Amendment 1977. It became the Detainee Treatment Act of 2005 as Title X of the Department of Defense Authorization bill. The amendment prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay, by confining interrogations to the techniques in FM 34-52 Intelligence Interrogation. Also, section 1005, part (e) of the Act prohibits aliens detained in Guantanamo Bay from applying for a writ of habeas corpus.[1] Amendment 1977 amended the defense appropriations bill for 2005 passed by the United States House of Representatives. The amendment was introduced to the Senate by Senator John McCain (R-Arizona) on October 3, 2005 as S.AMDT.1977. The amendment was co-sponsored by Senators Lindsey Graham, Chuck Hagel, Gordon H. Smith, Susan M. Collins, Lamar Alexander, Richard Durbin, Carl Levin, John Warner, Lincoln Chafee, John E. Sununu, and Ken Salazar. On October 5, 2005, the United States Senate voted 90-9 to support the amendment. [2] The Senators who voted against the amendment were Wayne Allard (R-CO), Christopher Bond (R-MO), Tom Coburn (R-OK), Thad Cochran (R-MS), John Cornyn (R-TX), James Inhofe (R-OK), Pat Roberts (R-KS), Jeff Sessions (R-AL), and Ted Stevens (R-AK).

Signing statement by President Bush

After approving the bill President Bush issued a signing statement: an official document in which a president lays out his interpretation of a new law.[3] In it Bush said:

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

The Boston Globe quoted an anonymous senior administration official saying, "Of course the president has the obligation to follow this law, (but) he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case. We are not expecting that those two responsibilities will come into conflict, but it's possible that they will." [4]

Criticism

The John McCain Amendment cited the U.S. Army's Field Manual on interrogation as the authoritative guide to interrogation techniques. On December 14, the New York Times reported that the Army Field Manual had been rewritten by the Pentagon. Previously, the manual's interrogation techniques section could be read freely on the Internet. But the new edition's includes 10 classified pages in the interrogation technique section. [5] Also, the McCain Amendment'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're tortured. [6] Critics say these two actions deflate the McCain Amendment from having any real power in stopping torture by the United States Government, and these were the true reasons why President Bush "conceded" to McCain's demands. Yet, this was largely ignored by the mainstream media, who instead credited Bush's concession to "overwhelming Congressional support" for the measure. [7] [8] Amnesty International claims that the amendment's loopholes actually signal that torture is now official US policy. [9] 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 McCain Amendment'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. [10] Justice Scalia's dissent noted this as an example of Scalia's 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. ... [T]he handful of floor statements that the Court treats as authoritative do not “reflec[t] any general agreement[,]” [t]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)

References

^ "... President Bush yesterday accepted Senator John McCain’s amendment banning the use of cruel, inhuman and degrading treatment by U.S. personnel anywhere in the world, and prohibiting U.S. military interrogators from using interrogation techniques not listed in the U.S. Army Field Manual on Intelligence Interrogation." Human Rights Watch - December 16, 2005