CHAPTER 21D —DETAINEE TREATMENT
§2000dd. 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.
(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.
(c) Limitation on supersedure
The provisions of this section shall not be superseded, except by a provision of law enacted after December 30, 2005, which specifically repeals, modifies, or supersedes the provisions of this section.
(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.
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Editorial Notes
References in Text
The date "December 30, 2005", referred to in subsec. (c), was in the original "the date of the enactment of this Act" and was translated as the date of enactment of
Codification
Statutory Notes and Related Subsidiaries
Short Title
United States Policy Toward Detainees
"(a)
"(1) The National Commission on Terrorist Attacks Upon the United States (commonly referred to as the '9/11 Commission') declared that the United States 'should work with friends to develop mutually agreed-on principles for the detention and humane treatment of captured international terrorists who are not being held under a particular country's criminal laws' and recommended that the United States engage its allies 'to develop a common coalition approach toward the detention and humane treatment of captured terrorists'.
"(2) A number of investigations remain ongoing by countries that are close United States allies in the war on terrorism regarding the conduct of officials, employees, and agents of the United States and of other countries related to conduct regarding detainees.
"(3) The Secretary of State has launched an initiative to try to address the differences between the United States and many of its allies regarding the treatment of detainees.
"(b)
"(c)
"(1)
"(2)
"(d)
"(1) with respect to the House of Representatives, the Committee on Foreign Affairs, the Committee on Armed Services, the Committee on the Judiciary, and the Permanent Select Committee on Intelligence; and
"(2) with respect to the Senate, the Committee on Foreign Relations, the Committee on Armed Services, the Committee on the Judiciary, and the Select Committee on Intelligence."
Executive Documents
Ex. Ord. No. 13491. Ensuring Lawful Interrogations
Ex. Ord. No. 13491, Jan. 22, 2009, 74 F.R. 4893, provided:
By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence-gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:
(a) "Army Field Manual 2–22.3" means FM 2–22.3, Human Intelligence Collector Operations, issued by the Department of the Army on September 6, 2006.
(b) "Army Field Manual 34–52" means FM 34–52, Intelligence Interrogation, issued by the Department of the Army on May 8, 1987.
(c) "Common Article 3" means Article 3 of each of the Geneva Conventions.
(d) "Convention Against Torture" means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85, S. Treaty Doc. No. 100–20 (1988).
(e) "Geneva Conventions" means:
(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949 (6 UST 3114);
(ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949 (6 UST 3217);
(iii) the Convention Relative to the Treatment of Prisoners of War, August 12, 1949 (6 UST 3316); and
(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949 (6 UST 3516).
(f) "Treated humanely," "violence to life and person," "murder of all kinds," "mutilation," "cruel treatment," "torture," "outrages upon personal dignity," and "humiliating and degrading treatment" refer to, and have the same meaning as, those same terms in Common Article 3.
(g) The terms "detention facilities" and "detention facility" in section 4(a) of this order do not refer to facilities used only to hold people on a short-term, transitory basis.
(a) Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal torture statute,
(b) Interrogation Techniques and Interrogation-Related Treatment. Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2–22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense. Nothing in this section shall preclude the Federal Bureau of Investigation, or other Federal law enforcement agencies, from continuing to use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises.
(c) Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2–22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation—including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2–22.3, and its predecessor document, Army Field Manual 34–52—issued by the Department of Justice between September 11, 2001, and January 20, 2009.
(a) CIA Detention. The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.
(b) International Committee of the Red Cross Access to Detained Individuals. All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies.
(a) Establishment of Special Interagency Task Force. There shall be established a Special Task Force on Interrogation and Transfer Policies (Special Task Force) to review interrogation and transfer policies.
(b) Membership. The Special Task Force shall consist of the following members, or their designees:
(i) the Attorney General, who shall serve as Chair;
(ii) the Director of National Intelligence, who shall serve as Co-Vice-Chair;
(iii) the Secretary of Defense, who shall serve as Co-Vice-Chair;
(iv) the Secretary of State;
(v) the Secretary of Homeland Security;
(vi) the Director of the Central Intelligence Agency;
(vii) the Chairman of the Joint Chiefs of Staff; and
(viii) other officers or full-time or permanent part-time employees of the United States, as determined by the Chair, with the concurrence of the head of the department or agency concerned.
(c) Staff. The Chair may designate officers and employees within the Department of Justice to serve as staff to support the Special Task Force. At the request of the Chair, officers and employees from other departments or agencies may serve on the Special Task Force with the concurrence of the head of the department or agency that employ such individuals. Such staff must be officers or full-time or permanent part-time employees of the United States. The Chair shall designate an officer or employee of the Department of Justice to serve as the Executive Secretary of the Special Task Force.
(d) Operation. The Chair shall convene meetings of the Special Task Force, determine its agenda, and direct its work. The Chair may establish and direct subgroups of the Special Task Force, consisting exclusively of members of the Special Task Force, to deal with particular subjects.
(e) Mission. The mission of the Special Task Force shall be:
(i) to study and evaluate whether the interrogation practices and techniques in Army Field Manual 2–22.3, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies; and
(ii) to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.
(f) Administration. The Special Task Force shall be established for administrative purposes within the Department of Justice and the Department of Justice shall, to the extent permitted by law and subject to the availability of appropriations, provide administrative support and funding for the Special Task Force.
(g) Recommendations. The Special Task Force shall provide a report to the President, through the Assistant to the President for National Security Affairs and the Counsel to the President, on the matters set forth in subsection (d) within 180 days of the date of this order, unless the Chair determines that an extension is necessary.
(h) Termination. The Chair shall terminate the Special Task Force upon the completion of its duties.
Barack Obama.
§2000dd–0. Additional prohibition on cruel, inhuman, or degrading treatment or punishment
(1) 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.
(2) Cruel, inhuman, or degrading treatment or punishment defined
In this section, the term "cruel, inhuman, or degrading treatment or punishment" means 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.
(3) Compliance
The President shall take action to ensure compliance with this section, including through the establishment of administrative rules and procedures.
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Editorial Notes
Codification
Section was enacted as part of the Military Commissions Act of 2006, and not as part of the Detainee Treatment Act of 2005 which comprises this chapter.
§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.
(b) Counsel
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
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Editorial Notes
Codification
Amendments
2008—Subsec. (b).
2006—Subsec. (b).
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment by
Effective Date of 2006 Amendment
"(1) relates to the detention and interrogation of aliens described in such section;
"(2) is grounded in
"(3) relates to actions occurring between September 11, 2001, and December 30, 2005."
§2000dd–2. Limitation on interrogation techniques
(a) Limitation on interrogation techniques to those in the Army Field Manual
(1) Army Field Manual 2–22.3 defined
In this subsection, the term "Army Field Manual 2–22.3" means the Army Field Manual 2–22.3 entitled "Human Intelligence Collector Operations" in effect on November 25, 2015, or any similar successor Army Field Manual.
(2) Restriction
(A) In general
An individual described in subparagraph (B) shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the Army Field Manual 2–22.3.
(B) Individual described
An individual described in this subparagraph is an individual who is—
(i) in the custody or under the effective control of an officer, employee, or other agent of the United States Government; or
(ii) detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict.
(3) Implementation
Interrogation techniques, approaches, and treatments described in Army Field Manual 2–22.3 shall be implemented strictly in accord with the principles, processes, conditions, and limitations prescribed by Army Field Manual 2–22.3.
(4) Agencies other than the Department of Defense
If a process required by Army Field Manual 2–22.3, such as a requirement of approval by a specified Department of Defense official, is inapposite to a department or an agency other than the Department of Defense, the head of such department or agency shall ensure that a process that is substantially equivalent to the process prescribed by Army Field Manual 2–22.3 for the Department of Defense is utilized by all officers, employees, or other agents of such department or agency.
(5) Interrogation by Federal law enforcement
The limitations in this subsection shall not apply to officers, employees, or agents of the Federal Bureau of Investigation, the Department of Homeland Security, or other Federal law enforcement entities.
(6) Update of the Army Field Manual
(A) Requirement to update
(i) In general
Not sooner than three years after November 25, 2015, and once every three years thereafter, the Secretary of Defense, in consultation with the Attorney General, the Director of the Federal Bureau of Investigation, and the Director of National Intelligence, shall complete a thorough review of Army Field Manual 2–22.3, and revise Army Field Manual 2–22.3, as necessary to ensure that Army Field Manual 2–22.3 complies with the legal obligations of the United States and the practices for interrogation described therein do not involve the use or threat of force.
(ii) Availability to the public
Army Field Manual 2–22.3 shall remain available to the public and any revisions to the Army Field Manual 2–22.3 adopted by the Secretary of Defense shall be made available to the public 30 days prior to the date the revisions take effect.
(B) Report on best practices of interrogations
(i) Requirement for report
Not later than 120 days after November 25, 2015, the interagency body established pursuant to Executive Order 13491 (commonly known as the High-Value Detainee Interrogation Group) shall submit to the Secretary of Defense, the Director of National Intelligence, the Attorney General, and other appropriate officials a report on best practices for interrogation that do not involve the use of force.
(ii) Recommendations
The report required by clause (i) may include recommendations for revisions to Army Field Manual 2–22.3 based on the body of research commissioned by the High-Value Detainee Interrogation Group.
(iii) Availability to the public
Not later than 30 days after the report required by clause (i) is submitted such report shall be made available to the public.
(b) International Committee of the Red Cross access to detainees
(1) Requirement
The head of any department or agency of the United States Government shall provide the International Committee of the Red Cross with notification of, and prompt access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, contractor, subcontractor, or other agent of the United States Government or detained within a facility owned, operated, or effectively controlled by a department, agency, contractor, or subcontractor of the United States Government, consistent with Department of Defense regulations and policies.
(2) Construction
Nothing in this subsection shall be construed—
(A) to create or otherwise imply the authority to detain; or
(B) to limit or otherwise affect any other individual rights or state obligations which may arise under United States law or international agreements to which the United States is a party, including the Geneva Conventions, or to state all of the situations under which notification to and access for the International Committee of the Red Cross is required or allowed.
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Editorial Notes
References in Text
Executive Order 13491, referred to in subsec. (a)(6)(B)(i), is Ex. Ord. No. 13491, Jan. 22, 2009, 74 F.R. 4893, which is set out as a note under
Codification
Section was enacted as part of the National Defense Authorization Act for Fiscal Year 2016, and not as part of the Detainee Treatment Act of 2005 which comprises this chapter.