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Legislation page rev. 8 Sept 2008
110th Congress: What's currently moving on the Hill?
Note: Congress has been in recess during August, reconvening after Labor Day and the political conventions, and recessing in October and early November for the election campaigns. Anti-torture provisions, if any are amended to other legislation, will move very fast during this fall session.
110th Congress: What's been introduced, but isn't currently in play? [listed by topic]
Guantanamo Prison Closure: Closure of the Guantanamo Bay Detention Facility of 2007 (S. 1469, Sen. Harkin, D-IA).
Identical bills to require the president to close the DoD detention facility at Guantanamo Bay, Cuba have also been introduced in the Senate (S. 1249, Sen. Feinstein, D-CA) and the House (H.R. 2212, Rep. Harman, D-CA).
Habeas restoration:
To Restore Habeas Corpus for Individuals Detained ... at Guantanamo Bay, Cuba ... (H.R. 2826, Rep. Skelton, D-MO), a bill to restore recognition of the protections of habeas corpus for U.S. detainees at Guantanamo. Its corollary (although not identical) measure in the Senate is The Habeas Corpus Restoration Act (S. 185, Sen.Specter, R-PA).
Enemy Combatant Detention Reivew Act of 2008 (H.R. 6705, Rep. Smith, R-TX, with Reps. Boehner, R-OH, Blunt R-MD, and Hunter, R-CA). This is a Republican effort to modify habeas procedures in U.S. federal courts post-Boumedienne, to be applied to those deemed "enemy combatants" by the President. Note: explicitly acknowledges the existence of armed conflict status with al Qaeda and the Taliban, perhaps serving as congresional authorization for executive branch actions. Senate corollary is S. 3401, introduced by Sens. Graham (R-SC) and Lieberman (I-CN).
Interrogation Techniques:
Restoring America's Integrity Act (S. 3437, Sen. Feinstein, D-CA, with Sens. Feingold, D-WI, Hagel, R-NE, Rockefeller, D-WV, Whitehouse, D-RI, and Wyden, D-OR). Would use the standards of the Army Field Manual for all interrogations by U.S. and prohibit U.S. interrogations to be conducted by contractors.
American Anti-Torture Act of 2007 (H.R. 4114, Reps. Nadler, D-NY, and Delahunt, D-MA). Would apply the standards and constraints of the Army Field Manual on Intelligence Interrogation to all U.S. government entities and contractors, including the CIA. In the Senate, Bill to Establish Uniform Intelligence Techniques ... (S. 1943, Sen. Kennedy, D-MA) serves this issue.
To Amend the Detainee Treatment Act ... [to include waterboarding in the definition of cruel, inhuman, and degrading treatment] (H.R. 5460, Rep. Eschoo, D-CA).
Reformation of the MCA:
Restoring the Constitution Act (S. 576, Sen. Dodd, D-CT; H.R. 1415, Rep. Nadler, D-NY). Would amend certain provisions of the Military Commissions Act antithetical to prevention of torture and abusive conduct. Section-by-section description here.
Rendition to Torture:
Torture Outsourcing Prevention Act (H.R. 1352, Rep. Markey, D-MA). Addresses U.S. extraordinary rendition of enemy combatant suspects to detention and interrogation in countries known to have practiced torture, under "assurances" of humane treatment.
Restoring America's Integrity Act (S. 3437, Sen. Feinstein, D-CA, with Sens. Feingold, D-WI, Hagel, R-NE, Rockefeller, D-WV, Whitehouse, D-RI, and Wyden, D-OR). Would require ICRC (Red Cross) access to all detainees held by U.S. [addressing secret detentions, "ghost detainees," and disappearances in u.S. custody].
State secrets protection:
State Secrets Protection Act (S. 2533, Sen. Kennedy, D-MA; Sen. Leahy, D-VT; Sen. Specter, R-PA). "A bill to enact a safe, fair, and responsible state secrets privilege act." Senate Judiciary Committee held a hearing on 6 Mar 2008. "State secrets" was previously a rule of evidence, but the Bush administration has successfully used "state secrets" to move for dismissal of lawsuits before any pretrial activities have been conducted by the parties or the court. (Used to bar lawsuit by individual (El-Masri v. U.S., 479 F.3d 296 (4th Cir. 2007), who was the victim of rendition under mistaken identity, detained, and tortured during interrogation prior to his release.)
Videotaping interrogations:
Detainee Interrogation Recording Act of 2007 (H.R. 4660, Rep. Holt, D-NJ). As the name implies, requires recording of U.S. interrogation sessions.
U.S. Statutes
U.S. Statutes
Military Commissions Act of 2006 ("MCA"), Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006)
CRS report: for Congress The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous Department of Defense rules and the Uniform Code of Military Justice (CRS: RL33688)
Detainee Treatment Act of 2005. Part of the Department of Defense Appropriations Act of 2006 (Title X, H.R. 2863)(42 U.S.C. 2000dd; Public Law 109-163). Prohibits the “cruel, inhuman, or degrading treatment or punishment” of detainees and provides for “uniform standards” for interrogation. The Act also removed the federal courts’ jurisdiction over detainees wishing to challenge the legality of their detention, stating that “no court, justice or judge shall have jurisdiction to hear or consider” applications on behalf of Guantanamo detainees. (description from the Council on Foreign Relations).
CRS Report for Congress: Interrogation of Detainees: Overview of the McCain Amendment. (CRS RL 33655, updated 11 Dec 2007).
War Crimes Act of 1996, 18 USC 2441. The law initially criminalized grave breaches of the Geneva Conventions but was amended without a hearing the following year to include violations of Common Article 3.
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