In the aftermath of September 11th, the U.S. government has been consistently faced with delicate issues surrounding ways to treat detainees in its custody. Interrogation, torture and rendition have been topics of much discussion and debate. The ABA strongly opposes torture or any cruel, inhuman and degrading treatment of detainees.

U.S. obligations under the Convention Against Torture, the International Covenant on Civil and Political Rights, as well as U.S. law prohibit cruel, inhuman and degrading treatment of detainees in U.S. custody. The United States’ official policy is that it does not torture, and President Bush has expressed this position publicly. Despite this, there have been several examples of individuals held at Guantanamo or rendered to other countries who have been tortured, some of whom have been subsequently released. The U.S rendition program relies on diplomatic assurances – commitments that the receiving nation(s) will not torture detainees. Common Article 3 of the Geneva Conventions and the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) established that detainees held by the U.S. cannot be transferred to a country where it is more likely than not that the individual will be tortured.

In 2005, Sen. John McCain introduced the Detainee Treatment Act (“DTA”), which became law as part of the Department of Defense Appropriations Act of 2006. The DTA established the U.S. Army Field Manual as the uniform standard for military interrogators and prohibited cruel, inhuman, and degrading treatment of persons in the detention of the U.S. government.

The U.S. Army Field Manual on Human Intelligence Collector Operations (“Army Field Manual”) was adopted in September 2006; however, a July 2007 Executive Order allowed certain federal agents, most notably those of the CIA, to use enhanced interrogation techniques, such as waterboarding, sleep deprivation, induced hypothermia, isolation, and stress positions.

The 110th Congress has been aggressively pursuing oversight of detainee treatment issues. On the House side, Rep. Bill Delahunt, Chairman of the House Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight, has held a series of hearings on torture and diplomatic assurances. There have also been a number of hearings in the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. The Senate Armed Services Committee also recently held a hearing on aggressive interrogation practices that received a lot of attention. Additionally, Sen. Dianne Feinstein held a hearing for the Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security on improving detainee policy.

On February 13, 2008, the Senate passed H.R. 2082, the FY 2008 Intelligence Authorization legislation. The ABA sent a letter (PDF) supporting inclusion in the legislation of a provision that all U.S. interrogators should follow the Army Field Manual when conducting interrogations. The President vetoed the bill and the House sustained the President’s veto.

In addition, the ABA had previously sent a letter (PDF) to the House of Representatives supporting the inclusion of the American Anti-Torture Act of 2007 in the FY 2008 war supplemental appropriations act, which would apply the Army Field Manual to all U.S. government agencies. However, the provision died in the Senate after it was unable to overcome a Republican filibuster.

On May 20, 2008, the Department of Justice Office of the Inspector General (PDF) released a report revealing that top government officials did not act on concerns of abuse they received as early as 2002. Several FBI agents wrote individual reports stating concerns over unlawful interrogation tactics overseas, which prompted the OIG investigation. Although FBI agents did not themselves use abusive tactics, many of them observed other agencies, like the CIA, using harsh interrogation techniques.

On June 5, 2008, the Inspector General of the Department of Homeland Security (PDF) released a report stating that the rendition of Canadian citizen Maher Arar by the U.S. government to Syria, which was based on diplomatic assurances, violated U.S. obligations to the Convention Against Torture.

• Torture and other cruel, inhuman or degrading treatment of detainees violate U.S. values and image.


• There should be a uniform standard requiring anyone acting under the color of U.S. authority to abide by the principles of humane treatment contained in Common Article 3 of the Geneva Conventions and the Army Field Manual in the treatment of detainees.


• The United States should set a strong example for upholding the rule of law by respecting its legal obligations regarding detainees in its custody.

The ABA adopted policy (PDF) in August 2004 that the United States government should abide by the Geneva Conventions and investigate any mistreatment of detainees in its custody, as well as make certain that detainees are not transferred to countries where they will be tortured or exposed to other cruel inhuman and degrading treatment. More recently, in August 2007, the ABA adopted policy (PDF) calling on Congress to override the executive order that interpreted the United States’ obligations under the Geneva Conventions relating to detainee treatment. Specifically, the ABA called upon Congress to establish the Army Field Manual as the uniform standard for the treatment of detainees in U.S. custody.