42 U.S.C. § 2000dd — Prohibition on cruel, inhuman, or de-

Page 5324 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2000dd Short Title note set out under section 2000cc of this title and Tables. CHAPTER 21D—DETAINEE TREATMENT Sec. 2000dd. Prohibition on cruel, inhuman, or de- grading treatment or punishment of persons under custody or control of the United States Government. 2000dd–0. Additional prohibition on cruel, inhu- man, or degrading treatment or pun- ishment. 2000dd–1. Protection of United States Government personnel engaged in authorized inter- rogations. 2000dd–2. Limitation on interrogation techniques. § 2000dd. Prohibition on cruel, inhuman, or de- grading 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 Govern- ment, regardless of nationality or physical loca- tion, shall be subject to cruel, inhuman, or de- grading treatment or punishment. (b) Construction Nothing in this section shall be construed to impose any geographical limitation on the ap- plicability of the prohibition against cruel, in- human, or degrading treatment or punishment under this section. (c) Limitation on supersedure The provisions of this section shall not be su- perseded, except by a provision of law enacted after December 30, 2005, which specifically re- peals, 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 pun- ishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Under- standings to the United Nations Convention Against Torture and Other Forms of Cruel, In- human or Degrading Treatment or Punishment done at New York, December 10, 1984. (Pub. L. 109–148, div. A, title X, § 1003, Dec. 30, 2005, 119 Stat. 2739; Pub. L. 109–163, div. A, title XIV, § 1403, Jan. 6, 2006, 119 Stat. 3475.) 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 Pub. L. 109–148. CODIFICATION Pub. L. 109–148 and Pub. L. 109–163 enacted identical sections. Statutory Notes and Related Subsidiaries SHORT TITLE Pub. L. 109–148, div. A, title X, § 1001, Dec. 30, 2005, 119 Stat. 2739, and Pub. L. 109–163, div. A, title XIV, § 1401, Jan. 6, 2006, 119 Stat. 3474, provided that: ‘‘This title [enacting this chapter, amending section 2241 of Title 28, Judiciary and Judicial Procedure, and enacting pro- visions set out as a note under section 801 of Title 10, Armed Forces] may be cited as the ‘Detainee Treat- ment Act of 2005’.’’ UNITED STATES POLICY TOWARD DETAINEES Pub. L. 110–53, title XX, § 2034, Aug. 3, 2007, 121 Stat. 517, provided that: ‘‘(a) FINDINGS.—Congress finds the following: ‘‘(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 crimi- nal laws’ and recommended that the United States engage its allies ‘to develop a common coalition ap- proach 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 detain- ees. ‘‘(3) The Secretary of State has launched an initia- tive to try to address the differences between the United States and many of its allies regarding the treatment of detainees. ‘‘(b) SENSE OF CONGRESS.—It is the sense of Congress that the Secretary, acting through the Legal Adviser of the Department of State, should continue to build on the Secretary’s efforts to engage United States allies to develop a common coalition approach, in compliance with Common Article 3 of the Geneva Conventions and other applicable legal principles, toward the detention and humane treatment of individuals detained during Operation Iraqi Freedom, Operation Enduring Free- dom, or in connection with United States counterterrorist operations. ‘‘(c) REPORTING TO CONGRESS.— ‘‘(1) BRIEFINGS.—The Secretary of State shall keep the appropriate congressional committees fully and currently informed of the progress of any discussions between the United States and its allies regarding the development of the common coalition approach described in subsection (b). ‘‘(2) REPORT.—Not later than 180 days after the date of the enactment of this Act [Aug. 3, 2007], the Sec- retary of State, in consultation with the Attorney General and the Secretary of Defense, shall submit to the appropriate congressional committees a report on any progress towards developing the common coali- tion approach described in subsection (b). ‘‘(d) DEFINITION.—In this section, the term ‘appro- priate congressional committees’ means— ‘‘(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 Serv- ices, 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 Page 5325 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2000dd conflicts, to ensure compliance with the treaty obliga- tions of the United States, including the Geneva Con- ventions, and to take care that the laws of the United States are faithfully executed, I hereby order as fol- lows: SECTION 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intel- ligence Agency (CIA) from September 11, 2001, to Janu- ary 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of depart- ments and agencies shall take all necessary steps to en- sure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order. Upon request, the Attorney General shall provide guidance about which directives, orders, and regulations are inconsistent with this order. SEC. 2. Definitions. As used in this order: (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, Intel- ligence 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 Conven- tion Against Torture and Other Cruel, Inhuman or De- grading 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 Con- dition 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 Con- dition 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 per- son,’’ ‘‘murder of all kinds,’’ ‘‘mutilation,’’ ‘‘cruel treatment,’’ ‘‘torture,’’ ‘‘outrages upon personal dig- nity,’’ 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 fa- cilities used only to hold people on a short-term, tran- sitory basis. SEC. 3. Standards and Practices for Interrogation of Indi- viduals in the Custody or Control of the United States in Armed Conflicts. (a) Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal tor- ture statute, 18 U.S.C. 2340–2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such per- sons shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treat- ment, and torture), nor to outrages upon personal dig- nity (including humiliating and degrading treatment), whenever such individuals are 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 de- partment or agency of the United States. (b) Interrogation Techniques and Interrogation-Related Treatment. Effective immediately, an individual in the custody or under the effective control of an officer, em- ployee, or other agent of the United States Govern- ment, 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 treat- ment related to interrogation, that is not authorized by and listed in Army Field Manual 2–22.3 (Manual). In- terrogation techniques, approaches, and treatments de- scribed in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes re- quired by the Manual, such as a requirement of ap- proval 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 author- ized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not in- volve the use of force, threats, or promises. (c) Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attor- ney 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 interro- gation—including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2–22.3, and its predecessor docu- ment, Army Field Manual 34–52—issued by the Depart- ment of Justice between September 11, 2001, and Janu- ary 20, 2009. SEC. 4. Prohibition of Certain Detention Facilities, and Red Cross Access to Detained Individuals. (a) CIA Detention. The CIA shall close as expedi- tiously as possible any detention facilities that it cur- rently operates and shall not operate any such deten- tion 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 Inter- national 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. SEC. 5. Special Interagency Task Force on Interrogation and Transfer Policies. (a) Establishment of Special Interagency Task Force. There shall be established a Special Task Force on In- terrogation 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 Agen- cy; (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 em- ployees 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 depart- ments 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 Page 5326 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2000dd–0 be officers or full-time or permanent part-time employ- ees 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 di- rect its work. The Chair may establish and direct sub- groups of the Special Task Force, consisting exclu- sively 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 addi- tional or different guidance for other departments or agencies; and (ii) to study and evaluate the practices of transfer- ring 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 circum- venting the commitments or obligations of the United States to ensure the humane treatment of in- dividuals in its custody or control. (f) Administration. The Special Task Force shall be es- tablished for administrative purposes within the De- partment 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 Assist- ant 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. SEC. 6. Construction with Other Laws. Nothing in this order shall be construed to affect the obligations of of- ficers, employees, and other agents of the United States Government to comply with all pertinent laws and treaties of the United States governing detention and interrogation, including but not limited to: the Fifth and Eighth Amendments to the United States Constitution; the Federal torture statute, 18 U.S.C. 2340–2340A; the War Crimes Act [of 1996], 18 U.S.C. 2441; the Federal assault statute, 18 U.S.C. 113; the Federal maiming statute, 18 U.S.C. 114; the Federal ‘‘stalking’’ statute, 18 U.S.C. 2261A; articles 93, 124, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. 893, 924, 928, and 934; section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd; section 6(c) of the Military Commissions Act of 2006, Public Law 109–366; the Gene- va Conventions; and the Convention Against Torture. Nothing in this order shall be construed to diminish any rights that any individual may have under these or other laws and treaties. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, or other entities, its officers or employees, or any other person. BARACK OBAMA. § 2000dd–0. Additional prohibition on cruel, inhu- man, or degrading treatment or punishment (1) In general No individual in the custody or under the physical control of the United States Govern- ment, regardless of nationality or physical lo- cation, 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 Constitu- tion of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Conven- tion 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. (Pub. L. 109–366, § 6(c), Oct. 17, 2006, 120 Stat. 2635.) Editorial Notes CODIFICATION Section was enacted as part of the Military Commis- sions Act of 2006, and not as part of the Detainee Treat- ment Act of 2005 which comprises this chapter. § 2000dd–1. Protection of United States Govern- ment personnel engaged in authorized inter- rogations (a) Protection of United States Government per- sonnel 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 per- son, arising out of the officer, employee, mem- ber of the Armed Forces, or other agent’s engag- ing in specific operational practices, that in- volve 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 se- rious, continuing threat to the United States, its interests, or its allies, and that were offi- cially 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 re- liance on advice of counsel should be an impor- tant factor, among others, to consider in assess- ing whether a person of ordinary sense and un- derstanding 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 prosecu- tion for any criminal offense by the proper au- thorities. (b) Counsel The United States Government shall provide or employ counsel, and pay counsel fees, court