Detainee Treatment Act

The Detainee Treatment Act of 2005 is an act passed by the United States Congress on December 31 2005, specifying explicit standards for the treatment of captives the United States apprehended during its "Global War on Terror".

Explicitly only allows the techniques in the Army Field Manual on interrogation

United States Senator John McCain, who was tortured by when he was a prisoner of North Vietnam, is the sponsor most closely identified with the Act. He argued that the interrogation techniques used on American captives should be restricted to those techniques described in the United States Army's Field Manual on interrogation. Vice President Dick Cheney argued that these restrictions should only apply to captives in military custody, and that the CIA should still be allowed to employ "extended interrogation techniques".

Stripped captives of the right to initiate habeas corpus petitions

The Act also stripped captives of the right to initiate habeas corpus petitions in the US Justice system. In the event the Judicial Branch interpreted this as prohibiting Guantanamo captives from initiating new habeas corpus petitions, but allowing existing habeas corpus petitions to run their course.

While the Act stripped captives of the right to initiate new habeas corpus petitions, it opened a more narrow avenue for appeal. Captives were allowed to submit requests to a Washington DC court of appeals. The appeals court had the option of reviewing the evidence the Combatant Status Review Tribunal used to confirm that the captive was an "enemy combatant", if it thought the captive had a reasonable claim the Tribunal had not complied with the rules laid out for it.

Jonathon Hafetz, writing in The Jurist, commented that this left nine captives whose Tribunals had determined that they were not enemy combatants after all had no where to appeal their detention, even though they had been essentially ruled innocent.

The DTA and the Military Commissions Act of 2006

One of the habeas corpus petitions that continued to proceed after the passage of the DTA was Hamdan v. Rumsfeld. One of the consequences, when the United States Supreme Court ruled on this petition, in the summer of 2006, is that it shut down the military commissions the Bush Presidency set up to try captives. The Supreme Court ruled that the Executive Branch lacked the constitutional authority to authorize military commissions. It ruled that this authority lay with Congress.

Subsequently, in the fall of 2006, the United States Congress passed the Military Commissions Act of 2006 (MCA). The MCA authorized Military Commissions very similar to those set up by the Presidency. It also specified that all the captive's outstanding habeas corpus petitions would be stayed.

Appeals in Federal court

On Monday June 23 2008 it was announced that a three judge Federal court of appeal had overturned the determination of Huzaifa Parhat's Combatant Status Review Tribunal on Friday June 20 2008. Parhat's was the first case to ruled on since the Supreme Court's ruling in Boumediene v. Bush. However, the appeals court's ruling was under the section of the Detainee Treatment Act that allowed captives to challenge their Combatant Status Review Tribunal's determination that they were "enemy combatants" -- not due to the Supreme Court's restoration of their right to mount habeas corpus petitions.

The Los Angeles Times quoted comments on the ruling from David Cole, the author of two books on military law:

"Now all of these cases have been revived and this is the first case to move forward. And here is somebody that the military has been holding on to for six years and the federal court now says he shouldn't have been held in the first place.

Absent this independent judicial review, he might have been sitting there for another 10 to 15 years. Now he has a chance to find freedom."