The amendment affected the United States Senate Department of Defense Appropriations Act, 2006 (DOD Act); the amendment is commonly referred to as the Amendment on (1) the Army Field Manual and (2) Cruel, Inhumane, Degrading Treatment, amendment #1977 and also known as the McCain Amendment 1977. It became the Detainee Treatment Act of 2005 (DTA) as Division A, Title X of the DOD Act. The amendment prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay, by confining interrogations to the techniques in FM 34-52 Intelligence Interrogation. Also, section 1005(e) of the DTA prohibits aliens detained in Guantanamo Bay from applying for a writ of habeas corpus. Certain portions of the amendment were enacted as .
Amendment 1977 amended the defense appropriations bill for 2005 passed by the United States House of Representatives. The amendment was introduced to the Senate by Senator John McCain (R-Arizona) on October 3, 2005 as S.AMDT.1977
The amendment was co-sponsored by Senators Lindsey Graham, Chuck Hagel, Gordon H. Smith, Susan M. Collins, Lamar Alexander, Richard Durbin, Carl Levin, John Warner, Lincoln Chafee, John E. Sununu, and Ken Salazar.
On October 5, 2005, the United States Senate voted 90-9 to support the amendment. The Senators who voted against the amendment were Wayne Allard (R-CO), Christopher Bond (R-MO), Tom Coburn (R-OK), Thad Cochran (R-MS), John Cornyn (R-TX), James Inhofe (R-OK), Pat Roberts (R-KS), Jeff Sessions (R-AL), and Ted Stevens (R-AK).
"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."
The Boston Globe quoted an anonymous senior administration official saying, "Of course the president has the obligation to follow this law, (but) he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case. We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."
The Detainee Treatment Act cited the U.S. Army's Field Manual on interrogation as the authoritative guide to interrogation techniques, but did not cite a specific edition of the Manual. The contents of the Manual are controlled by the Department of Defense, and thus the executive branch controls whether a given technique will be permitted or banned. The Manual has been revised since the Amendment became law. The Department of Defense has claimed that none of the techniques permitted by the new Field Manual 2-22.3 are classified.
Also, the Detainee Treatment Act's anti-torture provisions were modified by the Graham-Levin Amendment, which was also attached to the $453-billion 2006 Defense Budget Bill. The Graham-Levin Amendment permits the Department of Defense to consider evidence obtained through torture of Guantanamo Bay detainees, and expands the prohibition of habeas corpus for redetainees, which subsequently leaves detainees no legal recourse if they are tortured.
Critics say these two actions deflate the Detainee Treatment Act from having any real power in stopping torture by the United States Government, and these were the true reasons why President Bush "conceded" to McCain's demands. The mainstream media credited Bush's concession to "overwhelming Congressional support" for the measure.
Criticisms have also been directed at Senators Lindsey Graham and Jon Kyl for their amicus curiae brief filed in the Hamdan v. Rumsfeld case, in which they argued that the Detainee Treatment Act's passage sufficed to deny the Supreme Court jurisdiction over the case. Language in the Congressional Record that the majority opinion cites was inserted into the Record for the day on which the amendment passed by Graham and Kyl after the legislation had already been enacted, and furthermore that the language in question was worded in such a manner as to imply it had been recorded in live debate. The revised Record contains such phrasing as Kyl's "Mr. President, I see that we are nearing the end of our allotted time" and Sen. Sam Brownback's "If I might interrupt". Brownback has not responded to press inquiries. Justice Scalia's dissent noted this as an example of Scalia's longstanding hostility to the use of legislative history. Scalia wrote: