The President today signed into law into law S. 1356, the National Defense Authorization Act for Fiscal Year 2016.
The good news is that Section 1045 of the NDAA in effect codifies two of the provisions of the President’s Executive Order 13491, “Ensuring Lawful Interrogations.”
Subsection 1045(a) provides that any individual 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, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the Army Field Manual 2–22.3. That subsection also requires a review of Field Manual 2–22.3 every three years, and requires that the Manual be revised as necessary to ensure that it “complies with the legal obligations of the United States and the practices for interrogation described therein do not involve the use or threat of force.”
Subsection 1045(b) requires the head of any department or agency to “provide the International Committee of the Red Cross with notification of, and prompt access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, contractor, subcontractor, or other agent of the United States Government or detained within a facility owned, operated, or effectively controlled by a department, agency, contractor, or subcontractor of the United States Government, consistent with Department of Defense regulations and policies.”
The bad news, of course, is that the NDAA also contains provisions that will effectively prevent closure of the detention facility at Guantánamo, which I described here–including sections 1031 and 1032, which prohibit the relocation of the final few dozen GTMO detainees to the United States. (In this post, I explain why those provisions, although reprehensible and deeply unwise, are not unconstitutional.)