The Department of Defense (DoD) just announced it is adopting as final, without any changes, an interim rule implementing a ban on using contractors to interrogate detainees. POGO submitted a public comment on the interim rule last December voicing our support but recommending several changes.
Even though the public comment period coincided with the holiday season, it is still surprising to see that only three respondents submitted comments on this important issue. Doesn’t anyone still remember Abu Ghraib, when the Army allowed employees of contractors CACI International and Titan Corp. to run amok at the Iraqi prison?
One nice thing about being one of only three commenters on a federal agency action is that you get that agency’s nearly full and undivided attention. In this case, it seems like POGO had a one-on-one chat with DoD, which apparently wasn’t interested in what we had to say. We think our comments deserved more thoughtful responses from DoD, because the final rule fails to adequately address several issues.
First, interrogating enemy prisoners of war and other kinds of detainees is an inherently governmental function that should only be performed by federal civilian or military personnel. The Army said so in a December 2000 policy directive covering intelligence activities. Thus, the rule should not grant the Secretary of Defense the authority to waive the prohibition on contractor interrogators. DoD’s disappointing response on this point ignored the substance of our concerns and did not explain the inconsistency with the Army’s 2000 policy directive.
Second, there should be a clear set of penalties for contractors that conduct unauthorized interrogations, up to and including criminal punishment and debarment. The abuses at Abu Ghraib occurred partly because the aforementioned Army directive lacked a system for holding violators accountable. DoD replied that it has no authority to write civil or criminal penalties into the regulation, but the “usual broad range of contractual remedies” available to contract officers, such as withholding contract award fees, contract termination, and suspension and debarment, are sufficient to ensure compliance. These would be the same remedies, by the way, which failed to prevent the Abu Ghraib fiasco.
Third, POGO is concerned there will be attempts to evade the new rule by transferring detainees to the custody of non-DoD agencies or to foreign governments. DoD could only respond that it hopes all government employees will “act in good faith and in accordance” with the law.
Finally, POGO thinks some of the wording in the rule requires clarification. Specifically, we are concerned that the definition of the terms “detainee” and “interrogation of detainees” is too imprecise and may open up loopholes. On this point, DoD provided a fairly substantive response addressing our concerns. DoD places faith in the new rule, supported by existing policies, to prevent another Abu Ghraib from happening again.
We’ll see if this new rule improves accountability and ensures better treatment of detainees.
Neil Gordon is a POGO Investigator.
Images: Human hand cut from mica at Hopewell Culture National Historical Park (U.S. Department of the Interior), U.S. Judge Learned Hand, 1924, (Library of Congress).