The Department of Defense (DoD) has issued a new DoD directive on the treatment and interrogation of detainees, dated Nov. 3, 2005, with another directive on general detainee operations still under revision.  Claiming simply to consolidate preexisting standards rather than setting new standards for detainee treatment, the Nov. 3, 2005, directive nevertheless does purport to establish conditions for access to DoD detainees by other parties, and establish requirements for the reporting of violations. 

The directive explicitly prohibits torture and requires the humane treatment of detainees.  It does not define either concept, other by referring to “applicable law and policy” without resolving which laws and policies might be applicable.  As such, it does not address the potential diversity of standards resulting from arguments that different laws should apply to different sets of detainees.  It therefore falls short of working towards the uniform treatment of detainees as envisioned by an amendment to the Fiscal Year 2006 defense appropriations bill adopted by the U.S. Senate 90-9 on Oct. 5, 2005.  

The directive may be read at http://www.cdi.org/news/law/DoD-Directive-3115_09.pdf and provides additional guidance on such matters as the role of health care professionals and guards.  Another directive on detainee operations generally is still under revision. 

The Directive’s Humane Treatment Provision 

DoD on Nov. 8, 2005, announced to the news media that it has issued DoD Directive No. 3115.09 with its primary focus on “DoD intelligence interrogations, detainee debriefings, and tactical questioning.”  The directive, signed by Acting Deputy Secretary of Defense Gordon England, provides that:   

All captured or detained personnel shall be treated humanely, and all intelligence interrogations, debriefings, or tactical questioning to gain intelligence from captured or detained personnel shall be conducted humanely, in accordance with applicable law and policy. Applicable law and policy may include the law of war, relevant international law, U.S. law, and applicable directives, including DoD Directive 2310.01, (under revision) (reference (d)), instructions or other issuances. Acts of physical or mental torture are prohibited. 

“DoD Directive 3115.09: DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning,” Nov. 3, 2005, http://www.cdi.org/news/law/DoD-Directive-3115_09.pdf

The directive flatly prohibits torture and inhumane treatment but does not define either directly.  As will be noted further below, while the directive requires interrogations to be “conducted humanely, in accordance with applicable law and policy,” it does not indicate which “applicable law or policy” might be applicable to which circumstances.

DoD Directive’s Applicability

Among others, the new DoD directive purports to apply to:

• comprehensive DoD entities
• DoD personnel conducting intelligence interrogations, detainee debriefings, and tactical questioning
• DoD contractors supporting interrogation, “to the extent incorporated into such contracts”
• employees of contractors “under DoD cognizance”
• non-DoD civilians given access to conduct intelligence interrogations, debriefings, “or other questioning of persons detained by the Department of Defense”

The directive states that it does not apply to interrogations or interviews conducted by DoD counterintelligence or law enforcement personnel for law enforcement purposes unless the questioning is “primarily for intelligence collection.”

Other Agencies Seeking Access to DoD Detainees

The directive does notably indicate that complicity with its provisions will be a condition for granting other agencies and their contractors access to DoD detainees. 

Such a provision is of special interest given two recent developments.  One is that the administration of President George W. Bush, which reportedly earlier had threatened to veto defense spending bills over detainee amendments (as well as differences over spending levels), now reportedly seeks a compromise exempting the CIA.  Another is an allegation by a news source, apparently based on alleged leaks of classified information by present or former CIA affiliates, of secret overseas CIA-run interrogation camps housing several dozen key terrorism suspects, raising questions about clarity and uniformity of policies as well as questions about checks and balances. 

Multi-agency interrogation has been an issue in detainee operations.  For example, according to FBI e-mails, DoD, FBI, and CIA interrogators were among those conducting interrogations at Guantanamo Bay.  And in the aftermath of the Abu Ghraib scandal, one of the concerns raised was over the diversity of entities and persons dealing with detainees at that detention facility, with accompanying questions about who was in charge, the standards they operated under, and the existence or absence of appropriate checks and balances.

The DoD directive purports to provide threshold conditions of access for all non-DoD entities seeking access to DoD detainees.

The directive requires that:

• any other U.S. agency, foreign government, or other parties wishing to question DoD detainees must agree to abide by DoD policies

• the agreement must be documented in writing and signed

• a trained and certified DoD interrogator must monitor the questioning, or if one is unavailable, another suitably trained DoD representative must conduct the monitoring

• the DoD monitor must report any non-adherence to DoD policies to appropriate DoD authorities

Agency “Turf” in the War on Terror

A lingering question is who has primary responsibility for dealing with detainees taken in counter-terrorism operations and why. 

Intelligence-gathering, law enforcement, detainee operations, and intelligence interrogation traditionally have been ancillary, incidental functions of military operations and arguably are not the Pentagon’s primary mission.  The military has operated prisons for some time, but that is not the purpose for which the agency was founded.

Diversity of Standards? Senate Amendment

As mentioned above, while the DoD directive on detainee interrogations requires interrogations to be “conducted humanely, in accordance with applicable law and policy,” it does not indicate which “applicable law or policy” might be applicable to which circumstances.  There has been controversy, for example, over the question of which sources of law are applicable to various DoD detentions, such as whether the Geneva Conventions apply to detainees allegedly taken in connection with the conflict in Afghanistan or seized in the Balkans.  For that matter, there have differences, and litigation, over the extent to which U.S. law constrains detainee operations at the U.S. base at Guantanamo Bay.

The diversity of standards the directive tolerates is not consistent with Senate Amendment 1977, added to the fiscal year 2006 defense appropriations bill, HR 2863.  SADMT 1977 strives towards a principle of uniform treatment for all detainees.  If adopted by the U.S. House of Representatives and signed into law, or enacted by overriding a presidential veto, SADMT 1977 would require all detainees under DoD custody or control to be treated in accordance with the U.S. Army Intelligence Interrogation Field Manual, including its classified annex, both of which could be amended after-the-fact by the Pentagon and the White House. 

SAMDT 1977 also would prohibit cruel, inhuman, or degrading treatment or punishment of any detainee in U.S. custody, as defined by U.S. reservations to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  The U.S. reservations were included when that treaty was ratified by the Senate.  The U.S. reservations seek to convey an understanding of what constitutes torture, and preserve the use of the death penalty, while also referencing prohibitions on maltreatment as defined under the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. 

Sen. John McCain, R. Ariz., a Vietnam War veteran held prisoner and tortured by the North Vietnamese, sponsored the amendment.  He was joined by multiple co-sponsors, including Sen. Lindsey Graham, R. S.C., a former Air Force JAG attorney, and current military judge in the Air Force Reserves, who opined during Supreme Court confirmation hearings that Congress has been AWOL in the war on terrorism with respect to detainee policies. 

Dogs

The new DoD directive bars the use of “military working dogs, contracted dogs, or any other dog in use by a government agency” as part of “an interrogation approach,” or to harass, intimidate, threaten, or coerce a detainee.  Dog-related detainee abuse was one of the variety of abuses coming to light at Abu Ghraib.

Interestingly, the directive does not simply bar the use of dogs in detainee operations.

Medical Personnel and Health-Based Exemption from Interrogation

Rather than prohibiting mental health personnel from assisting with interrogations, DoD comes at the matter from the opposite direction. 

It authorizes the use of behavioral science consultants in connection with interrogations, but bars the use of those same interrogation-support mental health experts from providing medical care, unless needed for an emergency. 

The directive also warns that no health care information is entitled to absolute confidentiality.

At the same time, the directive indicates that medical personnel (i.e., health care personnel tasked to provide health care, as opposed to interrogation-support) are to be in charge of medical decisions, subject to a separate set of DoD medical policies.  It also directs that: