Defense bans contractors from interrogating detainees

The Pentagon has issued an interim rule that would formally prevent private contractors from interrogating detainees in military custody.

The notice, published on Wednesday in the Federal Register, implements a fiscal 2010 National Defense Authorization Act provision by allowing only government personnel to question detainees.

The statute, however, does permit the Defense secretary to waive the prohibition temporarily if doing so is "vital to the national security interests of the United States."

Interrogation is a key tool for the United States and its allies to win the wars in Iraq and Afghanistan, but the practice must operate legally and should support the military's mission overseas, according to the rule.

"It is imperative that contractor activities in support of these efforts comply with the law and do not detract from the commander's intent in order to contribute to mission success," the draft regulation stated. "A lack of compliance affects the perception of both local citizens and the international community, which would provide support to our adversaries that will adversely impact the U.S. government's efforts."

The CIA already has stopped using private contractors for interrogations.

While private sector firms will not be allowed to grill detainees, they will be permitted to assist in the interrogation.

At the request of the Obama administration, lawmakers revised the 2010 authorization measure to allow contractor personnel with proper training and security clearances to serve as linguists, interpreters, report writers, information technology technicians, and trainers and advisers to the interrogators.

The contractors must be subject to the same laws, rules, procedures and policies as the government interrogators, and qualified and trained Defense Department personnel must oversee them to ensure they do not perform prohibited activities.

"In some limited cases, a contract interrogator may possess the best combination of skills to obtain critical intelligence, and this provision, therefore, could prevent U.S. forces from conducting lawful interrogations in the most effective manner," the Office of Management and Budget said in a July 2009 statement of policy on the Defense measure.

The final version of the law defines detainees as "enemy prisoners of war, civilian internees and retained personnel" but not Defense Department or contractor personnel being held for law enforcement purposes.

The provision was a response to allegations that employees of private firms CACI International Inc. and L-3 Communication (formerly Titan Corp.) conspired to torture detainees at the Abu Ghraib prison in Iraq in 2003 and 2004.

Some of the Iraqi detainees have successfully sued the firms, but the companies have appealed the ruling. The 4th U.S. Circuit Court of Appeals in Richmond, Va., is hearing the case. Contractors are arguing they are covered by the same level of immunity that protects U.S. soldiers from being sued by enemy combatants in wartime.

"Immediate implementation of this statute is necessary to preclude a contracting officer from inadvertently awarding a contract that allows for the interrogation of detainees by contractor personnel," the interim rule stated.

Defense will accept comments on the rule through Jan. 3, 2011. They can be submitted by e-mail at dfars@osd.mil; through the Regulations.gov website; or by mail to:

Defense Acquisition Regulations System
Attn.: Julian E. Thrash, OUSD (AT&L) DPAP/DARS
3060 Defense Pentagon, Room 3B855
Washington, D.C. 20301-3060