New Defense Department Directive on Detainee Interrogations

As the Washington Post reports, the Defense Department has released a new directive to the military on rules governing the interrogation of detainees held in U.S. military custody around the world. According to the Post, the directive has been hotly debated within the administration, especially as Congress is currently considering the McCain bill to codify standards on the treatment of detainees. Here is the key paragraph, from my quick review.

It is DoD policy that:

All captured or detained personnel shall be treated humanely, and all intelligence interrogations, debriefings, or tactical questioning to gain 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 2310.1, “DoD Detainee Program (draft), upon publication (reference(d)), instructions or other issuances. Acts of physical or mental torture are prohibited.

The Directive also prohibits the use of dogs to harass detainees, imposes the same restrictions on foreign government or non-military interrogators and outlines procedures for oversight of these procedures and implementation.

This is a good start, and it is better than previous efforts, but I think it is probably not enough. The devil is in the details. “Applicable law and policy” seems a bit too vague for my taste and the vagueness is not helped by the fact that the directive “may include” relevant international law. The DoD should (and will in its Directive 2310.1 ) spell out what is permitted and what is not.

Still, I am coming around to the notion that the McCain Amendment is the best way to handle this. Ideally, the McCain Amendment would give a statutory framework and give guidance to the DoD and courts on how to interpret the effects of the Torture Convention and customary international law. The objections raised by opponents of the McCain Amendment are that it would import fuzzy and vague notions of international law, but that is going to happen anyway. It is better for this importation to happen through Congress, which will give some more substantive guidance on what the standards are, then through the executive branch or the federal courts.