Videotaping Interrogations? The Tactical Loophole

With little notice, the Department of Defense issued long-awaited regulations last week requiring that all formal interrogations of detainees be videotaped and monitored for compliance with treaties and human rights law.

But the rules contain a major loophole, one that military units are currently exploiting. It applies only to "strategic" interrogations, and not "tactical interrogations." Indeed, the rule "specifically excludes ... members of the Armed Forces engaged in direct combat operations and DoD personnel conducting tactical questioning."

The definition of what separates "strategic" and "tactical" is an open question. When a member of a task force picks up someone, they are not immediately required to notify their command centers that they've captured a detainee. They are free to question the individual without anyone present, and no one argues that that's a bad thing. Battlefield detainees often have actionable intelligence that can save American lives.  Within 96 hours of being captured, if the detainee is found to be a mope or simply an innocent civilian, he/she must be let go.

According to the rule, tactical interrogation is defined as "[t]he expedient initial questioning for information of immediate tactical value. Tactical questioning is generally performed by members of patrols, but can be done by any DoD personnel. Tactical questioning is limited to direct questioning." That's a fairly broad definition.

Once the interrogation moves to "[a]ny theater- or higher-level internment facility under the control of the Department of Defense, including the Detention Facility in Parwan, Afghanistan; the Taji Theater Internment Facility Reconciliation Center and the Remembrance Theater Internment Facility, Iraq; the DoD Detention Facility at the U.S. Naval Base, Guantanamo Bay, Cuba; and any successor internment facilities...." the cameras must be set up. In theory.

Even though the Obama administration has tightened the chain of custody rules for detainees, they continue to sanction an interrogation regime that bears resemblance to those that have come under criticism from human rights groups. There are at least a half dozen secret "Field Interrogation Sites" around Afghanistan that are designed solely to extract operational and time-sensitive information from detainees. In transit to and from those sites, it is easy for coalition forces to "lose" a detainee for a short period of time because their intelligence officers were not able to get the information they're pretty sure the detainee possessed. Again, one can forgive soldiers for these procedural lapses.

What complicates this picture is that the threshold separating tactical collection from strategic collection is unclear. In Afghanistan, there are three Defense Intelligence Agency interrogation facilities. Assuming that a Task Force has already conducted a field interrogation of Prisoner A, if the same prisoner is then dropped off at one of the secret DIA sites, does the interrogation become "strategic" because it is the second of a series? Are strategic interrogations those conducted of detainees who have already been given a formal designation?

The new regulation states that "[a]s a condition of having access to conduct strategic intelligence interrogations, individuals representing other U.S. Government agencies, interagency mobile interrogation teams, and foreign governments must comply with this DTM when conducting strategic intelligence interrogations."

Other government agencies -- the CIA. Thanks to public disclosure and an internal turf war won by the Pentagon, CIA is largely out of the tactical interrogation picture today. The regulation seems to be aimed at ensuring that all CIA interrogations are videotaped.

The new regulation allows the Secretary of Defense to suspend the videotaping requirement for 30 days if "such a suspension is vital to the national security interests of the United States." Congress must be notified within five days. And then, after 30 days, the Secretary can designate another suspension. In theory, the Secretary has to make these determinations on a case-by-case basis. In practice, the Secretary can legally set up a "special access program" for categories of detainees.

So in the end, it is unclear how many interrogations will actually be videotaped.