Outsourcing Torture? It Depends

Torture At Abu Ghraib

It depends on what you mean by "outsourcing." If, like me, you've been assuming that "interrogations" of detainees prisoners at Guantanamo and the "black sites" were all being conducted only by CIA employees or uniformed armed forces personnel or at the very least US government employees, you're probably making a mistake. The facts seem to be that "interrogations" have frequently been conducted by "contractors" and not by government employees. That's right. Arguments about what the CIA's employees can and cannot do don't directly address what contractors can do any more than US law determines how prisoners are to be interrogated after they are extraordinarily renditioned illegally extradited to other countries.

In November, 2007, the WaPo reported that a suit by 200 Iraqis against abuses by contractor "interrogators" at Abu Ghraib in 2003 could continue:

A federal judge in Washington ruled yesterday that a civil lawsuit alleging abuse and torture at the Abu Ghraib prison in Iraq can go forward against a U.S. military contractor, setting the stage for what could be the first case in a U.S. civilian court to weigh accountability for the notorious abuses in 2003.

U.S. District Judge James Robertson denied CACI International's motion to dismiss a civil lawsuit on behalf of more than 200 Iraqis who at one time were detained at the Abu Ghraib prison. The Iraqis allege that the contracted CACI interrogators took part in abuses and that the company should be held liable for the harm inflicted on the detainees.

Attorneys for the Arlington-based CACI have argued the company should be immune from such a lawsuit because it worked at the behest of the U.S. military, but Robertson said he believes a jury should hear the case, in part because CACI had its own chain of command and might not have answered directly to the military. /snip

Susan L. Burke, a lawyer representing the Iraqi detainees along with the Center for Constitutional Rights, alleges that CACI interrogators were responsible for numerous abuses. Burke also filed a similar lawsuit against Blackwater for wrongful death over the Sept. 16 incident in Baghdad. /snip

Military investigations of the Abu Ghraib abuse linked CACI interrogators to alleged abuses such as the use of dogs in interrogations and putting detainees in painful "stress positions."

The lawsuit, which remains pending and is apparently unique in getting so far toward a trial, makes the point that the "interrogations" weren't conducted solely by CIA or by army personnel. No. Not at all. In Abu Ghraib, the claim is that contractors were abusive. Contractors, as opposed to US employees, have been accused of abuse torture. Is Abu Ghraib an isolated venue for contractor use? Apparently it is not. Is Abu Ghraib an isolated venue for abuse? Apparently it is not. Evidently, the CIA uses contractors in a host of situations and in various locations to conduct their "enhanced interrogations."

In February 5, 2008 testimony before the Senate Select Intelligence Committee, CIA Director Mike Hayden admitted to using contractors for "enhanced interrogation" at the CIA's secret prisons, the so-called "black sites." The Q&A:

FEINSTEIN: I'd like to ask this question: Who carries out these [enhanced interrogation] techniques? Are they government employees or contractors?

HAYDEN: At our facilities during this, we have a mix of both government employees and contractors. Everything is done under, as we've talked before, ma'am, under my authority and the authority of the agency. But the people at the locations are frequently a mix of both -- we call them blue badgers and green badgers.

FEINSTEIN: And where do you use only contractors?

HAYDEN: I'm not aware of any facility in which there were only contractors. And this came up...

FEINSTEIN: Any facility anywhere in the world?

HAYDEN: Oh, I mean, I'm talking about our detention facilities. I want to make something very clear, because I don't think it was quite crystal clear in the discussion you had with Attorney General Mukasey.

As Hayden pointed out, "In many instances, the individual best suited for the task may be a contractor." And you'll note the waffling around about "detention facilities" as compared to some other kind of "facility."

What's this blue badge green badge talk? "Green badges" are contractors and there are two kinds: individuals, who are contracted by the CIA, and those who work for a corporation under contract with the CIA. For quite some time, the CIA has directly hired its former employees and other experts individually as contractors. Since 9/11 there has been an increase of corporate contractors without whom the CIA probably could not function. Put another way, some of the CIA's important functions have been "privatized."

Because of this, Hayden was asked about whether "enhanced interrogations" had been "outsourced." He denied it:

HAYDEN: This is not where we would turn to Firm X, Y or Z, and say, This is what we would like you to accomplish. Go achieve that for us and come back when you're done. That is not what this is.

This is a governmental activity under governmental direction and control, in which the participants may be both government employees and contractors, but it's not outsourced.

FEINSTEIN: I understand that.

HAYDEN: OK. Good.

FEINSTEIN: Is not the person that carries out the actual interrogation, not the doctor or the psychologist or supervisor or anybody else, but the person that carries out the actual interrogation a contractor?

HAYDEN: Again, there are times when the individuals involved are contractors, and there are times when the individuals involved have been government employees. It's been a mix, ma'am.

In other words, the "governmental function" of "enhanced interrogations" is not necessarily carried out by government employees. Oh no. In Bushco's America in some cases it's carried out by private contractors. This evidently is not new news. The issue has been around for some time.

In 2004, the Baltimore Sun reported that contractors were acting as interrogators:

The U.S. military's use of private contractors for the sensitive task of wartime interrogation marks a sharp shift from traditional practices and is raising difficult issues of accountability as authorities investigate the alleged role civilian workers played in the abuse of Iraqi prisoners. /snip

But critics say that reliance on nonmilitary personnel undermines a key safeguard - the threat of punishment. While U.S. soldiers allegedly involved in the acts face a military court-martial or other sanctions, the legal status and possible penalties for private workers are far less certain.

Two federal laws adopted in the past decade - each intended to protect Americans abroad - could be used to pursue charges against private military workers overseas, legal scholars and military experts said yesterday. Neither statute has been tested in any situation like the Iraqi prison abuse.

"The whole status of private contractors is murky," said law professor Scott L. Silliman, executive director of Duke University's Center on Law, Ethics and National Security. The growth in the use of private contractors to fill even the most sensitive military roles has in some ways outpaced U.S. law, he said: "It is an area of great concern."

In other words, the privatization of enhanced interrogation torture not only pays private corporations and individuals for performing governmental functions, it also intolerably undermines legal accountability for abuse and for torture. Criminal legal accountability under the two available, federal statutes requires prosecutions by US Attorneys. To the extent that no such prosecutions have been commenced, the "privatization", the "outsourcing" shields torture crimes from all accountability.