12/08/2010 12:35 pm ET Updated May 25, 2011

Congratulations, Congress for Speedily Working on This: It Only Took You Six Years

It's a sizzling new speed record, for the U.S. Congress that is. It only took it six years but, hey, better late than ever, I suppose. Don't know what I'm talking about, do you? Allow me to refresh your memory.

Travel back in time to when the U.S. invasion of Iraq was barely a year old. It was in the beginning in 2004 that accounts of physical, psychological, and sexual abuse, including torture, rape, sodomy, and homicide of prisoners held in the Abu Ghraib prison in Iraq came to public attention.

Although most of the crimes committed against the Iraqi prisoners were carried out by regular U.S. military forces there was some private military contractor involvement.

CACI, for example, provided 27 interrogators to work in detention centers in Iraq. Several worked at Abu Ghraib, including Steven Stephanowicz, who was named in General Antonio M. Taguba's report on events in Abu Ghraib.

A series of mostly internal military investigations were conducted in the United States as a result of the revelations at Abu Ghraib. Those included:

• the final report of the Independent Panel to Review DoD Operations

•Army provost marshal general assessment of detention and corrections operations in Iraq, November 6, 2003 (Ryder Report)

• Joint Task Force Guantanamo assistance visit to Iraq to assess intelligence operations, September 5,2003 (Miller Report)

•Army inspector general assessment of doctrine and training for detention operations, July 23,2004 (Mikolashek Report)

•Fay investigation of activities of military personnel at Abu Ghraib and related LTG Jones investigation under the direction of General Kern, August 16, 2004 (see Appendix 3)

•Naval inspector general's review of DoD worldwide interrogation operations

• Commander, Joint Task Force-7, review of activities of military intelligence personnel at Abu Ghraib (Taguba Report)

•Army Reserve Command inspector general assessment of military intelligence and military police training

The Fay report cited two cases in which "Civilian 21" allegedly directed soldiers to use military dogs to threaten prisoners. It also alleged that a second CACI interrogator, identified only as "Civilian 5," "grabbed a detainee (who was handcuffed) off a vehicle and dropped him to the ground. He then dragged him into an interrogation booth and as the detainee tried to get up ... would yank the detainee very hard and make him fall again." The report says that the CACI employee refused to take instructions from team leaders and military trainers. At one point the civilian allegedly said, "I have been doing this for 20 years and I do not need a 20-year-old telling me how to do my job."

The Taguba report found that Steven Stephanowicz "Allowed and/or instructed MPs, who were not trained in interrogation techniques, to facilitate interrogations by 'setting condition' which were neither authorized and in accordance with applicable regulations/policy. He clearly knew his instructions equated to physical abuse."

Stephanowicz was an example of the wrong man for the job. He was trained at the U.S. Army Intelligence Center and School at Fort Huachuca, Arizona, to inspect satellite pictures, not to be an interrogator.

Yet he reportedly directed the abuse in one of the most infamous incidents captured on camera at Abu Ghraib: a prisoner in an orange jumpsuit being menaced with an unmuzzled dog. He was never charged with a crime.

Stephanowicz would not have been the only one lacking proper qualifications. As part of CACI's contract in Iraq, it employed nearly half of the interrogators and analysts at Abu Ghraib. Roughly a third never received formal military interrogation training, and at least one civilian interrogator was hired without a resume, follow-up interview, fingerprints, or a criminal records check.

Daniel Johnson, another CACI interrogator, interrogated an Iraqi prisoner using what an Army investigation calls "an unauthorized stress position." Two soldiers -- who served as military policemen at Abu Ghraib and had already been sentenced and imprisoned for their mistreatment of detainees -- told Army investigators that Johnson had directed and participated in prisoner abuse. The Army found "probable cause" that a crime had been committed and referred the case to the Justice Department for prosecution. But in early 2005, a Department of Justice attorney told the Army that the evidence in the case did not justify prosecution.

On May 25, 2004, the Interior Department announced it had blocked the Army from hiring any new civilian interrogators in Iraq while it investigated the propriety of the CACI contract (which was for the provision of information technology but was used to hire interrogators). CACI workers already in Iraq were to continue serving at least until the contract ran out in August.

The U.S. Army also violated contracting rules in late 2002 by hiring dozens of private interrogators working for a subsidiary of Lockheed Martin to operate at Guantanamo Bay, again on a contract designed for information technology services. GSA officials terminated the contract in February, but the Southern Command, which administers the Guantanamo base, revived the work almost immediately by turning it over to Lockheed's existing engineering services contract with the U.S. Interior Department.

As if all of this wasn't strange enough, it was reported that the use of private contractors as interrogators at Abu Ghraib and other prisons in Iraq violated an Army policy that requires such jobs to be filled by government employees because of the "risk to national security." An Army policy directive published in 2000 classified any job that involves "the gathering and analysis" of tactical intelligence as "an inherently governmental function barred from private sector performance."

In July 2004 the Senate Armed Services Committee witnessed Catch-22 linguistic acrobatics by Les Brownlee, acting secretary of the Army, when he was asked how the hiring of PMC personnel for interrogation could be justified under such a memorandum:

If these functions are performed by contract interrogators under an entity, which in this case was Central Command, or CGATF-7 specifically, then they would not be considered inherently governmental.

One irony resulting from Abu Ghraib is that the greatest one-year expansion of the Army's interrogation program, from 500 to 1,000 trainees, took place in 2005, the year after public disclosure of the scandals there. But the Army geared up for the effort by hiring private companies to handle the training. In August 2006, the service awarded contracts that could grow to more than $50 million over the following five years to three private firms to provide additional instructors to the 18-week basic course in human intelligence interrogation at Fort Huachuca.

On August 25, 2004, the Pentagon released the results of its investigation of intelligence activities at Abu Ghraib. It detailed numerous examples of contractor misconduct, including abuse, which have been referred to the Department of Justice. It is clear from this report that both Titan, which provided translators, and CACI employees were complicit in unlawful activity.

In Abu Ghraib's aftermath CACI decided it needed additional help in dealing with the public relations crisis. After initially turning to its external public relations firm, it realized it needed crisis management specialists to advise the company and build a custom-tailored response. The media team reviewed all news reports on the company relating to the Abu Ghraib prison scandal and sent letters to publications that it believed had incomplete or erroneous information. It also hired Washington consulting firm Clark & Weinstock to set up meetings with lawmakers and their staffs on Capitol Hill.

In September 2005 CACI announced it was getting out of the interrogation business. The company said that once its existing interrogation contract with the Army expired on September 30, 2005, it would no longer provide such services.

Okay, so that was the bad news. What is the good news? Simply that the Pentagon has gotten around to issuing an interim rule to implement section 1038 of the National Defense Authorization Act for Fiscal Year 2010 (P. L. 111-84). Section 1038 which prohibits contractor personnel from interrogating detainees under the control of the Department of Defense. The rule, issued last month says:

This statute provides that no enemy prisoner of war, civilian internee, retained personnel, other detainee, or any other individual who is in the custody or under the effective control of the DoD, or otherwise under detention in a DoD facility in connection with hostilities, may be interrogated by contractor personnel.

But back to the bad news, it also allows the Secretary of Defense to waive the prohibition for a limited period of time, if determined necessary to the national security interests of the United States. And, of course, this says nothing about contract interrogators used by other agencies, Can you say OGA, Other Government Agency, the CIA for example? And the rule does not prohibit all contractor personnel. It says:

Contractor personnel with proper training and security clearances may be used as linguists, interpreters, report writers, information technology technicians, and other employees filling ancillary positions, including as trainers of and advisors to interrogators, in interrogations of detainees if--
(1) Such personnel are subject to the same laws, rules, procedures, and policies (including DoD Instruction 1100.22, Policy and Procedures for Determining Workforce Mix (; DoD Directive 2310.01E, The Department of Defense Detainee Program (; and DoD Directive 3115.09, DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning (; pertaining to detainee operations and interrogations as those that apply to Government personnel in such positions in such interrogations; and
(2) Appropriately qualified and trained DoD personnel (military or civilian) are available to oversee the contractor's performance and to ensure that contractor personnel do not perform activities that are prohibited under this section.

This is not to say that some contract interrogators can't do a good job. For example, L-3 interrogators were part of Task Force 145, which cracked Abu Musab al-Zarqawi's inner circle, who led al-Qaeda in Iraq.

But given the potential risks the PMC industry should know this is a market segment they are better off not pursuing. The new rule explains why:

The U.S. military continues to make extraordinary efforts in Iraq and Afghanistan to ensure mission success. Interrogation of detainees is a key tool it uses to protect U.S. forces, host nation forces and citizens, and provide support for the governments of Iraq and Afghanistan during a critical period in their existence. 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. 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. 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.