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TITLE X--GENERAL PROVISIONS

Subtitle D--Miscellaneous Requirements, Authorities, and Limitations

P. L. 111-

House Conference Report 111-288

    (a) Prohibition.--Except as provided in subsection (b), effective one year after the date of the enactment of this Act, 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 Department of Defense or otherwise under detention in a Department of Defense facility in connection with hostilities may be interrogated by contractor personnel.

    (b) Authorized Functions of Contractor Personnel.--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 persons as described in subsection (a) if--

    (1) such personnel are subject to the same rules, procedures, policies, and laws pertaining to detainee operations and interrogations as apply to government personnel in such positions in such interrogations; and

    (2) appropriately qualified and trained military or civilian personnel of the Department of Defense are available to oversee the contractor's performance and to ensure that contractor personnel do not perform activities that are prohibited under this section.

    (c) Discharge by Government Personnel.--The Secretary of Defense shall take appropriate actions to ensure that, by not later than one year after the date of the enactment of this Act, the Department of Defense has the resources needed to ensure that interrogations described in subsection (a) are conducted by appropriately qualified government personnel.

    (d) Waiver.--

    (1) WAIVERS AUTHORIZED.--The Secretary of Defense may waive the prohibition under subsection (a) for a period of 60 days if the Secretary determines such a waiver is vital to the national security interests of the United States. The Secretary may renew a waiver issued pursuant to this paragraph for an additional 30-day period, if the Secretary determines that such a renewal is vital to the national security interests of the United States.

    (2) LIMITATION ON DELEGATION.--

    (A) IN GENERAL.--The waiver authority under paragraph (1) may not be delegated to any official below the level of the Deputy Secretary of Defense, except in the case of a waiver for an individual interrogation that is based on military exigencies, in which case the delegation of the waiver authority shall be done pursuant to regulations that the Secretary of Defense shall prescribe but in no instance may the latter delegation be below the level of combatant commander of the theater in which the individual is in the custody or under the effective control of the Department of Defense or otherwise under detention in a Department of Defense facility within that theater.

    (B) DEADLINE FOR REGULATIONS.--The Secretary of Defense shall prescribe the regulations referred to in subparagraph (A) by not later than 30 days after the date of the enactment of this Act.

    (3) CONGRESSIONAL NOTIFICATION.--Not later than five days after the Secretary issues a waiver pursuant to paragraph (1), the Secretary shall submit to Congress written notification of the waiver.

   The Senate amendment contained a provision (sec. 823) that would provide that the interrogation of detainees during or in the aftermath of hostilities is an inherently governmental function that cannot be transferred to private sector contractors.

   The House bill contained no similar provision.

   The House recedes with an amendment that would prohibit contractor employees from conducting the interrogation of detainees in connection with hostilities, subject to a limited waiver authority.

   The conferees note that the provision would permit the continued use of contractors to perform supporting functions such as providing training to government interrogators and supplying advice in the development of government interrogation plans, provided that contractor employees are subject to rules, procedures, policies, and laws pertaining to detainee operations and interrogations, and are supervised by appropriately qualified and trained government personnel.

House Report 111-166 - NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2010

Senate Report 111-035 - NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2010

The committee recommends a provision that would require the Secretary of Defense to issue regulations providing that the interrogation of detainees during or in the aftermath of hostilities is an inherently governmental function that cannot be transferred to private sector contractors. The regulations would become effective 1 year after the date of the enactment of this Act, to provide the Department of Defense time to comply.

The interrogation of detainees entails the exercise of substantial discretion in applying government authority and has frequently had a significant impact on the life and liberty of the individuals questioned. The committee concludes that the conduct of such interrogations is an inherently governmental function that should be performed exclusively by military or civilian employees of the Department.