Annotation of the Pentagon Report to Congress on Detainee Abuse by U.S. Partners in Yemen

A month ago, I wrote about a forthcoming congressionally mandated report on U.S. involvement in detention operations and the widely reported abuses committed by the United Arab Emirates in the counterterrorism fight in Yemen. The report was apparently submitted to Congress last month but only released publicly when The Intercept published a copy of it last night. I had written that the report would present an opportunity for the administration to introduce some much-needed transparency surrounding the ongoing U.S.-Emirati counterterrorism campaign in Yemen and to make conclusively clear that the United States is not returning to the morally and legally dodgy days after 9/11. It does none of that. In a mere two pages of carefully parsed prose, the Department of Defense (DoD) has provided what can only be described as a deliberately misleading and deceptively evasive account of U.S. and Emirati actions in Yemen that amounts to the ultimate non-denial denial.

DoD’s report comes more than 18 months after the initial allegations of abuse emerged via Associated Press reporting and after Human Rights Watch, Amnesty International, and the United Nations all conducted their own research and concluded the same. Yet despite this growing mountain of evidence, compiled by highly reputable sources, the DoD report variously hops from claims that the Department did not actually witness these abuses to reaffirming that of course the Department has standards in place to address abuses, but it does not ever directly address the core question of whether it thinks such abuses occurred, how much U.S. forces knew, and when they knew it. It’s a lawyered-up document designed to obscure the truth and allow the administration to continue its increasingly problematic partnership with the Emiratis with no real oversight or pushback.

The report provides a master class in obfuscatory policy and legal writing and is worth unpacking in full:

Preface

DoD does not, and will not, tolerate abuse of detainees. DoD personnel are required to conduct intelligence interrogations, detainee debriefings, and tactical questioning of persons — whether in U.S. or foreign custody — humanely and in accordance with applicable law and policy, including the U.S. Army Field Manual 2-22.3, “Human Intelligence Collector Operations,” September 2006, and DoD Directive 3115.09, “Intelligence Interrogations, Detainee Debriefings and Tactical Questioning,” October 11, 2012, Incorporating Change 2, Effective April 27, 2018. Regardless of whether a detainee is in U.S. or foreign custody, interrogators may not use any interrogation technique or approach that is not authorized by, and listed in, Army Field Manual 2-22.3.

The Secretary of Defense requires all personnel to comply with law and policy and to conduct themselves in the most ethical manner at all times. Those who do not comply with these standards will be held accountable. The Secretary also expects U.S. allies and partners to uphold their responsibilities under international law regarding the humane treatment of detainees, consistent with Common Article 3 of the Geneva Conventions, including prohibitions against abusive interrogation techniques. No person interrogated, debriefed, or questioned by personnel, regardless of that person’s location or custody circumstances, will be subject to cruel, inhuman, or degrading treatment.

It begins with this two paragraph preface that reaffirms that there are laws and DoD policies in place barring DoD personnel from mistreating detainees. It also affirms that DoD expects its partners to treat detainees humanely. The opening is unexceptional except that it’s delivered with dramatic language (“DoD does not, and will not, tolerate abuse of detainees.”) that attempts to forcefully argue what we already know — that the U.S. military does not engage in detainee abuse, follows all applicable laws, and expects its partners to follow international law as well. You don’t get extra credit for agreeing to follow the law.

Moving to the second section, DOD starts to share a few details.

DoD Detention and Intelligence Interrogation Policies and Guidance in Yemen

Given the active threats against our homeland posed by terrorist networks operating from Yemen, personnel have been in Yemen since May 2016 supporting operations against al-Qa’ida in the Arabian Peninsula and Islamic State of Iraq and Syria-Yemen. U.S. forces do not conduct detention operations in Yemen, rather, U.S. forces conduct intelligence interrogations of detainees held in partner custody.

That U.S. forces have been in Yemen since May 2016 supporting counterterrorism operations has already been disclosed, but it reaffirms that at least since the spring 2016 Emirati offensive against AQAP, U.S. forces have been on the ground as well, presumably working together. It also makes an acknowledgment that I don’t believe the U.S. Government has previously made: that U.S. forces participate in interrogations of detainees in Yemen. It’s a small detail but a piece of operational cooperation that the government rarely discusses publicly.  

DoD then goes on to describe the laws and policies governing these interrogations.

All DoD interrogators and debriefers are trained in the law of armed conflict and humane treatment standards, and trained on how to look for, and report on, any detainee abuse. Pursuant to DoDD 3115.09, personnel are required to report immediately to their chain of command or supervision any suspected or alleged violation of DoD policy, procedures, or applicable law relating to intelligence interrogations, detainee debriefings, or tactical questioning for which there is credible information. This includes any suspected or alleged violations by non-DoD U.S. or foreign personnel.

While this section begins by noting the obligation of DoD personnel to report known or suspected abuses from partners, it appears to rest such obligations on DoD personnel obtaining “credible information.”

The catch reveals itself in the next paragraph.

Based on information gathered at this time, DoD has determined that DoD personnel have neither observed, nor been complicit in, any cruel, inhuman, or degrading treatment of detainees in Yemen.

This is where the real rhetorical sleight of hand starts.

Let’s break it apart. “Based on information gathered at this time” seems to suggest that DoD is basing its assessment on information that the Department has itself obtained rather than information that is available to the Department. This is the first indication in the report that it will set aside the information gathered by journalists, two of the most reputable human rights groups in the world, and the United Nations.

The paragraph then states, “DoD personnel have neither observed, nor been complicit in” abuses. Note that it does not say that our partner did not commit abuses, only that DoD personnel had not observed such abuses, apparently resting the assessment of abuses on visually witnessing an abuse versus learning of it through other means. The sentence concludes by saying that DoD personnel have not “been complicit in” such abuses, in the process totally glossing over the many possible gradations between not observing abuses and actively enabling them.

The final section is where DoD descends into a full Khashoggi-like denial of the allegations.

DOD takes detainee abuse allegations and the investigation of detainee abuse very seriously, whether it occurs in U.S. or foreign partner custody. Based on information to-date, DOD has not developed any independent, credible information indicating that U.S. allies or partners have abused detainees in Yemen.

Reminiscent of Secretary Mattis’ statement that there was “no smoking gun” linking Saudi Arabia to Khashoggi’s death, a comment that might have been technically accurate even if it belied the larger truth, here DoD notes that it “has not developed any independent, credible information indicating that U.S. allies or partners have abused detainees in Yemen.” The problem here hinges on the word independent. By insisting that DoD has not independently developed any information, the Department again sets aside the meticulously researched reports of the Associated Press, two of the most reputable human rights groups out there, and the United Nations — all of which are highly credible, even if they were not developed independently by DoD. DoD also fails to mention whether the Intelligence Community contributed information to the Department’s assessment or whether it has reached the same conclusion as DoD.

Moving to a discussion of human rights violations, the report again returns to procedural requirements rather than accounting of actions. 

DOD also takes Gross Violations Of Human Rights (GVR) very seriously. DoD policy on GVHR is reinforced by a Secretary of Defense memorandum published on August 18, 2014, on the “Implementation Of Section 8057, DOD Appropriations Act, 2014.” That memorandum states that “all DOD Components will report any relevant information in their possession about GVHR by units of foreign security forces to the Office of the Under Secretary Of Defense for Policy (Stability and Humanitarian Affairs) through the Joint Staff (J-5).” Additionally, in a July 7, 2017, letter to Senator McCain, Secretary Mattis reiterated that “if U.S. military personnel suspect a violation of the law of armed conflict, including by forces they are observing, DOD policy requires such personnel to report the violation through their chain of command.”

DoD gets particularly creative here, noting that its components are required to report relevant information about GVR by foreign security forces and that Secretary Mattis had told Senator McCain that U.S. military personnel are required to report suspected partner violations of the Law of Armed Conflict. The report is silent on whether it believes that the third party reports of Emirati conduct amount to gross violations of human rights or whether U.S. forces had actually suspected abuse and reported it up the chain.

Finally, DoD closes with a discussion of Leahy human rights vetting, cleverly noting that its partners in Yemen are not subject to such vetting. 

DOD has not assessed any violations of section 362 of title 10, United States Code (DOD Leahy law) in Yemen, to date. Leahy laws would apply, and would be enforced, if the unit responsible for the detainees were receiving U.S. assistance and DOD had credible information that the unit had committed gross violations of human rights. However, foreign partners conducting detention operations in Yemen do not receive U.S. assistance that would be subject to Leahy law. Additionally, no waiver or exception has been granted to any U.S. partner under the DOD Leahy law while conducting operations in Yemen. Regardless Of Leahy applicability in Yemen, DOD personnel have not observed any indications of detainee abuse by foreign partners.

This is something of an authorities legerdemain — U.S. partners are not receiving “security assistance” in a traditional sense but rather are engaged in a form of operational collaboration that doesn’t require all of the same vetting that training does. DoD then conveniently notes that it has not obtained waivers of Leahy requirements for forces that aren’t subject to the law in the first place. What DoD leaves unsaid is whether its partner forces would pass Leahy vetting, if they were subject to it. And DoD concludes by noting, again, that it has not observed indications of detainee abuse. Not that it or its partners have no information of such abuses, just that DoD has not observed indications of detainee abuse.

It is certainly possible that DoD has provided a classified annex to this report and that that document contains more detailed information on the alleged abuses. DoD might have cited national security concerns – such as the worsening of diplomatic relations with the UAE – if such information were made public. If such a classified annex were submitted, it would be helpful in absolving DoD of some of the deception in this document. This report is a shame and the group of policy staffers and lawyers who worked on it, as well as the higher-ups who approved it should be embarrassed. But for better or worse, with the report submitted, the onus is now on Congress. Hard questions need to be asked, answers need to be provided to the public, and steps need to be taken to ensure that our partners are not committing abuses. Anything short of that only prolongs the moral compromises we have brought on ourselves by getting in deep with the Emiratis and turning a blind eye to their litany of misdeeds in Yemen.

Amid the avalanche of hagiographies on Secretary Mattis last month, my former colleague Bob Wilson wrote a piece detailing how the former secretary had not exactly covered himself in glory during his time in the top defense job. Bob noted that Mattis presided over a series of deeply problematic policies, including the deployment of U.S. troops to the southwestern border as a political stunt and the purposeful obfuscation of the truth about the death of Jamal Khashoggi. At the time, I thought he was too harsh on the departing secretary, but with this deceptive report, issued in the final weeks of Mattis’s tenure, I think Bob got it exactly right. Even the most decorated and honorable of public servants are ultimately complicit in the administration’s drive to obscure truth in pursuit of its policies. That much we can all observe.

Image: A picture taken on August 8, 2018 during a trip in Yemen organized by the UAE’s National Media Council (NMC) shows a Yemeni soldier loyal to the Saudi and UAE-backed government walking past UAE military armored vehicles at a position north of the southeastern city of Mukalla, the capital Hadramawt province. Photo by KARIM SAHIB/AFP/Getty Images. 

 

 

 

About the Author(s)

Luke Hartig

Executive Director of National Journal's Network Science Initiative and Fellow, International Security Program at New America. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Director for Counterterrorism Operations in the Office of the Secretary of Defense. Member of the editorial board of Just Security. You can follow him on Twitter (@LukeHartig).