Why Did the Department of Defense Miss Its Deadline for Developing Anti-Prison-Rape Policies?

A U.S. soilder stands inside a hallway at Camp 5 detention facility on May 31, 2009 at U.S. Naval Base Guantanamo Bay, Cuba.

Photo by Brennan Linsley-Pool/Getty Images

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Last May, President Obama signed an executive order instructing all federal agencies that operate their own detention facilities—not just the Department of Justice—to develop comprehensive guidelines on how to “prevent, detect, and respond to prison rape.” Last Monday was the deadline to finalize those guidelines and ensure compliance with 2003’s Prison Rape Elimination Act. According to Chris Daley, deputy executive director of the anti-prison-rape advocacy organization Just Detention International, the Department of Defense did not meet that deadline.

In addition to DoJ, at least four federal agencies operate their own detention facilities: the Department of Defense, the Department of Homeland Security, the Department of the Interior, and the Department of Health and Human Services. In December, Secretary of Homeland Security Janet Napolitano announced that her department had already drafted some rigorous standards and would release them for public comment. Just Detention International’s Daley tells me that while Interior and HHS haven’t yet finalized any standards, both agencies have solicited outside feedback, and should release their policies relatively soon.

And then there’s the Defense Department, which, according to Daley, has foisted the responsibility for developing these standards on to the individual branches, and has “shut out experts from the outside in helping inform these policies, or helping develop them.” Why is it important for outside organizations to help devise these policies? “What we know from the DoJ process is that you can’t develop these policies in a closed room,” says Daley, referring to the Department of Justice, which was tasked with applying PREA standards to its prisons long before President Obama’s recent executive order. “The way in which DoD has completely shut itself off from that feedback just runs completely counter to the success DoJ has had in implementing these standards.” (The Department of Defense has told me that they intend to respond to my questions, but they have not yet done so.)

I don’t want to imply that Defense is deliberately ignoring the executive order. Bureaucratic inertia is a powerful force, and that may well explain what happened (or, rather, hasn’t happened) here. But at the very least, DoD’s behavior here is further ammunition for those who would argue that the military doesn’t take sexual assault all that seriously. As Kayla Williams and Stephanie Driessel wrote in Slate recently, there were an estimated 26,000 sexual assaults in the military in 2012, as opposed to 19,000 in 2010. Driessel and Williams, both veterans, described a “broader culture pressuring acceptance of sexual harassment as part of military culture.”

Another potentially worrying explanation is that, in some DoD facilities, sexual assault or the threat thereof is allegedly used as an interrogation technique. Earlier this month, Slate published excerpts from the diaries of Mohamedou Ould Slahi, who has been detained at Guantanamo for nearly 11 years. Here, he describes an interrogation session from 2003:

“Today, we’re gonna teach you about great American sex. Get up,” said [redacted].

As soon as I stood up, the two [redacted] took off their blouses and started to talk all kinds of dirty stuff you can imagine. Both [redacted] stuck on me literally from the front, and the other older [redacted] stuck on my back, rubbing [redacted] whole body on mine. At the same time they were talking dirty to me, and playing with my sexual parts.

Chris Daley says that while he does expect DoD to eventually develop some PREA standards, those standards will likely only apply to those facilities that house service members who are either awaiting court-martial or have been court-martialed. “It seems very clear from conversations with folks at DoD that there’s no intention to apply PREA, PREA policies, or PREA standards to what they consider to be their extraterritorial facilities,” says Daley.

Last Wednesday, I asked representatives at DoD whether the agency planned to apply PREA to those extraterritorial facilities. I have not yet received an answer. I will update this post when and if I hear back.

Update, May 20, 4:40 p.m.: Lt. Col. Jeff Pool from the Department of Defense emails with the following statement: “The Department is committed to ensuring that captured enemy forces are held in safe, humane, detention facilities. Although the PREA doesn’t technically apply to such facilities, the Department has robust mechanisms in place to ensure the health and safety of all detainees, which are consistent with the PREA. In all DoD detention facilities that hold enemy forces, detainee treatment is consistent with the humane treatment standards provided in the law of armed conflict, specifically those in Common Article 3 of the Geneva Conventions.”