C.  Clarity of Definitions

Comment: One respondent recommended clarification of the definition of "detainee" in 237.173-2, which the respondent considered to be silent on the matter of whether the term "hostilities" (which is included in the definition of "detainee") includes situations in which there has not been a formally declared war (e.g., the detainee is classified as an unlawful combatant rather than a prisoner of war). The respondent noted that the definition's qualifier, "this includes but is not limited to," suggests a broad definition for "hostilities."

Response: The term "detainee" is defined at 237.173-2 as "any person captured, detained, held, or otherwise under the effective control of DoD personnel (military or civilian) in connection with hostilities. This includes, but is not limited to, enemy prisoners of war, civilian internees, and retained personnel. This does not include DoD personnel or DoD contractor personnel being held for law enforcement purposes." This definition was derived from the "detainee" definition in the governing directive, DoDI 2310.01E, The Department of Defense Detainee Program, dated September 5, 2006. Paragraph 2.2 of the directive notes "This Directive applies during all armed conflicts, however such conflicts are characterized, and in all other military operations." In addition, paragraph E.2.1. of DoDI 2310.01E notes that the definition of "detainee" includes "unlawful enemy combatants." Accordingly, DoD has determined that clarification is not necessary, and no change has been made to the DFARS definition in response to this comment.

Comment: One respondent recommended clarifying the definition of "interrogation of detainees" in 237.173-2 by adding the same qualifer, i.e., "this includes, but is not limited to," as is found in the definition of "detainee." The respondent stated that a difference between the two definitions could lead to confusion over whether this includes any other sort of non- "systematic," "formal," or "official" process of "questioning," or questioning not done "for the purpose of obtaining reliable information to satisfy foreign intelligence collection requirements" (see 237.173-2).

Response: The definition of "interrogation of detainees" was derived from the definition for "intelligence interrogations" in DoDD 3115.09, DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning. This directive consolidates existing DoD policies, including the requirement for humane treatment during all intelligence interrogations, and speaks of interrogations exlusively in terms of the purpose of "obtaining reliable information to satisfy foreign intelligence collection requirements." Accordingly, any questioning done for a purpose other than "obtaining reliable information to satisfy foreign intelligence collection requirements" is outside the scope of allowable activities under DoD policy. Accordingly, no change has been made to the DFARS definition in response to this comment.