The Very Strange New DoD Detainee Directive

On August 19, the Department of Defense apparently issued a new version of “Directive 2310.01E,” which, if you haven’t been scoring at home, is one of the central documents outlining the policies and rules applicable to the DoD Detainee Program (think Guantánamo and, at least for a few more months, Bagram). The last time the Directive was updated appears to have been in September 2006–right at the same time as the high-value detainees were moved from CIA detention at various foreign black sites to Guantánamo (when there would have been pretty good reasons for the government to revisit the DoD’s internal rules). The August 19 Directive “cancels” the September 2006 version.

Although I don’t want to prejudge the merits, I thought it would be helpful to flag at least some of the other issues that appear from the text of the new Directive at first blush, and endeavor to do so below the fold.

  1. Why now?: The timing of the release of the “reissued” Directive is perhaps the most perplexing question it raises–why now? As with the September 2006 version, is there some policy shift in the works for which updated rules were necessary? Some reason why DoD is all of a sudden worried about clarifying, across the board, its own understanding of the scope of its detention authority and the rules governing its detention facilities? If so, what is the catalyst–and how (if at all) does it help explain some of the subtle but undeniable shifts in policy the new Directive appears to encapsulate?
  2. The curious illustrations of “unprivileged belligerent”: Foremost among those shifts is the Directive’s definition of “unprivileged belligerent”–which provides two new examples to illustrate the definition: (1) “Individuals who have forfeited the protections of civilian status by joining or substantially supporting an enemy non-state armed group in the conduct of hostilities”; or (2) “Combatants who have forfeited the privileges of combatant status by engaging in spying, sabotage, or other similar acts behind enemy lines.” Both of these examples are deeply fraught: The former incorporates the controversial (and, as yet, not-judicially-approved) notion that “substantial support” suffices to render an individual a belligerent under international law even in the absence of affirmative acts of belligerency; the latter assumes that even privileged belligerents in uniform can lose their “privilege” by engaging in acts, short of perfidy, such as spying and/or sabotage. Is it really the DoD’s position that our own servicemembers permanently lose their status as privileged belligerents whenever they spy or seek to commit sabotage during wartime?
  3. No more detainee lawyers?: Paragraph 3(l), which governs access to detainees and detention facilities by non-DOD personnel, provides that access shall be permitted only consistent with DoD’s responsibilities to “(1) Ensure humane treatment of detainees”; “(2) Ensure the safety and security of detainees and U.S. Government personnel”; (3) “Obtain intelligence and conduct law enforcement investigations;” and “(4) Facilitate transfer and repatriation efforts.” The paragraph not only says nothing about detainee lawyers, but doesn’t even view as one of the appropriate reasons for access the detainees’ continuing right of access to their counsel (and, through such counsel, to the courts). An (unintentional?) byproduct of Hatim, perhaps?

There are still further examples of oddities in the Directive (some of which are pretty hypertechnical), but I suspect the point has been made. And it’s entirely possible that these shifts may in fact be benign, and/or based upon perfectly good explanations for any changes that actually are material. But at the very least, the sudden appearance of the new Directive without any indication from anyone in DoD as to its origins, purpose, or timing, is a very strange development, indeed. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).