As Steve Vladeck noted yesterday, the Department of Defense is out with a new version of its Directive 2310.01E on detainee operations. Steve asks the big question: why now? Perhaps someone with their finger on the pulse of all things D.C. can answer, but for the moment, let me note some interesting (read: disturbing) aspects of the document that might be related to “why.”
The never-ending “unprivileged belligerent” debate
We all know that after 9/11, the Bush administration tried to wiggle out of its Geneva Conventions obligations in order to shield its arbitrary and abusive detention operations from the rule of both domestic and international law. The device it used was the invention of a new name and status for detainees, eschewing the established categories of “civilian” or “combatant” that are recognized in the law of armed conflict. The new name was “unlawful enemy combatant.” The term was alleged to have precedent in the WW II era US Supreme Court Quirin case, which spoke of “unlawful combatants.” However, what the purveyors of the term didn’t note is the simple fact that the Quirin Court was not creating or recognizing any such new status under the law. In fact, the defendants in that case were garden variety “lawful” combatants – members of the German military. But they arrived on US shores masquerading as civilians to commit acts of sabatoge. It was their conduct under civilian cover that was unlawful, indeed, the war crime known as perfidy. Their status was not the issue.
The Obama lawyers were more sophisticated. They recognized the flaw in the “unlawful combatant” concept and replaced it with the less inaccurate “unprivileged enemy belligerent.” We can’t, however, simply say the term is “accurate” because it is construed so broadly as to sweep up individuals who are neither members of enemy armed forces nor civilians directly participating in hostilities in armed conflict against the United States. The fact is, the term, as spplied, includes individuals who the law of armed conflict considers civilians.
The combatant/civilian distinction is important in both targeting and detention, but in different ways that I can’t exhaustively detail here. For now, the crucial point is that the Directive includes giving “substantial support” to the enemy as an example of what makes one an unprivileged belligerent. But like the crime of “material support” to terrorism, “substantial support” doesn’t necessarily make you targetable, and if you’re a civilian, it doesn’t make you a combatant, but it may make you subject to detention and prosecution.
So when the new Directive defines an “unprivileged belligerent” to include anyone who provides “substantial support” to the enemy, it asserts arguably valid grounds for detention but uses those grounds to justify a label that screams “we can also kill you if we decline to detain you.” Now it’s one thing to say “if you can kill ‘em, you can detain ‘em” but the new Directive comes dangerously close to saying “if you can detain ‘em, you can kill ‘em.”
Back to why this change and why now. One benign theory is that it’s simply a case of bad drafting, with no intent to change the landscape of targetability. The flip side of the coin is, of course, that it’s a stealth effort to bootstrap an expanded concept of targetability in anticipation of an ever-widening war against ever-increasingly amorphous threats. That would be bad law and bad policy. As so many military and civilian strategists have noted, we can’t kill (or for that matter, detain) our way out of the terrorism problem and attempting to do so simply plays into the hands of those who try to draw us in to “forever war” by so publicly and viciously murdering our citizens.
There are several other scary parts of the Directive. Let me highlight a few.
Misguided statements about forfeiting Geneva Convention protections
The Directive says that individuals forfeit civilian status by engaging in hostilities and that combatants forfeit their privileges by engaging in spying, sabotage, “or other similar acts behind enemy lines.” Both statements are false under the law of armed conflict.
Civilians who engage in hostilities do lose their protection from attack while they directly participate in hostilities, but for purposes of detention, which, after all is what this Directive is supposed to be about, they do not lose civilian status. They do not become combatants and though their acts of belligerency may not be “privileged” (meaning immune from prosecution, as is the case for true combatants) they do not enter the U.S.-manufactured netherworld of “unprivileged belligerent” status that is unrecognized in the law of armed conflict.
Likewise, spying, etc. are not grounds for forfeiture of combatant status. If a member of the state’s armed forces engages in perfidy (feigning civilian status to conduct offensive operations) or spying in the morning in Bermuda shorts and killing the enemy in the afternoon while wearing his uniform and carrying his arms openly, he does not lose his combat immunity for killing the enemy because of his morning activities. He does not become an “unprivileged belligerent.”
“Combatant” and “civilian” are the only two status categories recognized in the law of armed conflict. As the ICRC has famously noted, if you’re not one, then you’re the other. There is no intermediate status. This conclusion is made necessary to avoid the very consequence that the Bush and now Obama administrations have attempted to graft onto the law of war: the existence of a class of persons who may be deprived of the law’s protection.
In the bigger picture, there’s the endemic and misplaced assumption – not quite explicit – that whenever the Department of Defense is engaged in detention operations, those operations are subject to the laws of war . This reflects the degree to which the US has obscured – and may well continue to further obscure in pursuit of ISIS and other threats, perceived or real – the distinction between war and its absence. Just because a cat has kittens in the oven, doesn’t make ’em biscuits, and just because the miilitary is doing detention, doesn’t mean that human rights law protections have been displaced by the less protective laws of war. There is one contrary indication: the definition of detainee excludes persons held by DoD “solely for law enforcement purposes.”
More headache material
Paragraph 3.a requires application of the “standards established in Common Article 3” of the Geneva Conventions (GCs) but merely the “principles in Arts. 4-6” of the Second Protocol Additional (AP II) to the GCs. The difference between “standards” and “principles” is understandable here, since we’re a party to the GCs but not to AP II. Why, then does the Directive also use “principles in Art. 75” of AP I, when the U.S. government has acknowledged that Art. 75 is established customary international law that we will apply out of a sense of legal obligation? Is this an oversight or intentional backsliding?
Paragraph 3.d leaves a good bit of wiggle room for registration of detainees and for ICRC notification and access. In fact, the Directive says nothing about ICRC access to detainees. It merely says detainees are to be registered “normally” within 14 days of capture and the ICRC is to be informed of their registration. No indication is given of what does and doesn’t constitute “normal.”
Paragraph 3.f provides that unprivileged belligerents may be detained until the end of hostilities and that civilians may be detained until the reasons that necessitated their internment no longer exist. Under the law of armed conflict, the grounds for detention of civilians are more narrow: only so long as they pose a threat, but certainly no longer than the end of hostilities. Because the creation of “unprivileged belligerent” status risks mischaracterizing civilians as combatants for purposes of detention authority, it also risks authorizing detention of such civilians in violation of the Geneva Conventions (for the duration of hostilities, rather than merely, so long as they pose a threat). The Directive also fails to acknowledge important distinctions in international law between international armed conflicts (or IACs, namely wars between States) and non-international armed conflicts (or NIACs, namely wars against non-State armed groups). One reason these distinctions are so important is that the vast majority of armed conflicts today, and indeed, the only ones the United States is arguably party to today, are NIACs. The different rules on outer temporal limits of detention authority under the 3d Geneva Convention applicable to combatants (until end of hostilities/conflict) and under the 4th Geneva Convention applicable to civilians (until they are no longer a threat) apply only to international armed conflicts. In non-international armed conflicts, detention authority (grounds and procedures) does not derive from the Geneva Conventions and must be found elsewhere. For that reason, reference to the various Geneva Conventions’ criteria for detention in IAC is wrong for NIAC, and risks depriving detainees of the due process rights to which they would otherwise be entitled under domestic and human rights law.
Paragraph 3.g recognizes that certain detainees are entitled to greater protection and privileges under Geneva Conventions III and IV than stated in this document, but then paragraph 3.k enumerates conditions under which detainees may be held in isolation, even though that may be inconsistent with Geneva Convention privileges. There is no indication of how this tension is resolved.
Paragraph 3.m(6) regurgitates the flawed U.S. position on “non-refoulement” that transfer of an individual to a country in which there is a risk of torture is only prohibited where torture is more likely than not. (If there’s only a 49% chance the individual will be tortured there, it’s OK to transfer him to Saudi Arabia). This long-standing and retrograde interpretation of obligations under the Torture Convention is one of the clearest examples of cavalier treatment of international law by the United States. Whether or not this interpretation is deliberately designed to permit transfer of detainees to risky destinations, it’s a disastrous position for a country that considers itself indispensable to the promotion of human rights abroad.
The best-case interpretation of this new version of the Directive is that does nothing to clarify detention policy in ways that bring it within the rule of applicable international law. The worst-case interpretation is that it deliberately muddies the waters of detention policy in order to expand the scope of both detention and targeting authority beyond what the laws of war would permit, reminiscent of the bad old days of Bush administration positions.