Both Steve and Gabor Rona have posted here in recent days with concerns about the newly promulgated Department of Defense Directive 2310.01E, on the “DoD Detainee Program.”  The “big question,” they say, is “Why now?”  What prompted this revision?  Has there been some significant change in DoD practices or policies that should concern us?

I don’t think there’s much of a mystery, nor any serious reason for concern.  There is one part of the Directive, however–the very final provision of the appendix Glossary–that could, indeed, lead to significant confusion and problems (although it is not likely that DoD intended it to reflect any substantive changes).  DoD should amend it.

The Directive itself states right up front why it was reissued:  not only to “update . . . assigned responsibilities within DoD for the Detainee Program” (for example, it assigns the Under Secretary of Defense for Policy the overall responsibility to “[d]evelop[] policy and guidance pertaining to all detainee matters, including access, detainee review processes, transfer and release authority, photos, and biometrics”), but also to “update established polic[ies],” many of which have changed since the Directive was last promulgated by the Bush Administration in 2006.  (As a forthcoming guest post at Lawfare will explain, some of the more notable of such changes relate to expanded humane treatment provisions; the general process for handling detainees from point of capture or assumption of custody until final transfer, repatriation, or release; and policies related to the transfer, repatriation, or release of detainees, including applicable humane treatment and security assurances.)

I doubt there’s anything nefarious going on, or that this Directive signals any substantive changes in the way in which DoD will henceforward treat its detainees.  For example, contrary to Rona’s speculation, the Directive does not attempt to create “a class of persons who may be deprived of the law’s protection” (indeed, the bulk of the Directive, Paragraph 3, is devoted to explaining the legal protections to which all detainees are entitled).  Nor does it assume that DoD detention operations are “subject to the laws of war” outside of an armed conflict.

Steve’s primary concern, apart from the “unprivileged belligerent” provision I discuss below, is his suspicion that perhaps Paragraph 3(l) of the Directive hints that GTMO detainees will no longer be permitted access to their lawyers.  True enough, that paragraph doesn’t say anything about lawyers.  But it doesn’t identify other sorts of persons with access to detainees, either:  It merely states that access to detainees “will be permitted in limited circumstances”; that such access “will be conducted in accordance with applicable law, regulation, policy, and other issuances”; and that such access must be “consistent with” DoD’s responsibilities, including ensuring humane treatment of detainees, ensuring the safety and security of detainees and U.S. Government personnel, obtaining intelligence, conducting law enforcement investigations, and facilitating transfer and repatriation efforts.  Boilerplate, in other words.  It would be surprising if the directive said otherwise.  Rest assured, the Pentagon is not about to start asserting that GTMO detainees may not have access to counsel.

In spite of all that, the Revised Directive does include one very unfortunate and potentially disturbing item, and Steve and Gabor are absolutely right to worry about it–namely, the provision offering “examples” of persons who may be deemed “unprivileged belligerents.”  These examples might well create serious problems or, at a minimum, engender unnecessary confusion.  As I’ll explain here, the Pentagon ought to delete or substantially amend them.

The operative provisions of the Directive refer to three categories of military detainees in an armed conflict (see Paragraph 3-f):  Prisoners of war, unprivileged belligerents, and civilian internees.  A “Glossary,” appended at the end of the Directive, in turn offers definitions for each of these three terms (as well as others).  The definitions of POW and civilian internee are unobjectionable, as far as I can tell.  The final definition of the Glossary, however–the very final provision of the Directive–is another matter.

That provision presumably is intended to identify who is included in the third category of DoD detainees, apart from POWs and civilian detainees.  For better or worse, the term used for such detainees is “unprivileged belligerents.”  What the Glossary should be doing is defining that category of DoD detainees who are neither entitled to the full array of privileges accorded POWs nor detained under the same terms and conditions (especially procedures) as civilian internees.  Unfortunately, however, the Glossary’s definition of “unprivileged belligerent” goes in another direction entirely.  It defines an “unprivileged belligerent” to be “[a]n individual who is not entitled to the distinct privileges of combatant status (e.g., combatant immunity), but who by engaging in hostilities has incurred the corresponding liabilities of combatant status.”

That definition does not really do the work that it should–namely, to identify which detainees are not entitled to treatment as POWs or civilians.  Instead, it delves into the very different question of immunity from prosecution.  Even so, standing alone, that definition would almost be unobjectionable.  Indeed, it’s mostly circular:  an “unprivileged belligerent,” it explains, is someone who is a belligerent and who is not entitled to the “privilege,” i.e., to combatant immunity.  What is combatant immunity?  As I wrote in an earlier post:

In any sort of armed conflict, international or noninternational, certain actors—principally, the armed forces of a state—are entitled as a matter of international law to the combatant’s privilege.  What this means is that if they engage in a use of force that would otherwise be unlawful under the domestic criminal law of the state in which they act (say, murder, or battery), but they do so in an armed conflict and in conformity with the laws of war, international law confers upon them an immunity from culpability under that local domestic law.  A killing that would be murder in peacetime, for example, thus becomes a “privileged” killing in an armed conflict.  This rule is instantiated as to some conflicts in Article 43(2) of the First Additional Protocol to the Geneva Conventions; but it was established and honored as a matter of custom long before the First Additional Protocol, and it continues to be treated as custom, in international and noninternational conflicts alike.  So, for example, U.S. armed forces cannot be prosecuted for murder in Afghanistan if they kill al Qaeda or Taliban forces in that nation in conformity with the laws of war.

There are two fairly minor problems with the Directive’s definition of “unprivileged belligerent.”  First, on its own terms, it is incomplete:  there may be some individuals who are not entitled to the combatant’s privilege but who do not “incur[] the corresponding liabilities of combatant status,” or at least do not incur all of those liabilities.  In particular, if a civilian directly participates in hostilities in an armed conflict, her use of force ordinarily is not privileged (she may be prosecuted for it), but she does not incur the full liabilities attendant to “combatant status,” especially when it comes to targeting:  unless she adopts a continuous combat function, the armed forces against which that civilian acts cannot target her except for such periods as she does participate in hostilities.

Second, it is beside the point.  For purposes of detention, it is not relevant which individuals are “unprivileged,” i.e., who may be tried criminally for the conduct of their hostilities.  That’s a question that’s simply inapposite to the question of the terms on which they are detained.

If these were the only flaws in the definition of “unprivileged belligerent,” they could be fixed with a simple tweak or two, and probably would not have engendered much controversy.  The more significant problems arise, however, not in the definition itself, but in the two “examples” the Glossary offers of “unprivileged belligerents.”  Those two “examples” are as follows:

[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.

[2] Combatants who have forfeited the privileges of combatant status by engaging in spying, sabotage, or other similar acts behind enemy lines.

Each of these examples is problematic.  I’ll begin with the latter, which is of less practical importance when it comes to current DoD practices.

1.  Certain spies and saboteurs, such as those who are not part of state armed forces, do not enjoy the privilege of combatant status in the first instance.  But if an individual is otherwise entitled to the privilege–for example, if he is a member of state armed forces–he does not forfeit that privilege by engaging in spying or sabotage behind enemy lines.

To be sure, certain forms of sabotage might violate the laws of war–if they are perfidious, in particular–and, when they do, they may be subject to prosecution.  Moreover, there is a special, idiosyncratic historical norm that permits certain prosecutions for spying:  The traditional rule is that if an individual is caught spying in civilian dress, then that person may be prosecuted for spying (which is not a violation of the laws of war) . . . but only if that person is captured before returning to his own ranks.  By engaging in such spying, however, that person does not thereby “forfeit” the combatant’s privilege:  Not only can he not be prosecuted for, e.g., using lethal force, but he can’t even be prosecuted for the spying itself once he returns to his own forces.  (If it’s not a violation of the laws of war, you might be wondering, why can spying by a privileged belligerent be prosecuted at all — and why then only until he returns to his own lines?  Don’t ask:  The law of spying during wartime is almost inexplicable, and has long been the source of confusion and contestation.  The details aren’t important here, however.)

But whether or not the sabotage or spying in question may be prosecuted in a particular case (sometimes yes; sometimes no), that does not affect the privileged or unprivileged status of the saboteur or spy.  The U.S. Armed Forces themselves often engage in spying and sabotage behind enemy lines.  Yet I’d be shocked if the military is of the view that its forces forfeit the combatant’s privilege by doing so.

What is more, this confusion is gratuitous, to boot:  None of what I’ve described above bears on the subjects of the DoD Directive–namely, whether and under what conditions the individual may be militarily detained during an armed conflict.  Indeed, it may well be the case that few, if any, current DoD detainees (e,g., at GTMO) are being detained solely because of any spying or sabotage in which they might have engaged.  It would, then, be best if DoD were simply to omit that unnecessary and confusing “example” from its Glossary.

2.  The second “example” at the end of the Glossary defines two further categories of individuals as “unprivileged belligerents”:  (i) those who have “forfeited the protections of civilian status by joining . . . an enemy non-state armed group in the conduct of hostilities”; and (ii) those who have “forfeited the protections of civilian status by . . . substantially supporting an enemy non-state armed group in the conduct of hostilities.”

The first of these two categories, roughly speaking, encompasses virtually the entire population of detainees at Guantanamo:  individuals who have joined “an enemy non-state armed group” with which we are engaged in hostilities–principally, al Qaeda.  That example could be retained without much problem, although I’d recommend amending it slightly in two respects, such as to refer to “Individuals who are not entitled to the full protections of POW status because they have joined a non-state enemy armed group that is engaged in hostilities against the United States.”  (I recommend the first bolded change because, for purposes of detention of enemy armed forces, the important question is not whether the individual has civilian status or is entitled to combatant immunity, but instead whether the individual is entitled to full POW protections under the Geneva Conventions.  The second change would reflect the government’s legal view, which is that an individual may be detained if he is part of an armed group that is itself engaged in hostilities against the U.S.–whether or not the individual himself has engaged in such hostilities.)

The big problem, however, comes with the final Glossary example of “unprivileged belligerent.”  It suggests that a civilian who “substantially support[s] an enemy non-state armed group in the conduct of hostilities” not only thereby “forfeit[s] the protections of civilian status,” but also becomes an unprivileged belligerent.  Both of these suggestions are mistaken–or, at a minimum, deeply misleading.

A civilian who substantially supports an enemy non-state armed group in the conduct of hostilities is not privileged in doing so — she may be subject to prosecution for such support.  And, in cases where such support consists of a direct participation in hostilities, she may even be targeted during such time as she is engaged in such participation.  What is more, as Steve and I have explained in greater detail, such support might justify military detention or internment of that person under certain circumstances.*  (It would be fine if the Directive were to carefully explain this last point, which is, in truth, the only one that is actually germane to detention practices.)

Such support does not, however, result in forfeiture of all “protections of civilian status,” and, most importantly, such support does not necessarily render one a belligerent, in the sense of someone who may be targeted with lethal force on the basis of status.  (The exception would be a hypothetical civilian whose support is such that she is engaged in a “continuous combat function.”)  The great concern that this definition raises is the prospect that it might reflect the view of some in the Defense Department–or give other the idea–that they can target anyone who provides “substantial support” to al Qaeda.  That is not the case.  Even where such support might hypothetically justify some form of detention or internment–and it’s not clear that there are any such cases currently at GTMO–eligibility for detention is not coterminous with eligibility for targeting, at least when it comes to persons who are not part of enemy forces.

* * * *

If I had to guess, I’d wager that these implications of the examples of “unprivileged belligerents” in the Directive’s Glossary were not deliberate–particularly as they relate to the combatant’s privilege against prosecution for individuals who are part of state armed forces, and as they relate to targeting rules and practices.  After all, this Directive is not about who may be prosecuted or targeted–it is devoted to detention practices.  And it may well be that the examples of spies, saboteurs and substantial supporters describe few, if any, current DoD detainees.  I suspect, then, that these examples–appearing as they do only at the very end of the “Glossary” appendix to the directive, and even then only as illustrations, rather than as part of any definition proper–were not fully or carefully vetted within DoD, let alone in the inter-agency process.  At least, I hope that was the case.

In any event, these two examples should be deleted or carefully revised.  The one point DoD should be interested in explaining is simply that individuals who have joined an enemy non-state armed group engaged in hostilities against the United States may be militarily detained, and are not entitled to the full protections afforded POWs.  The current definition and examples do not accomplish this goal; instead, they unnecessarily muddy the waters in ways that could cause real problems going forward.


Steve and I wrote:

What types of “support” to al Qaeda would justify military detention, in light of “longstanding law-of-war principles”?  The habeas courts have not yet had to analyze such questions, because they have resolved each case thus far based upon whether the detainee in question was “part of” enemy forces covered by the AUMF.  It is possible, however, to hazard a bit of speculation on how courts might view at least a handful of such cases if they were ever to be adjudicated.  For example, the March 13th [2009] DOJ brief itself stated that those who provide unwitting or insignificant support to the organizations identified in the AUMF are not subject to the AUMF detention authority.  And there likely are significant detention limits with respect to persons who provide medical support to enemy forces while “permanently and exclusively engaged as a medic,” see Warafi (discussed above), since such limits traditionally apply to such persons (indeed, even if they are part of an enemy force) in an international armed conflict, under article 24 of the First Geneva Convention and article 33 of the Third Geneva Convention.  On the other hand, perhaps substantial supporters of enemy forces who are apprehended while accompanying such forces can be detained on roughly the same terms as the forces themselves, just as they can be in an international conflict.  Cf. Third Geneva Convention, art. 4(4).  And Ryan Goodman has suggested that perhaps the AUMF could be construed to permit the U.S. to detain, in an internment capacity, civilians whose support for al Qaeda makes such detention “absolutely necessary,” or for “imperative reasons of security,” akin to the permissible detention of protected civilians in international conflicts under articles 42 and 78 of the Fourth Geneva Convention.  (As Goodman notes, the U.S. used such an internment option in the war in Iraq.)

These speculations hardly cover the waterfront of potential “supporters,” of course.  Thus, for the most part, and as DOJ argued, the “contours” of the “substantial support” basis for detention would have to be developed by the Executive and by the habeas courts in discrete application to concrete facts in individual cases, if there ever are any; and if such cases arise, they “may require the identification and analysis of various analogues from traditional international armed conflicts.”