Over the past couple weeks, Steve Vladeck, Gabor Rona, and Marty Lederman have posted comments and raised some questions about the new Department of Defense (DoD) detainee directive (DoDD 2310.01E).  Before leaving government service this past summer, I led the drafting and coordination process for DoDD 2310.01E and welcome the opportunity to address questions regarding this important document.  Before responding to some of the specific comments and questions, perhaps some background on DoD directives may be appropriate.

DoD directives are intended for a practical audience and for general application.  They are not written for specific conflicts or to resolve academic issues.  And they are policy documents as opposed to statements on the law.  This should not in any way diminish their importance, however.  Because organizations across DoD have real-world equities in the subject matter, there is a significant amount of negotiation and compromise associated with their creation.

Less substantive, but equally relevant for purposes of this discussion, DoD directives come with expiration dates to ensure they remain relevant (the 2006 version of the detainee directive was due to be updated in 2011).  DoDD 2310.01E could have been simply reissued with minimal changes, as the 2006 version was consistent with the law and U.S. policy.  Instead, under the leadership of William K. Lietzau, then the Deputy Assistant Secretary of Defense for Rule of Law and Detainee Policy, DoD took additional time to ensure significant policy developments made in detention over the past eight years were captured by the new document.  This required extensive discussion and coordination within the Department, to include the Military Services, the Office of the Secretary of Defense, the Joint Staff, and the DoD Office of the General Counsel, as well as various other law of war experts both within and outside the government.

As a result, this new detainee directive is dramatically different from its predecessor, mandating, as a policy matter, those practices and lessons learned over the prior decade.  Some of the more notable changes include: expanded humane treatment provisions and added emphasis by moving them into the main body from the attachments section; clarification regarding the general process for handling detainees from point of capture or assumption of custody until final transfer, repatriation, or release; expansion of the policies related to the transfer, repatriation, and release of detainees, including applicable humane treatment and security assurances; references to Article 75 of Additional Protocol I and Articles 4-6 of Additional Protocol II to the Geneva Conventions of 1949 as applicable detention principles (even though the United States is party to neither Protocol); and, most significantly, a new policy requirement to conduct detainee review processes, used to ascertain the status and continued necessity of detention for individuals detained by DoD under the law of armed conflict.

The goal for DoDD 2310.01E is to provide its intended audience with principled, credible, and sustainable detention policies that address the most significant facets of detention operations, yet allow room for appropriate flexibility in implementation.

Turning then to some of the specific questions and comments:

Why now?  Simply, because it was a regular (albeit delayed) update of a DoD issuance. The revision provided DoD the opportunity to update the 2006 version with significant policy and practice developments, which can be applied in future conflicts.

Scope of application.  As Professor Lederman suggests, Mr. Rona reads more into this directive than intended.  DoDD 2310.01E expressly applies to detainee operations only, and not to targeting.  The U.S. government has other policies that deal with targeting issues and this directive does not attempt to tackle the issue.  If the United States government or the Department of Defense wanted to issue a policy that settled some of the broader issues Mr. Rona identifies, they would not choose the detainee directive as the vehicle.  Also, although there is some ambiguity as to whether the directive is meant to apply to detention operations in wartime or whether it is meant to apply more broadly to all military operations, a careful reading of the detainee directive, including the operable definition section, indicates that the directive deals only with operations where individuals are being held by DoD pursuant to the law of war and during an armed conflict or occupation.

ICRC access.  Contrary to Mr. Rona’s assertion that “the Directive says nothing about ICRC access to detainees,” the ICRC is expressly given “access to all DoD detention facilities and the detainees housed therein, subject to reasons of imperative military necessity” in section 3.q. of the directive.  In addition, the directive ensures that “[t]he services of the ICRC will be accepted and used to perform humanitarian functions related to detainees during, and in relation to, any armed conflict, however characterized, to which the United States is a party.”  This actually represents an important policy development.  ICRC access is not legally required in non-international armed conflict (NIAC), but DoD has taken the significant step of requiring that access as a policy matter regardless of a conflict’s characterization.  Importantly, because directives require such extensive coordination, this new provision indicates significant deference to and confidence in the ICRC by the Department.

Unprivileged belligerents.  Although the concept of unprivileged belligerency is deeply rooted in the law of war, it is true that there is no treaty that defines the category of unprivileged belligerents.  A common practice, therefore, has been to analogize to the categories described in the more developed law governing international armed conflicts (IACs) to help define what constitutes an unprivileged belligerent.  Some have argued that members of organized non-state armed groups, who participate in hostilities without the combatant’s privilege, should be treated by analogy as civilians under Geneva Convention (GC) IV (and thereby benefit from their unlawful participation in hostilities).   However, it seems more sensible to distinguish members of non-state armed groups, who tend to function like members of state armed forces, from run-of-the-mill civilians.  In this regard, a GCIII-analogue makes more sense than turning to GCIV when it comes to identifying appropriate processes for detainees belonging to non-state armed groups.  To be sure, this is an area where the U.S. government has long disagreed with those who believe enemy terrorists should be treated like civilians.  But this concept is well-grounded in the law of war, and the fact that it shows up in DoD’s updated detainee directive should not come as a surprise, especially since it is a concept that has been used by all three branches of the U.S. government, and was reflected in the version of the directive it replaced.  Similarly, although Professor Lederman takes issue with the reference to combatant immunity in the directive, this too was reflected in the definition of “unlawful enemy combatant” in the prior version of the directive as well as in Army Regulation 190-8, a longstanding regulation for DoD detention operations that was cited by Justice O’Connor in Hamdi.

Substantial support.  I am pleased that Mr. Rona agrees that “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.”  Of course, as noted above, we part ways when he argues that “the new Directive comes dangerously close to saying ‘if you can detain ‘em, you can kill ‘em” since the directive does not purport to have any effect on targeting policy.  Substantial support, while controversial in certain circles, has been argued by the U.S. government (March 13 Memo), recognized in statute (NDAA 2012, sec. 1021), and upheld by the DC Circuit (al Bihani, Uthman).  It would therefore be stranger if it were not part of the definition of unprivileged belligerent in DoD’s detention directive.

Reference to the Additional Protocols.  As I noted above, reference to key provisions from the Additional Protocols (APs) was seen as a significant achievement of the new directive.  Mr. Rona correctly points out that “standards” is used to qualify Common Article 3, while “principles” is used to qualify Article 75 of API and Article 4-6 of APII, and that the reason for the difference (at least for the latter) is because the United States is not party to the APs.  What Mr. Rona gets wrong is his assertion that the United States views Article 75 as “established customary international law.”  In fact, the recent statement that Mr. Rona likely alludes to was very careful to avoid pronouncing a U.S. position that Article 75 was custom.  Instead, it states that “[t]he U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.”  So, the United States therefore will adhere to the principles set forth in Article 75, satisfying its opinio juris requirement but makes no broader claims about whether the principles within Article 75 have sufficient widespread state practice to qualify as customary international law.

Distinction between IACs and NIACs.  Mr. Rona argues that the new directive “fails to acknowledge important distinctions in [IACs] and [NIACs].”  Were this true, it would be a significant mistake, particularly because, as Mr. Rona rightly notes, “the vast majority of armed conflicts today, and indeed, the only ones the United States is arguably party to today, are NIACs.”  However, DoDD 2310.01E directly and indirectly distinguishes between IACs and NIACs throughout the document.  Consider, for example the differing treatment standards provided for in section 3.a., the acknowledgement in section 3.g. that prisoners of war and civilian internees (both IAC categories) enjoy additional protections as provided for in the Geneva Conventions of 1949, the description of Article 5 tribunals in 3.h. and parole agreements in 3.m.3., the description of retained persons and their protections under GCIII in section 3.m.4., and the definitions of conflict-dependent status categories.  The document is clearly filled with important distinctions between IACs and NIACs.

Lawyer access to detainees.  Professor Vladeck poses an interesting question regarding the absence of any provision giving counsel access to detainees.  This issue was considered during the drafting of the directive, but as noted above, the general nature of directives counseled against a specific provision allowing lawyers access to detainees.  In the history of warfare, lawyer access to detainees at Guantanamo is a bit of an anomaly, including when compared to U.S. detention operations in Iraq and Afghanistan.  Although legal access could be read into section 3.l., burdening DoD with a specific requirement for all unforeseen future conflicts (consider over 80,000 individuals detained recently in Iraq) would be imprudent, to say the least.

Ryan Vogel is a visiting assistant professor of law at Chicago-Kent College of Law. He served from 2008-2014 in the Office of the Secretary of Defense.  All views are his own and not necessarily those of the Department of Defense.