The unresolved problems with the DoD Directive definition of “unprivileged belligerency”: A response to Ryan Vogel [Updated]

Thanks so much to former DoD official Ryan Vogel for his important guest post explaining the origins and objectives of the new Department of Defense Directive 2310.01E, regarding DoD detention practices.  Professor Vogel confirms what I surmised in a post earlier this week–that there’s nothing suspicious about the effort to revise the Directive, nor is the Directive designed to stealthily introduce or reflect any unfortunate new DoD detention practices or policies.

Most of Professor Vogel’s explanations are reassuring.  Nevertheless, what he has to say about the final provision in the appendix Glossary, defining the term “unprivileged belligerent,” does not really address the problems in that provision, which continue to be very troubling, even if (as Vogel suggests) they were not intended.

Professor Vogel emphasizes that the Directive is intended to apply only to govern DoD detention operations, and not to affect other important practices—most importantly, targeting.  I have no reason to question his representation that that was the intent of those who worked on the Directive.  Unfortunately, however, the definition of “unprivileged belligerent” not only includes at least one potentially significant legal problem related to detention itself, but also, by its terms, could reasonably be read to reflect DoD views on other important matters, as well, such as who can be targeted and who can be criminally prosecuted (i.e., who lacks “combatant immunity”) for their belligerent acts.  And in several important respects, those views would be wrong. Accordingly, especially if, as Professor Vogel suggests, it was not the purpose of the definition to address such matters, DoD should promptly amend it (and its “examples”) to eliminate those problems and confusions.*

As I explained in my earlier post, the substantive provisions of the Directive refer to three categories of DoD detainees:  POWs, civilians, and “unprivileged belligerents.”  As for the latter category, the Directive explains two substantive things of note related to detention:

— (i) that, like POWs, “unprivileged belligerents” may lawfully be detained until the end of an armed conflict or until active hostilities have ceased—in contrast to civilian internees, who may lawfully be detained only “until the reasons that necessitated the civilian’s internment no longer exist.”  See paragraph 3(f).

and

(ii) that, unlike certain civilian detainees, “unprivileged belligerents” do not qualify for “protected person” status under the Fourth Geneva Convention.  See paragraph 3(m)(1).  [UPDATE:  Just to be clear:  The Directive does not suggest that such detainees are entitled to no protection at all under the Geneva Conventions:  Paragraph 3(a)(1) specifies that all detainees, without regard to status, are entitled to, inter alia, the protections of Common Article 3.]

The purpose of the definition of “unprivileged belligerent,” then, should be to identify those detainees who are subject to those two detention-related propositions.

That’s where the first problem comes in—a problem related to detention itself.  The Glossary definition suggests that a person who has “substantially support[ed] an enemy non-state armed group in the conduct of hostilities” is thereby an “unprivileged belligerent,” i.e., someone who can, per paragraph 3(f) of the Directive, lawfully be detained until the end of hostilities.  That may, perhaps, be true in some cases—such as with respect to substantial supporters of enemy forces who are apprehended while accompanying such forces.  But in other cases, DoD could lawfully hold persons who “substantially support” an enemy non-state armed group only in an internment capacity, if their support 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.  Indeed, this is reportedly what DoD did with respect to such civilian supporters of the enemy during the war in Iraq.  Such supporters, contrary to the definition of the Glossary, do not automatically “forfeit the protections of civilian status,” even for purposes of detention.  (Steve Vladeck and I have more on this topic toward the end of this post.)

Professor Vogel responds that it would be “strange” for the Directive not to refer to substantial supporters as among those who might be detained by DoD, since that has been the Administration’s view since it filed its March 13, 2009 brief in the Guantánamo habeas litigation.  Vogel is correct that that has been the Administration’s view.  The problem, however, is the Glossary’s reference to all such (hypothetical) supporter detainees as “unprivileged belligerents” and to suggest that they forfeit all protections of civilian status–something the March 13th brief was very careful not to do.  The Directive likewise should avoid such characterizations.  (Indeed, it’s not obvious to me that the Directive has to address “substantial supporters” at all:  The question of when and under what conditions they may be detained is a complicated one, and it appears that it might be largely academic, since few if any DoD detainees are held on the basis of such “support.”  Therefore it might be best not to try to untangle this (largely) hypothetical puzzle in the context of this Directive.)

The other problems with the definition of “unprivileged belligerent,” however, are even more troubling, because they expressly state or strongly imply mistaken conclusions about topics other than detention—something that Professor Vogel assures us the drafters did not intend.  For example:

— that civilians who are not part of enemy forces but who “engag[e] in hostilities” thereby “incur[] the . . . liabilities of combatant status”—presumably including the “liability” of being a lawful target at any time, which is the principal “liability of combatant status” under the laws and practices of war;

— that an individual who “substantially support[s] an enemy non-state armed group in the conduct of hostilities” also not only “forfeit[s] the protections of civilian status,” but also “incur[s] the . . . liabilities of combatant status”—again, presumably including the “liability” of being a lawful target at any time; and

— that combatants who engage in spying, sabotage, or other similar acts behind enemy lines thereby “forfeit[]the privileges of combatant status”—apparently even if those combatants are part of state armed forces, or have returned to their own lines before being apprehended.

In my earlier post, I explained why each of these propositions is wrong or misleading.  At a minimum, however, they do not relate to questions of detention policy, and therefore have no place in this Directive, regardless of their substantive merits.

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* Professor Vogel implies that the definition in question is no change from the status quo, as reflected in two earlier DoD documents, the prior version of Directive 2310.01E itself, and Army Regulation 190-8.  Neither of those documents, however, incorporates the problems found in the new definition of “unprivileged belligerent,” and the Bush Administration version of the Directive notoriously included a definition of “unlawful enemy combatant” that contained its own distinct problems–a definition that has, appropriately, been removed from this new version. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).