Time and again since 9/11 we’ve seen laws, regulations and government officials say one thing, but when awkward facts come to light, we find out that they meant something different. We do not torture. We do not secretly detain. We obey the laws of war. No civilians have been killed. Detention operations at Guantanamo are transparent. I could go on.

Given this history, Prof. Ryan Vogel’s spirited and thoughtful defense of what DoD intended to convey in various provisions of the recently revised Directive 2310.01E on detention is not as convincing as the plain meaning of the words the document actually contains. In the same vein, I can’t share Marty Lederman’s relief upon reading Ryan’s remarks that nothing momentous was intended in the revised Directive. On the contrary, Ryan concedes that the changes from past doctrine and policy were not inadvertent, but rather the fact that the document is “dramatically different than its predecessor” reflects a deliberate attempt to codify “practices and lessons learned over the past decade.”

Marty’s response to Ryan covers much of what’s wrong with the Directive, so let me stick to what Marty has not covered, or where I don’t agree with him.

First, and in partial defense of the Directive and Ryan, the Directive does not categorically deprive “unprivileged belligerents” of Geneva Conventions protection. Marty’s suggestion to the contrary, citing para. 3(m)(1) of the Directive is not quite accurate. 3(m)(1) denies unprivileged belligerents the protections of the 4th Geneva Convention on Civilians, but does not deny other Geneva Convention protections under Common Article 3. [UPDATE: Marty has since updated his post to clarify that DoD does not deny “unprivileged belligerents” all of the Geneva Convention protections, such as those of Common Article 3, but that it does deny them the privileges that the Fourth (Civilian) Geneva Convention affords to “protected persons.”  I continue to believe that DoD errs in withholding GC IV “protected person” treatment to unprivileged belligerent detainees, in an international armed conflict.] It’s a major mistake of the U.S. to deny 4th Geneva Convention coverage to unprivileged belligerents in wars between States, so in this respect, the Directive fails the test of international law. The majority of international legal opinion holds with the ICRC that no one is outside the protection of the Conventions. If, in a war between States, a detainee is not a national of the detaining authority and doesn’t qualify as a privileged belligerent/PoW under the 3d Geneva Convention, then the detainee is per force covered by the 4th Convention. But it is absolutely correct that the 4th Geneva Convention’s protections do not apply to wars against non-State armed groups (whose fighters are by definition, unprivileged belligerents). In fact, with the exception of Common Article 3, neither the 3d (PoW) nor the 4th (Civilian) Geneva Convention applies to wars against non-State armed groups.

Next, let me acknowledge one point on which Ryan is right and I was wrong in my earlier post on the topic. The Directive does require ICRC access to detainees. Even here, however, it permits waiver of that requirement in cases of “military necessity.” The document doesn’t define military necessity for purposes of denying ICRC access. Yet applicable international law is quite strict on this issue: “military necessity” is a doctrine applicable only to the actual fighting in war (means and methods of combat). It has no place in the realm of detention. Bottom line under international law: ICRC access may be not be denied in international armed conflict (war between States). Ryan points out that the Directive goes beyond the requirements of international law by mandating ICRC access in all armed conflict, for example in wars against non-State actors. But the improper “military necessity” caveat is an exception fully capable of swallowing the rule as well as the policy. My beef, inartfully stated in my earlier critique, is that while the Directive requires that the ICRC “be promptly notified of all ISN (Internment Serial Number) assignments,” it also foresees delay, and perhaps even denial of such assignments in “exceptional circumstances,” which again, are undefined. That would lead to detainees falling through the cracks, returning us to the days of secret detention at black sites.

Third, Ryan says that the reason the Directive refers to Common Article 3’s provisions as “standards,” but to Additional Protocol I, Article 75’s provisions as mere “principles” is simple. The United States is party to the Geneva Conventions, which include Common Article 3, but is not party to Additional Protocol I. In response to my observation that there should be no distinction because the United States recently announced its recognition of Article 75 as reflecting established customary international law, Ryan says, not exactly. It’s true, as Ryan notes, that the U.S. declaration on Article 75 merely said 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 . . .”. Ryan claims the language was carefully crafted to avoid equating Article 75 with custom. If that’s the case, the U.S. is trying to get credit for agreeing with the majority of the world that Article 75 is applicable law, while at the same time, denying that very fact and leaving itself an out to ignore the “fundamental guarantees” contained therein. Yet another example of an apparent salutary development losing its luster upon closer examination.