detention

Department of Defense Directive 2310.01E: A Snapshot of the Pentagon's Policy on Detention

By Robert Chesney
Tuesday, October 3, 2017, 8:00 AM

The Department of Defense has regulations for everything, and detention is no exception.  The key policy document for detention operations is Department of Defense Directive Number 2310.01E ("DODD 2310.01E").  This directive, titled "DOD Detainee Program," functions as a general framework for all DOD detainee operations, with extensive reference to both legal and policy obligations applicable in such circumstances.  It has been around for a while in its current form (2006 was the last significant revision, I believe), and then a few months ago was lightly-updated (so as to remove a previous line that would have caused it to sunset in 2024).  

By posting about this document, I do not mean to suggest that there is anything novel here that previously had gone unnoticed.  Quite the contrary; the whole thing looks to me quite like what one would expect to find if you follow U.S. government legal and policy positions relating to detention.  But I think it is interesting reading nonetheless, if only as a refresher.  And it also is interesting to think through how it likely has played out in relation to the current situation in which a U.S. citizen linked to the Islamic State came into U.S. military custody and is now held as an enemy combatant somewhere in Iraq (with at least some prospect of being transferred to Iraqi custody for prosecution in their courts).

At any rate, here's a snapshot of the directive's several moving parts:

To whom does this directive apply? 

According to Section 2, it applies to all DOD entities, all DOD personnel, all DOD contractors involved in "any capacity" with detainee operations, and all non-DOD persons (including "foreign government representatives" who are provided access to any detainee "under DOD control." (Section 2). 

What legal frameworks does it incorporate in terms of treatment standards? 

Section 3 states that all detainees shall be treated in accordance with the law of war, with Common Article 3 applicable as a minimum standard in all cases (and with Article 75 of Additional Protocol I applicable as well during an international armed conflict, and Articles 4-6 of Additional Protocol II applicable as well during non-international armed conflict.  Of course, other more-specific protections might apply above and beyond these (e.g., POW status in some cases).  There is a separate statement requiring humane treatment in all cases, with various examples, and various other specific provisions on matters such as prosecution.

What does it say about the expected length of military detention? 

Section 3(f) provides for two different detention rules regarding when detention must end:

First, as to both POWs and "unprivileged belligerents," detention must end when "a competent authority determines that the conflict has ended or that active hostilities have ceased."

Second, as to "civilian internees" (e.g., security internees within the meaning of GCIV), detention must end when "the reasons that necessitated the civilian's internment no longer exist."

Does the policy require periodic review for non-POWs? 

Yes, under section 3(i).  Which is what you would expect for anyone held as a "civilian internee" on a GCIV model, of course.  Interestingly, though, the policy also requires periodic review for the "unprivileged belligerent" category (notwithstanding that the theory of that category is that the person is subject to detention for the duration of hostilities ala a POW but without combatant immunity from prosecution). 

Anything here concerning release or transfer of detainees?

Section 3(m) addresses this topic. 

Subsection 3(m)(1) addresses the release of both POWs and unprivileged belligerents upon the conclusion of hostilities (a useful reminder that the unprivileged belligerent model, being modeled on the POW model, likewise lasts only so long as does the underlying armed conflict).

Subsection 3(m)(2), in contrast, addresses release and transfer of unprivileged belligerents only, and in the particular setting where the conflict is still ongoing.  The policy states that, in such a case, transfer or release is allowed "if a competent authority determines that the threat the individual poses to the security of the United States can be mitigated by other lawful means."

There's much more in this section, but let's jump to Subsection 3(m)(6), which incorporates the non-refoulement rule into DOD policy.  It prohibits the transfer of any detainee to another country's custody if "a competent authority has assessed that it is more likely than not that the detainee would be subjected to torture." Beyond that, the policy states (rather more ambiguously) that the authority also must "consider[]" the "risks that the detainee would suffer other forms of ill-treatment."

Notably, the next subsection (3(m)(7)) adds that the relevant DOD component grappling with such questions must "coordinate with" the office of the undersecretary of defense for policy before carrying out a transfer that will move a detainee across an international boundary, or in any event to move a person to a country that is not the person's country of origin, or in any event if the transfer "might raise other significant foreign policy considerations."  USD(P), for its part, is then supposed to coordinate with the State Department and ODNI "as appropriate."

Does the directive say anything about the possibility of U.S. citizens as detainees?

If you go on to read the "Enclosures" attached to the directive, you do find express references to U.S. citizens as detainees. 

"Enclosure 2," which serves to specify the respective responsibilities of various DOD offices and entities in relation to detainees," mentions that the DOD general gounsel has responsibility for, among other things, coordinating with the Justice Department and other (unspecified) agencies in connection with (a) any detainee litigation and (b) "matters pertaining to detainees who may be U.S. citizens, dual nationals with U.S. citizenship, or U.S. resident aliens." (Enclosure 2, Section 7)

Similarly, the section of that enclosure listing responsibilities for combatant commanders includes a requirement to report to the secretary of defense and the chairman of the Joint Chiefs of Staff when capturing or accepting into custody certain categories of detainees, starting with U.S. citizens.  (Enclosure 2, Section 7(d)(1))

Further, the directive also includes a glossary, which includes an entry for the word "detainee."  And, interestingly, at the end of the definition of "detainee," the glossary states that "[d]etainees who are U.S. citizens or U.S. resident aliens will continue to enjoy all applicable rights and privileges under U.S. law and DOD regulations."  One might expect to find such a statement in the body of the directive itself, but there it is in the glossary. 

Anything else interesting in the glossary? 

The definition of "unprivileged belligerent" is interesting (though not surprising to those who follow this area). Such a person is:

[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. Examples of unprivileged belligerents are:

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.

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

The term "unlawful enemy combatant" used in other DOD regulations is synonymous with the term "unprivileged belligerent" contained in this directive.

 You will note, of course, how this tracks the litigating position we have seen over the past several U.S. administrations, as well as key aspects of the detention-eligibility provision in the National Defense Authorization Act for fiscal year 2012. (Specifically, it follows the model in which a person counts as an enemy combatant if he or she is a member of a non-state armed group or, even if not a member, by providing "substantial support.")  

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