The law blog Just Security, an online forum for analysis of U.S. national security law and policy, has recently added Visiting Assistant Professor Ryan Vogel as a guest contributor. Prof. Vogel’s author profile and posts can be found here: http://justsecurity.org/author/vogelryan.
In his first post, Prof. Vogel responds to comments and questions raised about a new Department of Defense detainee directive for which he led the drafting process. Read an excerpt below:
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.
Click here to read the rest of this post at Just Security, where Prof. Vogel responds to specific questions.