Last month the Department of Defense (DOD) issued a new version of "Directive 2310.01E." Hmm...sounds ominous. It is. This directive is one of the central documents outlining the policies and rules applicable to the DoD Detainee Program (think Guantánamo and, at least for a few more months, Bagram). What is this all about anyway, this new updated version? Gabor Rona writing at Just Security notes at some length,
We all know that after 9/11, the Bush administration tried to wiggle out of its Geneva Conventions obligations in order to shield its arbitrary and abusive detention operations from the rule of both domestic and international law. The device it used was the invention of a new name and status for detainees, eschewing the established categories of “civilian” or “combatant” that are recognized in the law of armed conflict. The new name was “unlawful enemy combatant.” The term was alleged to have precedent in the WW II era US Supreme Court Quirin case, which spoke of “unlawful combatants.” However, what the purveyors of the term didn’t note is the simple fact that the Quirin Court was not creating or recognizing any such new status under the law. In fact, the defendants in that case were garden variety “lawful” combatants – members of the German military. But they arrived on US shores masquerading as civilians to commit acts of sabatoge. It was their conduct under civilian cover that was unlawful, indeed, the war crime known as perfidy. Their status was not the issue.The Obama lawyers were more sophisticated. They recognized the flaw in the “unlawful combatant” concept and replaced it with the less inaccurate “unprivileged enemy belligerent.” We can’t, however, simply say the term is “accurate” because it is construed so broadly as to sweep up individuals who are neither members of enemy armed forces nor civilians directly participating in hostilities in armed conflict against the United States. The fact is, the term, as spplied, includes individuals who the law of armed conflict considers civilians.The combatant/civilian distinction is important in both targeting and detention, but in different ways that I can’t exhaustively detail here. For now, the crucial point is that the Directive includes giving “substantial support” to the enemy as an example of what makes one an unprivileged belligerent. But like the crime of “material support” to terrorism, “substantial support” doesn’t necessarily make you targetable, and if you’re a civilian, it doesn’t make you a combatant, but it may make you subject to detention and prosecution.So 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 but uses those grounds to justify a label that screams “we can also kill you if we decline to detain you.” Now it’s one thing to say “if you can kill ‘em, you can detain ‘em” but the new Directive comes dangerously close to saying “if you can detain ‘em, you can kill ‘em.”Back to why this change and why now. One benign theory is that it’s simply a case of bad drafting, with no intent to change the landscape of targetability. The flip side of the coin is, of course, that it’s a stealth effort to bootstrap an expanded concept of targetability in anticipation of an ever-widening war against ever-increasingly amorphous threats. That would be bad law and bad policy. As so many military and civilian strategists have noted, we can’t kill (or for that matter, detain) our way out of the terrorism problem and attempting to do so simply plays into the hands of those who try to draw us in to “forever war” by so publicly and viciously murdering our citizens.
Why now for the new directive, you may ask?
Personally, I have no idea. Some see sinister motives, some don't. What do I know?
Well, since I don't, in fact, know much, for Jails and Cops Friday, I am posting the following from Invictus. If you are interested in such things, and I know some of you are, here goes....
By the way, isn't it amazing how torture becomes something boring?
Earlier this month, Steve Vladek at the Just Security blog, pondered why the government chose this particular time to release the new, updated directive. While his observations are important and worth considering, much of importance is omitted from his brief analysis.
In my analysis -- besides the potential legalities explored by Vladek, which impact the definition of what the government considers the definition of an “unprivileged belligerent" (like the detainees at Guantanamo), and access of legal counsel to these prisoners -- the new directive propounds a number of new rules that summarize the Obama administration's detainee regime, particularly as it relates to Guantanamo.
The new directive expands upon what "humane treatment" means for those caught in its "detainee program." It also adds an item about the collection of biometric identification information (BII). Such information "will be collected from all detainees in accordance with DoDD 8521.01E." It also includes a statement of how long a detainee can be held, which appears to operationalize Obama's policy of indefinite detention of detainees. Finally, the directive greatly expands on the issue of who can be held, how charges can be brought against detainees, and what procedures are necessary for a detainee's release. (This article will not cover the very last item.)
A long analysis of all the changes would take many pages, and I am going to concentrate on those of immediate relevance to me. I would hope that Vladek, or other attorneys or human rights organizations will pursue the relevant legalities in the sections on how detainees are held and released.
No protection from sleep deprivation
In the 2006 version of the directive, the issue of humane treatment of detainees is summarized in a sentence: "All detainees shall be treated humanely and in accordance with U.S. law, the law of war, and applicable U.S. policy."
In the new 2014 version, the section on "humane treatment" expands to nearly 250 words. To understand the significance of what is written here, one must realize that the procedures "established for the treatment of persons consistent with this directive" includes U.S. Army Field Manual 2-22.3, “Human Intelligence Collector Operations" (AFM).
As I have written at various times, numerous human rights, medical, and legal groups have identified the AFM, and in particular its Appendix M on a "restricted Separation technique," to include methods of interrogation and conditions of confinement that amount to torture and/or cruel, inhumane and degrading treatment of prisoners. In particular, it allows use of isolation, sleep deprivation, use of drugs, sensory deprivation, environmental manipulation, and techniques that induce fear and degrading verbal treatment of prisoners, intending thereby to induce, according to the manual iself, "hopelessness and helplessness" in its victims.
Hence, while the new DoD directive makes some pretty noises about providing detainees with "Adequate food, drinking water, shelter, and clothing"; and while DoD claims detainees will be protected "against threats or acts of violence, including rape, forced prostitution, assault, theft, public curiosity, bodily injury, reprisals, torture, and cruel, inhuman, or degrading treatment or punishment," DoD never mentions any provision of adequate sleep. This is not, in my opinion, a mere oversight.
Sleep deprivation is a key foundational element, along with isolation (solitary confinement), of the torture program to break down individuals used by the CIA and the Department of Defense. The AFM's Appendix M provides specifically that prisoners (of the "unprivileged" sort) can be limited to 4 hours sleep per day for up to 30 days, and even longer. In principle, that can even be done indefinitely.
This sort of sleep deprivation is not as dramatic as the kind advertised in the CIA's "enhanced interrogation" version of torture, but it is debilitating nevertheless. Former DoD interrogator Matthew Alexander wrote in the New York Times, "The [Army Field] manual also allows limiting detainees to just four hours of sleep in 24 hours. Let’s face it: extended captivity with only four hours of sleep a night (consider detainees at Guantánamo Bay who have been held for seven years) does not meet the minimum standard of humane treatment, either in terms of American law or simple human decency."
Alexander added, "And if this weren’t enough, some interrogators feel the manual’s language gives them a loophole that allows them to give a detainee four hours of sleep and then conduct a 20-hour interrogation, after which they can “reset” the clock and begin another 20-hour interrogation followed by four hours of sleep. This is inconsistent with the spirit of the reforms, which was to prevent “monstering” — extended interrogation sessions lasting more than 20 hours."
Alexander was not alone in his analysis. The right to sleep is considered part of "humane treatment" under international law. A 2003 US Southern Command instruction (pdf) to then-Secretary of Defense Donald Rumsfeld, stated sleep deprivation was defined "as keeping a detainee awake for more than 16 hours" (see pgs. 5-6).
It is worth noting that the version of the AFM that preceded the current September 2006 version forbid use of sleep deprivation and stress positions.
The current version of the AFM, used to help define the parameters of treatment in the just released directive, eliminated the prohibitive language concerning sleep deprivation and stress positions. This is not an accident. And additionally, DoD's new directive also contains no prohibition on stress positions.
No protection from non-punitive sensory deprivation
Directive 2310.01E, like Appendix M of the Army Field Manual, does contain a prohibition on the use of sensory deprivation. The problem is in how the government defines "sensory deprivation."
The directive states, detainees "will not be subjected to medical or scientific experiments or to sensory deprivation intended to inflict suffering or serve as punishment."
One must ask, why is there a condition put on the prohibition of sensory deprivation? Sensory deprivation intended to inflict suffering, or as punishment is prohibited, but what about in other matters?
The directive is being opaquely coy here, as sensory deprivation is allowedin a particular procedure in the current Army Field Manual. In the description of the latter's "Field Expedient Separation," goggles or blindfold and earmuffs are put on a detainee for up to 12 hours. Again this is expandable upon official approval.
The AFM warns that care must be taken to protect the blindfolded, earmuffed prisoner from self-injury, and the prisoner must be medically monitored. The AFM doesn't explain why this is necessary, but the reason is that such sensory deprivation is intolerable for some people and can lead to hallucinations and self-injurious behavior. The inclusion of a procedure that so obviously needs medical monitoring should be a red flag that it violates basic humane treatment.
The purpose of the blindfold, goggles and earmuffs (and here, one may recall those pictures of be-goggled and earmuffed and bound detainees taken out of doors at Camp X-ray in the very earliest days at Guantanamo) is not to "inflict suffering." No, according to the AFM itself, it is to "prolong the shock of capture," prevent communication with other detainees, "and foster a feeling of futility." While the prevention of communication with other detainees may have a security factor, the other instances do not.
To that point, the new directive includes a section on the separation or "segregation" of detainees from each other for security and other reasons. It should be noted that such administrative segregation is not what is involved in the Appendix M version of "isolation." The AFM itself makes it clear that solitary confinement or isolation is used as an interrogation technique.
The use of "separation" itself as an interrogation technique should, according to the AFM, "be distinguished from segregation, which refers to removing a detainee from other detainees and their environment for legitimate purposes unrelated to interrogation...." (pg. M-1).
Isolation of prisoners is itself a form of sensory deprivation, in that it provides restricted environmental and social stimulation. (See this classic paper (long PDF) by Stuart Grassian on "The Psychiatric Effects of Solitary Confinement.")
Of course, isolation is something that is also sanctioned by the Army Field Manual, for up to 30 days, with the possibility of indefinite extension. The "humane treatment" section of the new DoD directive provides no protection against such treatment.
Also new to the DoD directive on its detainee program is a section on the collection of biometrics.
Biometric data "will be collected from all detainees... as soon as practicable after their capture by, or transfer to, the custody or control of DoD personnel, and will be included in detainee records. BII collected on detainees who are U.S. citizens or U.S. resident aliens will be conducted in accordance with U.S. law and policy and all applicable DoD regulations."
The use of biometrics deserves its own lengthy analysis. The fact that U.S. citizens or resident aliens may have different legal rights when it comes to such collection than, for instance, the Guantanamo detainees, is a matter worth pursuing.
According to DoD, biometrics is "A measurable biological (anatomical and physiological) and behavioral characteristic that can be used for automated recognition." (italics added)
As a process, biometrics concerns "Automated methods of recognizing an individual based on measurable biological (anatomical and physiological) and behavioral characteristics....
"Biometrics-enabled Intelligence. Intelligence information associated with and or derived from biometrics data that matches a specific person or unknown identity to a place, activity, device, component, or weapon that supports terrorist / insurgent network and related pattern analysis, facilitates high value individual targeting, reveals movement patterns, and confirms claimed identity."
The use of "behavioral characteristics" stretches the definition to something beyond the biological. One source I consulted said such characteristics include "Speaker Recognition, Signature Recognition, Keystroke/Keyboard Dynamics," or any "measurable behavioral trait that is acquired over time and is used to recognize or verify the identity of a person."
According to an oft-cited paper, "An Introduction to Biometric Recognition," types of biometric identification include via DNA, face and ear recognition, gait, retinal scan, odor, voice, and even the way a person signs their name or types upon a keyboard."
The new provisions for biometric collection on detainees comes just weeks before the FBI announced the full operational capability of its own biometric database system.
The possible dangers inherent in use of biometrics is beyond the scope of this article, and tend to involved concerns about privacy and the expanding use of or security of biometric databases. I've included the information here because it is something new in the detainee program, as delineated by DoD. For more discussion of the issues, see this Electronic Frontier Foundation discussion.
In this already long essay on the new DoD Directive, I should note that it includes a brand-new item that seems to speak to the powers of indefinite detention propounded by the Obama administration. The new item states, "Subject to the requirements of the law of war and this directive, POWs and unprivileged belligerents may lawfully be detained until a competent authority determines that the conflict has ended or that active hostilities have ceased, and civilian internees may lawfully be detained until the reasons that necessitated the civilian’s internment no longer exist."
Who will this "competent authority" be? Whatever the answer to that question may be, it is frightening to see in official language the assertion that "civilian internees" can be "lawfully" detained until whatever "reasons necessitated" their internment "no long exist." In the "war on terrorism" we know that will be never. In its bold proclamation of the powers of indefinite detention, the document is profoundly unconstitutional and undemocratic.
In summary, we can see there is a lot more in the new DoD Directive on its Detainee Program than indicated in the Just Security discussion of its release. In particular, the directive makes explicit policies concerning so-called "humane treatment" of detainees that allows for the use of torture or cruel, inhumane, or degrading treatment of prisoners as set down in the current Army Field Manual. It does this despite formal statements of providing prisoners' rights, or following Geneva protocols, by omitting key items from its description of such "humane treatment," by burying actual abuse in references to other documents not specifically quoted in the directive, and by use of dodgy legalistic language that make things appear other than what they are.
If Bush or a Republican were President of the United States, this new DoD directive would have been subject to intense scrutiny and examination by a plethora of commentators and analysts. But because the Obama and the Democrats are in charge of the White House and Senate, a close examination of how Obama has perpetuated Bush and Cheney's torture program is not on the such analysts' political agenda.
The U.S. has become a Torture Nation. Torture is legalistically bound up in main government documents and how the government operates. Figures directly implicated in the planning and execution of torture have high positions in government or other major civil institutions (cf. John Yoo), while those who protest torture or expose it are punished.
[Update: Since writing this article, I discovered that were a few other postings at Just Security concerning the new DoD directive, besides that of Steve Vladek, including one by Gabor Rona, and one by Marty Lederman. These postings appear to be primarily concerned with the language around the definition of "unprivileged belligerents.” None of the other postings are critical of what Lederman called "expanded humane treatment provisions" in the new directive.
Meanwhile, Ryan Vogel, who says he "led the drafting and coordination process for DoDD 2310.01E", published today at Just Security a new article, "A Response on Department of Defense Directive 2310.01E (Detainee Program)."
Vogel writes, "... 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."
I think my answer to Vogel is explicitly aired above. What is disturbing is that the legal analysts at Just Security are so obtuse on the issue of what constitutes "humane treatment." Vogel is probably not obtuse. He must know where the textual bodies are buried, so to speak.]