Seven Detainee Operations Issues to Consider Prior to Your Deployment

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					                               Seven Detainee Operations Issues to Consider Prior to Your Deployment

                                           Major Olga Marie Anderson∗ & Major Katherine A. Krul†

               Operation Enduring Freedom (OEF) and Operation Iraqi Freedom (OIF) changed the complexity of the
                                    entire EPW [Enemy Prisoner of War] / detainee mission.1

I. Introduction

     Deployed Brigade Judge Advocates (BJAs) will likely find themselves enmeshed in the task of unraveling complex
issues associated with detainee operations.2 Although detainee operations cut across multiple staff sections, including
command, intelligence, operations, military police, and legal,3 the Commander will frequently turn to the BJA for advice and
solutions. To provide effective advice to the Commander, the BJA must consider a variety of issues ranging from the legal
underpinnings of detention operations to more practical concerns such as the logistics of handling detainee files. The seven
questions addressed in this article start with the legal issues and then move to more practical considerations. Recent
deployments have yielded countless lessons learned in the realm of detention operations at all levels of command;4 however,
the following observations are geared specifically towards assisting deploying BJAs during their pre-deployment training so
they may be better prepared to assist their commanders in the realm of detention operations.

II. Seven Questions to Ponder Before Deploying

A. What is the Legal Authority to Detain this Individual?

    Both the BJA and the individual Soldiers assigned to the Brigade Combat Team (BCT) should understand the legal basis
to detain5 individuals during the specific conflict. Generally, the legal basis for detention stems from the Geneva

  Judge Advocate, U.S. Army. Presently assigned as an Associate Professor, Int’l & Operational Law Dep’t, The Judge Advocate General’s Legal Ctr. &
Sch. (TJAGLCS), Charlottesville, Va. LL.M., 2007, TJAGLCS, J.D., 1997, West Virginia University College of Law; B.S.I.E. 1994, West Virginia
University, Morgantown, W. Va. Previous assignments include Student, 55th Judge Advocate Officer Graduate Course, TJAGLCS, Charlottesville, Va.;
2005–2006 Brigade Judge Advocate, 1st Brigade Combat Team, 10th Mountain Division (Light Infantry) deployed to Baghdad, Iraq; 2004–2005 Chief of
Justice, 10th Mountain Division (Light Infantry) Fort Drum, N.Y.; 2003–2004 Chief of Operational Law, Combined Joint Task Force-180, Bagram, Afg.;
2002–2003 Chief of Legal Assistance, 10th Mountain Division, Fort Drum, N.Y.; 2001–2002 Officer-in-Charge, Giessen Legal Center, F.R.G.; 2000–2001
Trial Counsel, 1st Brigade Combat Team, 1st Armored Division (deployed to Camp Bondsteel, Kosovo 2000); 1998–2000 Chief of Claims, Claims Judge
Advocate, Legal Assistance Attorney, Fort Sill, Okla. Member of the state bar of West Virginia.
  Judge Advocate, U.S. Army. Presently assigned as the Brigade Judge Advocate, 3d Brigade Combat Team, 25th Infantry Division deployed to Iraq.
LL.M., 2008, TJAGLCS, Charlottesville, Va.; J.D., 2000, University of South Carolina; B.A., 1997, Saint Bonaventure University. Previous assignments
include Student, 56th Judge Advocate Officer Graduate Course, TJAGLCS, Charlottesville, Va.; Chief, Administrative Law, Fort Jackson, S.C. 2006–2007;
Chief, Criminal Law, Fort Jackson, S.C. 2005–2006; Defense Counsel, Fort Jackson, S.C. 2004–2005; Brigade Judge Advocate/Trial Counsel, Fort Drum,
N.Y. 2002-2004; Chief, Client Services, Kosovo 2001–2002; Legal Assistance Attorney, Fort Drum, N.Y. 2001. Member of the bars of South Carolina and
the District of Columbia.
    Lieutenant Colonel Ed Lowe & Mr. Joseph Crider, Detainee Operations: An Evolving Paradigm, MIL. POLICE 1, 1 (Oct. 2005).
 See JOINT CHIEFS OF STAFF, JOINT PUB. 3-63, DETAINEE OPERATIONS, at II-3 to II-11 (30 May 2008) [hereinafter JOINT PUB. 3-63] (discussing the roles
and responsibilities in detention operations for various members of the staff).
    FORGED IN THE FIRE, supra note 2, at 28–52.
  While the U.S. military uses the term “detention,” the Geneva Conventions have articles that use both the term “internment” and “detention.” Compare
JOINT PUB. 3-63, supra note 3, with Geneva Convention Relative to the Protection of Civilian Persons in Time of War arts. 42, 68, & 78, Aug. 12, 1949, 6
U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV]. “Detention” is defined as “the act of holding a person in custody; confinement or compulsory delay.”
BLACK’S LAW DICTIONARY 459 (7th ed. 1999). Therefore, detention tends to focus on potential criminal conduct committed by an individual. On the other
hand, the term “intern” is defined as “to segregate and confine a person or group, especially those suspected of hostile sympathies in time of war.” Id. at
820. While detention of an individual focuses on past conduct, internment appears to be concerned with an individual’s future activities. Note that
Department of Defense Dictionary of Military and Associated Terms does not define internment; however, it does use this term in acronyms describing
facilities used to hold detainees. See JOINT CHIEFS OF STAFF, JOINT PUB. 1-02, DEPARTMENT OF DEPARTMENT O
Description: [...] detain the right individuals for the right length of time under the right conditions.89 Second, help the unit ensure that no detainee escapes from the facility.90 Third, prevent the abuse or death of detainees while in the care of U.S. Soldiers.91 To help ensure that these keys to success are met, the BJA must have a physical presence in the detention facility to prevent potential misconduct and identify issues in what has become a zero-defect area. Reflecting on the issues raised in this article should help the BJA prepare for an upcoming deployment. Since detainee operations is not a legal discipline easily replicated in garrison, the BJA must spend time thinking about these issues early in the pre-deployment cycle to ensure that not only the legal section, but the entire BCT, is prepared.
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