LAW AND NAVAL OPERATIONS

It seems we have taken a few men from their places of repose and brought them aboard our warships. It is a gray area that I am glad did not come my way more than once. It would be nice to think that we have unambiguous rules for detaining unpleasant company on our warships, but we don't. What we have is known as the Commander’s Handbook on the Law of Naval Operations.

This is the basic introduction to complying with the applicable laws of armed conflict that are of particular interest to the naval commander. The idea is that following the rules will keep you out of jail, away from Congress, and not detained at some 3rd world government's pleasure the next time you travel the world on your blue passport. The perils inherent in waging lawfare for the naval commander are not dissimilar to those faced by intelligence agents who work in the national interest while serving abroad in 3rd world countries which all enjoy access to the International Criminal Court whose international warrants are enforced by Interpol, et al, and used to detain and arrest American citizens who happened to be involved in the Rendition operations of Obama's administration. In other words, once fingered by wikileaks as a person-of-interest who participated in rendition while serving in a 3rd world country like Italy, one can be arrested the next time one travels abroad and know, with total certainty, that neither the State Department nor the United States, will lift a finger to get you out of jail.

So we now know that dabbling in these extremely legal waters is quite perilous. Nevertheless, we don't actually give our Commanding Officers much choice now, do we. We do not. But to make sure that he at least has a chance of making it out alive, honor intact, there are a few rules:

11.3.1.4 Temporary Detention of Prisoners of War, Civilian Internees, and Other Detained Persons aboard Naval Vessels. 

International treaty law expressly prohibits “internment” of prisoners of war other than in premises on land, but does not address temporary stay on board vessels. U.S. policy permits detention of prisoners-of-war, civilian internees, and detained persons on naval vessels as follows:

1. When picked up at sea, they may be temporarily held on board as operational needs dictate, pending a reasonable opportunity to transfer them to a shore facility or to another vessel for evacuation to a shore facility.

2. They may be temporarily held on board naval vessels while being transported between land facilities.

3. They may be temporarily held on board naval vessels if such detention would appreciably improve their safety or health prospects.

Detention on board vessels must be truly temporary, limited to the minimum period necessary to evacuate such persons from the combat zone or to avoid significant harm such persons would face if detained on land. Use of immobilized vessels for temporary detention of prisoners of war, civilian internees, or detained persons is not authorized without Secretary of Defense approval.

There is more:

11.7 QUESTIONING AND INTERROGATION OF DETAINED PERSONS

Commanders may order the tactical questioning of detained persons to the extent necessary and proper to efficiently conduct military operations, including determining the strength and plans of opposing forces. Tactical questioning is defined in DOD Directive 3115.09, DOD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning, as “direct questioning by any DOD personnel of a captured or detained person to obtain time-sensitive tactical intelligence, at or near the point of capture or detention and consistent with applicable law.”

Tactical questioning is not an interrogation, but a timely and expedient method of questioning by a noninterrogator seeking information of immediate value. It may be conducted by any DOD personnel trained in accordance with subparagraph 4.6.5 of DOD Directive 3115.09. Anyone conducting tactical questioning must ensure all detained persons receive humane treatment. Additionally, if the detained person is entitled to prisonerof-war status additional restrictions on questioning apply, see paragraph 11.7.1.

If questioning beyond tactical questioning is necessary, it is considered interrogation and can only be conducted by DOD-certified intelligence or counterintelligence personnel (DOD Directive 3115.09, paragraph 3.4.2).

Generally, masters at arms or other security personnel may not actively participate in interrogations, as their function should be limited to security, custody, and control of the detainees. Interrogators may conduct debriefs of the masters at arms or other security personnel regarding the detainees for whom they are responsible.

If interrogation is necessary, in addition to securing the services of certified interrogators, reference should be made to the following:

a. Geneva Conventions Relative to the Treatment of Prisoners of War, of August 12, 1949

b. DOD Directive 3115.09 (DOD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning)

c. JP 2-01.2 (Counterintelligence)

d. Army FM 2-22.3 (Human Intelligence Collector Operations).

11.8 QUESTIONING OF PRISONERS OF WAR

Detainees who are entitled to protections as set forth in the Geneva Conventions Relative to the Treatment of Prisoners of War of 1949 cannot be denied rights or have rights withheld in order to obtain information. Interrogators may offer incentives exceeding basic amenities in exchange for cooperation. Prisoners of war are only required to provide name, rank, serial number (if applicable) and date of birth. Failure to provide these items does not result in any loss of protections from inhumane or degrading treatment; a prisoner of war who refuses to provide such information shall, however, be regarded as having the lowest rank of that force, and treated accordingly. Prisoners of war who refuse to answer questions may not be threatened, insulted, or exposed to
unpleasant or disparate treatment.

At this moment I'm not sure yet if we have settled the legal status of the terrorists we hold in Guantanamo and elsewhere around the world. It got a bit confused when we allowed the lawyers to have their say. Some of them appear to be simple miscreants who have been swept up after being found committing some sort of crime. They get all the rights of any prisoner in the American legal system. Others are some sort of enemy combatant/detainee swept up either on the battlefield or near some place we decided was enemy territory (Abbotabad, Pakistan). We can either kill them out of hand or must treat them like prisoners of the American legal system. Our fearless leaders used to refer to it as a War on Terrorism which might tend to imply that some of them fall under the Geneva Convention as Prisoners of War.

Wouldn't it be nice though, to know what they are at this instant and what they will be when the next administration comes to power and suddenly decides that everybody who had a role in questioning these bad guys is a war criminal, subject to the American legal system of injustice too? Remember how anybody who had water-boarded these terrorists was a criminal when the democrats took power? Remember? It wasn't just the guys with the water, it was the lawyers in the Bush White House who were now guilty of being criminals and putting their names to papers that gave authority to men like the Captains of our warships and intelligence operatives to act in a way consistent with the law as they knew it at the time.

These guys out there are putting a lot of faith in the honor and integrity of men/lawyers just like Obama and to help keep them focused, they remain serene in the knowledge that John Kerry, the man who swore that every American soldier and sailor in Vietnam was a war criminal, is their Secretary of State.