JURIST Guest Columnist Geoffrey S. Corn, Lt. Col. US Army (Ret.) and former Special Assistant to the Judge Advocate General for Law of War Matters, now a professor at South Texas College of Law, says that the McCain Amendment on the treatment of detainees has been largely undermined not only by Presidential reservations on its signing but by its very own terms, including the incorporation of an extensive "obedience to orders" defense favoring employees of US government agencies, including the CIA….

The recent compromise inclusion of an “obedience to orders” defense (Section 1404(a)) in the McCain Amendment, now incorporated into the Detainee Treatment Act of 2005, has effectively undermined the goal Senator John McCain fought so long to achieve. Instead of sending a clear message to U.S. forces that cruel, inhumane, or degrading treatment of detainees is never permissible, the compromise has validated President Bush’s belief that the necessities of war provide the ultimate “trump card” to justify “whatever it takes” in the war on terror.

In a memorandum [PDF] dated February 7, 2002 the President ordered that Taliban and Al Qaeda detainees would be treated humanely, “to the extent appropriate and consistent with military necessity.” The President’s determination that these detainees were not entitled to the legal protections of the Geneva Conventions was certainly controversial. However, it was the assertion that military necessity could “override” the principle of humane treatment that contradicted the most basic understanding of the law of war and prior U.S. policy. This assertion struck many experts as eerily reminiscent of the German concept of kriegsraison — the proposition that the necessities of war can serve as an ultimate “trump card” to justify “whatever it takes.” Because this concept was categorically invalidated during the post World War II war crimes trials, military legal practitioners struggled to come to terms with its apparent resurrection.

In the wake of Abu Ghraib and other detainee abuse investigations, the national debate focussed on this issue, exposing the tension inherent in the President’s policy, and the dangerous consequences of resurrecting such an unlimited notion of the necessities of war. Senator McCain and other members of Congress demanded that the obligation to treat all detainees humanely, and more specifically the prohibition against cruel, inhumane, and degrading treatment, be codified in U.S. law, and thus become immune from any “military necessity” override. Although the Bush Administration initially opposed this initiative, Senator McCain’s efforts culminated in a December compromise agreement. McCain’s goal of establishing at statutory “humane treatment” standard for all detainees will be achieved. However, in exchange for administration support, Senator McCain agreed to include a provision granting employees of the CIA and other government agencies the right to assert an “obedience to orders” defense to any charge alleging a violation of this new statutory prohibition.

The purported rationale for this “obedience to orders” exception is to provide government employees the benefit of the same legal defense applicable to members of the armed forces. While this may seem reasonable, it in fact reflects an unfortunate dilution of the McCain’s important objective, because this “obedience to orders” defense is as inherently inconsistent with the humane treatment mandate as was the President’s “military necessity” override. As a result, one must ponder whether this provision has resulted in the desired unambiguous mandate for U.S. personnel, or has instead validated the original kriegsraison approach so manifest in the President’s February 7th policy.

The entire purpose of the effort to codify the humane treatment obligation was to eliminate uncertainty related to this basic humanitarian standard, and thereby send a clear and unambiguous message to all U.S. personnel that “a detainee is a detainee” no matter where captured or who fighting for. This was a direct response to the dangerous uncertainty that resulted from multifarious legal categorizations established for individuals captured by U.S. forces since 9/11, uncertainty that has been identified as a major factor in detainee abuse incidents. By including an “obedience to orders” defense, the law will exacerbate this uncertainty. Instead of a clear and unambiguous statement of legal obligation, the modified McCain amendment instead confirms that the line between legal and illegal treatment is often blurry, and therefore soldiers and civilians ordered to execute policies established by military or civilian superiors should not question the legality of these orders. It is impossible to reconcile this with the original motive for the McCain Amendment, which was that the fundamental nature of the humane treatment obligation should not be subject to the type of uncertainty that would justify an “obedience to orders” defense.

If there was any doubt that the objective of the Bush administration in reaching this compromise was to preserve maximum flexibility and authority for the President to direct interrogation and detention procedures, that doubt was dispelled by the President’s December 30 signing statement for the legislation indicating that he would construe it consistent with his Commander-in-Chief powers and national security interests. It now seems clear that the President has prevailed in his effort to preserve maximum authority in relation to the treatment of detainees, and preserved his ability to order interrogation techniques that cross the line into cruel, inhumane, or degrading treatment. In the future, he need only characterize such techniques or policies as “not clearly illegal.” Thus, instead of providing the armed forces and other government agents a clear statutory basis upon which to oppose such orders, the compromise provision will instead provide “top cover” for those individuals inclined to push our forces into uncertain territory, which is exactly what so many hoped the McCain Amendment would prevent. Although the Amendment may be “better than nothing”, one must truly wonder if Congress and the President have not collectively set their seal on a new American kriegsraison.

Geoffrey S. Corn is a Professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters
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