America's Professional Military Ethic and the Global War on Terror

America's Professional Military Ethic and the

Treatment of Captured Enemy Combatants in the

Global War on Terror

RICHARD

D.

ROSEN*

"Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God"l

I.

INTRODUCTION

Following the attacks on the World Trade Center and the Pentagon in

September 2001, the United States embarked on a so-called global "War on

Terror." The conflict has been unusual, encompassing hostilities with predominantly non-state actors and involving highly contentious issues ranging from the asserted right to preemptive war to the unconventional handling of combatants captured during conflict.

It has generated political and legal disputes about the methods and means of warfare not seen since World War II.

This article deals with one aspect of the War on Terror: the treatment of enemy combatants captured during the conflict

2 and the implications of such treatment for the professional ethic of the United States military.3 The Bush

Administration determined early in the conflict that captured enemy combatants are "unlawful" and not entitled to the protections of the Geneva Convention

*

Colonel, u.s.

Anny (retired). Associate Professor and Associate Dean for Administration, Texas

Tech University School of Law and Director, Texas Tech University Center for Military Law & Policy.

B.S., cum laude, Ohio State University, 1970; J.D., cum laude, University of Miami School of Law,

1973; LL.M., University of Virginia School of Law, 1987. I would like to thank Professor Susan Saab

Fortney, Professor William R. Casto, and Dean Walter B. Huffman for their comments regarding this article.

1. General Order 100, Instructions for the Government of the Armies of the United States in the

Field, art. 15 (Apr. 24, 1863) ("Lieber Code"), available at http://www.yale.edullawweb/avalon/ lieber.htrn.

2. Legal and moral judgments about war involve both the reasons for going to war (jus ad bellum) and the manner in which the war is conducted (jus ad bello). Although military leaders provide advice,

see, e.g., 10 U.S.c. §§ 151, 153 (2000), decisions about whether to go to war are not made by the military, but rather by the President and Congress. U.S. CONST. art. I, § 8, cl. 11, art. II, § 2, cl. 1. On the other hand, the issue of "just conduct in war"-that is, how the war is actually conducted-is the primary responsibility of the military leadership at all levels. MARTIN L. COOK, THE MORAL WARRIOR:

ETIiICS & SERVICE IN THE U.S. MILITARY 27 (2004); PAUL CHRISTOPHER, THE ETIiICS OF WAR & PEACE 123

(Prentice Hall 1994) (1988).

3. By professional military ethic, I mean the body of moral principles and values governing the

United States military.

See Major Don Snider & Major Tony Pfaff, Anny Professionalism, the Military

Ethic, and Officership in the 21st Century, at 7 (paper presented to the Joint Services Conference on

Professional Ethics, Jan. 27-28, 2000), available at http://www.usafa.af.miUjscope/JSCOPEOO/Snider/

SniderOO.html [hereinafter Snider & Pfaff); see also John W.

Brinsfield, Army Values and Ethics: A

Search/or Consistency and Relevance, PARAMETERS, Autumn 1998, at 69 ("the word ethics refer to the principles, rules, and standards of proper conduct defined by an organization or profession ... for the governance of its own members"); Deborah N.

Pearlstein, Finding Effective Constraints on Executive

Power: Interrogation, Detention, and Torture, 811No. LJ. 1255, 1274-75 (2006).

113

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Relative to the Treatment of Prisoners of War ("GPW,,).4 It also approved the use of torture, coercion, and other unorthodox interrogation techniques to gain information from detained enemy combatants.s These Administration detainee policies have caused real and perceived U.S. human rights abuses to become a focal point of the war.

Although briefly addressing the technical legal arguments underlying Bush

Administration detainee policies, this article focuses on the adverse impact the policies have had on the professional ethic of the armed forces. Part II provides general background about the Administration's detainee policies. Part III describes the military's professional ethic, including the values and moral principles that comprise it. Part IV briefly explains how the Bush Administration should have applied international legal norms to the war on terror, while Part V discusses the deleterious effect the Administration's actual application of these norms has had on the military's professional ethic, as evidenced by the breakdown of values at Abu Ghraib.

Although I contend that Administration policies have undermined the values upon which America's professional military ethic is based, I do not mean to suggest that this has created some sort of "moral equivalency" between those whom we fight and the United States military. Our enemies are ruthless and barbaric, following absolutely no rules except their own. They intentionally target civilians and brutally mutilate and murder those whom they capture.

6

Morally, they are not worthy of the name "soldiers.',7 All of this, however, is beside the point.

4. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316,

75 U.N.T.S. 135 [hereinafter GPW]. In addition to the GPW, three other Geneva Conventions deal with the treatment of non-combatants and combatants rendered hors de combat: the Convention Relative to the Treatment of Civilian Persons in Time of War, Aug. 12, 1949,6 U.S.T. 3516, 75 U.N.T.S. 287; the

Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the

Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; and the Convention for the Amelioration of the

Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6

U.S.T. 3217, 75 U.S.T.S. 85.

5. Another aspect of the Administration's decision to categorize captured enemy combatants as outside the protections of the Geneva Conventions was its decision to try the combatants for war crimes by military commission.

See infra note 30.

6. Colonel Richard B. Jackson, Stick to the High Ground, ARMY LAW., July 2005, at 3-4, 6-7. For example, writing about the Iraqi insurgents, New York Times columnist David Brooks writes:

The insurgents' first advantage is that not only are they cruel, they are absolutely cruel. The defining feature of their violence is not merely that they murder, but that they torture those they are about to kill. Shiite militias use drills to bore holes into their victims' heads. Sunni insurgents saw off fingers and toes. Jihadists partially behead their victims and then stomp on their torsos to create gushes of blood before finishing the job.

David Brooks, Savagery's Stranglehold, N.Y. TiMEs, June 8, 2006, at A25; see also Jonathan Finer &

Joshua Partlow, Missing U.S. Soldiers Found Dead in Iraq, WASH. POST, June 21, 2006, at Al (reporting the brutal torture and beheading of captured American soldiers).

7. See SIDNEY AxiNN, A MORAL MILITARY 137 (1998). Many of the enemy combatants we face are what then-Major Ralph Peters termed "warriors": "Unlike soldiers, warriors do not play by our rules, do not respect treaties, and do not obey orders they do not like." Ralph Peters, The New Warrior Class,

PARAMETERS, Summer 1994, at 16.


2007] AMERICA'S PROFESSIONAL MILITARY ETHIC 115

The United States abides by the letter of the laws governing armed conflict, because it is the "right thing to do." It takes the legal and moral "high road" in the conduct of its military operations regardless of how the enemy may operate.s "Values, including the law of war, are the bedrock of [the American military] profession[, and s]trict adherence to the spirit and intent of the law of armed conflict, in all military operations (however characterized), is the current policy of the Department of Defense (DOD)."9 The military begins to instill its value system from the time its new recruits put on their uniforms, and it constantly reinforces its values throughout their military service.

1O

In short, the

United States tells its soldiers, sailors, airmen, and Marines that they can abide

8. See, e.g., General M.W. Hagee, Commandant of the Marine COIpS, On Marine Wnue (May 25, 2006),

available at http://www.usmc.miIlmarinelinklmcn2000.nsfimain51FF362B 1C89C3A3538525717900632927?

General Hagee writes:

We have all been educated in the Law of Anned Conflict. We continue to reinforce that training, even when deployed to combat zones. We do not employ force just for the sake of employing force. We use lethal force only when justified, proportional and, most importantly, lawful. We follow the laws and regulations, Geneva Convention and Rules of Engagement.

This is the American way of war. We must regulate force and violence, we only damage property that must be damaged, and we protect the non-combatants we find on the battlefield.

Id.; see also PETER KARSTEN, LAW, SOLDIERS,

AND

COMBAT 166-167 (1978).

I do not subscribe to the theory that the U.S. treats captured enemy combatants according to the laws of war based upon the expectation that the enemy will reciprocate. With the possible exception of the

European Theater in World War II, none of our enemies have followed the laws of war in the past 65 years despite our efforts to do so.

See, e.g., E. BARTLETT KERR, SURRENDER & SURVIVAL: THE EXPERIENCE

OF AMERICAN POWs IN THE PACIFIC 1941-1945 (1985) (describing Japanese treatment of captured

Americans during World War II); STANLEY F. FALK, BATAAN: THE MARCH OF DEATH (1962) (also describing Japanese treatment of captured Americans); HARVEY SPILLER, AMERiCAN POWs IN KOREA:

SIXTEEN PERSONAL ACCOUNTS (1998) (describing North Korean treatment of captured Americans during

Korean War); CRAIG HOWES, VOICES OF VIETNAM POWS (1993) (describing North Vietnamese treatment of captured Americans during Vietnam War); Acree v. Republic of Iraq, 370 F.3d 41, 43-44 (D.C. Cir.

2004) (describing uncontested allegations of mistreatment of American POWs during the First Persian

GuIfWar); John Norton Moore, Abuse of Trust, SLATE, Jan. 21,2005, available at: http://www.slate.com!

id/2112514/ (same); see also JOHN M. BAUSERMAN, THE MALMEDY MASSACRE (1995) (describing German murder of captured American soldiers during the Battle of the Bulge).

Reciprocity, then, is not the basis for U.S. adherence to the laws of war; instead, the protection of noncombatants and those enemy combatants rendered hors de combat is a central component of

America's professional military ethic.

See Michael Walzer, Moral Judgment in Time of War, in WAR

AND MoRALITY 62 (Richard A. Wasserstrom ed., 1970); AX!NN, supra note 7, at 90. Moreover, U.S.

condemnation of those who abuse captured U.S. personnel rings hollow if it does not treat captured enemy combatants in the manner it expects its personnel to be treated.

See Memorandum from Rear

Admiral Michael F. Lohr, U.S. Navy, Subject: Working Group Recommendations Relating to Interrogation of Detainees (Feb. 6, 2003), cited in 151 CONGo REc.

S8772, S8795 (daily ed. July 25, 2005); M.

Cherif Bassiouni, The Institutionalization of Torture under the Bush Administration, 37 CASE W.

J.

INT'L L.

389,409-410 (2006).

9. Jackson, supra note 6, at 3.

REs.

10. Memorandum from Major General Jack Rives, U.S. Air Force, Subject: Final Report and

Recommendations of the Working Group to Assess the Legal, Policy and Operational Issues Relating to

Interrogation of Detainees Held by the U.S. Anned Forces in the War on Terrorism (Feb. 5, 2003), cited

in 151 CONGo REC. S8772, S8796 (daily ed. July 25, 2005) (Statement of Sen. Graham).


116 THE

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PuBLIC POLICY [Vol. 5:113 by the rule of law and still be victorious.

II

By loosely construing the nation's obligations under the laws of war, however, the Administration compromised the military's value system by signaling that maltreatment of captured enemy combatants would be welcome, or at least, overlooked.

Moreover, information concerning U.S. mistreatment of enemy combatants tends to become distorted and exaggerated in both the U.S. and international media.

12 It diverts attention from the actions of the enemy and triggers false perceptions that cause people to draw highly inaccurate moral comparisons between the United States and the terrorists. This, in tum, results in a diminution of international and domestic support for the war in general and the U.S.

armed forces in particular.

13

II.

BACKGROUND

On September 11, 2001, agents of the al-Qaeda network hijacked four commercial airliners, crashing two into the World Trade Center towers in New

York City and one into the Pentagon outside Washington, D.C. A fourth airliner was diverted from its intended target-either the Capitol or the White House-by passengers who subdued the hijackers at the cost of their own lives. 14 The attacks prompted Congress to enact an Authorization for the Use of Military

Force ("AUMF'),15 which authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on

September 11, 2001, or harbored such organizations or persons ....,,16 The

President signed the AUMF on September 18, 2001.

17

Less than three weeks later, the United States began military operations in

Afghanistan.

IS

In the course of these operations, U.S. forces captured a number of persons presumably affiliated with al-Qaeda and the Taliban, many of whom

11.

See generally Jackson, supra note 6, at 3; 151

CONGo REe. 58772, 58793 (July 25, 2005)

(statement of Sen. Graham) ("We can fight this enemy aggressively, no-holds barred, go after them, and not lose who we are.").

12. Memorandum from Major General Jack Rives, U.S. Air Force, Subject: Comments on Draft

Report and Recommendations of the Working Group to Assess the Legal, Policy and Operational Issues

Relating to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism (Feb.

6,

2003), cited in 151 CONGo REe. 58772, 58794 (daily ed. July 25, 2005) (Statement of Sen. Graham).

13. [d.

14. See Douglas W. Kmiec, Observing the Separation of Powers: The President's War Power

Necessarily Means "The Power to Wage War Successfully," 53 DRAKE L. REv. 851, 853 n.7 (2005)

("On September 11,2001, the United States endured the deadliest and most savage attack of any single nation on any single day.").

15. Pub. L. No. 107-40, 115 Stat. 224 (2001).

16. [d. § 2(a).

17. See President Signs Authorization for Use of Military Force Bill, http://www.whitehouse.gov/news!

releases1200 1/09/20010918-1 O.html.

18. See Patrick E. Tyler, A Nation Challenged: The Attack, U.S. and Britain Strike Afghanistan, N.Y.

TIMES, Oct. 8,2001, at AI.


2007] AMERICA'S PROFESSIONAL MILITARY ETHIC

117 were taken to the Guantanamo Naval Base in Cuba ("Guantanamo").19 On

January 22, 2002, the Department of Justice's Office of Legal Counsel ("OLC") issued an opinion to White House Counsel Alberto Gonzales and Department of

Defense ("DoD") General Counsel William Haynes, asserting that the Geneva

Conventions do not protect either members of al-Qaeda or members of the

Taliban militia?O

Using the War Crimes Ace l

(which incorporates the GPW into domestic criminal law) as its analytical vehicle, OLC concluded the GPW is inapplicable to captured al-Qaeda and Taliban fighters. With respect to al-Qaeda, OLC found that, because al-Qaeda is not a state-actor, it is not covered by the Convention?2

Moreover, OLC noted that al-Qaeda is not an armed force as defined by article

4 of the Convention; that is, al-Qaeda members do not follow the laws of war, wear insignia, or carry their arms openly?3 Finally, OLC deemed common article 3 inapposite because the conflict is not a civil war, but instead, constitutes hostilities of an "international character.,,24

OLe's argument regarding the Taliban was more troublesome inasmuch as

Afghanistan is a party to the Geneva Conventions25 and the Taliban represented the nation's de facto government,26 OLC asserted that the President could temporarily suspend U.S. obligations towards Afghanistan under the Conventions if he deemed Afghanistan a failed state.27 Arguing that Afghanistan was a failed state because it had a collapsed government without control over all of the nation's territory and was unrecognized by most other nations, OLC found that the President could temporarily suspend the Conventions.

28

On January 25, 2002, White House Counsel Gonzales forwarded the OLC memorandum to President Bush, supporting the conclusions reached and noting the objection of the Secretary of State?9 The White House chose to follow the advice of OLC and Gonzales, and on February 7, 2002 issued a Fact Sheet

19. See W. Bradley Wendel. Legal Ethics and the Separation of Law and Morals, 91 CORNELL L.

REv. 67, 75 (2005). Since the war began, the United States has also detained persons from outside

Afghanistan. Wayne McCormack, Emergency Powers and Terrorism, 185 MIL.

L.

REv. 69, 71 (2005).

20. Memorandum from Jay S. Bybee, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel of the DoD (Jan. 22, 2002) [hereinafter OLC

Memo], available at http://news.findlaw.comlhdocs/docs/dojlbybeeI2202mem.pdf.

21. 18 U.S.C. § 2441 (2000).

22. OLC Memo, supra note 20, at 9.

23. [d.

at 10.

24. [d.

25. Afghanistan ratified the Geneva Conventions in September 1956. Int'l Comm. of the Red Cross,

States Party to the Geneva Conventions and Their Additional Protocols, Dec. 4, 2005, http://www.cicr.orgl

ihI.nsflWebSign?ReadForm&id=375&ps=P.

26. Faiz Ahmed, Judicial Reform in Afghanistan: A Case Study in the New Criminal Procedure

Code, 29 HASTINGS INT'L & COMPo L.

REv. 93, 100 (2005) (stating that the Taliban established control over 90% of Afghan territory in 1996 and governed until its removal by the United States in 2001).

27. OLC Memo, supra note 20, at 13-15.

28. [d.

at 15-22.

29. Memorandum from Alberto R. Gonzales, White House Counsel, to the President, Subject:

Decision re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda


118 THE


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PuBLIC POLICY [Vol. 5:113 declaring that neither al-Qaeda nor Taliban detainees were entitled to Prisoner of War ("POW") status under the Geneva Convention. The Fact Sheet stated, however, that subject to military necessity, all detainees would be treated humanely and in a manner consistent with the principles of the GPW.J°

After making the legal determination that enemy combatants captured during the War on Terror were without Geneva Convention protections, in August

2002, OLC issued an opinion that greatly constricted the definition of torture.

The opinion justified the use of "certain acts" that-although "cruel, inhuman, or degrading"-still might "not produce pain and suffering of the requisite intensity" to violate U.S. or internationallaw.

31

The memorandum argued that torture is more than the mere infliction of pain or suffering on another;" instead,

"the victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so serious that death, organ failure, or permanent damage resulting in the loss of significant body function will likely result.,m

Thereafter, in October 2002, the commanding general of Joint Task Force

170, which administers the Guantanamo detention facilities, sought approval for using such interrogation methods as "forced stress positions" for up to four hours (e.g., standing); isolation for up to 30 days; hooding; sleep deprivation; removal of clothing; forced grooming; and mild, non-injurious physical conand the Taliban (Jan. 25, 2002), available at http://news.lp.findlaw.comlhdocs/docs/torture/ gnzls I2502mem2gwb.htrnl.

30. White House Fact Sheet, Status of Detainees at Guantanamo (Feb. 7, 2002), available at http://www.whitehouse.gov/news/releases/2oo2l02l2oo20207-13.htrnl. By a January 19,2002, memorandum for the Chairman of the Joint Chiefs of Staff, Secretary of Defense Donald Rumsfeld stated that

"Al Qaeda and Taliban individuals" were not entitled to POW status. Memorandum from Donald

Rumsfeld, Secretary of Defense, to the Chairman of the Joint Chiefs of Staff, Subject: Status of the

Taliban and Al Qaida [sic], (Jan. 19, 2002), available at: http://news.findlaw.comlhdocs/docs/dodl

1I902mem.pdf. In a message dated January 21, 2002, the Chairman notified combatant commanders of the Secretary of Defense's determination. Message from the Chairman of the Joint Chiefs of Staff,

Subject: SECDEF Memo to CJCS Regarding the Status of Taliban and Al Qaida [sic] (Jan. 22, 2002),

available at: http://news.findlaw.com/hdocs/docs/dodlI2202mem.pdf.

On November 13, 2001, President Bush ordered military commissions to try non-U.S. citizens who are members of al-Qaeda as well as others involved in international terrorism against the United States.

President's Military Order of Nov. 13,2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001). The presidential order mirrored in large measure similar orders issued by President Roosevelt during World War II, the last time the nation used this type of tribunal. Carl Tobias, Detentions, Military Commissions. Terrorism. and Domestic

Case Precedent, 76 S. CAL.

L.

REv. 1371, 1379-80 (2003). Both the Secretary of Defense and the DoD

General Counsel issued various orders and instructions establishing the processes under which the military commissions were to operate.

See, e.g., DoD, Military Commission Order No.1, Subject:

Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War on

Terror (Aug. 31, 2005) [hereinafter MCO No. 1],3 C.ER. § 9 (2005). In June 2006, the Supreme Court held the President's military commission order unlawful. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).

31. Memorandum from Jay S. Bybee, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Subject: Standards for Interrogation under 18 U.S.C. §§ 2340-2340A (Aug. I, 2002), http://news.findlaw.comlnytimes/docs/doj/bybee80102mem.pdf.

32. [d.

at 13.


2007]

AMERICA'S PROFESSIONAL MILITARY ETHIC 119 tact.33 Following the advice of the DoD General Counsel, in December 2002, the Secretary of Defense approved most of the requested interrogation tactics.

34

On January 15, 2003, the Secretary of Defense rescinded his approval of the interrogation techniques approved the previous month,35 and ordered the establishment of a DoD working group to consider the legal and policy implications of the interrogation techniques. 36 On April 4, 2003, a DoD Working Group chaired by Air Force General Counsel Mary Walker recommended the continued use of some "exceptional" interrogation techniques under certain circumstances (for example, where there is good basis to believe a detainee possesses crucial intelligence)?? Although service Judge Advocates General and other military lawyers objected to some of the Working Group's conclusions,38 the

Secretary of Defense approved 24 of the 35 interrogation tactics recommended by the Group?9

Not surprisingly, as a result of the Administration's decision to handle detainees outside the comprehensive protective regime of the Geneva Conventions as well as its determination that torture should be narrowly defined, the

United States began facing allegations that it had mistreated prisoners captured on the battlefield, particularly in its manner of interrogation.

40

Military investiga-

33. Memorandum from Major General Michael B. Dunleavy, U.S. Anny, to Commander, U.S.

Southern Command, Subject: Counter-Resistance Strategies (Oct. II, 2002), http://www.npr.org/ documentsI2004/dod_prisoners/20040622doc3.pdf. The memorandum forwarded a request from the

Task Force J-2 (intelligence), with an attached legal opinion from the Task Force's staff judge advocate.

34. See Memorandum from William J. Haynes II, General Counsel to Secretary of Defense Donald

Rumsfeld, Subject: Counter-Resistance Techniques (Nov. 27, 2002), http://www.washingtonpost.comlwpsrv/nationldocuments/dodmemos.pdf (recommending approval of most of the proposed techniques).

Secretary Rumsfeld approved the General Counsel's recommendation by endorsing the memorandum.

Commenting on the proposed limitation on the use of "stress positions" to four hours, the Secretary noted: "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?" Dana Priest,

Spirited Debate Preceded Policies, WASH. POST, June 23, 2004, at A14.

35. Memorandum from Donald Rumsfeld, Secretary of Defense, to Commander, U.S. Southern

Command, Subject: Counter-Resistance Techniques (Jan. 15, 2003), available at http://www.dod.miV

news/Jun2004/d20040622doc8.pdf.

36. Memorandum from Donald Rumsfeld, Secretary of Defense, to General Counsel of the Department of Defense, Subject: Detainee Interrogations (Jan. 15,2003), available at http://www.dod.millnewsl

Jun2004/d20040622doc8.pd(

37. Working Group on Detainee Interrogations in the Global War on Terrorism: Assessment of

Legal, Historical, Policy, and Operational Considerations, at 70, 64 (April 4, 2003) [hereinafter

Working Group], available at http://www.dod.miVnews/Jun2004/d20040622doc8.pdf. Recommended techniques included face or stomach slaps, forced standing, sleep adjustment, removal of clothing, and isolation.Id. at 64-65.

38. Jordan J. Paust, Executive Plans and Authorizations to Violate International Law Concerning

Treatment & Interrogation of Detainees, 43 COLUM. J. T'RANSNAT'L L.

811, 843 (2005); Josh White,

Military Lawyers Fought Policy on Interrogations, WASH. POST, July 15, 2005, at AI.

39.

See Memorandum from Donald Rumsfeld, Secretary of Defense, to Commander, U.S. Southern

Command, Subject: Counter-Resistant Techniques in the War on Terrorism (April 16, 2003), available

at http://www.npr.org/documents/2004/dod_prisoners/20040622doc9.pdf.

40. See, e.g., Paust, supra note 38, at 836-43; Diane M. Amann, Abu Ghraib, 153 U. PA.

L.

REv.

2085 (2005); Asli U. Bali, Justice Under Occupation: Rule of Law and the Ethics of Nation Building in

Iraq, 30 YALE J.INT'L L.

431, 467-68 (2005).


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[Vol. 5: 113 tions have documented the maltreatment of prisoners at Abu Ghraib, Iraq,4l and the United States has faced charges of prisoner abuse at Guantanamo and elsewhere.42

Stung by revelations about the abuse of detainees at Abu Ghraib and allegations of maltreatment at Guantanamo, in December opinion superseding its August 2002

2004, OLC issued an memorandum. Stating that "[t]orture is abhorrent both to American law and values and to international norms," the new opinion significantly lowered the threshold for acts to constitute torture.43

By the Detainee Treatment Act of 2005,44 Congress imposed further limits on the methods of interrogation of enemy combatants. The act prohibits "any treatment or technique of interrogation [of detainees] not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.,,45

The Army Field Manual on Intelligence Interrogation46 includes some of the techniques approved by the Administration;47 however, it strictly forbids "acts of violence or intimidation, including physical or mental torture, threats, insults,

41. See AR 15-6 Investigation of the 800lh Military Police Brigade [hereinafter Taguba Investigation], available at http://www.npr.orgliraq/2004/prison_abuse_report.pdf. The report found "[t]hat between October and December 2003, at the Abu Ghraib Confinement Facility ... , numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees." Id. at 16. The abuses included punching, slapping, and kicking detainees; jumping on their naked feet; videotaping and photographing naked male and female detainees; forcibly arranging detainees in various sexually explicit positions for photographing; forcing detainees to remove their clothing and keeping them naked for several days at a time; forcing naked male detainees to wear women's underwear; forcing male detainees to masturbate while being photographed and videotaped; arranging naked male detainees in a pile and then jumping on them; positioning a naked detainee on a MRE Box, with a sandbag on his head, and attaching wires to his fingers, toes, and penis to simulate electric torture; placing a dog chain or strap around a naked detainee's neck and having a female soldier pose for a picture; using military working dogs (without muzzles) to intimidate and frighten detainees, and in at least one case biting and severely injuring a detainee.

Id. at 15-17.

42.

See. e.g., Paust, supra note 38, at 838-40; Jennifer Moore, Practicing What We Preach: Humane

Treatment for Detainees in the War on Terror, 34 DENY. J. INT'L L.

& POL'y 33, 59 (2006); David S.

Cloud, Guantanamo Reprimand Was Sought, An Aide Says, N.Y. T1MEs, July 15, 2005, at AI6

(describing investigation into interrogation practices at Guantanamo); Eric Schmitt, General in Pris-

oner Abuse Case Refuses to Testify Further, N.Y. T1MEs, Jan. 13, 2006, at A3 (discussing an investigation into inappropriate use of military working dogs at Guantanamo).

43. Memorandum from Daniel Levin, Office of Legal Counsel, to James B. Corney, Deputy Attorney

General (Dec. 30, 2004), http://www.usdoj.gov/olc/dagmemo.pdf. The Levin memorandum was released one week before Alberto Gonzales' Senate Judiciary Committee confirmation hearings for

Attorney General. Jonathan Canfield, The Torture Memos: The Conflict Between a Shift in U.S. Policy

Towards a Condemnation of Human Rights and International Prohibitions Against the Use of Torture,

33 HOFSTRA L.

REv. 1049, 1054 (2005). The release also coincided "with continuing revelations of possible detainee abuse contained in a series of memoranda, emails, and other documents from FBI agents uncovered in an [ACLU] lawsuit." Id.

44. Pub.

L.

No. 109-148, 119 Stat. 2680.

45.

Id. § 1002(a).

46. Department of Army, Field Manual No. 34-52, Intelligence Interrogation (1992) [hereinafter PM

34-52], available at https:/Ijagcnet.army.milllaawsxxilcds.nsf.

47. Compare id. at 3-13 to 3-20, with Working Group, supra note 37, at 62-65.


2007]

AMERICA'S PROFESSIONAL MILITARY ETHIC

121 or exposure to inhumane treatment as a means of or aid to interrogation.,,48

III.


The United States military is a values-based institution, and its values are grounded on moral precepts, including humanitarian principles such as the obligation to protect from harm noncombatants and combatants rendered hors

de combat. Bush Administration detainee policies have undermined this professional ethic by intimating that our enemies in the War on Terror are without basic human rights protections. Additionally, by giving advice about applicable international legal norms divorced from the moral precepts upon which the norms are based, Administration attorneys were at least partially responsible for the resulting compromise of military values.

The concept of a professional military ethic grounded in immutable values and moral principles may appear peculiar, quaint, or even oxymoronic to those who have never served in the armed forces. After all, the mission of the armed forces necessarily includes "killing people and breaking things," both objectives seemingly incompatible with notions of ethics and morality.49 Nevertheless, precisely because the military holds a monopoly on the nation's instruments of war, military professionals must recognize a commitment to moral and ethical constraints.

50

For military personnel, precepts such as "duty, honor, and country," and values such as "courage, selfless service, and integrity" are more than mere aphorisms-they constitute a way of life.

51

The military's "idealistic code is at the very heart of the acceptance and trust of the military in a free society" for

'''strict adherence to professional, ethical, and moral codes has been essential if the power and influence of the military organization is to be an effective servant, rather than the arbitrary master of the state.

",52

And while such moral

48. FM 34-52, supra note 46, at 1-8. At the time this article went to press, Congress was debating legislative changes to the Administration's interrogation regime, particularly with regard to the application of common article 3 of the Geneva Conventions, supra note 4, to detainee interrogations. Among other things, the proposed legislation amends the War Crimes Act, 18 U.S.C. § 2441, by defining those acts that constitute grave breaches of the common article 3, including torture, cruel or inhuman treatment, and intentionally causing serious bodily injury. Military Commissions Act of 2006, S. 3930,

109th Congo § 8(b); Charles Babington & Jonathan Weisman, Senate Approves Detainee Bill Backed by

Bush, WASH. POST, Sept. 29, 2006, at AI; Carl Hulse & Kate Zernike, House Passes Detainee Bill as It

Clears Senate Hurdle, N.Y.

TIMEs, Sept. 28, 2006, at A20.

49. Whether values may be defended by forceful means is a question beyond the scope of this article.

See. e.g., James Turner Johnson, Does Defense of Values by Force Remain a Moral Possibility?,

in THE PARAMETERS OF MILrrARY ETHICS 3 (Lloyd J. Mathews & Dale E. Brown eds., 1989).

50. ANTHONY E. HARTLE, MORAL ISSUES IN MILITARY DECISION MAKING 37, 43 (2004); JAMES H. TONER,

MORALS UNDER THE GUN: THE CARDINAL VIRTUES, MILITARY ETHICS, AND AMERICAN SOCIETY 22 (2000).

51. See Department of the Army, Field Manual 22-100, Army Leadership'lI 2-4 (August 31, 1999)

[hereinafter FM 22-100].

52. Lewis S. Sorley ill, Duty. Honor, Country: Practice and Precept, in WAR, MORALITY,

AND THE

MILITARY PROFESSION 144 (Malham M. Wakin ed., 1986), (quoting Cadet Honor Code and System

(United States Military Academy 1973), at 1).


122 THE GEORGETOWN JOURNAL OF LAW

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PuBLIC POLICY [Vol. 5:113 qualities may be desirable in other professions, they are-given the consequences of their absence in the combat environment-"functional imperatives in the military profession."53

A man can be selfish, cowardly, disloyal, false, fleeting, petjured and morally corrupt in a wide variety of other ways and still be outstandingly good in pursuits in which other imperatives bear than those upon the fighting man. He can be a superb creative artist, for example, or a scientist in the very top flight, and still be a very bad man. What the bad man cannot be is a good sailor, or soldier, or airman. Military institutions thus form a repository of moral resource that should always be a source of strength within the state.

54

The professional military ethic and the responsibilities that flow from it are objective and absolute; they are not relative to the personal predilections of the individual soldier.55 Neither moral relativism nor moral nihilism has a place in the armed forces. 56 For military personnel, there are clearly defined norms of right and wrong.57 Regardless of the system of values they acquired as civilians,58 soldiers must fully internalize and instinctively obey the military's moral and ethical code, particularly in battle where they are subject to severe stress

53. Malham M. Wakin, The Ethics of Leadership II, in WAR, MORAUTY, AND TIffi

MILITARY PROFES-

SION, supra note 52, at 208 ("[Military] virtues are obvious because of their functional necessity; success in battle is impossible without them; preparation for battle requires their inculcation").

54.

See Sir John Winthrop Hackett, The Military in the Service of the State, in WAR, MoRAUTY,

AND

TIffi MILITARY PROFESSION, supra note 52, at 119; see also United States Military Academy, Cadet Honor

Code and SOP'll 102 (April 1, 1999), available at http://www.west-point.orglpublications/honorsys/ honorsys.html. The Code provides:

In professions such as the military where life is endangered by virtue of the profession's purpose, trust becomes sacred and integrity becomes a requisite quality for each professional.

An officer who is not trustworthy cannot be tolerated-(s)he lacks a requisite quality. In some professions the cost of dishonesty is measured in dollars. In the Army the cost of dishonesty is measured in human lives.

Id.

55. James L.

Narel, Values and the Professional Soldier, in THE PARAMETERS OF MILITARY

supra note 49, at 82; Snider & Pfaff, supra note 3, at 8.

Enncs,

Cf

In re Grimley, 137 U.S. 147, 153 (1890)

("An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier.").

56. "Moral relativism holds that there are various sets of moral coordinates or moral outlooks with different standards of right and wrong." GILBERT HARMAN & JUDITIf JARVIS THOMSON, MORAL RELATIVISM

AND MORAL OBJECTIVITY 17 (1996). A moral nihilist rejects morality altogether because there is no single true morality.

Id. at 5.

57. Major Kenneth Tarcza, The Anny Values Challenge, MIL. REv., Jan.-Feb. 2001, at 78.

58. Admittedly, many civilians have a dramatically different Weltanschauung than members of the relatively small and cloistered military community.

See MARK J. OSIEL, OBEYING ORDERS: ATROCITY,

MILITARY DISCIPLINE, &

TIffi LAW

OF WAR 28 (1999). Indeed, some civilian commentators have disparaged the values under which the military purports to live as either antiquated or unrealistic.

[T]he cutting edge forces of cultural change-radical individualism, multiculturalism, and the politics of gender and sexual orientation are fundamentally antipathetic to military institutions and the military profession itself as originally conceived.... Traditional military professionalism-rooted in the ideal of the warrior as the embodiment of soldierly virtue-has ... become


2007] AMERICA'S PROFESSIONAL MILITARY ETHIC 123 and threats to their very surviva1.

59

The obligation of soldiers to follow these precepts extends to refusals to obey unlawful orders from superior officers, even at the risk of criminal punishment.

60

Thus, while notions of "honor," "self sacrifice," and "personal courage" may be unknown-or even an anathema-to major segments of civilian society,6l an anachronism. II celebrales the group rather than the individual. It cherishes virtues such as self-sacrifice, self-denial, and physical courage that are increasingly alien to the larger culture.

A.J. Bacevich, Tradition Abandoned: America's Military in a New Era, NAT'L INTEREST, Summer 1997, at 16.

Illustrative of the divergence of military and civilian values is the military's treatment of and the civilian community's reaction to the Kelly Ainn case in 1997. Lieutenant Ainn, the Air Force's first female B-52 pilot, was assigned to Minot Air Force Base, where she engaged in an affair with the civilian husband of an enlisted woman. Alerted to the affair by the enlisted wife, Flinn's commander ordered her to terminate the relationship. Flinn disobeyed the order, initially falsely claiming the relationship was not sexual in nature. The Air Force criminally charged Ainn with disobedience, making a false statement, and adultery. Elaine Sciolono, Air Force Chief Has Harsh Words for Pilot

Facing Adultery, N.Y. TIMES, May 22, 1997, at AI.

Many civilians were critical of the Air Force's proposed disposition of the case; nearly all focused solely on the sexual aspects of the controversy. For example, Senator Trent Lott accused the Air Force of being "out of touch with reality on issues of sexual morality." Elaine Sciolino, Air Force to Postpone

Its Court-Martial of Female Pilot, N.Y. TIMES, May 21, 1997, at A16. Characterizing the military's concern with adultery to be "hypocritical" and "priggish," columnist Maureen Dowd described Ainn's missteps as only a case of poor judgment in deciding with whom she would fall in love. Maureen

Dowd, Liberties, Sex, Lies, and Bombs, N.Y. TIMES, May 21,1997, atA23. Others simply compared the military's adultery policy to civilian law. Jan Hoffman, Casting Pebbles in the War Against Adultery,

N.Y. TlMES, May 18, 1997, atA46.

Wholly lost (or at least misunderstood) in the debate was Ainn's violation of several fundamental mores of military service having no parallel in civilian society (as well as several provisions of the

Uniform Code of Military Justice) that went well beyond alleged sexual misconduct. Her conduct implicated such values as duty, honor, integrity, and selfless service: Flinn lied about her affair, disobeyed an order to end it, and continued pursuing the affair for her own personal gratification, betraying the trust of a subordinate (Ainn had "gone after" the husband of an enlisted woman).

See

Elaine Sciolono, Air Force Chief Has Harsh Words for Pilot Facing Adultery, N.Y. TlMES, May 22,

1997, at Al (quoting the enlisted woman in a letter to the Secretary of the Air Force: "How can I compete with [Ainn]? She had power, both as an officer and [Air Force] Academy graduate. She also had special status as the first female B-52 pilot.").

59. Department of the Army, Field Manual I, The Army, 'lI I-54, at 1-14 (June 2005) [hereinafter FM

I]; see also Manuel Davenport, The Implementation of Core Values (paper presented to the Joint

Services Conference on Professional Ethics, January 28-29, 1999), available at http://www.usafa.af.miV

jscopelJSCOPE99/Davenport99.htrnl; HARTLE, supra note 50, at 73; TONER, supra note 50, at 151.

60. Soldiers are subject to court-martial for disobeying the lawful orders of their superior commissioned and noncommissioned officers. Uniform Code of Military Justice arts. 90-91 [hereinafter

UCMJ] , (codified at 10 U.S.C. § 890-891 (2000». Orders are presumed to be lawful; however, the presumption does not apply to "patently illegal orders." Manual for Courts-Martial (MCM) , United

States 2005, 'lI 14.c.(2)(a)(i), at IV-19. Soldiers who commit war crimes may not defend their actions based upon the assertion that they were following orders, unless they "did not know or could not reasonably have been expected to know the act ordered was unlawful." Department of the Army, Field

Manual 27-10, The Law ofLand Waifare, 'lI

509.a at 182 [hereinafter FM 27-10].

61. See, e.g., JAMES BOWMAN, HONOR: A HISTORY 291, 313 (2006); see also discussion supra note 58.

The so-called "cultural gap" between the civilian and military communities has been the subject of considerable academic discussion.

See, e.g., Thomas E. Ricks, The Widening Gap Between the Military

and Society, ATLANTIC MONTHLY, July 1997, at 66; Ole R. Holsti, A Widening Gap Between the u.S.

Military and Civilian Society? Some Evidence, 1976-1996, lNT'L SECURITY, Winter 1998-1999, at 5;


124 THE


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[Vol. 5:113 they are cardinal precepts upon which military service is based. And although

Americans are free to choose whether or not to seek membership in the armed forces, they are "not free to decide what it means to be a professional soldier ....,,62

The moral and ethical principles that constrain a military-and in particular the United States military-are grounded in several different sources.

In part, these principles have their genesis in the various international codes governing the conduct of war. While these codes are neither new nor uniquely American or even Western in origin,63 the American military has generally prided itself on strict adherence-in principle if not in practice-to these tenets.

64

The laws of war seek to "diminish the evils of war" by protecting both combatants and noncombatants from unnecessary suffering, safeguarding the fundamental human rights of persons who fall into our hands, and facilitating the restoration of peace.65 Thus, they comport with American notions of "fair play,,,66 the belief that every "individual has worth [and is] endowed with unalienable rights,,,67 and the view that our enemies are only temporary, "because the object of war is to win and make peace with them.,,68 Finally, as a purely practical matter, the act of killing or harming civilians or those combatants rendered hors de combat rarely has any military operational value; it simply diverts soldiers from their ultimate mission of defeating active enemy forces. 69

Of course, soldiers do not intuitively internalize the constraints imposed by

Peter D. Feaver & Richard H. Kohn, The Gap: Soldiers, Civilians and Their Mutual Misunderstanding,

NAT'L iNTEREsT, Fall 2000, at 29; Don M. Snider, An Uninformed Debate on Military Culture, ORBIS,

Winter 1999, at 11; Eliot A. Cohen, Why the Gap Matters, NAT'L lNTEREST, Fall 2000, at 38; Captain

Peter Kilner, The Alleged "Civil-Military Values Gap": Ideals vs. Standards (paper presented to the

Joint Services Conference on Professional Ethics, January 25-26, 2001), available at http:// www.usafa.af.mil/jscopeIJSCOPEOllKilnerOl.htrnl. As fewer Americans serve in the armed forces, the differences between the military and civilian world are likely to become more pronounced.

See Snider

& Pfaff, supra note 3.

62. OSIEL, supra note 58, at 17; see also FM 22-100, supra note 51.

63. Prescriptions concerning the just conduct of war "[are] found in some form across all cultures for which we have detailed historical records." CHRISTOPHER, supra note 2, at 8.

64. Department of Defense Directive 2311.0lE, DoD Law of War Program, '114.1 (May 9, 2006)

[hereinafter 000 Dir. 2311.01E] ("Members of 000 Components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations."); see

also Chairman of the Joint Chiefs of Staff, Instruction 581O.0IB, Implementation of the DoD Law of

War Program, 'I!

4.a (March 28, 2002); Anthony E. Hartle, A Military Ethic in the Age of Terror, in THE

PARAMETERS OF MILITARY ETHICS, supra note 49, at 138.

65. FM 27-10, supra note 60, '112.

66.

AxiNN, supra note 7, at 90.

67. FM I, supra note 59, 'lI1-59.

68.

AxiNN, supra note 7, at 38.

69. OSIEL, supra note 58, at 155; DAVID CHUfER, WAR CRIMES: CONFRONTING ATROCITY

IN THE

MODERN

WORLD 5-6 (2003). Under U.S. policy, however, even if noncombatants retard a unit's movement, diminish its power, or threaten its safety, they may not be killed. FM 27-10, supra note 60, 'JI85, at 35;

see also Snider & Pfaff, supra note 3; Walzer, supra note 8, at 62 ("Servicemen and women are not only morally required to take those risks necessary to accomplish the mission, they are morally required to take some additional risks to preserve the rights of noncombatants.").


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AMERICA'S PROFESSIONAL MILITARY

Ennc 125 the laws of war. Therefore, the Geneva Conventions require that signatory nations train their military personnel in their responsibilities under the Conventions.

70

"Because members of the armed forces are held responsible for committing war crimes, they must be provided with the clearest possible understanding of what these crimes might be.'o7l The responsibility for ensuring compliance with international law resides with those who command troops-both civilian and military,72 for "if soldiers are to abide by the rules, they must be convinced that their commanders take such rules seriously and that to ignore prescribed behavior will result in disciplinary action.'073

The American professional military ethic is also predicated on the oaths military personnel take upon changing their status from civilian to soldier, sailor, airman, or Marine. The oath of the commissioned officer pledges to

"support and defend the Constitution of the United States against all enemies, foreign and domestic ... and to well and faithfully discharge the duties of the office.',74 Enlisted personnel take a similar oath.75 Thus, service members pledge allegiance-not to any individual or even a geographic area-but to the

Constitution of the United States, vowing if necessary to support and defend it at the possible cost of their lives. By pledging themselves to the defense of the

Constitution, military personnel give "fealty to the principles, to the values, proclaimed by that document.,,76 These principles and values include advancing human rights, inasmuch as "any fight for the US is a fight for basic rightsincluding the right to life-for not only [its] own citizens but those of the enemy state as well.'077

In addition, soldiers assume moral obligations by virtue of their contract with

70. See, e.g., GPW, supra note 4, art. 127 (''The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to all their armed forces and to the entire population."); see also DoD Dir. 2311.01E, supra note 64, 'II 5.8 (directing the secretaries of military departments to provide, inter alia, instruction and training in the principles and rules of the law of war).

71.

AxINN, supra note 7, at 3.

72. FM 1, supra note 59,

.

'II

1-55; see also KARSTEN, supra note 8, at 70 (''The laws of war are only as strong as those who insist that they be observed").

73. Louise Doswald-Beck, Implementation of International Humanitarian Law in Future Wars,

NAVAL WAR C. REv., Winter 1999,24; Bassiouni, supra note 8, at 409-410.

74. 5 U.S.c. § 3331 (2000).

75. 10 U.S.C. § 502 (2000).

76. James L.

Nare!, Values and the Professional Soldier, in THE PARAMETERS

OF

MILITARY ETHICS,

supra note 49, at 82.

77. Major Michael A. Carlino, On the Moral Importance of Noncombatant Immunity, (paper presented to the Joint Services Conference on Professional Ethics, January 29-30, 2004), http:// www.usafa.af.miUjscope/JSCOPE04/Carlino04.htrnl; see also Lieutenant Colonel Joseph A. Buck,

Reflections on Leadership, MIL. REv., Nov.-Dec. 1996,41, at 43; William J. Prior, "We Aren't Here to

Do the Right Thing": Saving Private Ryan and the Morality of War, PARAMETERS, Autumn 2000,138.


126 THE


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[Vol. 5:113 the state. Their contract is unique,78 because soldiers commit their very existence to the defense of the nation. Thus, by its very nature, the soldier's commitment necessarily includes a moral dimension-a moral obligation to defend the society, "even to the point of death."79 Moreover, the morality of the cause for which they fight motivates soldiers; hence, the

"moral

dimension of the profession of arms [also] lies in the fact that war is ultimately fought for ideas.,,80 Soldiers "fight and die for the defense of what they consider essential values worthy of such import ....,,81

Finally, the professional military ethic is influenced (at least through negative reinforcement) by the Uniform Code of Military Justice (UCMJ), which defines the responsibilities of U.S. service personnel through a wide-ranging criminal code that has no counterpart in the civilian world. For example, while in civilian life there is no legal sanction-either civil or criminal-for failing to behave as an "officer and a gentleman," the UCMJ imposes criminal punishment on commissioned officers who fail to meet this standard.82 Similarly, the UCMJ punishes a number of crimes wholly unknown in civilian society, such as disrespect toward superior commissioned and noncommissioned officers;83 contempt toward certain public officials, including the President, Vice President, and Congress;84 cruelty or maltreatment of subordinates;85 mutiny and sedition;86 drunkenness on duty;87 and malingering. 88 Recognizing the fundamental differences between military and civilian society, the Supreme Court has sustained the broad reach of the military's criminal code.89

America's professional military ethic is expressed in terms of the fundamental values and responsibilities, which are ideally integral components of the character of every soldier, sailor, airman, and Marine. For example, the Code of

Conduct, a product of the experience of captured U.S. military personnel during the Korean War, describes the duties of members of the American armed forces if captured, although parts of the Code have a much broader application.9o

Under the Code, military personnel acknowledge their service in the forces that

78. Contracts for military service (unlike other employment contracts) change the status of the man or woman entering the armed forces, much like the contractual relationship of marriage changes the status of the parties to the marriage.

See In re Grimley, 137 U.S. 147, 151-52 (1890).

79. Snider & Pfaff, supra note 3, at 9.

80. PM 1, supra note 59, 'JI1-52.

81. Carlino, supra note 77; COOK, supra note 2, at 74-75.

82. UCMJ art. 133 (codified at 10 U.S.C. § 933 (2000»; see also TONER, supra note 50, at 160.

83. Id. arts. 89, 91 (codified at 10 U.S.c. §§ 889, 891 (2000».

84. Id. art. 88 (codified at 10 U.S.c. § 888 (2000».

85.

Id. art. 93 (codified at 10 U.S.c. § 893 (2000».

86. Id. art. 94 (codified at 10 U.S.c. § 894 (2000».

87.

Id. art. 112 (codified at 10 U.S.c. § 912 (2000».

88. Id. art. 115 (codified at 10 U.S.C. § 915 (2000».

89. Parker v.

Levy, 417 U.S. 733, 743, 749 (1974).

90. Code of Conduct for Members of the Armed Forces of the United States, Exec. Order No.

10631,20 Fed. Reg. 6057 (Aug. 17, 1955), amended by Exec. Order No. 12017,42 Fed. Reg. 57,941

(Nov. 3, 1977).


2007]


127 guard their country and its way of life, and vow to give their lives in its defense.

91

Each soldier, sailor, airman, and Marine also promises to "never forget that I am an American, responsible for my actions, and dedicated to the principles which made my country free.

,,92

Moreover, each military service has expressly delineated its own fundamental values. Indeed, the United States Army deems itself a "values-based organization," deriving its values in part from the moral questions raised by the Vietnam

War,93 especially the murder of innocent Vietnamese civilians by elements of the U.S. Army at My Lai in 1968.94 The Army's values operate as the bedrock principles on which a soldier's character is based:

The Army values are the basic building blocks of a Soldier's character. They help Soldiers judge what is right or wrong in any situation. The Army Values form the very identity of the Army, the solid rock on which everything else stands, especially in combat. They are the glue that binds together the members of a noble profession.

95

Under Army doctrine, these values are "nonnegotiable," applying to "everyone and every situation throughout the Army.,,96

Army values include the precepts of "loyalty, duty, respect, selfless service, honor, integrity, and personal courage.'097 Two are particularly apropos to ensuring strict adherence to the laws of war: honor and integrity. "Honor" serves as the "moral compass" for "character and personal conduct ... demonstrating an understanding of what's right ... .',98 "Integrity" requires separating what is right from what is wrong and doing the "right thing not because it's convenient or because [there is] no choice," but because a soldier's character

"permits no less.,,99

The Air Force and Navy (including the Marine Corps) espouse similar values,

91.

Id. art. I.

92. Id. art. VI (emphasis added).

93. Brinsfield, supra note 3; see also Pearlstein, supra note 3, at 1275; Tarcza, supra note 57, at 77

("The historical basis for Army Values stems largely from moral questions raised by the Vietnam War and subsequent incidents that indicated the need for clearly stated values actively incorporated into training.").

94.

In March 1968, a platoon of the United States 23rd ("Arnerical") Division systematically rounded up and executed in a ditch a large number of unresisting men, women, and children from the

Vietnamese village of My Lai.

See KARSTEN, supra note 8, at 33; TELFORD TAYLOR, NUREMBERG AND

VIETNAM: AN AMERICAN TRAGEDY 126 (1970).

95. PM I, supra note 59, 'll 1-61. The "Soldier's Creed" exemplifies the importance the Army places on its system of values, beginning with an affirmation of the soldier's role and responsibility: "I am an

American Soldier. I am a Warrior and a member of a team. I serve the people of the United States and

live the Army Values." Id. 'll 1-62; see also Colonel Maureen K.

Leboeuf, Developing a Leadership

Philosophy, MIL. REv., May-June 1999, at 28,30.

96. PM 22-100, supra note 51, 'll2-4.

97.

Id. fig. I-I.

98. Id. 'll'll2-26, 2-27.

99.

Id. 'll2-31.


128 THE GEORGETOWN JOURNAL OF LAW & PuBLIC POLICY [Vol. 5:113 albeit somewhat differently. The Air Force's "core values" are "integrity first, service before self, and excellence in all we dO.,,100 Included in these terms is the concept of "moral courage"; that is, doing "what is right even if the personal cost is high."wI Under the Air Force's doctrine, these core values are "universal and unchanging" elements of the profession of arms and "serve as beacons" that ensure a "climate of ethical commitment.,,102

The professional military ethic of the Navy and Marine Corps is grounded in three bedrock principles or core values: honor, courage, and commitment. 103

Encompassed by these principles is the requirement that sailors and Marines

"[f]ulfill or exceed ... legal and ethical responsibilities in ... public and personal lives twenty-four hours a day. Illegal or improper behavior or even the appearance ofsuch behavior will not be tolerated."I04

The reaction of senior U.S. commanders to the alleged massacre of 24 Iraqi civilians by Marines in Haditha, Iraq, on November 29, 2005,105 demonstrates the importance given (or at least professed) by the military to its professional ethic. Following disclosure of the incident, the senior military commander in

Iraq, General George W. Casey, ordered all U.S. and allied troops "to undergo new 'core values' training in how to operate professionally and humanely.,,106

Similarly, the Commandant of the Marine Corps, General Michael W. Hagee, in a communique to all Marines, emphasized the core values of the Marine Corps:

As Marines, you are taught from your earliest days in the Corps about our core values of honor, courage and commitment. These values are part of and belong to all Marines, regardless of MOS [military occupational specialty], grade, or gender. They guide us in all that we do; whether in combat, in garrison, or on leave or liberty....

. . . To a Marine, honor is more than just honesty; it means having uncompromising personal integrity and being accountable for all actions. To most

Marines, the most difficult part of courage is not the raw physical courage that we have seen so often on today's battlefield.

It is rather the moral courage to

100. United States Air Force Core Values 2 (Jan.

1, 1997) ("Little Blue Book"), available at http://www.e-publishing.af.millpubsIUS%20Core%20Values.pdf.

101.

Id. at 3.

102. Id. at 10; see also Letter from Michael W.

Wynne, Secretary of tlIe Air Force, to Airmen (Feb.

16, 2006), available at http://www.af.milllibrary/viewpoints/secaf.asp?id=217.

103. United States Navy Core Values, available at www.nsgreatlakes.navy.milIcorevalues.html (last visited October 23, 2006).

104.

Id. (emphasis added).

105. See Thomas E. Ricks, Probe into Iraqi Deaths Finds False Reports, WASH. POST, June 1,2006, at AI.

106. Thomas E. Ricks, In Haditha Killings. Details Came Slowly, WASH. POST, June 4, 2006, at AI.


2007]

AMERICA'S PROFESSIONAL MILITARY ETHIC 129 do the "right thing" in the face of danger or pressure from other Marines....

107

Military leaders-both uniformed and civilian-are responsible for inculcating these core values into their subordinates by insisting upon unfailing obedience through strict discipline at both the individual and organizational level. 108

Importantly, implanting these values into a soldier's "personal identity" as virtues perceived by the soldier to be essential to good soldiering offers the

"best prospect for minimizing war crimes.,,109 In other words, upholding military values is "more effective in motivating compliance with ethical norms than the threat of formal legal sanction.,,110

Faced with a hard case, officers are more likely to do the right thing if they ask themselves: "What is required of honorable soldiers, here and now?" rather than "What does international law require?" or "What would the theory of justice require of anyone facing such a problem from behind a veil of ignorance?" The appeal is as much to their professional pride as to universalistic ideals. 111

Unflinching adherence to these values becomes increasingly important as battlefields become larger and soldiers more dispersed, conditions often dictating operations in small groups or even alone.

ll2

Current U.S. military doctrine emphasizes the concept of "mission command," by which soldiers receive an objective and are left to their own initiative to accomplish it, rather than a system under which commanders exercise detailed control over the actions of their subordinates.

l13

Mission command "concentrates on the objective of an operation, not on how to achieve it.,,1l4 Referred to in Army doctrine by the

German term Auftragstaktik, mission command (or, literally, "mission tactics") necessarily subsumes the assumption that-left to their own devices-soldiers will ultimately do the "right thing."1l5 To prepare subordinates to operate in such an environment, commanders must ensure that they comprehend and

107. General M.W. Hagee, On Marine Virtue (May 25, 2006), available at http://www.usmc.miV marinelinklmcn2000.nsf/main51FF362B IC89C3A35385257 I7900632927?opendocument.

108. PM I, supra note 59, 'Ill-58; PM 22-100, supra note 51, appendix E.

109. OSIEL, supra note 58, at 23, 260.

1l0.

[d. at 32; see also CHRISTOPHER, supra note 2, at 123.

lli. OSIEL, supra note 58, at 23-24 (footnotes omitted).

112. Department of the Army, Field Manual 3-0, Operations, 'Ill-54 (June 14,2001); see also OSIEL,

supra note 58, at 263.

113. Department of the Army, Field Manual 6-0, Mission Comrrumd: Command & Control ofArmy

Forces, 'Il'Il1-67, 1-70 (Aug. ll, 2003) [hereinafter PM 6-0].

114.

[d. '111-72.

115.

Cf David M. Keithly & Stephen P.

Ferris, Auftragstaktik,

Combined Operations,

PARAMETERS,

Autumn 1999, at 118.

or Directive Control, in Joint and



&

PuBLIC POLICY [Vol. 5:113 follow the military's values system.

1I6

The soldier's obedience to the professional military ethic and the precepts upon which it is based is dependent upon strong, ethical leaders who dictate clearly what is expected of their subordinates. 117 The absence of such leadership or an unclear commitment of leaders to the laws of war is an open invitation for disregard of the military's fundamental values and a recipe for violations of the laws that govern soldiers in combat.

118

Without a strong grounding in the professed values of the armed forces, combat tends to have a "corrosive effect" on the participants leading to a breakdown of the distinction between combatants and those protected by the laws of war. 119 This precept was brought vividly to the Nation's attention in

1968 by the massacre of civilians at My Lai during the Vietnam conflict.

l2O

A subsequent investigation found that a major cause of the tragedy was the absence of "policies and directives at every level of commarid express[ing] a clear intent regarding the proper treatment and safeguarding of noncombatants, the humane handling of prisoners of war, and minimizing the destruction of private property."121

In devising its policy regarding the treatment of captured enemy combatants, the Administration has relied upon technical (and sometimes dubious) legal theories, failing to consider the moral principles that form the basis for the

116. See FM 6-0, supra note 113, 'IrIl4-82-4-83; see also Ellen Knickmeyer, For Soldiers, a Course

in the Dilemmas of War, WASH. POST, June 3, 2006, at AlO (quoting Brigadier General Donald

Campbell, Chief of Staff, Multinational Forces, Iraq). General Campbell commented on the alleged murder of Iraqi civilians by U.S. forces in Haditha in November 2005:

It takes leadership to make these types of incidents go away. You can't hit every decision

[soldiers will] face on the battlefield, but you try to instill in them values, standards that are common to the military and our profession, which is about leadership, duty, honor, and integrity. And if you do that, 99.9 percent of our soldiers will go to 100 percent, and they'll do the right thing.

Id.

117.

See KARSTEN, supra note 8, at 37; see also COOK, supra note 2, at 37.

118. KARsTEN, supra note 8, at 70.

119. TAYLOR, supra note 94, at 40-41; see also Geoffrey Corn, Lessonsfrom the Law of War: A New

Perspective on the "Legal Warriors" Code of Professionalism, 47 S.

TEx.

L.

REv.

781, 783 (2006).

120.

See discussion supra note 94.

121. Lieutenant General William R. Peers, Report of the Department of the Army Review of the

Preliminary Investigations into the My Lai Incident: Volume I-The Report of the Investigation,

Findings & Recommendations

'II

I.E.1. (Dep't of the Army, March 14, 1970), in JOSEPH GOLDSTEIN,

BURKE MARSHALL, & JACK SCHWARTZ, THE My LA! MASSACRE AND ITs COVER-UP: BEYOND THE REACH OF

THE LAW 319 (1976); see also OSIEL, supra note 58, at 299.

In releasing the report of the investigation of the massacre, the Secretary of the Army stated:

The release of this report concludes a dark chapter in the Army's history. It is an incident from which the Army has learned a great deal. The lessons have been acted upon. Army training has been revised to emphasize the personal responsibility of each soldier and officer to obey the laws of land warfare and the provisions of the Geneva and Hague Conventions.

Statement of Secretary of the Army Howard H. Callaway to Accompany the Release of the Peers

Report on the My Lai Massacre (Nov. 13, 1974), reprinted in GOLDSTEIN, MARSHALL, & SCHWARTZ,

supra, at 23.


2007]


131

American military's adherence to the laws of war.

122

Playing it cute with the law has produced unintended costs, such as abuse of enemy prisoners at Abu

Ghraib as well as the perception by much of the world that any allegation of

American mistreatment of enemy combatants and civilians is probably true. 123

As in Vietnam, the undermining of the professional military ethic has produced tragic consequences that have seemingly set back the nation's prosecution of the

War on Terror.

IV.

THE LAW OF WAR

A.

Captured Combatants

Had the Administration deemed the GPW applicable to combatants captured in Iraq and Afghanistan, the regimen under which captured combatants would have been detained and treated would differ considerably from the conditions imposed at Guantanamo and elsewhere. The camps would resemble those depicted in Stalag 17 or The Great Escape, rather than the prison-like conditions that exist today.

As a general rule, the GPW applies to conflicts between parties to the

Convention, or where a party to the Convention partially or totally occupies the territory of another party.124 To qualify as a POW, combatants generally must fall into one of the following categories: 125

(a) Members of the armed forces of a party to the conflict.

(b) Members of the militia (including organized resistance movements) belonging to a party to the conflict, if they (i) are commanded by a person responsible for his subordinates; (ii) have a fixed distinctive sign

122. See Wendel, supra note 19, at 126-27; see also Jesselyn Radack, Tortured Legal Ethics: The

Role of the Government Advisor in the War on Terrorism, 77 U.

COLO.

L.

REv. 1,31-32 (2006); COOK, supra note 2, at 37; HARTI..E, supra note 50, at 101-102. Hartle writes:

[T]he American military ethic necessarily incorporates [moral principles] when it incorporates the provisions of the laws of war into the ethical guidance for military professionals ....

. . . Requiring adherence to the laws of war as part of the duties of Americans in unifono brings to bear the moral principles that underlie those laws, which members of the American armed forces have a duty to apply whenever appropriate.

HARTI..E, supra note 50, at 101-102; see generally Com, supra note 119, at 787 (noting that "the inherent understanding of the purpose of the rules, and not merely the black letter law, [is] decisive to ethical and professional decision making") (emphasis added).

123.

Jackson, supra note 6, at 8-9; see also Daniel Henninger, U.S. Soldiers Aren't Guilty Before a

Verdict, WALL ST. J., July 7, 2006, available at http://www.opinionjoumal.comlcolumnists/dhenninger/

?id= 110008622.

124.

GPW, supra note 4, art. 2. Even if one of the states in a conflict is not a party to the Convention, it may agree to be bound by it, thereby binding other states to the conflict who are parties to the

Convention.

[d.

125.

GPW, supra note 4, art. 4.



&

PuBLIC POLICY [Vol. 5:113 recognizable at a distance; 126 (iii) carry their arms openly; and (iv) conduct their operations in accordance with the laws and customs of war.

(c) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power.

(d) Persons who accompany the armed forces, such as civilian members of military, aircraft crews, war correspondents, and contractors.

(e) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war (known as a levee en masse).

The key principle underlying the treatment of POWs is that they enjoy a

"combatant immunity"; that is, they may not be punished for their participation in the hostilities. 127 Simply put, POWs are not criminals because they served the enemy in combat. Thus, while POWs may be interned in camps for the duration of hostilities, 128 they generally may not be imprisoned or held in "close confinement.,,129 Moreover, they must-at all times-be humanely treated and protected against acts of violence, intimidation, insults, and public curiosity. 130

When questioned, POWs are bound only to give their name, rank, date of birth, and serial number; the Convention strictly prohibits torture and any other form of coercion to secure information from them. 131

The GPW also imposes detailed restrictions on the methods and conditions of internment (including quarters; rations; medical care; and religious, intellectual, and recreational activities);132 provides due process and substantive limitations for disciplinary infractions;

133 regulates POW labor; 134 requires the detaining power to pay POWs monthly;135 and guarantees POWs communication with the

126. Article 44 of Additional Protocol I to the Geneva Conventions Relating to the Protection of

Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3, eliminates the distinctive unifonn requirement. The U.S. is not a party to the Protocol and has specifically objected to this provision.

See Michael J. Matheson, The United States Position on the Relation of Customary

International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT'L

LAW & POL'y 419, 425 (1987); Abraham D. Sofaer, The Position ofthe United States on Current Law of

War Agreements, 2 AM. U. J. INT'L LAW & POL'y 461, 463 (1987); Department of Army, Operational

Law Handbook 15-16 (2006) [hereinafter Operational Law Handbook], available at http://www.au.af.mil/ aulawc/awcgatellaw/oplaw_hdbk.pdf.

127. Derek Jinks, The Declining Significance of pow

Status, 45 HARv. INT'L L.J. 367, 368, 422

(2004).

128. GPW, supra note 4, arts. 21, 118.

129.

130.

Id. art. 21.

Id. art. 13.

131.

Id. art. 17.

132.

Id. arts. 21-38.

133.

134.

135.

Id. arts. 82-108.

Id. arts. 49-57.

Id. art. 60.


2007]


133 outside world. 136

If POWs are tried for offenses, they must be accorded identical process to members of the armed forces of the nation that holds them. In other words a

POW "can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power.,,137 Members of the U.S. armed forces are tried by court-martial. 138

As for captured combatants in armed conflicts "not of an international character," the Geneva Conventions afford minimal standards of humane treatment. Contained in common article 3, these guarantees include the humane treatment of all "persons taking no active part in the hostilities, including members of armed forces who have laid down their arms....

,,139

To this end, common article 3 prohibits violence to life and person, including murder, mutilation, cruel treatment, and torture; outrages upon personal dignity, particularly humiliating and degrading treatment; and executions "absent a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees recognized as indispensable by civilized peoples."14o

What if a capturing state is uncertain about the status of a detained combatant? Under article 5 of the GPW, should any doubt arise about the status of persons who commit belligerent acts, the capturing party must afford the persons the protections of the Convention until a "competent tribunal" determines their status. 141

B. Interrogation of Captured Combatants

The Administration's detennination that captured enemy combatants do not qualify as POWs necessarily affects the manner in which the combatants may be questioned. Interrogations of combatants who are not POWs may certainly be broader than questions directed to the captured prisoner's name, rank, birth date, and serial number; nevertheless, international law imposes limits on

136. [d.

arts. 71-77.

137. [d.

art. 102.

138. UCMJ art. 2(a)(I) (codified at 10 U.S.c. § 802(a)(I) (2000».

139. GPW, supra note 4, art. 3.

140. [d.

Article 75 of Protocol I to the Geneva Conventions Relating to the Protection of Victims of

International Anned Conflicts, June 8, 1977, 1125 V.N.T.S.

3, requires humane treatment of all persons who fall into the hands of a party to the Convention. The Protocol prohibits torture (both physical and mental) and outrages upon personal dignity (including humiliating or degrading treatment), or the threats of such acts. Moreover, the Protocol prescribes the process required before a party may impose punishment on a person found guilty of a penal offense, including the presumption of innocence, the right against self-incrimination, the right to confront adverse witnesses, and the right to compel the attendance of witnesses on the person's behalf. While the U.S. has never ratified the Protocols to the

Geneva Conventions, it has deemed article 75 to be binding on U.S. military personnel as customary international law. Paust, supra note 38, at 818. A plurality of the Supreme Court has similarly found article 75 to be prescribed by customary international law. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2798

(2006) (Opinion of Stevens, J.).



134 THE


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PuBLIC POLICY

[Vol. 5:113 pennissible interrogation techniques even for combatants who do not qualify as paws. International law particularly prohibits torture; in fact, "[n]early every major instrument that promotes or protects human rights, as well as codifications of international humanitarian law, condemns torture.,,142

Common article 3-which is not dependent upon POW status-affords minimal standards of protection, prohibiting cruel treatment, torture, outrages upon personal dignity, and humiliating and degrading treatment. 143 Torture constitutes a "grave breach" of the Geneva Conventions, 144 which is punishable under the War Crimes Act. 145

The United States is bound by other international conventions banning torture regardless of the status of those being interrogated. The International Covenant on Civil and Political Rights,146 to which the United States is a party, proscribes torture as well as "cruel, inhuman or degrading treatment or punishment."147

The Covenant forbids any derogation from the provision. 148 Importantly, the

Covenant "applies to government conduct in general, not just during armed conflicts, and would so apply to law enforcement and military actions loosely grouped under the war on terror heading." 149

The most important prohibition against torture-the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishmene50-says nothing about the status of the person being interrogated.

Unlike the Geneva Conventions, the Torture Convention depends neither upon the mutual assent of other states nor the affiliation of the persons it protects: by its terms, it protects everyone. Prohibiting acts "by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession ... ,,,151 the Convention requires states to include punishment for torture in their criminal codes. 152 It also categorically rejects any "exceptional circumstances whatsoever," including states of war and other public emergen-

142. Canfield, supra note 43, at 1056; see also Universal Declaration of Human Rights, G.A. Res.

217(A)(III), UN Doc. A/81O, at 71 (Dec. 10, 1948); J. Trevor Ulbrick, Tortured Logic: The (Il)Legality

of United States Interrogation Practices in the War on Terror, 4 Nw. U. J. OO'L HUM. RTS. 210 (2005),

available at http://www.1aw.northwestem.eduljournals/jihr/v4/n1l15/.

143. GPW, supra note 4, art. 3; see also supra notes 139-140 and accompanying text.


145. 18 U.S.C. § 2441 (2000). The term "war crime" includes grave breaches of the Geneva

Conventions.Id. § 2441(c)(1).

146. March 23, 1976,999 V.N.T.S. 171, 175, S. EXEC. Doc. E, 95-2 (1978), available at http:// www.ohchr.org/englishllaw/ccpr.htm.

147.

148.

Id. art. 7.

Id. art. 4(2).

149. John T.

Parry, "Just for Fun ": Understanding Torture and Understanding Abu Ghraib, 1 J.

NAT'L SECURITY L.& POL'y 253, 265 (2005).

150. G.A. Res. 39/46, Annex, 39 V.N. GAOR, Supp. No. 51, V.N. Doc. A/39/51 (1984), entered into

force June 26, 1987, 1465 V.N.T.S. 85 (1987) [hereinafter Torture Convention].

151.

Id. art. 1(1).

152.

Id. art. 4.


2007] AMERICA'S PROFESSIONAL MILITARY ETHIC 135 des, to justify a departure from its terms. 153

The United States signed the Torture Convention in 1988 and ratified l54 and implemented it in 1994 with the Torture Convention Implementation Act.

ISS

Finally, the prohibition against torture and other cruel, inhuman, or degrading treatment is part of customary international law, constituting

jus cogens,

a peremptory norm permitting no derogation. 156 As such, this fundamental protective norm has become a binding part of U.S. law as well as a source of soldier conduct across the spectrum of conflict. 157

V.

COMBATANTS CAPTURED IN THE WAR ON TERROR

Consistent with GPW article 5, until 2002, U.S. policy was to treat all captured combatants as POWs, until their status was reviewed by a "competent tribunal.,,15S Moreover, U.S. military doctrine circumscribed the range of permissible interrogation techniques for all captured combatants, strictly forbidding

"acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or aid to interrogation.,,159 Indeed, the Army manual governing interrogation for intelligence purposes notes that the use of such techniques is not an operationally sound practice:

153. Id. art. 2(2).

154. Office of ihe U.N. Comm'r for Human Righls, Convention Against Torture and Oiher Cruel,

Inhuman or Degrading Treatment or Punishment, Signatories, available at http://www.ohchr.orglenglish/ law/cat-ratify.htm.

155. Foreign Relations Auihorization Act for Fiscal Years 1994 and 1995, Pub.

L.

No. 103-236,

§ 506, 108 Stat. 382 (codified at 18 U.S.c. §§ 2340-2340B (2000».

156. See REsTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 702 cmt. n (1987) (torture and oiher cruel, inhuman, or degrading treatment, and prolonged arbitrary detention are examples of jus cogens);

Jose E.

Alvarez, Torturing the Law, 37 CASE W.

REs. J.

lNT'L L. 175, 187-189 (2006); Jordan J. Paust,

Post-9/11 Overreaction and Fallacies Regarding War and Defense, Guantanamo, the Status ofPersons,

Treatment, Judicial Review of Detention, and Due Process in Military Commissions, 79 NOTRE DAME L.

REv. 1335, 1357-58 (2004); Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995) ("official torture is prohibited by universally accepted norms of international law"), cert. denied, 518 U.S. 1005 (1996).

Discussing ihe principle of jus cogens, ihe REsTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 102 cmt.

(1987), notes: "Some rules of international law are recognized by ihe international community of states as peremptory, pennitting no derogation. These rules prevail over and invalidate international agreements and oiher rules of international law in conflict wiih ihem."

157. The Paquete Habana, 175 U.S. 677, 700 (1900); REsTATEMENT (THIRD) OF FOREIGN RELATIONS

LAW § III (1987); FM 27-10, supra note 60, at 7. See generally Operational Law Handbook, supra note 126, at 48-49.

158. The Judge Advocate Gen.'s Sch., U.S. Army, Law of War Workshop Deskbook, ch. 5, at 90

(2000), available at http://jagcnet.army.milljagcnetinternetlhomepageslac/tjagsaweb.nsflmain?openframeset. Under service regulations, a competent tribunal is composed of three commissioned officers, of whom at least one must be field grade (major or above in ihe Army, Air Force, and Marines; lieutenant commander or above in ihe Navy). E.g., Dep't of Army, Regulation 190-8, Enemy Prisoners of War,

Retained Personnel, Civilian Internees and Other Detainees, 'Il1-6c (Oct. I, 1997). The regulations also encourage ihe appointment of a judge advocate as a non-voting recorder for ihe tribunal. Id. The regulations afford detainees procedural rights, including ihe right against self-incrimination, ihe right to testify, and ihe right to call witnesses. Id. 'Il1-6e.

159. FM 34-52, supra note 46, at 1-8.


136 THE GEORGETOWN JOURNAL OF LAW & PuBLIC POLICY [Vol. 5:113

Experience indicates that the use of prohibited techniques is not necessary to gain the cooperation of interrogation sources. Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear. 160

Relying upon advice from OLC, the Bush Administration short-circuited the

GPW article 5 process in the War on Terror by declaring prisoners captured in

Afghanistan to be unlawful combatants not entitled to GPW protection. 161 The

Administration compounded the difficulties generated by its determination that captured enemy combatants in the War on Terror are without Geneva Convention protections by narrowing the legal barriers to the use of torture in interrogations. 162

The flaws in the legal conclusions reached by OLC and the Administration have been detailed elsewhere163 and will be addressed only briefly here. For example, OLC's assertion that the President may suspend temporarily U.S.

obligations toward Afghanistan under the Geneva Conventions by determining that Afghanistan is a failed state is problematic at best. 164 The Taliban constituted the de facto government of Afghanistan,165 and Afghanistan is a party to the Geneva Conventions. 166 Moreover, the United States' intervention in the country made the conflict one of international character. To suggest that one party to the Geneva Conventions can simply declare another party a "failed state" and ignore the protective requirements of the Conventions is profoundly troubling. Recognition is not a prerequisite for application of the Conventions, and loss of control of the nation by the incumbent government is irrelevant

160. Id.

161. See supra notes 20-30 and accompanying text. By contrast to enemy combatants captured in

Afghanistan, U.S. forces did convene Article 5 tribunals to determine the status of captured combatants in Iraq. 1 CTR.

FOR LAW & MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ, at 43-46 (Aug. 1, 2004), available at http://www.globalsecurity.orglmilitary/library/report/2004/ oeCoiCvol ume_l.pdf.

162. See Bybee, supra notes 31-32 and accompanying text.

163. See, e.g., Alvarez, supra note 156; Harold Kongju Koh, Can the President Be Tonurer in

Chief?, 81 IND. L.J. 1145 (2005); Paust, supra note 156, at 1350; Jeremy Waldron, Tonure and Positive

Law: Jurisprudencefor the White House, 105 COLUM. L. REv. 1681 (2005). But see Brett Shumate, New

Rules for a New War: The Applicability of the Geneva Conventions to AI-Qaeda and Taliban Detainees

Captured in Afghanistan, 18 N.Y.INT'L L. REv. 1 (2005).

164. Then-Secretary of State Colin Powell asked President Bush to reconsider his decision to exclude Taliban forces from Geneva protections, noting that "the United Nations recognized Afghanistan as a state during the allied campaign and that the Third Geneva Convention prisoner-of-war protections applied to the Taliban forces since they constituted regular armed forces whose allegiance was with a government not recognized by the United States." Akash R. Desai, How We Should Think

About the Constitutional Status of the Suspected Terrorist Detainees at Guantanamo Bay: Examining

Theories that Interpret the Constitution's Scope, 39 VAND. J. TRANSNAT'L L. 1579, 1588 (2003).

165. See Ahmed, supra note 26.

166. See int'I Comm. of the Red Cross, supra note 25.


2007] AMERICA'S PROFESSIONAL MILITARY ETHIC 137 since the treaties expressly apply even when a nation is wholly occupied. 167

Consider the treatment of the captured al-Qaeda members to whom, the

Administration asserted, the Conventions do not apply.168 May the United

States do anything it likes to these combatants?169 This approach is certainly inconsistent with the moral precepts underlying the Geneva Conventions, whose aim is to introduce "unprecedented regulation into what would otherwise be a horrifying realm of freedom" if no restrictions existed. 170 Moreover, many of the protective provisions of the Geneva Conventions have become embodied in customary international law-and with regard to such norms as the prohibition

171 against torture--constitute jus cogens.

Therefore, claims that some persons, such as "unlawful combatants," fall through the cracks of international law and receive absolutely no human rights protections at all are specious.

172

One commentator insightfully characterized the Bush Administration's position as follows: "The administration has categorized terrorist attacks as armed attacks instead of criminal attacks, but has then cast important aspects of international humanitarian law-which customarily governs the conduct of belligerents in armed conflict-as 'quaint" and 'obsolete.'" 173 The Administration's policies seemingly gave U.S. forces carte blanche authority to handle the detainees without regard to any international human rights norms.

174

It based these policies on the advice of lawyers who disregarded or bypassed altogether those government attorneys with conflicting points of view, particularly military judge advocates,175 who are largely responsible for developing and implement-

167. GPW, supra note 4, art. 2. Admittedly, many individual members of the Taliban militia might not qualify for POW status because they do not meet the criteria specified in GPW article 4 (e.g., have fixed distinctive signs recognizable at a distance and conduct their operations in accordance with the laws of war); however, this does notjustify a blanket suspension of the Conventions with respect to

Afghanistan. Rather, a GPW article 5 tribunal would be an appropriate forum to determine whether

individual militiamen should be entitled to GPW protections. See supra notes 141 and 158, and accompanying text.

In any event, assuming the relevancy of the fact the Taliban did not entirely control Afghanistan, the

United States intervened into a civil war, to which cornmon article 3 of the Conventions is applicable.

See supra notes 139-140 and accompanying text.

168. The Supreme Court has since explicitly rejected the Administration's contention that cornmon article 3 of the Geneva Conventions is inapplicable to members of al-Qaeda. Hamdan v. Rumsfeld, 126

S. Ct. 2749, 2795-96 (2006).

But see id. at 2846 (Thomas, J., dissenting); Robert A. Peal, Combatant

Status Tribunals and the Unique Nature of the War on Terror, 58 VAND.

L.

REv.

1629, 1643 (2005).

169. Waldron, supra note 163, at 1692-93.

170. Id. at 1693.

171.

See supra notes 140, 156-57 and accompanying text.

172. Paust, supra note 156, at 1350 ("Despite claims that certain persons, including 'enemy combatants' or so-called 'unlawful combatants,' have no rights, no human being is without protection under intemationallaw and types of protection under intemationallaw are many.") (footnotes omitted);

see also Jinks, supra note 127, at 374-75; Waldron, supra note 163, at 1693-95.

173. Mark A. Dumbl, Guantanamo, Rasul, and the Twilight of Law, 53 DRAKE L.

(2005) (footnotes omitted).

REv.

897, 911-12

174. Id.; see also Philippe Sands, Lawless World? The Bush Administration and Iraq: Issues of

International Legality and Criminality, 29

HAsTINGS

INT'L &

COMPo

L.

REv.

295, 301 (2006).

175. See, e.g., Final Report of the Independent Panel to Review DoD Detention Operations, at 36

(Aug. 24, 2004) [hereinafter Schlesinger Report], available at http://fll.findlaw.comlnews.findlaw.coml


138 THE


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PuBLIC POLICY

[Vo1. 5:113 ing the armed services' law of war doctrine and training. 176 Instead, the

Administration relied upon the counsel of "[h]and-picked political appointees" who provided the legal cover requested to reach the "desired bottom line.,,177

As a result of these policies, clear-cut rules governing behavior in combat became uncertain; the line between right and wrong was blurred.

178

The old preacher's adage that "when there is mist in the pulpit, there's fog in the pew" proved axiomatic. One investigation of Abu Ghraib found that:

US forces and intelligence officials deployed to Mghanistan and elsewhere to conduct military operations pursuant to the GWOT [Global War on Terror].

Specific regulatory or procedural guidance concerning either "humane" wp/docs/dod/abughraibrpt.pdf; Julian Barnes, The Guantanamo Decision: Military Fought to Abide by

War Rules, L.A. TiMEs, June 30, 2006, atAI; Chitra Ragavan, Cheney's Guy, U.S. NEWS & WORLD REP.,

May 29, 2006, at 34,37.

176. Department of Anny, Regulation 27-1, Legal Services, 'J[2-lg (Sept. 30,1996); Department of

Air Force, Policy Directive 51-4, Compliance with the Law of Armed Conflicts, 'lrJI 5.1, 5.2, 5.4 (April

26, 1993); Secretary of the Navy Instruction 33oo.1B, Law ofArmed Conflict (Law of War) Program to

Ensure Compliance by the Naval Establishment, 'J[5.b. (Dec. 27, 2005). See also Chairman of the Joint

Chiefs of Staff, Instruction 581O.0IB, Implementation of the DOD Law of War Program, Encl. A, 'lI

I.b.(6)(a) (March 25, 2002) ('The Legal Counsel (LC) to the Chairman will: Provide overall legal guidance to the Chairman of the Joint Chiefs of Staff on the DOD Law of War Program ... .").

177. Cornelia Pillard, Unitan'ness and Myopia: The Executive Branch. Legal Process, and Torture,

81lND. L.J. 1297, 1297 (2006); see also Michael Hatfield, Fear; Legal Indeterminacy and the American

Lawyering Culture, 10 LEWIS & CLARK L. REv. 511, 521 (2006); William R. Casto, Executive Advisory

Opinions & the Practice of Judicial Deference in Foreign Affairs Cases, 37 GEO. WASH.

lNT'L L. REv.

501, 503-04 (2005) (noting that government lawyers shape their legal advice to help the President achieve "extralegal objectives").

Some in the Bush Administration attempted to silence the independent advice of military lawyers by making them wholly subservient to politically appointed general counsel.

In 2003, the Secretary of the

Air Force issued an order subjecting the Air Force Judge Advocate General to the executive authority of the Air Force General Counsel, a political appointee. Report of the Independent Review Panel to Study the Relationships Between Military Department General Counsel and Judge Advocates General, Legal

Services in the Department of Defense: Advancing Productive Relationships, at 17 (Sept. 15, 2005)

[hereinafter Independent Panel], available at http://www.jaa.orgtother/574_Panel_Final_Report.pdf.

Congress stymied the effort by directing the rescission of the Secretary's order in a conference report,

H.R.. REp. No. 108-767, at 682-83 (2004) (Conf. Rep.), reprinted in 2004 U.S.C.C.A.N. 1961,2035-36, and by passing legislation expressly affirming the independence of the service judge advocates general as advisors to the military department secretaries and chiefs of staff. Pub. L. No. 108-375, § 574, 118

Stat. 1811 (2004) (codified at 10 U.S.C. §§ 3037(e)(2), 5148(e)(2), 5046(e)(2), 8037(f)(2».

The Air Force Secretary's order making military lawyers subservient to politically appointed counsel is reminiscent of a similar attempt to eliminate the independence of service judge advocates during the

Administration of President George H.W. Bush.

See H.R. No. 108-767, at 682 (2004) (Conf. Rep.).

Then DoD General Counsel David Addington authored a memorandum ordering service judge advocates to report to their military department general counsel. Ragavan, supra note 175, at 34; Independent Panel, supra, at 13-14. The memorandum was withdrawn following congressional opposition.

Independent Panel, supra, at 14-15. David Addington currently serves as Vice President Cheney's Chief of Staff and is part of the "inner circle" of civilian lawyers responsible for the Bush Administration detainee policies. Ravagan, supra note 175, at 36-37; Jane Mayer, The Hidden Power, NEW YORKER,

July 3, 2006, available at http://www.newyorker.comlprintables/factl060703fajactl.

178. Pearlstein, supra note 3, at 1260.


2007] AMERICA'S PROFESSIONAL MILITARY ETHIC 139 treatment or "abuse" was not available in the context of GWOT and the recently promulgated national policies.

179

Before September 11,2001, military personnel knew (or should have known) the meaning of "humane" and "abuse": the terms were defined by treaty and well-established norms of customary international law, and every member of the armed forces received training in their application. 180 While not necessarily well versed in the details of the conventions and the law, military personnel learned the basics, including that they "do not harm enemies who surrender" and that they "do not kill or torture prisoners."181 Had these basic tenets simply been followed in the War or Terror, there would have been no need for further

"specific regulatory or procedural guidance."

Military values such as honor and integrity-by which service members are expected to "do the right thing" regardless of the conditions they confrontbecome hollow if service members do not know what the "right thing" is. 182

The values constituting the professional military ethic ultimately depend upon the leadership of the armed forces to give them substance and texture. 183 If the

Commander-in-Chief and his subordinates signal that the unique dangers confronted in the War on Terror demand something short of strict compliance with international law, military personnel will act short of strict compliance with international law. 184

At Abu Ghraib, unclear and frequently changing guidance left soldiers "in uncharted ethical ground," and as a result, "[s]ome stepped over the line of humane treatment accidentally; some did so knowingly."185 For example, interrogation techniques originally intended only for use by experienced interrogators came to be used in Afghanistan and Iraq,186 and, unfortunately, "some individuals seized the opportunity provided by [the] environment to give vent to latent

179. MG George R. Fay, AR 15-6 Investigation of !he Abu Ghraib Detention Facility and 205 th

Military Intelligence Brigade, Aug. 23, 2004, at 21(emphasis added) [hereinafter Fay Investigation],

available at http://fll.findlaw.com/news.findlaw.com/hdocs/docs/dod/fay82504rpt.pdf.

180. See W. Hays Parks, The United States Military and the Law of War: Inculcating an Ethos, Soc.

REs., Winter 2002, at 981, 986-87.

181.

Id.; Department of Army, Regulation 350-1, Army Training & Leader Development, (Jan. 13,

2006), 'lI4-18b.

182. See supra notes 70-73 and accompanying text.

183. See generally supra notes 117-18 and accompanying text.

184. See supra note 118 and accompanying text; see also Bassiouni, supra note 8, at 409-410.

185. ScWesinger Report, supra note 175, at 29; see also LTG An!hony R. Jones, AR 15-6 Investigation of !he Abu Ghraib Prison and 205th Military Intelligence Brigade, Aug. 23, 2004, at 4 (The investigation found that some of !he actions taken at Abu Ghraib were based upon "misinterpretations of law or policy resulted from confusion about what interrogation techniques were permitted." Soldiers and contractors committing !he acts "may have honestly believed !he techniques were condoned.")

[hereinafter Jones Investigation], available at http://fll.findlaw.com/news.findlaw.com/hdocs/docs/dod/ fay82504rpt.pdf.

186. Schlesinger Report, supra note 175, at 68; Jones Investigation, supra note 185, at 5, 15; see

also Fay Investigation, supra note 179, at 8.



&

PuBLIC POLICY [Vol. 5:113 sadistic urges.,,18? Like My Lai, Abu Ghraib has become an indelible stain on the honor of America's armed forces.

Moreover, Administration lawyers were at least partially responsible for the breakdown of the military's professional ethic. Perhaps because most had never served in the military, the lawyers neither considered nor fully appreciated the importance of the moral and ethical precepts upon which both the laws of war and military service are based. Relying strictly upon "'an abstract analysis"188 in interpreting the laws of war rather than the moral principles underlying them,189 they severed the moorings of military personnel to their fundamental values, causing what one commentator described as "military cultural degradation.,,190

While there is legitimate debate over whether the government lawyers were obligated to raise moral concerns,191 at the very least the attorneys should have treated the law as something more than merely "an obstacle to be planned around.,,192 The moral underpinnings of international legal norms, such as those forbidding soldiers from killing or torturing prisoners, must be taken into account when interpreting the norms. As Professor Bradley Wendel noted, sometimes "'what the law permits' cannot be determined without reference to moral considerations."193 Among the objects of international norms dealing with the treatment of captured enemy combatants are the moral imperatives of preventing unnecessary suffering and safeguarding fundamental human rights, 194 objectives that simply cannot be served by raising the threshold for torture or deeming some captured prisoners to be without any protection under internationallaw.

Ultimately, Administration lawyers and policy makers should have consid-

187. ScWesinger Report, supra note 175, at 29; see also Peter Margulies, Beyond Absolutism: Legal

Institutions in the War on Terror, 60 U. M1AMI L.

REv. 309, 313 (2006).

188. Robert K.

Vischer, Legal Advice as a Moral Perspective, 19 GEO. J. LEGAL Enncs 225, 228

(2006) (quoting John Yoo, quoted in Edward Alden, U.S. Interrogation Debate, FIN. TiMEs, June

2004, at 7).

10,

189. Id. at 231.

190. Evan J. Wallach, The Logical Nexus Between the Decision to Deny Application of the Third

Geneva Convention to the Taliban and Al Qaeda and the Mistreatment of Prisoners in Abu Ghraib, 36

CASE W.

REs.

J. lNr'L L.

541, 624 (2004); see also Amos N. Guiora

Trinity: Intelligence, Interrogation and Torture, 37 CASE W.

REs.

J. lNr'L

&

L.

Erin M. Page,

427,440 (2006).

The Unholy

191. See, e.g., Vischer, supra note 188, at 226-28; Radack, supra note 122; George C. Harris, The

Rule of Law and the War on Terror: The Professional Responsibilities of Executive Branch Lawyers in

the Wake of9/11, 1 J. NAT'L SECURITY L.

& POL'Y 409 (2005).

192. Wendel, supra note 19, at 1232. But cf JACK L.

GOLDSMITH & ERIC A.

POSNER, THE LIMITS OF

INrERNATIONAL LAW 185, 225 (2005) (arguing that states have no moral obligation to follow internationallaw).

193.

W.

Bradley Wendel, Professionalism as Interpretation, 99 Nw. U.

L.

REv. 1167, 1226 (2005);

see Moore, supra note 42, at 57. See also Hatfield, supra note 177, at 522 (Commenting on OLC's

"Torture Memo," Professor Hatfield notes: "[T]he conclusions in the Torture Memo could only be sustained if one ignores that the moral and legal reasoning on torture dovetail in the statute itse1f.");

accord Kimberly Kessler Ferzan, Torture, Necessity, and the Union of Law & Philosophy, 36 RUTGERS

L.J. 183, 189 (2004).

194. Operational Law Handbook, supra note 126, at 12; FM 27-10, supra note 60, at 3.


2007]


141 ered the effect their policies would have on the men and women charged with executing them, often under conditions of isolation, stress, and danger. It is one thing for seasoned attorneys sitting in the comfort of an office at 10 lb and

Constitution Avenue to ponder dispassionately the possible range of legal constructions of the treaties and customary law governing armed conflict; it is quite another for 18- or 19-year old soldiers to apply the resulting "abstract analysis" on the battlefields of Iraq and Afghanistan while under fire.

Unfortunately (but predictably), because of U.S. transgressions at Abu Ghraib and elsewhere, much of the world is now ready to believe any allegations of

U.S. atrocities and violations of international law regardless of their basis in fact.

195

In conflicts such as the War on Terror, the "operational center of gravity" is usually public opinion and the "retention of legitimacy."I96 Thus, military operations "must be conducted in accordance with the values of the

American people and international law" if the necessary public trust and legitimacy is to be sustained.

197

Enabling terrorists to manipulate domestic and international opinion through false allegations of atrocities "undermines our military's will to fight and our citizenry's willingness to support it in the war against arguably the most immoral and dishonorable enemies we have ever faced."

198

The al-Qaeda training handbook encourages captured al-Qaeda terrorists to make allegations of mistreatment.

199

By its loose interpretation of the law of war and the resultant abuses at Abu Ghraib and elsewhere, the United States has played into al-Qaeda's hands, giving any allegations-no matter how baseless or outrageous-a ring of truth. Indeed, "[a] committee of devils scheming to thwart American intentions in Iraq could have done no worse than turning a group of leering U.S. soldiers loose with a camera on bound, hooded, and naked

195. See supra note 12 and accompanying text; see also Congressional Research Service Report,

Treatment of "Battlefield Detainees" in the War on Terrorism, March 27, 2005, at 5-7 (detailing the worldwide criticism of U.S. detainee policies), available at http://www.au.af.rniVau/awc/awcgate/crs/ r131367.pdf.

An example is the 2005 report in Newsweek magazine that U.S. guards at Guantanamo had flushed a detainee's Koran down the toilet. Michael Isikoff & John Barry, A Scandal Spreads,

NEWSWEEK, May 9,

2005, at 4-5. Although it later retracted the story as being false, the article triggered rioting in several

Muslim countries resulting in the death of at least 15 people. Evan Thomas, How a Fire Broke Out,

NEWSWEEK,

May 23, 2005, at 28-30; Howard Kurtz, Newsweek Apologizes,

WASH. POST,

May 16,2005, at AI.

196. Lieutenant Colonel James D. Campbell, Legitimacy and the Rule of Law in Low-Intensity

Conflict, MIL. REv., Mar.-Apr. 2005, at 5.

197. Martin L.

Cook, Moral Foundations ofMilitary Service, PARAMETERS, Spring 2000, at 117.

198. Davida E. Kellogg, International Law and Terrorism, MIL. REv., Sept.-Oct. 2005, at 51.

199. Al-Qaeda Training Manual, Lesson 18, Prisons and Detention Centers, available at http:// www.usdoj.gov/aglmanualpartl_4.pdf; Donna Miles, Al Qaeda Manual Drives Detainee Behavior at

Guantanamo Bay, Armed Forces Information Service, June 29, 2005, available at http://www.defenselink.

rniVnews/Jun2005120050629_190I.htrnl; see also Kellogg, supra note 198, at 51 ("[T]he most commonly used tactic [of terrorists] has been to barrage the international news media with outrageous, often patently absurd, accusations of the illegality of coalition methods in prosecuting the [global war on terror].").


142 THE


&

PuBLIC POLICY

[Vol. 5:113

Iraqi prisoners.,,200 As a consequence, the United States has been forced to waste vital resources and time countering allegations of atrocities often made by domestic and international apologists for terrorism who seek to draw a moral equivalency between the nation's prosecution of the war and the acts of the terrorists it is fighting?OI

VI.

CONCLUSION

Reacting to pressure from Congress, the Supreme Court, and the public, the

Administration has begun taking steps to avoid the recurrence of such tragedies as occurred at Abu Ghraib. As discussed above,202 Congress statutorily limited the methods of interrogating enemy combatants when it passed the Detainee

Treatment Act of 2005.203 The Act prohibits interrogation practices not authorized in the Army's intelligence interrogation field manual.204 The Army field manual now sets the outer boundaries of available interrogation techniques, and it strictly forbids the use of physical or mental torture, threats, insults, or exposure to inhumane treatment.205

Moreover, following the Supreme Court's decision in Hamdi v.

Rumsfeld,206 which held that "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker,,,207 the Defense Department established the Combatant

200. Mark Bowden, Lessons ofAbu Ghraib, ATLANTIC MONTHLY, July/Aug. 2004, at 37.

201. Jackson, supra note 6, at 8-9; Bassiouni, supra note 8, at 423-24; Kellogg, supra note 198, at

52; see also Mark D. Kielsgard, Human Rights Approach to Counter-Terrorism, 36 CAL. W. INT'L L.J.

249, 292 (2006) (noting the diplomatic and public relations costs of the nation's failure to follow international legal norms); Jeffrey K.

Cassin, United States' Moral Authority Undermined: The Foreign

Affairs Costs of Abusive Detentions, CARDOW

PuB.

L. POL'y & Enncs J. 421, 446-456 (2006) (also noting the diplomatic and public relations costs of the nation's failure to follow international legal norms).

202. See supra notes 44-48 and accompanying text.

203. Pub. L. No. 109-148, 119 Stat. 2680.

204. Id. § 1002(a). See generally Arsalan M. Suleman, Detainee Treatment Act of 2005, 19 HARv.

HUM. RTS. J.. 257, 259-60 (2006).

205. FM 34-52, supra note 46, at 1-8.

In a signing statement accompanying the Act, the President seemingly left open the prospect that-subject to the need to protect American citizens from terrorist attacks-he disregard the Act's limitations on interrogation. President's Statement on Signing of H.R.

2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act," (Dec. 30, 2005), available at http://www.whitehouse.

gov/news/releases/2005/12l20051230-8.html. Later changes in Administration policy regarding the application of the Geneva Conventions to captured Taliban and al-Qaeda combatants, however, may make deviation from the restrictions imposed by the Act less likely. See infra notes 212-13 and accompanying text.

206. 542 U.S. 507 (2004).

207. Id.

at 533. In a companion case, Rasul v. Bush, 542 U.S. 466 (2004), the Court opened the door to habeas review for Guantanamo detainees who are not U.S. citizens. The Court did not decide, however, the nature of the rights to which such detainees are entitled to assert in a habeas petition, leaving the issue for the lower federal courts. To date, two judges of the D.C. District have reached diametrically opposite conclusions. Compare In re Guantanamo Detainee Cases, 355 F.

Supp. 2d 443


2007]


143

Status Review Tribunals (CSRT) for detainees to contest their continued detention?08 Although the CSRT do not constitute tribunals under article 5 of the

Geneva Conventions, which permits enemy combatants to establish their status as POWs,209 they do allow detainees to contest their designation as enemy combatants.2lo In addition, the Department created boards to determine annu- ally whether those detainees "properly" deemed enemy combatants should be released, transferred, or continued to be detained.211

Most importantly, following the Supreme Court decision in Hamdan v.

Rumsjeld,212 which declared the military commission process devised by the government unlawful, the Administration conceded that both Taliban and al

Qaeda detainees have rights under the Geneva Conventions, and so rescinded portions of President Bush's February 7, 2002 order.213 The concession means that all detainees will at least receive the basic guarantees afforded by common article 3 of the Geneva Conventions, thereby establishing a baseline of fundamental protections for enemy combatants falling into U.S. hands. This baseline, in turn, forms a bright-line standard consistent with military values that can be understood and followed by our soldiers, sailors, airmen, and Marines.

Regretfully, the nation has had to endure a painful and destructive route to reach policies for the treatment of detainees that should have been applied at the very outset of the War on Terror. The Report of the Independent Panel to

Review DoD Detention Operations headed by former Defense Secretary James

Schlesinger recommended that all military personnel engaged in detention operations should participate in a "values-oriented professional ethics program" that would "equip them with a sharp moral compass for guidance in situations often riven with conflicting moral obligatlons."214 Sadly, such a program al-

(D.D.C. 2005), with Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005), and the cases that are currently pending in the D.C. Circuit. Boumedienne v. Bush (D.D.C. 2005), appeal docketed, No. 05-5062 (D.C.

Cir. Mar. 2, 2005); Al Odah v. United States (D.D.C. 2005), appeal docketed, No. 05-5064 (D.C. Cir.

Mar. 7, 2005); see generally Kmiec, supra note 14, at 890.

208. Alan Tauber, Ninety-Miles from Freedom? The Constitutional Rights of Guantanamo Bay

Detainees, 18 ST. THOMAS L.

REv. 77, 83 (2005).

209. See supra note 141 and accompanying text; Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 162

(D.D.C. 2004), rev'd, 415 F.3d 33 (D.C. Cir. 2005), rev'd, 126 S. Ct. 2749 (2006).

210. Memorandum from Deputy Secretary of Defense, to the Secretary of the Navy, Subject: Order

Establishing Combatant Status Review Tribunals (July 7, 2004), available at http://www.defenselink.mill

newslJuI2004/d20040707review.pdf; see generally Peal, supra note 168, at 1650-54. District Judge

Joyce Hens Green ruled in the In re Guantanamo Detainee Cases that the tribunals failed to provide adequate process. 355 F. Supp. 2d 443,468-77 (D.D.C. 2005).

211. Administrative Review Board Implementation Memorandum § I.a. (Sept. 14, 2004), available

at http://www.defenselink.millnews/Sep2004/d20040914adminreview.pdf.

212. 126 S. Ct. 2749 (2006).

213. Memorandum from Gordon England, Deputy Secretary of Defense, Application of Common

Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense (July

7,2006), available at http://www.fas.orglsgp/othergov/dodlgeneva070606.pdf; see also Mark Mazzetti

& Kate Zemike, White House Says Terror Detainees Hold Basic Rights, N.Y.

TiMEs, July 12, 2006, at

AI; R. Jeffrey Smith, Detainee Abuse Charges Feared, WASH. POST, July 28,2006, at AI.

214. Schlesinger Report, supra note 175, at 91.


144

THE GEORGETOWN JOURNAL OF LAW

&

PuBLIC POLICY

[Vol. 5:113 ready existed and would have served as a sound basis for moral and ethical decision-making but for unclear and often erroneous guidance from the highest levels of the military command.

In short, the United States could have avoided much of the turmoil surrounding its conduct during the War on Terror if it had simply followed the wellestablished rules established by international and domestic law. Instead, the

Administration's distorted interpretation of the law of war has had a corrosive effect on military values, forcing the nation to expend enormous energy and good will in defending its motives and practices, rather than focusing on those who have caused it so much real harm.


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