Washington Post

The history of the categorical prohibition

against torture in US military doctrine

Lawrence P. Rockwood, PhD

The propagation of the ticking bomb scenario (TBS) by prominent legal scholars, academics, and journalists highlights a problematic shift in societal attitudes toward torture in reaction to the attacks of 9-11. Related to this phenomenon is the gulf that has arisen between what U.S. military doctrine says about torture and the standards of treatment of detainees contained in executive orders of the second Bush administration. This lack of convergence between historically developed professional military standards and reactive political policy helps explain why the most the consistent and credible condemnation of the U.S. detainee policies has originated not the from the pens lawyers or journalists, but from current and retired members of the American profession of arms. One of the prominent example of this opposition was a May 15, 2007 Washington Post editorial by four-star generals Charles C. Krulak, former commandant of the Marine Corps, and Joseph P. Hoar, the former commander in chief of U.S. Central Command, that denied efficacy of torture in achieving any legitimate end of state. This articulation of a categorical prohibition against torture is a good point of departure to briefly summarize the historical relationship between military doctrine and torture.[1]

Before we can document the development of military doctrine concerning torture, we must first ask what is military doctrine and how it distinct from official government policy resulting either from legislation or executive orders. JCS (Joint Chiefs of Staff) Pub 1, the definitive delineator of official U.S. military terminology, defines doctrine as “fundamental principles by which military forces or elements thereof guide their actions in support of national objectives.”[2] Doctrine is distinct from law and state/executive policy. It is authoritative, but a violation of doctrine does not necessarily involve a violation of law. Although doctrine often results in law / policy and law / policy often underpins doctrine, doctrine calls for judgment in its application (as against rote compliance). Unlike positive law based on legal jurisdiction or state / executive policy, which is also legally binding on soldiers, doctrine is based on professional consensus, even though the foundation of that consensus derives from on an internal institutional validation that is hierarchical and relatively narrow.

Like law and policy, doctrine is hierarchal. In fact, no two sets of doctrinal publications can be equal in any given circumstance or contingency. Current official policy places such doctrine into two major groups: (1) capstone doctrine, the highest category of doctrine publications in the “hierarchy of publications” that link doctrine to national strategy and the guidelines of other government agencies to include other members of international alliances and coalitions and (2) keystone doctrine, doctrinal publications that provides the foundation for a series of doctrine publications in a specific subject area or discipline. The historical and contemporary doctrinal position on torture in the US military consists of the following:

1. Capstone Doctrine

The original capstone doctrine for the US military was the U.S. Civil War–era document U.S. General Order No. 100, also known as the Lieber Code (after its principal author, Francis Lieber), which incorporated all of the major principles of just war doctrine. While the Lieber Code's numerous distinctions of unlawful combatancy and liberal resort to the death sentence may give contemporary human rights activists pause, its prohibition against torture was categorical. The central operative principle was the concept of military necessity. Military necessity is defined "as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war." (Article 14) Military necessity is always accompanied by one categorical prohibition regardless of the combatant status of the enemy in that it "does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor for torture to extort confessions." (Article 16).[3]

The current capstone document regarding torture is Field Manual (FM) 27-10, the Law of Armed Conflict (1956) which incorporated the standards utilized in American war crimes program that included the International Criminal Tribunal at Nuremberg and subsequent war crimes trials following the end of World War II. FM 27-10 also posits a categorical prohibition against torture regardless of the combatant status of the enemy in that it incorporates the exact text of the four Common Articles Of Geneva Conventions of 1949 proscribing any act deemed to be "cruel treatment and torture" or the prohibition from Arricle 3 of the Third Geneva Convention against "humiliating and degrading treatment."[4]

2. Keystone Doctrine:

Until September 6, 2006 when it announced the publication of Field Manual (FM) 2-22.3, Human Intelligence Collector Operations, the keystone doctrinal manaul in reference to interrogations was FM 34-52, Intelligence Interrogation.[5] On July 25, 2005 Senator John McCain, a former prisoner of war, introduced an amendment to a military spending bill to prohibit all interrogators from using any interrogation method not authorized by FM 34-52. McCain's amendment passed. The effect of this Detainee Treatment Act of 2005 was to overrule the executive policy contained in Gonzales Memo of 25 January, 2002) made a presidential decision that captured members of Al Qaeda and the Taliban were unprotected by the Geneva Conventions and the subsequent Rumsfeld Order of January 19, 2002 making the decision legally binding on the armed forces. The effect of the act was to make military doctrine a law and state policy in order to override an existing policy.[6]

Thus far, it does not appear to me that the new Field Manual (FM 2-22.3) is the major humanitarian setback many feared it would be. While affirming that so-called "unlawful enemy combatants are persons not entitled to combatant immunity," it mandates that "all captured or detained personnel, regardless of status, shall be treated humanely, and in accordance with the Detainee Treatment Act of 2005,… and no person in custody or under control of DOD, regardless of nationality or physical location, shall be subject to torture or cruel, inhuman, or degrading treatment or punishment, in accordance with and defined in US law.”[7]

Conclusion: The devil (criminal acts of torture of the present or previous presidential adminsitrations) is in the details (of executive policy) and does not now or ever had the sanction of military doctrine. The Final Report of the Mental Health Advisory Team (MHAT) IV Operation Iraqi Freedom 05-07 documented the gulf that can materialize between official norms such as doctrine and actual values of military personnel. This report reported that only thirty eight percent of US Soldiers and forty seven percent of US Marines believed that "all non-combatants should be treated with and respect" and that thirty nine percent of soldiers and thirty six percent of marines believed that "torture should be allowed if it will save the life of a Soldier/Marine."[8]

However, it must be noted that the other shore of this gulf relfects the culture and the actual legally binding policies of the United States of America. The greatest institutional failing of the American Military is its historical failure hold its own to the same standard of command responsibility as it once held out to commanders of the military forces it helped to defeat. In his opening statement as the American chief counsel for the prosecution at the International Military Tribunal at Nuremberg, U.S. Supreme Court justice Robert H. Jackson addressed the issue of whether the legacy of that tribunal would be simple “victor’s justice” or the establishment of principles of international reciprocity in holding individuals accountable for war crimes: “We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.” The United States failed to hold its own military commanders responsible for dereliction in preventing and suppressing breaches of international humanitarian law during the Vietnam War. The standards applied to American defendants involved in the perpetration and cover-up of the My Lai massacre, in particular, fell short of the standards that Jackson and his contemporaries held up to German and Japanese officers immediately after the cessation of hostilities in World War II. For example, in the My Lai case of Capt. Ernest Medina, the military judge instructed the jury that they must establish that Medina possessed actual knowledge that his subordinates were committing human rights violations in order for him to be held criminally liable as commander. That standard, referred to as the “must have known” standard, contrasts both with the “should have known” standards established in post–World War II war crimes tribunals and with contemporary standards on command responsibility found in a variety of recognized sources, such as the 1977Additional Protocol I to the Geneva Conventions, the statutes of the international tribunals for Rwanda and the former Yugoslavia, and the Rome Statute for the International Criminal Court.[9]

In the direct aftermath of the U.S. failure to apply the Nuremberg-era standards of command responsibility in the trials following the disaster at My Lai, the United States took the lead fighting to defeat the international consensus to extend the provisions of enforcement of interantiaonl humanitarian law contained in the 1977 Protocol I of the Geneva Conventions. This American action documented a conservative trend toward limiting the applicability of international humanitarian law for which a commander could be held liable. After it supported the incorporation of Nuremberg-like standards of affirmative command responsibility into Article 6 of the statute of the International Criminal Tribunal for Rwanda (ICTR) and Article 7 of the statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), America fought to defeat the Rome treaty that created the international Criminal Court (ICC) that would have subjected its own commanders and officials to the same standard.

Despite changing currents in both the internal, military sphere and the external, political sphere, the 1956 FM 27-10, with its affirmative, Nuremberg-era standard of command responsibility, remains the official keystone doctrine concerning the law of armed conflict. Minimalist standards of command responsibility, in line with those used in the case of My Lai and subsequently, have yet to be formally incorporated into American keystone doctrine. Rather, the rigorous definition of command responsibility remains doctrinally authoritative even as other doctrinal-guidance documents reveal a subtle trend toward the acceptance of a more relaxed standard.

The only way to end attitudes of impunity concerning torture and other war crimes among American military personnel is by adhering to the simple and commonsense military principle mandating that military commanders have an affirmative duty to protect the civilians and prisoners in the territory occupied or controlled by their forces, and that this duty extends to all military operations.

Dr. Lawrence P. Rockwood is a former U.S. Army counterintelligence officer. After his separation from active military service, he served as a Fellow for Center for International Policy, a consultant for the Institute for Policy Studies, Amnesty International's Military, Police, and Security Working Group, and as been contracted as a human rights instructor for the Department of the Army and Department of Defense. He received his Ph.D. in American Diplomatic History in 2005 from the University of Florida. He began and completed his undergraduate degree with the University of Maryland European Campus as an enlisted soldier in the US Army. He has recently served as an investigating commissioner for the International Tribunal on Haiti and a member of the Intelligence Ethics Section Organizing Committee, later established as the International Intelligence Ethics Association (IIEA), of the International Symposium for Military Ethics (ISME), formerly the Joint Services Committee On Professional Ethics (JSCOPE). He is the author of Walking Away From Nuremberg, Just War and the Doctrine of Command Responsibility, released by the University Of Massachusetts Press in October 2007, and is considered an international authority and has written numerous articles on the human rights aspects of military doctrine.

NOTES

[1]Charles C. Krulak and Joseph P. Hoar, “It's Our Cage, Too: Torture Betrays Us and Breeds New Enemies, The Washington Post, (Thursday, May 17, 2007), Page A17.