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Scott Horton

Abstract

One phrase from a memorandum issued by President George W. Bush early in the War on Terror offers an effective summary of a radically transformed military doctrine. “As a matter of policy,” Bush wrote, “the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The statement offered a sense of assurance of continuity of U.S. military doctrine, which many generations viewed as being at or near the vanguard in assuring high standards for the treatment of military prisoners. This was a false assurance. We have learned that the phrases “as a matter of policy”; “humanely”; “to the extent . . . consistent with military necessity”; and “consistent with the principles of Geneva” each acted as a dramatic limitation on or reversal of prior policy. “As a matter of policy,” meant that the Executive did not feel it was bound by law with respect to either the Geneva Conventions themselves or, perhaps more surprisingly, by the legislation enacted by Congress to implement them-- including the Uniform Code of Military Justice (“UCMJ”), the War Crimes Act, the Anti-Torture Act, and similar statutes. Policy was viewed as entirely a matter of Executive Branch discretion. Hence, “policy” may be held out to the public, but ignored whenever it suits the Executive to do so. “Humanely” did not mean either the definition provided in Common Article 3 of the Geneva Conventions of 1949, nor the term as used by U.S. Presidents since the famous injunction of George Washington to “[t]reat them with humanity” given in the wake of the Battle of Trenton. “Humanely,” as used by President Bush and his Administration, implies only a responsibility to provide food, medical attention, and a sanitary place to sleep. It in no way suggested an intention to treat a prisoner with basic decency, respect for his religious values, respect for the physical integrity of the person, or even a commitment not to use cruelty. Moreover, as we later learned from an investigative report by Lieutenant General Randall Mark Schmidt, interrogators and prison guards were consciously authorized to use treatment which was both “cruel” and “degrading” because the Administration had determined that the prohibition on cruel, inhuman, and degrading treatment contained in the Convention Against Torture was not applicable. Finally, we come to what may be the single most disturbing and far-reaching of all these exercises in legerdemain--the suggestion that the principles of the Geneva Conventions might be applied subject to the doctrine of “military necessity.” Investigations of events throughout the conflict, from Afghanistan to Iraq and Guantánamo, show that the term “military necessity” is being invoked to justify far-ranging deviations from the law of armed conflict. As this Article discusses, these uses are in fact inconsistent with the doctrine of military necessity as it was developed in the United States and is now almost uniformly accepted in the law of armed conflict. Instead, they constitute an attempt to resurrect a different concept, developed in nineteenth century Germany, called Kriegsraison. This change is nothing less than an effort to overturn 140 years of U.S. military doctrine and to substitute in its place conduct that the United States has historically branded as “criminal” and has in fact prosecuted.

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