Draft EO on Interrogation: Should We Expect the Military to Protect Us from Ourselves?

Although the White House is now disavowing the draft executive order on detention and interrogation, the document has revived debate on the legal prohibitions against torture and on President Trump’s campaign promise to “bring back waterboarding and a hell of a lot worse.” During the campaign, some retired senior officers, including former CIA director General Michael Hayden, suggested that the military would or should refuse to follow orders to torture or commit other acts such as bombing terrorists’ families. While that might be true for clearly illegal acts, beyond those very limited cases our uniformed military will follow the President’s orders. We wouldn’t want it any different.

The International Military Tribunal at Nuremberg rejected the defense of superior orders, but the scope of that rejection was quite narrow. In the High Command Cases, the Tribunal wrote, “Orders are the basis upon which any army operates. It is basic to the discipline of an army that orders are issued to be carried out. Its discipline is built upon this principle. Without it, no army can be effective and it is certainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionable points of legality. Within certain limitations, he has the right to assume that the orders of his superiors and the State which he serves and which are issued to him are in conformity with International Law.” This passage is cited in the recent Department of Defense Law of War Manual, echoing the same view that subordinates are not required to screen orders for questionable legality, but should assume that they are lawful unless they require a “clearly illegal” act.

Is torture a “clearly illegal” act? To answer that question, we must go back down the dark road of the memos defining torture. The worst excesses of the “bad old days”—waterboarding and other physically abusive acts—are probably impossible to justify under existing law and in light of the outrage that followed revelations in the SSCI report on the CIA’s secret detention and torture program. US law and policy now require that interrogations comply with the US Army US Army Field manual on interrogation, and that any amendment to the field manual “complies with the legal obligations of the United States” and does not involve the threat or use of force (PL 114-92 Sec 1045.6.a). The Detainee Treatment Act (DTA), which covers both interrogation and detention, prohibits “cruel, inhuman, or degrading treatment or punishment,” as defined under the US reservations and declarations to the Convention Against Torture (CAT).

Unfortunately, while the intent of the law is clear, the language would not necessarily protect against re-introducing sleep deprivation, exposure to extreme temperatures, “stress positions” or other forms of mistreatment from the era of “enhanced interrogation” that do not use or threaten force, sometimes referred to as “torture lite.” The Army field manual, for example, limits sleep deprivation and temperature only in the context of the specific interrogation technique of physical or field expedient separation, used to prevent detainees from sharing information with one another. Much in the same manner that Major General Geoffrey Miller infamously asked guards to “soften up” detainees outside the interrogation room, a clever lawyer could argue that sleep deprivation, extreme temperature, or stress conditions are a condition of confinement, rather than an interrogation technique. Further, a detainee can be kept awake for periods of up to 40 hours without violating the restrictions in the field manual, with no limit on the number of such 40-hour periods which may be imposed, so long as the detainee receives 4 hours of sleep every 24 hours. The US CAT reservations and declarations which define cruel, inhuman, and degrading treatment under the DTA do not mention sleep, temperature, or stress positions.

Is an order to keep someone awake for extended periods “clearly illegal?” Depending on the circumstances, it may well be arguably—instead of clearly—illegal. If an order is arguably illegal, making that argument is not the job of the uniformed military.

Defense Secretary James Mattis has come out strongly against torture, on both practical and moral grounds, and President Trump has stated that, while he still believes torture to be effective, he will allow Mattis to override him, “because I am giving [Mattis] that power.” This indicates the President’s disinclination to torture is based solely on his sufferance of Mattis’ desires, rather than being convinced of the ineffectiveness of torture by scientific evidence or expert opinion and the immorality of torture by its very nature. That is a fairly weak protection against returning to torture and is subject to capricious change. Much like the President has defended a temporary ban on the admission of immigrants and refugees from seven Muslim majority countries as being substantively different than his promise to “shut down all Muslims” entering the United States, it is not hard to envision a reinstatement of “torture lite” being justified as substantively different from torture.

As Jessica Wolfendale perceptively wrote in the journal Ethics and International Affairs in 2009, “The language of torture lite…corrupts public discourse by creating the illusion that there exists a special category of torture that is professional, restrained, and far removed from the brutal practices of authoritarian and tyrannical regimes. This illusion allows us to replace the question of whether we should use torture with the question of what kinds of torture we should use. In a world in which torture is being seriously discussed as a legitimate weapon in the fight against terrorism, such a consequence is deeply troubling.”

A policy re-instating “torture lite” while explicitly not calling it torture, would put Mattis and other senior leadership in a bind. As Jay Williams has written, Mattis finds himself in the challenging position of trying to balance A.O. Hirschman’s alternatives of exit, voice, and loyalty in responding to Trump policy proposal or announcements with which he disagrees. If confronted with an order to return to “torture lite,” would he and other senior Defense Department officials follow the lead of Alberto Mora and senior DoD civilians who refused to implement aggressive policies that the Department of Justice had deemed legal in 2003? Or would he consider the fact that he has apparently dissuaded the President from directing a return to waterboarding and physically abusive techniques enough of a victory to justify staying on and trying to influence policy from within?

Unlike 2003, when key advisory positions were filled with people who had been in office long enough to feel comfortable speaking out, key positions such as the Department of Defense General Counsel, and the General Counsels for the service departments are currently vacant. As last week’s departure of most of the State Department’s senior administrative staff showed, even mass resignations and departures have a short half-life in the current news cycle. If Mattis or others were to leave the Department, they would likely be replaced by nominees more attuned to the President’s views. And unlike in 2003, there is no effort by the current administration to keep their preferences regarding torture secret, so while the departure of a Cabinet secretary on a matter of principle might be embarrassing so early in an administration, the principle in question is one on which the President has been clear and forthcoming throughout his candidacy and administration.

Recent conflicts have seen an expanded role for lawyers in military operations. The Army today has over three times as many uniformed lawyers per soldier as it did in 1968 at the height of the Vietnam conflict. Some might think that lawyers are there to watch for and curb overzealous actions, or to debate the legality of orders. But the reality is that the task of most operational lawyers is to advise commanders how far they may lawfully go under existing law and policy. Especially when confronted with adversaries who hide behind constraints on the use of force such as terrorists or insurgents who hide among civilian populations, the military has often turned to the law not for limitations but to justify expanding the scope of their action within the bounds of carefully parsed rules. The principles of professional military ethics are broad, but the rules of law can be interpreted narrowly. When the narrow rules are satisfied, an action can be justified as legal. Military commanders confronted with an adversary who exploits constraints are likely to ask “is this permissible” rather than “is this right?”

Some may find this assertion disturbing. The military is a trusted, even revered, institution in our society. But that trust is founded on the confidence that the military will faithfully follow their orders, rather than pursuing their own agenda. Disobedience or resignation may seem high-minded, but who decides where to draw the line on what type of policies spark this response? Torture? Invading Iraq? Gays serving openly in the military? Budget cuts? When obedience is conditional on agreement with policy, the military is no longer under civilian control. The specter of mass resignations by uniformed military over questions of policy would create a civil-military crisis more serious than anything this country has experienced since the Civil War. We want our generals to be generals, not judges or legislators.

Torture is morally reprehensible, whether it is waterboarding, sleep deprivation, stress positions, or other “torture lite” techniques. But when it is framed to not be “clearly illegal,” the military is obligated to carry it out orders. Samuel Huntington, whose vision of military professionalism and objective civilian control of the military exerts a powerful influence in the US, foresaw this challenge and was clear about what duty requires:

The soldier cannot surrender to the civilian his right to make ultimate moral judgments. He cannot deny himself as a moral individual. Yet the problem is not as simple as this. For politics, as well as basic morality may be involved here. The statesman may well feel compelled to violate commonly accepted morality in order to further the political interests of the state. That this is frequently the case, there is no denying. …For the officer this comes down to a choice between his own conscience on the one hand, and the good of the state, plus the professional virtue of obedience upon the other. As a soldier, he owes obedience; as a man, he owes disobedience. Except in the most extreme instances it is reasonable to expect that he will adhere to the professional ethic and obey.

(Huntington, The Soldier and the State. p.78). Huntington’s notion of the duty of obedience was so strong that he criticized the Nazi officers who plotted against Hitler for diminishing their professionalism. To be effective on the modern battlefield, our military has become adept at following their orders as far as the law allows. This means that if there are actions we don’t want them to take, we must be clear and specific in defining those actions in the law. Unless an order is “clearly illegal,” our military is bound to do its duty and obey to the fullest extent of the law.

If President Trump seeks to return to practices we have rejected, the defense lies with voters demanding that Congress pass clear and specific law against it. The military cannot save us from the moral stain of torture. Only we can.