The McCain Amendment Compromise: Has the Message Been Diluted?

The highly publicized McCain Amendment is now law. In order to secure the commitment of the President to support this statutory codification of the principle of humane treatment, Senator McCain agreed to the inclusion of a “superior orders” defense. The compromise legislation therefore provides that in any criminal or civil action against any employee of the armed forces or any other government agency for violation of this “humane treatment” mandate, obedience to orders may be raised as a defense. Accordingly, unless the activity forming the basis of the allegation is so obviously improper as to lead a person of “ordinary sense and understanding” to realize it was illegal, “just following orders” serves as an absolute defense. In addition, the reliance by the employee on advice of counsel is explicitly included in the legislation as an “important factor” in determining whether a person of “ordinary sense and understanding” would have recognized the action as illegal.

Proponents of principle of humane treatment are justified in their satisfaction that this legislation transforms what has heretofore been an executive policy into a legal mandate. However, it is impossible to ignore the reality is that this provision will discourage subordinates from questioning the propriety of interrogation tactics, techniques, and procedures they are directed to implement so long as that direction comes with the “legally sufficient” endorsement. Unfortunately, this compromise has undermined the important objective of ensuring all detainees in U.S. custody are treated humanely at all times. Instead of emphasizing the “bright line” nature of the principle of humane treatment, the compromise provision has instead validated the Bush administration assertion that when interrogating a terror suspect, the line between humane and inhumane treatment is blurry, and maximum discretion must be preserved for extracting critical information. While this may seem to some observers as a logical reconciliation of the humane treatment obligation and the necessities of national security policy, one should question whether it is consistent with the fundamental principles of the law of armed conflict.

Obedience to orders is without question an essential aspect of effective military operations, and any system of military discipline must ensure subordinates treat all orders with a powerful presumption of legality. This was undoubtedly a factor in the compromise to include a defense for subordinates who obey orders subsequently determined to be unlawful. However, the law of armed conflict relies upon the fundamental principle that the obligation of obedience is not without limit. Every service-member and civilian supporting military operations bears an individual responsibility to first question, and if necessary disobey any order that would result in a violation of the law. There is no question that such a decision to disobey an order carries substantial risk. However, it is a risk that duty imposes upon members of the armed forces and associated civilians. In no area is this duty more profound than with respect to the obligation to respect and protect individuals who are “out of combat”, and it is the principle of humane treatment that provides the standard that guides the execution of this duty. Neither the importance of the intelligence requirement being pursued, the affiliation of the detainee, nor the level of authority directing the interrogation alters this standard.

Historically, commanders were expected to serve as the bulwark against any derogation of humanitarian protections by subordinates. This responsibility extended to ensuring subordinates were properly trained and supervised to ensure “bright line’ rules were not endangered in the heat of battle. The express inclusion of a superior orders defense in the compromise legislation, complete with the emphasis that prior legal review will almost certainly provide subordinates “top cover” in all but the most extreme cases, will have the effect of diminishing the probability that subordinates will exercise independent judgment in assessing the propriety of carrying out a questionable interrogation or detention procedure. As a result, a critical component of compliance with the law of armed conflict in the execution of military operations has been degraded.

The McCain amendment was intended to emphasize the indelible nature of the humane treatment obligation, and the duty of all subordinates – especially those in command – to question orders inconsistent with their basic understanding of how any human should be treated. The initiative to codify this obligation in domestic law reflected the rejection of unlimited presidential authority to decide when and to what extent the principle of humane treatment applied to detainees. Contrary to these objectives, the compromise legislation has essentially confirmed the proposition that it is impossible to create a bright line humane treatment standard, and has endorsed a “top cover” type mentality for future detention and interrogation operations. This is unfortunate, for the obligation to treat all detainees humanely, even those suspected of affiliation with Al Qaeda, is so basic that subordinates should be taught that any order that appears in violation of this principle should be questioned, even when the orders come from the highest levels of command with approval by senior administration lawyers.

Finally, thanks to Julian and Roger for the privilege of guest blogging.