Bush binds the hands he seeks to free

Geoffrey S. Corn, Lt. Col. US Army (Ret.), professor, South Texas College of Law, writing in Jurist:

The Field Manual no longer represents “what right normally looks like”; it now represents “the only methods you are permitted to use.” These techniques have thus been “frozen” by law, a result inconsistent with the very concept of “doctrine.”

While the proponents of the Manual have put the proverbial “brave face” on the end result of their efforts, eliminating tactical innovation from interrogators “toolkit” is an unfortunate byproduct of the loss of confidence created by the President’s policies. Even assuming the methods adopted by the Manual are considered both effective and consistent with the principle of humane treatment, as they no doubt are, they are also now restrictive in nature, a result that was not inevitable and could have been avoided. While the Manual does indicate that the techniques may be periodically revised, those revisions will not be developed in accordance with the tried and true method of doctrine development, but instead will have to rely on analysis detached from operational reality.

This is a high price to pay for the President’s decision to exclude detainees from the protection of Common Article 3. To the knowledge of this author, Congress has never before felt compelled to transform doctrine into a binding legal mandate. But the persistent efforts of the President’s advisers to circumvent this most basic obligation set the conditions for this unprecedented method of ensuring such compliance. The end result is that interrogators are now deprived of the opportunity to use their initiative and creativity, within the limits of the law of war, to accomplish their important mission; a result that could have easily been avoided if the legal analysis relied on by the President had not created such a loss of confidence in his decisions – a loss of confidence that is again forcing prominent Senators to make an even more determined effort to preserve the integrity of the law of war.