Legislating Military Doctrine: Congressional Usurping of Executive Authority Through Detainee Interrogations

Extract

---

Legislating Military Doctrine: Congressional Usurping of Executive Authority Through Detainee Interrogations

2007] LEGISLATING MILITARY DOCTRINE 97

LEGISLATING MILITARY DOCTRINE: CONGRESSIONAL USURPING OF EXECUTIVE AUTHORITY THROUGH

DETAINEE INTERROGATIONS

MAJOR JAMES A. BARKEI*

I. Introduction

Congress must restrain itself from legislating military doctrine and permit the Executive to exercise its authority in control of military operations, including detainee interrogations. Recent passage of the Detainee Treatment Act of 2005 (DTA) signifies Congress's foray into the realm of legislating military doctrine and operations.1 Congress's overreaching arm endangers the nation's military by restricting doctrinal development in the face of an ever-changing enemy. The President of the United States, as the head of the Executive branch of government that includes the Department of Defense (DOD) and its military forces, bears the responsibility for directing the manner in which military operations implement doctrine, including detainee interrogations.2 The current U.S. Army Field Manual (FM) 2-22.3, Human Intelligence Collector Operations, states in its preface that the tactics, techniques, and procedures within the FM exist in accordance with the DTA.3 Through

this Act, Congress effectively stifled the creativity and adaptability of the military, in essence freezing interrogation techniques.4

The nation's military requires the ability to employ adaptable processes to overcome the challenges of the chaotic and unpredictable battlefield in the twenty-first century.5 While the U.S. Armed Forces stand glued to their now-limited interrogation doctrine, a rapidly changing enemy modifies its behavior to thwart known tactics, techniques, and procedures that bind the operations of the military.6 The DTA further compounds the disadvantage faced by the U.S. Armed Forces because many of its foes do not comply with international legal obligations under the law of armed conflict.7 Enemies that fail to obey the rules of war, coupled with legislative restrictions on military operations, could lead to failure in the Global War on Terror (GWOT).8

The Executive must be able to rely on the office's decision-making powers to effectively and successfully wage war. While the political structure of the United States will always leave the Executive branch

subject to being second-guessed by Congress, and will always remain accountable to the people, the office's unitary decision-making power and expediency are tailor-made for military doctrine and interrogations.9

When the policies and execution of the nation's laws and military operations do not exactly conform to the will of Congress, this does not mean that the Executive lacks power to implement the political decisions made.10 Instead, the conflict raises the matter of separation of powers, a struggle existing since the nation's inception.11 Discerning the superiority of power in governing military operations, particularly when the Executive's position is contrary to that of Congress, is neither clear nor easy.12

This article discusses the issue of control over the military and its operations between the Executive and Congress, an issue not new to American politics.13 The study finds its base in Articles I and II of the Constitution,14 and examines the historical precedence of congressional and Executive powers, including the Executive's inherent authority.15 As expected, the Framers' construct creates an area of concurrent authority between the Executive and Congress with respect to governance of the U.S. Armed Forces, as both branches enjoy such enumerated powers.16

The deductive exercise shows that the Supreme Court and history provide support for the Executive's superior authority in governing how the military conducts its operations, including development and implementation of its doctrine.17 Consequently, this analysis concludes that the Executive possesses greater constitutional authority as the

Commander in Chief and guardian of the Constitution than Congress regarding the control of military operations and its corresponding doctrine.18

II. The Role of Doctrine in Military Operations

The DOD defines military doctrine as "[f]undamental principles by which the military forces or elements thereof guide their actions in support of national objectives. It is authoritat...

See the full content of this document

---