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

• Author: Major James A. Barkei
• Pages: 06

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 authoritative but requires judgment in application."19 Military commands establish these fundamental principles and procedures to ensure that units adhere to a common operating guide and operate efficiently.20 Tactical operations and training produce lessons learned regarding successes and failures of operations.21 Military leaders analyze and refine the lessons learned and then publish them for adoption by military units as doctrine.22 While doctrine provides certain rules or methods by which to conduct operations, judgment and initiative remain a commander's responsibility and essential tool.23 Military doctrine should be dynamic, reflecting

operational missions and necessities based on the various threats faced.24

"History, training experiences, contemporary conflict, technological developments, and emerging threats to national security drive changes in doctrine."25 Nowhere in this list of driving forces do we find Congress, and the basic tenets in development of military doctrine in the twenty-first century have not changed since the period of the great World Wars of the twentieth century.26

Doctrine drives the approach and methods of detainee interrogations.27 It can range from broad military objectives and operations, such as joint warfare among the various U.S. military services,28 to a narrow operation such as human intelligence collection.29 Doctrine plays a role in planning military operations by guiding how the military will conduct the operation, e.g., how the military will fight or collect intelligence, in order to implement its strategy and achieve its objective.30 It serves as the reference point for military servicemembers

to begin planning and executing their operations, and Congress hindered its development with the DTA.31

During planning, doctrine incorporates "the principles of war, operational art, and elements of operational design for successful military action, as well as contemporary lessons that exploit US advantages against adversary vulnerabilities."32 This incorporation should involve creative application of doctrine to the operation.33 Once the operation is underway, servicemembers apply doctrine to the threats, obstacles, and circumstances encountered on the battlefield during mission execution to achieve success.34

Military doctrine generally guides, or even dictates, how a member of the armed forces will respond to a situation, such as interrogation of a detainee.35 On a symmetric or static battlefield, servicemembers may focus on the doctrinal methods taught and implemented during their training to address the threat or objective.36 However, when the situation becomes fluid or asymmetric, doctrine may not effectively address the issue or threat.37 Congress's passage of the DTA in 2005 dictated a static response to a fluid situation, or implemented a symmetric approach for an asymmetric threat.38 The doctrinal interrogation techniques that military members rely upon, now restricted in development by law, may not adequately address the threat or create the conditions for mission accomplishment.39 Congress bound the entire spectrum of military interrogations into one paper volume of an Army FM. Rather than

allowing the Army's leaders and Soldiers to develop and implement necessary interrogation techniques and strategies, a bureaucratic body choked the development of doctrine by tying it to a document to which change generally occurs at a glacial pace. By the time the Army develops and vets a new interrogation procedure through the publication process of an FM subject to congressional intervention under the DTA, and then has it trained and implemented in real operations, the threat spurring that change will likely have already morphed.

Noting that the Army released a new FM on detainee interrogations after passage of the DTA without additional legislation, one may believe that the Army retains the ability to change doctrine as necessary.40

However, the key issue remains that the military cannot develop and implement any doctrine outside the bounds of the DTA.41 Even if the military proposed such changes, Congress must review and approve those changes, inevitably taking an extended period of time;42 time that servicemembers on the battlefield may not be able to dedicate to seeking a change in the tactics, techniques, and procedures necessary to win the battle.

Doctrine is not strategy or policy, but it is closely related to these tenets as it "serves to make U.S. policy and strategy effective in the application of U.S. military power."43 Military leaders apply doctrine to

operations while keeping national security strategy principles in mind.44

International law also plays a significant part in the military doctrine of interrogations by setting the parameters for doctrine development and implementation.45 The Geneva Conventions hold much of the international law forming the basis of doctrine.46 Unfortunately, several decades have passed since the Geneva Conventions were signed. Looking at the nature of the GWOT, the U.S. Armed Forces currently conduct operations using tactics, techniques, and procedures that have outpaced the dated international laws as well as military doctrine.47

Now, with Congress also placing itself in the process of doctrine development, military interrogation doctrine will likely continue to fall off the pace of the changing enemy.48

III. The Detainee Treatment Act

In response to dramatic reports of detainee abuse and a perception that the highest levels of the U.S. Executive branch of government authorized and promoted questionable interrogation techniques, Congress passed the DTA.49 Fortunately, the interrogation practices that resulted in acts of inhumane treatment by...