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Legislating Law of War Compliance: A High Price to Pay

JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.) and former Special Assistant to the Judge Advocate General for Law of War Matters, now a professor at South Texas College of Law, says that the recently published Army Field Manual outlining permissible interrogation techniques reflects the extraordinary measures Congress has been forced to rely on to ensure compliance with the most basic principles of the law of war; it responds to the loss of confidence in the President's interpretations of this law, but it also distorts the longstanding relationship between military doctrine and tactical initiative....

The current impasse between President Bush and Senate Republicans over the meaning of Common Article 3 to the Geneva Conventions is the latest example of the administration's loss of credibility over the issue of detainee treatment. President Bush is now reaping the bitter harvest from seeds sown when he adopted the decisions advocated by administration legal and policy advisers apparently determined to maximize executive discretion, even at the expense of compliance with the most basic obligations relating to the treatment of captured and detained enemy personnel.

Ironically, the same loss of credibility was also manifested recently in the adoption by the Army of the new Field Manual on Human Intelligence — a move that received widespread praise among administration critics. This Manual includes Army doctrine on interrogation techniques — called "approach" techniques. Many observers praised the Army for rejecting many of the "aggressive" interrogation tactics that became lightening rods for the treatment of Guantanamo detainees, and for forgoing the originally conceived secret annex to the Manual. Pursuant to the Detainee Treatment Act, these techniques are now, as a matter of law, the controlling standard for all Services within the Department of Defense. How then, does this "positive" development in the treatment of detainees reflect a loss of credibility for the administration?

The answer to this question lies in the unprecedented transformation of military doctrine into legal obligation. The introduction to this Field Manual includes a statement that in accordance with the Detainee Treatment Act, the only permissible interrogation techniques for the U.S. armed forces are those provided by the Manual. To understand why this is so unusual, and why it is also a manifestation of the profound loss of confidence in the approach adopted by the President to deal with detainees, it is important to understand what doctrine is and what it is not.

Doctrine is best understood as a statement of "what right normally looks like." The development of doctrine is normally not a "top down" driven process. Instead, doctrine evolves from the innovation and creativity that occurs at the tactical level of operations. Soldiers develop ideas of "what works", and these ideas are captured in lessons learned and after-action reports. Doctrine development is the process of analyzing and refining these ideas and adopting them as the Army statement of "how to do it."

But doctrine is not intended to "freeze" the process of innovation. Because it is best understood as a statement of Army-endorsed tactics, techniques, and procedures, doctrine is best understood as a starting point for tactical planning and execution. Tactical innovation is then relied upon to adjust doctrine to the situation of the battlefield to find the most effective situational approach to accomplish a given mission. In fact, one of the principal weaknesses of the Soviet military monolith NATO forces always anticipated being able to exploit was their stoic adherence to doctrine.

Of course, innovation on the battlefield is not without limit, and I am not suggesting that no such limits exist in the realm of interrogation techniques. Numerous factors limit tactical innovation, the law being one such factor. This has always been acknowledged in U.S. doctrine by the clear and simple requirement that all activities must comply with the law of war. Indeed, for decades this statement of obligation was sufficient to ensure the methods of interrogation developed by U.S. forces were consistent with the basic obligation of humane treatment. Doctrine provided the start point, but interrogators were not prohibited in developing alternate or modified "approach" techniques, so long as those techniques complied with the law of war. Unfortunately, legal opinions that provided the foundation for Bush administration policies related to the treatment of "enemy combatants" eviscerated the effectiveness of this traditional balance between tactical innovation and legality.

When the President adopted the conclusions of Department of Justice lawyers that excluded post 9/11 detainees from the protections of the law of war, he set in motion a chain of events that created increasing concern among lawmakers that the President's policies failed to comply with the most fundamental right of all detainees — the right to be treated humanely. This in turn ultimately led to the Detainee Treatment Act, which justifiably sought to impose limits on the ability of the President to deviate from this obligation. However, because the longstanding practice of compliance with the principles of the Geneva Conventions had obviously proved insufficient to limit interrogation techniques, Congress instead applied its own form of "tactical innovation" by mandating that only those interrogation techniques listed in the Army Field Manual would be permitted in the future.

While this method undoubtedly provides the benefit of ensuring compliance with the principle of humane treatment, from a military perspective it is unfortunate that Congress was forced to adopt such an extraordinary approach to achieve this goal. This response to the loss of confidence in the Bush administrations willingness to comply with this long understood limit on "tactical innovation" has radically altered the function of doctrine. 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.

Geoffrey S. Corn is a Professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters.


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