Saturday, May 08, 2004

Command Influence

There are two lingering concerns that I have after Secretary Rumsfeld's testimony in front of Congress. First, Rumsfeld suggested that the "command influence" doctrine somehow prevented him and other high-level DOD officials from learning too much about the claims of torture because their knowledge could somehow influence military prosecutions. That is a preposterous interpretation of the command influence doctrine. The Judge Advocate General School for the Air Force has published an instruction book entitled The Military Commmander and the Law that it uses to instruct commanders on the law and "it also serves as a handy reference guide for commanders in the field, providing general guidance and helping commanders to clarify issues and identify potential problem areas." That publication has a section dedicated to "Unlawful Command Influence." It explains what the doctrine prohibits:

A superior commander must not direct a subordinate commander to impose a particular punishment or take a particular action. To do so would constitute unlawful command influence because the decision was not that of the commander taking action or imposing punishment, but rather that of the superior commander.

The key consideration is whether a commander is taking disciplinary action based upon that commander?s own personal belief that the disciplinary action is appropriate or whether the commander is merely acquiescing to direction from a superior to impose the particular discipline.

It also explains what the doctrine does not prohibit:

Superior commanders are not prohibited from establishing and communicating policies necessary to maintenance of good order and discipline. They are also free to pass on their experience and advise subordinate commanders regarding disciplinary matters. Having done so, however, the superior commander must then step back and allow the subordinates to exercise their discretion in the matter.

It is simply ridiculous to assert that the command influence doctrine prohibits Secretary Rumsfeld or General Myers (or any other commander below them) from obtaining information regarding the conduct of its troops, particularly where that information is necessary to evaluate whether troop conduct complies with the obligations imposed by the Geneva Convention. Rumsfeld and others in the chain of command should not make statements that subordinates could interpret as suggesting how a prosecution should be resolved, but of course that does not restrict the flow of information in any way. Along those lines, as the Baltimore Sun explains in this article, Rumsfeld and Bush should be more cautious when making statements like "the wrongdoers will be brought to justice" and labeling the soldiers' behavior as "un-American." But the command influence doctrine simply does not encourage a commander to stick his head in the sand and ignore reports that detail unlawful troop conduct.

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