Senior military lawyers lodged vigorous and detailed dissents in early 2003 as an administration legal task force concluded that President Bush had authority as commander in chief to order harsh interrogations of prisoners at Guantánamo Bay, Cuba, newly disclosed documents show.
Despite the military lawyers' warnings, the task force concluded that military interrogators and their commanders would be immune from prosecution for torture under federal and international law because of the special character of the fight against terrorism.
In memorandums written by several senior uniformed lawyers in each of the military services as the legal review was under way, they had urged a sharply different view and also warned that the position eventually adopted by the task force could endanger American service members.
The memorandums were declassified and released last week in response to a request from Senator Lindsey Graham, Republican of South Carolina. Mr. Graham made the request after hearings in which officers representing the military's judge advocates general acknowledged having expressed concerns over interrogation policies.
The above is from Neil A. Lewis' "Military's Opposition to Harsh Interrogation Is Outlined" in this morning's New York Times.
Lewis' article would benefit from the inclusion of many other resources. We'll note Jane Mayer's "The Experiment" (The New Yorker, July 11& 18, 2005):
In a memo to General Richard B. Myers, the chairman of the Joint Chiefs of Staff, [General James T.] Hill wrote that he was "uncertain whether all the techniques" were "legal." He expressed concern that some of them might violate the federal statue against torture. Another obvious obstacle was the Uniform Code of Military Justice, which prohibits U.S. forces from engaging in "cruelty," "maltreatment," or "oppression" of prisoners, and bars both physical assualt and threats of injury.
Pentagon lawyers, however, tried to find ways around this, documents released by the Administration show. In October, 2002, Diane Beaver, a lawyer at the Pentagon, wrote a memo to superios, arguing that waterboarding might "be permissable if not done with the specific intent to cause prolonged mental harm, and absent medical evidence that it would." She added, "Caution should be exercised with this method, as foreign courts have already advised about the potential mental harm that this method may cause." She noted that physical contact with the detainee "will technically constitute an assault under . . . UCMJ." But Beaver's memo implied that if an interrogator were to obtain "immunity" from command authorities in advance, the laws criminalizing waterboarding and other rought techniques could be circumvented. There is no evidence that anyone in the chain of command, apart from Hill, objected to the content of Beaver's memo. (page 68)
That same month [January, 2003] Rumsfeld suspended his earlier authorization of harsh interrogation methods at Guantanamo. He put together a working group on the subject of interrogation, which, on March 6, 2003 drafted a memo stating that to continue using such aggressive techniques would require Presidentail authorization. There is no evidence to date that such authorization was granted.
Eight days after the release of the draft memo, the Justice Department's Office of Legal Counsel released a classified legal opinion clarifying the Administration's policy on interrogation. Vice-Admiral Church was allowed to read the document, but he was not given a copy. According to Church, the memo's language was "virtually identical" to an August, 2002, memo approved by Jay S. Bybee, then the assistant attorney general, in which torture was defined as anything cuasing pain comparable to "physical injury such as organ failure, impairment of bodily function, or even death."
The pressure on interrogators, meanwhile, particularly during 2002 and 2003, remained intense. The military-intelligence officer who was familiar with practices at Guantanamo told me that the order from above was "Get me results!" He said, "There was huge frustration. General Miller really unleashed a lot of aggressive tactics." He added, "At the time, we didn't even understand what Al Qaeda was. [Note: emphasis in the article.] We thought the detainees were all masterminds. It wasn't the case. Most of them were just dirt farmers in Afghanistan." (page 70)
(Jane Mayer's New Yorker article "The Experiement" isn't available online. A summary of "The Experiment" can be found here and it also includes links to other resources including Democracy Now!'s two part interview with Mayer.)
Now we can semi-turn to an ABC report, semi-because you can no longer find it (easily anyway) at the ABC website. Via civilrights.org, here's an excerpt of Jake Tapper and Clayton Sandell's
"Advice Rejected:"
"Lawyers from the military's Judge Advocate General's Corps, or JAG, had been urging Pentagon officials to ensure protection for prisoners for two years before the abuses at Iraq's Abu Ghraib prison came to light, current and former JAG officers told ABCNews. But, the JAG lawyers say, political appointees at the Pentagon ignored their warnings, setting the stage for the Abu Ghraib abuses, in which military police reservists photographed each other subjecting Iraqi prisoners to physical abuse and sexual humiliation. As the military's uniformed lawyers, JAG officers are in charge of instructing military commanders on how to adhere to domestic and international rules regarding the treatment of detainees. 'If we — "we" being the uniformed lawyers — had been listened to, and what we said put into practice, then these abuses would not have occurred,' said Rear Admiral Don Guter (ret.), the Navy Judge Advocate General from 2000 to 2002. Specifically, JAG officers say they have been marginalized by Douglas Feith, undersecretary of defense for policy, and William Haynes II, the Pentagon's general counsel, whom President Bush has nominated for a judgeship on the United States Court of Appeals for the Fourth Circuit.
And we'll note Seymour Hersh's "The Gray Zone" (The New Yorker):
In 2003, Rumsfeld's apparent disregard for the requirements of the Geneva Conventions while carrying out the war on terror had led a group of senior military legal officers from the Judge Advocate General's (jag) Corps to pay two surprise visits within five months to Scott Horton, who was then chairman of the New York City Bar Association’s Committee on International Human Rights. "They wanted us to challenge the Bush Administration about its standards for detentions and interrogation," Horton told me. "They were urging us to get involved and speak in a very loud voice. It came pretty much out of the blue. The message was that conditions are ripe for abuse, and it’s going to occur." The military officials were most alarmed about the growing use of civilian contractors in the interrogation process, Horton recalled. "They said there was an atmosphere of legal ambiguity being created as a result of a policy decision at the highest levels in the Pentagon. The jag officers were being cut out of the policy formulation process." They told him that, with the war on terror, a fifty-year history of exemplary application of the Geneva Conventions had come to an end.
There's more availabe in the public record.
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