Military JAGs Opposed Harsh Interrogation Techniques

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Military JAGs Opposed Harsh Interrogation Techniques

James Joyner | Thursday, July 28, 2005

Many senior JAG officers documented their oppositin to harsh interrogation techniques at GuantÃ¡namo Bay, according to the findings of a task force led by Senator Lindsey Graham.

Military’s Opposition to Harsh Interrogation Is Outlined (NYT)

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 GuantÃ¡namo 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 documents include one written by the deputy judge advocate general of the Air Force, Maj. Gen. Jack L. Rives, advising the task force that several of the “more extreme interrogation techniques, on their face, amount to violations of domestic criminal law” as well as military law.
General Rives added that many other countries were likely to disagree with the reasoning used by Justice Department lawyers about immunity from prosecution. Instead, he said, the use of many of the interrogation techniques “puts the interrogators and the chain of command at risk of criminal accusations abroad.” Any such crimes, he said, could be prosecuted in other nations’ courts, international courts or the International Criminal Court, a body the United States does not formally participate in or recognize.

Other senior military lawyers warned in tones of sharp concern that aggressive interrogation techniques would endanger American soldiers taken prisoner and also diminish the country’s standing as a leader in “the moral high road” approach to the laws of war.

The memorandums provide the most complete record to date of how uniformed military lawyers were frequently the chief dissenters as government officials formulated interrogation policies. “These military lawyers were clearly disturbed by the proposed techniques that were deviations from past practices that were being advocated by the Justice Department,” said Senator Graham, himself a former military lawyer.

Military lawyers are lawyers first, soldiers second. Their position with respect to the use of force or similar issues is always quite cautious, perhaps too much so in many instances.

That said, their position here is largely correct. While I find the idea that American soldiers would be tried by the absurd ICC laughable, there’s little doubt that the techniques used at GuantÃ¡namo and elsewhere provided much more propaganda value to the enemy than intelligence value to us.

About the Author: James Joyner is the publisher of Outside the Beltway and the managing editor of the Atlantic Council. He's a former Army officer, Desert Storm vet, and college professor with a PhD in political science from The University of Alabama. He lives just outside the Beltway in Alexandria, Virginia with his wife and infant daughter.

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