White House Lawyers vs. Military Lawyers on Torture
One thing that’s also worth noting in the debate over the Bush Administration’s torture program is that while the Office of Legal Counsel did sign off on the techniques used (with memos so bad that the lawyers in question are soon to be under investigation for a breach of their professional duties), the fact remains that the Administration also sought the expertise of military lawyers. And then promptly ignored their findings. This is ably summarized in the Senate Armed Services Committee report released last year. Here are some important snippets:
[Department of Defense’s Criminal Investigative Task Force]’s Chief Legal Advisor wrote that certain techniques in GTMO’s October 11, 2002 request “may subject service members to punitive articles of the [Uniform Code of Military Justice],” called “the utility and legality of applying certain techniques” in the request “questionable,” and stated that he could not “advocate any action, interrogation or otherwise, that is predicated upon the principle that all is well if the ends justify the means and others are not aware of how we conduct our business.”
The Chief of the Army’s International and Operational Law Division wrote that techniques like stress positions, deprivation of light and auditory stimuli, and use of phobias to induce stress “crosses the line of ‘humane’ treatment,” would “likely be considered maltreatment” under the UCMJ, and “may violate the torture statute.” The Army labeled GTMO’s request “legally insufficient” and called for additional review.
The Navy recommended a “more detailed interagency legal and policy review” of the request. And the Marine Corps expressed strong reservations, stating that several techniques in the request “arguably violate federal law, and would expose our service members to possible prosecution.” The Marine Corps also said the request was not “legally sufficient,” and like the other services, called for “a more thorough legal and policy review.”
The bottom line? These legal opinions were rejected by Secretary of Defense Rumsfeld.
On January 15, 2003, the same day he rescinded authority for GTMO to use aggressive techniques, Secretary Rumsfeld directed the establishment of a “Working Group” to review interrogation techniques. For the next few months senior military and civilian lawyers tried, without success, to have their concerns about the legality of aggressive techniques reflected in the Working Group’s report. Their arguments were rejected in favor of a legal opinion from the Department of Justice’s Office of Legal Counsel’s (OLC) John Yoo.
Shortly after this, torture techniques were re-authorized by Rumsfeld. And they continued at both Gitmo and in Abu Ghraib.
It’s also worth noting in the Armed Services report that the OLC memos by Yoo, Bybee et al. were actually rejected by the Office of Legal Counsel in 2003. Additionally, the Department of Defense was notified at that time that it should not rely on those opinions.
As the events at Abu Ghraib were unfolding, Jack Goldsmith, the new Assistant Attorney General for the Office of Legal Counsel was presented with a “short stack” of OLC opinions that were described to him as problematic. Included in that short stack were the Bybee memos of August 1, 2002 and Mr. Yoo’s memo of March 2003. After reviewing the memos, Mr. Goldsmith decided to rescind both the so-called first Bybee memo and Mr. Yoo’s memo. In late December 2003, Mr. Goldsmith notified Mr. Haynes that DoD could no longer rely on Mr. Yoo’s memo in determining the lawfulness of interrogation techniques.
It is worth noting that despite the fact that the DoD was notified that Yoo, Bybee, and Bradbury’s memos were not to be relied upon anymore, torture continued under Rumsfeld’s watch.
Read the whole report. And my hat’s off to the many, many brave members of the United States Armed Forces who did not sit idly by while this was going on. They did their duty in notifying the chain of command that interrogators were being ordered to violate the law. Their notifications were clearly ignored.