Policy Objectives Trumped Law On Detainee Treatment

Policy Objectives Trumped Law On Detainee Treatment
June 18th, 2008  
Team Infidel

Topic: Policy Objectives Trumped Law On Detainee Treatment

Policy Objectives Trumped Law On Detainee Treatment
Miami Herald
June 18, 2008
Pg. 1
Guantanamo: Beyond The Law
A team of five government attorneys reinterpreted or tossed out the U.S. and international laws that would have afforded detainees legal protections.
By Tom Lasseter
Part four of an exclusive series.
The framework under which detainees were imprisoned for years without charges at Guantánamo and in many cases abused in Afghanistan wasn't the product of American military policy or the fault of a few rogue soldiers.
It was largely the work of five White House, Pentagon and Justice Department lawyers who, following the orders of President George Bush and Vice President Dick Cheney, reinterpreted or tossed out the U.S. and international laws that govern the treatment of prisoners in wartime, according to former U.S. defense and Bush administration officials.
The Supreme Court now has struck down many of their legal interpretations. It ruled last Thursday that preventing detainees from challenging their detention in federal courts was unconstitutional.
The quintet of lawyers, who called themselves the ''War Council,'' drafted legal opinions that circumvented the military's code of justice, the federal court system and America's international treaties in order to avoid a scenario in which anyone -- from soldiers on the ground to the president -- could be held accountable for activities that at other times have been considered war crimes.
Sen. Carl Levin, who's leading an investigation into the origins of the harsh interrogation techniques, said at a hearing Tuesday that the abuse wasn't the result of ''a few bad apples'' within the military, as the White House has claimed.
''The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality and authorized their use against detainees,'' said Levin, a Michigan Democrat.
Neither the White House nor the Department of Defense has taken responsibility, and the U.S. military's top uniformed leadership remained silent in public while its legal code was being discarded. It was left to lawyers in the military's legal system, the Judge Advocate General's Corps, to defend the rule of law. They never had a chance.
Only one of the five War Council lawyers remains in office: David Addington, the brilliant but abrasive longtime legal advisor and now chief of staff to Cheney. His primary motive, according to several former administration and defense officials, was to push for an expansion of presidential power that Congress or the courts couldn't check.
Alberto Gonzales, first the White House counsel and then the attorney general, resigned last August amid allegations of perjury related to congressional hearings about the firings of U.S. attorneys.
The Defense Department in February abruptly announced the resignation of William J. Haynes II, the former Pentagon general counsel, amid sharp public criticism by military lawyers that he failed to ensure a just system of detainee trials at Guantánamo.
Even some conservatives have condemned former Justice Department lawyer John Yoo for what many called sloppy legal work in drafting key memorandums about detention policy. He's now a law professor at the University of California at Berkeley.
The last, least known member of the group, Timothy E. Flanigan, a former deputy to Gonzales in the White House, withdrew his nomination to be deputy attorney general in 2005 amid mounting questions in the Senate about his role in drafting the administration's legal definition of torture and other issues.
All five refused to answer questions from McClatchy for this report. Only Flanigan gave a reason, saying that he doesn't discuss past clients, in this case the U.S. government. Yoo previously has denied any connection between his work and detainee abuse.
The quintet did more than condone harsh treatment, however. It created an environment in which it was nearly impossible to prosecute soldiers or officials for alleged crimes committed in U.S. detention facilities.
The Bush administration pursued a strategy from the beginning to exempt American soldiers and operatives from legal repercussions for their actions, said Nigel Rodley, a British lawyer and professor who was the United Nations' special rapporteur on torture from 1993 to 2001.
The United States said it was continuing to follow the rule of law, but at the same time it sidestepped any international treaties that could create problems for soldiers or officials, said Rodley, a member of the U.N. Human Rights Committee.
The legal architecture, he said, hinged on the notion that, ``The treaties that were relevant to U.S. criminal law were not relevant. That was the trick.''
The administration, in other words, set out to circumvent any law that might have restricted Bush's detainee and interrogation programs.
Memos paved way
A handful of legal opinions opened the way to the abuses documented in McClatchy's investigation. Among them:
• In a Jan. 9, 2002, memorandum for Haynes, co-author Yoo opined that basic Geneva Convention protections known as Common Article Three forbidding humiliating and degrading treatment and torture of prisoners didn't apply to alleged al Qaeda or Taliban detainees -- the entire incoming population of detainees in Afghanistan and Guantánamo.
• In a memorandum to Bush dated Jan. 25, 2002, Gonzales said that rescinding detainees' Geneva protections ``substantially reduces the threat of domestic criminal prosecution under the War Crimes Act.''
Doing so, Gonzales wrote, also would create a solid defense against prosecutors or independent counsels who may in the future ''decide to pursue unwarranted charges based on Section 2441,'' the U.S. War Crimes Act, which prohibits violations of the Geneva Conventions. Gonzales added that by withholding Geneva protections and prisoner-of-war status, Bush could avoid case-by-case reviews of detainees' status.
• On Feb. 7, 2002, Bush issued a memorandum declaring that alleged al Qaeda or Taliban members wouldn't be considered prisoners of war and, further, that they wouldn't be granted protection under Common Article Three.
Most nations accept Article Three, common to all four Geneva Conventions, as customary law setting the minimum standard for conduct in any conflict, whether internal or international.
• An Aug. 1, 2002, memorandum that Gonzales requested from the Justice Department defined torture as ''injury such as death, organ failure or serious impairment of body functions,'' a high bar for ruling interrogation techniques or detainee treatment illegal.
The five lawyers on the War Council met every few weeks behind closed doors in Gonzales' or Haynes' office to plot legal strategy, according to Jack Goldsmith, a former senior Justice Department lawyer.
Several other former U.S. officials confirmed that the group was the driving force for White House policy on detainees.
Fears of future prosecution motivated many officials in the administration, Goldsmith wrote in his book The Terror Presidency, published last year. The five lawyers saw legal opinions drafted by Yoo and others in the Justice Department's Office of Legal Counsel as a shield, Goldsmith wrote, that would make it hard to convict someone of acting on legal advice from the premier legal office in the administration.
''In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls,'' wrote Goldsmith, who declined interview requests.
As the head of the Office of Legal Council from the fall of 2003 to the summer of 2004, Goldsmith reversed the August 2002 and March 2003 opinions.
Lawyers concerned
The military's lawyers were among those who were most concerned about what the new policies would mean for soldiers in the field.
Though not well-known to the public, the Judge Advocate General's corps prides itself on defending the Uniform Code of Military Justice, the military's law book, which demands strict discipline and moral behavior in wartime. The legal officers are fond of saying that military commanders can depend on two people for honest advice: their chaplains and their JAG lawyers.
The military legal community complained, to little avail, that the new policies were replacing decades of U.S. military policy on handling detainees.
When they protested, the War Council shut them out.
''We were absolutely marginalized,'' said Donald J. Guter, a rear admiral who served as the Navy's judge advocate general from 2000 to 2002. ``I think it was intentional, because so many military JAGs spoke up about the rule of law.''
Thomas Romig, a major general who was the Army's judge advocate general from 2001 to 2005, agreed that the JAGs were pushed to the side: ''It was a disaster,'' he said.

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