Posted on 06/18/2008 6:44:46 AM PDT by Bluegrass Federalist
5 lawyers opened the way for abuse Fashioned legal opinions on detainee treatment By Tom Lasseter McClatchy Newspapers Part 4 of a 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 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 prevent anyone — from soldiers on the ground to the president — from being held accountable for activities that at other times have been considered war crimes.
The international conventions that the United States helped draft, and to which it’s a party, were abandoned in secret meetings among the five men in one another’s offices. No one in the War Council has publicly described the group’s activities in any detail, and only some of their opinions and memorandums have been made public.
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 adviser 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 and least known member of the group, Timothy E. Flanigan, a former deputy to Gonzales, 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 story. 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 U.S. 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.
Opening the 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 cover alleged al-Qaida 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-Qaida 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. U.S. law, according to the memorandum’s analysis, “prohibits only extreme acts.”
* A March 14, 2003, memorandum that Yoo prepared at Haynes’ request concluded that even if an interrogation method violated U.S. criminal statutes — such as the one against war crimes — the interrogators involved most likely couldn’t be prosecuted because they were operating within the scope of Bush’s constitutional authority to wage war against al-Qaida and other militant groups.
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 Justice Department lawyer. Fear of prosecution
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 said 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 to be interviewed.
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.
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 military legal community complained, to little avail, that the policies hatched with the consent of Bush, Cheney and then-Defense Secretary Donald H. Rumsfeld 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.”
Tom Lasseter is a former reporter for the Lexington Herald-Leader.
PS I searched the site for info about which publications can be posted or excerpted, and could not find anything. Mods feel free to edit if appropriate, or ask me to re-post.
Thank God these people weren’t around during WW11 or Korea. We’d all be speaking German, Japanese or Russian by now!
This is so full of propaganda, biased opinion and misleading partisanship it is scary.
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Oh, there will be more. The radical leftist MSM will be dumping on the War on Terror, with focus on the administration, from now until November. For example, I had the misfortune to be forced to listen to CNN for about five minutes last night — it was Wolfieman Blitzer whining about how Obama was such a great guy, how the Bush administration was so in favor of taking taxation off the rich, and one zinger on McCain after another. It was not even subtle. Just RADICAL BIASED MEDIA.
And of course, the radical left wants THE FAIRNESS DOCTRINE to ensure thier bias is protected and to squelch the voice of truth (the conservatives).
with murtha and these traitors
we don’t need any enemies abroad.
Do these fossils in the military (assuming they are not made up by the author) realize we're not fighting the cold war against standing armies any more?
New wars require new tactics.
Civilians not in uniform caught fighting, may be executed when captured.
Civilians acting as saboteurs, may be executed when captured.
(Remember all those movies about soldiers behind enemy lines not wanting to put on civilian clothes and get out of uniform? There was a reason for that.)
It is unbelievable how the media ignores the rules of warfare (Geneva Conventions) and wants to act like these guys are simply armed robbers and should be handled like US citizens.
Unless I am sorely mistaken, if we applied the Geneva Conventions to Al Queda, we could summarily execute every fighter captured in Afghanistan. They are fighting out of uniform and are sbuject to execution upon capture.
What this country has forgotten is how to wage ALL OUT WAR. The appalling loss of life in WWII pushed us to fight in a “less brutal” fashion. The fainthearted pantywaists took control.
Kill them all and let God sort them out.
If the author had made a specific reference to the words of the Geneva Conventions and then offered the interpretation John Yoo made in his memo many reasonable people would think he was correct. It reminds me of one of my professors who used the same tactics to teach his class on how Bush was the most evil President in history. Unfortunately the prof had never read any of the prirmary documents, but then if he read and did research it would be much harder to maitain a hatchet job.
Got that right.
I don't totally disagree with the SCOTUS decision.
Perhaps the courts should make America decide whether it wants an all out war ending in victory, or an eternal, half-assed, PC war effort that never really wins.
There is a relevant fact that the author of this “article” omitted: the Geneva Convention does not apply, and HAS NEVER BEEN HELD TO APPLY to non-uniformed irregular combatants who do not act (or claim to act) under color of authority from any nation or state entity. So, their entire premise is BS.
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