By Neil A. Lewis.
New York Times
28 July 2005
WASHINGTON - 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 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.
He said that the genesis of the dispute was a memorandum issued in August 2002 by the Justice Department and signed by Jay S. Bybee, the head of the office of legal counsel.
The Bybee memorandum defined torture extremely narrowly and said Mr. Bush could ignore domestic and international prohibitions against it in the name of national security. That position was rescinded by the Justice Department last Dec. 30.
Rear Adm. Michael F. Lohr, the Navy's chief lawyer, wrote on Feb. 6, 2003, that while detainees at Guantánamo Bay might not qualify for international protections, "Will the American people find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values?"
Brig. Gen. Kevin M. Sandkuhler, a senior Marine lawyer, said in a Feb. 27, 2003, memorandum that all the military lawyers believed the harsh interrogation regime could have adverse consequences for American service members. General Sandkuhler said that the Justice Department "does not represent the services; thus, understandably, concern for service members is not reflected in their opinion."
Maj. Gen. Thomas J. Romig, the Army's top-ranking uniformed lawyer, said in a March 3, 2003, memorandum that the approach recommended by the Justice Department "will open us up to criticism that the U.S. is a law unto itself."
The confidential government deliberations over permissible interrogation techniques that ranged from August 2002 to April 2003 were prompted by a request from officers at Guantánamo. They said traditional practices were proving ineffective against one detainee, Mohamed al-Kahtani, believed to have been the planned 20th hijacker on Sept. 11, 2001. Defense Secretary Donald H. Rumsfeld approved a series of techniques in December 2002, only to rescind them temporarily after military lawyers complained.
Mr. Rumsfeld ordered a study by the legal task force, led by Mary Walker, the Air Force general counsel. When the Walker task force issued its report on March 6, 2003, it largely adopted the Justice Department's view.
Senator Graham said, however, that Mr. Rumsfeld subsequently learned of the military lawyers' objections and that became a factor in his decision on April 16, 2003, to limit the permitted interrogation techniques.
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Citation: Neil A. Lewis, "Military's Opposition to Harsh Interrogation Is Outlined," New York Times, 28 July 2005.
Original URL: http://www.nytimes.com/2005/07/28/politics/28abuse.html?ei=5094&en=8298c419c6a6f889&hp=&ex=1122609600&partner=homepage&pagewanted=print
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