Military Lawyers Opposed
Bush's Torture Orders
The NY Times
Military's Opposition to Harsh Interrogation Is Outlined
By NEIL A. LEWIS
Published: July 28, 2005
WASHINGTON, July 27 - 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.
Ex-Warden Tells of Use of Dogs
FORT MEADE, Md., July 27 (AP) - The former warden of the Abu
Ghraib prison in Iraq testified Wednesday that he attended a
meeting in which the commander of the Guantánamo prison
recommended using military dogs for interrogation.
The former warden, Maj. David Dinenna, testified at the end of
a preliminary hearing for two Army dog handlers accused of
abusing Iraqi detainees. Major Dinenna said that at a meeting in
September 2003, Maj. Gen. Geoffrey D. Miller, then the
Guantánamo commander, talked about the effectiveness of
using the dogs.
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