Easing of laws that led to detainee abuse hatched in secret
By Tom Lasseter, McClatchy Newspapers Wed Jun 18, 5:52 PM ET
(This is the fourth installment of McClatchy's Guantanamo: Beyond the Law
series, which can be viewed in full at www.mcclatchydc.com)
WA****NGTON - The framework under which detainees were imprisoned for years
without charges at Guantanamo 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 cir***vented 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.
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.
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 leader****p 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 Guantanamo.
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 rap****teur 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 cir***vent any law that
might
have restricted Bush's detainee and interrogation programs.
MEMOS THAT PAVED THE WAY
A handful of legal opinions opened the way to the abuses do***ented 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 Guantanamo.
-- 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.
"In wartime, it is for the president alone to decide what methods to use
to
best prevail against the enemy," Yoo wrote.
Now it appears that reinterpreting the law to lift legal protections for
detainees could backfire. On May 13 , the Pentagon announced that it was
dropping all charges against Mohammed al Qahtani , a Saudi man held in
Guantanamo who's accused of planning to take part in the 9-11 attacks as
the
"20th hijacker."
The official overseeing the case, Susan J. Crawford , gave no reason for
the
move, which followed the leak of an interrogation log that detailed harsh
attempts at Guantanamo to break Qahtani mentally. Among the methods used
were forcing him to act like a dog, putting women's underwear on his head,
keeping him in stress positions and accusing him of homo***uality.
In its decision last week, the Supreme Court restored the right of habeas
corpus, that is, the detainees' right to challenge the cause of their
detention.
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 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 ****eld, 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.
MILITARY 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
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."
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.
Trust between the uniformed military lawyers and the Bush administration
collapsed in the months after 9-11.
Guter said he began to think that Haynes "was playing games" in late 2001,
when the two met regularly to figure out how to handle detainees in
Afghanistan .
Haynes, then the Pentagon's head lawyer, had asked whether hundreds of the
prisoners could be detained on Navy war****ps. The security and logistics
involved in operating a ****p while maintaining a maximum-security prison
onboard would have been impossible. Guter thought that Haynes was raising
such ideas to push him toward establi****ng a prison at the Guantanamo Bay
U.S. Naval Base .
Guter said "it became apparent pretty quickly" that Haynes wanted a place
"outside of the courts," where no judge could consider whether detainees
were being held lawfully or under appropriate conditions.
"What they were looking for was the minimum due process that we could get
away with," said Guter, who's now the dean of Duquesne University's law
school. "I felt like they knew the answer they wanted to hear."
Romig recalled tense discussions with Yoo in November and December 2001
about setting up military commissions to try detainees.
" John Yoo wanted to use military commissions in the manner they were used
in the Indian wars," Romig said. "I looked at him and said, 'You know,
that
was 100-and-something years ago. You're out of your mind; we're talking
about the law.' "
The military commissions that the U.S. used against Native Americans
during
the mid-19th century were often ad hoc and frequently resulted in natives
being hanged or shot.
"As they viewed it, due process is legal mumbo jumbo," said Romig, who's
now
the dean of Washburn University's law school. "They wanted to get them,
get
the facts and convict them. ... If you're caught as a terrorist, you're
presumed guilty and you have to prove you're innocent. It was crazy."
When Romig objected to pu****ng the boundaries of interrogation procedures
during meetings in late 2002 or early 2003, he recalled that civilian
defense officials replied that the time for law had passed.
"Guys, it's time to wake up and smell the coffee. It's time to take the
gloves off," Romig said he was told by Marshall Billingslea , a deputy to
Douglas Feith - who was then the undersecretary of defense for policy, the
Pentagon's third-ranking official.
Romig said that he and other military officers asked, "Do you realize the
implications of what you're saying?"
Like many in the military, Romig doubted the quality of intelligence
gathered by physical coercion.
Haynes, who also was present, had no objections to what Billingslea had
said, according to Romig. Billingslea and Haynes declined requests for
comment.
In June 2006 , over the objections of the White House, the Supreme Court
ruled that Common Article Three of the Geneva Conventions was applicable
to
detainees at Guantanamo Bay .
Four months later, Bush signed the Military Commissions Act, which said
that
no foreign unlawful combatant subject to trial by military commission
could
invoke the Geneva Conventions as a source of rights, and that no U.S.
court
or judge has jurisdiction to hear cases in which such detainees contest
their incarceration.
The bill also rewrote part of the U.S. legal code on war crimes, changing
the definition of a war crime from conduct that "constitutes a violation
of
Common Article 3" to the much higher standard of "a grave breach of Common
Article 3."
Within that new definition, it excluded "pain or suffering incidental to
lawful sanctions," meaning harsh treatment that's allowed by the Bush
administration's legal interpretations.
Among those whom Bush thanked at a bill-signing ceremony were Cheney -
Addington's main backer in the White House - and Gonzales.
Two years later, the Supreme Court ruled that detainees have the right to
challenge their detention before federal judges, striking down that
section
of the Military Commissions Act. The 5-4 decision said the law applied to
everyone: "From an early date it was understood that the king, too, was
subject to the law."
The policies hatched in the offices of Gonzales, Addington and Haynes
muddied decades of U.S. military policy on handling detainees.
Changes to detainee law such as rescinding Common Article Three give a
"dehumanizing message about the people (detainees) we're dealing with,"
said
Lt. Col. Bryan Broyles , a defense attorney in the Office of Military
Commissions , which was set up to try detainees at Guantanamo.
"The people who pursue that sort of academic, intellectual pursuit," said
Broyles, who represents Qahtani, "don't understand the effect it has on
the
people (soldiers) who only see the end result."
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