GTMO: Where Was the Law? Whither the UCMJ?

Marty Lederman

One of the more interesting, and disheartening, things about the interrogation of Mohammed al-Qahtani at Guantanamo in 2002-2003 -- the official log of which is examined in detail in this week's Time Magazine -- is that the military appears to have been fully aware that the techniques it was employing were unlawful. The Pentagon's efforts to provide legal justification for its activities are quite revealing.

As I've previously explained, there are numerous legal norms that could potentially have applied to the interrogation techniques employed at GTMO. The four most important potential constraints were:

(i) the Geneva Conventions;

(ii) Article 16 of the Convention Against Torture, which requires the U.S. to "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity";

(iii) the President's February 7, 2002 directive that the Armed Forces must treat al Qaeda and Taliban detainees "humanely";

and (iv) the Uniform Code of Military Justice (UCMJ).

The first obstacle was largely overcome when the President decreed that suspected al Qaeda and Taliban detainees are not POWs and are not entitled to any of the protections of the Geneva Conventions. In my view, the most important component of this determination was one that was made quietly, largely outside public purview: The Administration determined that Common Article 3 of the Geneva Conventions, which prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment," does not apply by its terms to our conflicts with al Qaeda and the Taliban; and, more importantly, it appears that the Administration also determined that it would not uniformly apply the standards of Common Article 3 as a matter of policy, thereby deviating from more than a half-century of U.S. practice.

The Article 16 problem was circumvented when the Administration decided that Article 16 does not apply to the treatment of aliens overseas, including at Guantanamo. (This conclusion is hotly contested, and may well be mistaken -- but it is the view of the Executive branch.)

I explained yesterday that the President's "treat[] humanely" directive is hardly an obstacle at all, because the Pentagon is of the view that "humane" treatment includes, for example, giving a detainee three and a half bags of IV fluid and then refusing to grant him permission to urinate; using dogs "in an aggressive manner to intimidate the detainee"; and forcing a detainee to stand nude, bark like a dog and growl at pictures of terrorists.

That brings us, finally, to the Uniform Code of Military Justice -- which is the most difficult-to-crack part of the legal puzzle. The UCMJ is a federal statute that prohibits U.S. armed forces from, among other things, engaging in cruelty, oppression or maltreatment of prisoners (art. 93), assaulting prisoners (art. 128) (a prohibition that includes a demonstration of violence that results in reasonable apprehension of immediate bodily harm), and communicating a threat to wrongfully injure a detainee (art. 134). The UCMJ plainly prohibits many of the techniques the military used against al-Qahtani -- and (as explained below) the Pentagon acknowledged as much -- but the military did not let the UCMJ stand in the way. Why? What was the legal theory according to which the Pentagon could blithely ignore binding U.S. law?

Frustrated that detainees at GTMO, especially al-Qahtani, "have tenaciously resisted our current interrogation methods," on October 25, 2002 General James Hill forwarded to the Pentagon, for its review, proposed "counter-resistance techniques." Although General Hill was "uncertain whether all the techniques . . . are legal under US law," he expressed his "desire to have as many options as possible at my disposal and therefore request that Department of Defense and Department of Justice lawyers review" some of the techniques.

The proposed techniques included many that were eventually used on al-Qahtani, including forced nudity, forced grooming, "[u]sing detainees['] individual phobias (such as fear of dogs) to induce stress," 20-hour interrogations, stress positions, and the use of mild physical contact such as grabbing, poking and light pushing. The proposed techniques also included waterboarding (the use of a wet towel and dripping water to induce the misperception of suffocation), and "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."

In an extensive legal memorandum appended to Major Hill's request, Staff Judge Advocate Diane Beaver acknowledged the problem posed by the UCMJ. She writes:

"U.S. military personnel are subject to the Uniform Code of Military Justice. The punitive articles that could potentially be violated depending on the circumstances and results of an interrogation are: Article 93 (cruelty and maltreatment), Article
118 (murder), Article 119 (manslaughter), Article 124 (maiming), Article 128 (assault), Article 134 (communicating a threat, and negligent homicide), and the inchoate offenses of attempt (Article 80), conspiracy (Article 81), accessory after the fact (Article 78), and solicitation (Article 82). Article 128 is the article most likely to be violated because a simple assault can be consummated by an unlawful demonstration of violence which creates in the mind of another a reasonable apprehension of receiving immediate bodily harm, and a specific intent to actually inflict bodily harm is not required."

Beaver then notes, almost in passing, that physical contact with a detainee "will technically constitute an assault under Article 128, UCMJ." In an earlier paragraph, Beaver is still more candid in acknowledging that physical contact, as well as the "water cure" version of waterboarding, "would constitute a per se violation of Article 128 (Assault)," and that threats of death "may also constitute a violation of Article 128, or also Article 134 (communicating a threat)."

Well, then, if some of the proposed techniques are acknowledged to be "per se" federal crimes, how is it that Beaver can then recommend their use and (in a cover memo) conclude that they "do not violate applicable federal law"? Here's the only clue: She writes that because of the "per se" prohibitions of the UCMJ, "[i]t would be advisable to have permission or immunity in advance from the convening authority, for military members utilizing these methods." No explanation here of the legal theory pursuant to which such ex ante "permission or immunity" to violate the law could be conferred.

As Beaver's memo went up the chain of command, it appears that virtually everyone (with the possible exception of General Hill, who expressed some legal trepidation) agreed with Beaver's conclusion that the UCMJ somehow would be no obstacle -- perhaps because they assumed that interrogators would be provided some sort of "permission or immunity in advance from the convening authority." Major General Michael Dunleavy concluded "that these techniques do not violate U.S. or international laws." Similarly, DoD General Counsel Haynes, following discussions with Deputy Secretary Wolfowitz, Doug Feith and General Myers, informed Secretary Rumsfeld that all of the proposed techniques "may be legally available." (Haynes also advised that, for policy reasons, "a blanket approval" of waterboarding and threats of death "is not warranted at this time.")

These legal understandings of the UCMJ continued into the spring of 2003, as the DoD was producing its comprehensive Working Group Report. That report, however, is much more revealing about the possible legal basis for giving interrogators "permission or immunity" in advance to violate federal law. The final report, promulgated on April 4, 2003, acknowledges that assault and maltreatment are offenses under the UCMJ, but adds that "[d]efenses relating to Commander-in-Chief authority, necessity and self-defense or defense of others may be available to individuals whose actions would otherwise constitute these crimes, and the extent of availability of those defenses will be fact-specific. . . . Where the Commander-in-Chief authority is being relied upon, a Presidential written directive would serve to memorialize this authority." [UPDATE: And ABC News reports (based on notes of a DoD official) that in a meeting held March 8, 2003, a group of top Pentagon lawyers concluded that "we need a presidential letter approving the use of the controversial interrogation to cover those who may be called upon to use them."

This is, I think, the key to the puzzle. The Pentagon understood that federal statutory law -- the UCMJ -- stood in the way of what it wished to do, and rendered unlawful what it already had done in the case of al-Qahtani. It had in its back pocket, however, the legal immunity conferred by the Department of Justice's authoritative legal opinion that the President has the absolute authority, pursuant to his Commander-in-Chief power, to determine "what methods to use to best prevail against the enemy," notwithstanding any statutory restrictions that Congress may have imposed.

Is there such a presidential order approving the use of certain otherwise unlawful techniques? Well, at least one FBI e-mail suggests that there is. I'm a bit skeptical -- I have a hard time believing that Alberto Gonzales and the White House Counsel's Office would have created a paper trail that includes specific authorization of unlawful activity signed by the President (although stranger things have happened). (The ABC News report states that "[n]o such letter was issued." But it doesn't provide any basis for this conclusion.) But I do suspect that there is at least one document out there purporting to "immunize" interrogators from culpability for such activity:

Not surprisingly, there were those within the Pentagon (JAG lawyers, in particular) who were skeptical of the legal justifications for the approved techniques. But, as Senator Levin noted in a March hearing, the Church Report on interrogation at GTMO (a report that remains classified) notes that the DoD working group "was stopped from developing its own legal analysis and instead, was required to accept the legal analysis contained in a memorandum from the Justice Department's Office of Legal Counsel, a memorandum [with] which the working group strongly disagreed. According to [the Church] report, that memo, entitled 'Military Interrogation of Alien Unlawful Combatants,' was prepared by Deputy Assistant Attorney General John Yoo for Department of Defense General Counsel Haynes, and . . . had a date of March 14, 2003. This memo was presented, as [the Church] report indicates, to the working group as 'controlling authority' on all legal issues. . . . You [Admiral Church] also noted that conclusions of that memo are nearly identical to those of the August 1, 2002 Office of Legal Counsel memo which is known as the Torture Memo."

When, if ever, will we see the March 2003 OLC Opinion to the Pentagon, without which we cannot fully understand the legal basis for the interrogation techniques approved and implemented by the Department of Defense? Don't hold your breath.
Posted 8:25 AM by Marty Lederman [link]