an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
How the Pentagon Came to Adopt Criminal Abuse as Official Policy
In this week's New Yorker, Jane Mayer has written a must-read, definitive article laying out in great detail how certain Pentagon lawyers, led by Navy General Counsel Alberto Mora, stood up to Donald Rumsfeld and Jim Haynes in January 2003 and pleaded that the criminal conduct approved by Rumsfeld be ceased. Mora's efforts, recounted in a remarkable memorandum that he wrote to the Church Commission in 2004, brought an end to the unlawful abuse at Guantanamo on January 15, 2003. But then the efforts of Mora and others were swiftly and unceremoniously undermined by the promulgation of the April Working Group Report, which concluded that many unlawful techniques were in fact legal -- that criminal conduct, including violations of the Uniform Code of Military Justice, could be excused by authority of the Commander in Chief and through doctrines of "necessity" and "self-defense."
The most important revelation of Mora's memo, and of Mayer's piece, is this startling fact:
The Working Group itself, including Mora -- in whose name the Report was drafted -- were never informed that it was finalized and issued on April 4, 2003. Indeed, they were deceived by Pentagon General Counsel Haynes into believing that the Report had been scrapped after their persistent objections. But in fact, the final version of the Report -- based principally on the extreme legal conclusions of the Office of Legal Counsel, which had aroused persistent outrage and objection from the career lawyers in the Pentagon -- was "signed out" on April 4th and "briefed" to Geoffrey Miller before he was assigned to Iraq.
Fancy that: For weeks, Pentagon lawyers complained to Rumsfeld and Haynes that the draft Report's conclusions were legally indefensible, and that the Report would sanction conduct that is plainly criminal. Rumsfeld and Haynes simply stopped speaking to those lawyers about the initiative, and conspicuously announced to the public (in a Haynes letter to Senator Leahy) that the Pentagon's policy is to refrain from torture and cruel, inhuman and degrading treatment. This assauged the Pentagon lawyers, who had been seeking just such a policy pronouncement all along. In the meantime, the Working Group Report is finalized and issued -- unbeknownest to the Working Group! -- and Geoffrey Miller is briefed on it. Miller -- having now been informed that the criminal law is a mere trifle that cannot stand in the way of the Commander in Chief's wishes -- is then sent to Iraq to "GTMOize" the interrogation operations there and to obtain more information from Iraqi detainees. (A further note below on how Miller might have used the Working Group Report.) And what do you know?: The vast majority of the criminal abuse in Iraq occurs between Miller's arrival and December 2003. (In December, new OLC head Jack Goldsmith informed the Pentagon that it should no longer rely on John Yoo's legal analysis.)
Rumsfeld and Haynes chose to brief Miller on the Working Group Report -- but to keep its existence secret from the lawyers who comprised the Working Group itself, after they complained that it was sanctioning criminal conduct. Moreover, Rumsfeld and Haynes had expressly approved criminal coduct at GTMO back in December 2002. And Mayer's piece, together with the JAG memos from early 2003, demonstrates beyond any doubt that the top officials in the Pentagon welcomed OLC's legal advice that it was permisisble to employ interrogation techniques prohibited by criminal law and longstanding DoD policy -- and they were insistent that such legal advice form the basis of the Working Group Report, notwithstanding the serious objections of career DoD lawyers. Finally, recall the Schlesinger Report's finding that somehow, by hook or by crook, the Rumsfeld-approved directives from GTMO, which the Pentagon had ostensibly reneged in January 2003 when Mora threatened to draw attention to the matter, later "circulated" freely to Afghanistan and then to Iraq.
Just as with the 2002 OLC Torture memo, anyone in the Administration who might have had knowledge of the legal difficulties -- and who might have complained that the interrogation policy was on shaky legal ground -- was cut out of the loop. The only ones who were informed of the governing legal conclusions were those assigned to oversee the interrogations. These dots are not too difficult to connect.
Which leads to another part of this scandal that should not be overlooked: The Church Commission chose not to connect them. During his investigation of these events, Admiral Church was given the Mora memo, the JAG memos, the OLC documents, and much more. He also presumably interviewed officers such as Mora and Miller. Therefore he has known for quite a while that Miller was briefed on the Working Group Report -- but that Mora, et al., were not even told that it was finalized. He also likely knows much more than he has let on about who briefed Miller, and how the legal judgments in the Working Group report were transformed into operational policy in Iraq. The fact that Church's Report, and, more importantly, the underlying documents supporting that report, including the various interrogation policies issued in Afghanistan and Iraq in 2003-2004, have not yet been made public -- and that the Congress has not made any effort to disclose those documents -- is, as far as I can tell, indefensible.
What I've written above barely scratches the surface. For anyone interested in the torture and abuse scandal, Mayer's piece and Mora's memo are indispensible reading. So go and read them.
For those interested in further details of the torture scandal as it relates to events in the Department of Defense, GTMO, Iraq and Afghanistan, see Posts Nos. 6, 11, 18-22, 25-28, 34-35, and 38, under my name over at our "Anti-Torture" Page.
NOTE on the "migration" of GTMO techniques to Iraq:
The Executive Summary of the Church Report -- which is all that has been made public -- reports that on September 14, 2003, Lieutenant General Ricardo Sanchez published the first CJTF-7 interrogation policy for Iraq, a policy "heavily influenced by the April 2003 JTF-GTMO interrogation policy, which MG Miller had provided during his visit." We don't know precisely which April 2003 GTMO "policy" influenced Sanchez's Iraq policy. In addition to the April 4th Working Group Report, Secretary Rumsfeld promulgated a more moderate memoradnum on April 16, 2003. Rumsfeld's memo approved only 24 of the 35 Working Group techniques, and reiterated that they must be applied "humanely." As we now know, the promise of "humane" treatment was worthless, since DoD considers virtually any technique, no matter how degrading and grotesque, to be "humane." Still, if Rumsfeld's memo were read narrowly, and if interrogations were limited to only what that memo approves, most of the abuse in Iraq would never have occurred. I suppose it is theoretically possible that Miller was instructed to adhere strictly to Rumsfeld's memo, and that Miller advised Sanchez to abide strictly by the letter of that memo. But I doubt it. Why, in that case, was Miller briefed on the much more aggressive legal conclusions of the Working Group Report? And why, when Sanchez promulgated his Iraq interrogation policy, did CENTCOM's Staff Judge Advocate almost immediately conclude that it was "overly aggressive"? Posted
by Marty Lederman [link]
Those are very interesting questions, Prof. Lederman, that I, as a US citizen, feel that deserve an answer. Will those capable of obtaining it (Congress) act accordingly? It's about time.
I share Marty's admiration for the superlative professionalism of Jane Mayer and for the importance of this piece. It is important not only for all the light it sheds on what happened, but also for what it tells us about Alberto Mora, as a person and the moral courage that moved him throughout this process. With respect to the Working Group Report, we should focus on the fact that, as the Fay/Jones Report tells us, it was furnished to COL Marc Warren and his JAG group in Iraq to provide a basis for the preparation of new Rules of Engagement for interrogation at Abu Ghraib and elsewhere in Iraq. It contributed to the direct corruption of the interrogation process through the introduction of techniques that the Fay/Jones Report itself acknowledged were "unlawful" (in fact, criminal). Who could possibly have done this? There are a number of names that come to the fore, but one before all others - we know that COL Warren's group was seeking guidance from DOD General Counsel Jim Haynes when the Working Group Report "was provided." The fact that Fay/Jones itself uses strangely passive language whenever the scene of the crime is linked to the Office of Secretary of Defense is not surprising considering the professional limitations on Department of the Army investigations. The real fault here lies with Congressional oversight committees, which should have gotten to the bottom of this matter and failed, and continue to fail, to do so.
Yawn . . . Mora was, quite obviously and despite his GOP bona fides, stuck in a pre-9/11 mindset. Isn't that obvious by virtue of his view that the executive branch is bound by the laws passed by Congress?
"isn't it obvious by virtue of his view that the executive branch is bound by the laws passed by congress?"
i certainly hope this is tongue in cheek. if not, it is a microcosm of what has gone wrong in this country. yes, the executive is bound by the laws passed by congress. isn't that part of the oath the man took? if he is unwilling to abide by that oath, he should simply resign, and leave the office to those who are. in the interim, he should acknowledge that this is a nation bound by the rule of law.
My question is, where can I find out more about current thinking on extradition for war crimes? Are we arguably there yet -- at least legal-theoretically -- with Yoo, Rumsfeld, and Haynes? Do US laws or treaty obligations envision this possibility?
I'm not a big fan of the ICC (yet; open to argument), but a special court for the purpose might be OK with me. What does everyone else think?