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
On November 27, 2002, DOD General Counsel William Haynes advised Secretary of Defense Rumsfeld that use of the following interrogation techniques (among others) were legal, and recommended that Rumsfeld approve their "blanket" use -- advice that Rumsfeld adopted on December 2, 2002:
1. Stress positions for up to four hours.
2. Thirty days of isolation.
3. Deprivation of light and auditory stimuli.
4. Hooding during interrogation.
5. 20-hour interrogations.
6. Removal of clothing.
7. Forced grooming, including shaving of beards.
8. "Using detainees' individual phobias (such as fear of dogs) to induce stress."
Haynes further advised that the following techniques "may be legally available," but only recommended "blanket" approval for one of them:
9. "The use of scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."
11. Grabbing, poking and light pushing (which was given "blanket" approval).
In his testimony before the Armed Services Committee yesterday, Haynes acknowledged that the following legal constraints were operative at the time (when the Administration's mistaken view was that Common Article 3 of the Geneva Conventions did not protect suspected al Qaeda detainees):
1. The categorical federal prohibition on torture outside the United States, 18 U.S.C. 2340-2340A.
2. The requirement in Article 16 of the Convention Against Torture that the U.S. undertake to prohibit cruel, inhuman and degrading treatment.
3. The Uniform Code of Military Justice, which 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);
-- communicating a threat to wrongfully injure a detainee (art. 134).
4. The President's decree that all detainees be treated "humanely."
In light of these legal prohibitions, how could Haynes possibly have advised Rumsfeld that all of those interrogation techniques were lawful?
There are two possibilities here:
First, Haynes might have advised Rumsfeld that these techniques were legal because (as I surmised yesterday) he had been advised by the Office of Legal Counsel that the President had the constitutional power to ignore the torture statute and the UCMJ, and Haynes knew that the CIA (and DOD Special Forces) were already using such techniques in reliance on such OLC advice. (The documents released yesterday demonstrate how the CIA was deeply involved in advising DOD how to proceed, and that a high-ranking CIA lawyer conveyed to military lawyers the substance of August 1, 2002 OLC memo. Haynes himself met, at GTMO, with David Addington, John Yoo [UPDATE: meant to say Alberto Gonzales, not John Yoo, here -- AG was the recipient of the Yoo Opinion -- but now I'm trying to confirm reports that Gonzales, and not only his Deputy Flanigan, was there] and CIA General counsel John Rizzo . . . just before the lawyers at GTMO decided to consider the cruel techniques. And Haynes told Senate staffers that he had read the OLC memo prior to his November 27, 2002 advice. (In his testimony yesterday, he implausibly stated that he did not recall whether he had read that memo, or relied upon it, when he acted on November 27th.))
Second -- alternatively -- Haynes might have actually concluded, based on his own legal analysis, but without any written explanation whatsoever, that none of the techniques in question -- not waterboarding, not stress positions, not hooding, not hypothermia, not express threats of death to the detainee and his family, not the use of dogs to induce stress, etc. -- would be torture, or would constitute threats or assaults or maltreatment or cruelty prohibited by the UCMJ, or would be cruel, inhuman or degrading, and that all of the techniques are "humane," notwithstanding that:
-- The only legal memo Haynes admits to having read, the one written by Diane Beaver, concluded that some of these techniques would violate the UCMJ;
-- Southern Command Chief James Hill, in another memo that Haynes read, expressed "uncertain[ty]" about whether the Category III techniques, especially threats, were "legal under US law," and 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.
-- Military officials from all four armed services raised serious questions about the legality (not to mention the effectiveness and wisdom), under the Torture Act and the UCMJ (and the President's "humaneness" directive), of many of the techniques under consideration, going so far as to warn that the use of the techniques would subject members of the military to possible criminal prosecution. (Haynes testified that he does not recollect seeing these memos. That's entirely implausible, as Dalton testified that Haynes's staff was briefed on the memos. But if it is true -- if Haynes did not ask to see these memos when he knew there was such dissent in the services and his staff was aware of the memos -- that's even more damning.);
-- These objections from the Army, Navy, Air Force and Marines caused Jane Dalton, legal adviser to the Chairman of the Joint Chiefs of Staff, to initiate a legal review of the proposed techniques -- a review that (as Philippe Sands reported and as Dalton testified) Haynes himself ordered be quashed. (This aspect of the hearing has not yet received sufficient attention: General Myers and Jane Dalton began a broad-based review among the services, a review that would have provided a full airing of the troubling legal questions, and William Haynes put the kibosh on that review shortly before he inexplicably approved the legality of all of the requested techniques.)
-- Eliana Davidson, a lawyer in Haynes' shop, told him these techniques needed further legal review;
-- No lawyer provided Haynes with any legal analysis to contradict these uniform views that the conduct would be unlawful, with the apparent exception of oral advice (unexplained and unspecified) from Jane Dalton.
If the second scenario is the truth -- if Haynes casually concluded, without explanation, and in the midst of a torrent of military lawyers telling him that the conduct would be illegal, that the techniques did not violate any of those legal restrictions, even though many of those techniques plainly do violate some of those legal restrictions, and where few, if any, of the techniques is "humane" -- well, in that case, William Haynes is the least responsible and least competent attorney in the history of the Executive Branch.
And yet that is the account to which Haynes testified yesterday.
I am very confident that Haynes is not the worst or least competent lawyer in the history of the Executive branch. He is not dumb, and on his own he could not possibly have concluded, sincerely and honestly, that all of the techniques in question did not violate any of the many legal restrictions -- and to have done so notwithstanding all of the military lawyers' advice to the contrary.
Which means that the first scenario must be the truth:
Haynes advised Rumsfeld that the techniques were lawful for the simple reason that he had been advised by the Office of Legal Counsel that the President had the constitutional power to ignore the torture statute and the UCMJ (and that Article 16 and the "humaneness" directive were inoperative and/or toothless), and because Haynes knew that the CIA (and DOD Special Forces) were already using such techniques in reliance on such OLC advice.
If this second scenario is true -- if Haynes's advice was based almost exclusively on the OLC analysis that the statutes and treaties could be ignored, as is quite obviously the case -- then it is hard to avoid the conclusion that Haynes repeatedly dissembled (less polite observers might say perjured himself) in his sworn testimony yesterday, in an attempt to distort the historical record (and, likely, in order to conform his testimony to his previous dubious testimony during his confirmation hearings). (For further explanation of why Haynes did not simply acknowledge that he was relying on OLC advice, see Philippe Sands's column in Slate today. And don't forget to read David Luban below, dissecting the Administration's mantra that its use of the enhanced techniques "saved innocent lives.")
Neither possibility puts Haynes in a very flattering light, to say the least.
* * * *
For a good sense of just how implausible and contemptuous (perhaps even contumacious) Haynes's testimony was yesterday, take a look at the questioning by Senator Reed (at approximately 2:51:30-3:06 of the C-SPAN video), and that by Senator Levin (at approximately 3:29:50-3:45:15 of the video).
Please note: This only takes us to the end of 2002. It does not even begin to account for Haynes's and Rumsfeld's responsibility for the Working Group Report of April 2003 -- the report that was kept secret from the members of the Working Group themselves! -- and the "migration" of the legal analysis of that report to the Iraqi theater in the summer and fall of 2003. For a very abbreviated taste of that particular part of the story, see Senator Graham's questioning at 3:23-3:27. (This is the part of the DOD story to which the Committee should now turn its attention . . . although even more important would be a public accounting of the CIA and Special Forces activities that took place before the Guantanamo events.) Posted
by Marty Lederman [link]
-- Which means that the second scenario must be the truth -- . You seem to have reversed the order somewhere. In context, it's clear that you menat to say the FIRST of the two scenarios's applies. . Go ahead and delete this post if/after you repair the article.
Agreed. Given the March 14, 2003 was the cramdown for the Working Group and the March 14 essentially tracked the same ground as the August 1, 2002 - the dissembling on when he read the OLC is very transparent effort to cover for the Justice Department.
Folks, this is hand and glove stuff (or left hand washing the right hand).
One of the 5 of the Torture Team is going to come clean if a grand jury and indictment process starts - I am certain of it.
I suspect they hope Bush will pardon them, but I suspect he is perfectly willing to let them take the fall for him and the other National Security Principals whose dirty work they did.
Haynes himself met, at GTMO, with David Addington, John Yoo and CIA General counsel John Rizzo . . . just before the lawyers at GTMO decided to consider the cruel techniques.
Marty, did you include John Yoo's name intentionally or by accident? I've read Tab 6 in yesterdays document dump as well as Sand's Torture Team book and neither mention Yoo as accompanying Haynes, Gonzales, Chertoff, etc. to Gitmo. If Yoo did in fact go to Gitmo, it would be the biggest smoking gun of this whole disgusting affair.
Not a problem, Marty. Here's the list that Sands gives (via his Vanity Fair article):
On September 25, as the process of elaborating new interrogation techniques reached a critical point, a delegation of the administration’s most senior lawyers arrived at Guantánamo. The group included the president’s lawyer, Alberto Gonzales, who had by then received the Yoo-Bybee Memo; Vice President Cheney’s lawyer, David Addington, who had contributed to the writing of that memo; the C.I.A.’s John Rizzo, who had asked for a Justice Department sign-off on individual techniques, including waterboarding, and received the second (and still secret) Yoo-Bybee Memo; and Jim Haynes, Rumsfeld’s counsel.
It's fascinating that the minutes released yesterday also place Michael Chertoff there as well (Sands apparently didn't know that - one wonders who else was there that we don't know about yet). I think that this is a key fact. Yoo notes in his March 14th memo that "the Criminal Division concurs" with his opinion. Chertoff was the head of the Criminal Division at the time. And yet here, we have Chertoff making a trip down to Guantanamo 6 months before March memo and only a month after the August 1st memo. What are the odds that Chertoff talked to Yoo about what he witnessed? Pretty high, if you ask me.
In his testimony yesterday, [Haynes] implausibly stated that he did not recall whether he had read that memo, or relied upon it, when he acted on November 27th.
If we 'determine' that Haynes has committed war crimes, and is thus an 'illegal combatant', would it be possible to waterboard him to see if his memory improves? If he objects to such treatment, can we invoke estoppel to say that his demurrer cannot be entertained?