Balkinization: The Real Headline from Yesterday's SASC Hearing

The Real Headline from Yesterday's SASC Hearing

Marty Lederman

I haven't been able to find a video or transcript, but this jumped out from Pam Hess's account:

Air Force Colonel Steve Kleinman, a military interrogation expert, witnessed abuses in interrogations in Iraq in September 2003. So "Kleinman said he called his now retired commander, Col. Randy Moulton, to express concern about the methods being used. He said Moulton checked with his superiors and called him back to say the harsh techniques had been specifically approved by the Pentagon's general counsel, William "Jim" Haynes or higher. Moulton also said he had been told the prisoners were terrorists who were not protected by the Geneva Conventions, Kleinman said. . . ."

An earlier version of Hess's article added that Moulton himself "later told investigators that he understood that the Pentagon's general counsel or higher had approved the measures, and that the prisoners were considered terrorists and were not protected by the Geneva Conventions."

This confirms earlier accounts that, notwithstanding current Administration representations that "Geneva applied in Iraq," in fact DOJ and DOD concluded in 2003 that "unlawful combatants" in Iraq were not entitled to Geneva protections (see Point No. 2 here), and, more importantly, DOD was working on the assumption, reflected in the April 2003 Working Group Report, that military interrogators, even in Iraq, could ignore federal statutes such as the UCMJ, the federal assault statute, and the torture act, with impunity.

Has anyone seen the hearing? What, if anything, did Moulton himself say in his testimony about what legal instructions he had received? Who were the "superiors" with whom he checked? And has anyone asked him why they thought federal statutes, such as the UCMJ, the assault statute, and the Torture Act, were not applicable?

Posted 5:08 AM by Marty Lederman [link]

Comments:

Marty:

If I am not mistaken, it has already been widely reported that the GCs were voluntarily extended to captured Iraqis who did not qualify for POW privileges ala the VC in Vietnam, but not to foreign al Qaeda.

# posted by

Bart DePalma : 8:04 AM

Not quite, Bart. When Jack Goldsmith arrived at OLC in late 2003, he concluded (much to Addington's displeasure) that Iraqis -- POWs or not -- were protected by GCIV. Before Jack got there, however, the Administration (per DOJ advice) was treating all unprivileged combatants as if they were not entitled to any GC protections. And apparently the UCMJ and other statutes were no obstacle, either, probably because of the CINC argument. Hence, the authorized abuse.

# posted by

Marty Lederman : 8:37 AM

Marty:

You are correct. This testimony would appear to cover events at about the time of that transition in policy.

# posted by

Bart DePalma : 8:47 AM

Of of course it should never be forgotten that what the administraion claims in public and what they actually do in practice are two (or more) different things. As for the UCMJ, the punitive articles are extremely broad here:

10 USC § 892. Art. 92. Failure to obey order or regulation

10 USC § 893. Art. 93. Cruelty and maltreatment

10 USC § 897. Art. 97. Unlawful detention

10 USC § 933. Art. 133. Conduct unbecoming an officer and a gentleman

10 USC § 934. Art. 134. General article

# posted by

Charles Gittings : 11:12 AM

Documents released with the hearing show the following:

Moulton told the IG in Sept. 2005 that 'he understood all detainees were determined to be "Designated Unlawful Combatants" (DUC's), not Enemy Prisoners of War (EPW) protected by the Geneva Convention (GC) and that the interrogation techniques authorized were pre-approved by the DoD GC or higher and that the team was not to exceed the standards used in SERE training...'

# posted by

William Ockham : 11:22 AM

"Bart" DePalma:

If I am not mistaken, it has already been widely reported that the GCs were voluntarily extended to captured Iraqis....

WTF does "widely reported" have to do with anything here (even if this were true)?

... who did not qualify for POW privileges ala the VC in Vietnam...

Who says that the GCs didn't extend to the Veit Cong?!?!? This is news to me (albeit there's plenty of reports that such in Operation Phoenix, the GCs were routinely and massively violated....).

Cheers,

# posted by

Arne Langsetmo : 12:53 PM

"Bart" to Prof. Lederman:

You are correct. This testimony would appear to cover events at about the time of that transition in policy.

Could you point to some amendment of the GCs (or even of U.S. law) concurrent with this change? Thanks in advance.

Cheers,

# posted by

Arne Langsetmo : 12:55 PM

Maybe Sen. Carl Levin has some transcript materials, all I found of possible relevance was a 63pp index to evidence tabs June 2008 Senate Armed Services Committee, so far; the linked document is skewed so Adobe will not search it on textstrings, but its entries contain some interesting webpage links.

# posted by

JohnLopresti : 1:24 PM