Monday, July 18, 2005

The Graham Hearing on Detainees -- Progress on the Congressional Front

Marty Lederman

Last Thursday, South Carolina Senator Lindsay Graham convened a hearing of the Personnel Subcommittee of the Senate Armed Services Committee, on the topic of military justice and detention policy. JAGs from each of the military branches testified, as did DoD Principal Deputy General Counsel Daniel Dell’Orto. C-SPAN has now posted a video of the hearing online. It’s a must-see for anyone interested in these subjects. [UPDATE: I'm told that many are having problems with that link to the video and that this link might be more useful.] (In addition to the matters discussed below, Professor Steve Saltzburg's testimony was terrific. It begins at approximately 2:22 of the video.)

Three principal topics of note:

1. Congressional Action

Senator Graham's main theme was that Congress has been "AWOL," and that the legislature must now begin to act. Senators Graham and McCain appear committed to drafting legislation dealing with three questions: (i) defining who is an "enemy combatant" that may be detained by the military; (ii) developing rules for military tribunals; and (iii) developing rules for lawful interrogation techniques.

Senator Graham repeatedly expressed the view—undoubtedly correct—that if Congress enacts a law, the courts will be much more likely to defer to such statutory authorizations (and limitations) than to unilateral Executive determinations. Nevertheless, both Dell'Orto and former Attorney General Barr (who testified in support of the Administration) expressed strong opposition to congressional involvement—perhaps because they are fearful of the limitations that Congress would impose, and/or because they don't wish to concede that Congress even has the power to limit the President's constitutional authority. In light of such opposition, Senator Graham probably has his work cut out for him in trying to craft legislation that will, in his words, be something that he, Senator Levin, and the President can all accept. But it is now clear that there are at least some Republican legislators who are not at all pleased with the status quo and with the Administration's legal positions.

2. Guantanamo Interrogations

Part of the hearing (beginning at about 1:33) was spent discussing the approved interrogation techniques at Guantanamo reflected in last week's Schmidt Report. After Navy Rear Admiral James McPherson insisted that we treat our detainees at GTMO humanely, Senator McCain asked incredulously: "You do? What about the use of dogs? Is that humane?" McPherson: "There are differences of opinion." Senator Levin followed up by asking whether it was "humane" to put a detainee on a dog leash, and to force him to wear lingerie and appear naked before women. Although McPherson conceded that such tactics were "juvenile," he concluded that "I don't think that's inhumane treatment."

The reaction of the Army JAG representative, Major General Thomas Romig, was quite different, however. Senator Levin reported to the panel the Schmidt Report's conclusion that the techniques used at GTMO were consistent with Army Field Manual 34-52—a "pretty shocking" notion, explained Senator Levin, in light of the fact that the Field Manual purports to describe conduct permissible under the Geneva Conventions. (For more on this, see my post here.) Major General Romig testified that the techniques used at GTMO were not "in the spirit of" Army Field Manual 34-52 and that such techniques would not be permitted where Geneva applies. Most strikingly, he twice testified that such techniques violate the Uniform Code of Military Justice. In particular, Major General Romig testified that such conduct would constitute "maltreatment of subordinates" under the UCMJ—a provision of the law that the military has used to prosecute numerous instances of abuse during the War on Terror. That is to say—the techniques used at GTMO were federal crimes.

One wonders, therefore, how the Commander of SOUTHCOM, General Craddock, could have testified before the Senate Armed Services on Wednesday that such abusive and degrading treatment "did not result in any violation of a U.S. law or policy."

Which brings us to our third subject . . .

3. The March 2003 OLC Memorandum

As I've previously explained, in late 2002 and early 2003, as the Pentagon was contemplating whether to authorize the techniques that it used at GTMO and the DoD Working Group was drafting its report on these questions, there was widespread awareness within the DoD that such techniques would violate the UCMJ, i.e., that they were crimes. For that and other reasons, many JAGs, and Navy General Counsel Alberto Mora, were extremely concerned about the legal analysis contained in a draft report of the DoD working group. Indeed, at a meeting held on 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." Instead of receiving that presidential letter, the Pentagon apparently received a memo from DOJ's Office of Legal Counsel concluding that the techniques in question would be lawful. Thus, the Church Report on interrogation at GTMO (a report that remains classified) apparently indicates (in Senator Levin's words) 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. . . . [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."

At last Thursday's Armed Services Committee hearing, Senator Graham urged the Pentagon to make available to the Committee unclassified versions of the JAG lawyers' memos—memos that were, according to Deputy General Counsel Dell'Orto, "quite candid," and which were highly critical of DOJ's legal analysis. Senator Graham stated that he agreed with the analysis of the JAG lawyers—he explained that the problem was that DOJ did not heed the DoD lawyers' advice, and Graham contends that if the JAG lawyers' opinions are made public, they will make us "look good as a Nation." (Dell'Orto promised to provide the Senate with unclassified versions of those memos, but hinted that the Pentagon does not wish them to be made public, because they were part of the deliberative process.)

As for the March 14, 2003 John Yoo memo: All three of the JAG lawyers who testified about it confirmed that its legal analysis "alarmed" them, and they each agreed that its definition of "torture" was wrong. [For more on that question, see the posts beginning here.]

Dell'Orto confirmed that the Yoo memo was a "binding legal opinion" that governed DoD policy—in which case, as Senator Levin strongly argued, there is no good justification for not making it public. (Dell'Orto said he would get back to Senator Levin by early this week on his request for the memo.) Interestingly, however, Dell'Orto also testified (note the passive voice) that "we were asked not to rely upon it going back to December of 2003 and have not relied upon it since," and he further stated that the Yoo memo was formally "withdrawn as an operational document" in February of this year. It will be interesting to see whether DoD makes public not only the Yoo document, but also any documents from 2003 to date in which the Pentagon or DOJ has repudiated OLC's legal conclusions. It wouldn't be the first example of such an extraordinary about-face in this Administration.


It seems that this hearing casts some doubt on the D.C. Circuit's recent decision in Hamdan (joined in by prospective Supreme Court Justice John Roberts).

Part II of Hamdan claimed that the congressional authorization for use of force (let's leave aside for the moment any argument that Congress was misled in that authorization, cf. Holtzman v. Schlesinger, 484 F.2d 1307, 1315 (2nd Cir. 1973) (James L. Oakes, J., dissenting)) was a basis for the executive's use of military commissions.

If we take Senator Graham's comments at face value, though, it seems somewhat farfetched to conclude that Congress has already authorized military commissions via the authorization for the use of force. The Second Circuit has already concluded that strained interpretation is unsound, at least as to citizens, in the now-vacated (on other grounds) Padilla v. Rumsfeld, 352 F.3d 695 (2nd Cir. 2003).

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