Wednesday, July 27, 2005

The Heroes of the Pentagon's Interrogation Scandal -- Finally, the JAG Memos

Marty Lederman

On Monday, the Senate began consideration of several amendments to the annual Defense Authorization Act that would codify certain standards for interrogation of detainees in what was the Global War on Terror (but what is apparently to be known henceforth as the (perpetual) "Global Struggle Against Violent Extremism"). Yesterday, the Administration decided that it would rather put off the Authorization bill until after Labor Day, rather than risk any chance that it would be prohibited from engaging in cruel, inhuman and degrading conduct.

The Senate debate nevertheless was extremely valuable, because Senator Lindsey Graham submitted into the Congressional Record six remarkable memos written by Judge Advocate Generals of the Armed Forces during February and March of 2003. [In addition to that pdf file, I’ve republished the memos as a separate post, below.] The Senate Armed Services Committee requested these memos in October of last year, but DoD just recently declassified them. (An aside: As anyone who reads the memos can plainly see, there was no justification for classifying these memos, and from all that appears they were classified merely to prevent public debate about an important Administration policy. The improper classification of numerous Administration documents in this affair—including even the Church Report and its accompanying documents—is a scandal onto itself, but is not the topic of this post.)

The memos are extraordinary. They are written by JAGs from the Air Force, Navy, Army and Marines. As Senator Graham put it on Monday, these folks "are not from the ACLU. These are not from people who are soft on terrorism, who want to coddle foreign terrorists. These are all professional military lawyers who have dedicated their lives, with 20-plus year careers, to serving the men and women in uniform and protecting their Nation. They were giving a warning shot across the bow of the policymakers that there are certain corners you cannot afford to cut because you will wind up meeting yourself."

A bit of context, for those who may not have been following my (perhaps interminable) series of posts: From the mid-1960's until February 2002, military interrogations were governed by the (relatively) non-coercive techniques described in Army Field Manual 34-52, which (in theory) describes only techniques that would be permissible to use on POWs under the Geneva Conventions, the Uniform Code of Military Justice, and other federal laws. Generations of military personnel were trained in the specifics of Geneva and the Field Manual. In February 2002, however, the President determined that the "principles" of the Geneva Conventions would apply to detainees at GTMO only "to the extent appropriate and consistent with military necessity," thereby deviating from more than a half-century of U.S. policy and practice of adhering to at least the minimum protections afforded under Common Article 3 of the Conventions (which forbids "outrages upon personal dignity, in particular humiliating and degrading treatment").

And in late 2002, Secretary Rumsfeld approved for use, on at least one GTMO detainee, several interrogation techniques that went beyond what the Field Manual had recognized. General Miller and others at GTMO construed this authorization to permit treatment that the military itself now concedes is "abusive and degrading," but which the military to this day insists does not result in any violation of a U.S. law or policy.

In December 2002, career attorneys and others at the Pentagon raised serious legal, policy and practical objections to what the Secretary had approved, and, heeding the outcries, in January 2003 Rumsfeld suspended his approvals and ordered a review of military interrogation techniques by a DoD Working Group. As is now confirmed by these JAG memos, from the outset the Working Group’s extensive legal analysis was crafted almost entirely by the Office of Legal Counsel at the Department of Justice—by Deputy Assistant Attorney General John Yoo, in particular—and it largely tracked the extremely, shall we say, "novel" and "forward-looking" analysis contained in the now-notorious OLC "Torture Memo" of August 1, 2002. As Navy Rear Admiral Michael Lohr explains, the draft Working Group Reports—including the version of March 6, 2003, parts of which have been made public—not only were "informed" by OLC's analysis, but contain "large segments of DOJ work product," which "forms, almost exclusively, the legal framework for the Report's conclusions, Recommendations and PowerPoint spreadsheet analysis of the interrogation techniques in issue."

These six memos, written between February 5th and March 13th of 2003, provide the JAGs’ reaction to OLC’s handiwork.

It is fair to say that these accounts reflected sustained, uniform and passionate opposition to the OLC legal theories that were being foisted upon the military. Indeed, the tone of the memos is one of barely concealed incredulity, and outrage—disbelief—that a young legal academic from DOJ could sweep right in and so quickly overturn decades of carefully wrought military policy, using legal analysis that almost certainly would not withstand scrutiny outside the Administration and around the world. [I canvass some of the more striking aspects of the legal debate in some notes below.]

In particular, these memos eloquently warn of the grave harms that could result from such a radical shift in policies and legal understandings—harms not only to the prospects for nation's efforts to stop terrorism, but also to military interrogators and officers who could face domestic and international prosecution for engaging in such conduct, and, most importantly, to U.S. forces who are themselves detained in this and future conflicts. (One of the memos stresses, almost despairingly, that because "OLC does not represent the services," concern for servicemembers "is not reflected in their opinion.") As Air Force Major General Jack Reves wrote:

[T]he use of the more extreme interrogation techniques simply is not how the U.S. armed forces have operated in recent history. We have taken the legal and moral "high-road" in the conduct of our military operations regardless of how others may operate. Our forces are trained in this legal and moral mindset beginning the day they enter active duty. It should be noted that law of armed conflict and code of conduct training have been mandated by Congress and emphasized since the Viet Nam conflict when our POWs were subjected to torture by their captors. We need to consider the overall impact of approving extreme interrogation techniques as giving official approval and legal sanction to the application of interrogation techniques that U.S. forces have consistently been trained are unlawful.

These memos reveal the JAGs as the real heroes of this story. Indeed, it's uncanny how prescient these memos were. As Senator Graham said on Monday, "the JAGS were telling the policymakers: If you go down this road, you are going to get your own people in trouble. You are on a slippery slope. You are going to lose the moral high ground. This was 2003. And they were absolutely right."

On March 14, 2003, just one day after the last of these memos was written, John Yoo delivered a memo to DoD General Counsel William Haynes, addressing the legal issues that had become the subject of the Pentagon debate. According to Senator Levin's account of the Church Report, once that memo was received, the debate was over—and the JAGs had lost, by decree of (at least) John Yoo and William Haynes: The DoD Working Group "was stopped from developing its own legal analysis and instead, was required to accept the legal analysis contained in [the March 14th] memorandum . . ., a memorandum [with] which the working group strongly disagreed. . . . This memo was presented, as [the Church] report indicates, to the working group as 'controlling authority' on all legal issues." And, indeed, the Yoo analysis appears, in full-throated form, in the Working Group's final Report, issued April 4, 2003.

Senator Levin has been asking DoD for the March 14th John Yoo memo for several months. Finally, last week, DoD informed the Senator that whether to release the memo is not a DoD decision, and that the request should be put to DOJ. There is simply no excuse for the continued withholding of this vitally important memo—a memo that, among other things, apparently expresses the view (not later repudiated by the Justice Department) that the Commander-in-Chief Clause gives the President the power to authorize violations of statutes such as the federal assault statute and the Uniform Code of Military Justice.

Is this entire contretemps merely a matter of historical record, with no particular relevance to the military's interrogation policies going forward? The Pentagon has suggested as much. In a hearing that Senator Graham chaired two weeks ago, a Pentagon Deputy General Counsel testified that DoD was "asked not to rely upon [the Yoo memo] going back to December of 2003 and [we] have not relied upon it since," and he further stated that the Yoo memo was formally "withdrawn as an operational document" in February 2005. (More on this soon, I hope.) Moreover, the military is currently working on a revised version of the Army Field Manual, which will be designed to guide all interrogations within the Armed Services, ostensibly in accord with all applicable legal constraints. (Unfortunately, the Pentagon plans to classify parts of it—something it has never done in the past.)

Unfortunately, however, the notion that this was all simply a problem during an unfortunate 12- to 14-month period two years ago is belied by the fact that the Administration—the Vice President, in particular—is pulling out all the stops in trying to prevent Congress from requiring the military to adhere to the Field Manual and from prohibiting cruel, inhuman and degrading treatment of detainees. If the Yoo analysis were truly a repudiated thing of the past, an unfortunate historical anomaly, why would the Administration hold up—and threaten to veto—the vitally important defense authorization bill, for fear of being saddled with extremely modest requirements that, as the JAGs explain, had served us very well for many decades?

[UPDATE: Terrific piece today by Spencer Ackerman at the New Republic, on why the JAG memos are important and on how the media have failed to adequately cover the story because they're cowed by the Newsweek/koran episode.]

* * * *

Here are a few of the legal highlights from the JAG memos. Even my overlong summary here, however, cannot do justice to these memos. Just read them. (They’re not long.)

1. The JAGs acknowledge what I have been trying to piece together on this blog for some time—namely, that OLC was crafting a series of legal moves to render GTMO virtually a law-free zone—a place in which numerous legal restrictions on interrogation did not apply. In the words of one of the memos, OLC's analysis established a "unique situation in GTMO where the protections of the Geneva Coventions, U.S. statutes, and even the Constitution do not apply." The key moves in this strategy were (i) the President's determination not to apply the standards of the Geneva Convention (even the most minimal protections of Common Article 3); (ii) the conclusion that the President could choose not to comply with customary international law; and (iii) the legal conclusions that because these detainees were "unlawful combatants" being held "outside" the U.S. (quotation marks in JAG memo), they are not protected by the Due Process Clause or by Article 16 of the Convention Against Torture.

2. The JAGs warned that if DoD embraced this clever strategy, in which there's a technical legal justification for ignoring every presumed legal restriction, "the American people will find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values," which would "affect our ability to prosecute the Global War on Terrorism."

3. Even so, there was widespread agreement that some of the techniques would violate the UCMJ and other criminal statutes, which still presented a hurdle that OLC sought to overcome. Yoo's theory for circumventing the UCMJ problem (and other statutory restrictions) was the "exceptionally broad" Commander-in-Chief "defense"—i.e., the theory that the UCMJ is unconstitutional to the extent it prevents the President from doing what he wishes to do in the current conflict. (As of February 27, 2003, however, the OLC work product apparently did not expressly speak about the UCMJ in particular).

4. It was Yoo who suggested that the Report recommend a written presidential directive that would grant immunity from criminal culpability for interrogators who would be acting in a manner prohibited by federal law.

5. Under OLC's theory, any presidential decision made in the context of the GWOT is a "controlling Executive act" that can supersede customary international law.

6. The purpose of the proposed (and approved) "false flag" technique—in which a detainee is led to believe he is being interrogated by foreign officials—was, indeed, to put detainees in fear of being transferred to a nation where they would be killed or injured—and that although it would be impermissible to inform a detainee of such possible consequences, the acknowledged objective was "to allow the detainee to form [his] own conclusions about such a [threatened false] move."

7. The final, April 4, 2003 Working Group report discussed 35 techniques. However, the draft March 6, 2003 Working Group report included a mystery, unnamed 36th technique (in a section of the draft that has not yet been made public)—a technique that the Working Group concluded "would constitute torture under international and U.S. law"; and there apparently was a possibility that Secretary Rumsfeld would approve this technique No. 36, although there's no indication that he ever did so. [I'm guessing it was water-boarding, and that Yoo concluded that it was not torture, in conformity with advice DOJ gave to the CIA in 2002. But that's pure surmise.]


Reading these memoranda, crafted by the senior-most echelon of the nation's uniformed JAG corps, one can only be filled with admiration for the professionalism, vision and courage of the authors. It has taken a year for documents to emerge in this scandal that reflect the work of honest, conscientious, prudent lawyers and soldiers at the Defense Department. Bravo to Lindsey Graham, John McCain and John Warner for showing us that there are Republicans who put country ahead of party, and who value and defend the traditions of our uniformed services.

And thanks, too, to Marty Lederman for his ever insightful and articulate comments. True, we should all read these memos. But don't fail to read Marty's comments. He does a terrific job of putting them firmly in context.

If United States vs Altstoetter is still good law, then the work of John Yoo and William J Haynes that we see reflected through these memos may well have cross the line from privileged legal advice into criminal conspiracy. It should in any event be thoroughly investigated, and the professional disciplinary organs should be giving the work of these two gentlemen a careful review. I question whether either of them should be giving legal advice to a Government in the future, and I shudder at the thought of Yoo teaching young students about international humanitarian law.

Can someone smarter than I reconcile (i) the determination that GTMO is a "unique situation" where "the Constitution does not apply" and (ii) the appeal to Constitutional authority in the Executive for the "exceptionally broad" Commander-in-Chief "defense"?

In response to ipslore: "The Constitution does not apply" is a shorthand. What the Administration means is that the *Fifth Amendment's Due Process Clause* does not apply to protect aliens detained at GTMO (or in other overseas locations). This *incredibly important* constitutional question is currently at issue in the Rasul/Al Odah case on appeal to the D.C. Circuit.

In response to diogenes:

Thanks so much for the kind words. Take what I'm about to write with a grain of salt, because I was an OLC attorney and thus perhaps I'm biased: Assume -- as I do -- that John Yoo and David Addington sincerely *believed* that the legal advice they were giving was correct, or at least colorable, and that they did not intend thereby to facilitate conduct that they believed was unlawful. Under standard conspiracy law -- or the "law" of Altstoetter -- could there nevertheless be culpability? The prospect that sincere and candid legal advice -- however wrong -- could render an attorney culpable for the ensuing conduct if it is deemed to have been unlawful, doesn't sound right, and makes me nervous. But perhaps I'm missing something.

"The Constitution does not apply" is a shorthand. [... == *Fifth Amendment's Due Process Clause*]

A-ha. Cursed shorthand. Thank you for the clarification

Marty, the question you raise is whether legal advice rendered in good faith is shielded. Certainly by and large that is the case for legal advice, and a rule that lawyers can take some comfort in. However, United States v. Altstoetter made very clear that this defense is not available in one particular corner of international law - the rules of the law of armed conflict dictated by the Geneva Conventions and the Hague Convention. Altstoetter says quite clearly that the sort of niggling technical arguments that lawyers make every day in the discharge of their duties can be made in this area of the law only subject to serious peril for lawyers. Remember that in Altstoetter two Justice Department lawyers who made arguments remarkably like Yoo's were sentenced to 10 years (less time served) for their efforts, and they made a sustained good-faith interpretation argument in their defense. The tribunal didn't buy it. The tribunal was right. There are very solid jurisprudential reasons to treat this area of law (especially surrounding torture and serious abuse of combatants and civilians in wartime) differently and to be very severe in judging those who break (or as Sen Graham would say - play cute with) the law. Jeremy Waldron's superlative article in Columbia Law Review makes this point in spades.
But is it fair to say that John Yoo's arguments are made in good faith? I think not. I don't think any serious scholar of this area of the law could buy them. Yoo's colleague Flanigan called them "sophomoric" in today's New York Times. That seems to me a reasonable characterization. I could go on, but there is already a lot of scholarship out there in print saying that Yoo's views are too absurd to garner the good-faith defense.

The New Republic article provided a useful .html link (thanks to a website known for their usefulness in this area) that might be better for those with problems with .pdf files.

Well, Diogenes, I don't want to rain any realism on your parade, but don't you have to, like, lose a war before Alstoetter applies?

...professionalism, vision and courage of the authors.

Far from it.

The authors persistently reach incorrect conclusions, conclusions in direct opposition to those enunciated by the highest organs of the Party.

This sort of deviationism, masqerading as 'professionalism, 'vision' and 'courage', leads to open contradiction of the statements of the highest organs of the Party.

Behavior of this sort has already turned our Intelligence Services into a dangerous threat to the security of the State.

The military exists to serve the State, not the other way round, and there is no better way, in fact, no other way, to serve the State than to serve the Party.

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