Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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
by Marty Lederman [link]
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.
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.
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
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...'
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.