As Bob McManus noted in comments elsewhere, Marty Lederman at Balkinization has two really good posts today. (Actually, anyone who is interested in torture and our treatment of detainees should just bookmark Balkinization and read it daily.) The first is a discussion of a series of extraordinary memos written by the JAG offices of the four armed services in response to drafts of the Office of Legal Counsel's memo on torture; the second provides the memos themselves.
The memos consistently oppose the position taken by the OLC. They make various arguments: that "several of the more extreme interrogation techniques, on their face, amount to violations of domestic criminal law and the UCMJ (e.g., assault)" (Memo 1); that while the OLC thinks these laws do not apply to prisoners in Guantanamo, "I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum" (Army JAG, Memo 5), and that adopting these techniques puts our soldiers at risk of prosecution; that torture would damage our interests abroad and endanger any US troops who were subsequently captured; that if our use of these "interrogation techniques" became public, it might damage support for the war on terror; and that these techniques are "of questionable practical value in obtaining reliable information from those being interrogated." (Memo 5).
To me, though, the saddest part of the memos concerned the effects of allowing torture on the military itself. Here's Memo 2, written by the Air Force JAG:
"The cultural and self-image of the U.S. Armed Forces suffered during the Vietnam conflict and at other times due to perceived law of armed conflict violations. DoD policy, indoctrinated in the DoD Law of War Program in 1979 and subsequent service regulations, greatly restored the culture and self-image of U.S. Armed Forces. U.S. Armed Forces are continuously trained to take the legal and moral "high-road" in the conduct of our military operations regardless of how others may operate. While the detainees' status as unlawful belligerents may not entitle them to protections of the Geneva Conventions, that is a legal distinction that may be lost on the members of the armed forces. Approving exceptional interrogation techniques may be seen as giving official approval and legal sanction to the application of interrogation techniques that U.S. Armed Forces have heretofore been trained are unlawful."
And from Memo 4, written by a Brigadier General in the Marine Corps:
"2. The common thread among our recommendations is concern for servicemembers. OLC does not represent the services; thus, understandably, concern for servicemembers is not reflected in their opinion. Notably, their opinion is silent on the UCMJ and foreign views of international law.
3. We nonetheless recommend that the Working Group product accurately portray the services' concerns that the authorization of aggressive counter-resistance techniques by servicemembers will adversely impact the following:
a. Treatment of U.S. Servicemembers by Captors and compliance with International Law.
b. Criminal and Civil Liability of DOD Military and Civilian Personnel in Domestic, Foreign, and International Forums.
c. U.S. and International Public Support and Respect of U.S. Armed Forces.
d. Pride, Discipline, and Self-Respect within the U.S. Armed Forces.
e. Human Intelligence Exploitation and Surrender of Foreign Enemy Forces, and Cooperation and Support of Friendly Nations."
These memos are written by people who know that both the morale of men and women in the military and popular support for the armed services depend in part on their being the good guys, and that the military has worked hard to train its members to act within the laws of war and to know the difference between right and wrong; and who are watching their civilian leadership put all that at risk unthinkingly. They also know that the techniques on the table were illegal. They had the guts to say so, and they were ignored, just as Rumsfeld ignored the generals who said we needed more troops, and the people with post-conflict experience who said we needed a serious plan for the occupation of Iraq. And though John Yoo, Alberto Gonzales, and Donald Rumsfeld don't seem to have paid any price for getting things so badly wrong, we will all have to live with the consequences of their arrogance.
As will the detainees their policies were carried out on.