The JAG Memos

by hilzoy

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.

Comments

[Francis]

I wonder what the other long-term consequences of the numerous assertions of executive power might be.

Assuming that the next president is a democratic and the senate stays republican, we can expect a sharp reversal of the congressional deference we're seeing now, and a repudiation of the Yoo memos.

I expect that there will continue to be significant reluctance to other countries joining our military adventures. that can always be blamed on the french, though.

what if the next president is a social conservative republican, though?

Is the conduct of this administration toward detainees just a black mark that will be seen as a mistake, like the incarceration of japanese americans in concentration camps, or will this imperial presidency lead to fundamental changes in how america acts and is acted upon in the world?

how would we know? It's not like this is a falsifiable proposition.

One way to tell, i guess, is if we see a rise of explicit economic anti-americanism in second world countries, like China, India, Russia and Brazil. If these countries take Peak Oil issues seriously, then they might see a benefit to seeing the US economy take a major long term downturn, so that there's enough cheap oil left when their economies industrialize.

and maybe, just maybe, this administration has engendered enough hatred and contempt around the world that the second world countries will deliberately try to trade around us.

i doubt it, though. we're still too wealthy. In 20 years we'll just look back at a time when we went collectively kinda nuts and forgot that many provisions of the Bill of Rights apply to all persons, not just all citizens.

[dmbeaster]

From Memo 2:

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."

Translation -- how to "Gitmoize" Abu Gharib.

These dissenting voices were ignored not because of the stupidity or ignorance of the Bush adminitration officials, but because these anti-torture voices were simply viewed as wrong and out of step with the official torture policy.

Rumsfeld and crew had to know that Abu Gharib was the outgrowth of the pro torture policy -- they lied like rugs about a "few bad apples."

You cannot be pro-Bush and anti-torture any more.

[Katherine]

Frist lost a cloture vote on the DoD bill so he's just shelving it until October.

In a way it's almost a good sign--it indicates a certain fear that McCain and Graham's amendments, if not Levin's, will pass.

Though the cloture vote was pretty close to party line. McCain & Graham are the only ones I'm certain voted no because of the torture stuff. I'm pretty sure three of the other no votes--Lott, Allard and Thune--were about military base closings, and I think the two ladies from Maine might have voted no on account of a combination of these things.

Warner and Specter cannot be counted on to actually do the right thing, ever, I think.

Question: the administration looks increasingly desperate about this. Defying court orders to release the photos, threatening to veto their own appropriations bill & then having to postpone them so there can't even be a debate. Is this because they know they're screwed if there's ever an independent investigation or sustained, front page, press coverage? Or is it because they think they've done nothing wrong?

[Jesurgislac]

Katherine: Is this because they know they're screwed if there's ever an independent investigation or sustained, front page, press coverage? Or is it because they think they've done nothing wrong?

Quite possibly both.

(1) They think they've done nothing wrong because only people who don't matter are being tortured and killed. (Bush's consistent claim about the prisoners in Guantanamo Bay was that they were all "bad men".)

(2) But they're aware that the US public - and large chunks of the US military - faced with the facts, won't agree that the people in the pictures don't matter, and won't agree that it doesn't matter that US soldiers have become torturers.

[bob mcmanus]

Of course, Thomas sayss he will report some some of "retirement bill" out sometime in September. I am not sure when the term of the Grand Jury ends, or if Fitzgerald can extend it. Or if the rumours floating around about firing Fitzgerald have a secret date attached, like immediately before indictments. Looks to me like they are planning a general s***storm in the fall, and hoping the chaos and tension work to their advantage.

MSM can at best cover 1 2/3 stories at a time, so keep hold of pretty young white females. One goes missing, Wolf and Chris would just throw up theie hands and say "It's too much, just too much."

[Nell]

Katherine, Warner is a cosponsor of McCain's and Graham's amendments. In the case of those amendments, I believe he will do the right thing.

It helps that we have six more weeks at least to light a fire under him, because he is a slippery one. (As an example, his defense L.A. answered my question yesterday about the difference between his amendment and McCain's on uniform interrogation standards by saying that Warner's version "gives the Pres. and DoD much more wiggle room." Just what they need.)

My call was to urge support for the Levin investigation amendment as well as the Republican ones, expressing the concern that, while necessary and welcome, they not be used as deflector shields. Warner has repeatedly made noises about the accountability for the torture needing to go higher, and an investigation is the only way. Of course he won't vote for it; Bush really would veto the defense bill if the Levin amendment were attached.

I'm deeply disturbed to learn (from Balkinization) that the Army plans to classify parts of the new field manual when it goes into use. That's unprecedented.

[Nell]

Katherine: Is this because they know they're screwed if there's ever an independent investigation or sustained, front page, press coverage? Or is it because they think they've done nothing wrong?

Rhetorical question? If really asking: the former. Some yahoos in the base may believe this gang has done nothing wrong; Rumsfeld, Cheney, and Bush know better. They just intend to do whatever it takes to get away with it.

[Anderson]

Btw, Katherine, the NY Times's latest story about "defying court orders to release the photos" (which Hilzoy picked up on) was erroneous, & they've issued a correction. Unfortunately, the Times wipes its corrections when it posts new ones, so the link I had is n.g. anymore.

Iirc, the deadline in question was for providing redacted copies of the photos, which the feds complied with. They took the opportunity to urge yet again against their being released.

[Katherine]

thanks, I hadn't seen that. good to know.

[hilzoy]

Thanks, Anderson. I just posted on this. Jeez.

[Jackmormon]

For me, the scariest part of Lederman's analysis came at the end:

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?

I desparately wanted to believe that this was a horrible, passing insanity. That all of the manoeuvring post-Abu Ghraib was legal CYA for past infractions, not legal cover for future plans. Ugh.