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. .... 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.") 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." ... 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? Much more including the text of six memos. http://balkin.blogspot.com/2005/07/heroes-of-pentagons-interrogation.html Gary Denton http://www.apollocon.org June 23-25, 2006 Easter Lemming Blogs http://elemming.blogspot.com http://elemming2.blogspot.com
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