Death of Prisoner Justified If Interrogator Acted in ‘Good Faith,’ Report Said
Mary Walker, the former Air Force general counsel, received an urgent memo http://www.washingtonpost.com/wp-srv/nation/documents/011703haynes.pdf from the Pentagon's top attorney on Jan. 17, 2003.
Attached to the classified document was a set of directives http://www.washingtonpost.com/wp-srv/nation/documents/011503rumsfelda.pdf drafted two days earlier by then-Secretary of Defense Donald Rumsfeld.
"Establish a working group within the Department of Defense to assess the legal, policy and operational issues relating
to the interrogations of detainees held by the U.S. Armed Forces in the war on terrorism," a copy of the memo said. "The
working group should address and make recommendations as warranted on the following issues: legal considerations raised
by detainees held by U.S. Armed Forces. Policy considerations with respect to the choice of interrogation techniques,
including, contribution to intelligence collection, effect on treatment of captured U.S. military personnel, effect on
detainee prosecutions, historical role of U.S. armed forces in conducting interrogations, recommendations for employment
of particular interrogation techniques by [Department of Defense] interrogators."
Earlier this week, the Defense Department turned over an 81-page document to the American Civil Liberties Union in a
Freedom of Information Act lawsuit that provides further insight into the extraordinary executive branch powers granted
to President George W. Bush following the 9/11 attacks. John Yoo, a former deputy in the Justice Department’s Office of
Legal Counsel who had also written the August 2002 legal opinion widely referred to as the “Torture Memo”, drafted the
document, dated March 14, 2003. The August 2002 memo provided CIA interrogators with the legal authority to use
long-outlawed tactics, such as waterboarding, when interrogating so-called high-level terrorist detainees.
Yoo's March 14, 2003 memo, declassified Tuesday, essentially provided military interrogators with legal cover in the
event that they resorted to brutal and violent methods to extract information from prisoners. It is virtually identical
to the memo he prepared for CIA interrogators.
"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably
violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al
Qaeda terrorist network," Yoo wrote. "In that case, we believe that he could argue that the executive branch's
constitutional authority to protect the nation from attack justified his actions."
But the legal opinion, rescinded in early 2004, was not entirely the work of Yoo.
In early January 2003, commanders stationed at Guantanamo Bay prison in Cuba complained to Rumsfeld that military
officials were unable to glean information from prisoners about alleged terrorist plots in the US and abroad using
conventional interrogation methods. Following his conversation with military officials, on Jan. 15, 2003, Rumsfeld sent
William Haynes II, the Pentagon's general counsel, a memo requesting that he form a "working group" to determine what
methods military interrogators could use to extract information from a prisoner at Guantanamo Bay. Haynes asked the
DOJ's Office of Legal Counsel for guidance and selected Walker to chair a "working group" to write a report on legally
permissible interrogation techniques. The members of the group included former Undersecretary of Defense for policy
Douglas Feith, officials from the Defense Intelligence Agency officials, the Joint Chiefs of Staff, and judge advocate
generals (JAG's) from all four branches of the military.
But by the time the Walker's group had settled in for its first meeting, interrogators at Guantanamo Bay had already
begun to violate the Geneva Convention.
"People were trying like hell how to ratchet up the pressure," and used techniques that ranged from drawing on
prisoners' bodies, placing women's underwear on prisoners heads -- a practice that later reappeared in Iraq's Abu Ghraib
prison -- to telling subjects, "I'm on the line with somebody in Yemen and he's in a room with your family and a grenade
that's going to pop unless you talk," a military official, who took part in discussions with Mary Walker's "working
group," told the Wall Street Journal in June 2004. "We'd been at this for a year-plus and got nothing out of them."
Immediately following 9/11, the United Nations Committee Against Torture reaffirmed the policies in the 1984 Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment stating that "no exceptional circumstances
whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may
be invoked as a justification of torture." Moreover, the convention says that individuals who resort to torture cannot
defend their actions by saying they were acting on orders from superiors and that orders from superiors. It was this
policy signed by 142 nations that Walker and members of the "working group" sought to bypass. The report added that
interrogators accused of torture should be advised that they could defend their actions by saying Justice Department
lawyers told them their methods were legal.
While Walker's report was being drafted, the group discussed 35 different interrogation techniques that could be used to
obtain information from prisoners. The group settled on 24 of the 35 methods. 17 of which appeared in Army field
manuals. Early drafts of the report advocated intimidating prisoners with dogs, removing prisoners' clothing, shaving
their beards, slapping prisoners in the face and waterboarding. Still, the final set of methods, which included
isolation, and "attacking or insulting the ego of a detainee", referred to as "pride and ego down" violated the Geneva
Convention.
Still, more extreme interrogation methods that made it into the final draft of the report rankled some of the JAG's who
participated in the working group. The military lawyers feared the methods would put U.S. soldiers in danger if they
were captured and would tarnish the reputation and image of the U.S. abroad.
"Will the American people find we have missed the forest for the trees by condoning practices that, while technically
legal, are inconsistent with our most fundamental values. How would such perceptions affect our ability to prosecute the
Global War on Terrorism," wrote http://balkin.blogspot.com/jag.memos.pdf Rear Adm. Michael Lohr, a member of the "working group," in a February 2003 letter to Walker. Lohr was so upset with
the draft report and the advice provided by the DOJ that he requested Walker include a sentence in the final report
making it clear that the legal findings were based exclusively attorneys in the Justice Department's Office of Legal
Counsel.
Lohr was not alone. Maj. Gen. Jack Rives, who at the time was judge advocate general of the Air Force, also wrote a
letter to Walker warning that the interrogation techniques in the report would violate military law.
"Several of the exceptional techniques, on their face, amount to violations of domestic criminal law and the [Uniform
Code of Military Justice]," Rives wrote. "Treating detainees inconsistently with the [Geneva] Convention arguably
"lowers the bar" for the treatment of U.S. POW's in future conflicts."
Maj. Gen. Thomas Romig, an Army JAG, and Brig. Gen. Kevin M. Sandkuhler, a Marine Corps JAG, also verbalized their
concerns, specifically, the determination that president has the power to override the Uniform Code of Military Justice
and other federal statutes and international treaties in the name of national security.
Walker's group addressed these concerns, according to the report, by stating, in legal terms, that the president had the
constitutional authority as commander-in-chief to ignore torture laws if it meant national security was in jeopardy.
On March 6, 2003, eight days before Yoo issued his legal opinion, and five days before the U.S. invaded Iraq, Walker
sent Rumsfeld a draft 53-page "working group" report http://www.texscience.org/reform/torture/dod-detainee-interro-6mar03.pdf that said international treaties forbidding torture did not apply to prisoners held at Guantanamo Bay. The report,
which asserted that President Bush had "sweeping" powers as commander-in-chief of the armed forces, was produced in less
than two months. It said President Bush could suspend international laws and treaties governing torture in the name of
national security.
"In order to respect the president's inherent constitutional authority to manage a military campaign . . . (the
prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in
chief authority," the report stated. The Justice Department could not prosecute military interrogators "who had acted
pursuant to an exercise of the president's constitutional power."
Further, the report said if a prisoner died as a result of brutal interrogation technique the interrogator would not be
subject to prosecution if he acted in "good faith" and attempted to save lives.
"Good faith may be a complete defense," the report says. "Sometimes the greater good for society will be accomplished by
violating the literal language of the criminal law," the report said and cited a legal text, "Substantive Criminal Law"
by Wayne LaFave and Austin W. Scott to support the legality of the interrogation methods. "In particular, the necessity
defense can justify the intentional killing of one person . . . so long as the harm avoided is greater."
In an Aug. 16, 2004 report published in Legal Times Walker "tailored her report around Yoo's arguments." Her "legal
reviewwas to authorize what OLC had done." Legal Times spoke to an anonymous Pentagon attorney who told the paper that
Walker actually invited an OLC lawyer "to edit" the working report to ensure its compatibility with that office's
opinion."
Rumsfeld signed the final report on April 2, 2003. One year later, photos depicting U.S. soldiers abusing, and
humiliating detainees at Abu Ghraib prison in Iraq are publicly released.
On June 15, 2004, the Senate passed an amendment to the Defense Authorization Bill backed by Republican Sen. Lindsay
Graham, a JAG that gave JAGs the same legal authority as military attorneys, such as Walker, who are appointed by the
president. JAG’s who said Walker ignored their legal concerns involving the interrogation of detainees at Guantanamo Bay
spurred the amendment.
The amendment was dubbed the "Mary Walker bill."
In late February, the DOJ's Office of Professional Responsibility (OPR) confirmed that it launched a formal
investigation to determine whether Yoo and other attorneys in the DOJ's Office of Legal Counsel provided the White House
with poor legal advice when it drafted legal opinions authorizing CIA interrogators to use waterboarding to glean
information about terrorist plots from prisoners.
The investigation centers on a health benefits statute Yoo relied upon to form the legal basis for the August 2002
"Torture Memo."
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Jason Leopold is the author of the National Bestseller, "News Junkie," a memoir. Visit www.newsjunkiebook.com for a
preview. He is also a two-time winner of the Project Censored award, most recently, in 2007, for an investigative story
related to Halliburton's work in Iran. He was recently named the recipient of the Military Religious Freedom
Foundation's Thomas Jefferson Award for a series of stories he wrote that exposed how soldiers in Iraq and Afghanistan
have been pressured to accept fundamentalist Christianity. Leopold is working on a new nonprofit online publication,
expected to launch soon.