Building a legal framework for torture
By Jason Leopold
Online Journal Contributing Writer
Apr 4, 2008, 00:42
On Jan. 17, 2003, Mary Walker, the Air Force general
counsel, received an urgent memo from the Pentagon's top attorney. Attached to
the classified document was a set of directives drafted two days earlier by
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," the directives said.
Among the issues to be addressed were �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 [Defense Department] 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
John Yoo, then a deputy in the Justice Department�s Office
of Legal Counsel, drafted the document, dated March 14, 2003. It essentially
provided military interrogators with legal cover if they resorted to brutal and
violent methods to extract information from prisoners.
"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
The legal opinion for military interrogators was virtually
identical to an earlier memo that Yoo had written in August 2002 for CIA
interrogators. Widely called the �Torture Memo,� it provided CIA interrogators
with the legal authority to use long-outlawed tactics, such as waterboarding,
when interrogating so-called high-level terrorist suspects.
But Yoo�s legal opinions were 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 U.S.
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 Justice Department'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, representatives of the Joint Chiefs of Staff, and judge advocate
generals (JAGs) from all four branches of the military.
By the time Walker's group had settled in for its first
meeting, interrogators at Guantanamo Bay had already begun to violate the
To ratchet up pressure on prisoners, U.S. military personnel
were experimenting with unusual tactics, including placing women's underwear on
prisoners� heads, a technique that later reappeared in Iraq's Abu Ghraib
A military official, who took part in discussions with Mary
Walker�s group, told the Wall Street Journal in June 2004 that there was a
growing frustration among interrogators.
"We'd been at this for a year-plus and got nothing out
of them," the official said, adding that threats were even made against
the families of detainees.
The official said the message to a detainee would be:
"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."
Framing the debate
While Walker's report was being drafted, the group discussed
35 different interrogation techniques that could be used to obtain information
Early drafts of the report advocated intimidating prisoners
with dogs, removing prisoners' clothing, shaving their beards, slapping
prisoners in the face and waterboarding.
Though some of the more extreme techniques were dropped as
the list was winnowed down to 24 from 35, the final set of methods still
included tactics for isolating and demeaning a detainee, known as "pride
and ego down."
Such degrading tactics violated the Geneva Convention, which
bars abusive or demeaning treatment of captives.
The more extreme interrogation methods that made it into the
final draft of the report rankled some of the JAGs, who 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,� wrote Rear Adm. Michael Lohr, a
member of the "working group," in a February 2003 letter to Walker.
�How would such perceptions affect our ability to prosecute
the Global War on Terrorism," asked Lohr.
The admiral was so upset with the draft report and the
advice provided by the Justice Department that he requested Walker include a
sentence in the final report making it clear that the legal findings were based
exclusively on 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
"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
Maj. Gen. Thomas Romig, an Army JAG, and Brig. Gen. Kevin M.
Sandkuhler, a Marine Corps JAG, also voiced concerns, specifically the
determination that the 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.
Defending Bush�s authority
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 national security
were in jeopardy.
On March 6, 2003, eight days before Yoo issued his legal
opinion, Walker sent Rumsfeld a draft 53-page "working group" report
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, said 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," the report added.
Further, the report said that if a prisoner died as a result
of a brutal interrogation technique, the interrogator would not be subject to
prosecution if he had acted in a "good faith" effort to save lives.
"Good faith may be a complete defense," the report
said. "Sometimes the greater good for society will be accomplished by
violating the literal language of the criminal law.�
The report 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
Rumsfeld signed the final report on April 2, 2003, two weeks
after Bush ordered U.S. forces to invade Iraq.
One year later, photos depicting U.S. soldiers abusing and
humiliating detainees at Abu Ghraib prison in Iraq were publicly released.
The tide began to turn against Yoo's and Walker's expansive
attitudes toward presidential authority when Jack Goldsmith took over as chief
of the Office of Legal Counsel and, by early 2004, had rescinded Yoo's
On June 15, 2004, the Senate passed an amendment to the
Defense Authorization bill, backed by Republican Sen. Lindsay Graham, to give
JAGs the same legal authority as military attorneys, like Walker, who are
appointed by the president.
The amendment, dubbed the �Mary Walker bill,� was spurred by
complaints from JAGs who said Walker had ignored their legal concerns about the
interrogation of detainees at Guantanamo Bay.
In February 2008, the Justice Department�s Office of
Professional Responsibility (OPR) confirmed that it had launched a formal
investigation into whether Yoo and other attorneys in the Office of Legal
Counsel gave the White House poor legal advice in authorizing CIA interrogators
to use waterboarding to glean information about terrorist plots from prisoners.
In effect, the legal opinions from Walker and Yoo sought to
provide a basis for the Bush administration to circumvent U.S. and
international laws prohibiting torture of prisoners.
Immediately after the 9/11 attacks, the United Nations
Committee Against Torture reaffirmed the prohibitions contained in the 1984
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
The convention -- approved by 145 nations, including the
United States -- states 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 individuals who resort to
torture cannot defend their actions by saying they were acting on orders from
The United States signed the Convention Against Torture in
1988 under President Ronald Reagan, who hailed it as �a significant step� in
preventing torture, which he called �an abhorrent practice unfortunately still
prevalent in the world today.�
In a May 20, 1988, message to the U.S. Senate, Reagan noted
that �the core provisions of the Convention establish a regime for
international cooperation in the criminal prosecution of torturers relying on
so-called �universal jurisdiction.�
�Each state party is required either to prosecute torturers
who are found in its territory or to extradite them to other countries for
It was this convention, ratified by the Senate in 1994, that
Walker, Yoo and other Bush administration officials sought to bypass.
Although the treaty mandates that the United States
cooperate in the criminal prosecution of torturers, the administration's
post-9/11 legal opinions sought to shield American interrogators.
The Walker report, which was tailored to fit with Yoo�s
legal arguments, advised military interrogators that they could defend their
actions by saying Justice Department lawyers told them that their methods were
reporter Jason Leopold is the author of News Junkie, a memoir. Visit www.newsjunkiebook.com for a
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