Lawyer for State Dept. Disputed Detainee Memo Military Legal Advisers Also Questioned Tactics
Author: Jeffrey Smith
A letter about the handling of detainees sent in 2002 from the State Department's legal adviser to the Justice Department's deputy assistant attorney general made no attempt at bureaucratic pleasantries.
William H. Taft IV said that Justice's legal advice to President Bush about how to handle detainees in the war on terrorism was "seriously flawed" and its reasoning was "incorrect as well as incomplete." Justice's arguments were "contrary to the official position of the United States, the United Nations and all other states that have considered the issue," Taft said.
Taft's Jan. 11 letter, obtained by The Washington Post, was omitted from the hundreds of pages of documents released Tuesday by the Bush administration. The release was part of an effort to present the administration's policies on detainees since Sept. 11, 2001, as fully compliant with domestic and international law.
A fuller picture -- of senior administration officials who sought to reinterpret the law and sanction tougher treatment of detainees in the face of strongly expressed internal dissents at the State Department and the military services -- emerges from the State Department letter and other previously undisclosed memos.
The dissents include three classified memos written in the spring of 2003 by senior military lawyers in the Air Force, Marine Corps and Army, and a classified memo written by the Navy's top civilian lawyer, Alberto J. Mora, say government officials who have read them. Those officials, and others interviewed for this story, spoke on the condition that they not be named.
Two officials said the memos were written by Air Force Maj. Gen. Jack L. Rives, Marine Brig. Gen. Kevin M. Sandkuhler and Army Maj. Gen. Thomas J. Romig.
Their common theme, the official said, was that tough interrogation techniques being advocated by senior civilians at the Defense Department and by the commander of the military detention center at Guantanamo Bay, Cuba, would not only contravene longstanding military practice but also provoke a storm of public criticism if the tactics became known.
The military lawyers, the official said, argued that coercive interrogation techniques rarely produce data as reliable as the intelligence gleaned by rewarding prisoners who cooperate -- a view also expressed in the Army's field manual, as redrafted after the Vietnam War.
They also said that tough procedures being advocated were subject to abuse that could haunt U.S. policymakers and endanger U.S. military personnel detained by other countries.
Lawyers for the Joint Chiefs of Staff raised similar concerns -- about the specific interrogation tactics being proposed and the administration's decision that protections afforded by the Geneva Conventions were unavailable as a matter of law to suspected members of the Taliban militia in Afghanistan, according to a former military official familiar with the dispute.
"It was clearly the position of the senior leaders of the military that the Geneva Conventions should apply" to Taliban militia, the official said. Air Force Gen. Richard B. Myers, the Joint Chiefs chairman, "was very strong with the Secretary of Defense on a number of occasions" in expressing this viewpoint.
The official added that military lawyers attached to Central Command, which has jurisdiction over the Middle East, and to the Southern Command, which has jurisdiction over Guantanamo Bay, also favored holding military tribunals to determine the status of individual Taliban detainees and the Geneva Convention protections to which they were entitled.
The dissidents' complaints had limited impact, according to the documents and accounts of the administration's internal deliberations.
Taft, whose role made him the government's principal interpreter of treaties, accused John Yoo, the deputy assistant attorney general, in the Jan. 11 letter of preparing advice for Bush based on a series of "wrong" premises. He also said Yoo's idea that Bush could "suspend" U.S. obligations to respect the Geneva Conventions was "legally flawed and procedurally impossible."
"In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions," wrote Taft, who was the Defense Department's general counsel from 1981 to 1984. "I have no doubt we can do so here."
Bush nonetheless embraced the Justice Department's viewpoint and decided that the Geneva Conventions did not apply to combatants in Afghanistan. Secretary of State Colin L. Powell protested the decision and persuaded Bush to reconsider; Powell and Myers presented their views at a meeting with Bush, also attended by senior Justice and defense officials.
Alberto R. Gonzales, the White House counsel, advised Bush in a memo, however, that Powell was wrong and the Justice Department's analysis was "definitive." Gonzales said terrorist attacks "require a new approach in our actions toward captured terrorists," and noted that terrorists had never respected the Geneva Conventions' human rights protections.
On Feb. 7, 2002, Bush signed an order asserting his right to suspend the Geneva Conventions protections for Taliban suspects -- contrary to Taft's advice -- but saying he had decided not to do so at that time. Bush also declared that all Taliban militia were "unlawful combatants," and ineligible for tribunals.
One result of the rancorous debate, according to participants, was that Yoo, Attorney General John D. Ashcroft and senior civilians at the Pentagon no longer sought to include the State Department or the Joint Staff in deliberations about the precise protections afforded to detainees by the Geneva Conventions.
For example, the officials said, a 50-page Justice Department memo in August 2002 about the meaning of various anti-torture laws and treaties was not discussed or shared with the Joint Chiefs or the State Department. It was drafted by Justice for the CIA and sent directly to the White House.
The memo contended that only physically punishing acts of "an extreme nature" would constitute criminal violations, and that acts that were merely cruel, inhuman or degrading might not qualify. It asserted that those committing torture without the intent to cause lasting harm might be immune from prosecution.
"I'm confident that people would have raised questions" had they known about the memo, a knowledgeable official said. Senior officials repudiated portions of the memo on Tuesday, saying it contained "unnecessary" and "overbroad" arguments that were being re-evaluated.
Major dissent about the administration's interrogation practices next arose in late 2002 and early 2003, when military interrogators at Guantanamo Bay complained to superior officers that techniques they were asked to use were abusive. That provoked an extended Defense Department review, during which military lawyers for each of the services forcefully expressed their concerns, officials said.
"We had raised them verbally. We've raised them at the action officer level. Ultimately, some memos were, in fact, signed laying out some considerations that we believe were very important in the process," said a senior military lawyer who briefed reporters last month with the Pentagon's approval.
The lawyer chose his words carefully: "By the time the final draft . . . [on interrogation methods] was completed, those considerations had all been carefully evaluated."
He said the military lawyers were comfortable with the outcome "from a legal standpoint," but did not mention the policy concerns the memos had raised.
