By William Fisher
As early as March 2003, senior military lawyers complained to the Pentagon about the Justice Department's definition of torture and how it would be applied to interrogations of enemy prisoners captured by U.S. forces.
The lawyers were reportedly concerned that broadly defined, tough interrogation tactics would not only contravene long-standing military doctrine -- leaving too much room for interpretation by interrogators -- but also would cause public outrage if the tactics became known.
The disclosure – the first public acknowledgement of internal Defense Department disagreements over the issue – was made during a Senate hearing. The judge advocate generals (JAGs) for the Army, Air Force and Marines said they expressed their concerns during policy discussions in March and April 2003.
"We did express opposition," said Maj. Gen. Thomas J. Romig, the Army's top lawyer. "It was accepted in some cases, maybe not in all cases. It did modify the proposed list of policies and procedures."
Republican Sen. Lindsay O. Graham of South Carolina, the reserve JAG officer who chaired the Armed Services subcommittee hearing, said he was concerned that the objections were not taken seriously enough, and that the resulting policy may have triggered the abuses at U.S. detention facilities around the world.
"If they had listened to you from the outset, we wouldn't have a lot of the
problems we've dealt with" over the past two years, Graham said.
Graham, along with two other Republican senators, John McCain of Arizona and John Warner of Virginia, recently introduced an amendment to the Defense Authorization bill that would establish the Uniform Code of Military Justice (UCMJ) as the governing authority for prisoner interrogations. The UCMJ confirms the applicability of the Geneva Conventions to all detainees.
At the hearing, the Army's judge advocate general, Maj. Gen. Thomas Romig, said he cautioned the DOD that the Justice Department analysis could damage military "interests worldwide … putting our service personnel at far greater risk and vitiating many of the POW/detainee safeguards the U.S. has worked hard to establish over the past five decades."
Marine Corps JAG Brig. Gen. Kevin Sandkuhler said he cautioned that the techniques suggested by the Justice Department would "adversely impact … public support and respect of U.S. armed forces [and] pride, discipline, and self-respect within the U.S. armed forces." Also at risk would be military intelligence-gathering, efforts to encourage enemies to surrender and efforts to obtain support from allied nations.
Navy JAG Rear Adm. Michael Lohr said he wrote the DOD cautioning that at least one of the interrogation techniques suggested by the Justice Department "constitutes torture under both domestic and international law."
If harsh interrogation techniques are used, he asked in his letter to the DOD, "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?"
Sen. Carl M. Levin of Michigan, the senior Democrat on the committee, asked the JAGs if they felt the tactics recently reported by investigators were consistent with Geneva Conventions prohibitions on torture.
Air Force Maj. Gen. Jack Rives said he believed they were inconsistent.
Levin also asked the generals if they would want U.S. prisoners of war treated that way. "No, Senator, we would not," Rives said.
Rives warned the general counsel's office at the Pentagon that "several of the more extreme interrogation techniques, on their face, amount to violations of domestic criminal law and the (UCMJ)"
According to senators at the hearing, the JAG concerns were overruled by the DOD general counsel's office. Pentagon spokesman Lawrence T. Di Rita said their views were weighed along with those of intelligence and policy officials. The result, he said, was a “collaborative document”.
Di Rita said a new department-wide interrogations policy is being developed
and will "reflect the input of everyone who has a stake in it." The Army is also revising its field manual instructions on interrogations, he said.
The JAGs’ concerns were reportedly part of an internal debate during the formulation of the policy on treatment and interrogation of detainees in Iraq, Afghanistan and Guantanamo Bay.
The State Department's legal adviser weighed in even earlier than the JAG officers. In 2002, State expressed concerns that the Bush administration had ignored the Geneva Conventions in deciding how to treat captured members of al Qaeda and the Taliban.
The Administration’s position was – and is – that because such captives have been categorized as "enemy combatants" and not prisoners of war, rules governing their detention are not subject to the Geneva Conventions. The White House has merely said they would be “treated humanely”.
But a military investigation into abuse at Guantanamo Bay found that a number of specific interrogation tactics -- such as forced nudity and the use of military working dogs -- were used at Guantanamo Bay to extract information from a high-value detainee. They were considered "authorized" by the Army field manual and Defense Department guidance and were therefore not considered abusive.
Identical tactics were later used at Iraq's Abu Ghraib prison, after Guantanamo’s commander, Maj. Gen. Geoffrey Miller, was transferred to Iraq. An Army investigation of abuses at Guantanamo recommended that Gen. Miller be reprimanded, but the recommendation was overruled.
The issue of prisoner treatment has come under increasing scrutiny since the release of the photos from Abu Ghraib prison in Iraq, showing soldiers abusing prisoners there. The American Civil Liberties Union (ACLU) is currently suing the DOD demanding release of additional photos from that location, and the DOD has gone to court to defend its refusal to release the photos under the Freedom of Information Act (FOIA).
The abuse firestorm has been fuelled by disclosure of early memos from the Department of Justice and then White House Counsel Alberto Gonzales, now Attorney General, redefining the meaning of ‘torture’.