Zeno Swijtink
06-18-2008, 11:12 PM
My friend wrote me: "No one but a poor sad girl with a rural West Virginia high school education, one step from the lowest rank in the Army, and her boyfriend no better educated and just a few enlisted ranks higher, has been held accountable in any serious way for what it is now clear was policy of war crimes direct from the Oval office. That these are war crimes as the general who looked into this states explicitly - as reported in another story in today's edition - is no longer a matter of debate. It is time to drag the high ranking officials, elected and unelected, who authorized this shame on America's reputation from their offices and hold them to account. Can you imagine Benjamin Franklin, Thomas Jefferson, John Adams, George Washington, or any of the other Founders ordering the use of torture?"
Easing of Laws That Led to Detainee Abuse Hatched in Secret (https://www.mcclatchydc.com/detainees/story/38886.html)
TOM LASSETER - McClatchy Newspapers
https://media.mcclatchydc.com/smedia/2008/06/18/06/575-30-detainees-4-365.major_story_img.prod_affiliate.91.jpg
Prisoner Mahmood looks out from behind the bars at the Kandahar prison in Afghanistan, Dec. 13, 2001.
WASHINGTON - The framework under which detainees were imprisoned for years without charges at Guantanamo and in many cases abused in Afghanistan wasn't the product of American military policy or the fault of a few rogue soldiers.
It was largely the work of five White House, Pentagon and Justice Department lawyers who, following the orders of President Bush and Vice President Dick Cheney, reinterpreted or tossed out the U.S. and international laws that govern the treatment of prisoners in wartime, according to former U.S. defense and Bush administration officials.
The Supreme Court now has struck down many of their legal interpretations. It ruled last Thursday that preventing detainees from challenging their detention in federal courts was unconstitutional.
The quintet of lawyers, who called themselves the 'War Council," drafted legal opinions that circumvented the military's code of justice, the federal court system and America's international treaties in order to prevent anyone - from soldiers on the ground to the president - from being held accountable for activities that at other times have been considered war crimes.
Sen. Carl Levin, who's leading an investigation into the origins of the harsh interrogation techniques, said at a hearing Tuesday that the abuse wasn't the result of "a few bad apples" within the military, as the White House has claimed. "The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality and authorized their use against detainees," said Levin, a Michigan Democrat.
The international conventions that the United States helped draft, and to which it's a party, were abandoned in secret meetings among the five men in one another's offices. No one in the War Council has publicly described the group's activities in any detail, and only some of their opinions and memorandums have been made public.
Neither the White House nor the Department of Defense has taken responsibility, and the U.S. military's top uniformed leadership remained silent in public while its legal code was being discarded. It was left to lawyers in the military's legal system, the Judge Advocate General's Corps, to defend the rule of law. They never had a chance.
Only one of the five War Council lawyers remains in office: David Addington, the brilliant but abrasive longtime legal adviser and now chief of staff to Cheney. His primary motive, according to several former administration and defense officials, was to push for an expansion of presidential power that Congress or the courts couldn't check.
Alberto Gonzales, first the White House counsel and then the attorney general, resigned last August amid allegations of perjury related to congressional hearings about the firings of U.S. attorneys.
The Defense Department in February abruptly announced the resignation of William J. Haynes II, the former Pentagon general counsel, amid sharp public criticism by military lawyers that he failed to ensure a just system of detainee trials at Guantanamo.
Even some conservatives have condemned former Justice Department lawyer John Yoo for what many called sloppy legal work in drafting key memorandums about detention policy. He's now a law professor at the University of California at Berkeley.
The last and least known member of the group, Timothy E. Flanigan, a former deputy to Gonzales, withdrew his nomination to be deputy attorney general in 2005 amid mounting questions in the Senate about his role in drafting the administration's legal definition of torture and other issues.
All five refused to answer questions from McClatchy for this story. Only Flanigan gave a reason, saying that he doesn't discuss past clients, in this case the U.S. government. Yoo previously has denied any connection between his work and detainee abuse.
The quintet did more than condone harsh treatment, however. It created an environment in which it was nearly impossible to prosecute soldiers or officials for alleged crimes committed in U.S. detention facilities.
The Bush administration pursued a strategy from the beginning to exempt American soldiers and operatives from legal repercussions for their actions, said Nigel Rodley, a British lawyer and professor who was the United Nations' special rapporteur on torture from 1993 to 2001.
The U.S. said it was continuing to follow the rule of law but at the same time it sidestepped any international treaties that could create problems for soldiers or officials, said Rodley, a member of the U.N. Human Rights Committee.
The legal architecture, he said, hinged on the notion that "The treaties that were relevant to U.S. criminal law were not relevant. That was the trick."
The administration, in other words, set out to circumvent any law that might have restricted Bush's detainee and interrogation programs.
MEMOS THAT PAVED THE WAY
A handful of legal opinions opened the way to the abuses documented in McClatchy's investigation. Among them:
* In a Jan. 9, 2002, memorandum for Haynes, co-author Yoo opined that basic Geneva Convention protections known as Common Article Three forbidding humiliating and degrading treatment and torture of prisoners didn't cover alleged al Qaida or Taliban detainees - the entire incoming population of detainees in Afghanistan and Guantanamo.
* In a memorandum to Bush dated Jan. 25, 2002, Gonzales said that rescinding detainees' Geneva protections "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act." Doing so, Gonzales wrote, also would create a solid defense against prosecutors or independent counsels who may in the future "decide to pursue unwarranted charges based on Section 2441," the U.S. War Crimes Act, which prohibits violations of the Geneva Conventions. Gonzales added that by withholding Geneva protections and prisoner-of-war status, Bush could avoid case-by-case reviews of detainees' status.
* On Feb. 7, 2002, Bush issued a memorandum declaring that alleged al Qaida or Taliban members wouldn't be considered prisoners of war and, further, that they wouldn't be granted protection under Common Article Three. Most nations accept Article Three, common to all four Geneva Conventions, as customary law setting the minimum standard for conduct in any conflict, whether internal or international.
* An Aug. 1, 2002, memorandum that Gonzales requested from the Justice Department defined torture as "injury such as death, organ failure or serious impairment of body functions," a high bar for ruling interrogation techniques or detainee treatment illegal. U.S. law, according to the memorandum's analysis, "prohibits only extreme acts."
* A March 14, 2003, memorandum that Yoo prepared at Haynes' request concluded that even if an interrogation method violated U.S. criminal statutes - such as the one against war crimes - the interrogators involved most likely couldn't be prosecuted because they were operating within the scope of Bush's constitutional authority to wage war against al Qaida and other militant groups.
"In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy," Yoo wrote.
Now it appears that reinterpreting the law to lift legal protections for detainees could backfire. On May 13, the Pentagon announced that it was dropping all charges against Mohammed al Qahtani, a Saudi man held in Guantanamo who's accused of planning to take part in the 9-11 attacks as the "20th hijacker."
The official overseeing the case, Susan J. Crawford, gave no reason for the move, which followed the leak of an interrogation log that detailed harsh attempts at Guantanamo to break Qahtani mentally. Among the methods used were forcing him to act like a dog, putting women's underwear on his head, keeping him in stress positions and accusing him of homosexuality.
In its decision last week, the Supreme Court restored the right of habeas corpus, that is, the detaineesâ•˙ right to challenge the cause of their detention.
The five lawyers on the War Council met every few weeks behind closed doors in Gonzales' or Hayne
Easing of Laws That Led to Detainee Abuse Hatched in Secret (https://www.mcclatchydc.com/detainees/story/38886.html)
TOM LASSETER - McClatchy Newspapers
https://media.mcclatchydc.com/smedia/2008/06/18/06/575-30-detainees-4-365.major_story_img.prod_affiliate.91.jpg
Prisoner Mahmood looks out from behind the bars at the Kandahar prison in Afghanistan, Dec. 13, 2001.
WASHINGTON - The framework under which detainees were imprisoned for years without charges at Guantanamo and in many cases abused in Afghanistan wasn't the product of American military policy or the fault of a few rogue soldiers.
It was largely the work of five White House, Pentagon and Justice Department lawyers who, following the orders of President Bush and Vice President Dick Cheney, reinterpreted or tossed out the U.S. and international laws that govern the treatment of prisoners in wartime, according to former U.S. defense and Bush administration officials.
The Supreme Court now has struck down many of their legal interpretations. It ruled last Thursday that preventing detainees from challenging their detention in federal courts was unconstitutional.
The quintet of lawyers, who called themselves the 'War Council," drafted legal opinions that circumvented the military's code of justice, the federal court system and America's international treaties in order to prevent anyone - from soldiers on the ground to the president - from being held accountable for activities that at other times have been considered war crimes.
Sen. Carl Levin, who's leading an investigation into the origins of the harsh interrogation techniques, said at a hearing Tuesday that the abuse wasn't the result of "a few bad apples" within the military, as the White House has claimed. "The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality and authorized their use against detainees," said Levin, a Michigan Democrat.
The international conventions that the United States helped draft, and to which it's a party, were abandoned in secret meetings among the five men in one another's offices. No one in the War Council has publicly described the group's activities in any detail, and only some of their opinions and memorandums have been made public.
Neither the White House nor the Department of Defense has taken responsibility, and the U.S. military's top uniformed leadership remained silent in public while its legal code was being discarded. It was left to lawyers in the military's legal system, the Judge Advocate General's Corps, to defend the rule of law. They never had a chance.
Only one of the five War Council lawyers remains in office: David Addington, the brilliant but abrasive longtime legal adviser and now chief of staff to Cheney. His primary motive, according to several former administration and defense officials, was to push for an expansion of presidential power that Congress or the courts couldn't check.
Alberto Gonzales, first the White House counsel and then the attorney general, resigned last August amid allegations of perjury related to congressional hearings about the firings of U.S. attorneys.
The Defense Department in February abruptly announced the resignation of William J. Haynes II, the former Pentagon general counsel, amid sharp public criticism by military lawyers that he failed to ensure a just system of detainee trials at Guantanamo.
Even some conservatives have condemned former Justice Department lawyer John Yoo for what many called sloppy legal work in drafting key memorandums about detention policy. He's now a law professor at the University of California at Berkeley.
The last and least known member of the group, Timothy E. Flanigan, a former deputy to Gonzales, withdrew his nomination to be deputy attorney general in 2005 amid mounting questions in the Senate about his role in drafting the administration's legal definition of torture and other issues.
All five refused to answer questions from McClatchy for this story. Only Flanigan gave a reason, saying that he doesn't discuss past clients, in this case the U.S. government. Yoo previously has denied any connection between his work and detainee abuse.
The quintet did more than condone harsh treatment, however. It created an environment in which it was nearly impossible to prosecute soldiers or officials for alleged crimes committed in U.S. detention facilities.
The Bush administration pursued a strategy from the beginning to exempt American soldiers and operatives from legal repercussions for their actions, said Nigel Rodley, a British lawyer and professor who was the United Nations' special rapporteur on torture from 1993 to 2001.
The U.S. said it was continuing to follow the rule of law but at the same time it sidestepped any international treaties that could create problems for soldiers or officials, said Rodley, a member of the U.N. Human Rights Committee.
The legal architecture, he said, hinged on the notion that "The treaties that were relevant to U.S. criminal law were not relevant. That was the trick."
The administration, in other words, set out to circumvent any law that might have restricted Bush's detainee and interrogation programs.
MEMOS THAT PAVED THE WAY
A handful of legal opinions opened the way to the abuses documented in McClatchy's investigation. Among them:
* In a Jan. 9, 2002, memorandum for Haynes, co-author Yoo opined that basic Geneva Convention protections known as Common Article Three forbidding humiliating and degrading treatment and torture of prisoners didn't cover alleged al Qaida or Taliban detainees - the entire incoming population of detainees in Afghanistan and Guantanamo.
* In a memorandum to Bush dated Jan. 25, 2002, Gonzales said that rescinding detainees' Geneva protections "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act." Doing so, Gonzales wrote, also would create a solid defense against prosecutors or independent counsels who may in the future "decide to pursue unwarranted charges based on Section 2441," the U.S. War Crimes Act, which prohibits violations of the Geneva Conventions. Gonzales added that by withholding Geneva protections and prisoner-of-war status, Bush could avoid case-by-case reviews of detainees' status.
* On Feb. 7, 2002, Bush issued a memorandum declaring that alleged al Qaida or Taliban members wouldn't be considered prisoners of war and, further, that they wouldn't be granted protection under Common Article Three. Most nations accept Article Three, common to all four Geneva Conventions, as customary law setting the minimum standard for conduct in any conflict, whether internal or international.
* An Aug. 1, 2002, memorandum that Gonzales requested from the Justice Department defined torture as "injury such as death, organ failure or serious impairment of body functions," a high bar for ruling interrogation techniques or detainee treatment illegal. U.S. law, according to the memorandum's analysis, "prohibits only extreme acts."
* A March 14, 2003, memorandum that Yoo prepared at Haynes' request concluded that even if an interrogation method violated U.S. criminal statutes - such as the one against war crimes - the interrogators involved most likely couldn't be prosecuted because they were operating within the scope of Bush's constitutional authority to wage war against al Qaida and other militant groups.
"In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy," Yoo wrote.
Now it appears that reinterpreting the law to lift legal protections for detainees could backfire. On May 13, the Pentagon announced that it was dropping all charges against Mohammed al Qahtani, a Saudi man held in Guantanamo who's accused of planning to take part in the 9-11 attacks as the "20th hijacker."
The official overseeing the case, Susan J. Crawford, gave no reason for the move, which followed the leak of an interrogation log that detailed harsh attempts at Guantanamo to break Qahtani mentally. Among the methods used were forcing him to act like a dog, putting women's underwear on his head, keeping him in stress positions and accusing him of homosexuality.
In its decision last week, the Supreme Court restored the right of habeas corpus, that is, the detaineesâ•˙ right to challenge the cause of their detention.
The five lawyers on the War Council met every few weeks behind closed doors in Gonzales' or Hayne