Plainclothes Torturers

Excellent story this week in The Legal Times (subscription required) about newly declassified memos by military lawyers on the subject of stretching the legal definition of torture to allow more pressure to be put on our Global War on Terrorism prisoners. Civilian lawyers in the Justice Department (including a faculty member at my current workplace, Boalt Hall) advised our commander-in-chief he was standing on firm legal ground in allowing the military to take the gloves off.

How did the civilians’ counterparts in the armed forces — the judge advocates general — feel about expanding the definition of torture to allow more rough stuff and, presumably, get more actionable intelligence (Interrogator: “How does that feel?” Prisoner: “Aiyee! That really hurts!” Interrogator: “Captain, he says it hurts.”)?

In a word, they were against. According to The Legal Times story:

“… The military lawyers predicted that adopting more aggressive interrogation techniques to fight the war on terror would undermine America’s relationships with allies, hurt the reputation of the military, and possibly put U.S. troops in harm’s way. …

“… ‘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 Rear Adm. Michael Lohr, then-judge advocate general of the Navy.

“The new documents reveal deep disagreement between top uniformed lawyers in the Air Force, Army, Navy, and Marine Corps and the administration’s civilian attorneys at the Pentagon and the Justice Department. The JAGs’ memos blast legal positions taken by the Justice Department’s Office of Legal Counsel and point to a secret memo from OLC lawyers that appears to have given the green light for U.S. troops to use interrogation

tactics in violation of military law.”

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