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.”
Andrew Sullivan, of Andrew Sullivan fame, has a huge and absorbing piece in The New York Times Sunday Book Review on Abu Ghraib, Guantanamo, the Bush administration (along with the rest of us) and torture. He’s reviewing a couple of newly published books that document the administration’s policy on and practice of torture (“Torture and Truth,” by Mark Danner, and “The Abu Ghraib Investigations,” edited by Steven Strasser),
Sullivan’s take is thoughtful. He supported going to war in Iraq, still supports it, but has become a forceful critic of the Bush administration’s handling of it. His critique of the administration’s rationalization of torture and abusive tactics is pretty devastating. Although I’ll never agree with him on going to war in Iraq, I respect his willingness to look at his own, and other citizens’, complicity in what has taken place:
“Did those of us who fought so passionately for a ruthless war against terrorists give an unwitting green light to these abuses? Were we naïve in believing that characterizing complex conflicts from Afghanistan to Iraq as a single simple war against ”evil” might not filter down and lead to decisions that could dehumanize the enemy and lead to abuse? Did our conviction of our own rightness in this struggle make it hard for us to acknowledge when that good cause had become endangered? I fear the answer to each of these questions is yes. …
“I’m not saying that those who unwittingly made this torture possible are as guilty as those who inflicted it. I am saying that when the results are this horrifying, it’s worth a thorough reassessment of rhetoric and war methods. Perhaps the saddest evidence of our communal denial in this respect was the election campaign. The fact that American soldiers were guilty of torturing inmates to death barely came up. It went unmentioned in every one of the three presidential debates. John F. Kerry, the ”heroic” protester of Vietnam, ducked the issue out of what? Fear? Ignorance? Or a belief that the American public ultimately did not care, that the consequences of seeming to criticize the conduct of troops would be more of an electoral liability than holding a president accountable for enabling the torture of innocents? I fear it was the last of these. Worse, I fear he may have been right.”