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Published on Wednesday, June 18, 2008 by McClatchy Newspapers
<http://www.mcclatchydc.com/detainees/story/38886.html>

Easing of Laws That Led to Detainee Abuse Hatched in Secret

by Tom Lasseter

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.
<http://www.commondreams.org/archive/wp-content/photos/0618_04_1.jpg> 0618
04 1

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 detainees’ 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 Haynes’ office to plot legal strategy, according to Jack
Goldsmith, a former senior Justice Department lawyer.

Several other former U.S. officials confirmed that the group was the driving
force for White House policy on detainees.

Fears of future prosecution motivated many officials in the administration,
Goldsmith said in his book “The Terror Presidency,” published last year.
The five lawyers saw legal opinions drafted by Yoo and others in the Justice
Department’s Office of Legal Counsel as a shield, Goldsmith wrote, that
would make it hard to convict someone of acting on legal advice from the
premier legal office in the administration.

“In my two years in the government, I witnessed top officials and
bureaucrats in the White House and throughout the administration openly
worrying that investigators acting with the benefit of hindsight in a
different political environment would impose criminal penalties on
heat-of-battle judgment calls,” wrote Goldsmith, who declined interview
requests.

As the head of the Office of Legal Council from the fall of 2003 to the
summer of 2004, Goldsmith reversed the August 2002 and March 2003 opinions.

MILITARY LAWYERS CONCERNED

The military’s lawyers were among those who were most concerned about what
the new policies would mean for soldiers in the field.

Though not well known to the public, the Judge Advocate General’s corps
prides itself on defending the Uniform Code of Military Justice, the
military’s law book, which demands strict discipline and moral behavior in
wartime. The legal officers are fond of saying that military commanders can
depend on two people for honest advice: their chaplains and their JAG
lawyers.

The military legal community complained, to little avail, that the policies
hatched with the consent of Bush, Cheney and then-Defense Secretary Donald
H. Rumsfeld were replacing decades of U.S. military policy on handling
detainees.

When they protested, the War Council shut them out.

“We were absolutely marginalized,” said Donald J. Guter, a rear admiral
who served as the Navy’s judge advocate general from 2000 to 2002. “I
think it was intentional, because so many military JAGs spoke up about the
rule of law.”

Thomas Romig, a major general who was the Army’s judge advocate general
from 2001 to 2005, agreed that the JAGs were pushed to the side: “It was a
disaster,” he said.

Trust between the uniformed military lawyers and the Bush administration
collapsed in the months after 9-11.

Guter said he began to think that Haynes “was playing games” in late 2001,
when the two met regularly to figure out how to handle detainees in
Afghanistan.

Haynes, then the Pentagon’s head lawyer, had asked whether hundreds of the
prisoners could be detained on Navy warships. The security and logistics
involved in operating a ship while maintaining a maximum-security prison
onboard would have been impossible. Guter thought that Haynes was raising
such ideas to push him toward establishing a prison at the Guantanamo Bay U.
S. Naval Base.

Guter said “it became apparent pretty quickly” that Haynes wanted a place
“outside of the courts,” where no judge could consider whether detainees
were being held lawfully or under appropriate conditions.

“What they were looking for was the minimum due process that we could get
away with,” said Guter, who’s now the dean of Duquesne University’s law
school. “I felt like they knew the answer they wanted to hear.”

Romig recalled tense discussions with Yoo in November and December 2001
about setting up military commissions to try detainees.

“John Yoo wanted to use military commissions in the manner they were used
in the Indian wars,” Romig said. “I looked at him and said, ‘You know,
that was 100-and-something years ago. You’re out of your mind; we’re
talking about the law.’ ”

The military commissions that the U.S. used against Native Americans during
the mid-19th century were often ad hoc and frequently resulted in natives
being hanged or shot.

“As they viewed it, due process is legal mumbo jumbo,” said Romig, who’s
now the dean of Washburn University’s law school. “They wanted to get
them, get the facts and convict them. … If you’re caught as a terrorist,
you’re presumed guilty and you have to prove you’re innocent. It was
crazy.”

When Romig objected to pushing the boundaries of interrogation procedures
during meetings in late 2002 or early 2003, he recalled that civilian
defense officials replied that the time for law had passed.

“Guys, it’s time to wake up and smell the coffee. It’s time to take the
gloves off,” Romig said he was told by Marshall Billingslea, a deputy to
Douglas Feith - who was then the undersecretary of defense for policy, the
Pentagon’s third-ranking official.

Romig said that he and other military officers asked, “Do you realize the
implications of what you’re saying?”

Like many in the military, Romig doubted the quality of intelligence
gathered by physical coercion.

Haynes, who also was present, had no objections to what Billingslea had
said, according to Romig. Billingslea and Haynes declined requests for
comment.

In June 2006, over the objections of the White House, the Supreme Court
ruled that Common Article Three of the Geneva Conventions was applicable to
detainees at Guantanamo Bay.

Four months later, Bush signed the Military Commissions Act, which said that
no foreign unlawful combatant subject to trial by military commission could
invoke the Geneva Conventions as a source of rights, and that no U.S. court
or judge has jurisdiction to hear cases in which such detainees contest
their incarceration.

The bill also rewrote part of the U.S. legal code on war crimes, changing
the definition of a war crime from conduct that “constitutes a violation of
Common Article 3″ to the much higher standard of “a grave breach of Common
Article 3.”

Within that new definition, it excluded “pain or suffering incidental to
lawful sanctions,” meaning harsh treatment that’s allowed by the Bush
administration’s legal interpretations.

Among those whom Bush thanked at a bill-signing ceremony were Cheney -
Addington’s main backer in the White House - and Gonzales.

Two years later, the Supreme Court ruled that detainees have the right to
challenge their detention before federal judges, striking down that section
of the Military Commissions Act. The 5-4 decision said the law applied to
everyone: “From an early date it was understood that the king, too, was
subject to the law.”

The policies hatched in the offices of Gonzales, Addington and Haynes
muddied decades of U.S. military policy on handling detainees.

Changes to detainee law such as rescinding Common Article Three give a
“dehumanizing message about the people (detainees) we’re dealing with,”
said Lt. Col. Bryan Broyles, a defense attorney in the Office of Military
Commissions, which was set up to try detainees at Guantanamo.

“The people who pursue that sort of academic, intellectual pursuit,” said
Broyles, who represents Qahtani, “don’t understand the effect it has on
the people (soldiers) who only see the end result.”

(c) 2008 McClatchy Newspapers

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24 Comments so far


1.

	baruch June 18th, 2008 12:21 pm

	Can’t Yoo be held responsible legally for distorting the law in
order to cover up human rights abuses and war crimes?

2.

	Nightwatch June 18th, 2008 12:31 pm

	There may well come a time in which any American or other national
who served in the blatantly illegal war in Iraq could be subject to arrest
and trial anywhere in the world. Intellectual thugs like Yoo and Addington
had better watch where they vacation.

3.

	penscot June 18th, 2008 12:37 pm

	Seems only fair to render these wonderful fellows to a secret
location and apply various persuasive techniques to them until they confess
to everything that’s put to them.
Surely they must have realised that when the power balance changed they’d
get the same techniques they proposed for others?

4.

	overkill June 18th, 2008 12:41 pm

	A professor of sadistic torture at Berkeley?
In the 70’s the students would have used him to paint Red Square red.

5.

	Zamboni_fahrer June 18th, 2008 12:58 pm

	…there is a very encouraging trend in the media nowadays: where
just a few years ago Bush, Cheney, Yoo et al. seemed unstoppable, with an
ever obedient media enabling their abuses of governmental power and
privilege, we are now seeing the pendulum swing the other way: Yoo is on the
defensive. Bush is also on the defensive: a diminished and mocked lame duck.
Cheney, alone, continues his shrill defiance of basically the entire
civilised world-with his insane demands to the Pentagon for ever “More war!
Attack Iran/Syria/Democrats/_(you name it)_ by air and land! Invade! Kill
everybody! Take no prisoners!!!”. Egads what a sociopath.

	…It may not be over yet, but the tide IS shifting…and as the tide
gradually shifted for Chile’s Pinochet-from all powerful dictator to an
old, weathered man constantly on the run from prosecution at home an
abroad-I sincerely hope Bush, Cheney, Yoo, Addington, Libby, et al are
aggressively pursued by the long and patient hand of The Law (be it USA’s
or International Law makes no difference), and severely punished for their
grave misdeeds.

	We will NEVER FORGET.

	Justice SHALL BE SERVED…

6.

	oregoncharles June 18th, 2008 1:23 pm

	Once again: why is Yoo still an honored professor at a prestigious
university? Berkeley, of all places?

	I’m with “overkill:” why on earth do the students put up with it?
Is anybody in his classes? Is he doing anything for his salary besides
writing dishonest op-eds? And why isn’t the administration ashamed of
itself?

	He is guilty of both moral turpitude and gross incompetence, both
traditional grounds for removing tenure. So far, the administration’s
excuse is that he hasn’t been convicted of a crime: is the bar really that
low at Berkeley? He is clearly GUILTY of a crime, whether or not he’s been
convicted.

	Why aren’t students and others dogging his steps and making his
life a misery?

7.

	greatbear215 June 18th, 2008 1:36 pm

	Berkely is a disgrace to the nation. If release from tenure was good
enough for Ward Churchill, then it’s good enough for John Yoo. The students
there should be protesting Yoo’s presence on a daily basis. If his presence
there causes too many disruptions in the academic environment, they’ll have
no choice but to release him from tenure. They need to keep protesting!

8.

	jlocke123 June 18th, 2008 1:47 pm

	Ahhhh…the Indian Wars, I’ll have to get up to speed on those. I
don’t know much about them actually. So that’s where Yoo is drawing his
quackery from. I see, Americans used inquisition style tribunals against the
native people. They had the death penalty option too, just like Yoo’s
version, way to go Yoo! Now I understand why University of California at
Berkeley wanted him. They are clearly understaffed in the position of profs
who want to turn back the clock on legal theory to a time of savagery, and
I’m not talking about the American Indians.

	One small problem, U of C at B. Any court para-legal or court
stenographer in, well pick any democratic country you want, could make Yoo’
s sophistry into swiss cheese. Are American legal professionals really that
stupid? Surely not. That is why most of Yoo’s garbage is still,
woop-dee-doo, “top secret”. The, not so, secret is that Yoo couldn’t
reason his way out of a garbage bag.

	How much do you guys pay to go to a school like University of
California at Berkeley? At our schools the curriculum is a little lighter on
the commissioning of war crime and focuses more, for example, on the tools
one might need to prosecute, say persons who commit war crimes.

9.

	greatbear215 June 18th, 2008 1:49 pm

	As long as we’re on the topic……….I’d really like to know why it
is that with republicans it always comes down to sex and abuse, in the end?
What is it with these people, anyway?

10.

	ctrl-z June 18th, 2008 2:34 pm

	“Sen. Carl Levin, who’s leading an investigation into the origins
of the harsh interrogation techniques…”

	Even in a great article like this we still see Harsh Interrogation
Techniques (HIT) instead of Torture. How do we kill this damned meme?

11.

	canuckchuck June 18th, 2008 2:44 pm

	Its simple then, the next President should declare Bush, Cheny,
Gonzales and the “War Council” as terrorists, and serve them a heaping
helping of their own bullshit.

12.

	zoya June 18th, 2008 2:55 pm

	In the meantime, several “bad apples” who served at abu G have
criminal records. Lynndie England is still on parole, and Charles Grainer is
still in the slam.

13.

	obonodori June 18th, 2008 3:01 pm

	To baruch: You ask “Can’t Yoo be held responsible legally for
distorting the law in order to cover up human rights abuses and war
crimes?”

	I ask: “Can’t Bush, Cheney, Rice, Rumsfeld be held responsible
legally for distorting the law in order to cover up human rights abuses and
war crimes?”

14.

	Curtis June 18th, 2008 3:08 pm

	With respect to the way Yoo wanted to treat Iraq natives the way the
American Indians were treated 100 years ago, our native people were on top
of this in 2003. See “Bureau of Iraqi Affairs”
BUREAU OF IRAQI AFFAIRS (BIA) march 26, 2003

	Dear People of Iraq,

	Now that you have been liberated from your tyrannical oppressors, we
at the BIA look forward to our relationship with you. Below you will find a
list of what to expect from the services of our good offices.

	1. Henceforth, English will be the spoken language of all government
and associated offices. If you do not speak English, a translator fluent in
German will be provided.

	2. All Iraqi people will apply for a spot on a citizen roll.
Citizenship will be open to those people who can prove that they are Iraqi
back four generations with documents issued by the United States. Christian
church records may also be given in support.

	3. All hospitals will be issued with a standard emergency aid kit.
The kit contains gauze, Band-Aids, burn cream, iodine, tweezers, and duct
tape.

	4. Your oil is to be held in trust for you. We will appoint your new
American approved government a lawyer with a background in the oil industry.
Never mind that he works for the company that he will eventually cut a deal
with. This close relationship will guarantee you more money for your oil.

	5. Each Citizen will be allotted one hundred acres of prime Iraqi
desert. They will be issued plows, hoes, seed corn and the King James Bible.
All leftover land will be open to settlement by Israelis.

	6. Each Citizen is entitled to draw a ration of milk, sugar, flour
and lard. If you can not use the rations for health or religious reasons you
may file a complaint with your BIA appointed liaisons, Crisco. Those Iraqis
showing signs of diabetes, heart disease, or glaucoma will be issued with
double rations in place of adequate health care.

	7. We will mismanage your trust monies, allowing any five year old
with minimal computer skills to hack into the system and set up their own
account. Records of your accounts will be kept, but you must receive express
written permission from the head of the BIA to examine them.

	8. In keeping with the separation of Church and State supported by
the US constitution, Christian missionaries will be sponsored through
government funding. Only Iraqis who convert to Christianity will be allowed
to hold jobs within the government.

	9. For the purposes of treaty making, any single Iraqi will be found
competent to sign on behalf of all other Iraqis.

	10. Welcome to the Free World and have a nice day!
-
Elizabeth Winter * Taos, New Mexico * ewinter at newmex.com
“I’m the person who gets to decide, not you.”
George W. Bush - Crawford, TX - 12/31/02
(from CNN.com, dated 1/1/03)

15.

	elmysterio June 18th, 2008 3:19 pm

	John Yoo: Traitor to mankind. Another immoral, disgusting snake of a
lawyer.

16.

	elmysterio June 18th, 2008 3:24 pm

	oregoncharles asked: “Why aren’t students and others dogging his
steps and making his life a misery?”

	Well I would suspect that these slimy lawyers-in-training look up to
Yoo for his fancy footwork in gutting international law. He’s probably a
hero to them.

17.

	ppeters June 18th, 2008 3:43 pm

	I believe the five lawyers took an oath to uphold the Constitution
of the US when they took office. They also took such an oath when admitted
to the Federal bar. They obviously perjured themselves by their actions in
office. If Bill Clinton lost his law license because of a far lesser
perjury, it is only fitting that all five face disbarment for moral
turpitude and perjury.

18.

	fakedemocracy June 18th, 2008 3:55 pm

	I wonder if Yoo’s grandparents went to Manzanar. Maybe that’s
where he get’s it from.

	I don’t know how intellectual he is… when I look at him I sorta
get the empty headed ‘few noodles short of a combo meal’ vibe.

19.

	NancyH June 18th, 2008 4:17 pm

	Once again, McClatchy comes through with excellent investigative
reporting. They never disappoint.

20.

	GRomero June 18th, 2008 10:00 pm

	Phillipe Sands wrote a great article in the May issue of Vanity
Fair: http://www.vanityfair.com/politics/features/2008/05/guantanamo200805

	He’s an international lawyer and professor at UCL in London. He’s
been on Democracy Now! and has hinted at other countries filing war crime
charges against those involved. Ironic isn’t it? The supposedly ‘beacon of
freedom’ might be in the dock.

21.

	Nietzsche June 18th, 2008 10:11 pm

	That photo shows the same smirk that Rove, Rumsfeld, and Cheney
exhibit. That look says it all: “So?” “Fuck all you little people. Maybe
you don’t like it but what can you do about it?” “Shut up and keep paying
your taxes or we will work you twice as hard for half the money.” “Your
job is creating wealth; how we choose to waste it is none of your
business.” “Don’t complain or we might really get mad.”

	I can’t believe we accept this situation. Hell, half of us run
around waving flags and bragging about how free we are.

	Jesus, John Q., can’t you see what is going on? I guess not; when
we do it may be too late.

22.

	AlexLawyer June 19th, 2008 12:40 am

	These low-rent shysters should be disbarred and indicted. It wasn’t
legal incompetence and well-intentioned misunderstanding, but blatant
advocacy of war crimes. Justice needs to be done, and be seen to have been
done, to restore the rule of law and the respect of civilized people, as
well as to deter future governments from such violations. Impunity will only
breed more atrocities.

23.

	Coyotita June 19th, 2008 8:30 am

	“It’s been a long, long time comin’ but I know change gonna come.
Oh, yes it will.”

24.

	hazmat June 19th, 2008 8:49 am

	re Curtis 6/18 3:08pm

	BIA (bureau of iraqi affairs)-brilliant!


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