Death of Prisoner Justified If in ‘Good Faith’

Mary Walker, the former Air Force general counsel, received an urgent memo http://www.washingtonpost.com/wp-srv/nation/documents/011703haynes.pdf from the Pentagon's top attorney on Jan. 17, 2003.

Attached to the classified document was a set of directives http://www.washingtonpost.com/wp-srv/nation/documents/011503rumsfelda.pdf drafted two days earlier by then-Secretary of Defense Donald Rumsfeld.

"Establish a working group within the Department of Defense to assess the legal, policy and operational issues relating to the interrogations of detainees held by the U.S. Armed Forces in the war on terrorism," a copy of the memo said. "The working group should address and make recommendations as warranted on the following issues: legal considerations raised by detainees held by U.S. Armed Forces. Policy considerations with respect to the choice of interrogation techniques, including, contribution to intelligence collection, effect on treatment of captured U.S. military personnel, effect on detainee prosecutions, historical role of U.S. armed forces in conducting interrogations, recommendations for employment of particular interrogation techniques by [Department of Defense] interrogators."

Earlier this week, the Defense Department turned over an 81-page document to the American Civil Liberties Union in a Freedom of Information Act lawsuit that provides further insight into the extraordinary executive branch powers granted to President George W. Bush following the 9/11 attacks. John Yoo, a former deputy in the Justice Department’s Office of Legal Counsel who had also written the August 2002 legal opinion widely referred to as the “Torture Memo”, drafted the document, dated March 14, 2003. The August 2002 memo provided CIA interrogators with the legal authority to use long-outlawed tactics, such as waterboarding, when interrogating so-called high-level terrorist detainees.

Yoo's March 14, 2003 memo, declassified Tuesday, essentially provided military interrogators with legal cover in the event that they resorted to brutal and violent methods to extract information from prisoners. It is virtually identical to the memo he prepared for CIA interrogators.

"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network," Yoo wrote. "In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."

But the legal opinion, rescinded in early 2004, was not entirely the work of Yoo.

In early January 2003, commanders stationed at Guantanamo Bay prison in Cuba complained to Rumsfeld that military officials were unable to glean information from prisoners about alleged terrorist plots in the US and abroad using conventional interrogation methods. Following his conversation with military officials, on Jan. 15, 2003, Rumsfeld sent William Haynes II, the Pentagon's general counsel, a memo requesting that he form a "working group" to determine what methods military interrogators could use to extract information from a prisoner at Guantanamo Bay. Haynes asked the DOJ's Office of Legal Counsel for guidance and selected Walker to chair a "working group" to write a report on legally permissible interrogation techniques. The members of the group included former Undersecretary of Defense for policy Douglas Feith, officials from the Defense Intelligence Agency officials, the Joint Chiefs of Staff, and judge advocate generals (JAG's) from all four branches of the military.

But by the time the Walker's group had settled in for its first meeting, interrogators at Guantanamo Bay had already begun to violate the Geneva Convention.

"People were trying like hell how to ratchet up the pressure," and used techniques that ranged from drawing on prisoners' bodies, placing women's underwear on prisoners heads -- a practice that later reappeared in Iraq's Abu Ghraib prison -- to telling subjects, "I'm on the line with somebody in Yemen and he's in a room with your family and a grenade that's going to pop unless you talk," a military official, who took part in discussions with Mary Walker's "working group," told the Wall Street Journal in June 2004. "We'd been at this for a year-plus and got nothing out of them."

Immediately following 9/11, the United Nations Committee Against Torture reaffirmed the policies in the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment stating that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." Moreover, the convention says that individuals who resort to torture cannot defend their actions by saying they were acting on orders from superiors and that orders from superiors. It was this policy signed by 142 nations that Walker and members of the "working group" sought to bypass. The report added that interrogators accused of torture should be advised that they could defend their actions by saying Justice Department lawyers told them their methods were legal.

While Walker's report was being drafted, the group discussed 35 different interrogation techniques that could be used to obtain information from prisoners. The group settled on 24 of the 35 methods. 17 of which appeared in Army field manuals. Early drafts of the report advocated intimidating prisoners with dogs, removing prisoners' clothing, shaving their beards, slapping prisoners in the face and waterboarding. Still, the final set of methods, which included isolation, and "attacking or insulting the ego of a detainee", referred to as "pride and ego down" violated the Geneva Convention.

Still, more extreme interrogation methods that made it into the final draft of the report rankled some of the JAG's who participated in the working group. The military lawyers feared the methods would put U.S. soldiers in danger if they were captured and would tarnish the reputation and image of the U.S. abroad.

"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 http://balkin.blogspot.com/jag.memos.pdf Rear Adm. Michael Lohr, a member of the "working group," in a February 2003 letter to Walker. Lohr was so upset with the draft report and the advice provided by the DOJ that he requested Walker include a sentence in the final report making it clear that the legal findings were based exclusively attorneys in the Justice Department's Office of Legal Counsel.

Lohr was not alone. Maj. Gen. Jack Rives, who at the time was judge advocate general of the Air Force, also wrote a letter to Walker warning that the interrogation techniques in the report would violate military law.

"Several of the exceptional techniques, on their face, amount to violations of domestic criminal law and the [Uniform Code of Military Justice]," Rives wrote. "Treating detainees inconsistently with the [Geneva] Convention arguably "lowers the bar" for the treatment of U.S. POW's in future conflicts."

Maj. Gen. Thomas Romig, an Army JAG, and Brig. Gen. Kevin M. Sandkuhler, a Marine Corps JAG, also verbalized their concerns, specifically, the determination that president has the power to override the Uniform Code of Military Justice and other federal statutes and international treaties in the name of national security.

Walker's group addressed these concerns, according to the report, by stating, in legal terms, that the president had the constitutional authority as commander-in-chief to ignore torture laws if it meant national security was in jeopardy.

On March 6, 2003, eight days before Yoo issued his legal opinion, and five days before the U.S. invaded Iraq, Walker sent Rumsfeld a draft 53-page "working group" report http://www.texscience.org/reform/torture/dod-detainee-interro-6mar03.pdf that said international treaties forbidding torture did not apply to prisoners held at Guantanamo Bay. The report, which asserted that President Bush had "sweeping" powers as commander-in-chief of the armed forces, was produced in less than two months. It said President Bush could suspend international laws and treaties governing torture in the name of national security.

"In order to respect the president's inherent constitutional authority to manage a military campaign . . . (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority," the report stated. The Justice Department could not prosecute military interrogators "who had acted pursuant to an exercise of the president's constitutional power."

Further, the report said if a prisoner died as a result of brutal interrogation technique the interrogator would not be subject to prosecution if he acted in "good faith" and attempted to save lives.

"Good faith may be a complete defense," the report says. "Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law," the report said and cited a legal text, "Substantive Criminal Law" by Wayne LaFave and Austin W. Scott to support the legality of the interrogation methods. "In particular, the necessity defense can justify the intentional killing of one person . . . so long as the harm avoided is greater."

In an Aug. 16, 2004 report published in Legal Times Walker "tailored her report around Yoo's arguments." Her "legal reviewwas to authorize what OLC had done." Legal Times spoke to an anonymous Pentagon attorney who told the paper that Walker actually invited an OLC lawyer "to edit" the working report to ensure its compatibility with that office's opinion."

Rumsfeld signed the final report on April 2, 2003. One year later, photos depicting U.S. soldiers abusing, and humiliating detainees at Abu Ghraib prison in Iraq are publicly released.

On June 15, 2004, the Senate passed an amendment to the Defense Authorization Bill backed by Republican Sen. Lindsay Graham, a JAG that gave JAGs the same legal authority as military attorneys, such as Walker, who are appointed by the president. JAG’s who said Walker ignored their legal concerns involving the interrogation of detainees at Guantanamo Bay spurred the amendment.

The amendment was dubbed the "Mary Walker bill."

In late February, the DOJ's Office of Professional Responsibility (OPR) confirmed that it launched a formal investigation to determine whether Yoo and other attorneys in the DOJ's Office of Legal Counsel provided the White House with poor legal advice when it drafted legal opinions authorizing CIA interrogators to use waterboarding to glean information about terrorist plots from prisoners.

The investigation centers on a health benefits statute Yoo relied upon to form the legal basis for the August 2002 "Torture Memo."

Jason Leopold is the author of the National Bestseller, "News Junkie," a memoir. Visit www.newsjunkiebook.com for a preview. He is also a two-time winner of the Project Censored award, most recently, in 2007, for an investigative story related to Halliburton's work in Iran. He was recently named the recipient of the Military Religious Freedom Foundation's Thomas Jefferson Award for a series of stories he wrote that exposed how soldiers in Iraq and Afghanistan have been pressured to accept fundamentalist Christianity. Leopold is working on a new nonprofit online publication, expected to launch soon.

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