April 21, 2009
Senate Committee Report on Detainee Treatment
The Senate Armed Services Committee yesterday released its report on the treatment of detainees in U.S. custody, concluding that torture was approved by cabinet and other high-level officials in the Bush administration.
The report (pp. 119-129) tells the story of the early OLC torture memos, senior military lawyers' strong objections to those memos, and DoD General Counsel Haynes's instruction to Air Force General Counsel Walker that the DoD working group convened to recommend interrogation policy consider the OLC legal analysis in the March 14, 2003, memo "authoritative" and directed that it "supplant the legal analysis being prepared by the Working Group action officers."
The March 14, 2003, OLC memo concluded that detainee interrogation arose out of the President's Commander-in-Chief authority, and that federal criminal statutes that interfered with the President's power to authorize the conduct of interrogations were unconstitutional. The upshot: "In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy." March 14, 2003, OLC memo at 5.
The memo was highly criticized by senior military lawyers and by the working group, because, among other reasons, most of the recommended interrogation techniques in the group's final report (the "stoplight chart"), which conformed to the OLC analysis, amounted to violations of the UCMJ, domestic criminal law, and international law. Rear Admiral Jane Dalton addressed the violations of international law:
[T]here was a column originally . . . in the spotlight chart, that was labeled "Customary International Law." So one of the things we were supposed to assess was whether or not the techniques were consistent with customary international law. The stoplight chart had all 36 techniques green under customary international law because the OLC opinion and thus the Working Group report maintained that customary international law did not impose any constraints on the actions. . . . That green column was absolutely wrong legally . . . it was embarassing to have it in there, and one of my comments to the report was . . . You need to delete that column entirely because it's embarassing to have it in there and it's not reflective of the law.
Report at 126.
Rumsfeld apparently knew about concerns of senior military lawyers:
According to DoD General Counsel Jim Haynes, the Secretary of Defense met with participants of the Working Group and was aware of concerns reflected in the comments made by the senior military lawyers.
Report at 128.
Even after the OLC withdrew the March 14, 2001, memo (along with the August 1, 2002, "Bybee" memo)--and notified DoD that it was withdrawn because it contained "serious errors"--DoD apparently continued to rely on it or some similar authority:
Notwithstanding the late December direction from the head of the OLC that DoD could not rely on the March 14, 2003, OLC memo, a March 26, 2004 memorandum for the record suggested that [redacted]. The frequent flyer program involved moving a detainee every few hours from one cell to another to disrupt their sleep. [Redacted.]
Report at 147.
There is a difference, of course, between having legal authority to do something and actually doing it. The Committee report is most critical of senior Bush officials for actually doing it--for authorizing torture of detainees.
But this section of the report--roughly from pages 119 to 147--is also critical of the OLC lawyers for concluding that DoD had legal authority and of Haynes and Rumsfeld for their disregard of senior military lawyers' objections to the OLC memos.
In the end, there's not much in this section of the report that we didn't already know. But coming in the wake of the release of the previously classified OLC torture memos last week, this report may provide additional momentum for those calling for investigation and prosecution of former OLC attorneys Yoo and Bybee.
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