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Why I am proud of the US military tonight...

... is because the story is now emerging that many American officers stood up and pushed back on the torture issue, declaring the Bushco position invalid on moral and legal grounds:

As early as November 2002, the military was pushing back. The Air Force cited "serious concerns regarding the legality of many of the proposed techniques" because they "may be subject to challenge as failing to meet the requirements outlined in the military order to treat detainees humanely."

The top legal adviser to the Criminal Investigation Task Force weighed in, arguing that the techniques "may subject service members to punitive articles of the [Uniform Code of Military Justice]." The "utility and legality of applying certain techniques" was, the lawyer advised, "questionable." Getting more to the point, he added that he couldn't "advocate any action, interrogation or otherwise, that is predicated upon the principle that all is well if the ends justify the means and others are not aware of how we conduct our business."

The Army didn't like it, either. The Army's International and Operational Law Division chief determined that the program "crosses the line of 'humane' treatment" and would "likely be considered maltreatment" under military law and "may violate torture statute." The request to torture was deemed "legally insufficient."

The Navy wanted further review and the Marine Corps expressed "strong reservations," saying the request to torture wasn't "legally sufficient." The proposed techniques "arguably violate federal law, and would expose our service members to possible prosecution."


It's a peculiar, difficult thing to dissent in the military, because by law you cannot make public comment, and if--as now seems to be the case--some of the more politicized senior brass are willing to sell their souls for personal gain, you are constrained by a very particular culture and a very real chance of hard time.

But Captain (now Rear Admiral) Jane Dalton fought the good fight as General Counsel to the Joint Chiefs, as did civilian Alberto J. Mora, General Counsel to the US Navy, and especially USAF JAG Major David J. R. Frakt, in his compelling statement at a military tribunal on behalf of Mohammed Jawad in June 2008, which frankly ought to become an American State Paper:

President Bush’s words were important, and deserve special attention. For those of us in the military who have faithfully attended our annual Law of Armed Conflict training, or in my case, have given the training many times, the Geneva Conventions and humane treatment were synonymous, they were one and the same. The Geneva Conventions represented the baseline, they embodied the determination of the world to make war a more humane enterprise, to prevent a descent into wholesale barbarity, as had occurred during the Second World War. But now we were being told that humane meant something else, something less, than the Geneva Conventions. And we were being told that we could act inconsistently with the Geneva Conventions, when military necessity demanded it. Those of us who were familiar with the Geneva Conventions, whose job it was to know them, were puzzled and deeply troubled by the President’s order and had serious forebodings about the implications of such a decision. We understood that there were no gaps in Geneva, there were was no one who fell outside their protection, that Common Article 3 applied to everyone.

But the civilian political appointees of this administration intentionally cut out the real experts on the law of armed conflict, the uniformed military lawyers, the JAGs, were out of the loop, for fear that their devotion to the Geneva Conventions might pose an obstacle to their intended course of action. The State Department, led by Colin Powell, tried to raise a red flag, but to no avail. Instead, the administration chose to rely on the infamous torture memos by John Yoo, Robert Delahunty and Jay Bybee. These secret memos attempted to redefine torture for the purpose of providing legal cover for administration officials who approved the use of patently unlawful tactics. These legal opinions, now disgraced, disavowed, and relegated to the scrapheap of history where they belong, laid the groundwork for the wholesale and systematic abuse of detainees which ultimately ensnared my client, Mohammad Jawad.

I’m sure that all of these people, the President included, thought they were doing what was best. But what sometimes appears to be in the interests of America at first glance, upon further reflection reveals itself not to be. Interning Japanese-Americans during World War II perhaps seemed like a good idea at the time, but in hindsight we can see that it was a terrible injustice, inconsistent with American ideals and utterly unconstitutional. It is a shameful episode in our history, a xenophobic overreaction. The conscious, deliberate decision to abandon the Geneva Conventions and the entire fiasco that is Guantanamo will undoubtedly be viewed by historians as an even more disgraceful chapter in our history.


In a movie, somebody would have stepped forward before a microphone and had a dramatic moment, stopped the presses and stopped the water-boarding. But it doesn't happen that way in real life.

What is most important to gather here, however, is the possibility to place some chinks in the intellectual armor of those who still believe that torture is justified on utilitarian grounds (it supposedly works). We're told that enhanced interrogation techniques have stopped attack and saved the lives of our troops on various occasions.

Well, here are the officers themselves, standing up and saying, We didn't agree to purchase some additional, emphemeral safety at the cost of our country's honor.

The military ain't perfect. There's bountiful evidence of that from Abu Graib back through My Lai and into the dim, flag-waving past if you care to look.

Even the conduct of some of our troops at Gitmo and Bagram can be called into question.

But at the policy level it was not the military--at least not the ones below the level of the Joint Chiefs--who betrayed our principles, stained our honor, and dismayed our friends. And for that, tonight, I'm thankful.

Comments

Hank Foresman said…
Great post. Since 2001, many military lawyers have risked their careers because they have stood up for what is right. I have worked with them and grown to respect their willingness to do what is right.

Regarding the military failures at AG; this was a failure of leadership; a weak Commanding Officer, bifurcated Command and Control of the prison, and lastly a very ambitious Commanding General of CJTF-7 Ricardo Sanchez who was willing to do anything to position himself for higher positions only to be thrown under the bus when it went South.
Hube said…
If you are talking about systematic abuse of various [low-level combatant] detainees, whether in Iraq, Guantánamo or wherever, then I certainly agree.

However, when talking about bigwigs like KSM that have, as we've apparently been told, crucial info about an impending 9/11-like attack (or worse), it would be negligent to NOT take the measures that were utilized to gain that information.

Would it be "honorable" to not take this action -- and allow thousands of innocent American civilians to perish? So that we can "hold our heads high" and say, "We didn't treat KSM harshly!"
Nancy Willing said…
This is a perfect post for today, Steve. Thanks.
G Rex said…
Before I comment, let me establish my admittedly limited credentials on the subject: While I was not an interrogator by trade, we in the SigInt company of my MI battalion were frequently interrogated for training purposes by the guys in the HumInt company, in accordance with the Army Field Manual. And guess who ran the shop at the Abu Ghraib prison? That would be the very same HumInt company from my old battalion.

Anyway, as I recall it most of the approved techniques focused on mental and/or psychological tricks to get the subject to contradict himself, and how to discern fact from fiction. From example, an untrained subject will look to different sides when answering from memory than when making something up - basic left brain/right brain functionality. The trained subject, OTOH, will keep his eyes focused on a single point. Messing with the subject's environment, i.e. room temperature, sleep schedule, loud music, etc. is designed to break the concentration of the subject so that the mental tricks used to confound the interrogator become less effective than the mental tricks used to interrogate. What transpired at Abu Ghraib was that two of the reservist MPs who were tasked to help with the disorientation and sequestration process turned out to be sick freaks.

As to the bigger picture, I would say that the "enhanced" techniques used to break the resolve and concentration of highly trained, high level terrorists at Gitmo, while distasteful or even repugnant to most, do not rise to the level of torture, and that denying that any useful information was obtained through such techniques is politically motivated, not ethically.

Now, if Jack Bauer holds a guy over a cliff to find the "ticking time bomb" he should be prosecuted. If they find the bomb, then the President has the option of pardoning him afterwards.
Anonymous said…
It is amazing to me the lengths to which people like G Rex will go to justify calling a procedure like waterboarding legitimate, that is, not torture.

How do you explain, G Rex, why both the military and the FBI rejected the use of this technique?

I think Pandora over on DL made an excellent response to this issue when she said: "When we torture it’s necessary and just. When they torture us it’s criminal and barbaric.

And when they get on their “torture is effective and produces results, my response is… so what? Geez, by those lame standards one could make the same argument for slavery. It isn’t about effectiveness. It’s morally wrong and criminal no matter what!"
Your argument, G Rex, is that it is all about effectiveness, the morality be damned. Moreover, none of us know anything about the effectiveness, as the information has not yet been released. So even on the effectiveness point, you have none.

"It is morally wrong no matter what." I completely agree!

Perry Hood
G Rex said…
Perry, it amazes me the lengths to which you will go to misrepresent positions and arguments with which you disagree. Nowhere did I state that actual physical or psychological torture is acceptable if it yields results, but rather that waterboarding, sleep deprivation and other methods, when used in the context of a controlled interrogation process do not constitute torture. This is not an "end justifies the means" argument, this is a difference of opinion on the legal definition of torture.

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