|Detainee inside his cell in Camp Delta at Guantanamo Bay Naval Base, Cuba|
A series of declassified memos from 2003 show that the Defense Department's top military lawyers raised strong objections to the Justice Department's proposed loose definition of torture.
In the separate memos, each of the top lawyers for the Army, Navy, Air Force, and Marines or their deputy questioned the wisdom of allowing aggressive interrogation techniques. The military lawyers were part of a Pentagon working group formed to examine interrogation tactics used on people detained in the anti-terrorist effort.
Eugene Fidell, a former military lawyer and president of the National Institute of Military Justice, says they had deep reservations about the effect that might have on U.S. soldiers as well as public opinion. "What you see is the uniformed lawyers saying, gee, some of this strikes us as illegal, much of it strikes us as unwise, and all of it, I believe, strikes us as contrary to the interests of U.S. servicemen," he said.
Major General Jack Rives, Deputy Judge Advocate General of the Army, wrote that approving what he called exceptional interrogation techniques could be interpreted as giving official approval to methods that members of the armed forces had always been taught were unlawful. He wrote that some of the proposed techniques amounted to violations of civilian and military law.
However, the uniformed lawyers' objections were overruled and the task force report was rejected by Defense Department General Counsel William J. Haynes.
The Bush administration has resisted attempts to put legal curbs on interrogation techniques because, officials say, they would restrict the president's ability to fight terrorism.
Robert Turner is co-founder of the Center for National Security Law at the University of Virginia, which happens to be located across from the street from the military's legal center and school. Mr. Turner, who served in the Pentagon and State Department and was counsel to the President's Intelligence Oversight Advisory Board under President Reagan, says Mr. Haynes made an erroneous but understandable decision.
"It was a horrible blunder. It was a tragic blunder. But I think that at the same time, in assessing it we need to understand that the people who were making the decisions were balancing protecting the rights of our adversaries against their desire to make sure the adversaries didn't kill more good guys," he said. "And so, I think it was probably an evil decision, or certainly a bad decision. I don't think it was made by evil people."
Mr. Fidell says he is surprised that at least some of the lawyers who objected did not resign from the service in protest. "None of the Judge Advocates General quit in protest," he said. "And I would have thought that, based on the quite diplomatically phrased memoranda, that there was enough anger and horror at what was going on that one or more of them would have resigned. And that didn't happen."
Senators Lindsey Graham, John McCain, and John Warner, all Republicans, have tacked on a measure to a pending defense bill that would set clear, uniform standards for military prisoner interrogations. They say such a measure would avoid any repetition of the kind of abuses that have been found at U.S. military prison facilities at Abu Ghraib prison in Iraq and Guantanamo Bay, Cuba. The amendment has strong support among Democrats as well as some Republicans.
But Vice President Dick Cheney has lobbied hard against the measure. The White House threatened a presidential veto if the bill comes out with that amendment tacked on. When the amendment was not withdrawn, Senate leaders suddenly yanked the overall defense bill from consideration Tuesday.
Meanwhile, the American Civil Liberties Union released documents on detainee treatment it obtained in a lawsuit. Although portions of the documents are blacked out, uncensored portions contain new and vivid descriptions of the alleged abuse of detainees, and the horrified reaction of some contract interrogators to some of the harsh methods employed by their military counterparts.
Mr. Fidell says the continuing revelations make it difficult to claim that the abuse of detainees was by scattered individuals and not the outcome of broad policy on interrogations.
"I've been one of those people who have been skeptical about whether the dots could be connected in this panorama," he said. "Right now, I'm less skeptical than I was yesterday."