Published on Friday, April 24, 2009 by FireDogLake
by Jane Hamsher
There were already serious objections to the use of torture when the Bush administration made it legal in 2002 -- FBI chief Robert Mueller refused to let his agents participate in the CIA's "coercive interrogations" in June of that year, well before the Bybee memo made them legal on August 1.
But it's not like the FBI was alone in expressing those concerns. On October 1, the commander in charge of detainee interrogation at Guantanamo Bay wrote a memo requesting authority to use "aggressive interrogations techniques" that were similar to those outlined in the Bybee memo. It reached the desk of Richard Myers, Chairman of the Joint Chiefs of Staff, and the Joint Staff solicited opinions before making a decision. Here's what came back to them in November 2002 (PDF):
Air Force: Had "serious concerns regarding the legality of many of the proposed techniques...Some of these techniques could be construed as 'torture' as that crime is defined by 18 U.S.C 2340." Further, they were concerned that "implementation of these techniques could preclude the ability to prosecute the individuals interrogated," because "Level III techniques will almost certainly result in any statements obtained being declared as coerced and involuntary, and therefore inadmissible....Additionally, the techniques described may be subject to challenge as failing to meet the requirements outlined in military order to treat detainees humanely and to provide them with adequate food, water, shelter and medical treatment." They called for an in-depth legal review.
Criminal Investigative Task Force (CITM): Chief Legal Advisor to the CITF at Gitmo, Maj Sam W. McCahon, writes "Both the utility and the legality of applying certain techniques identified in the memorandum listed above are, in my opinion, questionable. Any policy decision to use the Tier III techniques, or any techniques inconsistent with the analysis herein, will be contrary to my recommendation. The aggressive techniques should not occur at GTMO where both CITF and the intelligence community are conducting interviews and interrogations." He calls for further review and concludes by saying "I cannot advocate any action, interrogation or otherwise, that is predicated upon the principal that all is well if the ends justify the means and others are not aware of how we conduct our business."
Army: The Assistant Deputy Chief of Staff for Operations and Plans writes: "As set forth in the enclosed memoranda, the Army interposes significant legal, policy and practical concerns regarding most of the Category II and all of the Category III techniques proposed." They recommend "a comprehensive legal review of this proposal in its entirety by the Department of Defense and the Department of Justice."
Navy: recommends that "more detailed interagency legal and political review be conducted on proposed techniques."
Marine Corp: expressed strong reservations, since "several of the Category II and III techniques arguably violate federal law, and would expose our service members to possible prosecution." Called for further review.
Legal adviser to the Joint Chiefs, Jane Dalton, commenced the review that was requested by the military services. But before it was concluded, Myers put a stop to it -- at the request of Jim Haynes, the Department of Defense General Counsel, who was told by Rumsfeld that things were "taking too long." Over the objections of the Army, the Navy, the Marines, the Air Force and the Criminal Investigation Task Force, Haynes recommended that the "aggressive technique" be approved without further investigation. He testified that Wolfowitz, Feith and Myers concurred.
On December 2, 2002 Rumsfeld approved Haynes' recommendation with the famous comment "I stand for 8-10 hours a day. Why is standing limited to 4 hours?"
One of the conclusions of the Senate Armed Services Committee report is that Myers screwed up:
Conclusion 11: Chairman of the Joint Chiefs of Staff General Richard Myers's decision to cut short the legal and policy review of the October 11,2002 GTMO request initiated by his Legal Counsel, then-Captain Jane Dalton, undermined the military's review process. Subsequent conclusions reached by Chairman Myers and Captain Dalton regarding the legality of interrogation techniques in the request followed a grossly deficient review and were at odds with conclusions previously reached by the Anny, Air Force, Marine Corps, and Criminal Investigative Task Force.
They also conclude that "Secretary of Defense Donald Rumsfeld's authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there. Secretary Rumsfeld's December 2,2002 approval of Mr. Haynes's recommendation that most of the techniques contained in GTMO's October 11, 2002 request be authorized, influenced and contributed to the use of abusive techniques, including military working dogs, forced nudity, and stress positions, in Afghanistan and Iraq."
Objections to torture aren't the exclusive terrain, as Bill Kristol likes to pretend, of "President Obama" and his "leftist lawyers" looking back on a "bright, sunny safe day in April" with "preening self-righteousness" and forgetting how "dark and painful" that chapter in our history was.
When Donald Rumsfeld approved "enhanced interrogation techniques" for Guantanamo Bay in 2002, he did so in defiance of the recommendations of the Army, the Navy, the Marines, the Air Force and the Criminal Investigation Task Force.
© 2009 FireDogLake
Jane Hamsher is the founder of firedoglake.com. Her work has also appeared on The Daily Beat, AlterNet, The Nation and The American Prospect.
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