Secret tactics dictated treatment of detainees

WASHINGTON — The framework under which detainees were imprisoned for years without charges at Guantánamo Bay, Cuba, and in many cases abused in Afghanistan wasn't the product of U.S. military policy or the fault of a few rogue soldiers.

It was largely the work of five White House, Pentagon and Justice Department lawyers who, following the orders of President Bush and Vice President Dick Cheney, reinterpreted or tossed out U.S. and international laws that govern treatment of prisoners in wartime, according to former U.S. defense and Bush administration officials.

The Supreme Court has struck down many of those legal interpretations, ruling Thursday that preventing detainees from challenging their detention in federal courts was unconstitutional.

The five lawyers, who called themselves the "War Council," drafted legal opinions that circumvented the military's code of justice, the federal court system and international treaties to prevent anyone — from soldiers on the ground to the president — from being held accountable for activities that at other times have been considered war crimes.

Sen. Carl Levin, who is leading an investigation into the origins of the harsh interrogation techniques, said at a hearing Tuesday that the abuse wasn't the result of "a few bad apples" within the military, as the White House has claimed.

"The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality and authorized their use against detainees," said Levin, D-Mich.

The international conventions that the United States helped draft and to which it is a party were abandoned in secret meetings among the five men.

Neither the White House nor the Defense Department has taken responsibility, and the U.S. military's top uniformed leadership remained silent in public while its legal code was being discarded. It was left to lawyers in the military's legal system, the Judge Advocate General's Corps (JAG), to defend the rule of law. They never had a chance.

A question of relevance

Only one of the five War Council lawyers remains in office: David Addington, the longtime legal adviser and now chief of staff to Cheney. Addington's primary motive, according to several former administration and defense officials, was to push for an expansion of presidential power that Congress or the courts couldn't check.

Alberto Gonzales, first the White House counsel and then the attorney general, resigned last August amid allegations of perjury related to congressional hearings about the firings of U.S. attorneys.

The Defense Department in February abruptly announced the resignation of William Haynes, the former Pentagon general counsel, amid public criticism by military lawyers that he failed to ensure a just system of detainee trials at Guantánamo.

Even some conservatives have condemned former Justice Department lawyer John Yoo for what many called sloppy legal work in drafting key memorandums about detention policy. He is now a law professor at the University of California, Berkeley.

The last and least-known member of the group, Timothy Flanigan, a former deputy to Gonzales, withdrew his nomination to be deputy attorney general in 2005 amid mounting questions in the Senate about his role in drafting the administration's legal definition of torture and other issues.

All five refused to answer questions for this story. Only Flanigan gave a reason, saying he doesn't discuss past clients, in this case the U.S. government. Yoo has denied any connection between his work and detainee abuse. Haynes testified at a Senate hearing Tuesday that he was doing the best he could to help prevent another major terrorist attack.

The five did more than condone harsh treatment. They created an environment in which it was nearly impossible to prosecute soldiers or officials for alleged crimes committed in U.S. detention facilities.

The Bush administration pursued a strategy from the beginning to exempt U.S. soldiers and operatives from legal repercussions for their actions, said Nigel Rodley, a British lawyer and professor who was specially designated by the United Nations to report on torture from 1993 to 2001.

The United States said it was continuing to follow the rule of law, but at the same time it sidestepped any international treaties that could create problems for soldiers or officials, said Rodley, a member of the U.N. Human Rights Committee.

The legal architecture, he said, hinged on the notion that "the treaties that were relevant to U.S. criminal law were not relevant. That was the trick."

The administration, in other words, set out to circumvent any law that might have restricted Bush's detainee and interrogation programs.

Key opinions

A handful of legal opinions opened the way to the abuses. Among them:

• In a Jan. 9, 2002, memorandum for Haynes, co-author Yoo said that basic Geneva Conventions protections known as Common Article Three forbidding humiliating and degrading treatment and torture of prisoners didn't cover alleged al-Qaida or Taliban detainees, the entire incoming population of detainees in Afghanistan and at Guantánamo.

• In a memorandum to Bush dated Jan. 25, 2002, Gonzales said rescinding detainees' Geneva protections "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act."

Doing so, Gonzales wrote, also would create a solid defense against prosecutors or independent counsels who in the future may "decide to pursue unwarranted charges based on Section 2441," the U.S. War Crimes Act, which prohibits violations of the Geneva Conventions. Gonzales added that by withholding Geneva protections and prisoner-of-war status, Bush could avoid case-by-case reviews of detainees' status.

• On Feb. 7, 2002, Bush issued a memorandum declaring that alleged al-Qaida or Taliban members wouldn't be considered prisoners of war and, further, that they wouldn't be granted protection under Common Article Three.

• An Aug. 1, 2002, memorandum that Gonzales requested from the Justice Department defined torture as "injury such as death, organ failure or serious impairment of body functions," a high bar for ruling interrogation techniques or detainee treatment illegal. U.S. law, according to the memorandum's analysis, "prohibits only extreme acts."

• A March 14, 2003, memorandum that Yoo prepared at Haynes' request concluded that even if an interrogation method violated U.S. criminal statutes — such as the one against war crimes — the interrogators involved likely couldn't be prosecuted because they were operating within the scope of Bush's constitutional authority to wage war against al-Qaida and other militant groups.

The five lawyers on the War Council met every few weeks behind closed doors in Gonzales' or Haynes' office to plot legal strategy, said Jack Goldsmith, a former senior Justice Department lawyer.

Several other former U.S. officials confirmed that the group was the driving force for White House policy on detainees.

Fears of future prosecution motivated many officials in the administration, Goldsmith said in his book "The Terror Presidency," published last year. The five lawyers saw legal opinions drafted by Yoo and others in the Justice Department's Office of Legal Counsel as a shield, Goldsmith wrote, that would make it hard to convict someone of acting on legal advice from the premier legal office in the administration.

"In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls," wrote Goldsmith, who declined interview requests.

As the head of the Office of Legal Council from fall 2003 to summer 2004, Goldsmith reversed the August 2002 and March 2003 opinions.

Military lawyers ignored

The military's lawyers were among those who were most concerned about what the new policies would mean for soldiers in the field.

Though not well-known to the public, the Judge Advocate General's Corps prides itself on defending the Uniform Code of Military Justice, the military's law book, which demands strict discipline and moral behavior in wartime. The legal officers are fond of saying that military commanders can depend on two people for honest advice: their chaplains and their JAG lawyers.

The military legal community complained, to little avail, that the policies hatched with the consent of Bush, Cheney and then-Defense Secretary Donald Rumsfeld were replacing decades of U.S. military policy on handling detainees.

When military lawyers protested, the War Council shut them out.

"We were absolutely marginalized," said Donald Guter, a rear admiral who served as the Navy's judge advocate general from 2000 to 2002. "I think it was intentional, because so many military JAGs spoke up about the rule of law."

Thomas Romig, a major general who was the Army's judge advocate general from 2001 to 2005, agreed that the JAGs were pushed to the side: "It was a disaster," he said.