On Tuesday, President Obama reassured CIA agents that if they interrogated prisoners within the "four corners" of the legal authority given by the Bush administration then they needn't fear prosecution.
But a Senate report released on Tuesday night shows that those four corners were constructed after the torture program had begun and were set so that they would encompass the program, rather than the program being built within pre-established legal guidelines. Memos previously released by the Obama administration confirm that the legal analysis was built around the practice and that for a time the torture took place without those "four corners" in place.
The report shows that there was strong opposition to those four corners -- which were established by Bush administration and justice department lawyers -- from the military, which argued that the behavior it purported to justify was illegal. The administration squashed that debate and eventually spread the illegal interrogation tactics from Guantanamo to Afghanistan, Iraq and secret prisons scattered around the globe.
The idea that torture is illegal, unethical and ineffective is well established in military circles. When elements of the military saw the interrogation plan being crafted by the White House, serious objections were raised. Those objections will be key to any prosecutions because they demonstrate that the White House should have been aware that what they were proposing was against the law.
The architects of the torture program, however, seem aware of the power of those dissenting views and, according to the Senate report, repeatedly denied receiving them.
Then-Captain and now-Rear Admiral Jane Dalton, for instance, told the committee that her staff discussed the military's concerns with DoD General Counsel Jim Haynes, one of the architects of the program, and that he was aware of the military's objections. Haynes, meanwhile, testified that he didn't know that the military was opposed and had written memos to that effect. He later qualified that denial to say he wasn't "sure" that he hadn't been made aware. His deputy, Eliana Davidson, also told him his torture project "needed further assessment," but Haynes, again, said he didn't recall Davidson telling him that.
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."
Taking in the concerns, the top legal counsel to the Joint Chiefs of Staff, Capt. Jane Dalton, proposed a thorough review before approving the new methods.
It wasn't to be. Chairman Richard Myers met with Haynes, Dalton told the committee, and returned to tell her to kill her review on Haynes' order. Haynes was concerned that a broader review would allow the military's reservations to leak out. Of course, both Myers and Haynes denied any knowledge of the meeting Dalton referred to and denied telling her to cut short her review. Tellingly, however, the committee reports that "neither has challenged Captain Dalton's recollection." It was the only time Dalton had ever been told to cut short a review, she told the committee.
Despite the broad and deep concerns within the military, Haynes recommended to Defense Secretary Donald Rumsfeld that the bulk of the practices be approved. On December 2, Rumsfeld signed off, famously scribbling in the margins: "I stand for 8-10 hours a day. Why is standing limited to 4 hours?"
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