According to McClatchy Newspapers and former Defense and Administration officials, abuse of prisoners held without charges was a consequence of a legal firewall constructed by a War Council composed of Alberto Gonzales, David Addington, John Yoo, William Haynes and Timothy Flanigan which met in secret to deliberately and premeditatedly toss out US and International laws specifically designed to assure humane prisoner treatment at Guantanamo and in Afghanistan. This legal framework sought to justify detention in a way that thwarted Federal courts, international treaties and the Military Code of Justice, as well as obscuring accountability and preventing prosecution on all levels for what might be considered war crimes. The War Council was sanctioned following 9-11 by President George W. Bush, Vice-President Richard Bruce Cheney and former Secretary of Defense Donald Rumsfeld.
http://www.mcclatchydc.com/...
The War Council consisted of:
David Addington - Vice-President Cheney's current Chief-of-Staff
Alberto Gonzales - Former White House counsel and U.S. Attorney General
William Haynes - Former Pentagon General Counsel
John Yoo - Former Justice Department lawyer
Timothy Flanigan - Former Alberto Gonzales deputy
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.
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.
Brief background of the five War Council members and their comments when asked about this story.
Alberto Gonzales was White House counsel and then US Attorney General who resigned last August under a cloud of perjury accusations following Congressional hearings focusing on the politically motivated firing of U.S. attorneys. No comment on this story.
Williams Haynes was the former Pentagon counsel who abruptly resigned from the Defense Department in February over criticism of his handling of detainees’ rights at Guantanamo. He previously stated that his job was to prevent another terrorist attack.
John Yoo was a former Justice Department lawyer who has been condemned even by conservatives for sloppy legal work in drafting key memoranda about detention policy. He previously denied any connection between his work and detainee abuse.
Timothy Flanigan was a former deputy to Gonzales who withdrew his nomination to be Deputy Attorney General in 2005 after questions and concerns arose in the Senate about his role in drafting the administration's legal definition of torture. When asked about this story, he commented that he does not discuss past clients.
David Addington is the only one of the five still in office as the longtime legal adviser and now Chief-of-Staff to Dick Cheney. His primary mission in the War Council, according to former Administration and Defense officials, was to expand presidential power past the point where it could be checked by Congress or the courts. He had no comment on this story.
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."
US government officials have corroborated the existence of the War Council and its work.
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.
Haynes and Yoo began pressuring the military following 9-11 to find ways to circumvent existing legal frameworks.
In late 2001, Haynes asked Rear General Donald J. Guter, the Navy's Judge Advocate General from 2000 to 2002, whether prisoners could be detained on Navy warships in maximum security, undoubtedly knowing that assuring maximum security for hundreds of prisoners under such circumstances would be impossible. Guter said that he felt he was being pushed into opening a prison at Guantanamo.
“It became apparent pretty quickly" that Haynes wanted a place "outside of the courts," where no judge could consider whether detainees were being held lawfully or under appropriate conditions.
"What they were looking for was the minimum due process that we could get away with," said Guter, who's now the dean of Duquesne University's law school. "I felt like they knew the answer they wanted to hear."
Major General Thomas Romig, Army Judge Advocate General from 2001 to 2005, recalled troubling discussions with Yoo in late 2001.
"John Yoo wanted to use military commissions in the manner they were used in the Indian wars," Romig said. "I looked at him and said, 'You know, that was 100-and-something years ago. You're out of your mind; we're talking about the law.' " The military commissions that the U.S. used against Native Americans during the mid-19th century were often ad hoc and frequently resulted in natives being hanged or shot.
"As they viewed it, due process is legal mumbo jumbo," said Romig, now Dean of Washburn University's law school. "They wanted to get them, get the facts and convict them. ... If you're caught as a terrorist, you're presumed guilty and you have to prove you're innocent. It was crazy." When Romig objected to pushing the boundaries of interrogation procedures during meetings in late 2002 or early 2003, he recalled that civilian defense officials replied that the time for law had passed.
"Guys, it's time to wake up and smell the coffee. It's time to take the gloves off," Romig said he was told by Marshall Billingslea, a deputy to Douglas Feith — who was then the undersecretary of defense for policy, the Pentagon's third-ranking official. Romig said that he and other military officers asked, "Do you realize the implications of what you're saying?"
All along the way, military lawyers' concerns regarding soldiers' military discipline and moral behavior were 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 former Rear Admiral Guter. "I think it was intentional, because so many military JAGs spoke up about the rule of law." Major General Thomas Romig agreed that the JAGs were pushed to the side: "It was a disaster," he said.
Legal groundwork was laid over 14 months starting in January, 2002.
January 9, 2002. A memorandum from Haynes and Yoo claimed that Geneva Conventions protections forbidding humiliating and degrading treatment and torture of prisoners didn't cover alleged al-Qaida or Taliban detainees in Afghanistan and at Guantánamo
January 25, 2002. In a memorandum to President Bush, Gonzales said rescinding detainees' Geneva protections and denying POW status would reduce the threat of domestic War Crimes Act prosecution.
February 7, 2002. A memorandum issued by President Bush declared that alleged al-Qaida or Taliban members need not be considered POWs or given Geneva Convention protection.
August 1, 2002. A memorandum from the Justice Department more narrowly defined torture as "injury such as death, organ failure or serious impairment of body functions" which would prohibit “only extreme acts."
March 14, 2003. A memorandum from Yoo prepared at Haynes' request concluded that interrogators likely couldn't be prosecuted because they were operating within the scope of President Bush's constitutional authority to wage war against militants threatening the US.
"In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy," Yoo wrote.
This was the basis for Bush's signing the Military Commissions Act exempting “foreign unlawful combatants” from the rights defined by the Geneva Convention and the U.S. courts. The bill also rewrote part of the U.S. legal code on war crimes, changing the definition of a war crime to a much higher and more difficult to enforce standard which specifically excluded harsh treatment of detainees. Several members of the War Council were present at the signing of the Act.
More details on each of these various memoranda as well as the complete article detailing further machinations from all of this can be found at http://www.mcclatchydc.com/...
UPDATE: Link to Phillipe Sands book "Torture Team" courtesy of srkp23
http://www.tortureteam.com/