Easing of laws that led to detainee abuse hatched in secret
By Tom Lasseter | McClatchy Newspapers
WASHINGTON — The framework under which detainees were imprisoned for years without charges at Guantanamo and in many cases abused in Afghanistan wasn't the product of American 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 the U.S. and international laws that govern the treatment of prisoners in wartime, according to former U.S. defense and Bush administration officials.
The Supreme Court now has struck down many of their legal interpretations. It ruled last Thursday that preventing detainees from challenging their detention in federal courts was unconstitutional.
The quintet of lawyers, who called themselves the “War Council," drafted legal opinions that circumvented the military's code of justice, the federal court system and America's international treaties in order 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's 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, a Michigan Democrat.
The international conventions that the United States helped draft, and to which it's a party, were abandoned in secret meetings among the five men in one another's offices. No one in the War Council has publicly described the group's activities in any detail, and only some of their opinions and memorandums have been made public.
Neither the White House nor the Department of Defense 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, to defend the rule of law. They never had a chance.
Only one of the five War Council lawyers remains in office: David Addington, the brilliant but abrasive longtime legal adviser and now chief of staff to Cheney. His 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 J. Haynes II, the former Pentagon general counsel, amid sharp public criticism by military lawyers that he failed to ensure a just system of detainee trials at Guantanamo.
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's now a law professor at the University of California at Berkeley.
The last and least known member of the group, Timothy E. 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 from McClatchy for this story. Only Flanigan gave a reason, saying that he doesn't discuss past clients, in this case the U.S. government. Yoo previously has denied any connection between his work and detainee abuse.
The quintet did more than condone harsh treatment, however. It 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 American soldiers and operatives from legal repercussions for their actions, said Nigel Rodley, a British lawyer and professor who was the United Nations' special rapporteur on torture from 1993 to 2001.
The U.S. 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.
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