Lawyer for State Dept. Disputed Detainee Memo
Military Legal Advisers Also Questioned Tactics
By R. Jeffrey Smith
Washington Post Staff Writer
Thursday, June 24, 2004; Page A07
A letter about detainee policy sent in 2002 from the State Department's legal adviser to the Justice Department's deputy assistant attorney general made no attempt at bureaucratic pleasantries.
William H. Taft IV said that Justice's legal advice to President Bush about how to handle detainees in the war on terrorism was "seriously flawed" and its reasoning was "incorrect as well as incomplete." Justice's arguments were "contrary to the official position of the United States, the United Nations and all other states that have considered the issue," Taft said.
Taft's Jan. 11 letter, obtained by The Washington Post, was omitted from the hundreds of pages of documents released Tuesday by the Bush administration. The release was part of an effort to present the administration's policies on detainees since Sept. 11, 2001, as fully compliant with domestic and international law.
A fuller picture -- of senior administration officials who sought to reinterpret the law and sanction tougher treatment of detainees in the face of strongly expressed dissents by the State Department and the military services -- emerges from the State Department letter and other previously undisclosed memos.
The dissents include three classified memos written in the spring of 2003 by senior military lawyers in the Air Force, Marine Corps and Army, and a classified memo by the Navy's top civilian lawyer, Alberto J. Mora, say government officials who have read them. The officials, and others interviewed for this story, spoke on the condition that they not be identified.
Two officials said the memos were written by Air Force Maj. Gen. Jack L. Rives, Marine Brig. Gen. Kevin M. Sandkuhler and Army Maj. Gen. Thomas J. Romig.
Their common theme, one official said, was that tough interrogation techniques being advocated by senior civilians at the Defense Department and by the commander of the military detention center at Guantanamo Bay, Cuba, would not only contravene longstanding military practice but also provoke a storm of public criticism if the tactics became known.
The military lawyers, the official said, argued that coercive interrogation techniques rarely produce data as reliable as the intelligence gleaned by rewarding prisoners who cooperate -- a view also expressed in the Army's field manual, as redrafted after the Vietnam War.
They also said that tough procedures being advocated were subject to abuse that could haunt U.S. policymakers and endanger U.S. military personnel detained by other countries.
Lawyers for the Joint Chiefs of Staff raised similar concerns -- about the specific interrogation tactics being proposed and the administration's decision that protections afforded by the Geneva Conventions were unavailable as a matter of law to suspected members of the Taliban militia in Afghanistan, according to a former military official familiar with the dispute.
"It was clearly the position of the senior leaders of the military that the Geneva Conventions should apply" to Taliban militia, the official said. Air Force Gen. Richard B. Myers, the Joint Chiefs chairman, "was very strong with the Secretary of Defense on a number of occasions" in expressing this viewpoint.
The official added that military lawyers attached to Central Command, which has jurisdiction over the Middle East, and to the Southern Command, which has jurisdiction over Guantanamo Bay, also favored holding military tribunals to determine the status of individual Taliban detainees and the Geneva Convention protections to which they were entitled.
The dissidents' complaints had limited impact, according to the documents and accounts of the administration's internal deliberations.
Taft, whose role made him the government's principal interpreter of treaties, accused John C. Yoo, the deputy assistant attorney general, in the Jan. 11 letter of preparing advice for Bush based on "wrong" premises. He also said Yoo's idea that Bush could "suspend" U.S. obligations to respect the Geneva Conventions was "legally flawed and procedurally impossible."
© 2004 The Washington Post Company