Three top military lawyers said yesterday that they lodged complaints about the Justice Department's definition of torture and how it would be applied to interrogations of enemy prisoners captured by U.S. forces, the first time they have publicly acknowledged that they objected to the policy as it was being developed in early 2003.
At a Senate hearing yesterday, the judge advocate generals (JAGs) for the Army, Air Force and Marines said they expressed their concerns as the policy was being hashed out at the Pentagon in March and April 2003. Though their letters to the Defense Department's general counsel are classified, sources familiar with them said the lawyers worried that broadly defined, tough interrogation tactics would not only contravene long-standing military doctrine -- leaving too much room for interpretation by interrogators -- but also would cause public outrage if the tactics became known.
"We did express opposition," said Maj. Gen. Thomas J. Romig, the Army's top lawyer. "It was accepted in some cases, maybe not in all cases. It did modify the proposed list of policies and procedures."
Sen. Lindsay O. Graham (R-S.C.), who chaired the Armed Services subcommittee hearing yesterday, said he was concerned that the JAG objections may have fallen on deaf ears, and that the policy that emerged may have opened the door to abuses at U.S. detention facilities around the world.
"If they had listened to you from the outset, we wouldn't have a lot of the problems we've dealt with" over the past two years, Graham said.
Considerable internal debate accompanied the development of the policy on treatment and interrogation of detainees in Iraq, Afghanistan and Guantanamo Bay, Cuba. The U.S. policy allowing some harsh techniques has been widely criticized by human rights groups and attorneys for detainees.
While sources had previously discussed the nature of the JAG concerns in media reports, their viewpoints have remained classified and some of the relevant memos have been kept from members of Congress.
In 2002, the State Department's legal adviser expressed concerns that the Bush administration had ignored the Geneva Conventions in deciding how to treat captured members of al Qaeda and the Taliban. Because such captives have been categorized as "enemy combatants" and not prisoners of war, the administration has said the conditions of their detention are not governed by the Geneva Conventions, though they would be treated humanely.
A military investigation into allegations of abuse at Guantanamo Bay reported this week that a number of specific interrogation tactics -- such as forced nudity and the use of military working dogs -- were employed at Guantanamo Bay to extract information from a high-value detainee. They were considered "authorized" by the Army field manual and Defense Department guidance and were therefore not considered abusive. Identical tactics were later used at Iraq's Abu Ghraib prison by military police officers who were not authorized to employ them.
According to senators at the hearing yesterday who cited military investigations into abuse, the JAG concerns ultimately were overruled by the general counsel's office. Pentagon spokesman Lawrence T. Di Rita said yesterday that their concerns were weighed along with discussion from intelligence and policy officials and that the result was a collaborative document.
Sen. Carl M. Levin (Mich.), ranking Democrat on the committee, asked the JAGs if they felt the tactics recently reported by investigators were consistent with Geneva Conventions prohibitions on torture. Air Force Maj. Gen. Jack Rives said he believed they were inconsistent. Levin also asked the generals if they would want U.S. prisoners of war treated that way.
"No, Senator, we would not," Rives said.
Graham and Sen. John McCain (R-Ariz.) argued that perhaps Congress should legislate the definitions of enemy combatants and their official legal status, as well as the legal process for adjudicating their cases. They said the delays that have kept hundreds of detainees at Guantanamo Bay without a single prosecution need to end. The military is currently waiting on federal court decisions about how to proceed.
A law enacted in 1994 bars torture by U.S. military personnel anywhere in the world. But the Pentagon working group's 2003 report, prepared under the supervision of general counsel William J. Haynes II, said that "in order to respect the President's inherent constitutional authority to manage a military campaign . . . [the prohibition against torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority."
Haynes -- through Daniel J. Dell'Orto, principal deputy general counsel for the Defense Department -- wrote a memo March 17 that rescinded the working group's report, and Dell'Orto confirmed that withdrawal yesterday at the hearing. According to a copy of the memo obtained by The Washington Post, the general counsel's office determined that the report "does not reflect now-settled executive branch views of the relevant law."
"I determine that the Report of the Working Group on Detainee Interrogations is to be considered a historical document with no standing in policy, practice, or law to guide any activity of the Department of Defense," said the memo, which is signed by Dell'Orto for Haynes.
The memo also refers to the fact that the JAGs proposed a new department-wide interrogation policy in late January this year, calling it an "excellent starting point for discussion" and a "profoundly important issue."
Dell'Orto declined to answer questions about the memo as he was leaving the hearing yesterday.
Di Rita said that a department-wide interrogations policy is being developed and that it will "reflect the input of everyone who has a stake in it." The Army is also reworking its field manual instructions on interrogations, he said.