Monday, August 01, 2005


Speaking of the views of concerned participants, Matthew Yglesias, over at The American Prospect's blog, excerpts an article by Spencer Ackerman on the views of military lawyers regarding the administration's policies regarding interrogation techniques as well as the legal reasoning that has been trotted out to defend the President's authority in regards to ordering such "exceptional" techniques. The article itself is behind a subscription wall on The New Republic's website, but here is a section of what Ylesias excerpted.
The JAGs were commenting on the report of a Pentagon working group, convened in January 2003, to review interrogation policy changes. But a common theme in their memos is the concern that the legal rationales employed by the working group were imported wholesale from the Justice Department's Office of Legal Counsel (OLC)--whose writing on the question of torture was memorably described by Yale Law School Dean Harold Koh as "perhaps the most clearly legally erroneous opinion I have ever read." (What the Justice Department lawyers actually gave to the Defense Department remains, inexplicably, classified, despite months of congressional demands.) Major General Thomas Romig, the Army JAG, essentially concurred. He denounced OLC's central contention--that any law restricting the president's ability to wage war is unconstitutional--writing caustically: "I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum. ... This view runs contrary to the historic position taken by the United States Government concerning such laws and, in our opinion, could adversely impact DOD interests worldwide." Brigadier General Kevin Sandkuhler, the Marine JAG, was more specific about how adopting OLC's argument would harm the military: "Comprehensive protection is lacking for DOD personnel who may be tried by other nations and/or international bodies for violations of international law."
One thing to remember is that the military not only has to enact the policies put forth by the administration, they are also often the first to receive the response to those policies (terrorist tactics have changed that somewhat, but in general it holds true for the U.S. soldiers or agents in the field. The FBI also has agents deployed in some of the hottest spots). If the U.S. abandons high standards of practice, what is to prevent others from doing so, or to encourage others to embrace higher standards?

- Murphy

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