One Policy, Two Stories

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As I noted earlier, as outrageous as John Yoo’s memo itself is, the process by which it came to be implemented is remarkable in its own right.

As Jane Mayer reported in The New Yorker two years ago, Yoo’s March, 2003 memo to Pentagon General Counsel William Haynes came to be implemented by a two-faced process.

In part to satisfy internal administration critics of the Pentagon’s interrogation program at Guantanamo Bay, Secretary of Defense Donald Rumsfeld in 2003 convened a “working group” of lawyers from all branches of the armed services to develop new interrogation guidelines. That group included Alberto Mora, the former general counsel of the U.S. Navy, who outlined his efforts to prevent the use of torture in a 22-page memo (pdf) that was ultimately made public, and who was the focus of Mayer’s piece.

But Yoo’s memo, issued shortly after the working group began meeting, pretty much determined the direction of where the working group would end up. While Mora and other lawyers concerned about the use of torture were able to see a draft version of the working group’s report, Rumsfeld ultimately signed a final version of the report without the knowledge of several lawyers who were ostensibly its authors. That report was then related to Major General Geoffrey Miller, who was then in command of Gitmo. Soon after, the Pentagon sent him to Iraq to advise officials there on interrogating Iraqi detainees.

At the same time, Haynes publicly assured Congress and human rights groups in a June 25, 2003 letter that “it is the policy of the United States to comply with all its legal obligations in its treatment of detainees.” The Pentagon had not authorized the use of torture, or cruel, inhumane, or degrading treatment. Mora told Mayer that after he saw Haynes’ letter, he’d “sent an appreciative note to Haynes, saying that he was glad to be on his team.”

Mayer writes:

Without Mora’s knowledge, the Pentagon had pursued a secret detention policy. There was one version, enunciated in Haynes’s letter to Leahy, aimed at critics. And there was another, giving the operations officers legal indemnity to engage in cruel interrogations, and, when the Commander-in-Chief deemed it necessary, in torture. Legal critics within the Administration had been allowed to think that they were engaged in a meaningful process; but their deliberations appeared to have been largely an academic exercise, or, worse, a charade.

Marty Lederman, writing today, asks:

When will Congress insist upon hearings at which Geoffrey Miller, Jim Haynes, Donald Rumsfeld, and other DOD officials, explain why they kept the Yoo memo and the Working Group Report secret — undisclosed even to the Working Group itself — and why they briefed Miller on Yoo’s multiple theories of legal absolution on his way out to Iraq?

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