"Habeus Corpus Is Legal Mumbo Jumbo"

I've been busy with pastoral duties and other stuff, but I wanted to get back to the McClatchy series on detainee abuse by the United States in the War on Terror.

Tuesday's article, "A School for Jihad," shows how the U.S. strategy of extreme isolation, torture, and detaining people who had no real links to terrorism actually drove them into terrorist cells. How ironic! We actually made the situation worse by mistreating innocent people - see We Got The Wrong Guys from Sunday - who then, quite naturally, moved toward our own real enemies.

Wednesday's article was eye-opening to me. I don't normally quote extensively, but its so damning that you have to read it to believe it:

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.

Laws? Treaties? What are those? Rights? You have rights if we say you have rights. The good news is that the Judge Advocate General corps, the military laywers within the Pentagon and the uniformed services, strenuously abjected to ignoring the Geneva Conventions establshing Gitmo, and the rest. Why? Because they knew and know that what goes around comes around. Breaking the law to defend a country founded ont he rule of law, not men, doesn't get the problem solved:

Though not well known to the public, the Judge Advocate General's corps prides itself on defending the Uniform Code of Military Justice, the military's law book, which demands strict discipline and moral behavior in wartime. The legal officers are fond of saying that military commanders can depend on two people for honest advice: their chaplains and their JAG lawyers.

The military legal community complained, to little avail, that the policies hatched with the consent of Bush, Cheney and then-Defense Secretary Donald H. Rumsfeld were replacing decades of U.S. military policy on handling detainees.

When they protested, the War Council shut them out.

"We were absolutely marginalized," said Donald J. Guter, a rear admiral who served as the Navy's judge advocate general from 2000 to 2002. "I think it was intentional, because so many military JAGs spoke up about the rule of law."

Thomas Romig, a major general who was the Army's judge advocate general from 2001 to 2005, agreed that the JAGs were pushed to the side: "It was a disaster," he said.

Trust between the uniformed military lawyers and the Bush administration collapsed in the months after 9-11.

Guter said he began to think that Haynes "was playing games" in late 2001, when the two met regularly to figure out how to handle detainees in Afghanistan.

Haynes, then the Pentagon's head lawyer, had asked whether hundreds of the prisoners could be detained on Navy warships. The security and logistics involved in operating a ship while maintaining a maximum-security prison onboard would have been impossible. Guter thought that Haynes was raising such ideas to push him toward establishing a prison at the Guantanamo Bay U.S. Naval Base.

Guter said "it became apparent pretty quickly" that Haynes wanted a place "outside of the courts," where no judge could consider whether detainees were being held lawfully or under appropriate conditions.

"What they were looking for was the minimum due process that we could get away with," said Guter, who's now the dean of Duquesne University's law school. "I felt like they knew the answer they wanted to hear."

Romig recalled tense discussions with Yoo [a senior lawyer in the Justice Dept., now discredited, who wrote the original oopionions claiming that the Geneva Conventions do not apply - RFSJ] in November and December 2001 about setting up military commissions to try detainees.

"John Yoo wanted to use military commissions in the manner they were used in the Indian wars," Romig said. "I looked at him and said, 'You know, that was 100-and-something years ago. You're out of your mind; we're talking about the law.' "

The military commissions that the U.S. used against Native Americans during the mid-19th century were often ad hoc and frequently resulted in natives being hanged or shot.

"As they viewed it, due process is legal mumbo jumbo," said Romig, who's now the dean of Washburn University's law school. "They wanted to get them, get the facts and convict them. ... If you're caught as a terrorist, you're presumed guilty and you have to prove you're innocent. It was crazy."

When Romig objected to pushing the boundaries of interrogation procedures during meetings in late 2002 or early 2003, he recalled that civilian defense officials replied that the time for law had passed.

"Guys, it's time to wake up and smell the coffee. It's time to take the gloves off," Romig said he was told by Marshall Billingslea, a deputy to Douglas Feith — who was then the undersecretary of defense for policy, the Pentagon's third-ranking official.

Romig said that he and other military officers asked, "Do you realize the implications of what you're saying?"

Like many in the military, Romig doubted the quality of intelligence gathered by physical coercion.

Haynes, who also was present, had no objections to what Billingslea had said, according to Romig. Billingslea and Haynes declined requests for comment.

In June 2006, over the objections of the White House, the Supreme Court ruled that Common Article Three of the Geneva Conventions was applicable to detainees at Guantanamo Bay.

Time and time again, it's only the Supreme Court which had had the coruage to say to Bush, you've gone too far. The law is the law, and you have to obey it just like anyone else. I blame Congress, too, for being browbeaten by Bush and his culture of fear into passing horribly un-American laws like the Litary Detainees Act, among others.

I really do think Justice Kennedy had it right in last Thursday's decision when he wrote: "The laws and Constitution are designed to survive, and remain in force, in extraordinarytimes. Liberty and security can be reconciled; and in oursystem they are reconciled within the framework of the law. "

He has summed up, completely and succintly, the role - and the rule - of law in our society as it is and as it should be. No one is above the law, not even the Preisdent, not even in a time of crisis.

RFSJ