Reply #35: Immunity in advance...2005 article by Marty Lederman

[slipslidingaway]

http://209.85.165.104/search?q=cache:pDc1nH6QFbcJ:www.acsblog.org/international-affairs-marty-lederman-gtmo-where-was-the-law-whither-the-ucmj.html+Immunity+in+advance+%2B+interrogation+techniques&hl=en&ct=clnk&cd=1&gl=us


"One of the more interesting, and disheartening, things about the interrogation of Mohammed al-Qahtani at Guantanamo in 2002-2003 -- the official log of which is examined in detail in this week's Time Magazine -- is that the military appears to have been fully aware that the techniques it was employing were unlawful. The Pentagon's efforts to provide legal justification for its activities are quite revealing...

Frustrated that detainees at GTMO, especially al-Qahtani, "have tenaciously resisted our current interrogation methods," on October 25, 2002 General James Hill forwarded to the Pentagon, for its review, proposed "counter-resistance techniques." Although General Hill was "uncertain whether all the techniques . . . are legal under US law," he expressed his "desire to have as many options as possible at my disposal and therefore request that Department of Defense and Department of Justice lawyers review" some of the techniques...

In an extensive legal memorandum appended to Major Hill's request, Staff Judge Advocate Diane Beaver acknowledged the problem posed by the UCMJ...

Well, then, if some of the proposed techniques are acknowledged to be "per se" federal crimes, how is it that Beaver can then recommend their use and (in a cover memo) conclude that they "do not violate applicable federal law"? Here's the only clue: She writes that because of the "per se" prohibitions of the UCMJ, "t would be advisable to have permission or immunity in advance from the convening authority, for military members utilizing these methods." No explanation here of the legal theory pursuant to which such ex ante "permission or immunity" to violate the law could be conferred.

As Beaver's memo went up the chain of command, it appears that virtually everyone (with the possible exception of General Hill, who expressed some legal trepidation) agreed with Beaver's conclusion that the UCMJ somehow would be no obstacle -- perhaps because they assumed that interrogators would be provided some sort of "permission or immunity in advance from the convening authority." Major General Michael Dunleavy concluded "that these techniques do not violate U.S. or international laws." Similarly, DoD General Counsel Haynes, following discussions with Deputy Secretary Wolfowitz, Doug Feith and General Myers, informed Secretary Rumsfeld that all of the proposed techniques "may be legally available." (Haynes also advised that, for policy reasons, "a blanket approval" of waterboarding and threats of death "is not warranted at this time.")