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September 16th, 2006 - Military
Lawyers Caught in Middle on Tribunals |
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Military Lawyers Caught in
Middle on Tribunals By Mark Mazzetti and Neil A. Lewis New York Times September 16, 2006 Washington, Sept. 15 - On
Wednesday evening, the night before a crucial Senate vote on the Bush
administration plan for the interrogations and trials of terrorism suspects,
the Pentagon general counsel, William J. Haynes II, summoned the senior
uniformed lawyers from each military service to a meeting. The lawyers, known as judge
advocates general, had been pivotal players in years of debate over
detention, interrogation and prosecution. They had repeatedly sparred
behind the scenes with Mr. Haynes, the top civilian lawyer in the Defense
Department. This summer, the judge advocates general emerged in public after
the Supreme Court struck down a Bush administration plan to take an important
role in opposing parts of a White House effort to resurrect military
commissions for terrorism suspects in Guantánamo Bay, Cuba. But at the meeting on
Wednesday, Mr. Haynes sought to enlist the lawyers on the administration’s
side by asking whether any would object to signing a letter lending their
support to aspects of the White House proposal over which they had voiced
little concern. The lawyers agreed, but only
after hours of negotiating over specific words, so that they would not appear
to be wholly endorsing the plan. What followed was a scuffle
that left at least some of the military lawyers embittered and stoked old
tensions at the Pentagon between civilian leaders and uniformed military
officers, who under Defense Secretary Donald H. Rumsfeld have often found
themselves privately at odds. Early Thursday morning,
White House allies distributed the letter that the lawyers had signed, as
evidence that the group, known as Jags, now supported the administration
plan. That prompted loud protests
from Republican senators opposed to the plan. They dismissed the letter on
grounds that the lawyers would have signed it only under pressure. The truth lies somewhere in
between, said one of the senior lawyers and other current and former military
officials familiar with their views. “I didn’t have any problem
signing what I signed,’’ Maj. Gen. Charles J. Dunlap Jr., deputy judge
advocate general of the Air Force, said Friday in an interview. “How people
use it and what they use it for I can’t control.’’ General Dunlap represented
the Air Force at the meeting because the top lawyer was out of town. A spokesman for the
Pentagon, Bryan Whitman, said it was nonsense to suggest that the military
lawyers had been coerced, a point that General Dunlap agreed with. “Do you really think that an
officer with 30 years’ service could be coerced by the Pentagon bureaucracy
to sign something he didn’t want to sign?” General Dunlap asked. Of the five senior military
lawyers, just General Dunlap agreed to comment for the record. Spokesmen for
the other four — from the Army, Marines, Navy and Joint Chiefs of Staff —
said those senior lawyers would not speak publicly because of the sensitivity
of the topic. Other military officials
insisted on anonymity, saying the lawyers’ experience had demonstrated the
perils of active-duty officers’ speaking openly about sensitive subjects. The views of professional
military lawyers have been much sought after in the five-year debate over
what permissible techniques in the fight against terrorism. In early 2002, the
administration brushed aside the objections of the military’s most senior
uniformed lawyers to the original plans for military commissions. When the
lawyers’ role as dissenters became known later, they were lauded by human
rights advocates and others as having tried to be an independent voice and
brake on the administration. According to documents
released last year, the military lawyers later objected strenuously to the
conclusions of an administration legal group that said in early 2003 that President
Bush had authority as commander in chief to order harsh interrogations of
Guantánamo Bay detainees. In public testimony to
Congress last month, the lawyers voiced objections to specific parts of the
White House plan, which was an effort to resurrect the Guantánamo military
commissions that the Supreme Court struck down. Most significant, the lawyers
disputed the provision prohibiting defendants from access to classified
evidence against them. The top uniformed Marine
lawyer, Brig. Gen. James C. Walker, said in his testimony that no civilized
country ought to deny defendants the right to see evidence against them and
that the United States “should not be the first.’’ The lawyers stand by those
objections, military officials said. The letter signed on
Wednesday focused instead on two different parts of the White House proposal,
the provision amending Common Article 3 of the Geneva Conventions and a
provision of the War Crimes Act that enforces that article. Mr. Haynes drafted the
letter focusing on these provisions because neither had been a sticking point
in the military lawyers’ objections. But when the lawyers reached Mr.
Haynes’s office, they declined to sign immediately, people with knowledge of
the meeting said. The lawyers spent more than
an hour huddled in a private room wrangling over language they could agree on
and trying to call Rear Adm. Bruce MacDonald, the Navy judge advocate
general. A participant in the meeting
said Admiral MacDonald told his colleagues that he could not sign a letter
saying he supported the Common Article 3 definition in the White House
legislation because he advocated a broader definition that relied more on
international law, rather than a narrow interpretation of American
constitutional law. In the end, the military
lawyers all agreed to language in the letter saying they “do not object“ to
the provisions in the administration bill. But the letter included a
sentence that the clarification would be “helpful to our fighting men and
women at war on behalf of their country.” White House officials said
that sentence demonstrated the military lawyers’ support. General Dunlap said in his
mind that signing the letter meant just to convey that trying to clarify ambiguous
language was helpful and that it did not mean that he and his colleagues
fully endorsed the administration view. Copyright 2006 The New York
Times Company External link: http://www.nytimes.com/2006/09/16/washington/16jags.html |