As early as November 2002, the military was pushing back. The Air Force cited "serious concerns regarding the legality of many of the proposed techniques" because they "may be subject to challenge as failing to meet the requirements outlined in the military order to treat detainees humanely."
The top legal adviser to the Criminal Investigation Task Force weighed in, arguing that the techniques "may subject service members to punitive articles of the [Uniform Code of Military Justice]." The "utility and legality of applying certain techniques" was, the lawyer advised, "questionable." Getting more to the point, he added that he couldn't "advocate any action, interrogation or otherwise, that is predicated upon the principle that all is well if the ends justify the means and others are not aware of how we conduct our business."
The Army didn't like it, either. The Army's International and Operational Law Division chief determined that the program "crosses the line of 'humane' treatment" and would "likely be considered maltreatment" under military law and "may violate torture statute." The request to torture was deemed "legally insufficient."
The Navy wanted further review and the Marine Corps expressed "strong reservations," saying the request to torture wasn't "legally sufficient." The proposed techniques "arguably violate federal law, and would expose our service members to possible prosecution."
It's a peculiar, difficult thing to dissent in the military, because by law you cannot make public comment, and if--as now seems to be the case--some of the more politicized senior brass are willing to sell their souls for personal gain, you are constrained by a very particular culture and a very real chance of hard time.
But Captain (now Rear Admiral) Jane Dalton fought the good fight as General Counsel to the Joint Chiefs, as did civilian Alberto J. Mora, General Counsel to the US Navy, and especially USAF JAG Major David J. R. Frakt, in his compelling statement at a military tribunal on behalf of Mohammed Jawad in June 2008, which frankly ought to become an American State Paper:
President Bush’s words were important, and deserve special attention. For those of us in the military who have faithfully attended our annual Law of Armed Conflict training, or in my case, have given the training many times, the Geneva Conventions and humane treatment were synonymous, they were one and the same. The Geneva Conventions represented the baseline, they embodied the determination of the world to make war a more humane enterprise, to prevent a descent into wholesale barbarity, as had occurred during the Second World War. But now we were being told that humane meant something else, something less, than the Geneva Conventions. And we were being told that we could act inconsistently with the Geneva Conventions, when military necessity demanded it. Those of us who were familiar with the Geneva Conventions, whose job it was to know them, were puzzled and deeply troubled by the President’s order and had serious forebodings about the implications of such a decision. We understood that there were no gaps in Geneva, there were was no one who fell outside their protection, that Common Article 3 applied to everyone.
But the civilian political appointees of this administration intentionally cut out the real experts on the law of armed conflict, the uniformed military lawyers, the JAGs, were out of the loop, for fear that their devotion to the Geneva Conventions might pose an obstacle to their intended course of action. The State Department, led by Colin Powell, tried to raise a red flag, but to no avail. Instead, the administration chose to rely on the infamous torture memos by John Yoo, Robert Delahunty and Jay Bybee. These secret memos attempted to redefine torture for the purpose of providing legal cover for administration officials who approved the use of patently unlawful tactics. These legal opinions, now disgraced, disavowed, and relegated to the scrapheap of history where they belong, laid the groundwork for the wholesale and systematic abuse of detainees which ultimately ensnared my client, Mohammad Jawad.
I’m sure that all of these people, the President included, thought they were doing what was best. But what sometimes appears to be in the interests of America at first glance, upon further reflection reveals itself not to be. Interning Japanese-Americans during World War II perhaps seemed like a good idea at the time, but in hindsight we can see that it was a terrible injustice, inconsistent with American ideals and utterly unconstitutional. It is a shameful episode in our history, a xenophobic overreaction. The conscious, deliberate decision to abandon the Geneva Conventions and the entire fiasco that is Guantanamo will undoubtedly be viewed by historians as an even more disgraceful chapter in our history.
In a movie, somebody would have stepped forward before a microphone and had a dramatic moment, stopped the presses and stopped the water-boarding. But it doesn't happen that way in real life.
What is most important to gather here, however, is the possibility to place some chinks in the intellectual armor of those who still believe that torture is justified on utilitarian grounds (it supposedly works). We're told that enhanced interrogation techniques have stopped attack and saved the lives of our troops on various occasions.
Well, here are the officers themselves, standing up and saying, We didn't agree to purchase some additional, emphemeral safety at the cost of our country's honor.
The military ain't perfect. There's bountiful evidence of that from Abu Graib back through My Lai and into the dim, flag-waving past if you care to look.
Even the conduct of some of our troops at Gitmo and Bagram can be called into question.
But at the policy level it was not the military--at least not the ones below the level of the Joint Chiefs--who betrayed our principles, stained our honor, and dismayed our friends. And for that, tonight, I'm thankful.