Military lawyers objected to Pentagon interrogation tactics

The top lawyers for the Army, Air Force and Marines indicated that they lodged complaints as early as 2003 about the Justice Department’s definition of torture and how it would be applied to interrogations of those captured in Afghanistan and Iraq.

The judge advocate generals of the three branches of the military expressed their concerns that broadly defined, tough interrogation tactics the Justice Department approved would break long-standing military doctrine and cause public outrage if the tactics became known. They were right as public opinion in the wake of the Abu Ghraib scandal clearly showed.

The ongoing problem does not relate to the detainees physical treatment as the conditions of confinement at Guantanamo Bay are similar to those at any US maximum security prison. The problem is actually two-fold. First, the public perception of that physical and mental abuse is ongoing fueled by the revelation of abuses at Abu Ghraib and numerous administration statements (including this one from Defense Sec. Donald Rumsfeld where he says on Larry King Live that “the problem is this kind of thing [abuse] occurs in prisons across the country”) indicating that abuse happens and is accepted. The second part of the problem is the continued uncertain legal status of “enemy combatants.”

The solution to the first part of this problem is complex. Stereotypes about abuse in prisons and jails in the United States are well entrenched in popular culture and in the public’s mind. However, Congress did authorize legislation, the Prison Rape Elimination Act, in 2003 that calls for a systematic study of prison abuse and prison rape in America’s jails and prison. The initial results of the first national study on this issue will be released later this summer and a commission established under the legislation is moving forward with public hearings on the issue of abuse in America’s jails and prison. Perhaps the findings of the commission will help to sway the American public’s belief that rape and violence are widespread in prison and jail (I’m not arguing that it doesn’t occur, just that it’s not as wide spread as popular culture would leave you to believe). The Pentagon has also allowed increased access to military run facilities in Iraq and at Guantanamo Bay and instituted new policies that will make a repeat of the abuses at Abu Ghraib unlikely to be repeated. These are both good steps forward that will help with the public relations challenges.

In regards to the legal treatment of detainees, currently there is no notion of due process and legal authority to detain individuals as “enemy combatants.” The Justice Department continues to argue that captives are "enemy combatants" and not prisoners of war and, thus, the conditions of their detention are not governed by the Geneva Conventions. Individuals can be detained indefinitely without any recourse through the law – not exactly a shining example of the democratic principles we are trying to instill around the world.

The solution to this part of the problem is simpler. Congress should act to give the detainees legal status and to formalize a process for the review of military decisions to hold enemy combatants.

Representative Adam Schiff (D-CA) has introduced legislation in each of the last three Congresses to do just this. To date, he has had little success in gaining support from either side of the aisle (none of his three bills has attracted even a single Republican co-sponsor). Schiff’s bill, the Guantanamo Detainees Procedures Act of 2005) would do four things. First, it affirms the president’s authority to detain foreign nationals as unlawful combatants, providing a definition for who can be classified as an enemy combatant. Second, it entitles detainees to a status hearing before an independent military officer within six months. Third, it requires the government to either bring formal charges against detainees or to repatriate or release them within two years, unless the Pentagon certifies that it needs more time for particular detainees and explains why. And, fourth, the legislation requires the Defense Department to put the cases before tribunals that operate under clear standards and procedures, including the right to counsel and to present exculpatory evidence.

These are good reforms that should be supported.