Taking Off The Gloves

Matt Yglesias points us to law professor Eric Muller’s post about the possibility that the Solicitor general lied to the Supreme Court. Matt says:

The subject is Clement’s contention in oral arguments on the Padilla and Hamdi cases that the US government doesn’t engage in even “mild torture” to try and secure information from detainees. This is going to wind up hinging on whether or not various “stress and duress” interrogation techniques count as torture — certainly this stuff sounds a lot like torture to me.

I agree that this particular argument is going to rest on whether these techniques are considered “mild torture” but it should be noted that both General Pace and Wolfowitz of Arabia agreed yesterday that these acts are inhumane and they would consider them violations of the Geneva Convention if used against US troops. (Civilians are accorded even greater protections.)

As to whether the solicitor general’s office knew about it (however it is defined) it would certainly appear that Ted Olson was brainstorming in the White House about the case, right along with Cheney and Rummy:

The president’s men were divided. For Dick Cheney and his ally, Donald Rumsfeld, the answer was simple: the accused men [the Lakawanna Six] should be locked up indefinitely as “enemy combatants,” and thrown into a military brig with no right to trial or even to see a lawyer… “They are the enemy, and they’re right here in the country,” Cheney argued, according to a participant. But others were hesitant to take the extraordinary step of stripping the men of their rights, especially because there was no evidence that they had actually carried out any terrorist acts…Cheney and Rumsfeld argued that in time of war there are few limits on what a president can do to protect the country. “There have been some very intense disagreements,” says a senior law-enforcement official. “It has been a hard-fought war.”

[…]

But as the months wore on, Justice lawyers became increasingly uneasy about holding him [Padilla] indefinitely without counsel. Solicitor General Ted Olson warned that the tough stand would probably be rejected by the courts. Administration lawyers went so far as to predict which Supreme Court justices would ultimately side for and against them.

But the White House, backed strongly by Cheney, refused to budge. Instead, NEWSWEEK has learned, officials privately debated whether to name more Americans as enemy combatants including a truck driver from Ohio and a group of men from Portland, Ore.

Did the administration lie to the Court? Ted Olson almost certainly understood the mindset of the administration as it dealt with these “unlawful combatants” which is characterized by a total willingness to throw aside the rule of law. (Cheney is quite obviously out of his mind on these issues. Remember the smallpox freak-out?) Whether the lawyer Paul Clement was aware that the White House had taken a no hold barred approach to the treatment of prisoners is unknown. In any case, as Matt says, if that argument is ever broached it will hinge on the question of whether these admitted techniques, like holding someone under water until they think they’re drowning, can be called torture. In the Bizarro World in which we now live, it’s entirely possible that Scalia and gang will find it perfectly acceptable.

But, there is another little problem with the legal situation pertaining to prisoner treatment. Rumsfeld effectively locked out the JAG office in making all these decisions and the military lawyers have been complaining about it for months:

A group of senior military lawyers were so concerned about changes in the rules designed to safeguard prisoners during interrogation that they sought help outside the Defense Department, according to a New York lawyer who headed a recent study of how prisoners have been treated in the war on terrorism.

The military lawyers were part of the Army Judge Advocate General’s office, which in the past has played a role in ensuring that interrogators did not violate prisoners’ rights.

“They were extremely upset. They said they were being shut out of the process, and that the civilian political lawyers, not the military lawyers, were writing these new rules of engagement,” said Scott Horton, who was chairman of the New York City Bar Assn. committee that filed a report this month on the interrogation of detainees by the U.S.

[…]

Defense Secretary Donald H. Rumsfeld said the rules had been examined and approved by lawyers for the administration.

On Tuesday, Stephen A. Cambone, undersecretary of Defense for intelligence, said Douglas J. Feith, undersecretary of Defense for policy, “issued any number of statements and directives to the effect that detainees in Iraq, civilian or military, were to be treated under the provisions of the Geneva Convention.”

[…]

Horton said the military lawyers told him that Feith pressed for looser interrogation rules and won approval for them from the administration’s civilian lawyers earlier in the U.S. war on terrorism.

Which lawyers? They don’t refer to these decisions as coming from the Justice Department but rather more broadly from “the administration’s civilian political lawyers.”

White House counsel Alberto Gonzales openly defends the White House’s decision to call the Guantanamo prisoners “enemy combatants” largely because the Geneva Convention would limit their ability to interrogate the prisoners.(It’s comforting to know that they promise to operate in guantanamo in the “spirit” of the Geneva Conventions, though. Trust Us)

In a famous early skirmish in the Bush administration’s ongoing civil war, Gonzales sent around a memo trying to persuade the national security council to reject Colin Powell’s request to give the Guantanamo prisoners POW status. (Condi later said it was just a draft…)

It’s possible these military lawyers are referring to Justice, but it’s just as likely that the rules were debated and decided right in the White House. History suggests that Cheney and Rumsfeld are always in favor of the harshest possible treatment. They gave in only when Ashcroft argued to protect his own turf (and profile) in the US. (That’s what passes for compromise in the Bush administration.)

In other words, it is likely that the rules for the treatment of prisoners in Iraq, just as they were in Guantanamo, were not created in some obscure Justice Department or CIA office as is stated in this NY Times article today. The history of this issue leads to the White House Counsel’s office and the Office of the Vice President.

As I wrote earlier, they were frantic to get intelligence on the whereabouts of the apparently vaporized WMD. They believed from the beginning that this was such a “different kind of war” that they needn’t adhere to the rule of law or war.

Somebody needs to ask which civilian “political” lawyers were making the interrogation rules in the War On Terrorism.