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Mary Walker has endured more controversy in a three-year tenure as general counsel of the U.S. Air Force than most government lawyers do in a career. Last year, a blue-ribbon panel headed by former Rep. Tillie Fowler (R-Fla.) practically accused Walker of a cover-up after the GC issued a report absolving Air Force brass of responsibility in sexual abuse scandals at the Air Force Academy. Now Walker, a former Brobeck, Phleger & Harrison lawyer appointed by President George W. Bush, is back on the hot seat. At issue this time is her role heading a U.S. Department of Defense working group that issued a controversial report in March 2003 giving the administration enormous latitude in interrogating alleged terrorists. Once again, Fowler — a partner with Holland & Knight — is on retainer to review Walker’s handiwork: In May, Defense Secretary Donald Rumsfeld appointed Fowler to a panel to review detention operations. (Walker declined to comment for this article. Fowler spokesman Thomas Alexander says she won’t comment until the work is complete later this summer.) Walker’s report is one of a series of government memos uncovered in recent months that seem to rationalize the use of torture on detainees. In 2002, John Yoo, a professor at Boalt Hall School of Law at the University of California-Berkeley who was then deputy assistant attorney general at the U.S. Department of Justice Office of Legal Counsel, and Jay Bybee, a judge on the U.S. Court of Appeals for the 9th Circuit who was then an assistant attorney general at the OLC, also wrote on the issue. The initiative for the working group came about after commanders in Guantanamo asked for clarification on interrogation techniques. In a memorandum dated Jan. 15, 2003, Rumsfeld directed Defense Department General Counsel William Haynes II, whose nomination to the U.S. Court of Appeals for the 4th Circuit is now before the Senate, to form a working group “to assess the legal, policy, and operational issues relating to the interrogation of detainees.” Two days later, Haynes handpicked Walker to take on the high-profile job of heading the group. Haynes’ office declined to comment for this article. Though assigned to do an independent review, says a Pentagon lawyer familiar with the report, Walker “tailored her report around Yoo and Bybee’s arguments.” (Four Pentagon lawyers — civilian and military — agreed to speak on condition of anonymity.) Her “legal review,” says another Pentagon lawyer, “was to authorize what OLC had done.” This same source says that Walker actually invited an OLC lawyer “to edit” the working report to ensure its compatibility with that office’s opinion. So, did Walker play an incidental role in the final report? Hardly, says one military lawyer who worked on the report: “She had a big, heavy hand [in the report].” So heavy, in fact, that the political appointee pushed out career military lawyers (the judge advocates general), who strongly objected to conclusions that the Geneva Conventions were not applicable to detainees. “The uniform view was to take the high road and follow the Geneva Conventions, [but] our view was not in the final report,” says the source. That frustration found an unusual outlet: In May 2003, just a month after Walker’s group sent its report to Rumsfeld, a group of a half-dozen JAGs visited Scott Horton, then chairman of the human rights committee of the Association of the Bar of the City of New York. Horton, a partner at New York’s Patterson, Belknap, Webb & Tyler, says he was “stunned” that this group sought him out, since he had no experience in military matters. “[The JAGs] probably thought a New York City lawyer could be counted on to be very aggressive,” he speculates. Though Horton refuses to disclose the JAGs’ identities — “it would be a career-terminating event” — he describes them as “very senior” members of the military who “probably never pulled a Democratic lever in their lives.” In May, the bar panel released a report about the U.S. interrogation policy, advocating that human rights standards be applied to detainees. By coincidence, the bar report came out about the same time as the sensationalistic pictures of prisoners at Abu Ghraib. Those simultaneous releases, say the Pentagon lawyers, helped push the Senate to pass an amendment to the Defense Authorization Bill on June 15. The amendment, which was proposed by Sen. Lindsey Graham (R-S.C.), a JAG, reconfirms the JAGs’ independent legal authority vis-à-vis politically appointed GCs. The measure, says a Pentagon lawyer, was dubbed the “Mary Walker bill,” because she had been in a turf war with the head JAG of the Air Force. A spokesman for Graham’s office denies that the bill was spurred by any particular person or event, but does say the bill seeks “to put the JAG and the GC on an equal footing.” But retired chief Navy JAG Donald Guter, who personally urged Graham to support the bill, says that Walker’s turf-building efforts and the “marginalization” of the JAGs in the detainee situation acted as “catalysts” in the bill’s passage. One JAG puts the current fracas in context. “We’ve always had some problems with political appointees,” he says, “but it’s unusual to have someone who totally disregards military experience.” Another lawyer with decades of Pentagon experience says, “Walker is the most political GC I’ve ever seen.” Is Walker being unfairly criticized for aggressive lawyering? Yoo, for one, defends her work product: “I thought the working group report was a very thorough piece of work. It was appropriate that it addressed not just the law but policy considerations.” Though Yoo refuses to comment about any aspect of his government work, he says the uproar about the Geneva Conventions was misplaced, because “there’s no supreme court that definitively interprets the Geneva Conventions; [they] are interpreted differently by different countries.” Surely, it has been a chastening year for Walker, in any event. Or not. “I haven’t seen a change,” says one of the Pentagon lawyers. “She believes she has a mandate from the president.” Vivia Chen is a reporter for The American Lawyer , where this article first appeared in the August issue.

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