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Six months before the U.S. began holding detainees in Iraq’s Abu Ghraib prison, government lawyers engaged in a vigorous debate over the interrogation procedures that American troops could use with prisoners. On one side were the civilian attorneys at the U.S. Departments of Defense and Justice � most significantly, Justice’s Office of Legal Counsel (OLC). On the other side were the military’s top uniformed lawyers � the judge advocates general (JAGs) of the Air Force, Army, Navy, and Marine Corps. Contrary to what might be expected, the civilian attorneys were the ones who pushed for more aggressive measures in the 2003 review of interrogation procedures. The JAGs urged restraint, arguing that harsher techniques would not only violate military law, but could put American troops at risk for domestic criminal charges or enemy reprisals. Among the tactics under consideration: intimidating prisoners with dogs, removing prisoners’ clothing, shaving their beards, slapping prisoners in the face, and simulating drowning. Pentagon GC William Haynes II, who oversaw the review, ultimately ordered the military lawyers to defer to the Justice Department. The degree to which the JAGs opposed the OLC wasn’t known until the military lawyers’ memos were declassified by the Pentagon this summer, in response to a long-standing request from Senator Lindsay Graham (R � South Carolina). What the JAGs wrote seems prescient in light of the prisoner abuse at Abu Ghraib that became public last year, as well as continuing questions about the treatment of detainees in Iraq, Afghanistan, and Guant�namo Bay, Cuba. Rear Admiral Michael Lohr, then � judge advocate general of the Navy, wrote in one memo, “Will the American people find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values? How would such perceptions affect our ability to prosecute the Global War on Terrorism?” Army judge advocate general Thomas Romig argued that the tactics approved by the Justice Department “could adversely impact” Pentagon interests by sparking international criticism, and could lead to retaliatory abusive treatment of American troops captured by the enemy. Stephen Saltzburg, general counsel of the National Institute for Military Justice, says the JAGs’ memos might surprise some people. “You might have thought the military folks would be pushing for more aggressive techniques, since they’re out there fighting,” says Saltzburg, also a George Washington University law professor. “Instead, it’s very clear that the JAGs deeply opposed what the Justice Department had advocated.” The JAGs’ memos were written in response to a March 2003 opinion by the OLC titled “Military Interrogation of Alien Unlawful Combatants.” The Justice Department has refused to release the classified document, but Democratic lawmakers have made some of its details public. At a hearing in July, Senator Carl Levin (D-Michigan) said that the opinion was written by John Yoo, then an official with the OLC, and was directed to Pentagon GC Haynes. According to Levin, the memo is “virtually identical” to an August 2002 Justice Department opinion that dealt with interrogation techniques for the Central Intelligence Agency and that became public last year. The memos for the CIA and the military both concluded that for physical pain to constitute torture, it had to be equivalent to that of “organ failure, impairment of bodily functions, or even death,” Levin said. The Bush administration has since repudiated the two memos. Pentagon spokesman Air Force major Michael Shavers says that the military’s interrogation policies were developed “in a deliberate manner with strict legal and policy reviews.” Yoo, who teaches law at the University of California at Berkeley’s Boalt Hall, and Justice Department spokesman John Nowacki declined to comment. Though the OLC prevailed in the review of interrogation procedures, the JAGs put up a fierce fight. They took issue with the OLC’s determination that the president can unilaterally override international treaties and federal statutes � including the Uniform Code of Military Justice � in the name of national security. Major General Jack Rives, then deputy judge advocate general of the Air Force, wrote that several interrogation techniques sanctioned by the OLC would violate military law. All four JAGs contended that relying on the OLC opinion to justify otherwise unlawful interrogation techniques could put members of the U.S. military at risk of criminal prosecution for violating provisions of the military’s code of justice. Rives warned that if the more extreme interrogation techniques were used, both interrogators and their commanding officers could face criminal charges. While Rives noted that “the current administration is not likely to pursue prosecution,” he added that “it is impossible to predict how future administrations will view the use of such techniques.” And Marine Corps brigadier general Kevin Sandkuhler wrote that because the Justice Department does not represent the armed services, “understandably, concern for service members is not reflected in their opinion.” In the view of retired Navy rear admiral John Hutson, the JAGs “were essentially saying, ‘What in the hell are you guys [at Justice] thinking?’” Hutson, who served as the Navy JAG from 1997 to 2000, is now the dean of Franklin Pierce Law Center in New Hampshire. He adds, “I’d like to believe that the memos, and perhaps what was said outside of the memos, had some tempering effect.” A version of this story originally appeared in Legal Times, a sibling publication of Corporate Counsel.

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