Thank you for sharing!

Your article was successfully shared with the contacts you provided.
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 congresswoman Tillie Fowler 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 Bush, is back on the hot seat. At issue this time is her role heading a U.S. Department of Defense 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 story. Fowler spokesperson Thomas Alexander says she won’t comment until the work is complete later this summer. For updates on the report, go to www.americanlawyer.com.) 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 the University of California, Berkeley’s Boalt Hall School of Law 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 9th U.S. Circuit Court of Appeals who was then an assistant attorney general at 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 4th U.S. Circuit Court of Appeals 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. 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 to The American Lawyer 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 wishes. 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 advocate generals, or JAGs), 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 half a 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 Republican Sen. Lindsey Graham, a JAG, reconfirms the JAGs’ independent legal authority vis-a-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 pass 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 his role in 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 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.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.