JAG Lawyers: Prisoner Warnings Ignored
JAG Lawyers Say Political Appointees Ignored Their Warnings on Prisoner Treatment
By Jake Tapper and Clayton Sandell
W A S H I N G T O N, May 16, 2004
Lawyers from the military's Judge Advocate General's Corps, or JAG, had been urging Pentagon officials to ensure protection for prisoners for two years before the abuses at Iraq's Abu Ghraib prison came to light, current and former JAG officers told ABCNEWS.
But, the JAG lawyers say, political appointees at the Pentagon ignored their warnings, setting the stage for the Abu Ghraib abuses, in which military police reservists photographed each other subjecting Iraqi prisoners to physical abuse and sexual humiliation.
As the military's uniformed lawyers, JAG officers are in charge of instructing military commanders on how to adhere to domestic and international rules regarding the treatment of detainees.
"If we — 'we' being the uniformed lawyers — had been listened to, and what we said put into practice, then these abuses would not have occurred," said Rear Admiral Don Guter (ret.), the Navy Judge Advocate General from 2000 to 2002.
Specifically, JAG officers say they have been marginalized by Douglas Feith, undersecretary of defense for policy, and William Haynes II, the Pentagon's general counsel, whom President Bush has nominated for a judgeship on the United States Court of Appeals for the Fourth Circuit.
In an interview with ABCNEWS, Feith denied any tensions whatsoever with JAG officers. He also denied that military lawyers disagreed with rules and practices coming from his office that pertained to detainees. "That's not true in my experience or my understanding of what's happened," Feith said.
But asked about some of these issues during the Senate Armed Services Committee hearing Tuesday, the current Army JAG, Maj. Gen. Thomas J. Romig, was less dismissive, calling the charges "troubling" and saying, "We're trying to get to the bottom of it."
Under condition of anonymity, one current JAG officer told ABCNEWS that for the last two years, "the military lawyers have always been the ones speaking for greater protections and recognitions of rights for detainees — and the political appointees have argued for no recognition of rights and careful control of the process. That's an argument, to date, that the political appointees have won."
Several JAG sources report that, to form the rules for military tribunals, the Pentagon initially created a "Tiger Team" of Army JAG officers. But that team was soon disbanded by Haynes and the political appointee attorneys took over the process. JAG sources interpreted the move as being the result of military lawyers' insistence on greater rights and protections for detainees than what Haynes, Feith and others wanted to permit.
According to Guter, Pentagon political appointees often would call JAG officers just so they could claim military attorneys had been consulted. "Determinations had been made and they were just seeking to make a call to assure that they had buy-in," Guter said. "If you didn't agree, I think you were marginalized."
One time a political appointee called Guter to inform him about an issue pertaining to military tribunals for prisoners held there. Guter says the appointee told him he couldn't discuss the matter with anyone else, "including the team that had been put together to help work on the tribunals who worked for me."
Guter says the appointee gave him a deadline, but "when I looked at my watch I had just 20 minutes to respond."
Matters got so frustrating that in May and October 2003, eight senior JAG officers took the rare step of going outside the chain of command to meet secretly with the New York City Bar Association, warning of a "disaster waiting to happen".
"They felt that there had been a conscious effort to create an atmosphere of legal ambiguity surrounding these detention facilities, and that it had been done to give interrogators the broadest possible latitude in their conduct of operations," Scott Horton, former chair of the New York City Bar Association's Committee on International Human Rights, told ABCNEWS. Horton's meeting with the JAG officers was first reported by Salon.com.
This "atmosphere of legal ambiguity," JAG officials told ABCNEWS, began in early 2002, when the Bush administration decided the Geneva Conventions' rules for humane treatment of prisoners did not apply to the war on terror, and to the suspects seized in Afghanistan and held at Guantanamo. For the war in Iraq, the Geneva Conventions were supposed to apply … but JAG sources say there was little to no clarification of that.
"When you say something down the chain of command like, 'The Geneva Conventions don't apply,' that sets the stage for the kind of chaos that we've seen," said Rear Admiral John Hutson (ret.), who was the Navy Judge Advocate General from 1997 to 2000.
"War is the most difficult of human endeavors under the best of circumstances," Hutson said, "and if the rules aren't clear, it makes that most difficult endeavor even more difficult. And the result is that things break down at the bottom. If you throw the rules out, if you throw the gloves off, and you say these people are terrorists and beneath our dignity and beneath our rule of law, then you shouldn't be surprised when bad things happen."
Feith denied all of these charges. "There has not been, ever, any ambiguity about the strong support that the leadership of this department gives to the Geneva Conventions," he said.
Other decisions JAG officials disputed included using private contractors for interrogations — thus further blurring the lines of the chain of command — and keeping JAG officials away from Iraqi interrogation centers.
Rep. Steve Buyer, (R-Ind.), a JAG in the Army Reserves, wanted to offer his services in Iraq. But even though the Army wanted him there, Pentagon political appointees vetoed him going. Buyer told ABCNEWS' John Cochran that he tried to convey to his Pentagon civilian contact how important it was to ensure against the abuse of Iraqi prisoners and detainees, telling him: "You have to get somebody that's qualified in international law and the Geneva Conventions to serve in that brigade … I'm pretty shocked that this never happened."
Buyer was referring to the 800th Military Police Brigade, seven of whose reservists are now facing charges in the Abu Ghraib abuse scandal.
Buyer isn't the only one to question why there didn't seem to be a significant JAG presence for interrogations at detention centers like Abu Ghraib. Horton says the JAGs who reached out to the New York City Bar Association complained about a new "practice" of keeping JAGs away. And Admiral Guter says when he was Navy JAG from 2000 until 2002, "JAGs were clamoring for assignments of this kind of importance, so I know they were available. And if they're available and you don't send them, then I have to say you don't send them on purpose."
ABCNEWS' Brian Hartman contributed to this report.