The JAG Dismisses the Unitary Executive

Via POGO, the Pentagon has made two key documents relating to the military’s use of torture available on its website: a March 2003 JAG Memo slamming a draft of the Working Group’s Report on Detainee Interrogation, and the Working Group’s Report which was published the following month. As POGO notes, these documents were declassified some time ago (Marty Lederman had posted the JAG one here and WaPo posted the report here), but they provide important context to the discussions surrounding John Yoo’s March 2003 Torture Memo.

I’ll come back to the Working Group Report (which lays out the potential risks for when the public discovers the US is using torture and has a nifty list of the ways our interrogation techniques would piss off our allies), but for now I just wanted to show how dubious the Judge Advocate general, General Thomas Romig, found John Yoo’s (and the Administration’s) Unitary Executive theories to be:

The Office of Legal Counsel (OLC), Department of Justice (DOJ), provided DOD with its analysis of international and domestic law as it relates to the interrogation of detainees held by the United States Government. This analysis was incorporated into the subject draft Report and forms, almost exclusively, the legal framework for the Report’s Conclusions, Recommendations, and PowerPoint spreadsheet analysis of interrogation techniques in issue. I am concerned with several pivotal aspects of the OLC opinion.

While the OLC analysis speaks to a number of defenses that could be raised on behalf of those who engage in interrogation techniques later perceived to be illegal, the "bottom line" defense proffered by OLC is an exceptionally broad concept of "necessity." This defense is based on the premise that any existing federal statutory provision or international obligation is unconstitutional per se, where it otherwise prohibits conduct viewed by the President, acting in his capacity as Commander-in-Chief, as essential to his capacity to wage war. I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum. If such a defense is not available, soldiers ordered to use otherwise illegal techniques run a substantial risk of criminal prosecution or personal liability arising from a civil lawsuit.

The OLC opinion states further that customary international law cannot bind the U.S. Executive Branch as it is not part of the federal law. As such, any presidential decision made in the context of the ongoing war on terrorism constitutes a "controlling" Executive act; one that immediately and automatically displaces any contrary provision of customary international law. This view runs contrary to the historic position taken by the United States Government concerning such laws and, in our opinion, could adversely impact DOD interests worldwide. On the one hand, such a policy will open us to international criticism that the "U.S. is a law unto itself." On the other, implementation of questionable techniques will very likely establish a new baseline for acceptable practices in this area, putting our service personnel at far greater risk and vitiating many of the POW/detainee safeguards the U.S. has worked hard to establish over the past five decades. [bold my emphasis]

I guess this makes clear–as if we didn’t already know–why Cheney wanted to control the promotions process for JAGs. As Romig himself said of Cheney’s efforts,

Retired Major General Thomas Romig, the Army’s top JAG from 2001 to 2005, called the proposal an attempt "to control the military JAGs" by sending a message that if they want to be promoted, they should be "team players" who "bow to their political masters on legal advice."

It "would certainly have a chilling effect on the JAGs’ advice to commanders," Romig said. "The implication is clear: without [the administration’s] approval the officer will not be promoted."

As Marty and Scott Horton and Jane Mayer have reported extensively, this JAG memo (and the others at Marty’s link) show the degree to which DOD was warned against accepting John Yoo’s advice. Curious that the DOD is making this all more accessible now, just as we’re about to start the Gitmo Show Trials.

Update: opps, mistranscribed "broad."

10 replies
  1. BoxTurtle says:

    What…you mean Bush CAN’T legally do everything Cheney tells him to do? I’m sure it’s a crime for even SUGGESTING such a weakening of America. If not, it should be. *snark*

    Boxturtle (Won’t support “unitary executive” unless I’M the executive)

  2. selise says:

    is there a parallel set of memos from the CIA? while the JAG lawyers were warning the DOD, what were the CIA lawyers telling their folks?

  3. perris says:

    I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum.

    though the supreme court might be in the president’s pocket, there is NO WAY an “international court” could possibly be bound by yoo’s RIDICULOUS “interpretation and there is NO question soldiers acting on those orders WOULD be convicted if their only defense was “the president ordered me to do it”

    no question about the outcome of that defense

  4. JoFish says:

    It warms my heart to see that the JAG Corps is making a stand of some sort. Military Judges never ever got fitness reports that commented on anything other than the fact that they got haircuts and showed up for work on a regular (or semi-regular) basis. The chances of “Undue Command Influence” were considered just too great on decision making, hence most Military Judges had reached their “terminal” rank when they sat on the bench. Hard to promote someone who is not able to be objectively or subjectively evaluated. Most MJ’s I knew were fine with that, they loved the law, loved the military and loved their jobs.

    It takes some backbone to stand up to these criminals in this administration, and certainly few have but I am proud that the JAGs have had their share of good men and women who stood up for the rule of law, even in the face of Undue Command Influence and the politicization of what should be by law a non-political process.

  5. earlofhuntingdon says:

    Rohmig’s observations are correct, but what he says should be obvious to any freshman lawyer. That’s what make’s Yoo’s claims so radical, so chilling, so knowing and intentional. Yoo claims that the president is a law unto himself, and where “necessary”, he can ignore any law for any purpose, any period of time. The chosen “necessity” is war. The chosen “war” is global “war”, from your bedroom to your chat room to the war room at President Merkin Muffley’s war room.

    Yoo claims that “customary international law” does not bind the president. In Yoo’s fantasy world, no law binds the president, so why bother singling out one source of it? Further, such law becomes “customary international law” only after it has already become universally respected and followed by the world’s principal states. If something is customary international law, rather than a claimant for that status, it is binding on the US as a matter of its own practice. The US has internalized its norms and behavior expectations and accepted the liability of sanctions for not following it, and other states act reasonably when they rely on the expectation that the US will follow that law.

    Yoo’s opinion, again conflates, misdefines and misuses accepted legal definitions and practices in order to produce his desired result. The essence of bad lawyering and disrespect for the law, a position that depends for its success on its acceptance by the executive whose power he describes and on never being tested in public or by domestic or international courts.

    Ironically, one purpose of Yoo’s opinion is to promote the CheneyBush goal of ridding the world of restrictive international laws and alliances whose very purpose is to restrict the freedom of states to go to war, and to promote less destructive means of securing a share of the world’s resources, including peace. Cheney seems to take literally the ironic motto adopted by the Strategic Air Command, the force designed to deliver a nuclear holocaust anywhere in the world — “Peace is Our Profession”.

  6. bobschacht says:

    From the first quote:
    “…an exceptionally board concept of “necessity.”

    Is that a typo for “broad”, I hope? Or some kind of Freudian commentary?

    Bob in HI

  7. greenbird4751 says:

    i want a busy weekend, too, trying to keep up with mama mama marcie.
    i actually NEED a weekend, since getting frightened yesterday when fdl would not load for me. have i already said that fifty times?

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