Military Lawyers Caught in Middle on Tribunals


Military Lawyers Caught in Middle on Tribunals
by Mark Mazzetti and Neil A. Lewis

On Wednesday evening, the night before a crucial Senate vote on the Bush administration plan for the interrogations and trials of terrorism suspects, the Pentagon general counsel, William J. Haynes II, summoned the senior uniformed lawyers from each military service to a meeting.

The lawyers, known as judge advocates general, had been pivotal players in years of debate over detention, interrogation and prosecution.

They had repeatedly sparred behind the scenes with Mr. Haynes, the top civilian lawyer in the Defense Department. This summer, the judge advocates general emerged in public after the Supreme Court struck down a Bush administration plan to take an important role in opposing parts of a White House effort to resurrect military commissions for terrorism suspects in Guantánamo Bay, Cuba.

But at the meeting on Wednesday, Mr. Haynes sought to enlist the lawyers on the administration’s side by asking whether any would object to signing a letter lending their support to aspects of the White House proposal over which they had voiced little concern.

The lawyers agreed, but only after hours of negotiating over specific words, so that they would not appear to be wholly endorsing the plan…


What followed was a scuffle that left at least some of the military lawyers embittered and stoked old tensions at the Pentagon between civilian leaders and uniformed military officers, who under Defense Secretary Donald H. Rumsfeld have often found themselves privately at odds.

Early Thursday morning, White House allies distributed the letter that the lawyers had signed, as evidence that the group, known as Jags, now supported the administration plan.

That prompted loud protests from Republican senators opposed to the plan. They dismissed the letter on grounds that the lawyers would have signed it only under pressure.

The truth lies somewhere in between, said one of the senior lawyers and other current and former military officials familiar with their views.

I didn’t have any problem signing what I signed,” Maj. Gen. Charles J. Dunlap Jr., deputy judge advocate general of the Air Force, said Friday in an interview. How people use it and what they use it for I can’t control.”

General Dunlap represented the Air Force at the meeting because the top lawyer was out of town.

A spokesman for the Pentagon, Bryan Whitman, said it was nonsense to suggest that the military lawyers had been coerced, a point that General Dunlap agreed with.

Do you really think that an officer with 30 years’ service could be coerced by the Pentagon bureaucracy to sign something he didn’t want to sign? General Dunlap asked.

Of the five senior military lawyers, just General Dunlap agreed to comment for the record. Spokesmen for the other four from the Army, Marines, Navy and Joint Chiefs of Staff said those senior lawyers would not speak publicly because of the sensitivity of the topic.

Other military officials insisted on anonymity, saying the lawyers’ experience had demonstrated the perils of active-duty officers’ speaking openly about sensitive subjects.

The views of professional military lawyers have been much sought after in the five-year debate over what permissible techniques in the fight against terrorism.

In early 2002, the administration brushed aside the objections of the military’s most senior uniformed lawyers to the original plans for military commissions. When the lawyers’ role as dissenters became known later, they were lauded by human rights advocates and others as having tried to be an independent voice and brake on the administration.

According to documents released last year, the military lawyers later objected strenuously to the conclusions of an administration legal group that said in early 2003 that President Bush had authority as commander in chief to order harsh interrogations of Guantánamo Bay detainees.

In public testimony to Congress last month, the lawyers voiced objections to specific parts of the White House plan, which was an effort to resurrect the Guantánamo military commissions that the Supreme Court struck down. Most significant, the lawyers disputed the provision prohibiting defendants from access to classified evidence against them.

The top uniformed Marine lawyer, Brig. Gen. James C. Walker, said in his testimony that no civilized country ought to deny defendants the right to see evidence against them and that the United States should not be the first.” The lawyers stand by those objections, military officials said.

The letter signed on Wednesday focused instead on two different parts of the White House proposal, the provision amending Common Article 3 of the Geneva Conventions and a provision of the War Crimes Act that enforces that article.

Mr. Haynes drafted the letter focusing on these provisions because neither had been a sticking point in the military lawyers’ objections. But when the lawyers reached Mr. Haynes’s office, they declined to sign immediately, people with knowledge of the meeting said.

The lawyers spent more than an hour huddled in a private room wrangling over language they could agree on and trying to call Rear Adm. Bruce MacDonald, the Navy judge advocate general.

A participant in the meeting said Admiral MacDonald told his colleagues that he could not sign a letter saying he supported the Common Article 3 definition in the White House legislation because he advocated a broader definition that relied more on international law, rather than a narrow interpretation of American constitutional law.

In the end, the military lawyers all agreed to language in the letter saying they do not object to the provisions in the administration bill.

But the letter included a sentence that the clarification would be helpful to our fighting men and women at war on behalf of their country.

White House officials said that sentence demonstrated the military lawyers’ support.

General Dunlap said in his mind that signing the letter meant just to convey that trying to clarify ambiguous language was helpful and that it did not mean that he and his colleagues fully endorsed the administration view.


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