Nov. 2002: Military Lawyers Raise Legal & Ethical Red Flags

Military Lawyers Raise Legal & Ethical Red Flags Rejecting Guantanamo Intelligence Request for use of torture. 

  • The Chief of the Army’s International and Operational Law Division wrote that techniques such as stress positions, deprivation of light and auditory stimuli, and use of phobias to induce stress “crosses the line of ‘humane’ treatment,” would “likely be considered maltreatment” under the Uniform Code of Military Justice (UCMJ), and “may violate the torture statute.” The Army labeled GTMO’s request “legally insufficient” and called for additional review.
  • The Air Force cited “serious concerns regarding the legality of many of the proposed techniques” and stated these techniques “may be subject to challenge as failing to meet the requirements outlined in the military order to treat detainees humanely…” The Air Force also called for a review.
  • The  Chief Legal Advisor of the Combined Joint Task Force wrote that certain techniques “may subject service members to punitive articles of the UCMJ.’ He stated he could not “advocate any action, interrogation or otherwise, that is predicated upon the principle that all is well if the ends justify the means…”
  • The Navy recommended “detailed interagency legal and policy review.”
  • The Marine Corps expressed strong reservations, stating several techniques “arguably violate federal law, and would expose our service members to possible prosecution;” calling for “a more thorough legal and policy review.”

Jane Dalton, Legal Counsel to the Chairman of the Joint Chiefs of Staff said her staff discussed the concerns and she had directed her staff to initiate a thorough legal and policy review. The review was cut short by Defense Department’s General Counsel, Jim Haynes.  (Senate Armed Services Committee Report, 2009)

 Nov. 23, 2002: A dispute over the use of aggressive techniques was raging at Guantanamo
The dispute erupted over the interrogation of Mohammed al-Khatani, a “high value” detainee who had been questioned by FBI agents from July 27, 2002 until Sept. 19, 2002. Personnel from the Criminal Investigative Task Force (CITF) and the FBI had registered strong opposition with the DoD General Counsel’s office about coercive interrogation techniques proposed by JTF-170 for use on Khatani, including the presence of threatening dog – “all with negative results.” (S. Armed Services Report, p.60)