U.S. Military Lawyers Felt ‘Shut Out’ of Prison Policy

Times Staff Writer

A group of senior military lawyers were so concerned about changes in the rules designed to safeguard prisoners during interrogation that they sought help outside the Defense Department, according to a New York lawyer who headed a recent study of how prisoners have been treated in the war on terrorism.

The military lawyers were part of the Army Judge Advocate General’s office, which in the past has played a role in ensuring that interrogators did not violate prisoners’ rights.

“They were extremely upset. They said they were being shut out of the process, and that the civilian political lawyers, not the military lawyers, were writing these new rules of engagement,” said Scott Horton, who was chairman of the New York City Bar Assn. committee that filed a report this month on the interrogation of detainees by the U.S.


The report was released just days before the first photos were broadcast showing naked Iraqi detainees being abused at the U.S.-run Abu Ghraib prison near Baghdad.

The Pentagon’s “interrogation rules of engagement” became a focus of controversy in the Senate this week because they permitted the use of techniques such as “stress positions” and “sensory deprivation” and the presence of military dogs.

Some international law experts, as well as some Senate Democrats, said the loosened rules violated the Geneva Convention, which forbids soldiers to use physical force to obtain information from detainees.

But Defense Secretary Donald H. Rumsfeld said the rules had been examined and approved by lawyers for the administration.

On Tuesday, Stephen A. Cambone, undersecretary of Defense for intelligence, said Douglas J. Feith, undersecretary of Defense for policy, “issued any number of statements and directives to the effect that detainees in Iraq, civilian or military, were to be treated under the provisions of the Geneva Convention.”

The military lawyers complained that the Pentagon was creating “an atmosphere of legal ambiguity,” Horton said. “What’s happened is not an accident. It is exactly what they were warning about a year ago,” he said.


None of the military lawyers would agree to speak publicly, he said, because to do so would threaten their careers.

All sides agree that the abusive treatment of Iraqis at Abu Ghraib violates international law and is far out of bounds. They disagree, however, on whether the Bush administration’s legal policy toward interrogating prisoners caused or contributed to the abuses.

Administration officials say that a small group of reservists committed crimes by abusing Iraqis, and that they will be swiftly punished.

Critics, including Horton, say the administration itself bears part of the blame for having approved more aggressive interrogation techniques.

The Geneva Convention of 1949 extended protections to civilians in occupied territories as well as prisoners of war. The standards came in response to the brutal treatment of civilians during World War II.

The fourth treaty of the convention says former fighters and detained civilians must be treated humanely.


“Outrages upon personal dignity, in particular humiliating and degrading treatment shall remain prohibited at any time,” it says.

Another provision forbids “physical or mental coercion” or the use of force to obtain information.

The United States has been the occupying power in Iraq since American troops took control in Baghdad last April.

By last fall, when attacks against U.S. troops were increasing, American commanders sought to learn who was behind the insurgency. And they stepped up efforts to question the thousands of Iraqis who were being held at Abu Ghraib.

The Pentagon’s interrogation rules say the Geneva Convention must be followed, and that “approaches [to detainees] must always be humane and lawful.... Detainees will NEVER be touched in a malicious or unwanted manner.”

But they also permit, with the commander’s approval, the use of “sleep management,” military dogs and “stress positions no longer than 45 minutes.”


“The most problematic in my opinion is the presence of military dogs,” said University of Houston law professor Jordan Paust, a former Army lawyer. “Even if the dogs are muzzled, they are there to strike terror or intense fear. That is intimidation,” he said.

Sidney Rosdeitcher, a New York lawyer who also worked on the interrogation study, said he was surprised the Pentagon had authorized sleep deprivation and the use of painful stress positions.

Horton said the military lawyers told him that Feith pressed for looser interrogation rules and won approval for them from the administration’s civilian lawyers earlier in the U.S. war on terrorism.

Horton said the administration was following rules that had been approved for suspected Al Qaeda and Taliban detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who are considered “enemy combatants,” not prisoners of war. Indeed, the report by Army Maj. Gen. Antonio M. Taguba on the abuse at Abu Ghraib referred to a recommendation by Maj. Gen. Geoffrey D. Miller, then the commander of the Guantanamo detention facility, that the military “Gitmo-ize” the prisons in Iraq. Miller visited the prisons last summer and now commands them.

But the situation in Iraq is different and the higher Geneva standards apply, Horton said.

“It’s one thing when violations occur in the heat of battle, the fog of war. It’s something else when violations of Geneva occur when it is a deliberate policy cast at the highest levels of the Pentagon -- and I think it’s at the highest levels of the administration,” Horton said.

Times staff writer David Savage contributed to this story.