Military Fought to Abide by War Rules

Times Staff Writer

For four years, they waged what may have been the loneliest fight in the war on terrorism. Facing Bush administration hard-liners intent on finding novel ways to deal with enemy combatants, the armed services’ own lawyers fought attempts to rewrite the rules of war.

“We argued that this would come back to haunt us and it would taint the military justice system,” said retired Rear Adm. Donald Guter, the Navy’s top uniformed lawyer when “military commission” trials for Guantanamo Bay detainees were first proposed in 2001. “We were warning that you would have to be careful to provide basic protections.”

In meeting rooms and internal debates, the military lawyers again and again challenged the Defense Department’s civilian leaders, insisting that the fight against terrorism was best waged under the recognized rules: the Geneva Convention and the U.S. Uniform Code of Military Justice.


Until now, administration hawks, led by Vice President Dick Cheney and his chief of staff, David S. Addington, had won almost every argument. This fight, they said, required more flexible guidelines, with fewer rights for those captured and fewer limits on their captors.

But after Thursday’s Supreme Court decision, the Pentagon faces the prospect not only of ditching the military commissions, but of rewriting large parts of the rule book it created for fighting the war on terrorism. The court’s majority decision held that the war on Al Qaeda and others must be fought under international rules.

In addition to finding a new way to try terrorism suspects at the U.S. military prison in Guantanamo Bay, Cuba, the Pentagon is also likely to be required to throw out the interrogation guidelines it had only recently rewritten to ensure they made no reference to international rules.

“The language is quite sweeping,” an administration lawyer said of the Supreme Court ruling, speaking on condition of anonymity in keeping with the rules of his job. “And it would arguably imply that other policies -- including the military’s interrogation field manual -- must comply with the Geneva Convention’s basic requirements.”

Judge advocates general, or JAGs, the uniformed lawyers of the Defense Department, first found themselves at odds with the Pentagon’s civilian leaders in the weeks after Sept. 11, when some within the administration began arguing that terrorism detainees should not be entitled to the same protections as traditional prisoners of war.

Guter, the Navy’s chief JAG until June 2002, was one of the first flag officers to argue against the commission plan, saying it was a mistake to ignore the long traditions of military justice when trying terrorism suspects.


Senior administration officials told Guter and the other JAGs that the urgency to extract intelligence meant the traditional military justice system could not be used. But there was, Guter detected, more to the administration’s maneuvering.

“There was another motive,” he said. “This was seen as an opportunity, a vehicle to restore presidential power and authority. It was a very convenient vehicle. It was perfect. Fear tends to drive power to authority and to the executive branch.”

On Feb. 2, 2002, President Bush signed an order that said the Geneva Convention did not apply to the war on terrorism. Though prisoners held in that war, the order said, would be treated humanely, they were not subject to the Geneva Convention measure known as Common Article 3, a baseline provision that had been applied to all conflicts and all detainees in recent military history.

The order was based in part on a Jan. 9, 2002, memo on international treaties and the war on terrorism co-written by John Yoo, the deputy assistant attorney general at the time. While at Justice, Yoo also worked on the broader constitutional issues surrounding the military commissions. Yoo disputed Guter’s argument that the commissions were part of a broad attempt to increase presidential power.

“Military commissions are measures presidents from Washington to [Franklin] Roosevelt have used,” said Yoo, who now teaches at UC Berkeley’s law school. “I don’t think it’s a question of the president trying to seize power. The administration acted in good faith. The Supreme Court pulled the rug out from under the administration and changed the law.”

Guter, now the dean at Duquesne University Law School in Pittsburgh, left the Pentagon before final commission designs were approved. But military lawyers assigned to the commissions, both to prosecute detainees and to defend them, would later make similar arguments.


Air Force Maj. John Carr, then a captain, and Maj. Robert Preston quit the prosecution team in March 2004 after saying the commissions were unfair. Marine Maj. Michael Mori, a defense lawyer representing Australian detainee David Hicks, has argued that the commissions were unfair by design.

“The people who created this have too much of a vested interest in obtaining only convictions,” Mori said. “They were involved in the campaign of the war. They were involved in detention policy. They were involved in the interrogation policy.”

Mori argues that officials who worked in Defense Secretary Donald H. Rumsfeld’s office failed to listen to the criticism of the system from the military lawyers, because they wanted to ensure the prisoners at Guantanamo were convicted.

“They could not afford the first four military commissions to result in acquittals,” Mori said. “That would undermine the public relations statements that these [detainees] were the worst of the worst.”

Yoo argued that the commissions were intended to protect intelligence and provide a reasonable way to bring terrorists to justice. The federal trial of Zacarias Moussaoui, which nearly derailed over defense requests to question Al Qaeda captives, showed why it was impossible to use standard legal venues to try terrorism suspects, Yoo said.

“How do you try terrorists without blowing intelligence?” Yoo said.

But for the lawyers trying cases, creating a new system resulted in confusion about what evidence could be admitted and what arguments could be made.


“The rules were constantly being changed. The rules were being made up after the game was already begun,” said Marine Col. Dwight Sullivan, chief defense counsel for the military commissions. “It was extremely difficult to litigate in that system. The rules could change from day to day.”

Lawyers within the department were fighting not only against the commissions, but against the administration’s broader campaign to circumvent the Geneva Convention.

Until Bush’s 2002 order, the military had long followed Common Article 3. The provision prohibits torture, cruel and inhumane treatment and requires a fair trial for all detainees. Under international custom, Common Article 3 has applied in wars in which the other rules of military engagement did not apply, such as civil wars.

After the detainee abuse scandal at the U.S.-run Abu Ghraib prison in Iraq and questions about interrogations techniques at Guantanamo, other military lawyers began arguing that the Pentagon and administration should revisit guidelines on questioning prisoners.

The JAGs believed the military was bound by international law, said an official familiar with the debate who spoke on condition of anonymity when discussing the internal debates.

“Part of it was a concern that it eroded the doctrine the military had developed over decades working within the Geneva system,” the official said.


Last year, Alberto Mora, then Navy general counsel, and Matthew Waxman, then deputy assistant Defense secretary for detainee operations, proposed that the Pentagon explicitly adopt Article 3 in its policy directive governing detainee questioning. They were backed by many of the top JAGs in the military services.

But Addington, then Cheney’s legal counsel, and Stephen A. Cambone, undersecretary of Defense for intelligence, objected to incorporating Geneva into the interrogation rules. This year, top Pentagon officials decided to rewrite a key policy directive on detainees, omitting any explicit reference to Common Article 3.

Because of objections from Congress and the State Department, the directive has not been put into effect. And the eventual reach of the ruling in the Supreme Court case of Guantanamo detainee Salim Ahmed Hamdan could make it impossible for the new guidelines to ignore the Geneva Convention.

“Irregular interrogation polices are illegal in the wake of this opinion -- illegal, illegal, illegal,” said Derek P. Jinks, a law professor at the University of Texas and coauthor of a Supreme Court brief on the history of the Geneva Convention. “The crucial finding is that Common Article 3 applies.”

Although Defense officials said they were still studying the opinion, some in the administration believed that Jinks’ view was probably correct, and that the Hamdan decision would mean the architects of the war on terrorism would have to give new weight to the views of the military’s lawyers.

“The opinion seems to provide strong support for the position that even interrogation of terrorists must comply with the Geneva conventions,” the administration lawyer said.


Times staff writer Peter Spiegel contributed to this report.