JAG lawyers are blaming Bush administration political appointees, specifically Douglas Feith, for blocking them from the Iraqi prison system because they insisted on humane treatment and Geneva Convention protections for detainees, setting the stage for the torture chambers that developed in the military detention facilities in Iraq.
As the military’s uniformed lawyers, JAG officers are in charge of instructing military commanders on how to adhere to domestic and international rules regarding the treatment of detainees.
“If we — ‘we’ being the uniformed lawyers — had been listened to, and what we said put into practice, then these abuses would not have occurred,” said Rear Admiral Don Guter (ret.), the Navy Judge Advocate General from 2000 to 2002.
Specifically, JAG officers say they have been marginalized by Douglas Feith, undersecretary of defense for policy, and William Haynes II, the Pentagon’s general counsel, whom President Bush has nominated for a judgeship on the United States Court of Appeals for the Fourth Circuit.
Feith, predictably, denies it. However, a group of JAG officers consulted the New York City Bar Association twice in 2003, a measure of their extreme concern.
Matters got so frustrating that in May and October 2003, eight senior JAG officers took the rare step of going outside the chain of command to meet secretly with the New York City Bar Association, warning of a “disaster waiting to happen”.
“They felt that there had been a conscious effort to create an atmosphere of legal ambiguity surrounding these detention facilities, and that it had been done to give interrogators the broadest possible latitude in their conduct of operations,” Scott Horton, former chair of the New York City Bar Association’s Committee on International Human Rights, told ABCNEWS. Horton’s meeting with the JAG officers was first reported by Salon.com.
This “atmosphere of legal ambiguity,” JAG officials told ABCNEWS, began in early 2002, when the Bush administration decided the Geneva Conventions’ rules for humane treatment of prisoners did not apply to the war on terror, and to the suspects seized in Afghanistan and held at Guantanamo. For the war in Iraq, the Geneva Conventions were supposed to apply … but JAG sources say there was little to no clarification of that.
“When you say something down the chain of command like, ‘The Geneva Conventions don’t apply,’ that sets the stage for the kind of chaos that we’ve seen,” said Rear Admiral John Hutson (ret.), who was the Navy Judge Advocate General from 1997 to 2000.
Feith responds with this joke: “There has not been, ever, any ambiguity about the strong support that the leadership of this department gives to the Geneva Conventions.” They “strongly support” the Geneva Conventions, they just don’t think they apply to anyone they capture or detain.
Rep. Steve Buyer, (R-Ind.), a JAG in the Army Reserves, wanted to offer his services in Iraq. But even though the Army wanted him there, Pentagon political appointees vetoed him going. Buyer told ABCNEWS’ John Cochran that he tried to convey to his Pentagon civilian contact how important it was to ensure against the abuse of Iraqi prisoners and detainees, telling him: “You have to get somebody that’s qualified in international law and the Geneva Conventions to serve in that brigade … I’m pretty shocked that this never happened.”
Buyer was referring to the 800th Military Police Brigade, seven of whose reservists are now facing charges in the Abu Ghraib abuse scandal.
Buyer isn’t the only one to question why there didn’t seem to be a significant JAG presence for interrogations at detention centers like Abu Ghraib. Horton says the JAGs who reached out to the New York City Bar Association complained about a new “practice” of keeping JAGs away. And Admiral Guter says when he was Navy JAG from 2000 until 2002, “JAGs were clamoring for assignments of this kind of importance, so I know they were available. And if they’re available and you don’t send them, then I have to say you don’t send them on purpose.”