In October and early November of 2002, numerous lawyers with the Defense Department advised General Counsel Jim Haynes that the contemplated use of severe “SERE” interrogation techniques would likely violate the torture statute and the Uniform Code of Military Justice. The JAGs further advised that the techniques would appear to violate the president’s directive that detainees be treated “humanely.” (These lawyers were apparently unaware of the, uh, idiosyncratic meaning of the president’s and vice president’s use fo the word
.) Oh, and they also pointedly warned that use of those techniques would undermine the ability to obtain convictions in any future military commission proceedings. (Prescient, weren’t they?)
So, what happened next?
Well, Jim Haynes consulted with Deputy Secretary Wolfowitz, Doug Feith, and Gen. Myers, after which, on Nov. 27, 2002, he opined to Secretary Rumsfeld that all of the proposed techniques ” may be legally available .” (Haynes also advised that, for policy reasons, “a blanket approval” of waterboarding and threats of death “is not warranted at this time.”)
Note that carefully: Haynes was advised by many lawyers, throughout the Pentagon, that the techniques would be unlawful—after which, without explanation , he informed the secretary that they all “may be legally available”—and recommended approval of some of the most extreme techniques.
How could that possibly have happened?
Find out at Balkinization .