February 22, 2006

Protect Your Client

Another horrible anti-American, Alberto Mora, former General Counsel of the Navy, writing here about a meeting with William Haynes, General Counsel of the Department of Defense:

I also drew Mr. Haynes attention to the Secretary's [Donald Rumsfeld] hand-written comment on the bottom of the memo, which suggested that detainees subjected to forced standing (which was limited to four hours) could be made to stand longer since he usually stood for longer periods during his work day. Although, having some sense of the Secretary's verbal style, I was confident the comment was intended to be jocular, defense attorneys for the detainees were likely to interpret it otherwise. Unless withdrawn rapidly, the memo was sure to be discovered and used at trial in the military commissions. The Secretary's signature on the memo ensured that he would be called as a witness. I told Mr. Haynes he could be sure that, at the end of what would be a long interrogation, the defense attorney would then refer the Secretary to the notation and ask whether it was intended as a coded message, a written nod-and-a-wink to interrogators to the effect that they should not feel bound by the limits set in the memo, but consider themselves authorized to do what was necessary to obtain necessary information. The memos, and the practices they authorized, threatened the entire military commission process...

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The belief held by some that Guantanamo's special jurisdictional situation would preclude a U.S. court finding jurisdiction to review events occurring there was questionable at best. The coercive interrogations at Guantanamo were not committed by rogue elements of the military acting without authority, a situation that may support a finding of lack of jurisdiction. In this situation, the authority and direction to engage in the practice issued from and was under review by the highest DOD authorities, including the Secretary of Defense. What precluded a federal district court from finding jurisdiction along the entire length of the chain of command?

I'm not a litigator, just one of those horrid corporate lawyers, but that strikes me as a very good question indeed.

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Mr. Haynes said little during our meeting. Frustrated by not having made much apparent headway, I told him that the interrogation policies could threaten Secretary Rumsfeld's tenure and could even damage the Presidency. "Protect your client," I urged Mr. Haynes.

Mora was backed up by many of the service lawyers, including Army General Counsel Steven Morello and Marine Corps Counsel Peter Murphy (yep, more America-haters!) , re: fending off some of the worst excesses various Administration players were pushing on detainee interrogation policies. Indeed, men like these, who nobly fought a rearguard action against the excesses of John Yoo's shoddy legal reasoning (as contained in the OLC memo, since belatedly repudiated by the Administration), merit great thanks from all those concerned with upholding bedrock American values.

Posted by Gregory at February 22, 2006 04:00 AM | TrackBack (0)