Marty Lederman has an important post about the torture scandal, The Heroes of the Pentagon’s Interrogation Scandal — Finally, the JAG Memos. As Marty says, “These memos reveal the JAGs as the real heroes of this story.”
The memos are extraordinary. They are written by JAGs from the Air Force, Navy, Army and Marines. As Senator Graham put it on Monday, these folks “are not from the ACLU. These are not from people who are soft on terrorism, who want to coddle foreign terrorists. These are all professional military lawyers who have dedicated their lives, with 20-plus year careers, to serving the men and women in uniform and protecting their Nation. They were giving a warning shot across the bow of the policymakers that there are certain corners you cannot afford to cut because you will wind up meeting yourself.”
It is fair to say that these accounts reflected sustained, uniform and passionate opposition to the OLC legal theories that were being foisted upon the military. Indeed, the tone of the memos is one of barely concealed incredulity, and outrage–disbelief–that a young legal academic from DOJ could sweep right in and so quickly overturn decades of carefully wrought military policy, using legal analysis that almost certainly would not withstand scrutiny outside the Administration and around the world. …
In particular, these memos eloquently warn of the grave harms that could result from such a radical shift in policies and legal understandings–harms not only to the prospects for nation’s efforts to stop terrorism, but also to military interrogators and officers who could face domestic and international prosecution for engaging in such conduct, and, most importantly, to U.S. forces who are themselves detained in this and future conflicts.
He’s also got the text of six key JAG memos. Essential reading.
The JAG memos stress that torture is against not only the traditional understanding by the US armed forces of the law, but also of the systematic training of the military. Won’t this count heavily against a future use of the “Nuremberg defence” by military interrogators?
The JAGs were also very worried about the risks to service members of prosecution abroad – and one memo extends this concern to “the chain of command”. The Furies do not sleep.