The MILITARY has opposed the crap that has been going on in Guantanamo. The civilians in the Bush administration - who have never seen combat in their lives - tried to rewrite the rules of war, and fought the American Military to do so.
Can't you just here the right-wingers yelling "Why does the Army hate America?"
WASHINGTON — 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.
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."
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."
"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.
"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.