The Ethics of Interrogation: Professional Responsibility in an Age of Terror

Chapter Eight: The Day They Enter Active Service: The Military Conscience

Eight The Day They Enter Active Service The Military Conscience All Armies are expressions of the societies from which they arise. The purposes for which armies fight and the ways in which they do so reflect the values of the societies which send them to war in the first place. —Joel Rosenthal, “Today’s Officer Corps,” 104 To some extent, the officer’s behavior toward the state is guided by an explicit code expressed in law and comparable to the canons of professional ethics of the physician and the lawyer. To a larger extent, the officer’s code is expressed in custom, tradition, and the continuing spirit of the profession. —Samuel Huntington, The Soldier and the State, 16 At several points in this study I have drawn attention to Alberto Mora’s opposition to the EITs that were authorized for use with detainees at Guantánamo Bay. I have cited Mora’s actions in part because his opposition is well documented and for that reason is better known than the actions of many other critics of the use of enhanced techniques. But I have also noted Mora’s opposition because it appears to be rooted in a military mindset that understands professional life inescapably to involve service to American and military values. Mora never served in the military, but his work as general counsel to the navy draws attention to the way the military responded to proposals to use abusive techniques on detainees. We have looked at the responses of psychologists, lawyers, and doctors to abusive interrogations; we turn in this chapter to consider the response of military professionals. The Day They Enter Active Service 165 We can begin by looking at the responses of the judge advocates general (TJAGs) to the enhanced interrogations authorized by the OLC. To understand the role of the TJAGs, we need to appreciate the complicated structure of military legal authority. The position of army TJAG is the oldest of the military legal establishment, but today it is complemented by positions of general counsel both to the civilian leadership of the services and to the DOD. In addition, the Office of the Chairman of the Joint Chiefs of Staff has a legal counsel who is a JAG officer.1 Although the DOD general counsel is the chief legal officer within the DOD, and his or her opinions have primacy when there is conflicting legal opinion within the department, the general counsel does not exercise control over the JAG Corps or the legal counsel for the Office of the Chairman of the Joint Chiefs. As Lisa Turner says, “Together, they support the constitutional framework that assigns responsibilities to both the President and Congress.”2 It was within this complex legal framework that debates about enhanced interrogation took place among military lawyers. We have seen that Mora, the general counsel for the navy, clashed with William Haynes, the general counsel of the DOD, over the wisdom and legality of using EITs. Where did the JAG Corps stand on the issue? The short answer is that it stood with Mora in opposition to the use of EITs. We know this because Mora brought his concerns to the navy judge advocate general, who then also raised concerns with Haynes, as did the other TJAGs with whom he consulted. When Haynes set up the working group to review the proposal for using enhanced techniques, it included staff members of the TJAGs, and when the working group prepared a draft report, it sought input from the TJAGs on the draft report. Turner’s account of what happened at that point is notable. TJAGs and Mora lodged their deep concerns about the working group legal analysis and absence of balanced policy considerations orally and by email to Walker [the chair of the working group]. When that approach failed, TJAGs followed up with memos to Walker. They then met with DOD/GC [Haynes] to express their concerns. TJAGs and/or their staffs then met with their Service chiefs. The Joint Chiefs met on the issue in a Pentagon conference room called “the Tank.” Around this time, DOD/GC met with Secretary Rumsfeld and provided 166 Chapter Eight him with the final working group report. On April 16, 2003, the Secretary authorized some of the interrogation techniques and instructed that further requests for expansion should come to him. TJAGs were not given the final working group report or an opportunity to formally...