Myers writes that he supported the Geneva Conventions, arguing that they should apply to the Taliban although they should not get prisoner of war (POW) status. But he also held that "the Geneva Conventions did not apply to al-Qaida." According to Myers this view was shared "by most everybody involved in the discussions."Sands also notes some interesting silences by Douglas Feith (no surprise) and by Jack Goldsmith, whose book The Terror Presidency was critical of Addington and others but which was scarcely a tell-all memoir:
In fact, the Justice Department decided that the Geneva Conventions did not apply either to the Taliban or to al-Qaeda, and it is not true that either Myers's view or that of the Justice Department was shared by most everybody. Colin Powell's State Department, for example, expressed a contrary opinion. Nor were the views of General Myers and the Justice Department shared by senior military lawyers with knowledge and experience of the Geneva accords. These lawyers were cut out of the decision-making process—a fact on which Myers is silent. The view that Geneva rights did not apply was later rejected by the majority of justices on the Supreme Court: in June 2006 they ruled that all detainees at Guantánamo--Taliban, al-Qaeda, and everyone else--had the minimum rights set forth in Common Article 3 of the Geneva Conventions. It was this decision, unmentioned by General Myers, that caused the collapse of the Bush administration's policies on the treatment of detainees and opened the way to potential criminal liability for abusive interrogations.
Against this background it is surprising that the words "Common Article 3" do not appear anywhere in Myers's book. Common Article 3 makes it clear that there are no legal black holes: it establishes a rule of general application for prisoners captured in an armed military conflict to the effect that no detainee (whether captured in uniform or not) can be treated cruelly or tortured or subjected to outrages against human dignity, in any circumstances.
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Myers does not mention that documents proposing the new interrogation techniques arrived on his desk in late October 2002, from General James T. Hill, the commander of US Southern Command, based in Miami. In an article published in May 2008, I described how Haynes had personally intervened to stop the review process that was initiated by then Captain, now Rear Admiral Jane Dalton, Myers's counsel at the Joint Chiefs, after Myers had passed the documents on to her. During testimony before the Senate Armed Services Committee in the summer of 2008, Dalton confirmed the accuracy of my piece, but went much further, revealing that she had initiated a "broadbased legal review," sending out General Hill's memo to the various branches of the military.
The responses came quickly. "All of the [four armed] services expressed concerns about the techniques that were listed in the memo," she said. "So, the next step, then, was to proceed with a larger general and policy review, which is what I intended to do."
That never happened: she was told to stop the review. "Exactly how you were told," asked Senator Mark Warner of Virginia, "was it in writing, or was it verbal?" It was not in writing. "The best of my recollection as to how this occurred is that the Chairman [General Myers] called me aside and indicated to me that Mr. Haynes did not want this broadbased review to take place," Dalton said, referring to a brief meeting with Myers. "He called me aside and said, ‘Mr. Haynes does not want this process to proceed.'"
By then serious concerns about interrogation techniques had been expressed by representatives of the four armed services, which were communicated promptly and without ambiguity. The Air Force thought some of the techniques "may constitute criminal conduct," including "torture." The Office of the Army Judge Advocate General thought that many of the techniques violated the provisions against torture and inhumane treatment of the International Criminal Court, warning that the Category II and Category III techniques "will not read well in either The New York Times or The Cairo Times." The Marine Corps said the proposed plan was legally insufficient and "would expose our service members to possible prosecution." The chief legal adviser to the DoD's Criminal Investigation Task Force believed some techniques "may subject service members to punitive articles of the Uniform Code of Military Justice." The Navy wanted more detailed interagency legal and policy review.
In the face of such clear opposition to the proposed techniques from each of the armed services, one would have expected General Myers to adopt a firm position. There is no evidence that he did so. It might also be expected that General Myers would explain why he seems to have caved in without a fight. Nowhere does he do this or express regret that it was during his chairmanship that the US military embraced cruelty as an official policy, apparently for the first time since 1863.
Another approach is partial silence, the mode adopted by Jack Goldsmith in a skillfully written but partial account of his time as head of the Office of Legal Counsel, from October 2003 to July 2004. He glosses over his earlier period assisting the Bush administration, from September 2002 when Haynes appointed him as his "Special Counsel" and provided him with "an endless stream of fascinating legal problems," including "Guantánamo detentions." Again, Goldsmith makes no mention of al-Qahtani or Haynes's role in securing Pentagon endorsement for the use of torture in military interrogations, despite the fact that it occurred at the very time he served under Haynes.Sands notes that Goldsmith supported Haynes's appointment to the federal bench, a nomination which thankfully failed to succeed.
(The "Waldheimer's" joke, which betrays TBA's age I guess, refers to the mental disorder of not being able to remember that you were a Nazi.)