Smelling the coffee..how the Famous Five lawyers of the "War Council" ripped up the United States obligations under the Geneva Conventions -
Unknown to the public, the Judge Advocate General's (JAG) corps of lawyers prides itself on defending the Uniform Code of Military Justice, the military's law book, which demands strict discipline and moral behaviour in peace and war. The legal officers boast that military commanders can rely on two people for honest advice: their chaplains and their JAG lawyers.
Major General Thomas Romig, was the Army's Judge Advocate General from 2001 to 2005 says trust between uniformed military lawyers and the Bush administration collapsed in the months after 9-11.
He recalls a meeting, late 2002 or early 2003 with fellow officers and Pentagon civilian lawyers when Marshall Billingslea, a deputy to Douglas Feith, then 3rd ranking Pentagon official and an undersecretary of defense for policy said, "Guys, it's time to wake up and smell the coffee. It's time to take the gloves off,"
This moment crystallised for Romig what the Gang of Five surrounding defence Secretary Rumsfeld were doing.
We now know, because Department of Justice senior lawyer Jack Goldsmith has told us , that the five lawyers (they called themselves the War Council) met every few weeks behind closed doors,either in Gonzales' White House office or Haynes' Pentagon office to plot legal strategy.
The quintet included White House counsel Alberto Gonzales, with a direct line to the President whom he had represented personally for many years. There was also deputy to Gonzalez, the little known, Timothy E. Flanigan who was also close to Addington. He later withdrew his nomination to be deputy Attorney General in 2005 when his role in re-defining torture became clear.
Senior Pentagon general counsel William J. Haynes II led the group with Gonzalez. The Department of Defense announced his sudden resignation in February when his role in ensuring a just system of detainee trials at Guantanamo became public.
John C. Yoo then a Justice Department lawyer was critical in prepring the key memorandums about detention policy. He's now a law professor at the University of California at Berkeley.
Only one of the five War Council collaborators now remains in office: David Addington,the abrasive, much hated but allegedly brilliant longtime legal adviser, friend and now chief of staff to Cheney.
There were of course other players , Jay Bybee, assistant attorney general, made famous by having signed the classified opinion stating that U.S. law permitted some forms of cruel and degrading treatment.
Others involved such as John B. Bellinger III, the ranking national security lawyer in the White House, was simply kept in the dark about plans to use military commissions to try detainees.
Bradford A. Berenson, an associate White House counsel and a former Supreme Court law clerk, argued that the court would never accept absolute presidential authority to designate suspects terrorists and hold them without trial - but nobody was listening.
How the Famous Five operated
The international conventions that the United States helped draft, and to which it's a party, were abandoned by President Bush . For example Section 2441, of the U.S. War Crimes Act, prohibits violations of the Geneva Conventions. The "War Council" decided that this needed to be circumvented.
John Yoo made the extraordinary argument in a memorandum for Haynes Jan. 9, 2002, that the basic Geneva Convention protections, well known as known as Common Article 3 - forbidding humiliating and degrading treatment and torture of prisoners didn't cover alleged al Qaida or Taliban detainees . Which constituted 100% of the floods of detainees in Afghanistan and Guantanamo and many other, as yet , unkown places.
Gonzalez, as a consequence prepared a memorandum for the President dated Jan. 25, (lord Patel's birthday) 2002, arguing forcefully that rescinding detainees' Geneva protections "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act."
In the way lawyers twist reality , Gonzales also opined this ruse would create a solid defense against prosecutors or independent counsels who may in the future "decide to pursue unwarranted charges based on Section 2441," the U.S. War Crimes Act. A sort of fancy "get out of Jail Card".
Gonzales further argued that by withholding Geneva protections and prisoner-of-war status, Bush could avoid case-by-case reviews of detainees' status.
2 weeks later on Feb. 7, 2002, Bush issued his famous memorandum declaring that alleged al Qaida or Taliban members wouldn't be considered prisoners of war and, further, that they wouldn't be granted protection under Common Article Three.
All signatories to the Un Charter accept Article Three, common to all four Geneva Conventions, as customary law setting the minimum standard for conduct in any conflict, whether internal or international.
Neither the White House nor the Department of Defense has taken responsibility, and the U.S. military's top uniformed leadership remained silent in public while its legal code was being discarded. It was left to lawyers in the military's legal system, the Judge Advocate General's Corps, to defend the rule of law.
The separation of powers and the checks and balances they teach you in Constituion 101 weren't working.
More to follow please return....Marshall Billingslea, is now NATO Assistant Secretary General for Defence Investment which means pushing the Missile Shield in Poland etc., ...still smelling the coffee.