Detainee Interrogation Debate and the Legal-Policy Process

摘要

Near the start of Donald Rumsfeld's service as Secretary of Defense in the first term of President George W. Bush, he asked why there were so many lawyers in the Pentagon. He apparently believed the number of military and civilian lawyers could be streamlined or consolidated. Meanwhile, national security practitioners expressed increasing concern about lawfare--the strategy of using or misusing law and legal processes as a substitute for traditional instruments of power to achieve either strategic or operational effects. Detainee treatment was a principal area of disagreement between the most senior administration civilian lawyers and The Judge Advocates General (TJAGs), the most senior military lawyers in each Service. Despite Secretary Rumsfeld's remarks, Department of Defense (DOD) lawyers increased in number during his tenure, the administration suffered repeated strategic legal attacks related to detainee treatment, and Congress legislated independence of military lawyers (judge advocates, or JAGs) from civilian DOD attorneys. Recently, the Convening Authority for the Military Commissions declined to prosecute at least one detainee, finding that the application of some of the Secretary of Defense- authorized techniques was 'torture.' Detainee interrogation policy provides a case study into deviations from the national security legal-policymaking process. After identifying key administration lawyers and TJAG roles in legal- policy formation, this article explores legal ethical requirements to serve as advisor during policy development. It briefly examines civil-military relations issues relevant to the legal-policy process and concludes with discussion of legal-policy formation abnormalities during the detainee interrogation debate.