Origins of Military Tribunal Policy
Tim Golden of the NYT, matching Dana Priest's WP article and raising her one, has a comprehensive look at the origins of the military tribunal system created by the administration. It originated in a team of partisan Republicans to guarantee "that we'll have the kind of treatment of these individuals that we believe they deserve," according to Cheney - so that the VP could indulge his sadism. Had pragmatic considerations really been paramount, the interagency process wouldn't have been circumvented; real experts wouldn't have been excluded from the process.
Many of the Pentagon's uniformed lawyers were angered by the implication that the military would be used to deliver "rough justice" for the terrorists.
The Uniform Code of Military Justice had moved steadily into line with the due-process standards of the federal courts, and senior military lawyers were proud and protective of their system. They generally supported using commissions for terrorists, but argued that the system would not be fair without greater rights for defendants.
"The military lawyers would from time to time remind the civilians that there was a Constitution that we had to pay attention to," said Admiral Guter, who, after retiring as the Navy judge advocate general, signed a "friend of the court" brief on behalf of plaintiffs in the Guantánamo Supreme Court case."
Golden joins Priest in exposing the OLC, and Yoo in particular:
"If the Geneva Conventions debate raised Mr. Yoo's stature, it had the opposite effect on lawyers at the State Department, who were later excluded from sensitive discussions on matters like the interrogation of detainees, officials from several agencies said.
"State was cut out of a lot of this activity from February of 2002 on," one senior administration official said. "These were treaties that we were dealing with; they are meant to know about that."
The State Department legal adviser, William H. Taft IV, was shunned by the lawyers who dominated the detainee policy, officials said. Although Mr. Taft had served as the deputy secretary of defense during the Reagan administration, more conservative colleagues whispered that he lacked the constitution to fight terrorists.
"He was seen as ideologically squishy and suspect," a former White House official said. "People did not take him very seriously."
In past administrations, officials said, the Office of Legal Counsel usually weighed in with opinions on questions that had already been deliberated by the legal staffs of the agencies involved. Under Mr. Bush, the office frequently had a first and final say. "O.L.C. was definitely running the show legally, and John Yoo in particular," a former Pentagon lawyer said. "He's kind of fun to be around, and he has an opinion on everything. Even though he was quite young, he exercised disproportionate authority because of his personality and his strong opinions."The GOP war on civil liberties was born in their war against Clinton.
Where is Silberman now? He's in charge of the investigation into Iraq intelligence failures. He was involved in the original October surprise, the legal exoneration of many of the Iran Contra criminals, and the Clinton snipe hunt.
That challenge resounded among young lawyers who were settling into important posts at the White House, the Justice Department and other agencies. Many of them were members of the Federalist Society, a conservative legal fraternity. Some had clerked for Supreme Court justices, Clarence Thomas and Antonin Scalia in particular. A striking number had clerked for a prominent Reagan appointee, Lawrence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit.
One young lawyer recalled looking around the room during a meeting with Attorney General John Ashcroft. "Of 10 people, 7 of us were former Silberman clerks," he said."