William Taft gave excellent legal advice to the Secretary of State and to the President. The Supreme Court, our international allies, U.S. public opinion, and the President have each vindicated him. The advice of the DOJ’s Office of Legal Counsel, by contrast, proved to be short-sighted or worse. If you haven’t already done so, please read Taft’s memo
on the applicability of the Geneva Conventions to detainees; this is what good legal advice looks like.
The OLC argued that the Geneva Conventions shouldn’t apply either to al Qaeda or the Taliban based on the completely novel and controversial legal opinion that the Geneva Conventions didn’t apply to “failed states.” It also argued that the President could suspend the operation of the Geneva Conventions and that customary international law did not bind the United States.
The State Department found that the “failed states” argument is utterly without support and it “badly confuses the distinction between states and governments in the operation of the law of treaties.” As for Presidential suspension, State replied that the OLC memo was “legally flawed and procedurally impossible at this stage.” It also noted that the OLC memo did not even address the role of customary international law in how detainees should be treated and wryly quoted Justice Marshall’s quip that “to ask the question is to answer it.”
John Yoo and the various OLC authors were not experts on the laws of armed conflict and, in the midst of difficult times, they had to address complex material that was new to them. White House Counsel Gonzales had asked them to be “forward leaning” in their memoranda concerning the latitude U.S. forces would have in treating and interrogating detainees. By contrast, Taft and the State Department attorneys, along with the uniformed JAGs (who, according to numerous reports in DC at the time, tended to concur with the State Department view), were experts in the subject matter. Taft was no stranger to having to make hard decisions, he was General Counsel of the Department of Defense and then the Deputy Secretary of Defense in the Reagan Administration. He was also briefly the Acting Secretary of Defense. In the Administration of George H.W. Bush, he was the US Representative to NATO. Perhaps it was in light of his significant experience and expertise that he gave John Yoo some sage advice in his cover note to the State Department memo:
“John, I understand you have long been convinced that treaties and customary international law have from time to time been cited inappropriately to circumscribe the President’s constitutional authority or pre-empt the Congress’s exercise of legislative power. I also understand your desire to identify legal authority establishing the right of the United States to treat the members of the Taliban Militia in the way it thinks best, if such authority exists. I share your feelings in both of these respects. I do not, however, believe that on the basis of your draft memorandum I can advise either the President or the Secretary of State that the obligations of the United States under the Geneva Conventions have lapsed with regard to Afghanistan or that the United States is not bound to carry out it obligations under the Conventions as a matter of international law. That may mean, of course, that we must determine specifically whether individual members of the Taliban Militia in our custody are entitled to POW status, and it may be that some are actually entitled to it. In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions. I have no doubt we can do so here, with a relative handful of persons involved. Only the utmost confidence in our legal arguments could, it seems to me, justify deviating from the United States unbroken record of compliance with the Geneva Conventions in our conduct of military operations over the past fifty years. Your draft acknowledges that several of its conclusions are close questions. The attached draft comments will, I expect, show you that they are actually incorrect as well as incomplete. We should talk.”
Julian correctly states that the OLC views won the day. But only at first. This doesn’t take “the sting out” of the criticism of the OLC’s work. The OLC memoranda were to justify certain policies the Administration wanted to undertake; they were supposed to be “forward leaning.” They gave the Administration the fig-leaf it wanted. They were ends-driven as opposed to balanced analyses. (The ethical implications are considered by my colleague Robert Vischer, here
Since then, Taft and the State Department’s views have prevailed. The Supreme Court rejected law-free policymaking in regards to detainees. Our allies were appalled by the OLC views and argued strenuously that the U.S. not forget its great history of upholding the humane treatment of detainees as a matter of law. American public opinion recoiled at the revelations of the torture memos. And, in the end, the Bush Administration has repudiated the torture memos that followed-on the original memo finding the Geneva Conventions inapplicable.
Perhaps the Taft memo wasn’t “forward leaning” but it was right as matter of law and wise as a matter of policy. You ignore the legal protection of detainees and you get Abu Ghraib.
I am surprised that Julian is surprised that Taft mentioned that senior military officials favored applying the Geneva Conventions. Washington was abuzz with talk about the rift between the uniformed military attorneys and the civilian DOD and Justice Department lawyers. This had been widely reported before Taft’s speech. There were also many complaints by uniformed lawyers that they were frozen out of the decision-making process. There was probably no DOD memo because the DOD decision-making was controlled by civilian political appointees.
Finally, if Julian thinks it is an overstatement to say "How our government treats people should never, at bottom, be a matter merely of policy, but a matter of law," then I guess we just have a philosophical difference. We are allegedly a nation of laws. It is in remembering that that we avoid our worst mistakes, be it the wholesale detention of Japanese-Amerricans or the official wink-and-a-nod to torture.
William Taft knew that; perhaps now the OLC does as well.