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lindsey graham

Can you start by taking me back for a minute? Can you put into context the conflict that often exists between the general counsel and the JAG [Judge Advocate General Corps]?

... The military lawyer [JAG] is really the conscience of the military. I've been a military lawyer for 20 years, and what you try to do is, you try to make some organization out of chaos. You try to give your commander the best advice you can about "What are the rules of war? What decisions can you make and be OK personally?"

There was a tremendous level of frustration among the JAG community. They felt they were being cut out, not by Secretary Rumsfeld, but by the system as a whole.

And the general counsel's office has a different charter. The general counsel's office has advised that civilian political appointee about policy and law, and the military lawyer [advises] the commander about how to interpret the policy within the confines of the law. And I'm a big believer that every military commander in our system deserves an independent legal adviser to make sure that they're following the policy and the law that's existed before they took command.

You see in this prison abuse scandal the lack of military legal counsel available to some of these commanders. You see in the formation of the policy a kind of "We appreciate your input," but [they] sort of close the door on the input. And as a result, we paid a price.

... What I'm talking about is a conflict that's been long-standing. The conflict is between the civilian lawyer, who's a political appointee, and the professional military lawyer, whose sole obligation ... is to represent their command structure. And as we tried to come up with new rules about how you interrogate non-Geneva Convention detainees, the military lawyer was very sensitive to assault statutes, very sensitive to other parts of the uniformed code of military justice, very sensitive to the idea "Do we abandon the principles of the Geneva Convention even if they don't technically apply?"

I think the military lawyer's been trying to tell the system since day one: "Don't go too far away from the principles of the Geneva Convention in the name of fighting the war on terrorism, because you don't want to become your enemy in trying to defeat your enemy. You want to be sensitive to the principles of the Geneva Convention even though they're not technically applicable and some civilians wanted the information." And ... some of the signal sent, I think, was "We'll worry about how you get it later; just get it." And that set us upon a slippery slope. It's hard for a big system to be that nuanced. And you see problems.

And you've got the word terrorist, which becomes such a supercharged rationale for almost anything.

photo of graham

A military lawyer (JAG) during the Persian Gulf war, Senator Lindsey Graham (South Carolina, R.), calls military lawyers "the conscience of the military." He says the JAGS have been marginalized in recent years and he has introduced an amendment to increase their authority and independence. In this interview, he discusses the early clash between military and civilian lawyers over rules of treatment and interrogation at Guantanamo and how Donald Rumsfeld dealt with the feud. And he outlines in this interview how harsh interrogation techniques of Taliban and Al Qaeda detainees at Guantanamo "migrated" to Abu Ghraib where Iraqi detainees were being held, supposedly under the terms of the Geneva Conventions. But with no military lawyers at Abu Ghraib to advise its commanders, Graham tells FRONTINE it's another example of the price being paid "for executing a great war plan and a pretty poor occupation plan." This interview was conducted on Aug 17, 2004.

Yeah, most Americans [couldn't] care less what we do to terrorists. If you've got a terrorist in your charge and you need to get information, get the information. The problem [is] -- and I think the military lawyer's very sensitive to this -- systems are involved, not individual events. When our people fall into the hands of enemies, some people in the terrorist world will consider all Americans terrorists. But the day that we find that an American soldier is in the hands of a terrorist group or any other group, we're very quick to say, "You'd better treat them humanely."

The president was very quick to say, "You're not entitled to Geneva Convention status because of the way you operate, but you will be treated humanely." And therein has been the implementation problem. And the military lawyers, when it came time to say what humane treatment is all about, used the Geneva Convention principles as their guide. The civilian lawyers, not quite as well steeped in that Convention, considered it more of a nicety. And that's where the conflict came.

So we've talked about the theory and now the practice. What actually happened? Do you know, for example, whether Secretary [of Defense Donald] Rumsfeld is aware or was part of this problem?

Well, I think what happened early on is that the Department of Justice and the White House counsel's office tried to find ways around existing international law when it came to interrogation techniques that were at best putting square pegs in round holes. And when the military lawyer was involved in designing that policy, red flags went up all over the system, and input was given by the military legal community that some of the things you're proposing are out of bounds. They violate existing U.S. law; they violate international statutes apart from the Geneva Convention.

And there was a healthy, great debate. And when Secretary Rumsfeld found out that there was a real tension there, he asked for a convening of military and civilian lawyers in January. The policy was formed in November and December of 2002, and in January he asked for all the lawyers to get in one room. As a result of that, as a result of the military legal community pushing back, I think 34 interrogation techniques were whittled down to about 24.

But there had been people in the Pentagon who wanted to be very aggressive.

Well, I think you had people in the White House counsel's office who wanted to be very aggressive. I think you had people at [the] general counsel's office at secretary-of-defense level. You had the Department of Justice providing some legal analysis that I object to and find off base, but they were driven by the idea of getting the information and making sure we won this war.

And when military lawyers had their chance to look at the policy proposals, red flags, as I said before, went up. And initially the military lawyer was considered a nuisance, but they were very persistent. And the general counsel's office in the Department of Defense was sort of the referee. They stood in between the Department of Justice, the White House and the secretary of defense. And to their credit, once they understood that there was disagreement, they allowed all sides to come in and have their say. And to Secretary Rumsfeld's credit, once he heard that there was a disagreement, he looked at the recommendations and made some substantial changes. But you had about a three-month period where there was a no man's land.

And the result of that in those three months?

The result of that is I think you engaged in some isolated events at Guantanamo Bay that should not have been engaged in. I think you set in motion [the] mental attitude "Let's get the information and not worry about the niceties of how you do it." That became sort of a mind-set. And as you tried to move from Guantanamo Bay in Cuba, where you had a well-trained, good ratio between guards and detainees, to chaos in Iraq, some of the migration of these policies went from Guantanamo Bay, I believe, to Iraq. And Iraq was always a theater of operations where the Geneva Convention applied in totality. So you had a hybrid system in Guantanamo Bay that eventually made its way into the system in Iraq. And as a result, you had an implementation that was not what America stands for.

You've been privy to some information that the rest of us haven't seen. From what you saw, what policies migrated from Guanatanmo Bay to Abu Ghraib in Iraq?

I think you see throughout the theater in Iraq, and maybe in some isolated parts of Afghanistan, some aggressive techniques that were early on pushed by the Department of Justice where you had detainee deaths. You had some interrogation techniques that clearly are miles away from Geneva Convention standards, clearly miles away from the president's standard of humane treatment.

And I thought the president had it right, that a Taliban, Al Qaeda person is not Geneva Convention-qualified. They're everything the Geneva Convention's against. Under the Geneva Convention, you have to report when you have somebody in your charge, and ... the last thing you want to do is tell the world you've got an Al Qaeda operative. But you do have to treat these people within the confines of international laws and principles.

So I think what happened at the end of the day is that you had two things going on. You had some untrained, undisciplined, poorly supervised troops who engaged in some aberrant, deviant behavior on their own, that wasn't organized, that wasn't part of any debate about where the rules begin and where they end. That these people just on their own went out of line because they were poorly supervised or were untrained and are not good people, that's a part of this. And some of those are the privates and the sergeants, and they need to pay a heavy price, because they brought dishonor to their fellow service members.

The second problem you have is some techniques that I think were way out of bounds, that were incorporated in Iraq that probably started with Gitmo. And you have some military intelligence people who are in these photos where the abuse is going on. It's hard for me to believe that the military intelligence community did not know that this was going on or did not try to take advantage of this abuse.

So we will see over time as the court-martials progress, we will have two paths, I think: individual soldiers who are undisciplined, bad people who are going to pay a price individually; and a system that was less than trustworthy when it came to implementation and following the rules, and a cutting of the corners.

And command responsibility exists in both incidences. The commanders have a duty to make sure that the troops under their charge are well disciplined and well trained. And what went on in that prison in the middle of the night is far away from what we stand for as a nation, and it has to be dealt with severely.

One of the first things you do in the military as a lawyer is you advise your commanders, "Show up when the troops least expect it." You show up in the dorms at 2:00 in the morning because you always want the troops believing that you're looking over their shoulder. What went on in that prison for months was way out of bounds, known by a lot of people, and was a direct result of two things: out-of-control troops and a system without any governing devices.

You talked about the fact that Secretary Rumsfeld became aware of what was a serious battle between two forces, the military's JAGs and the civilian general counsels. But before that, do you think he was aware of, in this three-month period, what was going on?

I think Secretary Rumsfeld's not a lawyer, and his job is to defend the nation and make sure that the military is capable of winning the war on terror. The thing that I've learned -- and I've looked at this very extensively, because I'm still a member of the JAG Corps, so I have all my buddies in the Army, Navy and the Air Force calling me, telling me what they want some senator to know -- is that there was a legitimate, healthy debate within the Pentagon about how to implement the changes when it came to the Taliban and Al Qaeda. And there [was] some discussion of specific interrogation techniques. The Department of Justice was pushing interrogation techniques [that] I think are bad for this country to adopt, and the military legal system was pushing back, and in the middle you had the Pentagon lawyers.

Secretary Rumsfeld was very sensitive about two things: about not abusing detainees and about getting information. And I think you will find as these reports unfold, there was a period of time when a request was made of him to do certain things in Guantanamo Bay [that] in hindsight should never have been on the table to begin with and were shortly taken off the table.

I don't think they were fully implemented. I don't think many prisoners, maybe none at all, were affected by these techniques. But some of the techniques involve water torture, a near-drowning experience, some severe physical pain that is totally miles away from the Geneva Convention principles and the idea of humane treatment.

And there was an island of time where these concepts were on the table. There was a discussion about whether or not to implement them. And credit goes, I think, to the military legal community who pushed back hard along with some people within the Pentagon to change those techniques.

But he knew.

Yeah, he knew. I think he knew that legally all the lawyers were telling him, "This is within the bounds of the international statutes." He was getting advice from the Department of Justice -- not really advice as much as guidance.

I think one of the things that we've got to look at here: Who sets policy? The White House counsel's office had a view about interrogation techniques; the Department of Justice had a view; and the Department of Defense had a view. Well, within the Department of Defense you have specialists in international law, and when they looked at what was being proposed, it was clear to them this was a new road for America to travel, a very dangerous road. And I think Secretary Rumsfeld tried to navigate that road the best he could, and when he found that the conflict was getting greater, not lesser, he decided to abandon the whole concept.

But here's a really tough guy who micromanages. I mean, he's in every decision all the time. Everybody works for him, and he knows everything at some level.

My sense is that you had some Department of Justice lawyers and some people, probably in the White House, that considered the Geneva Convention a nicety. Even though it didn't technically apply, the whole idea that we've got to follow these rules after being attacked on 9/11 was something we shouldn't overly worry about.

Then you have within the Department of Defense some professional lawyers in the military and others who understood that our troops could be at risk down the road, and this war has many dimensions. That conflict existed between outside forces and people within the Department of Defense.

Then you had Secretary Rumsfeld, who's trying to implement these policies, who I think questioned and asked a lot of good questions. There's a paper trail for that three-month period of where he is signing off on specific things to do and saying no to other things. You could tell that he was a troubled, conflicted man and that when he heard that the military legal community was sort of up in arms about the road and the path we had charted, that's when he convened this sort of summit of all the lawyers, and after that summit, produced a work product. He looked at it very closely and I think changed course in an appropriate manner.

So it's easy to second-guess. After 9/11, you're responsible for defending the nation. You've got some really bad guys in your charge. You need as much information as possible to save troops in the field and prevent another attack. But your goal has to be, as an American, to always adhere to the rule of law passionately, to respect the concepts of the Geneva Convention, because we've been the biggest advocate for the Geneva Convention for 50 years because that's who we are as a nation, and in trying to win this war, not overly cut corners. And at the end of the day, you can't become your enemy in the name of defeating your enemy. And that is a hard thing to do.

I'm proud of my country. This is not one of our greatest chapters. We're making corrective action. And for me, for us to be successful, the people who abused these prisoners personally need to pay a heavy price, because it's a stain on all those who serve. And the command structure who allowed it to get so out of whack, they need to pay a price. And people within the civilian political community who pushed down the wrong road very hard, very long, need to be reigned in.

What have you learned in terms of the big picture and what might be needed to improve the system to avoid this problem in the future?

One thing I've learned looking at this, there was a tremendous level of frustration among the JAG community. They felt they were being cut out, not by Secretary Rumsfeld, but by the system as a whole. They felt that the policies being pushed by the Department of Justice and coming out of the White House counsel's office were going to create real problems for commanders, create real problems for our troops and lead to problems. And they were prophetic. That's exactly what happened. So [when] some of them felt dealt out within the Pentagon, they sought some counsel outside the military system.

But there's a paper trail that I've looked at where memos were written by the Army, the Navy and the Air Force military legal communities saying that the proposed policies are going to get us in trouble; they're not who we are as a nation; they're abandoning 50 years of military legal thought; even though the Geneva Convention doesn't technically apply, some of these interrogation techniques run afoul of other statutes within our own body of law and other international laws; that if you go down this road, you're going to get your people in trouble. Those memos exist, and I've read some of those memos.

And the reason that I am changing the statute to make sure that military lawyers have an independent role to play when it comes time to advise commanders about what to do is to make sure this never happens again. The general counsel's office oversees the JAG department to a certain extent as it should, just as the Department of Defense civilian leadership oversees military commanders. But …I don't want the military legal system having to answer unnecessarily to political appointees. I want them to be able to talk to their commanders, get independent input, to use their military legal experience in independent fashion for the good of the system.

And that's going to take some statutory changes. It's time to make the judge advocate generals of the Army, Navy, Air Force, Marine Corps three-star generals so they'll have more weight when they go to meetings. It's time to change the statutes to make sure that military lawyers have independent access to their commanders to give independent legal advice. Every commander needs the ability to go into the room, shut the door and ask their lawyer, "What do you think I should do here?" And that was missing.

Why wasn't there JAG representation over in Abu Ghraib?

If we've learned nothing else from this prison abuse scandal, I've learned completely that we do not have enough troops in place with the right skill sets. The people running that prison, some of them were not trained as prison guards. As a matter of fact, most of them were reservists who were going to go home …. were told they couldn't go home, and were sent over to run a prison they knew little about. Morale was low. The prisoner-to-guard ratio was seven times what the Army recommends. You had no legal advice in place in terms of the traditional role of a military lawyer within a prison. You were making up a lot of this as you went.

If you had the best trained people in the world, Abu Ghraib would have been tough. You're getting shot at during the day and during the night, and the civilian population's very hostile to you. You're being attacked. You're having to fight a war and run a prison at the same time.

But the worst possible formula existed here. You had people untrained, undisciplined, unsupervised, without any legal advice, and we all are responsible for that, and it is time to take corrective action. I believe we are, but I've been a big advocate that we're relying too much on our [National] Guard and Reserves. We don't have enough skilled people in Iraq to do jobs of the occupation, and one of the jobs of the occupation is to have a prison. And that prison was about as far away from what the military teaches and preaches as it could possibly be.

If you had JAG people there or a JAG officer even, how would it have been different?

If you had somebody with a rudimentary understanding of military law and how you operate in a combat environment, number one, you would not have had abuse at this level going on at 2:00 in the morning for weeks and months, because you would have spot inspections. Number two, you would have a system where people would be able to be briefed constantly about where the rules start and where they end in terms of detainee interrogation. You would not have an abusive situation that you had in place, because any military lawyer with a basic understanding of military law would have been involved in the interrogation proceedings and would have found what went on in that jail totally out of bounds.

Any commander with basic commander tools available to them would not have allowed this to go on for so long, so the military legal system not being part of that prison was very similar to what the JAGs were predicting months before, a year before: that if you don't follow the rules pretty closely in combat, they get really out of whack.

And why weren't they there?

I just think there was a personnel problem. I think we were making it up as we went. That this prison got flooded, that the legal relationship you need between a commander running a prison and the legal community was not there, that's part of these investigations.

There are two investigations that are very important. What role did the military intelligence community play in terms of how that prison operated? Was this just six or seven MPs acting on their own? I don't think so. And the second problem that we're having to look at is, how did the command structure evolve in the way that it did? Why wasn't there a military legal system around that prison? Why wasn't there more well-trained people involved in running that prison, and whose responsibility is that? The jury's still out.

What do you think, Senator?

I think we're paying a price for executing a great war plan and a pretty poor occupation plan. I went to Iraq last July, a year from this past July. It was clear to me we didn't have enough military police, that we were making infantry people military police; we were making infantry people civilian engineers; that the civil affairs people who try to go and teach government were all Guard and reservists, and you couldn't use these people forever.

It was clear to me that the skill mix to make sure that this operation went well was not there, and that the prison was the best example yet of the lack of that skill mix. You had people doing a job they weren't trained for. Morale was low. There were Guard members and reservists who were told they were going to go home, and they were held over because of manning problems.

If we do not learn the lessons of that prison in totality, we will let our troops down in the future. It is important to learn the lessons of that prison and other prisons like it to make sure we don't ever go down this road again.

So Abu Ghraib is a metaphor for what happened, what went wrong there?

I think if you had to explain or give an example, one example, of some of the mistakes we've made in the occupation of Iraq, you would use that prison as a teaching tool. It shows you what happens when you have untrained people poorly supervised in combat; it shows [you] what happens when you don't have the right skill mix; and it shows you what can happen when you play too cute with rules that have stood the test of time.

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posted oct. 26, 2004

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