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Context of 'February 26, 2002: Justice Department Says Military Commissions Under President’s Sole Authority'

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Vice President Cheney leads a meeting at the White House to put the finishing touches on a draft presidential order establishing military commissions (see Late October 2001 and November 9, 2001). The meeting includes Attorney General John Ashcroft, Defense Department chief counsel William J. Haynes, and several White House lawyers, but leaves out senior officials of the State Department and the National Security Council. Cheney has decided to tell neither National Security Adviser Condoleezza Rice nor Secretary of State Colin Powell about the order until it has already been signed. Cheney has also told no one in the interagency working group ostensibly formulating the administration’s approach to prosecuting terrorists (see Shortly Before September 23, 2001). Ashcroft angrily dissents from Cheney’s plan to give the White House sole authority over the commissions, and invokes his authority as the nation’s top law enforcement official to demand that the Justice Department be given a say in the decision. Cheney overrules Ashcroft’s objections. He will discuss the draft with President Bush over lunch a few days later (see November 11-13, 2001). [New York Times, 10/24/2004; Savage, 2007, pp. 138]

Entity Tags: William J. Haynes, Colin Powell, George W. Bush, John Ashcroft, Condoleezza Rice, Richard (“Dick”) Cheney

Timeline Tags: Torture of US Captives, Civil Liberties

A memorandum sent by the Justice Department to Department of Defense General Counsel William J. Haynes states that the military commissions intended to try enemy combatants are “entirely creatures of the president’s authority as commander in chief… and are part and parcel of the conduct of a military campaign.” [Office of Assistant Attorney General, 2/26/2002 pdf file] This raises questions regarding the independence of the commissions. The US government will try the detainees itself, which is why Human Rights Watch later concludes, “Under the rules, the president, through his designees, serves as prosecutor, judge, jury, and, potentially, executioner.” [Human Rights Watch, 1/9/2004] Amnesty International will similarly criticize the fact that “the commissions will lack independence.” [Amnesty International, 10/27/2004] Trial by a court that is not in complete independence from a government acting as a prosecutor is a violation of the defendants’ human rights. Article 14(1) ICCPR [International Covenant on Civil and Political Rights] states: “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law.” Article 14(5) ICCPR furthermore grants “[e]verybody convicted of a crime… the right to his conviction and sentence being reviewed by a higher tribunal according to law.” But in the plans of the US government such a right is not foreseen. According to Human Rights Watch, “There is no appeal to an independent civilian court, violating a fundamental precept of international law as well as settled practice in the US military justice system.” [Human Rights Watch, 1/9/2004] The Justice Department memorandum advises that “incriminating statements may be admitted in proceedings before military commissions even if the interrogating officers do not abide by the requirements of Miranda.” The “Miranda warnings” are normally a prerequisite for allowing incriminating declarations by a defendant to the proceedings of a criminal trial.

Entity Tags: William J. Haynes, US Department of Justice

Timeline Tags: Torture of US Captives, Civil Liberties

Representatives of major human rights organizations meet with Defense Department General Counsel William J. Haynes asking that the US government develop clear standards to prevent the mistreatment of prisoners of war. [Human Rights Watch, 5/7/2004]

Entity Tags: William J. Haynes

Timeline Tags: Torture of US Captives

The acting chief of the Justice Department’s Office of Legal Counsel, Daniel Levin, sends a memo to William J. Haynes, the chief counsel for the Defense Department, advising Haynes that he is withdrawing the Justice Department’s March 2003 memo that justified certain “harsh” methods of interrogation of prisoners in US custody. Levin, writing in carefully couched legal language, says that many of the interrogation methods currently in use by US interrogators are not within the legal parameters for interrogation—in other words, the methods qualify as torture under US law. [US Department of Justice, 2/4/2005 pdf file] Levin recently underwent a simulated waterboarding session to determine for himself if the practice qualified as torture, and determined that it did so. He will shortly be relieved of his position in the Justice Department, and the administration will continue its support for waterboarding and other “harsh” methods of interrogation (see Late 2004-Early 2005).

Entity Tags: Daniel Levin, William J. Haynes, Office of Legal Counsel (DOJ), US Department of Justice

Timeline Tags: Torture of US Captives, Civil Liberties

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