Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

The Real Headline from Yesterday's SASC Hearing

By Jack M. Balkin

I haven't been able to find a video or transcript, but this jumped out from Pam Hess's account:

Air Force Colonel Steve Kleinman, a military interrogation expert, witnessed abuses in interrogations in Iraq in September 2003. So "Kleinman said he called his now retired commander, Col. Randy Moulton, to express concern about the methods being used. He said Moulton checked with his superiors and called him back to say the harsh techniques had been specifically approved by the Pentagon's general counsel, William "Jim" Haynes or higher. Moulton also said he had been told the prisoners were terrorists who were not protected by the Geneva Conventions, Kleinman said. . . ."

An earlier version of Hess's article added that Moulton himself "later told investigators that he understood that the Pentagon's general counsel or higher had approved the measures, and that the prisoners were considered terrorists and were not protected by the Geneva Conventions."

This confirms earlier accounts that, notwithstanding current Administration representations that "Geneva applied in Iraq," in fact DOJ and DOD concluded in 2003 that "unlawful combatants" in Iraq were not entitled to Geneva protections (see Point No. 2 here), and, more importantly, DOD was working on the assumption, reflected in the April 2003 Working Group Report, that military interrogators, even in Iraq, could ignore federal statutes such as the UCMJ, the federal assault statute, and the torture act, with impunity.

Has anyone seen the hearing? What, if anything, did Moulton himself say in his testimony about what legal instructions he had received? Who were the "superiors" with whom he checked? And has anyone asked him why they thought federal statutes, such as the UCMJ, the assault statute, and the Torture Act, were not applicable?

Full post as published by Balkinization on September 26, 2008 (boomark / email).