Long before the torture memos were written, we saw from the State Department, where I handled law of war issues, that the interagency process had been distorted. Two examples stand out.
The first came on November 13, 2001, when President Bush signed an order establishing military commissions to prosecute those associated with al Qaeda and the Sept. 11 attacks. To all but a handful of insiders, the military commissions came as a surprise. Lawyers from the State Department, Pentagon, National Security Council, White House Counsel, and Justice Department had been discussing a variety of ways of handling suspected terrorists.
At the working level in the State Department, we had viewed military commissions as one option among many, caveated by the fact that such commissions had not been used by the United States since the World War II era -- and much had changed in the legal landscape since then. Most importantly, the United States had signed up to the Geneva Conventions of 1949 and other treaties that framed the legal requirements for the trials of combatants and civilians. Our views were incorporated into preliminary discussions, but those talks were cut short, without explanation, when the president signed his order. By that stage, there had been no sustained interagency vetting of the idea, and few had seen the text of the order itself.
Two months later, in January 2002, my boss, State Department legal advisor William H. Taft IV, who was also a former deputy secretary of defense, learned at a White House meeting that the president would declare that the Geneva Conventions did not apply in the war in Afghanistan, on the basis of advice authored by Yoo to which we were not privy. What that meant was that individuals captured in Afghanistan, regardless of their affiliation, could be brought to the recently opened Guantánamo Bay prison without the protections of the Geneva Conventions. Taft and his own client, Secretary of State Colin Powell, believed strongly in the legal, moral, and humanitarian strictures of the laws of war, and they made their case in a tough but opaque debate that lasted throughout that month. But ultimately, on the basis of Justice Department advice alone, Bush decided that no one at Guantánamo would be protected by the established rules of international law.
All this came long before the Summer of Torture later that year. In those months, as the directives to allow torture were being approved, administration officials sought legal advice only from those already committed to a predetermined outcome, not necessarily those with expertise. The State Department's involvement early in 2002 had been a mere happenstance, not to be repeated during Yoo's torture colloquium. We had but two days to respond to a massive memo by Yoo arguing against Geneva, a task made easier only because his memo was so thoroughly untenable under domestic and international law.
We at State were not the only ones kept in the dark about what went on. We had been in the habit of seeking input from colleagues in other agencies, including the military -- until, that is, we learned that senior political appointees in the Office of the Secretary of Defense had told the lawyers at the Joint Chiefs of Staff to "stand down," as I was then told, and cease providing comments on the Geneva issue.
Bybee and Yoo certainly went to great lengths to push the limits of legal advice, but what was less complicated was making the bureaucracy work in their favor. The events that I saw unfold in 2002 demonstrate that the system itself was vulnerable to political manipulation. Nearly all of the troubling legal advice was provided by political appointees, not career public servants. The political appointees, often joined together through participation in movement politics or legal organizations such as the Federalist Society, maintained their personal and political allegiances. Many saw career lawyers in government as obstacles rather than sources of expertise. Though the appointee system often recruits some of the brightest and most ethical lawyers in the country -- as many later Bush administration and current Obama appointees demonstrate -- it also risks the possibility that a fiasco like that of 2002 will be repeated again.