In a 2005 legal memorandum for the Department of Justice, Mr. Nielson argues that the Geneva Conventions do not prohibit the mistreatment of civilians in U.S. custody overseas. As Raha Wala, Director for National Security Advocacy at Human Rights First, writes in a letter to committee members, this analysis suggests the Geneva Conventions do not protect the “vast majority of civilians that would ever be held by the United States, as most American wars are fought overseas.”
Mr. Nielson’s conclusion directly contradicts clearly established law. A former State Department lawyer characterized the memorandum as “an exercise in shoddy, results-oriented advocacy poorly masked as legal analysis […] rather than being an effort to provide rigorous, candid, and objective legal advice.”
Retired military leaders noted that Mr. Nielson’s legal analysis is not only unsupported, but also dangerous. In a letter to the committee, Brigadier General David R. Irvine, USA (Ret.), Rear Admiral Donald Guter JAGC, USN (Ret.), and Rear Admiral John D. Hutson JAGC, USN (Ret.), wrote, “The Geneva Conventions protect the servicemembers who take enormous risks to defend American values. Attempts, like Mr. Nielson’s, to create legal black holes that can justify torture and mistreatment betray those values and undermine our nation’s security. They also should not be rewarded with lifetime judicial appointments.”
It’s possible that Mr. Nielson may have played a role in developing some of the legal memoranda authorizing the CIA’s use of torture after 9/11—memoranda that have been revoked and widely criticized as incorrect, problematic, and results-oriented.
Wala urged committee members to “determine the full extent of Mr. Nielson’s legal views on whether it is permissible to torture or otherwise abuse detainees, and what role, if any, he had in the development of the infamous ‘torture memos.’ The committee should not advance Mr. Nielson’s nomination until he has demonstrated his ability to “maintain the public’s trust through impartial application of the law.”
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