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Posted Feb. 27, 2007

Policy of Cruelty Toward Detainees Leading U.S. Down Wrong Path, Mora Says

Alberto J. Mora

Alberto J. Mora


Adopting a policy of cruelty towards its detainees will have a devastating effect on the United States, said Alberto J. Mora, former general counsel to the Department of the Navy, in a keynote address at the J.B. Moore Society of International Law Symposium, “International Law at a Crossroads,” hosted by the Law School and the Miller Center of Public Affairs Feb. 23.

During his term as general counsel, Mora waged a three-year campaign against the use of abusive interrogation techniques on detainees held by the United States. Mora set out to convince his colleagues and superiors that these abusive polices were not fitting of the military services and unlawful after he learned of detainee abuse at the Guantanamo Bay facility. Following his retirement from the military in 2006, Mora received the John F. Kennedy Profile in Courage Award for his efforts. Mora’s remarks at the symposium focused on the sanctioning of cruel interrogation methods by the Bush administration and the reasoning behind it, as well as the legal and foreign policy ramifications of adopting a “policy of cruelty.”

“In an era of conflict, the voice of ethics is the one that always needs to be heard, but…in the context of our current war on terror the relevancy of this voice carries particular urgency,” Mora said. “And yet, as all of us are aware, certain policies adopted by our administration during this war on terror, particularly those dealing with detainee treatment, evidence a contrary view.”

The policies the U.S. government and military have adopted concerning the treatment of detainees are evidence that ethics are not the Bush administration’s first priority in international politics, Mora argued. Instead, these polices show that human rights were looked at as either irrelevant or as obstacles to the prosecution of the detainees. Worse, Mora said, senior officials in the U.S. government defended violations of detainee rights, claiming they are necessary for our nation’s protection.

Mora explained that the war on terror has been different from other wars, not only because the modern terrorist presents an unprecedented type or level of threat, but because the United States has applied cruel, illegal measures against detainees.

“While the war is still in its early stages, and its outcomes and consequences are still developing…this war is distinctive and will be remembered because we as a nation, despite our laws, values, and traditions, consciously apply cruelty against captive individuals,” Mora said. Mora added that the United States has also sought to reinterpret its own laws to legalize once formerly illegal human rights violations.

Although from a legal standpoint cruelty is a lower level of abuse than torture, Mora said he believed that “cruelty can be as effective as torture in destroying human dignity,” and that he saw no moral distinction between cruelty and torture. Mora explained that if one were to look at development of U.S. policies on interrogation during the war on terror, one would see an insistent pronouncement that the United States did not torture. However, what is obscured by this terminology is that the U.S. administration felt the freedom and necessity to apply cruelty, and this murky jargon has led to the public’s confusion over the detainee abuse controversy.

The use of cruelty by the U.S. administration began in 2002, when it was thought that detainees at Guantanamo Bay and other U.S. military bases possessed information concerning imminent terrorist attacks, Mora said; officials believed that if this information was not acquired through interrogation, many more American lives would be in jeopardy. It was in light of these circumstances that the U.S. government made legal and policy decisions that sanctioned cruel and inhumane methods of interrogation of these “unlawful combatants.”

These authorizations were made on four assumptions, Mora said. First, that no law prohibited the application of cruelty, and that unlawful combatants had few or no rights to defend them against cruel, abusive interrogation methods. Second, that the president’s role as commander-in-chief authorized him to order the use of cruelty and any law or measure would be deemed unconstitutional if they conflicted with these commander-in-chief authorities. Third, that use of cruelty in the interrogation of detainees would not implicate or adversely affect American values, the domestic legal system, international relations, or security strategy. Finally, Mora said, there was an assumption that if the abusive measures were discovered, virtually no one would care.

“Each of these four beliefs or assumptions was profoundly mistaken, and each constituted a legal, policy, and political blunder of massive proportions,” Mora asserted.

These abuses and instances of cruelty are real, and are known to have occurred, Mora said. He recounted some of the abuse endured by Mohammed al-Khatani, the detainee believed to be involved in the execution of the September 11 attacks. Khatani was subjected to 160 days in a pen perpetually flooded with artificial light, forced to wear women’s underwear, threatened by dogs, placed on a leash, subjected to phony kidnapping, given large quantities of intravenous fluids without access to a toilet, and deprived of sleep for three days. Mora explained that this account does not mean that all detainees were abused, but shows that abuse did occur. Furthermore, he added that while not all detainees were treated as poorly as Khatani, some were treated worse.

“It is established fact that documents justifying and authorizing the abusive treatment of detainees during interrogations were approved and distributed, and that abuse occurred as a consequence,” Mora said. “The resulting inescapable truth is that no matter how circumscribed these polices were, or how short their duration, or how few the victims, for as long as these polices were in effect, our government had adopted and practiced what can only be labeled as a policy of cruelty.”

According to Mora, prior to 9/11, there was a national consensus that cruelty should not be used against human beings, while now many Americans believe that it is acceptable to use cruelty against those who might possibly pose a threat to our national security. We should be astounded, Mora said, at how much acceptance and support there appears to be in the country for the practice, and how negligent and casual this acceptance had been on the part of both citizens and officials.

“Cruelty, once held in disrepute, has been astonishingly rehabilitated,” he said.

Tolerating cruelty as national policy will have disastrous consequences, for the country’s values, national security, and international relations, Mora said.

“Cruelty has made us weaker, not stronger, it has blunted our moral authority, compromised our operational capabilities, sabotaged our ability to build and maintain the broad alliances we need to prosecute this war more effectively, and imposed a political penalty on those leaders abroad…who have wished to stand by us in this war,” he explained. Foreign policy should mirror our nation’s internal values, Mora said, and making cruelty an approved legal precedent makes other members of the international community less likely to interact with the United States, whether it is economically, diplomatically, or in wartime. Disapproval of American values abroad handicaps the U.S. war on terror, as it alienates countries and individuals vital to the effort, Mora said.

“Our defense must also consist of rallying to our mutual defense those who share our values, and our vision of humane civilization, at the same time that we seek to convince those who don’t agree with us that our ideals are superior to that of our enemies,” he said.

Additionally, all international human rights efforts rely on strong support from U.S. foreign policy, and have done so historically, such in the case of the Nuremburg trials and the Geneva Conventions. However, this foreign policy is subverted by a policy of cruelty, Mora said.

The authorization of cruelty threatens the ideological structure of the United States to its core, Mora said, asserting that the U.S. Constitution was founded on respect for individual dignity. By adopting a policy of cruelty towards detainees, the administration has “applied a jackhammer to this foundation.” Additionally, Mora said, the authorization of cruel treatment of detainees is in direct conflict with the Fifth Amendment, which guarantees due process, and the Eighth Amendment, which outlaws cruel and unusual forms of punishment.

“To adopt and apply a policy of cruelty anywhere in this world is to say that our forefathers were wrong about the belief in the rights of man, because there is no more fundamental right than the right to be safe from cruel and inhumane treatment,” Mora said.

Mora emphasized that on the most ideological level, the United States cannot afford to draw any comparison to its enemies.

“As we prosecute this war, we should do so with a clear vision of the world we wish to see emerge from this conflict,” Mora said. “When our nation adopted a policy of cruelty, we compromised our ability to draw the sharpest possible distinction between our two antithetical ideals and to prosecute this aspect of the war, the war of ideas, from the position of full moral authority.”

The symposium, which included panels on executive power and international law, detainee treatment, and prosecuting unlawful combatants under the military justice system, was co-sponsored by the Center for National Security Law.
• Reported by Chris Hall