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

Alberto J. Mora

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by Chris Hall

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 February 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 policies 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. His 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 and 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 U.S. has also sought to reinterpret its own laws to legalize once formerly illegal human rights violations.

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 it 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.

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, and making cruelty an approved legal precedent makes other members of the international community less likely to interact with the United States, whether 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.

The authorization of cruelty threatens the ideological structure of the U.S. 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.

The symposium, which included panels on executive power and international law, detainee treatment, and prosecution of unlawful combatants under the military justice system, was co-sponsored by the Law School’s Center for National Security Law.