In response to the 3,000 murders on Sept. 11, 2001, America went to war. In Afghanistan, our targets were the Al-Qaeda perpetrators and the Taleban regime that aided and abetted them. In Iraq, the target was an unstable tyrant who had a history of using chemical weapons and who could be trusted to cheat on and retreat from his international commitments. I supported both engagements as US Navy general counsel. I support them still as a private citizen. I regard each as a prudent and even necessary use of force. The terrorist threat, and the threat posed by weapons of mass destruction in reckless hands, can never be underestimated.
And yet, there have been times in American history when, in our quest for security, our fear momentarily overcomes our judgment and our power slips the discipline of the law and our national values.
One such moment occurred in 1942, after the Japanese attack on Pearl Harbor. In what will always be regarded as an act of national shame, military authorities rounded up 120,000 American citizens of Japanese ancestry and incarcerated them on the presumption of disloyalty. These citizens were stripped of their rights and held in detention camps for the duration of the war. Many lost businesses and property. When we recall this event — and it is relevant to our current situation — we also recall with shame the Supreme Court’s abdication of its judicial responsibilities in the notorious Korematsu decision, in which it endorsed the legality of the patently unconstitutional detention.
Korematsu reminds us that when threats and fear converge, our laws and principles can become fragile. They are fragile today. In the summer of 2002, at Guantanamo and elsewhere, US authorities held in detention individuals thought to have information on other impending attacks against the United States. Unless this information was obtained, it was believed, more Americans — perhaps many more — would die. In this context, our government issued legal and policy documents providing, in effect, that for some detainees labeled as “unlawful combatants,” interrogation methods constituting cruel, inhuman and degrading treatment could be applied under the president’s constitutional commander-in— chief authorities. Although there is debate as to the details of how, when and why, we know such cruel treatment was applied at Abu Ghraib, Guantanamo and other locations. We know the treatment may have reached the level of torture in some instances. And there are still questions as to whether these policies were related, if at all, to the deaths of several dozen detainees in custody.
It is astonishing to me, still, that I should be here today addressing the issue of American cruelty — or that anyone would ever have to. Our forefathers, who permanently defined our civic values, drafted our Constitution inspired by the belief that law could not create but only recognize certain inalienable rights granted by God — to every person, not just citizens, and not just here but everywhere. Those rights form a shield that protects core human dignity. Because this is so, the Eighth Amendment prohibits cruel punishment. The constitutional jurisprudence of the Fifth and Fourteenth Amendments outlaws cruel treatment that shocks the conscience. The Geneva Conventions forbid the application of cruel, inhuman and degrading treatment to all captives, as do all of the major human rights treaties adopted and ratified by our country during the last century.
Despite this, there was abuse. Not all were mistreated, but some were. For those mistreated, history will ultimately judge what the precise quantum of abuse inflicted was — whether it was torture or some lesser cruelty — and whether it resulted from official commission or omission, or occurred despite every reasonable effort to prevent the abuse. Whatever the ultimate historical judgment, it is established fact that documents justifying and authorizing the abusive treatment of detainees during interrogation were approved and distributed. These authorizations rested on three beliefs: That no law prohibited the application of cruelty; that no law should be adopted that would do so; and that our government could choose to apply the cruelty — or not — as a matter of policy depending on the dictates of perceived military necessity.
The fact that we adopted this policy demonstrates that this war has tested more than our nation’s ability to defend itself. It has tested our response to our fears and the measure of our courage. It has tested our commitment to our most fundamental values and our constitutional principles.
In this war, we have come to a crossroads — much as we did in the events that led to Korematsu: Will we continue to regard the protection and promotion of human dignity as the essence of our national character and purpose, or will we bargain away human and national dignity in return for an additional possible measure of physical security?
Why should we still care about these issues? The Abu Ghraib abuses have been exposed; Justice Department memoranda justifying cruelty and even torture have been ridiculed and rescinded; the authorizations for the application of extreme interrogation techniques have been withdrawn; and, perhaps most critically, the Detainee Treatment Act of 2005, which prohibits cruel, inhuman and degrading treatment, has been enacted, thanks to the courage and leadership of Sen. John McCain, R-Ariz.
We should care because the issues raised by a policy of cruelty are too fundamental to be left unaddressed, unanswered or ambiguous. We should care because a tolerance of cruelty will corrode our values and our rights and degrade the world in which we live. It will corrupt our heritage, cheapen the valor of the soldiers upon whose past and present sacrifices our freedoms depend, and debase the legacy we will leave to our sons and daughters. We should care because it is intolerable to us that anyone should believe for a second that our nation is tolerant of cruelty. And we should care because each of us knows that this issue has not gone away.
— Alberto J. Mora, who retired as navy general counsel last year, wrote a memo to Pentagon officials two years before the Abu Ghraib scandal that warned against circumventing international agreements on torture and detainee treatment.
