Ex-U.S. Navy Counsel Speaks

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Ex-U.S. Navy Counsel Speaks at Human Rights Luncheon

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February 22, 2008

E -U.S. Na Co n el Speak a H man Righ L ncheon Alberto J.Mora, vice president and general counsel international of Wal-Mart Stores Inc., spoke Monday at the Center for Human Rights’ fourth annual House of Delegates Luncheon. As general counsel of the U.S. Navy, Mora challenged the Department of Defense not to implicitly or explicitly sanction mistreatment of Guantanamo detainees as part of the fight against terrorists.

Here is a text of Mr. Mora’s remarks: WEAKENING AMERICA: THE COSTS OF LEGALIZED CRUELTY Alberto J. Mora I am deeply honored to have been asked by the Center for Human Rights to speak at this, the Fourth Annual House of Delegates Luncheon. It is a particular distinction to be asked to address this body and the many other distinguished ABA members and guests here today. A number of you are longstanding friends and colleagues, but many more of you here are known to me by reputation and your many contributions to the law and to the legal profession. I want to thank the Center’s Co-Chairs -, Jerry Shestack and Steven Walther; it’s Director, Michael Pates; and Neal Sonnett. My thanks also go to the co-sponsors of this event, the Section of International Law and the Section for Individual Rights and Responsibility.

I also want to recognize and thank the ABA for its consistent and principled support for the Rule of Law since 9/11. The ABA has helped ensure that our laws and legal system responded appropriately to the new challenges of terrorism. And, under the leadership of every ABA president since that date, this organization has acted vigilantly to help ensure that the shock and apprehension we all felt after the attacks did not prompt us to act unwisely in ways contrary to our nation’s values and system of laws.

The ABA has understood the truth of Albert Camus’ observation that in fighting for its values – as we are fighting externally and internally for our values in this War on Terror – a nation must take care that it not kill those values with the very weapons used in their defense.

No one minimizes the external threat. The al Qaeda attacks deeply hurt our country and signaled a abanow.org/2008/02/ex-u-s-navy-counsel-speaks-at-human-rights-luncheon/

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continuing danger. Implicit in the attacks was the promise that these terrorists or others like them would attack us again, if they could. On September 11, history once again surprised us with the unforeseen or poorly understood threat. Once again, as it has so many times before, the essential truth in Leon Trotsky’s dictum that “You may not be interested in war, but war is interested in you” had been borne out. Once again, the wisdom and necessity of maintaining vigilant and strong defenses hadbeen demonstrated.

Once again, we turned for protection to those courageous and selfless men and women who wear our Nation’s uniforms. And, once again, we are asked to balance our rights with our security. Few members of the House of Delegates will be unaware that there have been occasions during our history – usually during wartime or other times of perceived danger – when our nation has transgressed our laws and values in pursuit of security. Such departures occurred during the Civil War, World War I, and the Cold War. We all recall with shame and revulsion the internment of U.S. citizens of Japanese ancestry during World War II as another historical example.

And, we all recall how these patently illegal internments were found to be lawful by the Supreme Court. By remembering this, we recognize our capacity for mistake, and resolve to apply the lessons learned from yesterday to try to help ensure that similar mistakes are not made today. But, as the ABA was among the first to recognize and many Americans today fully understand, we have departed from our laws and values during this War on Terror, and, in the process, we have damaged them. The greatest damage has been caused by our embrace of cruelty: Whatever else may be said about it in the future, this war is historically significant because we as a nation – despite our laws, values, and traditions – consciously applied cruelty against captive individuals and sought to amend or reinterpret our laws so as make this, which was illegal, legal. What Korematsu signifies for World War II, the decision to apply waterboarding represents for this war.

Today, I’ll address the self-inflicted wounds our nation has suffered from the decision to adopt cruelty as a weapon of war, and the even graver damage that we would suffer if we were to legalize cruelty, as some now openly advocate. I use the term cruelty, not torture, because – as everyone here understands – there is a legal distinction between the two and cruelty is the lower level of abuse.Cruelty can be as effective as torture in destroying human dignity, and there is little or no moral distinction between one and the other. If cruelty is abolished, so is torture, but not vice versa.

Consistent with our traditions and laws, it is the application of all pain – not only severe pain – that we wish to prohibit. Cruelty not only harms its victims, it also profoundly damages our nation’s legal, foreign policy, and national security interests.

Legally, the acceptance of cruelty is contrary to and damages our values and legal system, including our constitutional structure, by discarding the basic principles that all human beings have the right to be free from cruelty and that the highest purpose of law is to shield core human dignity. From a foreign policy standpoint, the effects and consequences of cruelty are contrary to our long-term strategic foreign policy interests, including many of the principal institutions, alliances, and rules that we have nurtured and fought for over the past sixty years.

And, from the national security standpoint, the use of cruelty has been demonstrably counterproductive in the effort to wage the War on Terror successfully. Cruelty has made us weaker, abanow.org/2008/02/ex-u-s-navy-counsel-speaks-at-human-rights-luncheon/

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not stronger. It has blunted our moral authority; sabotaged our ability to build and maintain the broad alliances needed to prosecute the war effectively; and diminished our operational effectiveness.

Before we examine in greater detail these three categories of harm, let’s recall what cruelty is, and how we came to adopt it. What does this cruelty consist of? I pose this question because when we talk of cruelty, it’s important that we not only dwell on the abstraction, but also seek to understand it in some physical detail. Here’s how we treated Mohammed al-Qahtani, the detainee believed to be the “Twentieth Hijacker”. According to the journalist Jane Mayer, writing in the February 27, 2006, edition of The New Yorker: Qahtani had been subjected to a hundred and sixty days of isolation in a pen perpetually flooded with artificial light.

He was interrogated on 48 of 54 days, for eighteen to twenty hours at a stretch.

He had been stripped naked; straddledby taunting female guards, in an exercise called “invasion of space by a female;” forced to wear women’s underwearon his head, and to put on a bra; threatened by dogs; placed on a leash; and told that his mother was a whore.

[He] had been subjected to a phony kidnapping, deprived of heat, given large quantities of intravenous liquids without access to a toilet, and deprived of sleep for three days.

[At one point,] Qahtani’s heart rate had dropped so precipitately, to thirty-five beats a minute, that he required cardiac monitoring.

How did our Nation come to use cruelty in this war?

In the summer of 2002, at Guantanamo and elsewhere, U.S. authorities held in detention individuals thought to have information on other impending attacks against the United States. Unless this information was obtained through interrogation, it was believed more Americans would die. In this context, our government made legal and policy decisions providing, in effect, that for some detainees labeled as “unlawful combatants,” harsh interrogation methods could be applied. With the recent admission that waterboarding was included among these techniques, we now know that at least one technique constituting torture was implicitly authorized.

These authorizations rested on five beliefs or assumptions, each of them false: First, the use of harsh interrogation techniques was necessary if our nation was to be protected against further loss of life.

Second, no law prohibited the application of cruelty. Thus, the government could direct the use of cruelty as a matter of policy depending on the dictates of perceived military or intelligence necessity.

Third, the President’s constitutional commander-in-chief authorities included the discretionary authority to order cruelty. Any existing or proposed law or treaty that would purport to limit this ability would be an unconstitutional abridgement of his authority.

Fourth, the use of cruelty in the interrogation of unlawful detainees held abroad would not implicate or adversely affect our values, our domestic legal order, our international relations, or our security strategy.

And Fifth, if this abuse were disclosed or discovered, virtually no one would care.

The treatment meted to Qahtani illustrates the results of the policy that ensued from these false abanow.org/2008/02/ex-u-s-navy-counsel-speaks-at-human-rights-luncheon/

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assumptions. Not all unlawful combatants in custody were mistreated, but it is enough to say that some were; not all were treated as badly as Qahtani, but some were treated much worse; and not all who were mistreated were abused as a result of official policy, but many were.

No matter how circumscribed these policies were, or how short their duration, or how few the victims – for as long as these policies are in effect our government had adopted and practiced what only can be labeled as a policy of cruelty.

Let’s examine more precisely how this policy of cruelty has harmed our national interest and what the damage has been. Each strand of this analysis begins with the founding principles that led to our nation’s creation; the value we recognize in each person; the innate dignity we accord to all; and the rights that naturally and consequentially are possessed by everyone, not just citizens. Because there are linkages between our legal, foreign policy, and national security policies and interests, damage in one area can cause damage in the others. That is what happened here. Legally, the adoption of a policy of cruelty has damaged us in multiple ways, but I will focus on the most destructive effect.

Cruelty damages and ultimately would transform our constitutional structure because cruelty is incompatible with the philosophical premises upon which the Constitution is based. 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.

These rights form a shield that protects core human dignity. Because this is so: due process is required; the equal protection of the law is mandated; slavery is outlawed; coerced confessions are excluded; the vote is extended to all citizens who have attained their majority; racial discrimination is forbidden; and men and women are to be treated equally – to cite just a few of our rights that issue from the foundation of personal dignity. And, most notably for purposes of today’s discussion, the Eighth Amendment prohibits cruel punishment and the constitutional jurisprudence of the Fifth and Fourteenth Amendments outlaws cruel treatment that “shocks the conscience.”

These rights, to be sure, have been enlarged and gained greater definition during the course of our history. Not all of these rights extend, as a matter of law, to those who are not citizens or residents.

But to adopt and apply a policy of cruelty anywhere within this world is to say that our forefathers were wrong about their belief in the rights of man, because there is no right more fundamental than the right to be safe from cruel and inhumane treatment. If we can lawfully abuse Qahtani the way he was abused – however reprehensible his acts may have been – it is because he did not have the inalienable right to be free from cruelty. If that is so, then the right is no longer universal. And if that is the case, then the foundation upon which our own rights are based starts to crumble, because it would then ultimately be left to the discretion of the state whether and how much cruelty may be applied to any person. In these circumstances, there would no longer be any obvious or necessary limitation to the application of cruelty.

From a foreign policy standpoint, the adoption of a policy of cruelty damages our nation because it is contrary to our over-arching foreign policy interests. America’s substantial international influence stems from a combination of factors: the strength of our example as a free nation and the ideas and values upon which we are founded; the strength of our economy and our military; and the effectiveness of a foreign policy that has been successful in large measure because of its pursuit of objectives abanow.org/2008/02/ex-u-s-navy-counsel-speaks-at-human-rights-luncheon/

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congruent with our national values.

The employment of cruelty not only betrayed our values, thus diminishing the strength of our example and our appeal to others, it impaired the execution of our foreign policy in ways inimical to the accomplishment of our traditional objective of security enhanced by the spread of human rights and the rule of law.

At least from World War II until today, American foreign policy has been grounded on a human rights strategy that pivots on the principle of human dignity. We fought tyranny and promoted democracy not only, or even primarily, because it was the right thing to do, but because the spread of democracy made us safer and protected our own freedoms.

Abroad, in ways that echoed the development of our domestic legal system, we successfully promoted the development of a rules-based international order based on the rule of law. Across the world, human rights principles, international treaties and laws, and many domestic constitutions and legal systems owe their character, acceptance, and relevance to our inspiration, effort, advocacy, or support.

Let’s look at three examples, out of many: The Nuremberg Trials – that triumph of American justice and statesmanship that launched the modern era of human rights and international criminal law – treated prisoner abuse as an indictable crime, helped cement the principle of command responsibility, and started the process whereby national sovereignty no longer served as an absolute shield to protect the perpetrator of crimes against humanity and other crimes from the long arm of justice.

The Geneva Conventions, as do most of the major human rights treaties adopted and ratified by our country during the last century, forbid the application of cruel, inhuman, and degrading treatment to all captives. Thousands of American soldiers have benefited from these treaties.

And the German Constitution, article one, section one, states: “The dignity of man is inviolable. To respect and protect it is the duty of all state authority.” That this should be an element of the German Constitution today reflects credit only on the German nation. That it should have been adopted by Germany in 1949, the year the constitution was first ratified, reflects credit on an American foreign policy that had integrated our national focus on human dignity as an operational foreign policy objective.

Each of these achievements has returned massive dividends to our nation. We are all the better for them. However imperfectly these rules or principles may be observed or enforced, they have helped shape public and official opinion world wide, created global standards of conduct, and formed the behavior of foreign individuals, groups, and nations in ways that are largely consistent with our national interest and objectives.

What did a policy of cruelty do to these accomplishments?

From the foreign policy standpoint, our adoption of such a policy was devastating. By violating the central elements of the human rights laws and principles and the culture of human rights observance abanow.org/2008/02/ex-u-s-navy-counsel-speaks-at-human-rights-luncheon/

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that we have labored so hard to create and sustain, cruelty damaged our foreign policy in the following ways: The letter and spirit of the Geneva Conventions have been trampled; The Nuremberg principle of command responsibility has been weakened; The very fabric of human rights and international law have been damaged by the loosening of its requirements and fostering a spirit of non-compliance; The incidence of prisoner abuse around the world has increased; Those traditional elements of our foreign policy based on the protection of human dignity through the rule of law have been rendered incoherent and ultimately untenable; A deep legal and political fissure has been created between us and our traditional allies, because none of them would follow the U.S. into the swamp of cruelty; Public respect for the United States and approval of our polices have decreased sharply around the world, hampering our achievement of foreign policy objectives; and Those U.S. policymakers and officials who participated in the practice of cruelty are now exposed to potential civil and criminal liability overseas. This has engendered a probability that litigation and prosecutions overseas affecting these officials will complicate our international relations for years to come.

None of this is to our benefit. Yet these are some of the costs we suffered when we adopted a policy of cruelty in this war. These are the self-inflicted wounds we caused to ourselves when we abused Qahtani and adopted the policies that permitted his mistreatment and that of others.

Let me now turn to national security. The damage to our security strategy and our operational effectiveness is closely related to the harm done to our foreign policy interests. Simply stated, our nation’s defenses are materially weakened, not strengthened, by our policy and practice of cruelty.

Although this point is as critical as the others in understanding why cruelty is not in the national interest, it is perhaps the least understood by the general public.

The three thousand deaths we suffered on September 11 amply justified the President’s decision to respond with military force and the labeling of this conflict as a “War on Terror”. But the use of the term “war” should not lead us to think, mistakenly, that it only consists of warfare, or mask its essential political nature, or serve to dictate a narrow legal regime to be applied to its prosecution.

This conflict will not be won primarily by military means, but will require the integration of all the tools of our national power. The geographic dispersion of our enemies, the difficulty in locating them, and the underlying ideological nature of our adversary’s actions all point to a conflict in which our military actions must necessarily be subordinated to a political strategy. This conflict spans the gamut of force – from traditional force-on-force engagements, as in Afghanistan and Iraq, to intelligence and police operations against individual terrorists located elsewhere.

The geography of this war also varies widely. Terrorists are reportedly active in several dozen countries, ranging from Europe and its sophisticated legal systems to the relatively lawless and ungoverned areas of western Pakistan and northern Yemen. Because of this, the legal tools used to support these varied operations across this geographical spectrum will necessarily vary. The law of war may apply in Iraq, but it will not in Germany or Italy, where local criminal law will govern antiterrorist operations. abanow.org/2008/02/ex-u-s-navy-counsel-speaks-at-human-rights-luncheon/

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In this war, then, our national security is achieved through the simultaneous use of ideas and communications, political persuasion, superior intelligence and law enforcement, diplomacy, and military action. Let me illustrate. The attacks on the World Trade Center, the Madrid railway station, and the London buses, among many others, evidence a terrorist ideology of nihilism that obliterates human dignity. Today, in parts of the world, there are those who fully adhere to this dark vision or who are sympathetic to it.

Our defense to this phenomenon cannot be solely military because these acts themselves emanate from specific ideas that are held by many, that are taught or transmitted, and that are ultimately adopted by others who propagate this cycle of hate. These ideas must be combated by our ideas and ideals. Our response must also consist of rallying to our mutual defense those who share our values and our vision of a humane civilization at the same time that we seek to convince those who don’t agree with us that our ideals are superior to our enemies’. The terrorists exalt death – we offer life; to their savagery, we offer justice.

As we prosecute this war, we should do so with a clear vision of the world we would wish to emerge from this conflict, and by recognizing that we can not fight this type of war alone. Thus, our political and military strategy must be geared to building and sustaining a large, unified alliance that cooperates across the spectrum of the conflict. Yet we will not be able to build this alliance unless we are able to articulate a clear set of political objectives and prosecute the war using methods consistent with those objectives. We will not be able to build this alliance unless we construct a common legal architecture with our leading allies. And we will not be able to establish that common legal architecture if we continue to insist in the right to apply cruel treatment to detainees.

When our nation adopted our policy of cruelty we compromised our ability to accomplish all of these national security objectives. The damage we suffered was both at the strategic and at the operational or tactical level. Strategically, these are some examples of the damages we suffered: Because the cruel treatment of prisoners constitutes a criminal act in every European jurisdiction, European cooperation with the United States across the spectrum of activity — including military, intelligence, and law enforcement — diminished once this practice became apparent; Similarly, the willingness of individual European officials to cooperate with the United States in detainee activities also diminished as they recognized that cooperation might make them accomplices in criminal activity and expose them to civil liability; Almost every European politician who sought to fully ally his country with the U.S. effort on the War on Terror incurred a political penalty, as the political difficulties of Prime Ministers Blair and Aznar demonstrated; Our abuses at Abu Ghraib, Guantanamo, and elsewhere perversely generated sympathy for the terrorists and eroded the international good will and political support that we had enjoyed after September 11; And we lost the ability to draw the sharpest possible distinction between ourselves and our adversaries and to contrast our two antithetical ideals. By doing so, we compromised our ability to prosecute this aspect of the war – the war of ideas – from the position of full moral authority.

All of these factors contributed to the difficulties our nation has experienced in forging the strongest possible coalition in the War on Terror. But the damage to our national security also abanow.org/2008/02/ex-u-s-navy-counsel-speaks-at-human-rights-luncheon/

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occurred at the tactical or operational level.

Consider the following: According to senior flag-rank officers in our military, the proximate cause of Abu Ghraib was the legal advice authorizing abusive treatment of detainees that issued from the Department of Justice’s Office of Legal Counsel in 2002; According to other serving flag-rank officers intimately involved in counter-terrorism and in the Iraq war, the first and second identifiable causes of U.S. combat deaths in Iraq – because of their effectiveness in attracting and fielding insurgent fighters into combat – are, respectively Abu Ghraib and Guantanamo; At various different points, allied nations hesitated to participate in combat operations if there was the possibility that, as a result, individuals captured during the operation could be abused

by U.S. or other forces; At other times, allied nations refused to train with us in joint detainee capture and handling operations, also because of concerns about U.S. detainee policies. Of course, if you don’t train together, you can’t fight together; and policy of treating detainees harshly stiffens our adversaries’ resolve on the battlefield by inducing them to fight harder, because of fear of capture, rather than to surrender. This could lead to further loss of American lives.

Each of these points demonstrates how our policy of cruelty weakened our national security and our defenses. Whatever the intelligence obtained through our use of harsh interrogation tactics may have been, on the whole the military costs of these policies and practices outweighed the benefits and greatly damaged our overall efforts and impaired our effectiveness in the War on Terror.

One recent event will help demonstrate how cruelty simultaneously damages our legal system, our foreign policy, and our national security. During Justice Department oversight hearings on the 7th of this month, Rep. Hank Johnson asked the Attorney General, Michael Mukasey, the following question: “Under what circumstances would it ever be permissible under international law for an enemy nation to interrogate a U.S. citizen by strapping the U.S. citizen to a board and suffocating him or her with water with the intent to create the fear of death?”

And here is the Attorney General’s astonishing response: “I’m not going to go through a list of hypotheticals of what might be permitted or might not be permitted to us or anybody else because to do so would indicate the contours of what may or may not be permitted under a program that is classified.”

We should ponder the implications of his unwillingness to answer. There is not a more necessary question, or an easier question, for an Attorney General to answer than what are the types of abuse from which an American soldier should be protected and which this country will not tolerate. Yet there is probably no enemy who heard this exchange who doesn’t breathe easier because he understands that he can now abuse captured American soldiers with greater impunity.

Similarly, there is also probably no rogue cop in this country who doesn’t understand that he now has more latitude to apply brutality to those in custody. And there must be few despots abroad who don’t feel that they can apply repression with a heavier hand given this signal that the United States will no longer raise its voice against the brutality of others, lest others judge our brutality. abanow.org/2008/02/ex-u-s-navy-counsel-speaks-at-human-rights-luncheon/

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Whether our nation will firmly reject this policy of cruelty – as we should – or embrace it hangs in the balance. There is some evidence that we are turning against it. But the push to legalize cruelty also continues. On February 6, CIA Director Michael Hayden divulged that three terrorist suspects had been waterboarded, in effect providing the first official confirmation that individuals in detention have been tortured. That same day, the White House spokesman asserted that waterboarding is legal and that the President retains the power to order its use, an extraordinary assertion of presidential authority given that the express language of the Detainee Treatment Act prohibits all cruel treatment.

So, dismayingly, the legal seesaw continues, but the stakes have gotten higher. By identifying waterboarding as one of the techniques previously used and by continuing to insist that its use is effective, necessary, and legal, the administration continues to complicate the issue of accountability for abusive prisoner treatment, accelerates the drive to acquire legal authority for the use even of torture and, no less important, continues to try to build public support for such practices.

Before 9/11, the national consensus held that neither cruel treatment nor punishment could be applied to human beings. This was — then — a consensus cemented by the convergence of our national values, our laws, our foreign policy interests, our human rights principles, and even our military doctrine.

Now, there is no longer a consensus. Now, many Americans are of the view that cruel treatment or even torture may and should be applied against our enemies, or those who may possibly be our enemies, if doing so could make us safer. And many others who have not yet abandoned our traditional abhorrence of cruel treatment are asking how much abusive treatment can be applied lawfully to these captives.

This makes our job vastly harder. In addition to adopting a legal standard that clearly outlaws cruel treatment anywhere, defines it as a criminal offense, and ensures accountability for those who engage in it, we also need to restore the national consensus against cruelty. We know that if there is another terrorist attack, the numbers of those who support cruelty will rise again. They will press the case that the national security requires harsh interrogations, and demand that our values yield to the purported dictates of the threat.

That is why we need to act purposefully to help educate Americans that this issue is not simply about what happens in the interrogation room. It is, as Sen. John McCain has said, about who we are as a nation. It is about remaining faithful to our heritage and constitutional order. It is about who we wish to become and what kind of world we wish to live in. It is about protecting human dignity at home and abroad. It is about mounting the most effective defense to the terrorist threat, and recognizing that cruelty weakens those defenses. And it is about understanding – to return to Camus’ formulation –that cruelty is the weapon whose use would destroy the very values we seek to protect.

My deepest thanks again to you for inviting me here today.

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