One of our country’s unique founding principles is a commitment against cruel and unusual punishment. People around the world have long admired and respected the America I love — the land of the free, protector of civil liberties and guarantor of human rights. Last Thursday, though, Congress’ approval of the Military Commissions Act deprived America of its strongest weapon against terrorism: the moral high ground.
The act allows inhumane torture techniques by interpreting the “serious physical pain or suffering” prohibitions of the Geneva Conventions far too narrowly. To violate these new provisions, torture would have to result in “bodily injury” that has either substantial risk of death, extreme physical pain, disfigurement of a serious nature (not including cuts, abrasions or bruises) or significant loss or impairment of bodily function.
This is an unreasonably low standard for human treatment and would allow most of the administration’s brutal techniques to continue. Waterboarding, or tying a prisoner to a board upside-down and submerging his head underwater to simulate drowning, would still be legal. The Cold Cell, or leaving a prisoner standing naked in a cell kept at 50 degrees and periodically dousing him with cold water, would still be legal. Long Time Standing, or forcing a prisoner to stand in handcuffs with his feet shackled to an eyebolt in the floor for more than 40 hours, would still be legal. Stress Positions, or chaining a prisoner in a painful position for long periods of time, would still be legal. All of these are among the most popular Bush-approved methods currently employed by the Central Intelligence Agency.
Five former chairmen of the Joint Chiefs of Staff, including Gen. Colin Powell, have spoken out against the bill. They argue that not following the Geneva Conventions will put our troops at risk. The Army Field Manual states the military version of the golden rule: If you would consider some action torture or mistreatment if it happened to one of your colleagues, then you should consider it torture or mistreatment for whomever is in your custody. Would you have trouble deciding if the CIA’s techniques are cruel?
Equally grave is the elimination of habeas corpus for aliens detained overseas. Under this act, someone at Guantanamo Bay can never get a hearing on whether he is being illegally held or whether he is being illegally treated (tortured). As long as he is not prosecuted in a military commission hearing, he can be held indefinitely, and there is no way for him to get out.
Allowing indefinite detention and torture without due process of law is particularly disturbing so close on the heels of Maher Arar’s terrifying story. Just two weeks ago Arar, a Canadian citizen, was found to be unequivocally innocent of any terrorist ties. Yet he had been detained in New York by the CIA, kept in a prison in Syria for 10 months and beaten until he confessed to being trained at an al Qaida camp in Afghanistan. This story tragically illustrates the unacceptable danger of prohibiting court hearings and the unreliability of admissions under torture.
Perhaps even more frustrating is that this bill passed Congress for political reasons, not policy reasons. Many of the senators who voted for the bill did not agree with it on principle — they sacrificed their beliefs for the party line and for midterm election gains. Sen. John McCain (R-Ariz.) and two other Senate Republican leaders initially fought for upholding the Geneva Conventions and preserving basic human rights in a better version of the bill. However, after meeting with Bush they decided on a “compromise” that was really a capitulation. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) called the bill “patently unconstitutional on its face” and said he would vote against it. He promptly voted for it. Meanwhile the Democrats were too afraid to look weak on national security to do anything at all; they quietly waited in the wings as the Constitution was being unraveled.
Even more broadly, though, this act is a fatal strategic blunder in what the president calls our war to “win the hearts and minds of the Arab people.” The only way we can win that war is to show the world that, no matter what, our values of civil liberties and basic human rights will remain strong. The Military Commissions Act fails to uphold these founding principles of America and therefore makes the ultimate war on terrorism much harder to win.
Dustin Cho is a junior in Saybrook College. He is the publicity coordinator for the Yale College chapter of the ACLU.